FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION
(202) 434-9950
October 4, 2012
|
SECRETARY OF LABOR, |
: : : : : : : : : : : : |
CIVIL PENALTY PROCEEDINGS
Docket No. KENT 2009-1582 A.C. No. 15-02709-196588 Docket No. KENT 2009-1583 A.C. No. 15-02709-196588 Mine: Highland 9 Mine |
DECISION
Appearances: Neil A. Morholt, Esq., and Laura Manson,
Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, TN, on behalf
of the Petitioner;
Jeffrey
K. Phillips, Esq., Steptoe & Johnson, PLLC,
Before: Judge
Rae
This
case is before me upon two Petitions for Civil Penalty filed by the Secretary
of Labor (Secretary) on behalf of her Mine Safety and Health Administration
(MSHA) against Highland Mining Company, LLC (Highland) pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977 (the "Act''). 30
U.S.C. §801, et seq. The Secretary alleges that Highland violated mandatory
safety standards for underground coal mines at its Highland 9 Mine, a
bituminous coal mine located in Waverly, Kentucky. In addition to making
allegations regarding the gravity and negligence of each of the violations, the
Secretary alleges that each was a significant and substantial contribution to a
mine safety hazard (S&S), and several were an unwarrantable failure to
comply with the mandatory standard. The Secretary proposes assessing
I.
STATEMENT OF THE CASE
Upon
motion by the Secretary, the two
Hearings were held in
The
parties entered into the following stipulations: (1) the proposed penalty
assessments will not affect Respondent’s ability to continue in business; (2) that Highland Mining Company, LLC is
engaged in the mining and selling of coal in the United States and its mining
operations affect interstate commerce; (3) that Highland Mining Company, LLC is
subject to the Federal Mine Safety and Health Act of 1977 (the Act); (4) the
administrative law judge has the jurisdiction to hear and decide this matter;
(5) all of the citations and the one order at issue in these two
II.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Law
and Regulations
.Significant
and Substantial (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 U.S.C. § 814(d). A violation is properly designated S&S,
“if, based upon the particular facts surrounding the violation, there exists a
reasonable likelihood that the hazard contributed to will result in an injury
or illness of a reasonably serious nature.” Cement
Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). As is well
recognized, in order to establish the S&S nature of a violation, the
Secretary must prove: (1) the underlying violation; (2) a discrete safety
hazard – that is, a measure of danger to safety – contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury will be of
a reasonably serious nature. Mathies Coal
Co., 6 FMSHRC 3-4 (Jan. 1984); accord Buck
Creek Coal Co., Inc. 52 F. 3rd 133, 135 (7th Cir. 1995); Austin Power Co., Inc. v, Sec’y of Labor,
861 F. 2d 99,103 (5th Cir. 1988) (approving Mathies
criteria).
It
is the third element of the S&S criteria that is the source of most
controversies regarding S&S findings. 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 1125 (Aug. 1985);
The S&S nature of a violation and the gravity of a violation are not
synonymous. The Commission has pointed out that the “focus of the seriousness
of the 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).
Accumulations/fire/ignitions
Several
violations charged against
When
evaluating the reasonable likelihood of a fire, ignition, or explosion, the
Commission has examined whether a ‘confluence of factors’ was present based on
the particular facts surrounding the violation.
Texasgulf, Inc. 10 FMSHRC 498, 501 (April 1988). Some of the factors include the extent of the
accumulations, possible ignition sources, the presence of methane, and the type
of equipment in the area. Utah Power & Light Co., 12 FMSHRC 965, 970-71
(May 1990)(‘UP&L’); Texasgulf, 10 FMSHRC at 500-03.
Enlow
Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997).
Unwarrantable
Failure
In Lopke Quarries, Inc., 23 FMSHRC 705, 711
(July 2001), the Commission reiterated the law applicable to determining
whether a violation was the result of an unwarrantable failure:
The
unwarrantable failure terminology is taken from section 104(d) of the Act, 30
U.S.C. § 814(d), and refers to more serious conduct by an operator in
connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec.
1987), the Commission determined that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence.
Whether
conduct is “aggravated” in the context of unwarrantable failure 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 Consolidation Coal Co., 22 FMSHRC 340,
353 (Mar. 2000); Cyprus Emerald Res. Corp.,
20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42
(D.C. Cir. 1999); Midwest Material Co.,
19 FMSHRC 30, 34 (Jan. 1997); Mullins
& Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 14 FMSHRC 1232,
1243-44 (Aug. 1992); Quinland Coals, Inc.,
10 FMSHRC 705, 709 (June 1988). 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. Consol, 22 FMSHRC at 353.
Because supervisors are held to a high standard of care, another
important factor supporting an unwarrantable failure determination is the involvement
of a supervisor in the violation. REB, 20 FMSHRC 203, 225 (Mar. 1998).
The Violations
Docket KENT 2009-1582
1. Citation No. 8494791
This citation
states that:
The roof and ribs where men
regularly work and travel along the 1st North belt at crosscuts 28
to 31 are not being controlled to protect
persons from the hazards related to falls of roof or ribs and rock or coal bursts. A roof fall has previous (sic) taken place
from crosscut 28 ½ to 30 ½. The roof in this area is approximately
12 to 14 feet high. Coal and rock had fallen between crosscuts 28 and 29 in an area approximately 11
feet long by 10 feet high. Loose rock
has fallen between crosscut 30 and 31
approximately 4 feet high by 11 feet long.
Loose rock was observed along the
brows from crosscut 28 ½ to 30 ½. This
hazardous condition was recorded in the belt book from 7/16/2009 until 7/18/2009
and no corrective actions were taken.
Several areas of loose coal
and rock were observed in this
area. The mine operator has engaged in
aggravated conduct constituting
more than ordinary negligence. This is
an unwarrantable failure to comply with a mandatory
standard.
Ex.
G-14.
In addition to being assessed as an
unwarrantable failure, this violation was also designated as having the
reasonable likelihood of resulting in an injury to one person causing lost
workdays or restricted duty, S&S and the result of high negligence. The proposed penalty is specially assessed at
$14,700.
The cited standard, 30 C.F.R. 75.202(a),
requires that the roof and ribs in areas where persons work or travel be
supported or controlled to protect them from hazards related to roof, face or
rib falls and rock bursts.
George Yates worked as a miner for
33 years performing an array of jobs including general laborer, equipment
operator and certified foreman in three states.
He is experienced in conducting examinations of roof and rib
conditions. (Tr. 204-210.) He began his MSHA career as an inspector in
November 2006 and has inspected Highland several times beginning in late
2008. (Tr. 211-13.)
On July 20 2009, Yates began his
second day of inspecting Highland at 8:20 am. (Tr. 218.) Upon review of the
on-shift book and belt books, he noticed that on July 16th a rock was reported
in the travelway of crosscut 28 to 31 in the 1st North belt. (Ex.
G-13 at pg. 23.) The area had been
dangered off with tape. (Tr.
218-21.) The entries in the belt book
also noted the same hazard for the following two days, indicating that the
hazard had not been corrected during either of the two production shifts run
each day. (Tr. 222-23.) The belt examiner on each shift is tasked
with checking for any hazards in the belt area and noting them in the book so
that the foreman will be made aware of them thus ensuring corrective action is
taken promptly. (Tr. 224-27.) In this
instance, several mine foremen had countersigned the notations in the belt book
and had failed to note any corrective action. (Tr. 228.) After having reviewed
the books, Yates then traveled to the area with company and union representatives
where he saw red danger ribbon hanging from roof bolt plates. He traveled inby
the ribbons to determine what sort of hazard they warned against. He found the conditions as listed in the
narrative portion of the citation and drawn in his notes, in addition to cracks
and loose ribs. (Tr. 232-37; Ex G-13 at pp. 5 and 22.) He was told by Highland
examiner, Bob Perry, that the cited areas were too dangerous to travel. (T.
246.) Yates testified that the area in which he found these conditions was the
walkway side of the entry where miners travel to examine the belts. (Tr. 236,
238.) All belts in the mine dump coal onto this particular belt located in the
main north entry. (Tr. 220.) When Yates
touched the belt hangers in the area, they were extremely hot to the bare
hand. (Tr. 239.) Once the belt was realigned, Yates and his
two companions crossed under the belt to the return side where he found
similarly dangerous conditions as set forth in the citation and no footprints
to evidence an examiner having been in the area. A sign was posted in that area
that read “examine belt from other side of the entry.” There was a guard
installed nearby to allow passage underneath the belt. (Tr. 240-41.) There had been a roof fall in
the area in the past and timbers were set to provide supplemental support to
the brows. (Tr. 243.) Yates stated that
the roof control plan for Highland specifies, however, that supplemental roof
support shall be added to control adverse conditions such as these; it does not
allow for simply flagging off the area. (Tr. 243-44.)
Based upon the numerous areas of
adverse roof conditions, the misaligned belt causing a source of friction and
the lack of remedial efforts, Yates made the decision to issue this Section
104(d) citation and an accompanying order discussed below. (Tr. 245.)
Highland presented evidence that
they had taken measures to support the roof and ribs in the area. Alan Thomas testified that he sprayed gunnite
in the belt entry, however that was six months prior to this inspection. (Tr. 324.)
They also presented evidence that any rock falls were remote in time and
scaling had been done just prior to the inspection. Troy Cowan’s deposition was entered into
evidence in which he stated that he was present during this inspection.[1] It was his observation that there were no
obvious loose rocks or dangerous conditions as Yates found and it took a good
deal of effort for him to scale the rock Yates believed was loose. (Cowan dep at 17.) In order to abate the citation eight days after its
issuance, Highland installed arches from crosscuts 28 to 31. (Cowan Dep. At 22; Ex. G-14.)
In addition to refuting the existence of the hazardous roof and rib
conditions, Highland maintains that the language of the regulation requiring
roof and ribs be supported or otherwise
controlled where persons work or travel was not violated.
(Emphasis added.) Because the area was
dangered off it no longer was an area where persons work or travel. Furthermore, dangering off the area is a form
of roof control thus satisfying the intent of the standard. (Res. Post-Hearing Memo. at pg. 14-15.)
Highland relies on Cyprus Empire
Corporation, 12 FMSHRC 911 (May 1990) to support its position. In that case, the Commission determined that
where the operator dangered off the area affected by poor roof conditions, the
area was no longer a place where persons worked or traveled vacating the
citation and penalty imposed by the ALJ.
The Commission said that “[T]he Secretary also did not prove that, while
the area was dangered off, the job duties of any miners required them to enter
the affected area. Thus, the record establishes that the operator acted
appropriately in dangering-off the area of bad roof and that no miners worked,
traveled or were required to enter into the area at issue.” Cyprus at
917. The dissenting opinion, however, points out that the majority clearly
ignored the fact that ventilation examiners as well as other miners would need
to access the area while the condition remained unabated. Moreover, the dissent underscores the fact
that the regulatory obligation to protect miners from roof and rib dangers goes
beyond merely cordoning off the area; the roof must be supported or controlled. To hold otherwise would immunize the operator
from MSHA’s enforcement of this mandatory standard by simply putting danger
tape around an affected area.
I find that Highland’s reliance on Cyprus is not applicable here. Here, the
area in question is a very active part of the mine - the main belt entry. The
condition was allowed to exist for at least three days spanning eight
shifts. Under continued normal mining
conditions, miners would be required to enter the area to perform mandatory
tasks such as rock dusting, cleaning of accumulations, realigning the belt and
adjusting and replacing rollers. In fact, Highland’s own evidence documents
that on July 17th, scaling was done from crosscuts 13 to 38 proving
that persons were entering the posted area. (Ex. R-23.) Yates testified that he
observed areas in need of rock dusting and the belt required realignment. (Tr.
248, 239.)
I also find that the conditions were
as hazardous as Yates testified supported by the fact that Highland’s own
witnesses confirmed that numerous prior attempts to control the roof had been
made and failed leading to attempting to cordon off the area. Perry’s statement that the conditions were
far too dangerous to allow travel along the entry sufficiently corroborates
Yates’ assessment. I find the Secretary has met her burden of proof
establishing the mandatory standard has been violated.
S&S
Inspector Yates testified that the
hazard he was concerned about was a roof or rib fall caused by the largely
unsupported top and badly cracked ribs and roof. (Tr. 248.)
He found the loose rock and ribs to be extensive and obvious in the
cited area and the condition was continuing to deteriorate. In his 30 years of mining experience, Yates
was aware of a falling rib or rock causing fatal injuries. (Tr. 249.)
At the very least, the nature of any injuries would be broken bones and
bruises. (Tr. 250.) He was aware of roof
bolter operators at Highland Mine being cut and scraped from falling rock.( Id.)
I find Yates’ testimony, based upon his years of experience in mining
and as an MSHA inspector to be credible.
Highland refutes the S&S
designation under the same theory that it disputes violating the standard. No one was exposed to the hazard because the
area was taped off. (Rep’s Post-Hearing
Memo.) This argument, however, ignores the fact that
one must evaluate the likelihood of the hazard causing an injury in the context
of continued mining operations. Texasgulf, Inc., 10 FMSHRC 1125 (Aug.
1985); U.S. Steel, 7 FMSHRC at 1130. As stated above, because the cited area was
the main belt line which was crucial to processing coal, under continued normal
mining operations miners would have had to enter the cited area to align the
belt, service rollers, clean up accumulations and rock dust, etc. This argument
also ignores the fact that miners had entered the area at least once on July
17, 2000 to perform scaling in the affected crosscuts. Persons were exposed to
this hazard.
The conditions Yates cited violated
the mandatory standard. The inadequately
supported ribs and roof contributed substantially to the likelihood of a rock
or rib fall. There had been a roof fall
in the cited area in the past. The remedial measures taken failed and
conditions had worsened causing at least one miner to refuse to enter the area
and management to post danger warnings.
