These cases are before me on petition for assessment of civil penalties filed by the Secretary of Labor, (“Secretary” or “Petitioner”) acting through the Mine Safety and Health Administration, (“MSHA”) against Rosebud Mining Company, (“Rosebud” or “Respondent”) at it’s Dutch Run Coal Preparation Plant (“Dutch Run”), pursuant to Sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815, 820 (the “Mine Act” or “Act”). These dockets involve two citations and three orders issued pursuant to the Act with assessed penalties totaling $21,618.00. The parties presented testimony and documentary evidence at the hearing held in Pittsburgh PA, on May 16 and 17, 2012.
Common Facts and Law
The parties agreed to the following stipulations at the hearing:
1.Respondent was an “operator” as defined in § 3(d) of the Federal Mine Safety and Health Act of 1977, as amended (hereinafter “the Mine Act”), 30 U.S.C. § 803(d), at the coal preparation Plant, or other mine at which the orders at issue in this proceeding were issued.
2.This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health Review Commission and its designated Administrative Law Judges pursuant to Sections 105 and 113 of the Mine Act.
3.The subject citations/orders were properly served by a duly authorized representative of the Secretary of Labor upon an agent of the Respondent at the dates, times, and places states therein, and may be admitted into evidence for the purpose of establishing their issuance, and not for the truthfulness or relevancy of any statements therein.
4.The penalties that have been proposed for the citation and orders in this proceeding will not affect Respondent’s ability to continue in business.
5.Rosebud Mining’s Dutch Run Coal Preparation Plant (Dutch Run) demonstrated good faith in the abatement of the citation and orders.
6.The parties stipulate to the authenticity of their exhibits, but not to the relevance, nor to the truth of the matters asserted therein.
7. MSHA’s Data Retrieval System, publicly available at http://www.msha.gov/drs/drshome.htm, accurately sets forth:
a. the size of Dutch Run Coal Preparation Plant, in production tons or hours worked per year;
b. the size, in production tons or hours worked per year, of the coal or other mine at which the citation and orders at issue in this proceeding were issued;
c. the total number of assessed violations for the time period listed; and
d. the total number of inspection days for the time period listed
herein.
8.Any computer printouts from MSHA’s Data Retrieval System are considered authentic copies and may be admitted as business records of the Mine Safety Health Administration.
9.Respondent’s operations at the mine at which the citation and orders at issue in this proceeding were issued are subject to the jurisdiction of the Mine Act.
10.Joe Smiley (Smiley) was employed as a Plant Operator at Dutch Run on January 13, 2011 and was assigned by management to conduct daily examinations in accordance with 30 C.F.R. § 77.1713(a).
11.On January 13, 2011, Smiley was an agent of Rosebud Mining Company consistent with the definition provided in § 110(c) of the Federal Mine Safety and Health Act of 1977.
12.On January 13, 2011, at 5:40 a.m., Smiley made an entry in the official examination book that stated, “Found everything in good working condition at the time of the inspection. Found 0.0% methane in tunnel.”
13. On January 13, 2011, Citation No. 7061996 was issued at 6:25 a.m.
14.On January 13, 2011, Dutch Run’s draw-off tunnel belt conveyor was energized at 6:10 a.m.
18.No daily examinations were recorded in the official examination book for the afternoon shift on January 10, 2011, January 11, 2011, and January 12, 2011.
19.Miners were working in the plant on the afternoon shift of January 10, 2011, January 11, 2011, January 12, 2011, and January 13, 2011.
20.On April 11, 2011 the welding rod holder clamp of the Arc Welder referenced in Order No. 8008680 was clamped to an energized bare area of the Wire Fed Welder.
23.On April 11, 2011, both welders referenced in Order No, 8008680 were energized.
24.This bare, non-insulated connection was created by assistant superintendent and certified electrician, Kevin Kijowski.
25.Kevin Kijowski routinely makes the same bare, non-insulated connection referenced in Order No. 8008680.
27.Miners at Dutch Run routinely use water hoses to clean up accumulations of materials in the plant.
Tr. 8-9.
Other facts common to the citations and orders
In addition to the jurisdiction, fact-specific and assessed violation data set forth in the
joint stipulations, above, there are other facts common to the alleged violations. For all five, the
number of persons affected was listed as one, each was determined to be the result of
unwarrantable failure (UWF), and all were abated satisfactorily and terminated. All five were
designated Significant and Substantial (S&S), but one order was modified to a non-S&S citation.
The citations and orders of January 13, 2011 were modified to show a change in ownership from
T.J.S. Mining, Inc., to Rosebud Mining Company effective January 1, 2011. G-7, 9, 10, 13, 21.
The citation and orders were all issued by MSHA Inspector Kevin Deel (“Deel” or
“Inspector”), a Health Supervisor for a District Office since January 2012. He has worked in the
mining industry since 1976, with the first six years as a machine operator, shuttle car operator,
mine operator, and roof bolt operator. He then worked for two years as a mine examiner
beginning in 1980, followed by two years as an assistant mine foreman. He then worked 21
years as general assistant mine foreman in various locations, which included taking charge of
six underground mine units. Tr. 16-18. Deel has worked for MSHA since 2005, first as a
trainee at the Ruff Creek office for a year, then at the Kittaning office as an underground
inspector until June 2007, and then as a surface specialist. He received his AR card and has
served as an Authorized Representative of the Secretary since his first year at MSHA. Tr. 16-18.
Deel conducted inspections at Dutch Run approximately four or five times from 2007 to
January 2011.
Tr.18. During this time, it was a small, one-shift operation, three to five days a
week, with only four to six workers. Tr. 19. Deel testified that Rosebud personnel told him in
January 2011, after the company took over operation of the plant, that the intent was to increase
production to three shifts, six to seven days a week, by the end of January 2011. Tr. 18-20. On
January 11, 2011, the first day of his January 2011 inspection, Deel learned that Stan White had
come to the facility as the Plant Superintendent. Tr. 21. However, a check of the training
records revealed that Mr. White and one other worker did not have the proper hazard training.
Tr. 21. The former superintendent, Mike Rearick, was now the Plant Manager. Tr. 21. Deel
was also at the plant the next day, and again returned to Dutch Run on Thursday, January 13,
2011. Tr. 22.
Applicable legal principals
The orders and one citation discussed below were designated as S&S. S&S is described in section 104(d)(1) of the Act as a violation “of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(1). A violation is properly designated S&S “if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
As is well recognized, in order to establish the S&S nature of a violation, the Secretary must prove: “(1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard – that is, a measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 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 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984)). The Commission has provided additional guidance:
We have emphasized that, in accordance with the language of section 104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial. U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
Further, “The Secretary need not prove a reasonable likelihood that the violation itself will cause injury.” and “the absence of an injury-producing event when a cited practice has occurred does not preclude a determination of S&S” Cumberland Coal Resources, LP, 33 FMSHRC 2357, 2365 (Oct. 2011) (citing Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010); Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)).
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) emphasis added.
By definition, negligence is:
conduct, either by commission or omission, which falls below a standard of care established under the Mine Act to protect miners against the risks of harm. Under the Mine Act, an operator is held to a high standard of care. A mine operator is required to be on the alert for conditions and practices in the mine that affect the safety or health of miners and to take steps necessary to correct or prevent hazardous conditions or practices. The failure to exercise a high standard of care constitutes negligence.
The categories and definitions of the negligence criterion are as follows:
No negligence is where the operator exercised diligence and could not have known of the violative condition or practice;
Low negligence is where the operator knew or should have known of the violative condition or practice, but there are considerable mitigating circumstances;
Moderate negligence is where the operator knew or should have known of the violative condition or practice, but there are mitigating circumstances;
High negligence is where the operator knew or should have known of the violative condition or practice, and there are no mitigating circumstances; and
Reckless disregard is where the operator displayed conduct which exhibits the absence of the slightest degree of care.
30 C.F.R. §100.3(d).
The orders and citations were all designated as unwarrantable failure. The UWF terminology is taken from section 104(d)(1) of the Act, which establishes more severe sanctions for any violation that is caused by “an unwarrantable failure of [an] operator to comply with…mandatory health or safety standards.” 30 U.S.C. § 814(d)(1).
The term “unwarrantable failure” is defined as aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or the “serious lack of reasonable care.” Id. at 2004; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189,193-94 (Feb. 1991). Aggravating factors include 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 were necessary for compliance, the operator’s efforts in abating the violative condition, whether the violation was obvious or posed 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); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Windsor Coal Co., 21 FMSHRC 997, 1000 (Sept. 1999); Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001). 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.