The conditions were such that another roof or rib fall was reasonably
likely to occur, which in turn would be reasonably likely to cause a reasonably
serious injury to a miner. The elements
of Mathies have been met.
Negligence/unwarrantable
Failure to Comply
This violation was assessed as an
unwarrantable failure to comply with the mandatory standard, being the result
of high negligence. (Ex. G-14.) Yates
based his high negligence and unwarrantable failure designations on the same
facts. That is, the poor condition of
the roof and ribs was extensive and obvious.
It was noted in the belt book since July 16th and Highland had
done nothing to correct the condition.
The foreman was well aware of the situation as proven by his
countersignature on the belt book entries.
Management should have at least come up with a plan to eliminate the
danger but had not done so. (Tr. 252-53.)
On direct examination Yates stated
that had Highland done enough scaling to eliminate the hazard making travel in
the entry safe, he would not have issued the unwarrantable failure
citation. (Tr. 254.) On cross-examination, he confirmed that in his
earlier deposition when asked the question “[w]ould scaling have been enough
corrective action” his response was “[m]aybe not enough to eliminate the
citation but to do away with the D.”
Highland also elicited from Yates that the cited area was re-bolted
after a roof fall one to two years earlier and it was then timbered. (Tr.
282.) He did believe the rocks that he
saw on the mine floor were the result of some recent activity as they did not
have rock dust on them and were black in color.
He could determine whether they were the result of a fall or scaling.
(Tr. 248, 283.)
Yates’ statement that he would not
have issued a 104(d) violation if he had noticed that scaling was done on July
17th is irrelevant at this point.
Whether this violation was an unwarrantable failure is a legal
conclusion properly left to the ALJ at the hearing level. Addressing the factors enunciated by the
Commission in Consolidaton Coal, Supra, I
find that the condition was obvious and posed a very high degree of danger to
miners examining and performing maintenance in the belt entry. It existed for at least three days in an area
that is the core of the mining operation.
Highland was well aware of the poor roof conditions in this area from
the roof fall more than one year earlier with continually deteriorating
conditions henceforth as documented in the examination book and countersigned
by the foremen despite supplemental bolting and timbering efforts. The
requirement to perform preshift and on-shift examinations continued with
Highland operating two production shifts every day exposing miners to grave
injury. Despite their claims that the examiners were making the belt entry from
the crosscuts there is sufficient evidence to find that miners were still
entering the area. Their attempt to “control” the main belt entry by putting up
danger flags was a feeble attempt to rectify the situation. It was decidedly
apparent to Highland that immediate and greater measures were necessary to
correct the condition but they had not so much as developed a plan to implement
such measures when Yates issued the violation.
Based upon the facts and circumstances presented, Highland’s actions
displayed a reckless disregard for safety constituting more than ordinary
negligence. I affirm the assessment of
an unwarrantable failure to comply with the cited standard.
2.
Order
No. 8494792
This order was issued by Inspector
Yates in conjunction with citation number 8494791 discussed above when
examining the 1st North Belt on July 20, 2009. The narrative portion
reads as follows:
The 1st North Belt is not
being maintained in safe operating condition.
There are 3 hot bottom roller
hangers located at crosscut 29. The bottom
belt is out of alignment and rubbing the hangers. Hazardous roof and ribs are present in this
area and the examiners have not been traveling
this area when examining the belt. The
rollers were very hot to the touch when touched
with the hand. The mine operator engaged
in aggravated conduct by not correcting the hazardous
roof and rib conditions allowing the examiner to safely examine this area.
This violation is an
unwarrantable failure to comply with a mandatory standard.
Ex.
G-15.
The gravity of this violation is
assessed as reasonably likely to result in an injury causing lost workdays or
restricted duty to one person. The
negligence is marked as high and S&S in addition to being an unwarrantable
failure. The order was terminated the
following day when the belt was realigned and the hangers cooled down. Ex. G-15.
The Secretary seeks a specially assessed penalty of $13,600.
The cited standard requires that
conveyor belts be properly aligned to prevent the moving belt from rubbing
against the structure or the components.
30 C.F.R. §75.1731(b).
As previously stated, Yates found
three rollers at crosscut 29 that were hot where the bottom belt was out of
alignment and rubbing the frame. The area in question was approximately twenty
feet in length. (Tr. 238-39.) Highland does not contest the existence of the
violation.
S&S
Yates testified that there was a
danger of fire and smoke because the hot hangers created an ignition source
should coal fall on the belt. (Tr. 257-58.)
Because the conditions were such that the examiners were not making
proper examinations of the belt, the hazard would not have been discovered
before the belt was shut down for the day some twelve hours later. (Tr.
262.) During that period of
time, given the roof conditions, it was reasonably likely that accumulations
would have been produced or coal could have fallen on the belt causing a fire
exposing miners to the danger of burns and smoke inhalation. (Tr. 250, 258, 260.) The Secretary argues that loose coal,
considered accumulations, was found along the belt entry providing the fuel for
a fire making it reasonably likely to occur.
Yates testified to several
additional facts and opinions on cross-examination. There were no accumulations or belt shavings
beneath the belt line. (Tr. 285.) He had no idea how long the condition had
existed but it had probably occurred sometime during that shift which had
commenced four hours earlier. (Tr. 261.) There was no notation of the misaligned
hanger in the examination book. (Tr. 284.)
He had no idea how long the belt would need to run before it would catch
on fire or whether the belt could catch on fire. (Tr. 287.) The belt travels approximately 11,200 feet in
one complete rotation. Any one section
of the belt passing over the misaligned hanger would cool along this expanse
before it came in contact with the misaligned hanger again. (Tr. 312-13.) The
entry was 20 feet wide. The belt was
approximately 10 feet from the end of the crosscut where the examinations were
being conducted. (Tr. 230, 284-85.)
Highland’s contention that the violation was not reasonably likely to result in
a serious injury is based upon these additional considerations.
The crux of the Secretary’s theory
is that should a rib rash or roof fall occur where the misaligned belt was
located, the condition would go undiscovered due to Highland not conducting
examinations of the belt. As a result, this accumulation over the course of
time would be reasonably likely to ignite given the heat source created by the
friction from the misaligned belt rubbing on the hangers. (Sec’s Post-Hearing
Brief, Tr. 267.) However, I do not find
sufficient evidence of record to reach the same conclusion. As more fully discussed below, the
uncontroverted evidence is that Highland was making the on-shift examinations
of the entry from the crosscuts. Yates
was made aware of this fact during his inspection by Troy Cowan. (Cowan dep. at 20.) After being made aware of this fact, Yates
allowed the belt to continue operations and allowed this practice to continue
until the arches were installed several days later. (Tr. 294-95.)
The on-shift examination book indicates several items were documented
during the three days in question such as loose rocks in the entry and scaling
of the roof. (Ex. R-23.) Yates estimated the condition had existed only since
the beginning of the shift and that although hazards were being recorded in the
examination book, the misaligned belt was not noted. I conclude from this evidence that the
Secretary’s assertions that the condition would go undiscovered due to
inadequate examinations are unsupported by record evidence.
With regard to the heat source
present, Yates could not say how long it would take for the roller hangers to
become sufficiently hot to cause a belt fire, or even if a belt fire would
occur. (Tr. 286, 313.) On the other hand, Cowan who was with Yates during the
inspection, testified at his deposition that after Yates felt the roller
hanger, Cowan removed his glove to feel the roller hanger as well. He found it to be warm to the touch but not
warm enough to raise a concern. He also
observed the belt running over the hanger and found the belt was only
occasionally rubbing on the hanger. Cowan also scaled the rock that concerned
Yates and had a difficult time prying it loose. (Cowan dep. at pp. 17-20.) There was no evidence of methane or
electrical equipment in the entry. This evidence is not sufficiently convincing
to support the proposition that it was reasonably likely that the misaligned
belt would result in an ignition, should coal or other accumulations fall on
the belt, under continued normal mining conditions.
For the reasons set forth herein, I
find this violation was not properly designated S&S and modify it to
non-significant and substantial.
Unwarrantable Failure/Negligence
The Secretary supports the
assessment of high negligence and an unwarrantable failure to comply with the
mandatory standard based upon the same factors discussed above. The belt was
improperly examined and the condition existed for “some time.” (Tr. 261-62,
Sec’s Post-Hearing Brief.) Highland
asserts that the negligence should be assessed as moderate or low but provided
no supporting argument in its post-hearing brief.
I find the violation was not the
result of an unwarrantable failure to comply with the standard for the same
reasons I find it is not significant and substantial. As discussed more fully
below, Highland was conducting on-shift examinations and recording hazardous
conditions in the examination book.
Remedial work such as scaling had been done in the area during the time
period in question evidencing the fact that conducting the examinations from
the crosscuts did afford the examiners a safe yet adequate vantage point from
which to see a hazard. Yates provided an
estimate that the condition had existed since the start of the shift four hours
earlier. He based this on his opinion that the hangers were very hot to the
touch. However, Cowan, also touched the
rollers and described them as warm but not hot. (Cowan dep. At 19.) Regardless of whether the belt had been
misaligned for four hours or some lesser amount of time, I do not find that
amount of time the condition existed was great nor was the condition
extensive. I further find that there is
no evidence from which to draw the conclusion that the condition was obvious or
posed a high degree of danger. There is
also no evidence to suggest that management was aware of the condition or was
placed on notice that greater efforts were needed for compliance. In essence
there are no aggravating factors upon which to find the violation was the
result more than ordinary negligence.
I find the negligence is properly
assessed as moderate. The Secretary did
not offer evidence that management was aware of the condition and based upon my
finding that Highland was conducting examinations; the condition would have
likely been discovered during the next shift at the latest.
Docket
KENT 2009-1583
1. Citation
No. 8494793
Upon review of
his inspections notes from the previous day, George Yates issued this citation
on July 21, 2009, pursuant to 30 C.F.R. §75.362(b) after his inspection of the
1st North Belt the preceding day. The
citation alleges the following violation:
An
inadequate examination of the 1st North Belt at crosscuts 28 to 31 was performed
on 7/16/2009,
7/17/2009 and 7/18/2009. Adverse roof
and rib conditions were present in this area
and recorded in the belt book for these dates.
The area had been dangered off (flagged
out) on 7/16/2009 and the examiners were doing a visual examination from the crosscuts.
When inspected by MSHA on 7/20/2009, the bottom belt was rubbing and 3 hot bottom roller hangers were present at
crosscut 29. The hangers were too hot to
lay your hand against.
Ex. G-17.
The
citation was marked at S&S, affecting one person and reasonably likely to
result in lost workdays or restricted duty and the result of moderate
negligence. (Ex. G-17.) The proposed
penalty is $807.00. The citation was
abated on July 27, 2009 when arches were installed in the belt entry to improve
the roof conditions. (Ex. G-17.)
The
standard, applicable to on-shift
examinations, provides: “[d]uring each shift that coal is produced, a
certified person shall examine for hazardous conditions along each belt
conveyor haulageway were a belt conveyor is operated. This examination may be conducted at the same
time as the preshift examination of the belt conveyors and belt conveyor
haulageways, if the examination is conducted within 3 hours before the oncoming
shift.” 30 C.F.R. §75.362(b).
The
belt examiners at Highland typically made their examination of the belt while
riding along the belt in a golf cart. (Tr. 267.) It was not uncommon, however, for them to make part of the belt on foot
either in the entry or from the crosscuts when the entry was too narrow for a
golf cart to pass through or where there were hazardous conditions preventing
going into the entry. (Tr. 329, 351.)
Two of Highland’s highly experienced belt examiners, Scisney and
Courtney,[2] testified that when a portion of the belt
line is dangered off, they make their examination of the belt from entering
each of the crosscuts and looking up and down the belt for a distance of 15
feet in either direction. The belt is approximately two feet away from the end
of the crosscut in most places and as much as ten feet away in others. (Tr.
362.) Regardless of whether a portion of the belt line is dangered off, they
still conduct a thorough examination of the belt, noting any hazards in the
belt book. Hazards requiring immediate attention
are attended to on the spot, while others such as damaged rollers are tagged
and noted in the book for regular maintenance and repair. (Tr. 331-32,
358.) Both belt examiners testified,
based upon their considerable experience, that they can conduct adequate
examinations of the belt from the crosscuts.
(Tr. 329, 352-53.) Courtney
further testified that MSHA was aware of this practice and had never indicated
any problem with it in the past. (Tr. 329.)
In
contrast to the testimony of Highland’s highly experienced belt examiners, I
find several points with regards to the Secretary’s evidence lacking. First, Yates testified that after he issued
the citations for the dangerous roof conditions and the hot rollers the
previous day, he determined that an adequate on-shift examination of the belt
could not have been made from the 16th through the last production shift on the
18th between cross cuts 28 and 31 when
that area was dangered off. He based
this on the fact that the examiners had informed him that they were making the
belt examination from the crosscuts and from his finding the hot rollers and a
rib roll which he opined would not have occurred had adequate examinations been
conducted. (Tr. 266-68, 270.) He
acknowledged, however, that the examiners were continuing to make entries in
the belt book based upon the visual examinations they were conducting which, in
fact, indicated several hazards from the 16th to the 18th. For instance, on July 16, the day the danger
tape was put in place, it was noted that there was rock in the travelway from
crosscut 28 to 31 and build up at 13 to 38.
On July 17, scaling was done from 28 to 31 on the first shift and rock
in walkway was noted between 28 and 31 on the second shift. A rib roll,
accumulations and rocks from 28 to 31 and a bad bottom roller at 28 were noted
of the 18th. (Tr. 270, 279-81; R-23.)
Secondly,
Yates also conceded that during his inspection on the 20th, he spoke to Bob
Perry, one of the belt examiners on the Main North belt. When Perry told him they were making the belt
from the crosscuts, Yates never bothered to ask Perry if he could see the
rollers, accumulations or roof conditions from the crosscuts. (Tr. 292.) He also did not travel to the ends of the
crosscuts to see for himself whether the examiners could make an adequate
examination of the belt from that vantage point. (Tr. 291.) When making the belt in a golf cart, Yates
conceded, the examiners were not stopping at each roller or crosscut and they
were moving more quickly through the area than they were when making the
examination on foot from the crosscuts.
(Tr. 292-93.) And while other
provisions of the cited mandatory standard set forth a specific location from
which testing must be done such as for methane, Yates could not identify any
language in the section he cited that directs from what distance a belt
examiner must be to conduct the examination.
(Tr. 293.)
Finally,
after he issued this citation on the 21st and until the violation was abated on
the 27th, Yates continued to allow the belt inspectors to make the examination
essentially as they had done before. He
testified as follows:
Yates: I required them to go into the belt line and
to not pass into an area where there was (sic.) hazardous conditions.
Resp.: So you required – let me make sure I
understand this. This area is still dangered off, right?
Yates: Yes, sir.
Resp.: You required mine examiners to enter a
dangered off area?
Yates: Yes, after I instructed them to scale what
loose top they could and for them not to go into anything that would put them in harm’s way.
(Tr. 294-95.)
The
violation was not abated until a significant number of arches were installed to
support the roof as all other forms of roof control including bolts, sprayed
gunnite and timbers had been ineffective.
Under these circumstances Yates could not have believed that scaling
would have rendered the roof safe for travel by the examiners in view of his
previously issued roof control violation. This essentially left the examiners
to make the belt from the crosscuts in the interim or be placed in peril by entering
into an area where there were unwarrantably dangerous roof conditions. Yates was therefore aware Highland was
continuing to make its examinations from the end of the crosscuts and tacitly condoned it.
In
sum, the Secretary has failed to prove the method by which the examiners were
making the belt was inadequate. She has
failed to prove even by a scintilla that the examiners could not adequately see
the conditions present from crosscut 28 to 31 as Yates neither asked the
examiner, nor made his own visual inspection of, what could be seen from that
vantage point. His conclusions were not
based upon any supporting observations.
On the contrary, the two highly experienced examiners testified that it
was not uncommon to conduct the examination on foot from the crosscuts and they
were easily able to see 15 feet in either direction along the belt located
approximately two feet in front of them.
Whether the examination was being done from a golf cart in the entry or
from the end of the crosscuts, the examination was a visual one, not a tactile
one making the distance from which it is done adequate as long as the
conditions could readily be seen. It
stands to reason that observing the conditions while on foot would be more
effective than passing by in a golf cart without stopping at each of the
rollers or crosscuts for a closer look.
Moreover, the entries in the belt book indicate that the examiners were
able to see the conditions along the belt line and they were properly recording
them in the belt book for maintenance purposes.
Had this practice been so alarming, it is inconceivable that the
inspector would have allowed Highland to continue its production along this
belt line while essentially allowing the examiners to continue making the belt
from the crosscuts.
The
mandatory standard does not provide a specified distance from which the
examination must be made to be considered adequate. Yates admitted as much at the hearing. There is also no legal authority provided by
the Secretary to support this contention nor have I found any upon researching
the issue. The germane question is whether the manner in which the examination
was conducted was reasonable under the circumstances and adequate to observe,
note and correct hazards. Based upon the evidence presented here, the answer is
that it was. Highland’s dangering off
the area to avoid putting the examiners in greater peril of making the
examinations under bad top was reasonable behavior considering the fact that
they were able to make the examinations from the crosscuts.[3] No standard under the Mine Act is designed to
jeopardize the safety of the examiners.
I therefore
VACATE this citation.
2. Citation No. 8497131
This citation was
written by Paul Hargrove on August 3, 2009 for a violation of 30 C.F.R.
§75.400. The condition or practice
portion of the citation alleges:
The company #10 roof bolter,
located on the #5 unit, mmu-065-0 and mmu-066-0 has an accumulation of oil, fine coal, oil soaked fine coal in the cable
reel compartment, on the cable reel,
cable reel electrical junction box and the 480 volt a.c. cable. The area measured 38 inches in length and 37 inches in width and is
a fine layer of oil and coal. Also the operator boom on both sides of the roof bolter has an
accumulation oil (sic), fine coal and oil soaked fine coal, on and around the hydraulic valve bank and
control levers.
Ex. G-2.
The
violation is designated as a safety hazard reasonably likely to result in an
injury causing lost workdays or restricted duty to two persons. It is charged as significant and substantial
and the result of moderate negligence.
The proposed penalty is $1944.00
The
relevant portion of 30 C.F.R. §76.400 provides “loose coal, and other
combustible materials shall be cleaned up and not be permitted to accumulate in
active workings, or on diesel-powered and electric equipment therein.”
Highland
admits to the violation but contends that the condition was not likely to cause
a serious injury.
S&S
Inspector
Hargrove worked for 22 years in the mining industry as an equipment operator,
mechanic, belt examiner, electrician and foreman. He became an MSHA inspector in 2006 and
received his AR card in March 2007.
Highland 9 mine has been one of his regular inspection sites since that
time. (Tr. 20-25.) On the date of this inspection, he met with a
member of the company’s safety department, Jack Willingham, and traveled
underground to the No. 5 unit where the MMU-065 and MMU-066 were working. (Tr.
29.) Upon inspection of the roof bolter
#10, he wrote this citation.
Hargrove
testified that he designated the violation as S&S because he believed that
oil and fine coal posed a danger of causing an injury to the two roof
bolters. Referring to a diagram he drew
of the roof bolting machine, Hargrove described the cable reel compartment as
being at the rear of the machine which contains the cable reel from which the
480 AC cable (trailing cable) exits the machine and hooks up to the
transformer. (Tr. 36-37, diagram Ex.
G-3.) The cable reel maintains the
tension in the cable as the bolter moves forwards or backwards to avoid running
over the cable. As the cable wraps
around the reel, it gets hot enough in some cases to crystalize the cable. In this instance, he found the cable reel had
turned in the fine coal so much that it has pulverized it into a powder. (Tr. 40.) He also found oil “dribbled” on the
cable behind the bolter and coal and oil soaked coal inside the cable reel
compartment. (Tr. 37-38.) There were several heat sources present in this area
being the energized cable itself, friction from the cable reel turning in coal
and an electrical panel located inside the reel. (Tr. 41.) Hargrove testified that the cable was hot to
the touch wearing leather gloves which was an indication that it was a heat
source for a fire. (Tr. 41-42.) Hargrove
assumed that with the combination of accumulations and heat sources, which he
assumed would continue to exist, a fire would be reasonably likely. (Tr. 43.)
In
addition to the hazard of a fire, Hargrove testified that he was worried about
a “slip, trip or fall.” (Id.) There is a
fire suppression nozzle located on the cable reel box. (Tr. 38.) The control levers are located on the outer
edge of each boom. The operator controls
the bolter from a position standing beside the boom at this location. (Id.)
On and around the valve banks was an accumulation of what Hargrove
testified was oil and oil soaked fine coal which caused him concern of an
operator losing control of the bolter or a spark or arc falling on the
coal. The valve banks become hot during
operation over extended use. (Tr.
38-39.)
Upon
cross-examination Hargrove confirmed that the concern for a fire or trip and
fall was not contained in the notes he took contemporaneously with the
inspection. (Tr. 50.) He conceded that the accumulation upon which he
was concerned a miner might trip or fall was not on the ground but several feet
above it. (Tr. 51.) The controls the
operators used which he felt posed a slipping potential were likewise about one
half a foot or more away from the cited accumulation on the boom. (Tr. 64.)
In
addressing the fire hazard, questioned by Respondent, he admitted that at a
prior deposition he testified that he did not see the cable reel moving in
accumulations. He saw, rather, an imprint of the cable in the coal which was
not reflected in his notes. (Tr.54.) He went on to say that when the cable was
pulled off the reel at his request, he saw the reel turn in coal, but the
bolter was not moving. (Tr. 55.) This cable reel, he testified
had turned in coal to the point that pulverized the coal. (Tr. 40.) This observation was not contained in his
notes or the citation. (Ex. G-1 and G-2.) Hargrove also admitted that he had never seen
or heard of a fire starting from a cable reel rotating in combustible material.
(Tr. 55-56.) He clarified that the accumulation of fluid was hydraulic fluid,
and not oil as he originally stated, and that he was unaware of the flash point
for hydraulic fluid. Similarly, he was
unaware of the ignition temperature for coal or coal dust. He did not measure
the temperature of the bolter in the areas of the accumulations. (Tr. 55-56,
59, 84.)
Highland
presented testimony from Travis Little, safety manager, that the MSDS sheet for
the Conoco hydraulic fluid used in the bolters is listed as having a “slight”
flammability rating. (Tr. 155, Ex. R-3.)
Under fire and explosion hazards it is reported that it may burn but
will not ignite readily and has a flash point of 365 degrees Fahrenheit and is
not considered a fire hazard. (Tr.
155-56, Ex. R-3.)[4] Little also measured the temperature of a
roof bolter at 11:00 AM, the same time of day this inspection took place, at
different points including the cable, the cable reel compartment, the reel and
the valve banks after the machine had been running for several hours. The cable when wound on the reel, was 86
degrees, the hydraulic motor was 173 degrees, the oil filter was 168 degrees,
the valve bank was 120 degrees and the cable reel was 73 degrees.[5] (Tr. 156-58.)
Little also testified that the presence of coal, coal dust and float
coal dust will not cause any part of the machinery to become hotter during
operations. (Tr. 166.)
I
find the numerous discrepancies between the inspector’s notes, his deposition
testimony and his testimony at trial leads me to the conclusion that his
recollection of the events at the time of trial was unclear. His notes, which were made contemporaneously
with the inspection, are the most reliable of the three.
The
evidence presented by Highland was credible and unchallenged. I find that there
was no reasonable likelihood that the hydraulic fluid and coal could have
caused smoke or burns or been ignited.
The Secretary presented no evidence to establish at what temperature the
fine coal could be ignited. The
hydraulic fluid has a very low potential for ignition and a high flash point at
356 degrees. The temperatures taken on
the bolter at all of the locations which Hargrove identified as a potential
heat source measured at most 173 degrees, most were considerably lower, after
hours of continuous operation. There was
no evidence presented by the Secretary to establish that the temperatures would
increase with continued use, contrary to Little’s opinion that they would not.
Additionally, all the electrical components, the trailing cable and the
junction box were in good condition (Tr. 56-57.) The fire suppression system
located at the reel box was in working order also. (Tr. 61.) There was no
evidence of methane present.
Hargrove’s
assumption that there would be a potential for a fire, assuming the condition
would continue to exist for an undetermined period of time, is insufficient to
increase the likelihood of an injury producing event in view of the evidence
produced by Highland. Amax Coal Company, 18 FMSHRC 1355 (Aug.
1996); the passage of time, standing alone, does not increase the
likelihood of an injury-producing event required by the third Mathies element.
With
respect to the trip and fall hazard, this potential hazard was not one even
contemplated by Hargrove when he wrote the citation as evidenced by its
omission in his notes and on the written citation. (Ex. G-1 and 2.) It is
difficult to imagine how a thin layer of fluid three feet above the ground and
six to eight inches below the control levers could be reasonably likely to
cause a miner to trip or fall. At best,
the Secretary’s evidence was if the operator got oil on his gloves, he could
slip on the levers and could lose control of the boom which could cause him to
be struck by the machine leading to cuts and contusions. (Tr. 62.)
I find the chain of events to be far too speculative to conclude that a
reasonable likelihood of an injury causing event existed. This violation is not properly designated as
S&S and is of moderate gravity.
I
recognize that the Commission has held the opinion of the inspector that a
violation is S&S is entitled to substantial weight. Harlan
Cumberland Coal Co., 20 FMSHRC 175, 178-79 (Dec. 1998); see also Buck Creek Coal Inc. v. MSHA, 52
F.3d 133, 135-36 (7th Cir. 1995). I have
considered the evidence of record carefully in reaching the conclusion that
this violation is not S&S.
Negligence
Inspector
Hargrove assessed the negligence as moderate. In his notes he documented that
the condition had existed for an unknown length of time and it was unknown as
to who knew the violation existed, however it was an obvious condition that
should have been discovered. (Ex. G-1
pg. 7.) In his opinion, it had existed
since the second shift on the previous day. His explanation for this was that
Highland rock dusts on the third shift and when he inspected the equipment on
first shift the next day, there was rock dust that had settled on top of
machine but not on top of the cited accumulations. (Tr. 58-59.) Hargrove’s notes indicate that
the company representative questioned whether the presence of rock dust would
be a mitigating factor. Hargrove responded that it would not because there was
coal dust on top of the rock dust at which the company representative told him
to go ahead and write the citation, “it wouldn’t break the company.” (Ex. G-1
pg. 10.) Highland did not contest the
negligence assessed in its Post-Hearing
Memorandum. I agree with Inspector Hargrove’s assessment of moderate
negligence.
3. Citation
No. 8497132
This citation was also issued by
Inspector Hargrove under mandatory standard 30 C.F.R. §75.400 regarding
accumulations of combustible materials on the #9 roof bolter. The narrative portion of the citation states
the same conditions as found on the #10 bolter except that the accumulations on
the operator’s deck measured up to 2 ¼ inches deep. The gravity and negligence is identical, and
it is assessed as S&S. (Ex. G-4.)
The proposed penalty is $1944.00.
Highland concedes the violation but
refutes the S&S designation.