The provisions of the Mine Act cited are as follows:
§ 104(d)(1) If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has been a violation of any mandatory health or safety standard, and if he also finds that, while the conditions created by such violation do not cause imminent danger, such violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard, and if he finds such violation to be caused by an unwarrantable failure of such operator to comply with such mandatory health or safety standards, he shall include such finding in any citation given to the operator under this Act. If, during the same inspection or any subsequent inspection of such mine within 90 days after the issuance of such citation, an authorized representative of the Secretary finds another violation of any mandatory health or safety standard and finds such violation to be also caused by an unwarrantable failure of such operator to so comply, he shall forthwith issue an order requiring the operator to cause all persons in the area affected by such violation, except those persons referred to in subsection (c) to be withdrawn from, and to be prohibited from entering, such area until an authorized representative of the Secretary determines that such violation has been abated. (2) If a withdrawal order with respect to any area in a coal or other mine has been issued pursuant to paragraph (1), a withdrawal order shall promptly be issued by an authorized representative of the Secretary who finds upon any subsequent inspection the existence in such mine of violations similar to those that resulted in the issuance of the withdrawal order under paragraph (1) until such time as an inspection of such mine discloses no similar violations. Following an inspection of such mine which discloses no similar violations, the provisions of paragraph (1) shall again be applicable to that mine.
30 U.S.C. § 814(d).
104. (a) If, upon inspection or investigation, the Secretary or his authorized representative believes that an operator of a coal or other mine subject to this Act has violated this Act, or any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to this Act, he shall, with reasonable promptness, issue a citation to the operator. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. The requirement for the issuance of a citation with reasonable promptness shall not be a jurisdictional prerequisite to the enforcement of any provision of this Act.
30 U.S.C. § 814(a).
Findings and Conclusions
Docket No. PENN 2011-283
Inspector Deel returned to Dutch Run on January 13, 2011 in order to conduct a noise
survey. Tr. 21-22. At 5:30 a.m. he found no entries in the examination record book. Tr. 22.
After handing out dosimeters he discovered that an entry had been made in the record book at
5:40 am.
Tr. 23, 24. The entry pertained to the examination of the Dutch Run Prep Plant open
pit mine and, as relevant, read:
Found everything in a good working condition at the time of the inspection, found 0.0% methane in tunnel…
The entry was not signed, but was initialed by Mike Rearick.
Tr. 22-24, Ex. G-1.
Deel began his inspection in the draw-off tunnel. The draw-off tunnel is a fully lined
concrete tunnel that runs 80 feet or more on a downward vertical slope from the surface. Tr. 26,
95.
The bottom has a flat concrete floor with a sump pump for drainage and is about 30 to 35
feet underground. Tr. 26, 29. The tunnel is 12 feet wide by 6 to 7 feet high and houses a 3 foot
wide conveyor belt with walkways on each side of the belt structure. Tr. 82, 94, 95. The
clearance side walkway is approximately 6 feet wide. Tr. 81. The conveyor belt is used to bring
coal from surface storage down to a belt running to the cleaning plant. Tr. 27, 29. There is a
separate, smaller escapeway tunnel from the bottom of the draw-off tunnel to the surface where
a fan pulls air up through the escapeway for ventilation of both tunnels. Tr. 28, 29.
At 0625 hours Deel issued 104(d)(1) Citation No. 7061996 to Plant Supervisor Mike Rearick, citing 30 C.F.R. § 77.1713(a) for the following condition or practice:
An adequate examination has not been conducted of the draw-off tunnel and draw-off tunnel belt conveyor. An examination was conducted and recorded in a book approved by the Secretary of the draw-off tunnel at 0540 hours on 1-13-2011. The draw-off belt conveyor was started at approximately 0610 hours. There were no hazards recorded in the daily exam book. Combustible material, such as fine coal and coal dust, has accumulated under the tail roller of the draw-off tunnel belt conveyor with the belt and roller running in the fine coal accumulations. When measured the accumulations measure approximately 40 to 50 inches in width by 36 inches in length by 10 to 16 inches in depth. These accumulations are from coal run on the conveyor dayshift on 1-12-2011. By not recognizing these combustible accumulations as a hazard and recording the hazard in an examination book the operator has engaged in aggravated conduct constituting more than ordinary negligence. This is an unwarrantable failure to comply with a mandatory standard.
The Inspector determined injury or illness was reasonably likely and could reasonably be expected to be fatal. The citation was designated S&S, affecting one person, with high negligence. The penalty assessed was $5,503.00. Ex. G-9.
The citation was terminated at 0930 hours that day after an adequate examination was conducted and recorded in the daily examination book, including the recording of any hazardous conditions found and the action taken to correct the hazardous conditions. Ex-G-2, G-9.
The safety standard cited reads:
Daily inspection of surface coal mine; certified person; reports of inspection.
(a) At least once during each working shift, or more often if necessary for safety, each active working area and each active surface installation shall be examined by a certified person designated by the operator to conduct such examinations for hazardous conditions and any hazardous conditions noted during such examinations shall be reported to the operator and shall be corrected by the operator.
(b) If any hazardous condition noted during an examination conducted in accordance with paragraph (a) of this section creates an imminent danger, the person conducting such examination shall notify the operator and the operator shall withdraw all persons from the area affected, except those persons referred to in section 104(d) of the Act, until the danger is abated.
(c) After each examination conducted in accordance with the provisions of paragraph (a) of this section, each certified person who conducted all or any part of the examination required shall enter with ink or indelible pencil in a book approved by the Secretary the date and a report of the condition of the mine or any area of the mine which he has inspected together with a report of the nature and location of any hazardous condition found to be present at the mine. The book in which such entries are made shall be kept in an area at the mine designated by the operator to minimize the danger of destruction by fire or other hazard.
(d) All examination reports recorded in accordance with the provisions of paragraph (c) of this section shall include a report of the action taken to abate hazardous conditions and shall be signed or countersigned each day by at least one of the following persons:
(2) The assistant superintendent of the mine;
(3) The superintendent of the mine; or,
(4) The person designated by the operator as responsible for health and safety at the mine.
30 C.F.R. § 77.1713.
Just minutes later, at 0635 hours, the Inspector issued 104(d)(1) Order No. 7061997, also to Mike Rearick, citing 30 C.F.R. § 77.1104, for the following condition or practice:
Combustible material, such as fine coal and coal dust, has accumulated under the tail roller of the draw-off tunnel belt conveyor with the belt and roller running in the fine coal accumulations. When measured the accumulations measured approximately 40 to 50 inches in width by 36 inches in length by 10 to 16 inches in depth. The accumulations are dry in consistency. These accumulations are from coal run on the conveyor on 1-12-2011. An examination has been conducted of this draw-off tunnel and draw-off tunnel belt conveyor at 0540 hours on 1-13-2011. No action was taken to correct the condition prior to starting and running this belt conveyor. By taking no action to correct this condition prior to starting and running the conveyor with the belt and roller running in these accumulations, the operator has engaged in aggravated conduct constituting more than ordinary negligence. This is an unwarrantable failure to comply with a mandatory standard.
Ex. G-7.
The Inspector determined that injury or illness was reasonably likely and could reasonably be expected to be fatal. The order was designated S&S, the number of persons affected was one, and negligence was high. The penalty assessed was $6,115.00.
The initial action identified for this 104(d)(1) Order was Citation No. 7061996, discussed above, issued ten minutes before. The Order was terminated at 0730 hours after the accumulations were removed from under the belt and tail roller. Ex. G-2, G-7.
The safety standard cited, § 77.1104 reads:
Accumulations of combustible materials.
Combustible materials, grease, lubricants, paints, or flammable liquids shall not be allowed to accumulate where they can create a fire hazard.
30 C.F.R. § 77.1104.
About four hours after the above citation and order were issued, Inspector Deel also issued 104(d)(1) Order No. 8008603 to Mike Rearick, again citing 30 C.F.R. § 77.1713(a) for the following condition or practice:
No daily examinations for hazardous conditions, by a certified person, have been conducted for the afternoon shift at the Dutch Run Coal Preparation Plant on 1-10-2011, 1-11-2011 and 1-12-2011.
The plant manager stated that this site has had men working afternoon starting on 1-10-2011. There were various conditions observed and cited on 1-13-2011 that were present on 1-12-2011. If the daily examinations were being conducted the operator would have had reason to know of these conditions. By not conducting the daily examination for hazardous conditions when men are working the operator has engaged in aggravated conduct constituting more than ordinary negligence. This is an unwarrantable failure to comply with a mandatory standard.
Ex. G-10.
The Inspector determined that injury or illness was reasonably likely and could reasonably be expected to result in lost workdays or restricted duty. The order was designated S&S, affecting one person, with high negligence. The penalty assessed was $2,000.00. Ex. G-10.
The initial action listed was Citation No. 7061996, issued that day and discussed above, which cited the same safety standard, § 77.1713(a). The operator designated a certified person to conduct the daily examinations for the afternoon shift, and the order was terminated that day. G-2, G-10.
The safety standard cited, 30 C.F.R. § 77.1713(a), is set forth above.
Testimony of Inspector Kevin Deel
Deel testified that the main equipment in the draw-off tunnel is a conveyor belt that
brings coal from the surface storage facility down to a conveyor to the cleaning plant. Tr. 27.