S&S
Inspector Hargrove designated this
violation as S&S because he felt there was a potential for a fire from a
drill hitting stone creating an arc that could fall on the accumulations and
set it on fire. (Tr. 69.) Another source of heat would be the valve
decks or the operator’s deck which has electrical components. (Tr. 73-74.) These hazards were not mentioned
in his notes or apparently contemplated by him until trial. (Tr. 88.) The
operating temperature of the machine was measured by Little as stated above,
the electrical components were in good condition and Hargrove could not give an
opinion as to the ignition temperature of the coal or fluid. There was no explanation given by the
inspector as to how it was reasonably likely that a spark could remain lit
while falling from the drill to the accumulations located some distance below
to ignite a substance with a low ignition potential.
Hargrove was also concerned that a
miner could trip or slip on the levers on the operator’s deck or boom and lose
control of the machine, although the fluid was not on the levers themselves.
(Tr. 72-74.) Hargrove stated on direct examination
that he saw a miner with oil on his boots but later stated that he saw no oil
on the floor and he could not be certain from where this spot of oil had come.
(Tr. 72, 82.) He also checked the
miners’ gloves and found no fluid on them.
(Tr. 86.) Another hazard was that a miner could get oil on his clothing
or gloves which, if saturated in oil, could become flammable. (Tr. 86.) Again, the fluid was called oil but was
actually hydraulic fluid which has a very low flammability rating and high flash
point. There was no explanation as to
how likely it was that a miner’s clothing or gloves would become saturated with
fluid from the thin layer of fluid found on the miner or how it would be
ignited. Hargrove also confirmed that a miner’s gloves become wet with oil from
inserting bolts in the normal course of the day and that does not seem to raise
a concern. (Tr. 86.)
For the same reasons set forth in
the preceding citation, I find that an injury causing event, taking into
consideration the confluence of existing factors, was not reasonably
likely. The violation is not S&S and
is of moderate gravity.
Negligence
The condition on this bolter existed
since the second production shift the day preceding the inspection and Hargrove
believed it would continue to exist until the next maintenance shift that
night, as explained previously. It was obvious and located in a place that the
foreman and the bolters should have seen it and taken action to eliminate the
hazard. Hargrove assigned moderate
negligence for that reason although he testified that had he considered this
violation cumulatively with the prior one, he would have designated it as
high. I am in agreement that the
negligence was moderate. I cannot justify adding together two moderate
negligence violations that occurred simultaneously to arrive at a sum of high
negligence.
4.
Citation
No. 8497135
The mandatory standard cited in this
violation requires mobile and stationary machinery and equipment be maintained
in safe operating condition or, otherwise be removed from service. 30 C.F.R. §57.1725(a). Inspector Hargrove found during his
inspection on August 4, 2009, that the
#17 coal hauler, serial number SV1749, on the #5 unit had two canopy
posts that were bent with cracked welds on two of the supports.
This violation was assessed as
S&S with a reasonable likelihood of resulting in a lost workday or restricted
duty type of injury, and the result of moderate negligence affecting one
person. (Ex. G-8.) The proposed penalty
is $1026.00.
Highland contests the violation on
the grounds that the Secretary has not proven that the canopy in its stated
condition was structurally unsound.
Highland contends that the welds were not compromised by the cracks, the
legs were substantially welded to the base, there were no problems with any of
the top welds on any of the posts, and the posts were functioning properly in holding
the canopy in place, and they were securely attached to the hauler. Hargrove did nothing to test the strength of
the canopy to determine whether it would support the weight of a roof fall or
the originally approved weight of 18.000 lbs. in accordance with 30 C.F.R. §75.
1710-1(d)(1).[6] Highland on the opinion in a very similar
case in which he found an apparent tilt in the top of a canopy and broken welds
did not rendered a shuttle car unsafe under this standard. Shannopin
Mining, 14 FMSHRC 1178 (July 1992)(ALJ).
The Secretary’s evidence consisted
of Inspector Hargrove’s testimony that he made a visual inspection of the ram
car during which he saw a bend in two canopy posts and cracks in two
welds. The two front posts were leaning
forward towards the operator’s station and the welds were on the left front and
left back posts that support the canopy. (Tr. 112, 119-21.) He stated that he did not use any method,
including grabbing or shaking the supports, to test the strength of the
supports; he stated he had no way of testing this. (Tr. 119.) He also confirmed that he did not measure the
bend in the supports but did measure one crack in the welds at 2” long although
he said neither went around the circumference of the support. (Tr. 120-21.)
He also confirmed that the supports sit inside support holders which are
attached to the frame of the car. These
support holders were securely attached to the frame and did not slide. Where
the posts sit in the holders, a bolt runs through the one side of the holder
through the support post and then through the other side of the holder. These bolts were also intact. (Tr. 123.) The top welds securing the posts to the top
of the canopy were intact. (Tr.
120.) Admittedly, not being an engineer,
he confirmed that he had no idea what amount of force it would take to collapse
the canopy. (Tr. 125.) He also had no idea how the damage he observed had occurred.
(Tr. 126.) He opined, however, that if
whatever incident caused the damage were to happen again, it would be
reasonably likely that the operator would be seriously injured. (Tr. 113.)
Hargrove testified that the top of the canopy stands five feet tall and
the height of the mine roof is at least six feet where the car operates. (Tr. 123.)
His sole reason for determining that this ram car was unsafe was based
upon this visual observation that the canopy would be unable to support the
weight of a roof or rib fall because it was not in its originally approved
condition. (Tr. 113.) Section 75.1710-1
requires the canopy to be in a specified condition when installed. It is
required that the condition be maintained in that condition, according to Hargrove.
The bend in the legs indicated that it had not been. (Tr. 115-16.)
Travis Little, safety director for Highland,
testified that he accompanied Hargrove on this inspection. He described the condition of the posts as
one being slightly bent and there being two small cracks in the welds none of
which affected the structural integrity of the canopy to withstand a roof or
rib fall. (Tr. 169.) He corroborated
Hargrove’s testimony that the post holders were securely welded to the frame of
the car, the bolts holding the posts in the holders were intact and the posts
were not loose. (Tr. 169-70.) He also
confirmed the height of the mine roof where this equipment operated was 6 ½ to
7 feet high. The damage on the car was
mostly from normal wear and tear and an occasional bump against a rib. (Tr.
170-72.)
The correct test in determining
whether a condition is unsafe in violation of the cited standard is set forth
is Alabama By-Products, 4 FMSHRC 2129
(Dec. 1982) which is “whether a reasonably prudent person familiar with the
factual circumstances surrounding the alleged hazardous condition, including
any fact peculiar to the mining industry, would recognize a hazard warranting
corrective action within the purview of the applicable regulation.”
In reviewing the factual
circumstances surrounding the alleged hazard here, I find they would not lead a
reasonably prudent person familiar with those circumstances to conclude that
the canopy was unsafe and should have been immediately removed from
service. The bend in the leg (or legs)
was not identified by Hargrove to be in a place that compromised the integrity
of the weld between the top and the legs, the legs to the holders or the
holders to the frame. The bolts securely
held the legs in the holders near the frame.
The welds between the top and the legs were not damaged and the holders
were secured to the frame. The supports
did not slide and were not loose. No
testing, shaking, pushing, pulling etc. was done to determine the amount of
impact or weight the canopy, welds or legs could withstand. In fact, the evidence is that the inspector
had no idea whether the canopy could withstand a dead weight load of 18,000
lbs. or a roof or rib fall. Evidence to
the contrary was introduced by Highland that neither the welds nor the bend had
any effect on the structural soundness of the canopy. Little, while not an engineer, was very
familiar with this equipment and the circumstances under which it was used in
the mine. His opinion is therefore
credible.
I conclude and find that a violation
of section 75.1725(a), has not been established and that the contested citation
is VACATED.
5.
Citation
No. 8797136
Inspector Hargrove issued this
alleged violation of section 75.512 on August 5, 2009 for the following
condition:
The disconnect for the 5B charger
connected to the T 64 transformer is not being maintained
in a safe operating condition. The disconnect for the 5-B charger is not
latched to the receptacle of the
T-64 transformer. The disconnect was
removed from service by a company official.
(Ex.
G-11.)
The gravity was assessed as S&S,
reasonably likely to result in lost workdays or restricted duty- type of injuries
to one person and the result of moderate negligence. The proposed penalty is $946.00.
The standard states “[a]ll
electrical equipment shall be frequently examined, tested, and properly
maintained by a qualified person to assure safe operating conditions. When a potentially dangerous condition is
found on electrical equipment, such equipment shall be removed from service
until such condition is corrected. A
record of such examinations shall be kept and made available to an authorized
representative of the Secretary and to the miners in such mine.” 30 C.F.R.
§75.512.
When Hargrove was in the main east
travelway, he observed that the electrical disconnect (the “cathead”) for the
5B 480 volt charger was not fully latched to the underside of the 7,200 AC volt
transformer. The transformer is the
power source for several battery chargers. (Tr. 129-31.)
Highland concedes the violation but
contests the S&S and negligence assessments.
S&S
The violation has been established
satisfying the first element of Mathies.
I find that the violation contributed to a discrete safety hazard of an
electrical accident and that if such an accident could occur, the results would
be electrical burns to electrocution, satisfying the second and fourth element
of Mathies.
The salient question in this case
concerns the third element of Mathies.
In the context of continued normal mining conditions, could any confluence of
factors have come together, the reasonably likelihood of which would be an
injury causing event?
As was explained by the inspector,
the purpose of the bottom latch is to ensure the cable is not disconnected
while under load. [7]
(Tr. 136-37.) The way in which the cathead is secured to the transformer is by
first attaching a hook-shaped mechanical latch over a wire at the top of the
transformer receptacle, then pressing down on the cathead to plug in the prongs
and then securing the bottom latch underneath. (Tr. 177-78.) When it is properly secured, the cathead will
be level and parallel to the ground.
Hargrove stated that should the cathead be unintentionally pulled while
it is still fully energized, it will cause a “big arc with a big splash of
fire.” (Tr. 136.)
Hargrove testified that he found the
top latch of the cathead was properly hooked into the receptacle, and the
Miller plug was also secured. However,
looking at the cathead he could see that it sat in the receptacle at an angle
rather than being parallel, which made it obvious to him that the bottom latch
was not properly connected. (Tr.
135.) After examining it from underneath
with a mirror to confirm his suspicions, he pulled up on the cathead and it came
straight up without unlatching at the bottom.
(Tr. 136-37, 144-45.) He believed
that the area where the transformer was located was a high traffic area.[8] (Tr. 139-40.) This was a battery charging station so he
concluded miners would be in the area several times per shift. (Tr. 140.)
Because of the foot traffic in the area, he felt that it would be easy
for someone to trip over the cable causing it to disconnect under load which
would produce the arcing he explained earlier.
However, he did confirm that someone would need to be within a distance
of two or three feet of the cathead to be injured by this arcing and splash of
fire. (Tr. 137-38, 140, 147.) Hargrove
testified that the violation was abated by simply plugging in the cathead
correctly. (Tr. 142.)
Highland disagrees with this “arc
and fire” scenario based upon several factors. First, they assert that mine
personnel are trained to trip the circuit breaker which is located on the
transformer no more than one foot away from the receptacle before engaging or
disengaging the cathead. This
information was provided by Terry Adamson,[9]
Highland’s maintenance foreman, and conceded by Hargrove as well. (Tr. 179, 144.)
Secondly, Adamson testified that the
cathead cannot be knocked out through jostling or kicking due to the way the
prongs go into the receptacle even if the bottom latch has not been
secured. The only way to physically
remove the cathead from the receptacle is to pull it up. (Tr. 179.)
Hargrove admitted on cross-examination that he did not know if kicking
the cable would cause the cathead to pull out although he has seen it done but
could not say whether it was under the same circumstances as the situation
found here. (Tr. 147-48.)
Third, the transformer is not
located in a high traffic area. According to Adamson, it is in a fairly remote
location and is only accessed by the fire boss making his examinations or when
there is a problem requiring maintenance.
The electrical cables connected to the transformer lead to car charging
stations which are located at a minimum of one cross-cut (70 feet) away and up
to 200 feet away from the transformer.
While it is common for miners to be in close contact with the car
chargers, they do not have a reason to be near the transformer. (Tr. 177, 199-201.)
Lastly, and most significantly,
Adamson testified that the arc and fire that Hargrove claimed would occur if
the cathead were inadvertently pulled out is not possible due to the presence
of a ground monitoring system, referred to as the Miller plug, attached to the
cathead. He described this system as having
three phases. There are two monitor
pins making contact in the center, a ground wire on top and a monitor wire that
attaches to the bottom of the plug. As
the cathead lifts, the first thing that happens is the bottom wire breaks and
knocks out the power at the breaker securing the power source before arcing
could occur. The way the prongs are
designed to fit into the receptacle, there is no other way to disengage the
cathead aside from physically pulling it up causing the bottom sensor wire to
trip the power. (Tr. 178-79.) While
Adamson has heard of a monitoring system failure, he has never known one to
fail to secure the power, only to fail to restore it once it had been tripped.
(Tr. 183.)
I find Adamson’s testimony to be
credible and persuasive based upon his experience as an electrician and his
familiarity with Highland’s equipment, including its location and the safety
monitoring system installed on the cathead. I accept his testimony that the
transformer was not in a heavily trafficked location but was in a crosscut at
least 70 feet away from the battery charging stations where miners would be in
contact with the cable. Hargrove
conceded that only the battery maintenance man and the weekly examiner would be
in the vicinity of the transformer as a rule.
(Tr. 146)
I do not find there was any evidence
presented by the Secretary that a miner would trip over the cable or that, if
one did, it could disengage the cathead located 70 feet away. Hargrove confirmed that he had no idea if
kicking the cable would be able to disengage the cathead connected as it was
during this inspection. Adamson
testified that it was not possible to do so.
There was also no reason given by Hargrove why it would be more likely
that a miner would trip over the cable when the bottom latch was not secured as
opposed to when it was properly latched.
He did not issue a trip and fall citation based upon the location of the
cable which indicates to me that he did not believe it posed a tripping
hazard. The evidence indicates that the
position of the transformer in the crosscut feeding power to the battery
charging stations located at least 70 feet and up to 200 feet away was the
standard practice at the mine. All of them were done in the identical fashion,
according to Adamson. (Tr. 200-01.)
Additionally, it is not reasonably
likely that should the cathead become disengaged, a miner standing 70 feet away
would be injured by an arc or burst of fire near the transformer. Miners did not congregate in the area three
to four foot from the cathead where they would be in the strike zone of this
arc and fire identified by Hargrove.
While a maintenance person, foreman or a permissibility examiner may be
in contact with the transformer on a more regular basis, I also find it unlikely
that an injury causing event would occur affecting those individuals. They are trained to secure the power at the
circuit breaker before making any contact with the transformer. They would also be looking for such
conditions and making corrections to them.
Given the grounding system installed on the cathead, it is also unlikely
that an injury causing event would affect anyone near the cathead in the event
it was unintentionally dislodged.
Adamson credibly described how the bottom sensor would cut the power at
the breaker before the cathead could be disengaged from the receptacle. The only way the cathead could be physically
removed from the receptacle is by pulling it up which would trigger the circuit
to break before the prongs came out of the receptacle or the top
unlatched. In contrast to this detailed
and explicit testimony by Adamson, the Secretary asked Hargrove: “Now, would
the fact that there was a Miller plug there have any effect on whether or not if
the cat head was removed while under load – either removed or fell out under
load?” The response was, “No, it would
not.” (Tr. 143.) Assuming the question was meant to be whether
he believed the Miller plug would de-energize the cathead if it was removed or
fell out, the lack of any explanation from Hargrove as to why it would not leaves
me no choice but to find Hargrove’s answer unpersuasive in contrast to
Adamson’s detailed testimony.
I find this violation was not proven
to be S&S and modify it accordingly. I find it to be of relatively modest
gravity.
Negligence
Hargrove testified that he assigned
a moderate level of negligence because he felt an inexperienced person plugged
in the cathead; a qualified electrician would have installed it correctly. (Tr. 141.)
He stated that the mine foreman and unit bosses would not usually be in
this area to observe the condition although the maintenance foreman and the
section foreman would be. (Tr.
141.) The examiner or outby foreman
would be in the area once per shift. In
his opinion, it had existed for one shift.
(Ex. G-10.) The citation was abated in very short order by a safety
department member plugging it in correctly.
(Tr. 142.)
I find that this violation had
existed for a relatively short period of time and was unknown to management.
The examination required on this transformer is done on a weekly basis. (Tr.
146.) It was last done two days prior to
the inspection and no problems or hazards were noted. (Tr. 194-95; Ex. R-7.) It was obvious to Hargrove that an untrained
person made this connection. Neither the
receptacle nor the cathead was obviously broken and it was not confirmed by
Hargrove to be unlatched on the bottom until he inspected it with a mirror
trained under the cathead. The
misaligned cathead would undoubtedly have been discovered and rectified at the
next permissible examination when a mirror would be used to examine the
underside of the connection. Hargrove’s
notes confirm that it could not be established that management was aware the
violation existed. (Ex. S- 10, p. 4.)
Because there is a foreman who is present during each shift, Highland
should have known of the condition during this shift.
I find that Highland’s use of the
Miller plug, their proper training of all miners to shut off the circuit
breaker before handling the cathead and the fact that some untrained person
unbeknownst to management, rather than a certified miner, made this connection
are sufficiently mitigating to establish a moderate level of negligence with
respect to this citation.
6.
Citation No. 8497007
On July 29, 2009, Anthony Fazzolare
made an inspection of the 3C belt line based upon an anonymous hazard complaint
called into MSHA that day for an accumulation of material under the belt line
at 3A, 3B, and 3C. (Ex. G-18.) Under
“Condition or Practice” he wrote:
Starting at the outby end of the low
framing and extending to the head roller, approximately 45 crosscuts long, there were accumulations of coal and float
coal dust under the belt line the accumulations
measured approximately 1 inch to 6 inches deep and were black in color. There was also a rib roll at XC 35 and at XC 15 in
the walkway, at the take-up there was trash in the
form of cardboard and paper piled against the walkway rib and rocks and an oil can in the walkway.
Ex.
G-19.
This condition was assessed as
S&S, affecting 10 persons, resulting from high negligence and reasonably
likely to result in lost workdays or restricted duty. The proposed penalty is $23,229.00.
Highland does not contest the
violation but does the high negligence and S&S designation.[10]
S&S
The violation has been conceded by
Highland. There is no question that
should a belt fire occur, reasonably serious injuries would result. The issue here is whether the Secretary has
established the third Mathies
element. Fazzolare described the accumulations, the possible ignition sources
and the events he found reasonably likely to occur as a result. The Secretary maintains that this confluence
of factors substantiates a finding that an injury causing event would be
reasonably likely to occur should normal mining operations continue. Highland, however, argues that the Secretary
has not proven the third element of Mathies
because there was no potential for ignition under the circumstances
presented.
Applying the Enlow Fork factors as
cited above, I make the following findings.
1. Accumulations/Combustible Materials
Inspector Fazzolare began his
inspection on July 29, 2009 at 0730. (Ex. G-18.) He began by inspecting the pre-shift,
on-shift and belt books for reported conditions on the 3A, 3B and 3C belts.
(Tr. 371.) He determined based upon his
review that a hazardous condition of dirt and spills was recorded since July
23, 2009 until the date of the inspection.
Based upon his experience as a miner and MSHA inspector, he interpreted
this information to mean that there was float coal dust and coal spills that
had existed for six days. (Tr. 371, 376.)
After inspecting the belt books,
Fazzolare’s notes indicate that while accompanied by several mine
representatives, he entered the mine via the slope car and traveled to the
bottom of the mine to the 3C belt at the low framing area which is the last
inby section of the belt. He testified that Highland employs a unique haulage
system that he had never seen before.
Attached to the continuous miner is a flexible conveyor train, or FTC,
which moves back and forth with the miner which puts the coal onto the low
framing where the main belt then carries the coal out of the mine. (Tr. 369-70.) The 3C belt is supported by
stands on the mine floor. (Tr. 374.) As he began his inspection at the FTC
area, he observed an accumulation of coal measuring one to six inches
deep. Although Fazzolare had no
independent recollection of the condition, based upon the written citation, he
testified that the accumulation was either under the belt line or right next to
it. (Tr. 404, 374.) The height of the
belt from the floor varies greatly from one inch to as much as twelve inches,
although Fazzolare did not state, or record in his notes, the height of the
frame where he found dexcribed accumulations. (Tr. 374, Ex. G-18.) He described
the material he saw as black and dry. He
confirmed on cross-examination that contrary to his written citation, his notes
indicated that he did not find any significant amount of float coal dust
accumulations. This is significant
because only float coal dust in suspension posed an ignition hazard. (Tr.
375-76.)
The next condition that he found
hazardous was a rib roll in the walkway at crosscuts 35 and 15. Again, there
was no evidence presented as to how far away from the belt this was located.
(Tr. 377.) There was also cardboard piled up in the walkway against the ribs
within the takeup, or first crosscut or two. (Tr. 378.) There was also a stuck roller found in the
takeup areas but Fazzolare confirmed that the roller was not located near the
trash and there were no accumulations near the belt. (Tr. 412.)
When asked what distance the
accumulations spanned, Fazzolare testified that based upon the wording of his
citation, the material covered the entire length of the belt which is 3000 feet
in length. (Tr. 374-75.) His notes did not indicate that he found accumulations
along the entire belt line, however, nor does his citation specifically say
they were continuous as opposed to located at specific isolated locations along
the 45 crosscuts. (Ex. G-18.) In fact, on cross-examination, he admitted that
there were no accumulations located where he found a stuck roller at the intake
area of the belt or at crosscut 37 where he found the belt rubbing on the metal
frame. (Tr.405, 412.) Additionally, he
stated that he verbally issued this citation shortly after he arrived at the
low framing area at 0855 hours for accumulations existing as far as 3000 feet
away and then rode in a golf cart down the rest of the 3000 feet of belt line.
(Tr. 403.) His notes do not indicate
that he took any other measurements of spills or made any specific notations of
locations of spills along the way after having issued the verbal citation at
the inby end of the belt. (Ex. G-18.)
Highland’s second shift belt
examiner, Guy Scisney, testified that the areas where accumulations are
normally located are at the area called the “last pull” and under the rollers,
not along the entire belt line. The “last pull” is the area where the FTC was
before it was moved. The belt may be moved as many as two times per day
depending upon the rate of production on any given day. (Tr. 470-83.)
Casey Courtney, another Highland belt examiner confirmed this statement
and added that when the belt is moved, it leaves behind an area where the floor
is dug up leaving behind a mixture of clay, coal, dust, mud and water. (Tr.
419.) This conglomeration of material is what is referred to in the belt book
as “dirty.” (Id.) Foreman Danny Thorpe [11] testified
that when a notation in the belt book indicates an area between several
crosscuts is “dirty,” it does not indicate that the entire distance from the
first to the last crosscut mentioned is dirty; it means that the area under the
roller at those crosscuts has accumulations. The areas under the rollers and at
the head and tail of the belt are the most common areas for accumulations to be
found. He also stated that the pull can be moved as often as three times per
day when production is up. (Tr. 509-11.)
Taking together that fact that
Fazzolare had no independent recollection of the conditions that day, that his
notes do not specifically indicate accumulations at every point along the belt
line and that this citation is very loosely worded, it has not been established
that the accumulations were as extensive as alleged. I also find that the evidence produced by the
Secretary establishes that the accumulations were not close to, or in contact
with, bottom rollers or the belt.
2. Ignition Sources
Inspector Fazzolare identified as
one potential source of ignition the belt being out of alignment with the
bottom belt rubbing against the metal frame at crosscut 37. When he measured it from one inch away, the
belt was 148 degrees Fahrenheit. A
company representative took the temperature on a different type of instrument which
registered 180 degrees. (Tr. 379-80.)
When the belt was stopped, a 142-foot long strip of cut belt material
was removed before it was realigned. It could not be determined, however, where
or how the belt was cut. (Tr. 380, 407.)
He also acknowledged that there were no accumulations at this location
mentioned in his notes. He reasoned
that, although he normally would have recorded that fact as it would be an
important detail, since the misaligned belt was within the 45 crosscuts, there
must have been accumulations at the cited location. (Tr. 405-06.) He confirmed
that the belt was made of fire resistant material and Highland had never had a
belt fire in its history. (Tr. 405, 368.)
A second ignition source Fazzolare
identified was in the take-up area where he found a stuck roller posing a
potential source of friction. While
acknowledging that the stuck roller was not near or in the accumulations,
Fazzolare generalized that it was in “the same area where the trash and the
cardboard was, but it wasn’t in the take-up. It was in that area.” (Tr.
381.) The hazard he identified from
these conditions would be a belt fire which he opined was reasonably likely. As he explained: “I’m going to have to
assume it’s going to continue like that.
Continued mining operations, (sic.) the heat is going to continue to
build up. The coal accumulations are
going to get more, and at some point it will catch fire. (Tr. 383.) He testified that he made these assumptions
based upon the belt books and the hot line complaint but then retracted this
statement and said it was not based upon the hot line complaint. (Tr. 393-395.)
The books, however, reported a hazardous condition since July 23, 2009 for a
period of six days. (Tr. 371.)
Fazzolare’s explanation of how the
misaligned belt and a stuck roller would be reasonably likely to cause an
ignition when there was no source of fuel nearby was rather vague. When I asked
him to clarify his opinion, the following exchange ensued:
ALJ:
What specifically did you identify as the ignition sources along the
belt line?
Inspector: The belt rubbing the bottom framing was one
of them. The stuck roller was another one.
ALJ:
And, if there was an ignition, what specifically would ignite?
Inspector: The coal or coal dust.
ALJ:
So the belt does not have to ignite to have a fire in the belt line?
Inspector: Correct. The belt is fire-resistant.
ALJ:
Right. And the friction that’s
caused by this stuck roller, can it cause a spark? Is that how it ignites?
Inspector: It causes the roller to wear down to where
there are sharp edges on the roller and
it will cut the belt, causing more
accumulations.
Inspector: As the belt continues to drag over the
roller, it would make that metal real thin and
could cause a hole or sharp edges that could cut the belt, causing more
spillage, or accumulations.
ALJ:
And if when you took the measurement of the temperature it was 180 –
between 160 and 180 degrees, and the belt had been running for some period
of time already –
ALJ:
So assuming it was 180 degrees at that moment, if it kept running in the
very same condition, is it likely to
become hotter for some reason?
Inspector: Yes.
ALJ: Why?
Inspector: It would continue to cut into that metal
framing causing the metal to melt and drip down onto the coal
accumulations in the belt line.
(Tr.
414-16.)
MSHA
Inspector Coburn testified that in his 22 years of mining experience, he has
never heard of a belt frame melting from a belt misalignment. The only time he
has ever heard of metal melting was the result of a mine fire, not from a belt
ignition. (Tr. 568-70.) Highland’s foreman, Danny Thorpe, has been a miner
since 1975. He has worked as a belt
mechanic, miner operator, and a face boss prior to his current position. He also testified that he has never heard of
a belt rubbing to the extent that the metal framing melts. (Tr. 488.)