This material would not have been cleaned, and could contain rock, ash, or other materials. Tr.
74, 75.
There is a separate, smaller adjacent tunnel from the bottom, used for ventilation and
for a possible secondary means of escape. Tr. 28. Walking down the draw-off tunnel Deel
observed spillage of loose and fine coal and coal dust
under the running tail roller and belt that
had been ground up in the tail roller and was very powdery and very dry.
Tr. 29, 30. The
conveyor was rubbing the coal and lifting the belt up, with the belt running in the coal. Tr. 29-30. The width of the accumulation was such that it was necessary to walk around the coal to get
to the bottom of the tunnel. Tr. 29, 30, 32.
Deel had just looked at the exam record book, and saw that it had been signed, indicating that the examination had been done. Tr. 41, 44. Deel spoke with Joe Smiley who told him that the full examination had been completed. Tr. 44, 97, 98. Smiley also said that he had not done examinations for at least a year and a half, had just started on Monday of that week, and was not sure what he was doing. Tr. 41-42, 44, 45. The record book also contained entries for January 11th and 12th by Smiley, which were identical to the entry on January 13th. Tr. 48-50; G-8. Deel had been at the plant on those days as well, and had issued four citations for accumulations. Tr. 41, 48-50, 57. During the examinations on the 11th and 12th, the examiner missed the accumulations and the ignition sources, which created the conditions necessary for a fire or explosion. Tr. 53. This resulted in a situation where if a fire occurred, a person would have to exit through toxic smoke and heat, thus leading to burns and respiratory damage. Tr. 54, 55.
The examination was recorded in the book just 20 minutes before Deel found the hazard. Tr. 56, Ex. G-2. Deel testified that an examination covers the entire facility, a complete examination of the site for hazards of all kinds, which would entail traveling to all areas where men were going to work that day including all five floors of the cleaning plant, the draw-off tunnel, all belts, the truck dump and any electrical buildings. Tr. 45, 46, 53, 54. He estimated that the examination would take approximately an hour to an hour and a half to complete, assuming that the examiner found no hazards that he had to take care of, and would be countersigned by a foreman or superintendent. Tr. 46. If the examiner found a hazard, then in addition to recording the hazard in the book, he must also record what was being done to take care of the hazard. Tr. 104. The accumulations had to have been seen by the examiner passing by them, shortly before Deel found them, but no hazard was entered in the book and no action was taken to correct the hazard. Tr. 56, 57, 76.
Deel also testified that the accumulations measured 40-50 inches wide, 36 inches long,
10-16 inches deep and were very visible since they came out from under the belt into the
walkway. Tr. 30. The width was measured with a tape measure. Tr. 86. The accumulations
were highly apparent and could not be missed since a passerby would have to step around them.
Tr. 30, 43. The particle size of the accumulations ranged from one-fourth inch to powder. Tr.
103. Deel described what was shown by the four photographs he took and annotated.
Tr. 31,
32. Exhibit G-3 shows the spillage building up directly under the bottom belt of the conveyor,
with the belt actually rubbing on the top of the spillage, and the tail roller in the distance. The
area is almost at the bottom of the draw-off tunnel, and the coal is out into the walkway. Tr. 32.
Exhibit G-4 shows the tight side of the tail roller, and how far the spillage had come out from
underneath the belt to the right of the guarding and on the walkway around the tailpiece. Tr. 33,
34. Exhibit G-5 was another photograph showing the extent of the coal rubbing the belt and
spread clear out onto the walkway side. Tr. 35, 36. Exhibit G-6 is a photograph taken from the
perspective of the area between the top and bottom belt at the tail roller and shows the coal
spanning the entire width of the bottom belt and actually coming up and over the bottom belt
where it was running in the coal. Tr. 37, 85-87.
Deel further testified that all the elements were present to make it reasonably likely that a fire or ignition would occur and result in an injury. Tr. 39. He testified that the accumulations were extensive, creating a prime fuel source, and that electrical components such as the sump pump and shaker motors could serve as ignition sources. Tr. 39, 40, 102. Furthermore, if a fire occurred, the service people and examiners that traveled in this area would be put in direct risk of serious injury. Tr. 39, 40, 91.
Deel pointed out that fine coal dust can ignite, even when there is rock in it. Tr. 91, 101. He described some of the factors that could lead to an explosion or fire. Methane is inherent in coal, and can be explosive. Tr. 88-90. The tunnel was not wet. Tr. 84. An explosion caused by fire or ignition combined with the fine coal dust would create toxic smoke, leading to injuries that could be fatal. Tr. 40. He observed no dust in suspension. Tr. 94. He acknowledged that the time required to exit could be a factor. Tr. 78. In a non-emergency it would take less than five minutes to walk out of the tunnel. Tr. 93. However, in an emergency situation where smoke was present, an individual would be required to travel on his hands and knees, thereby extending the exit time to ten to fifteen minutes. Tr. 80, 81. Deel testified that the accumulations were present from at least the previous day shift, but could have been present for the three days that Smiley had been the examiner. Tr. 43, 44, 50, 51.
Deel continued his inspection throughout the coal yard and issued additional citations for accumulations. Tr. 60. When he returned to discuss the citations, he learned there was also an afternoon shift, but the daily examination record did not have examinations for the afternoon shift. Tr. 61, 62. Stan White told Deel that he forgot to assign anybody to conduct examinations on the afternoon shift for the three days of that week. Tr. 69-70. Injuries were deemed reasonably likely due to the presence of construction workers throughout the plant and other workers starting a subsequent shift who would not be aware of a number of possible hazards. Tr. 63-66. Workers rely on the exam books to identify possible hazards, and no examinations had been conducted where men were working for three days. Tr. 67-69. The plant was not processing coal on those days. Tr. 100.
Testimony of Examiner Joseph Smiley
Joseph Smiley testified that at the time of the hearing he was unemployed, but he had spent the majority of his life in the mining industry. Tr. 108-109. After 13 years at PMC mining, he retrained for an electrical certification, and then worked as a maintenance electrician for about 2 years. Tr. 109. He then worked at a coal cleaning plant for 2 to 3 years, and in 1995 returned to his original employer until 2000. Tr. 110. He worked at a tipple operation before working for periods of time for both TJS and Rosebud. Tr. 111. Most of his experience was around cleaning plants and outside jobs such as clean up, running various types of equipment, and performing some electrical work. Tr. 111. He did examinations in the 1970s, then again when first employed by Rosebud for 10 months, and in January 2011. Tr. 112-113. His certifications include methane, surface, foreman, and electrical. Tr. 113.
On January 13, 2011, Smiley went directly to the tunnel for a gas check “and more or
less looked around in the tunnel” before the belts were started. Tr. 113-114. He described the
conditions in the tunnel as “looking pretty good to me that I could see.” Tr. 117. In performing
the gas check, he described how he would watch the methanometer while walking down
through the tunnel to the bottom, where he would take a reading as high as he could reach.
Tr.
119. The methane check was his first and main priority, as well as trying to observe anything
that would be a hazard. Tr. 121, 122. He testified that at that time he did not notice any
hazardous conditions in the draw-off tunnel. Tr. 124. He then checked the catwalk, walking and
looking through the plant, before signing the book attesting that he found everything to be in
good working condition. Tr. 123, 124. Inspector Deel approached and asked if he had been in
the tunnel, or checked it, and Smiley responded, “Yes, I was up there.” Tr. 114. Smiley also
testified that he did not complete his examination that day, but he believed that Mike Rearick
would finish it. Tr. 125. When asked, he opined that in the event of an emergency, it would take
less than one-half a minute for a “real excited” guy to get out of the tunnel. Tr. 116.
Testimony of Plant Operator David Popich
David Popich also testified for the Respondent. Popich has five or six years in the mining industry, and was last employed by Rosebud for over a year. Tr. 126. He has worked underground running equipment, including a scoop and a roof bolter, outside as a utility man and heavy equipment operator, and currently is a plant operator. Tr. 126-127. His certifications include gas cards, EMT, and Supervisor. Tr. 127. His experience includes above ground pre-shift examinations for over two years. Tr. 127, 128.
On January 10, 11, and 12, Popich worked on the afternoon shift with two contract workers on the bottom floor of the cleaning plant changing out pipes in the sumps. Tr. 129, 130. He also testified that, although not assigned to conduct an examination of the second shift, he did examine the bottom floor on those days to make sure everything would be in safe working condition. Tr. 130-133. He further testified that since he did not conduct an examination of the entire plant, and the plant was not producing, he did not write his examinations in the book. Tr. 131-134. After the citation was issued, Stan White told him he had to start writing in the book that he did an examination. Tr. 134.