Fazzolare’s
description of the dripping melting metal igniting accumulations below the belt
is highly speculative.[12] His assumption that a metal frame could melt
and drip despite a highly experienced miner and an MSHA inspector never having
heard of such an event under similar circumstances is neither reasonable nor
likely. He further did not explain how
it would be reasonably likely under the circumstances found at Highland, taking
into consideration continued mining operations, that these potential ignition
sources would ignite a relatively thin layer of accumulations located somewhere
along the belt line. There was no evidence presented by the Secretary as to how
close the accumulations were to these heat sources. Fazzolare could only
testify that his notes indicated they were in the general vicinity but not in
contact with the belt or the rollers.
Applying rather circular logic, he assumed accumulations were near the
belt because it was within the 45 crosscuts of the belt line and his citation
stated that there were accumulations along the 45 crosscut-long belt line. It is not clear from his notes or testimony
at what point within the 45 crosscuts the material was seen. His notes indicate that he measured the
accumulations at the low framing area where he began his inspection and issued
this citation. This area is notably not one in which he identified an ignition
source. He then continued outby to
crosscut 37 and the take-up area afterwards but there is no mention of any
other measurements or specific descriptions of materials by the belt except for
trash against the ribs in the walkway at the take-up area near crosscut
two. The only clearly established fact
is that neither of the ignition sources he identified – the misaligned belt or
the stuck bottom roller - was in contact with any accumulations of combustible
material. Even assuming continued mining conditions, there was no evidence
presented other than the unlikely melting and dripping metal scenario to
explain how the accumulations would be reasonably likely to ignite.
3. Methane
The Secretary presented no evidence
with respect to this citation that there was any methane present in the 3C belt
line.
4.
Equipment
There was no
equipment, other than the belt, in the area.
In summation, while it is admitted
that there were accumulations present at various points along the 3C belt line,
they were relatively thin and not in contact with the two identified ignition
sources. The only point at which the
accumulations were measured was approximately 36 and 40 crosscuts away,
respectively, from the two identified possible ignition sources. There was no float coal dust or methane in
suspension or electrical equipment in the area.
While an inspector’s opinion on whether a violation is S&S is
entitled to substantial deference and weight, Fazzolare’s opinion that he if he
were to assume the conditions were to continue, the belt would catch on fire is
not supported by the circumstances surrounding this violation. The passage of time alone cannot satisfy the
requirements of either the substantial evidence test or the third Mathies element. (Amax Coal Company, Supra.)
Considering all the Enlow Fork factors, this violation is
not S&S. The Secretary has not proven by a preponderance of the evidence
considering the particular facts as they existed at Highland, surrounding this
violation, that there was a reasonable likelihood of a belt fire or ignition.
This finding is consistent with
other cases decided by the Commission and its Administrative Law Judges. See Cumberland Resources, LP, 31 FMSHRC
137 (Jan. 2009)(ALJ)(accumulations were not particularly extensive, very little
methane was present with only one location where the belt was rubbing on the
stand not in contact with the accumulations, held not S&S); Solid Energy Mining Co., 30 FMSHRC 823
(July 2008)(ALJ) (accumulations not S&S where there was no loose coal, no
ignition sources in the vicinity of the dust and no methane in the area
although the mine liberated 250,000 cubic feet of methane in a 24-hour period);
Amax Coal Co., 19 FMSHRC 846 (May
1997)(S&S finding affirmed where accumulations were 6 inches to 3 feet
deep, accumulations were covered with float coal dust and the belt was running
for 15 feet on dry, packed coal and loose coal).
Negligence
The high
negligence assessment was predicated upon several factors. First, Fazzolare
believed the condition had existed for six days according to the belt books and
he assumed it would have continued absent his intervention. Second, Highland
had done very little in the way of cleaning the belt to mitigate the condition
and, third, management was well aware of the condition as evidenced by the
foreman’s signature in the belt books.
Highland disagrees with this position and maintains that the
accumulations did not span the entire 3000 feet of the belt entry, as Fazzolare
claimed, and they engaged in daily cleaning of the areas where accumulations
were normally deposited – at the head and the “last pull.” They advance the position that the negligence
should be low or moderate at most because their cleaning of the troublesome
areas is a mitigating factor that was not adequately considered.
Fazzolare’s
“assumption” that the conditions he observed would continue because he saw the
same “hazardous” condition noted in the belt book for six days is not entirely supported
by the evidence. To begin with,
Fazzolare stated he made this inspection because MSHA had received a hot line
complaint about accumulations on the 3A, 3B and 3C belt lines. He offered nothing further to clarify what
information he had regarding only the 3C belt line. He was asked the question
at trial “according to your review, what did the belt books show about
the conditions of the 3A, 3B and 3C belts?” (Emphasis added.) He responded by saying “they had been entered
into the books as a hazardous condition since July 23rd of 2009.” The
conditions described were “dirty and spills.”
(Tr. 371.) Again, there was no evidence presented that any
one hazardous condition reported for six days was on the 3C belt line as
opposed to being on the A and/or B belt line. Fazzolare never identified by page number or
specific entry in the belt book which conditions were noted for the 3C belt
consecutively for six days that were left uncorrected. He did not copy the
pages from the belt book or record it in his notes. (Tr. 385-86.) The Secretary
in her post-hearing brief provides no further specificity with regard to which
hazards posted in the belt books she alleges were not addressed for six days
prior to the inspection. (See Sec.
Post-Hearing Brief at pg. 18.) In
attempting to clarify exactly what uncorrected condition Fazzolare saw in the
belt book between July 23 and 29, the following exchange occurred between the
Respondent’s counsel and the inspector:
Q. Now, you believe this condition existed from
July 23 through July 29 and that’s the basis for the high negligence finding, correct:
A. Which condition are you talking about?
Q.
Well, the accumulation, I guess, the violation 8497007.
A.
Yes. That’s what I have in my notes.
Q.
But when you testified for Mr. Morholt here and you talked about the
condition, that’s what you’re
talking about, what you allege was accumulation in that area 3C from July 23rd
through July 27th, right?
A. Yes.
Q.
All right. And it’s your belief for the basis of this high negligence
finding that the accumulation ran,
what was it, 45 breaks?
A. Yes.
Q.
But that’s your contention that this “condition,” being 1 to 6 inches of
accumulation, were for 45 breaks from July 23 until July 29; is
that right?
A.
That’s what I have in my notes, yes.
Q.
But, it’s your belief that the belt books are going to corroborate that
there was accumulation through that entire area, the 45
breaks, from July 23 to July 29?
A.
I can go by what I have in my notes.
A.
I
have in my notes that the accumulations were there, and in the belt books that
the 3C belt was dirty and had coal spills on it, starting from July 23rd.
(Tr.
393-94.)
The
Secretary attempted to supplement this vague and evasive testimony through Highland’s
witness, Danny Thorpe. Thorpe stated on
cross-examination that there was a notation in the belt book from July 25th
through the 29th that indicated a spill at the header and under the
rollers at crosscuts 5 to 12 and no corrective action was noted. (Ex. R-23, Tr.
513.) This condition, however, was
recorded on later dates from those Fazzolare testified he relied upon in
reaching his conclusions. It also
indicated specific isolated locations under the rollers, not along the entire
span of the entry from one crosscut to another, where Scisney testified
accumulations would normally be found.
(Tr. 374-75.) It cannot be
concluded that the entire 3000 feet (45 crosscuts) was recorded in the belt
book as being dirty from Thorpe’s testimony.
It is also difficult to
extrapolate from this evidence that Highland was inattentive to hazardous
conditions and would have allowed this cited condition to exist sufficiently
long for a belt to melt had Fazzolare not intervened. The testimony from Highland’s witness does
not satisfy the Secretary’s burden of proving the assertions made by Fazzolare
that accumulations existed along the 3C belt.
What
is important to note is the fact that the belt book for the 3C belt on July
23rd documents a spill at the head and last pull areas. The second shift entry for that day indicates
that those two areas were cleaned. The
following day, the same condition was reported on the day shift and reported as
cleaned on the first shift. On the 24th the last pull was listed as
dirty and cleaned on the 2nd shift.[13] The corrections listed from July 25th
through July 29th for the 3C belt include cleaning the header and
tail and last pull, cleaning from crosscut 13 through 15, header, low framing,
and replacing a roller. (Ex. R-23.) In
short, the belt examiners noted spills and dirty areas found along the belt
during every examination and recorded corrections on the maintenance shift as
well as on other shifts. The entries going
back as far as July 13, 2009 establish that the header, tail and “last pull”
areas were those most often recorded as being dirty and in need of clean up as
confirmed by Guy Scisney, Casey Courtney and Thorpe. They are noted to have been cleaned almost
daily. A roller was noted as having been
replaced just prior to the inspection, dusting was done frequently, and spills
under rollers were cleaned as well. (Ex. R-23.)
As Scisney
testified when he examines the belt line, he looks for hazardous conditions
such as poor roof conditions and spillage and identifies areas in need of rock
dusting. (Tr. 467.) He annotates in the
belt book rollers that need replacing, dirty belts, the condition of the roof,
floor and ribs as well as any slip and fall hazards. (Tr. 467-68.) If he finds a condition that poses an
immediate safety hazard, he will correct it himself on the spot. (Tr. 468.) Casey and Thorpe testified that the “last
pull” area is not only different every
day but there can be as many as two or three moves in one day when production
is up. (Tr. 469-72, 498-99.) The header
and the last pull areas are where accumulations are most commonly found. Both areas are cleaned with regularity as is
the remainder of the belt. (Tr. 500-07.)
Fazzolare stated on cross-examination that he would expect build-up to
occur where the last pull had been located as it advances. (Tr. 397.)
He found it “surprising” that they don’t clean it up. (id.) A careful examination of the belt books
during the cited period of time does reveal, however, that Highland did clean
the area of the last pull daily. The
fact that it is noted as being in need of cleaning daily is not indicative of a
condition that was being ignored for days at a time.
The
Secretary has attempted to establish that the entire belt line was dirty and
therefore the only cleanup done by Highland was concentrated on certain areas,
which was insufficient. As discussed
above, I find the accumulations were not sufficiently proven to exist across
the entire belt line. It was neither
recorded in the belt book nor in the inspector’s notes. Nor was it proven by a
preponderance of the evidence that there were any notations in the belt
examination books of any hazardous condition that has existed without
amelioration from July 23rd to July 29th in the 3C belt
line. I also find that Highland did engage in fairly comprehensive cleaning of
the belt line on a regular basis in mitigation of the high negligence
assessment. There was an area, however,
between crosscuts 5 and 12 where accumulations had been noted in the belt book
under the rollers that had not been attended to in a timely manner. The accumulations Fazzolare did see during
his inspection most likely had been present for at least one shift and Highland
must have known of them and failed to clean them. I find the credible testimony of Highland’s
witnesses, taken together with an examination of the belt book indicates that
the high negligence assessment is inappropriate. I find the level of negligence
to be properly assessed as moderate.
7. Citation
No. 8497008
This citation was written in
conjunction with citations 8497007 and 8497009 during the inspection of the 3C
belt line on July 29, 2009. The
condition cites was the misaligned belt located at crosscut 37. The narrative
section of the citation states:
The “3C” beltline was out of
alignment and the bottom roller was rubbing the framing at XC 37. A temperature reading taken with a
hand held laser thermometer, with a D/S ratio of 1:1 and used according to
manufactures (sic.) recommendations, recorded a reading of 148 degrees Farinheit (sic.) within 30 seconds after the
belt started up, approximately 142 feet of belt had been cut from the belt due to this being out of alignment.
(Ex.
G-20.)
This violation, similar to the
preceding one, is marked as S&S with injuries resulting in lost workdays or
restricted duty being reasonably likely, high negligence affecting 10 persons
on the unit. The proposed penalty is
$10,437.
The cited standard requires that
conveyor belts be properly aligned to prevent the moving belt from rubbing
against the structure or components. 30
C.F.R. §75.1731(b).
Highland contests the gravity and
negligence assessment of this violation. [14]
S&S
The facts surrounding this violation
are set forth in the discussion of the preceding violation. Fazzolare measured the temperature of the
belt at 148 degrees Fahrenheit while a company representative measured it at a
slightly higher one. A sizeable section
of the belt had been cut away from the belt. (Tr. 380.) The bottom belt was rubbing the metal framing
causing a frictional heat source. (Tr.
386.) In the inspector’s opinion, if
the belt continued to run while out of alignment, it could cut the belt and
spill coal. It would become “worse” if
left uncorrected causing a belt fire resulting in smoke inhalation injuries to
the 10 persons on the unit. (Tr.
387-88.) The condition was abated within
five minutes by realigning the belt. (Tr. 387.)
The Secretary’s position is that the
three violations issued by Fazzolare for the accumulations, misaligned belt and
stuck roller, must be viewed in conjunction with one another in order to
conclude that a belt fire was reasonably likely to occur. She makes the same argument for this
violation as for the accumulation violation – based upon Fazzolare’s assessment
that accumulations had been allowed to exist along the entire belt line for six
days and would be allowed to continue to exist in the presence of ignition
sources. (Sec’s Post-Hearing Brief.)
Using the same analysis of the Enlow Fork factors as set forth in
greater detail in the discussion above, I do not find this violation to be
S&S. Accumulations were not as
extensive as Fazzolare stated. None of
the accumulations were in contact with any of the potential heat sources; there
was no evidence of methane present or faulty equipment. An ignition was not reasonably likely to
occur.
Negligence
The violation was assessed as high
because the mine had been cited eleven previous times under the same standard
since March 19, 2009. The condition was
found to have existed for more than one shift since the previous
afternoon. (Tr. 388-89.) Fazzolare
conceded, however, that the misalignment could have occurred after the belt
examination had been done. (Tr. 411.) He
granted that there was nothing in the belt books to put management on notice
that this belt was misaligned before the inspection took place. (Tr. 410.) With respect to the number of previous
violations under this commonly cited standard, Fazzolare confirmed that although
the standard had been cited eleven times since March 2009, these were the only
such violations in the preceding two years. He had no specific knowledge of the
circumstances under which the previously issued citations occurred as he gained
the information from the “history” link on the MSHA web page. (Tr. 410-11.)
This inspection began at 0730 on the
morning of July 29, 2009. There is no
evidence that the on-shift belt examination for that day had been conducted
yet. It is entirely possible under the
facts as presented that the misalignment occurred after the previous
examination and would have been discovered during the next examination on the
morning shift. In the meantime, there
was no evidence that management knew of the condition before it was cited. It
existed for a relatively short period of time.
The twelve prior violations of a commonly cited standard in twenty-four
months against a large mine with belts over one half mile each in length is
insufficient evidence to establish management was on notice of a need for
greater compliance. I therefore find the negligence is properly assessed as
low.
8.
Citation No. 8497009
This is the last
of the trilogy of citations written by Inspector Fazzolare while inspecting the
belt line. It was cited when he found a
stuck roller at the take-up area in crosscut 2. The cited mandatory standard requires that
damaged rollers or other belt components which pose a fire hazard be
immediately repaired or replaced. All other damaged rollers, or components must
also be repaired or replace. 30 C.F.R.
§75.1731(a).
The citation is designated as
S&S with a reasonable likelihood of an injury resulting in lost workdays or
restricted duty, affecting 10 persons and the result of moderate
negligence. The proposed penalty is
$3,143. (Ex. G-21.)
There is no disagreement that this mandatory standard was violated. Highland again challenges the S&S and moderate negligence assessments.
S&S
The stuck roller was in the take-up
area where the inspector found trash against the rib. The gravity is the same as the previous two
citations for the same reasons.
Fazzolare confirmed neither the trash in the walkway nor the coal
accumulations were directly next to or under this roller. Based upon my discussion of the Enlow Fork factors above, I find this
violation was not. S&S.
Negligence
Fazzolare assessed the negligence as
moderate because “the operator knew or should have known that there was (sic.)
mitigating circumstances.” (Tr.
392.) He found it was entirely possible
that the stuck roller was overlooked during the examination of the belt. (id.) The condition was thought to have existed for
at least one shift due to the wear on the roller. The inspector stated when the
belt is dragging it makes a shiny spot on the belt which was the basis for his
opinion. (Tr. 392.) Highland presented
evidence through Thorpe that while a roller was replaced in this area just
prior to the inspection, there was nothing noted in the belt books about
another stuck roller in the take-up area putting management on notice of the
condition. (Tr. 497.)
Because the inspector was able to
articulate a basis for his belief that the condition had existed for at least
one shift, I find that Highland should have discovered the condition. However,
as discussed above, I also find Highland did replace a roller in the same area
just prior to the inspection and they did engage in a fairly comprehensive
cleaning program. I find the negligence is moderate.
9.
Citation
No. 8494460
This citation was written by
Inspector Archie Coburn on July 21, 2009.
The cited condition was:
The approved ventilation, methane
and dust control plan in affect at this time was not being complied with on the No. 3 (063-0)
MMU. The air lock across the belt line
was not being maintained. The air lock was not fully across the
entry. The air lock was 5 feet 4 inches
off of the right rib allowing
air to flow out by along the belt entry.
Ex.
G-23.
Coburn designated the violation as
S&S, reasonably likely to result in lost workdays or restricted duty to
four persons and the result of moderate negligence. The Secretary seeks a penalty of $1944.00.
The mandatory standard provides that
the mine shall develop a ventilation plan that is approved by the district
manager that controls methane and respirable dust suitable to the conditions
and mining system at the mine. 30 C.F.R.
§75.370(a)(1). Highland’s ventilation
plan provides that air lock curtains be installed across the entry and fastened
to the roof and ribs. (Ex. G-25 pg 4.)
Highland does not argue with the
existence of the violation, but contests the S&S designation and the level
of negligence. I find the evidence
presented established the violation of the mine’s ventilation plan.
S&S
Coburn had been employed as a MSHA
inspector for over 22 years at the time of this inspection. Prior to his current position, he had worked
in the mines as an equipment operator, unit mechanic, and a face boss. He holds a foreman’s and electrician’s
certification. (Tr. 521-23.)
On the day in question, Coburn was
at Highland to conduct an EO2 spot inspection required every 10 days as the
mine liberates over 500,000 cubic feet of methane in a 24 hour period. (Tr. 528.)
While accompanied by a Highland representative, and a miner’s
representative, he traveled towards the number 3 unit when he observed that an
air lock curtain in the number 5 belt entry was not properly installed. (Tr.
531.) The right side of the curtain was
folded back along the right rib leaving a gap of 5’4” between the rib and the
end of the curtain. (Tr. 532.) The
purpose of the air lock which runs across the belt entry is to prevent the belt
air from reaching the face. When testing
the air with a smoke tube for a distance of ten crosscuts, Coburn determined
that the air was, in fact, moving outby.
(Tr. 533-34.) However, Highland’s
ventilation plan provides that the air is to move inby to a regulator which
then sweeps the air into the return.
Coburn determined that this
violation was significant and substantial because if the curtain remained as it
was with continued mining operations, should a fire occur in the belt entry,
the smoke would be carried outby. The
entry serves as the secondary escapeway for the unit working at the face.
Should the miners attempt to evacuate the mine in the event of a fire, using
the belt entry, they would not be aware of the hazard until they were overcome
by smoke. In this scenario, Coburn felt it reasonably likely that miners would
suffer injuries from smoke inhalation and burns causing lost workdays and
restricted duty. (Tr. 541-43.)
Highland proposes that the scenario
described by Coburn is highly unlikely for two reasons. First, the miners are
trained to use the primary escape intake evacuation route in the event of an
emergency. Second, there was no
likelihood of a fire. Coburn has been
inspecting the 9 Mine since it was put into production and in all of that time
he has never gotten a reading for methane in the belt entry and there were no
other potential ignition sources present such as accumulations, misaligned belt
sections, stuck rollers or equipment violations. He acknowledged that although the mine is on
a methane liberation spot inspection, the methane is not expected to be present
in the belt entry. (Tr. 549-51;
560-61.)
I am not persuaded by Highland’s
first point of contention. It is not at
all unlikely that miners would panic in the face of a fire and travel the
secondary evacuation route rather than the primary. Furthermore, the rescue breathers were
located near the belt entry which would make the use of the belt entry even more
likely in the event of an emergency. However, with respect to their second point,
the same analysis must be applied in the discussion of Citation No. 8497007
above.
In the evaluation of whether a fire, explosion
or ignition,
is likely a ‘confluence of factors’ must be present based on the particular
facts surrounding the violation such as the presence of accumulations, methane,
equipment violations and other ignition sources. Texasgulf,
Inc., Supra; Utah Power & Light
Co., Supra; Texasgulf, Supra; and Enlow Fork Mining Co., Supra. Coburn readily admitted that there were none of these
factors present in the belt entry and there was no testimony presented by the
Secretary from which to draw the conclusion that there would be assuming
continued normal mining conditions.
Under these circumstances, I find the Secretary has not established that
this violation was properly designated as S&S.
Negligence
The existence of this condition was
attributed to a moderate degree of negligence on the part of mine
management. It was an obvious condition
and was estimated to have existed for approximately 1 ½ hours from the time the
belt line was pre-shifted until Coburn arrived on the scene. (Tr. 544.)
In Coburn’s opinion, the pre-shift examiner should have seen the
condition and reported it in the examination book. The fire boss and the section foreman, both
responsible for monitoring the conditions along the entries, should have seen
it. The FTC boss would have been able to see the curtain if he had looked back
towards the belt before he began production as well. (Tr. 545.) On cross-examination, Coburn stated that the
FTC boss was located near the face about 700 feet from the air lock when he
made the inspection and the fire boss had made his pre-shift inspection hours
before the inspection took place. It was
not possible to determine exactly how long the curtain had been in the
condition in which he found it; it could have happened minutes before his
arrival. (Tr. 556-58.)
Highland’s fire boss, Steven Orange,
testified that on the day of the inspection, he examined the belt entry at 4 am
and found no discrepancies with the curtain.
The pre-shift examination book confirms no hazards were noted on the
belt entry in question although there were notations pertaining to other areas
needing attention. Additionally, his
recorded air readings would have indicated a variance of 10% or more between
the intake and return in the belt entry had the air lock been misaligned. His
recordings do not indicate any variance to suggest this at the time he made his
examination. (Tr. 623-29; Ex. R-27.)
As Coburn testified, there was no
one in close proximity to the curtain when he cited it. He did not observe any equipment moving
through the area either. It appears that the curtain had more than likely been
in the same condition for more than a few minutes before the inspector
arrived. It was an obvious condition and
should have been discovered by the section foreman or the fire boss. I find
this is a moderately serious violation.
However, the still relatively short length of time the condition existed
after production had started that morning is a mitigating factor and I find
moderate negligence is appropriate.
10.
Citation No. 8494461
This violation was written in
conjunction with the previous one based upon the same set of facts and cited
under the same mandatory standard. It is
distinguished from the previous citation, according to Coburn, because it
violates a different section of the mine ventilation plan. Highland’s approved plan specified that belt
entry air was to travel inby until it reaches the air lock curtain and then
through a regulator which directs it into the return. Instead, the air was traveling outby. (Tr.
535, 538-39; Ex. G-25 pgs. 27-30.) Prior to determining that the air was
actually traveling outby, Coburn assessed the danger as belt air, diesel fumes,
carbon monoxide and the like reaching the active workings at the face. (Tr. 540-41.)
With the air traveling in the wrong direction, as he discovered, his
concerns were the same as they were for the previous citation – miners
evacuating through the belt entry in case of a fire without being able to
detect smoke coming from the entry. (Tr.
541.) He assigned the same degree of
gravity and negligence to the violation as well. (Ex. G-24.)
Highland objects to the issuance of
this citation as being duplicative with the previously issued citation. They rely on Secretary v. Western Fuels-Utah, Inc., 19 FMSHRC 994 (June 1997)
and Secretary v. Cyprus Tonopah Mining
Corp., 15 FMSHRC 367 (March 1993) in support of their position that this
citation should be vacated. (Highland’s
Post-Hearing Memorandum.)
In Western Fuels-Utah the Commission affirmed the ALJ’s findings that
two citations were duplicative. The
Commission reasoned that citations are not duplicative so long as the cited
standards imposed separate and distinct duties upon the operator. Of the two cited standards, however, one
broadly required the installation of the dry chemical fire suppression system
while the other specified the nozzle and reservoir components by which to
accomplish it. The overall duty was to
maintain an effective fire suppression system which was a single duty imposed
upon the operator. The Commission in Cyprus Tonopath, by contrast, found the
two standards involved imposed separate and distinct duties on the operator and
were not duplicative. One standard
imposed the duty to employ a method of mining to maintain ground stability
while the other imposed a duty to correct existing hazardous ground conditions
and prevent miners from working in such areas until corrected.
The Secretary counters Highland’s
position by stating that had the air been traveling inby towards the units in
accordance with their ventilation plan, the air would have traveled through the
gap in the improperly installed curtain and gone to the face. This would have constituted a separate and
distinct violation of the use of belt air to ventilate the face. (Sec’s Post-Hearing Brief at 29.) However,
the inspector did not testify that the air would certainly have reached the
face; he said: “I would check my smoke tube. I would trace the smoke. Once it
got up to --if it wasn’t actually being dumped into the last open crosscut, I
would have issued a citation using belt air at the face.” (Tr. 572.)
The issue is not whether another
violation could have been cited under a different standard if the air was
traveling in a different direction and the belt air had reached the face
because of the gap in the air lock. The
issue is whether the two citations issued and now before me are duplicative.
The duty imposed upon the operator in both citations before me was to comply
with the ventilation plan approved by the district manager. The purpose of the
plan is to control methane and respirable dust.
The air lock curtain is the approved means by which Highland controlled
methane, dust and noxious fumes taking them away from the working unit at the
face. It does this by channeling the air flow inby through the regulator and
out the return. When the curtain was
improperly hung, it created a situation where the air was flowing outby instead
of inby. When the curtain was properly
attached to the rib, the air flow was restored in the proper direction abating
both citations. (Tr. 549-50.) Unlike in Western Fuels-Utah and Cyprus
Tonopath, the two citations in the instant case were issued under the same
provision of the same standard, the narrative portion of both citations
identify the improperly hung air lock as the basis for the violation and both were
abated by the single action of attaching the curtain to the rib. This presents far less room for a finding
that the citations are not duplicative.
I cannot conclude that two separate and distinct duties were violated in
this case. It is apparent the Secretary
was also hard pressed to do so in her proposing a hypothetical scenario in
which a separate and distinct violation imposing a different duty upon the
operator might have occurred as the basis for their position.
I therefore vacate this citation.
11.
Citation No. 4565952
This citation
was written by Carl Baker, an MSHA inspector since April 2006. Prior to his MSHA experience, Baker was a
miner for 16 years serving in positions as an equipment operator, equipment
foreman, electrician and repairman.[16](Baker
Dep. 14-15.) He received ventilation training at the Mine Academy and gained
practical experience during his time as a foreman. (Baker Dep. 16.) In April 2008, he became a health specialist
which included running respirable dust surveys.
He has been a team member of the “National Dust Emphasis Team” since
January 2009, focusing on inspecting mines with dust issues. He was acting in that capacity on July 14,
2009 when he inspected Highland 9 Mine. (Baker Dep. 12-13.) He wrote the following citation in violation
of 30 C.F.R. §75.370(a)(1) pertaining to the mine’s ventilation plan:
The approved ventilation plan is not
being followed on the 061 MMU #1 unit. While extracting
coal out of the #1 unit, #5 entry, with the scrubber operating, 4055 CFM was
taken and recorded by an
approved MSHA Anemometer at the inby end of the brattice line area (blowing face ventilation) A minimum
of 6500 CFM is required by the plan to be delivered
to the inby end of the brattice line
curtain with the scrubber operating.