Discussion and Analysis
Citation No. 7061996
Contentions
The Respondent’s primary argument is that the citation was issued prematurely. It is not denied that Smiley did not complete the required examinations at the time the citation was issued, but it is argued that Smiley had until the end of the work day, 2:59 p.m., if his shift ended at 3:00 p.m., to complete the examination. Further, since the examination would require approximately one and a half hours, and Smiley typically continues his exams throughout the day, he had ample time to complete the examination prior to the end of his shift.
The Respondent also argues in the alternative that the citation was improperly issued because there was no hazardous material in the tunnel, no need to record the presence of the material, and therefore no violation. The Respondent argues that the belt was not a possible ignition source, and supports this position through testimony by Deel and Smiley that neither of them had ever personally witnessed a fire caused by a belt. Furthermore, Respondent looks to Mach Mining, LLC, where the Judge found under a different set of conditions that “it was unlikely that the belt would generate enough heat to ignite the accumulation.” 33 FMSHRC 763, 773 (ALJ) (March 2011). Similarly relying on Mach Mining, Respondent argues that without evidence of defect, the electrical pump in the sump and the electric shakers were not possible ignition sources.
Beyond lacking an ignition source, Respondent argues that the accumulation was not a likely fuel source because it was located near the back of the tunnel, and there was no evidence of methane or dust in suspension present. Respondent argues that the S&S designation was in error because the tunnel was only 80 feet long, and could be exited in a matter of seconds, and since examiners and service people entered the tunnel infrequently, the likelihood of injury in an explosion was remote.
The Secretary argues that there was an extensive and obvious accumulation of dry coal and coal dust in contact with the energized belt in the draw-off tunnel that would have been impossible to miss, even while taking a methane reading. The Secretary argues that Smiley’s use of the term “everything,” when he wrote in the exam book that he “[f]ound everything in good working condition,” indicates that he had completed his entire daily examinations, meaning that the citation was not issued prematurely. Further, the Secretary argues that Smiley’s admission that he did not know how what he was doing indicates that there would have been no proper examination on that day, and that it was unlikely that one was conducted on previous days. The Secretary states that the accumulation of combustible material combined with several possible ignition sources, including contact with the roller and belt, constituted a confluence of factors.
The Secretary further argues that there should be a presumption of S&S in instances where the operator fails to conduct a daily examination. The prophylactic nature of such examinations, the Secretary asserts, places the requirement in a unique category that does not fit well within the Mathies framework. The Secretary reasons that the purpose of the daily examinations is to find possible hazards, so the S&S analysis should focus on the mine at the time the examination did not occur, rather than by the results.
Findings of Fact and Conclusions
How Smiley could have missed the easily visible accumulations that were under and in the tail roller, and under the bottom belt of the conveyor at such a height that they were lifting up the belt, if in fact he did conduct an examination of the draw-off tunnel on January 13 as he testified, Tr. 114-124, defies credible explanation. Smiley’s admission to Deel that he began as an examiner on Monday of that week, but was not sure what he was doing, rings hollow in light of his statement to Deel (and testimony at hearing), that he had conducted examinations only a year and a half before. Tr. 42, 44, 45; Ex. G-2, pp. 6, 7. Smiley had also made and signed entries on the 11th and 12th which were essentially the same as the entry on the 13th, that everything was in good working condition. Ex. G-1, G-8, Stip. #12. Deel reported in his testimony he had issued four citations for accumulations on the 11th and 12th. Tr. 41, 48-50, 57. The fact that citations for hazards were issued on days when Smiley recorded no hazards in the book renders his testimony of a complete examination of the tunnel and the plant on Thursday the 13th less than credible. Tr. 123, 124.
Deel observed that the accumulations spilled out into the walkway beside the conveyor,
and it was necessary to walk around them to reach the bottom of the tunnel. Tr. 29, 30, 32; Ex.
G-3. Yet only minutes before, Smiley had purportedly walked down the tunnel to the bottom,
Tr. 119, but testified that he did not notice any hazardous conditions. Tr. 122, 124. I am unable
to accord credibility to the testimony of Smiley in the face of the quick discovery of the
hazardous accumulations by the Inspector. Ex. G-2, pp. 4, 5, C/13. Further, Smiley’s testimony
was inconsistent; he said he did examine the tunnel or catwalk, and that he walked through the
plant, Tr. 123, 124, and told Deel a full examination had been done, Tr. 41, 44, 97, 98.
However, he also testified that he did not “complete” the examination. Tr. 125.
Respondent contends, in part, that there was no obvious hazard to be recorded in the examination book. But the presence of the accumulations and the hazard presented is well established and will be discussed further below with respect to the order issued minutes later. Further, Respondent’s attempt to justify an inadequate examination by arguing, after the fact, that it was only a partial examination to be completed later that day, must fail. While it is true that more than one examination per shift may be conducted, the standard also specifies that an examination must be of “each active working area and each active surface installation” § 77.1713(a). The examination book entry form is consistent with this requirement and reads in pertinent part as follows:
I have personally examined the Dutch Run Prep Plant open pit mine located in Plum Creek Township Armstrong County under Mining Permit No. 3608138…
Ex. G-1, G-8 (emphasis indicates handwritten entries).
When the form is filled out by the examiner, with no notation indicating that only a particular area was examined, it is essentially his certification that the entire facility where men were working had been examined. The standard further requires that any hazardous condition must be reported and corrected. 30 C.F.R. § 77.1713(a). The accumulations in the tunnel on the 13th, and the accumulations cited on the 11th and 12th, were not recorded in the examination book. Ex. G-1, G-8. The credible evidence clearly shows the examination on January 13, 2011, recorded at 0540 hours failed to disclose a hazardous condition and was inadequate. Ex. G-2, pp. 5, C/13. Accordingly, 104(d)(1) Citation #7061996 was validly issued.
The Respondent’s reliance on Mach Mining for the propositions that the belt rubbing against the accumulations was unlikely to create enough heat to ignite them, and that without proof of defect in the electrical equipment they were not possible ignition sources, is inapposite. The facts involved in Mach Mining were significantly different, making the case easily distinguishable. In Mach Mining, the Judge found that the accumulations in question were not present during the pre-shift examination, and collected quickly. 33 FMSHRC 763, 773 (ALJ) (March 2011). Furthermore, the Judge found that the material was wet and the rollers were no longer in use. Id. These conditions are significantly different than the ones present in the instant case. The conditions at Dutch Run appear more like those described in AMAX Coal Co., where the Commission found an accumulation violation to be S&S when a motor belt was running on packed dry coal. 19 FMSHRC 846 (May 1997).
The citation was correctly designated as S&S. A violation will be found to be S&S under 104(d)(1) if “there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Secretary v. Mathies Coal Co., 6 FMSHRC 1, 3 (Jan. 1984). To establish this, the Secretary must show:
(1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard—that is, a measure of danger to safety—contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.
Id. at 3-4. see also, Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995);"Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-4 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). The evaluation is made in terms of “continued normal mining operations.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984).
The conveyor in the draw-off tunnel had been energized at 0610 hours. Tr. 52. Deel observed the bottom belt lifted up by the accumulation and rubbing the fine coal and coal dust, as well as the tail roller running in the built up spillage with coal ground down to a powdery consistency. Tr. 29, 30. Ex. G-2, p. 4. There were various friction sources, including the roller, the roller bearings, and the moving belt, which were all in direct contact with the coal dust and powder. Tr. 29-30. In addition, there was present other electrical equipment in the tunnel as well, including a sump pump and electric shakers. Tr. 39-40. Deel testified that these conditions created the chance of fire or explosion. Tr. 53-54; Ex. G-2, p. C/7. Elements one and two of the Mathies criteria are satisfied. There was a violation of the applicable safety standard—a demonstrably inadequate examination—and a measure of danger to safety contributed to by the violation—the failure to find and report an obvious hazard and therefore fail to give notice to others, including management.
When analyzing the third element of the Mathies test, the Commission has provided the following guidance:
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. 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.
Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997) (citations omitted).
According to this analysis, elements three and four are established here since other miners and management would not be aware of a condition that could result in a fire, leading to a reasonable likelihood of an injury and a reasonable likelihood that the injury would be of a reasonably serious nature. As noted by Deel in his testimony, a fire would be accompanied by toxic smoke and fumes, which would result in attendant respiratory damage, and heat, flames and burns from an individual’s proximity to fire. Tr. 54, 55. These types of injuries could also be fatal to the unwary miner in the area. Ex. G-2, p. C/7.
In making this determination, the undersigned is not unmindful that no methane was shown to be present at the time. Ex. G-1. Yet there was the confluence of factors, combustible material and ignition sources, to support the S&S designation. See Enlow Fork Mining Co., 19 FMSHRC 5; see also Secretary of Labor, MSHA v. Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1988). The Inspector also correctly found high negligence, because the dangerous accumulations should have been discovered and reported, and there were no mitigating circumstances. 30 C.F.R. § 100.3(d).
The citation was correctly found to be UWF. 30 U.S.C. § 814(d). Unwarrantable failure is “aggravated conduct, constituting more than ordinary negligence, by a mine operator in relation to a violation of the Act.” Emery Mining, 9 FMSHRC 1997, 2004 (Dec. 1987). Based on the legislative histories of the Coal Act and the Mine Act and on Commission precedent, the Commission has characterized unwarrantable failure as conduct marked by,
“‘indifference,’ …‘lack of due diligence,’ and “lack of reasonable care’” Emery Mining, 9 FMSHRC at 2003.
In the instant case, there was at least an indifference to the clear meaning of the regulatory standard as well as a serious lack of reasonable care in the conduct of the required examination. For three days in a row, citations were issued for accumulations, but for each day the examination was recorded as everything being in good working condition at the plant, with no indication of any hazard present until after the instant citation was issued. Ex. G-1, G-8. This inadequate examination was part and parcel of a series of violations of the mandatory examination requirement over an extended period of time. The lack of recorded information about hazardous conditions that would be obvious to any experienced miner posed a high degree of danger to persons entering the facility unaware that such conditions were present. No effort was made over at least the three-day period, including January 13th, to insure full and complete examinations were conducted and recorded. This failure was, and became, obvious through the lack of reporting of hazards in the examination book, and mine management should have been aware of the situation because of the issuance of citations for conditions not recorded in the book on the two days prior to the issuance of the instant citation. These factors are sufficient to establish aggravated conduct constituting more than ordinary negligence. I find that the UWF designation was proper.
Therefore, I find Citation #7061996 to be correct as issued, and it is affirmed.
Order No. 7061997
Contentions
Respondent does not deny that accumulations were present, which violated 30 C.F.R. § 77.1104. Rather Respondent argues that the violation was not S&S and that it was not the result of an unwarrantable failure. Respondent argues that there was no confluence of factors such that there was a reasonable likelihood that the hazard would result in an injury of a reasonably serious nature. Respondent asserts that there was no ignition source present. Respondent concedes that the accumulation of coal may have been touching the belt, but argues that neither the belt nor the rollers were hot, making ignition unlikely. Citing Mach Mining, and Deel’s and Smiley’s testimonies that they had never personally witnessed a fire caused by a belt running over coal, Respondent argues that such an ignition is highly unlikely. Respondent adds that without methane or dust in suspension present, it was unlikely that an explosion would occur.
If a fire or explosion were to occur, Respondent contends that it would be unlikely that anyone would be in the tunnel because only service people and examiners entered the tunnel. Additionally, the accumulations were in the back of the tunnel and Respondent notes that the tunnel was not 200-300 feet long as the inspector believed when he issued the citation, but approximately 80 feet long.
Respondent argues that the presence of the coal accumulations was not the result of high negligence or Rosebud’s unwarrantable failure because the record shows that the accumulations were present for only one production shift, it was not extensive, and the operator was not on notice that greater efforts were needed to comply. As a mitigating factor, Respondent notes that Smiley was conducting a methane examination, which required him to hold the methane detector above his head and monitor it as he walked through the tunnel. The implication is that Smiley would have been looking up, and therefore would not have been able to view the accumulations that were on the ground.
The Secretary argues that there was an extensive and obvious accumulation of dry coal, loose coal, and coal dust in contact with the energized belt and tail roller in the draw-off tunnel. In addition to the possibility of ignition from the contact between the coal and the tail roller, the pump in the sump and shaker motors constituted additional possible ignition sources. The Secretary notes that the accumulations existed for at least one shift, but possibly up to three days, and that they were so large that they would have been visible even to a casual observer. These conditions, the Secretary contends, provided the necessary confluence of factors—including oxygen, fuel, and ignition necessary for an explosion or fire—to sustain a designation of S&S.
The Secretary argues that Rosebud displayed high negligence because the operator knew or should have known about the accumulations, and there were no mitigating circumstances present. Furthermore, the Secretary argues that the accumulations were the result of an unwarrantable failure on the part of Rosebud, and that several aggravating factors were present. These included the length of time that the accumulations existed (between one and three days); the extent of the accumulations (approximately 40-50 inches wide by 36 inches long by 16 inches deep of fine loose dry coal); the operator’s notice (by a citation for violation of § 77.1104 for accumulations two days prior); the operator’s lack of effort to abate the condition prior to the citation; the obvious and dangerous nature of the accumulations (they were spilling out into the walkway); the operator’s knowledge (the accumulations were present and apparent when Smiley conducted his examination of the tunnel); and the operator’s failure to supervise its inspectors.
Findings of Fact and Conclusions
It appears that Smiley’s main goal on the morning of January 13, 2011 was to measure for methane in the draw-off tunnel so he could start the tunnel conveyor belt. Tr. 114, 121, Ex. G-2, p. 7. In his testimony he described taking the methane reading by walking down to the bottom of the tunnel and holding the meter as high as he could reach. Tr. 119. He also testified that he looked around in the tunnel trying to observe anything that would be a hazard, but he did not notice a hazard and the conditions looked pretty good to him. Tr. 114, 117, 122, 124.
In discussing Smiley’s inadequate examination, above, in the context of this related citation, the undersigned was unable to accord credibility to his testimony. Here, there are equally incredible aspects of Smiley’s testimony. It is credible that he went into the tunnel for a methane check so the belt could be started, but not credible that he looked around the tunnel and did not see the clearly visible, obviously extensive accumulations that had built up under the bottom conveyor belt and into the tail roller. Ex. G-2, p. 4. The accumulations had even spilled out beyond the width of the conveyor, and in order to reach the bottom of the tunnel, Smiley would have to have walked around the material spilled out into the walkway. Tr. 30. The accumulations Smiley missed could have been present for the two prior days that he recorded in the examination book that he performed examinations. Ex. G-8. I credit the Inspector’s observation that the accumulations could not have been missed in the tunnel that morning. Tr. 30.
Although the photographs of the scene are somewhat blocked by the annotations
superimposed by the Inspector and are not sharp, clear images, they are sufficient to visualize
the accumulations of coal under the tail roller that do appear in contact with the bottom belt, and
also appear to extend out beyond the belt structure into the walkway.
Ex. G-3, 4, 5, 6. Beyond
these general observations, I rely on Deel’s testimony, notes, and the Order. This evidence
reasonably establishes that the accumulations consisted of loose and fine coal, coal dust, and
powdery dry coal ground up in the tail roller. Tr. 29, 43, 103. The accumulations measured 40
to 50 inches wide, 36 inches long, and 10 to 16 inches deep. Tr. 30. Deel testified that the
materials came up and over the bottom belt, which was running in the coal. Tr. 37, 85-87, Ex.
G-2, p. 4. He pointed out that fine coal dust could ignite, even when there is rock in it.
Tr. 91,
101. Further, Deel testified the tunnel was not wet. Tr. 84. The draw off tunnel is a confined
area. Ex G-2, p. C/7. The evidence found credible establishes an accumulation of combustible
materials under conditions that could create a fire hazard. Accordingly, the undersigned finds
that Order No. 7061997 was validly issued.
The four elements of the Mathies analytical framework are satisfied. There was a violation of a mandatory safety standard, as set forth above, and a measure of danger to safety contributed to by the violation, since the accumulations were combustible due to their consistency and lack of moisture content. In the presence of an ignition source, dry fine and powdery coal is combustible and can produce fire and even an explosion. Miners in the area would be exposed to injury. The moving belt rubbing the accumulations, and the moving tail roller actually in and grinding up the accumulations, provided the necessary friction that could have served as an ignition source. There was a confluence of factors constituting a serious risk to miners. Enlow Fork Mining Co., 19 FMSHRC 5; see also Texasgulf, Inc., 10 FMSHRC 498. This contribution to a hazard satisfies the third element, and the fourth element is also shown since the type of injuries that could have occurred would have been of a reasonably serious nature. With flames, heat, toxic smoke and fumes, there exists the potential for burns and respiratory damage, with either type of physical injury being severe enough to result in death. Mathies Coal Co., 6 FMSHRC 1. In addition to S&S, the finding of high negligence is also correct. 30 C.F.R. §100.3(d). The operator should have known of these conditions, through an adequate daily examination, which the record indicates did not occur. Furthermore, there are no credible mitigating circumstances, such as any attempts to clean up the accumulations prior to the order being issued. Ex. G-2, pp. C/5, C/6, C/13.
I also find conduct constituting more than ordinary negligence. Although Inspector Deel was unable to conclude that the accumulations had been present for more than a day, the record reflects he issued citations for three successive days for accumulations that had not been reported and corrected. While this raises the possibility the accumulations were in the tunnel beyond the prior day shift on the 12th, it is enough for this analysis that they were not cleaned up prior to the shift beginning on the morning of January 13, 2011. The accumulations were certainly obvious and extensive, since they had built up to a height of 16 inches and were into the bottom belt and tail roller. This condition posed a high degree of danger of friction igniting the coal dust and powdered coal. Tr. 76. Electrical ignition sources were also in the environment. This established a confluence of factors constituting a serious risk to miners, as set forth above.