This condition exposes miner
to hazards related to breathing respirable dust such as lung diseases.
The citation was designated as
S&S with a reasonably likelihood of an injury of a permanently disabling
nature to one person with a moderate degree of negligence. (Ex. G-27.)
The Secretary seeks a penalty of $1944.00.
Baker established that a violation
had occurred and that it contributed to a discrete safety hazard through his
testimony. When he went to the face of
the number 5 unit, he found a curtain flapping back and forth. It lead him to the conclusion that there was
a problem with the air flow in the entry.
Upon testing with an anemometer, he discovered that there was only 4055
cubic feet of air per minute flowing over the scrubber on the continuous miner
while it was in operation. The
ventilation plan required a minimum of 6500 cfm. (Tr. 19-20, 34.)
Highland concedes the violation.
S&S
Baker explained that the scrubber on
the continuous mining machine is designed to pull respirable dust into the
screen removing it from the air and thus limiting miners’ exposure to it. He believed from his training and information
published by NIOSH that when there is an insufficient amount of air flowing
over the scrubber, it does not operate properly, and dust will be recirculated
in the air where a miner is working.
(Tr. 20, 42.) The hauler operator
in particular would be exposed to the dust if the scrubber is not doing its
job. Although the condition had existed
for about ten minutes when he found it, he felt it likely that it would
continue to exist until the cut was completed in about another twenty minutes. (Tr.
43.) In his opinion, the violation
was S&S because it was reasonably likely that with this continued exposure
to respirable dust, a miner would develop a lung disease such as black lung.
(Baker Dep. 42-45.)
Highland introduced evidence that
during an eight hour period on the day of the inspection, Baker had the miner
operator wear a respirable dust pump.
The pump is designed to capture the same air the miners are exposed to
during their work shift. The sample from the pump is then sent to the MSHA
laboratory where it is analyzed for the concentration of respirable dust
contained therein. Highland’s face boss,
Carroll Browning, and Randy Duncan from Highland’s safety department both
testified that the air samples taken on July 21, 2009 in the cited unit where
below the 2.2mg/mg3 exposure limit set by MSHA according to the results
published on the MSHA web site. (Tr.
588-90; 615.) It is their position,
therefore, that this violation should not have been S&S as there was no
reasonable likelihood of a health risk to the miners. (Res. Post-Hearing Memo.)
The Secretary countered with the
argument that the samples’ being within acceptable standards is irrelevant
since this was not a violation of the respirable dust standard. (Sec’s
Post-Hearing Brief.) I find to the contrary,
however. The level of dust found in the
air is relevant to the issue of whether an injury or illness was reasonably
likely to occur from this violation.
Inspector Baker found the health risk involved in this violation was the
contraction of lung disease from inhalation of respirable dust. He also opined that any amount of dust going
into someone’s lungs is serious. This was the basis of his opinion that the
violation was S&S. (Baker Dep.
42-45.)
The Commission has addressed this
very issue of designating violations involving respirable dust as S&S in Consolidation Coal Co., 8 FMSHRC 890
(June 1986) aff’d 824 F.2d. 1071
(D.C. Cir. 1987). The violation charged
in Consolidation fell under the
respirable dust standard, unlike here.
However, the discussion in the decision regarding the legislative
history of the respirable dust standard and the likelihood of coal miner’s
pneumoconiosis (“CWP”) resulting from exposure to varying levels of respirable
dust is applicable to the S&S analysis here. The Commission stated that the essence of
the Mine Act is to protect miners against airborne substances. Respirable dust poses a unique situation and
a health issue fundamental to the purpose of the Act. (Id. at 896.)
Violations of the mandatory dust standard are presumed to be significant
and substantial as a measure by which to effectuate Congress’ intent to prevent
CWP regardless of the length of exposure time.
This is especially true because medical science is not advanced enough
to predict one individual’s susceptibility to CWP or to pinpoint when
overexposure occurs and CWP is contracted.
Therefore, the standard protects against incremental health hazards and
each exposure is presumed to be significant and substantial. (Id. at
899-900.) However, Congress also
recognized that in a dust environment below approximately 2.2mg/mg3 there would
be virtually no probability of a miner contracting CWP even after as much as 35
years of exposure. (citing H.Rep.No 563, reprinted in 1969 Legis. Hist.
1048; 1969 Legis. Hist. 1197-98.)
Recognizing a level at which respirable dust does not pose a health
risk, the standard set 2.2mg/mg3 as the limit above which overexposure is
presumed to be S&S. Even at that
level, the presumption of S&S is rebuttable by a showing by the operator
that miners were not exposed to excessive concentrations.
Analogous to the facts here, the
operator presented evidence that the concentration of respirable dust did not
register at the critical level of 2.2mg/mg3.
Therefore even prolonged exposure in excess of the 30 minutes Baker
contemplated would not have had a reasonable likelihood of resulting in CWP as
he believed. There were no other facts
or theories presented by the Secretary upon which to find this violation posed
a significant and substantial health risk to a miner. She has failed to prove by a preponderance of
the evidence that the violation was significant and substantial.
Negligence
Baker determined that the curtain
was not in its proper position due to a piece of equipment having been trammed
through it. It had run over the bottom
of the curtain lifting it up off the mine floor causing it to flutter. The face boss had admitted as much to him on
the scene. (Baker Dep. 35, 38.) The
condition had existed for approximately ten minutes and was abated when the
curtain was reattached to the floor. (Baker Dep. 38-39.) Baker felt if he had not discovered the
condition, it would have continued to exist until mining was completed
approximately 20 minutes later. (Baker Dep. 43.) The section foreman is ultimately responsible
for the section and therefore he listed the negligence as moderate. (Baker Dep. 45-46.) He found that the violation was likely inadvertent
and that Highland trains its miners to use an anemometer when conducting its
examinations. (Baker Dep. 42, 45.)
Highland’s face boss, Browning,
testified that he took an anemometer reading before cutting began and he
obtained a reading of over 5000 cfm on the scrubber when it was not
running. (Tr. 582.) It was his conclusion that a hauler had torn
down the tail of the curtain when moving coal from the face area. (Tr. 583, 586.) After the condition was brought to his
attention, he checked the other entries and found another curtain had been torn
down and had it rehung. (Tr. 593.)
Browning testified that as soon as the hauler tore down the curtain, it
was hung back up. (Tr. 598.) (That
clearly was not the case as Baker found it ten minutes later and no one was in
the process of hanging it back up.)
The face boss and the section
foreman were not aware of this condition although they should have been. It existed for a relatively short period of
time but it appears from Browning’s comments that he was aware of the hauler
tramming through the curtain and neither he nor the section foreman were
ensuring the curtains were not compromised in so doing. The curtain serves an important function in
the ventilation of the mine by providing proper ventilation to the face and
maintaining the proper volume of air to the scrubber to protect the miners
working behind it. I find any violation
of the ventilation plan to be serious. In mitigation of the violation I have
considered the fact that the condition had existed and would have continued to
exist for a short period of time, it was inadvertent and not result of unsafe
practices by management, the miners are trained to use anemometers to test the
air volumes before making any cuts and the dust level was below dangerous
levels. The level of negligence is
appropriately designated as moderate.
III. PENALITES
Under Section 110(i) of the Act, the
Commission and its judges must consider the following factors in assessing a
civil penalty: the history of the violations, the negligence of the operator in
committing the violation, the size of the operator, the gravity of the
violation, whether the violation was abated in good faith and whether the
penalties would affect the operator’s ability to continue in business. The parties have stipulated that the mine is
a large mine and that the proposed penalties would not affect the operator’s
ability to continue in business. There
is no dispute that the conditions were abated in good faith or that the mine
has a significant history of violations.
The findings with regard to the gravity and negligence involved in each
citation are set forth above. I find
that the following penalties are appropriate:
Docket
KENT 2009-1582
Citation
No. 8494791 $14,700
Order
No. 8494792 $1800
Docket
KENT 2009-1583
Citation
No. 8494793 VACATED
Citation
No. 8497131 $900
Citation
No. 8497132 $900
Citation
No. 8497135 VACATED
Citation
No. 8797136 $500
Citation
No. 8497007 $1800
Citation
No. 8497008 $1000
Citation
No. 8497009 $1800
Citation
No. 8494460 $900
Citation
No. 8494461 VACATED
Citation
No. 456952 $900
IV. ORDER
Citation Numbers 8494793, 8497135
and 8494461 are VACATED; Citation Number 8494791 is affirmed as written with
the penalty proposed by the Secretary; Order No. 8494792 is modified to non-
S&S and non-unwarrantable failure with a reduction in negligence to
moderate with a penalty of $1800.00;
Citation Numbers 8497131, 8497132, 8494460 and 4565952 are been modified to non-S&S with moderate
negligence and a penalty of $900.00 each; Citation No. 8797136 is modified to
non-S&S with moderate negligence with a penalty of $500.00; Citation No.
8497007 is modified to non-S&S with negligence lowered to moderate with a
penalty of $1800.00; Citation No. 8497008 is modified to non-S&S with
negligence modified to low with a penalty of $1000.00; Citation No. 8497009 is
modified to non-significant and substantial with moderate negligence with an
assessed penalty of $1800.00. It is
hereby ORDERED that Respondent pay penalties on the citations and order adjudicated
herein in the amount of $25,200.00 within 30 days of this order.
/s/
Priscilla M. Rae
Priscilla
M. Rae
Administrative
Law Judge
Distribution:
(Certified Mail)
Neil
A. Morholt, Esq., Laura Monson, Esq. Office of the Solicitor, U.S. Department of
Labor, 618 Church Street, Ste. 230, Nashville, TN 37219
Jeffrey
K. Phillips, Esq., Steptoe & Johnson, PLLC, P.O. Box 910810, Lexington, KY
40591
[1] Troy Cowan was Highland’s ventilation coordinator. He was responsible for ventilation, roof control and belt laying operations at Highland. He holds underground foreman, EMT and mine emergency technician and underground instructor’s certifications and has been in the field since 1988. (Cowan Dep. At 6-10.)
[2] Casey Courtney testified that he has been a belt examiner since 1982 while Guy Scisney has been an examiner for 34 years. He has received special recognition for never having had an accident in his 42 year mining career. (Tr. 465.) Based upon my observations of their demeanor and comportment during trial, I find they are credible witnesses despite their employment with Highland.
[3] That is not to say that dangering off the entry was adequate to protect miners from rib and roof falls as cited in Citation No. 8494791.
[4] An internet search confirms this information at www.technologylubricants.com/MSDS/conoco.
[5] The Secretary argued in her post-hearing brief that this evidence was irrelevant as it was taken at a later date on a different but identical bolting machine and that Mr. Little was not present when Hargrove made his findings. There is no evidence produced by the Secretary, however, that these temperatures would be appreciably different from the ones on the #10 bolter on the day of the inspection which took place at 10:47 AM. I find these readings to be relevant and probative of the temperatures that would have been found on the #10 bolter had the inspector measured them. It is also immaterial who took the measurements. As the Secretary pointed out during the hearing, the safety department representative who was present at the inspection was deceased at the time of the hearing. Additionally the Secretary intimates that because Little did not bring his notes he took while performing his testing to the hearing, his findings are not credible. Having just taken the measurements prior to trial, it is plausible that Little did not need to refresh his recollection with notes. The Secretary, who has the burden of proof on this issue, offered no evidence to refute Little’s testimony.
[6] 30 C.F.R. §75.1710-1(d)(1) requires that all self-propelled diesel-powered or electrical-powered equipment shall be equipped with substantially constructed canopies or cabs to protect the operator from roof, face and rib falls and face rolls which is certified by a registered engineer to possess the minimum structural capacity to support elastically a dead weight load of 18,000 pounds.
[7] Hargrove is a certified electrician with 22 years of mining experience prior to joining MSHA as an inspector. (Tr. 20-21.)
[8] To establish that this was a high traffic area, counsel for the Secretary asked why miners generally congregate around power boxes and Hargrove explained that they are often warm, well-lit and have a phone to the surface. He was not asked, nor did he say, that he was aware that this was the case at Highland. (Tr. 140-41.) By contrast, Hargrove later testified that the only persons ordinarily in the vicinity of this transformer would be the person performing the weekly examination or the battery maintenance man. (Tr. 146.)
[9] Adamson has 20 years of mining experience. He was the maintenance foreman responsible for overseeing permissibility, preventative maintenance and general repairs of underground equipment. (Tr. 175.) He holds state and federal electrical certifications as well as foreman papers. (Tr. 176.)
[10] Highland incorrectly referred to this citation as No. 8494707 in its Pos-hearing Memorandum.
[11] Thorpe has been a miner since 1975. In 1993 he transferred into a management position as a face boss and then became a mine foreman. He worked as a belt mechanic among other jobs as a miner.
[12] The melting point of stainless steel is known to be 2750 degrees Fahrenheit and 2600-2800 degrees for carbon steel. (See www.EngineeringToolBox.com.)
[13] The Secretary took the position that all corrective action was done on the 3rd shift only. Therefore, if there was not a “corrections” page from the third shift, the condition noted on the day shifts was not cleaned. The belt book, however, indicates that cleaning was performed on the day shifts as well.
[14] Highland incorrectly refers to this citation in its brief as number 8494708.
[15] Highland incorrectly refers to this citation in its brief as No. 849709.
[16] The parties submitted MSHA inspector Baker’s testimony by way of a deposition taken on January 11, 2011 which has been marked as Ex. G-28 and will be referred to as “Baker Dep.(page number).”