In responding to the contention that Respondent was not on notice more effort was required for compliance with the safety standard, under the circumstances presented here this factor in the analysis is considered less important than those discussed above. IO Coal Company, 31 FMSHRC at 1351. That said, accumulations cited the previous two days should have alerted management of an ongoing failure to clean up spilled material, and actual notice as to these particular accumulations was not necessary. Further, a reasonably prudent person familiar with the mining industry would recognize that such accumulations are a well known hazard to the safety of miners and prohibited by the standard cited. It follows that the violation was properly designated as UWF. Emery Mining, 9 FMSHRC 1997.
I find Order #7061997 to be properly issued as written, and it is affirmed.
Order No. 8008603
Contentions
Respondent argues that Popich conducted proper examinations on January 10, 11, and 12, 2011 of the first floor of the plant as required by § 77.1713(a). Respondent also argues that Popich was a supervisor and a certified examiner, fully authorized to conduct examinations. Respondent contends that the regulation only required an inspection where people work and travel, and since the plant was not producing, the regulation only covered the first floor of the plant. Respondent further argues that the inspector reached the conclusion on January 13th that examinations had not been performed on the three preceding days based on conditions in the yard and inclined walkway, both areas that did not require inspection. The areas where inspections were conducted, the Respondent asserts, did not contain any hazards.
The Secretary argues that the plant was running an afternoon shift and had miners working, cutting, torching, welding, and replacing pipes in the plant. The Secretary argues that Popich did not conduct a proper examination as required by the regulations because he did not record a methane reading, even though torches were in use, and he did not examine the belts. The Secretary argues that the violation is S&S because Rosebud management failed to designate a certified examiner for three days; that by not conducting examinations, miners were exposed to potential hazards that would have been discovered by examinations; that oncoming shifts rely on examination books to prepare for hazards, and unrecorded hazards would reasonably result in injury; and the miners were exposed to potential shocks or burns, crushing injuries, loss of extremities or amputation, smoke inhalation, burns, contusions, abrasions, broken bones, strains, sprains, and other serious injuries. The Secretary further argues that in addition to the specific hazards in this case, there should be a presumption of S&S for failing to conduct proper daily examinations.
The Secretary further argues that Rosebud’s failure to designate someone to conduct the required examinations for over three days displayed high negligence. The Secretary focuses on the prophylactic nature of examinations and the length of time the operator failed to perform them or designate someone to perform them. Further, the Secretary argues that if Popich was the designated examiner, then he was an agent of the operator and that he committed an unwarrantable failure in not conducting the examinations, which should be imputed to Rosebud.
Findings of Fact and Conclusions
There were miners working in the plant each afternoon shift from Monday, January 10, 2011, through Thursday, January 13, 2011, yet no daily examinations were recorded in the official book for that shift on Monday, Tuesday, or Wednesday. Stip. # 18, 19. After the order was issued, a person was designated to conduct the required examination for the afternoon shift. Ex. G-2, G-10. Plant Operator David Popich was working in the cleaning plant on the afternoon shift each of those days. Tr. 129, 130. He has over two years experience as an above ground shift examiner. Tr. 127, 128. At that time he was not assigned to conduct examinations, and did not write in the official book. But he testified that he did examine the bottom floor of the plant each day to make sure everything would be in safe working condition. Tr. 130-134.
Respondent’s assertion that the plant was not processing coal on the days at issue, when no examinations meeting the safety standard were conducted, is irrelevant. Nowhere in 30 C.F.R. §77.1713 is there an exception for periods when a plant is not actually producing products. Inspector Deel noted that here were construction workers throughout the plant on the 13th, and other workers would enter on the next shift. Further, Deel had discovered and cited various conditions that had been present since the day before, which, had an examination been conducted, could have been corrected. Tr. 63-66, Ex. G-2, pp. 13, C/56-C/59. It follows that the informal, uncommunicated look around by Popich cannot satisfy the standard.
The matter of an inadequate examination has been discussed above, and here there was a complete failure to meet the mandatory safety standard for days before the instant order was issued. Accordingly, the undersigned finds that Order No. 8008603 was validly issued. Ex. G-10.
The designation of S&S was found correct for the inadequate examination the morning of January 13, 2011, as discussed above, and it is even more applicable here where there was a failure to conduct, properly record, and complete official examinations for several days. There was a violation of § 77.1713, a safety hazard contributed to by the violation, a reasonable likelihood that the hazard contributed to would result in injury and a reasonable likelihood that the injury would be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1. Each day, men entered the work area unaware of hazards, despite the fact that a number of citations had been issued during the week. On this record, the only thing that alerted mine management and personnel to hazards was the presence of the MSHA Inspector and his observations and the citations and orders he issued. The miners were not alerted in advance, and were unnecessarily exposed to danger. I also find as proper the determination that an injury to an unwary miner could reasonably be expected to result in lost workdays or restricted duty. Because I find S&S present in this instance, it is not necessary for me to address the Secretary’s argument that there should exist a presumption of S&S for failure to perform adequate examinations.
Reckless Disregard is defined as operator conduct, which exhibits the absence of the slightest degree of care. 30 C.F.R. § 100.3(d). This criterion may apply where no required examination was conducted for days. Mine managers told Inspector Deel that they simply forgot to assign someone to do the daily examination on the afternoon shift. Tr. 61, 62, 70, Ex. G-2, pp. 13, C/55, C/56. In the opinion of the undersigned, daily examinations are much too important to the health and safety of miners to be overlooked. Yet, in this instance, when considering whether there was reckless disregard, I will accept the excuse offered mainly because the afternoon shift had so recently come into effect. I do affirm the finding of high negligence, since management should have known of the mandatory requirement. Indeed, examinations, however inadequate, were being recorded in the book for the early shift.
While stopping short of finding reckless disregard, I do find that there was a serious lack of reasonable care in “overlooking” the mandatory examination of the afternoon shift. The same aggravating factors that established UWF in the inadequate examination citation discussed above are also shown in this order, except that the violative condition lasted even longer and hence posed a higher degree of danger to miners. It was certainly obvious by the lack of recordings in the examination book regarding the afternoon shift. A reasonably prudent person familiar with the mining industry would know that examinations are mandatory. Nothing was done until Deel called the violation to the attention of management. There are no mitigating circumstances; this was a complete failure, and the standard of aggravated conduct constituting more than ordinary negligence has been met.
I find that Order No. 8008603 was properly issued as written, and it is affirmed.
Docket No. PENN 2011-415
Three months later, on April 11, 2011 at 1115 hours MSHA Inspector Kevin Deel issued 104(d)(2) Order No. 8008680 to Assistant Superintendent Kevin Kijowski citing 30 C.F.R. § 77.504 for the condition or practice as follows:
The power connection for the Lincoln LN25 Wire Feed Welder is not mechanically and electrically efficient and is not made with suitable conductors on the third floor of the Dutch Run Coal Preparation Plant. A welder cable from a Lincoln Arc 1115 480 volt Welder is clamped on to the power cable of the wire fed welder using the welding rod holder clamp to supply power to the wire fed welder. There are bare power leads exposed. The power on both welders is energized. By not making a mechanically and electrically efficient power connection the operator has engaged in aggravated conduct constituting more than ordinary negligence. This is an unwarrantable failure to comply with a mandatory standard.
The Inspector determined that injury or illness was reasonably likely and could reasonably be expected to be fatal. The order was designated S&S, affecting one person, with high negligence. The penalty assessed was $4,000.00.
The initial action was listed as Order No. 7061997 dated January 13, 2011 involving accumulations and discussed above in Docket PENN 2011-283.
This order was terminated 15 minutes later, at 1130 hours, when the power connection between the two welders was disconnected. On April 21, 2011 the order was modified to show that injury expected was lost workdays or restricted duty, instead of fatal, because the voltage present at the bare connection was reported to be between 36 and 40 volts.
The safety standard cited is as follows:
Electrical connections or splices; suitability.
Electrical connections or splices in electric conductors shall be mechanically and electrically efficient, and suitable connectors shall be used. All electrical connections or splices in insulated wire shall be reinsulated at least to the same degree of protection as the remainder of the wire.
30 C.F.R § 77.504.
On the date the above order was modified, April 21, 2011, at 1100 hours Inspector Deel also issued 104(d)(2) Order No. 8008631 to Superintendent Stan White, citing 30 C.F.R. § 77.215(h), for the condition or practice as follows:
The operator is not compacting the refuse material at the Dutch Run Coal Preparation Plant Refuse site No. 00384-02, in 2 foot thick layers. The operator is hauling more refuse material to the refuse site than can be spread and compacted with the equipment and man power available. The operator is spreading the refuse material, without compacting the material to, make room to dump more refuse material.
The operator is aware that the refuse material is being spread without being compacted in 2 foot layers.
By taking no action to correct this condition the operator has engaged in aggravated conduct constituting more than ordinary negligence.
This is an unwarrantable failure to comply with a mandatory standard.
At the time, the Inspector determined that injury or illness was reasonably likely, and could reasonably be expected to be fatal. The order was designated S&S, the number of persons affected was one, with high negligence.
The order was later modified to reduce injury or illness to unlikely, because the hazard would not occur until future layers of refuse were added. The injury expected was reduced to permanently disabling because the most likely hazard would be toxic smoke and fumes from fire that could cause lung and respiratory injuries. Since injury or illness was modified to unlikely, the order was also modified to a non S&S citation.
On June 8, 2011, the citation was terminated when stored filter cake material was removed, the existing refuse was compacted, and all new refuse was being compacted as it was brought to the refuse site. The penalty assessed was $4,000.00.
The standard cited, § 77.215, is as follows:
Refuse piles; construction requirements.
(a) Refuse deposited on a pile shall be spread in layers and compacted in such a manner so as to minimize the flow of air through the pile.
(b) Refuse shall not be deposited on a burning pile except for the purpose of controlling or extinguishing a fire.
(c) Clay or other sealants shall be used to seal the surface of any refuse pile in which a spontaneous ignition has occurred.
(d) Surface seals shall be kept intact and protected from erosion by drainage facilities.
(e) Refuse piles shall not be constructed so as to impede drainage or impound water.
(f) Refuse piles shall be constructed in such a manner as to prevent accidental sliding and shifting of materials.
(g) No extraneous combustible material shall be deposited on refuse piles.
(h) After October 31, 1975 new refuse piles and additions to existing refuse piles, shall be constructed in compacted layers not exceeding 2 feet in thickness and shall not have any slope exceeding 2 horizontal to 1 vertical (approximately 27°) except that the District Manager may approve construction of a refuse pile in compacted layers exceeding 2 feet in thickness and with slopes exceeding 27° where engineering data substantiates that a minimum safety factor of 1.5 for the refuse pile will be attained.
(i) Foundations for new refuse piles and additions to existing refuse piles shall be cleared of all vegetation and undesirable material that according to current, prudent engineering practices would adversely affect the stability of the refuse pile.
(j) All fires in refuse piles shall be extinguished, and the method used shall be in accordance with a plan approved by the District Manager. The plan shall contain as a minimum, provisions to ensure that only those persons authorized by the operator, and who have an understanding of the procedure to be used, shall be involved in the extinguishing operation.
Testimony of Inspector Kevin Deel
On 4/11/2011 Deel was opening an inspection at Dutch Run in the second half of the inspection year. Tr. 143, 144. After inspecting a new construction site, he went to the prep plant to meet with assistant superintendent, Kevin Kijowski, in order to discuss the inspection and to look at the record books. Tr. 146, 147. While performing his inspection on the third floor, Deel came upon a cart where a welding cable from a Lincoln arc welder was connected to a short power cable of a wire fed welder by an uninsulated clamp onto a three inch section of uninsulated copper. Tr. 147, 148. The power on both welders was on. Tr. 149. He described the photograph he took as showing the bare copper sticking out of a black power lead and the clamp as part of a live welder cable. Tr. 150. The cart was in an area where men were traveling. Tr. 152. He determined that Kevin Kijowski was the electrician who had made the connection, and that this was his normal way of doing it since he had done it this way for years. Tr. 154, 156. This was a bare power connection that could energize the metal cart, a metal gas cylinder, and the metal floor. Tr. 157, 158. Deel witnessed men walking past the cart, and determined that they were put at risk. Tr. 157. He observed one man walk right past the cart, within one or two feet of it. Tr. 206, 207. It was later determined that there was only 32 volts in the cable from the arc welder. Tr. 153. In rebuttal testimony, Deel stated that in the four years of inspections at Dutch Run, he had never seen a bare uninsulated connection on that welder. Tr. 247.
Deel returned to Dutch Run on April 21, 2011, and at the refuse site he observed no compaction being done. Tr. 163. The dozer operator was pushing five-to-six foot layers short distances in order to clear the way for more refuse to be brought to the site. Tr. 164. The dozer in use was a D7, and another dozer, not running, was parked off to the side. Tr. 248. The site measured about 280 feet wide by 600 feet in length. Tr. 164. The refuse was being pushed to the side without compacting it because the plant was running three shifts a day, five or six days a week, and three to four times the amount of material was being brought in as in previous years. Tr. 167, 168. The dozer operator, Ken Hoffman, told Deel that he had known for a month he would not be able to keep up with the amount of material coming in, that he had told Stan White he did not have the equipment or manpower needed, and that White told him to spread the material without compacting. Tr. 169, 185-190.
Filter cake was also being stored on the site, to be run through the cleaning plant. Tr. 167. Filter cake is a clay, similar to black mud, whereas refuse is in larger particles the size of gravel or larger rock. Tr. 180, 181, 195, 196. Deel took a series of photographs that day and explained that they showed an area that had been compacted, very flat with dozer tracks, and also with a roadway leading to the filter cake storage dump. The compacted area had two mounds of uncompacted refuse and, Deel observed very deep ruts caused by dozer tracks. There was also a two to three acre area of refuse material in five to six foot layers partially surrounding the filter cake. This material was not compacted and not level, and this was being pushed out to make room for more refuse. Tr. 165-181. Deel further testified that his concern was for the future: should compacted layers be added on top of uncompacted material, there would be a danger of friction and instability. Tr. 164, 182, 183, 191, 192. He spoke with company personnel that day, and there was an agreement that they did not have the manpower or equipment to properly handle the amount of material. Deel decided that the 104(d) order would be issued to stop material coming to the site until there was a plan to remedy the situation. Tr. 188. In rebuttal testimony, he was of the opinion that coarse refuse material could be compacted regardless of weather conditions with enough manpower and equipment. Tr. 249.
Testimony of Assistant Supervisor Kevin Kijowski
Kijowski has worked for Rosebud for over a year, but also at Dutch Run under the
former owner intermittently for fifteen years. Tr. 210. He has a total of approximately twenty
five years experience in the mining industry. Tr. 210. His jobs have included mechanical,
welding and fabricating, and he has all three electrical certifications and a gas card. Tr. 211. On
April 11, 2011, he was an Assistant Supervisor at Dutch Run. Tr. 211. Kijowski made the
connection on the welder that was cited that day, which he considered to be suitable since it was
only an extension of a welding rod. Tr. 212. He was emphatic that the connection had been seen
by several inspectors over the last five years and nobody ever commented on it, including
Inspector Deel. Tr. 213, 214, 216. He did not consider the crimped connection to be hazardous
since it had very little voltage and it was not fatal. Tr. 214, 215. He pointed out that no current
runs through the connection until you strike an arc.
Tr. 224. He admitted that the standard
requires the connection to be insulated, and that the connection could have been insulated with a
coupling boot. Tr. 220.
Testimony of Ken Hoffman
Hoffman had been employed by Rosebud since February 2011, and had forty five years in the mining industry working for four companies as a dozer operator. Tr. 227. Before Rosebud took over, there were 3 or 4 shifts a week, while after the transfer there were about 15 shifts a week. Tr. 234.
On April 21, 2011, Hoffman was maintaining the Dutch Run refuse site, where he had worked for fifteen years. Tr. 230. The weather had been nasty for over six months, with rain, freezing and thawing. Tr. 233. Due to the freeze and thaw cycles, the increased amount of material coming in started to become an issue. The material was being pushed to the side and stored in piles, to be brought up later, spread and compacted. Tr. 230, 232, 233. Hoffman testified that he spoke with Stan White about the conditions, and in the following days two rock trucks, two D7 dozers and a compactor were added to the D5 dozer at the site. Tr. 233. On April 21st, Hoffman was operating one of the newly obtained, larger D7 dozers. The other additional equipment was added after the order was issued. Tr. 235, 236. With the added equipment the issue of the amount of material was resolved in two and a half weeks. Tr. 233.
Testimony of James J. Szalankiewicz
Szalankiewicz is a self-employed consulting engineer who has Associates degrees in Mining Technology and in Surveying Technology. Tr. 238. He is a Registered Professional Engineer and a Professional Land Surveyor in the Commonwealth of Pennsylvania. Tr. 238, 239. He has over 40 years experience in the mining industry as a mine surveyor, mine planning engineer, and co-owner, operator and chief engineer of numerous mines in two Pennsylvania counties. Tr. 238-239. In 2007 he sold his interest in that company and started his small consulting firm Tr. 239.
Szalankiewicz designed the original refuse pile at Dutch Run. Tr. 239, 240. On April 21, 2011, he was called to the site by a Rosebud employee. Tr. 240, 241. At the site he observed very severe wet weather conditions. Tr. 241. On the compacted areas, there was a large amount of filter cake, and there was a large area of uncompacted material being stored to be redistributed and compacted as required when the weather was proper. Tr. 241. He pointed out that you cannot compact anything in wet, muddy and sloppy conditions, because the moisture content has to be correct. Tr. 241. He recalled that in the past when weather conditions were unsuitable, the material was stockpiled on the site and then redistributed and compacted when the weather changed and the moisture decreased. Tr. 245. The site was overwhelmed because of the weather conditions. Tr. 244. He further testified that in his experience at Dutch Run there has never been a time when material was compacted in more than two-foot layers. Tr. 243. He also stated that, considering the weather conditions on April 21, 2011, additional machines would not have lessened the extent of the uncompacted material at the site. Tr. 243-244.
Order No. 8008680
Contentions
The Respondent argues that the citation was not properly issued because it was not on notice that this practice would be cited as a safety hazard. The Respondent asserts that Kijowski, who has 31 years of mine experience and is presumably a reasonably prudent person, was not aware that the connection violated § 77.504. Furthermore, Kijowski had been using the same connection for approximately five years, during which time MSHA had conducted ten complete inspections. Respondent asserts that during this time, “this connection had been observed and accepted by several MSHA inspectors.” Resp. Brief 10. Without providing advance notice of how MSHA was interpreting its regulations, it could not assess a civil penalty for apparent violations.
The Respondent also argues that it did not violate § 77.504 because the connection employed was suitable. The Respondent contends that the inspector conflated the various parts of the regulation, and that there is no requirement that the connection be insulated. All that is required is that the connection be “mechanically and electrically efficient.” 30 C.F.R. § 77.504.
Respondent argues that if there was a violation, it was not S&S because there was no reasonable likelihood that the cited condition would result in a serious injury. The Respondent notes that the potential electrical current in the uninsulated connection was between 12 and 30 volts, that it was located on the third floor (of six) of the plant, and that there was generally only one person present in the plant at any time. Furthermore, anyone present would have been accompanied by a certified person who would have proper training such that risk of shock would be minimal. The Respondent argues that this scenario did not present the appropriate confluence of factors to find S&S.
Furthermore, the Respondent argues that, that if there was a violation it was not due to high negligence or unwarrantable failure. Respondent argues that the condition never posed a high degree of danger and it was abated in a timely manner. Respondent asserts that Kijowski’s firm belief in the appropriateness of the connection should be counted as a mitigating factor.
The Secretary argues that the citation was properly issued because the plain language of § 77.504 requires that electrical connections in insulated wire be re-insulated to the same degree as the wire. In this instance there was a 3-inch uninsulated piece of copper conductor exposed, which should have been covered by a coupling boot. The Secretary also argues that the violation was S&S because the voltage running through the connection would lead to electrical shock if touched. The Secretary asserts that it was reasonably likely that such electrical shock would occur and that it would result in injury because the uninsulated condition was located in an area where miners frequently work and travel, in a plant with wet conditions. Furthermore, the Secretary argues that the cart could have become energized, which would have sent electricity to the metal floor or the compressed air cylinder, all of which would have led to injury to a miner, even if the miner was trained. Lastly, the Secretary argues that the possible electric shock could have resulted in burns or death, making it of a reasonably serious nature.
The Secretary contends that the violation was due to high negligence and unwarrantable failure. The Secretary cites the length of time that the uninsulated connection was used (two to three hours); the extent of the violation in that it was reasonably likely to energize the cart, cylinder, and floor; that the operator was on notice because the regulation’s meaning was clear; that there were no attempts to abate the condition; that the violation was obvious and known to the operator; and that Kijowski should be held to a higher standard of care because he was a supervisor.
Findings of Fact and Conclusions
This order was modified on April 21, 2011 to reduce the expected injury from fatal to lost workdays or restricted duty. Ex. G-13, p.2. As will be discussed below, I find that this modification was inadequate; information available to MSHA after the order was issued shows that the gravity was overstated.
The safety standard states:
Electrical connections or splices in electric conductors shall be mechanically and electrically efficient, and suitable connectors shall be used. All electrical connections or splices in insulated wire shall be reinsulated at least to the same degree of protection as the remainder of the wire.
30 C.F.R. § 77.504.
This standard concerns the suitability of electrical connections or splices. The first
sentence requires that suitable connectors be used that are mechanically and electrically
efficient. The second sentence adds that connections or splices in insulated wires must also be
insulated, “reinsulated”, to afford the same degree of protection provided by the insulated wires
being connected together. Respondent contends, in effect, that the standard applies only to the
wire that is already insulated. But the plain meaning of the two sentences, read together and as
pertinent here, is that the entire course of an electrical lead, including any splice or connection
anywhere in that lead, must be properly insulated. Falkirk Mining Co., 19 FMSHRC 149 (Jan.
13, 1997) (ALJ). Simply put, this means no bare wire splices or bare metal connectors between
insulated wires.
Respondent’s argument leads to an absurd result, as is evident in this case. The safety standard seeks to protect individuals from the risk of shock. One cannot subvert the clear intent of the regulation by simply using wire that had not previously been insulated, and then claim that the regulation only concerns reinsulation.
The connection found by Inspector Deel on April 11, 2011 consisted of a metal clamp on
a three inch piece of solid copper metal protruding from the insulated boot of one of the
electrical cables.
Stip. # 20. The photograph Deel took illustrates the connection well. Ex. G-12. Assistant Superintendent and electrician Kevin Kijowski made the connection to extend a
welding rod. Stip. # 24, Tr. 212. Kijowski testified that that the same connection had been made
for the last five years and had been seen by several inspectors on various occasions. Tr. 213.
Kijowski testified that nobody, including Inspector Deel, ever commented on the connection, or
remarked that there was anything wrong with it. Tr. 213, 214, 216. He also stated that there was
very little voltage and no current running through the connection. Tr. 214, 215, 224. He did
admit that the connection could have been insulated using a coupling boot. Tr. 220. In his
testimony, Deel denied ever seeing such a connection at Dutch Run, Tr. 247, but we do not need
resolve this conflict in testimony. It is sufficient that the connection was openly visible for
many years and never cited.
The Condition or Practice written by Deel in the citation is only partially correct. Though the citation states that the issue was the mechanical and electrical efficiency of the welder, this issue was not addressed at hearing by either party. It has not been established on this record that the connection was or was not mechanically and electrically efficient. The fact that it had been used in welding operations at the plant for many years speaks to the general efficiency of the connection. Further, close expert examination of the components of the connection and their assembly would be required to determine mechanical efficiency or inefficiency, and no evidence of such examination has been submitted. In order to determine electrical efficiency, expert measurement with appropriate instruments across the connection would be required. This type of evidence is not available in this record.
The issue here is the bare connection, and whether it must be protected, or insulated. Ex. G-12. Even though the welder was a 480-volt arc welder, such high voltage was not present at the connection. The modification made on 4/21/2011 was to reduce the voltage to between 36 and 40 volts, Ex. G-13, but Deel conceded in his testimony that only 32 volts were present. Tr. 153. As Kijowski noted, there was no current flowing in the wire. Tr. 224.
However, the undersigned finds that the following parts of the Condition or Practice were recorded correctly:
The connection was not made with suitable conductors (e.g. insulated);
Bare power leads were exposed; and
Both welders were powered on. See Stip. # 23.
Had Deel limited the narrative in this manner, his credibility would not have been impacted.
Since there was some degree of shock hazard present, the safety standard was violated by the bare connection between insulated wires. Furthermore, the undersigned finds that the operator was on notice of the regulation and its meaning. The Commission has looked at a variety of factors in analyzing whether an operator had fair notice of the Secretary’s interpretation of a regulation, including “the text of the regulation, its placement in the overall regulatory scheme, its regulatory history, the consistency of the agency's enforcement, whether MSHA has published notices informing the regulated community with ‘ascertainable certainty’ of its interpretation of the standard in question, and whether the practice at issue affected safety.” Secretary v. Weirich Brothers, Inc., 28 FMSHRC 66, 68-69 (Feb. 2006) (ALJ), citing Island Creek Coal Co., 20 FMSHRC 14, 24-25 (Jan. 1998). In this instance, the regulation’s clear meaning combined with the publicly available FMSHRC decisions interpreting it in accordance with the Secretary’s current interpretation, such as Falkirk Mining Co., speak overwhelmingly to the satisfaction of the fair notice requirement. Furthermore, the regulation at issue here was safety related, and its violation produced at least some safety risk for those in the vicinity.
Having found that the mandatory safety standard was violated, and there was a measure of danger and some degree of shock hazard, which were contributed to by the violation, the first two elements of the Mathies analysis are present. Electrical shocks can result in injury, and can also be serious in nature. In this case, however, with only 32 volts and no current present at the bare connection, it has not been shown that contact would result in such a shock injury that it would be of a reasonably serious nature. Accordingly, absent satisfaction of the fourth Mathies element, I find that S&S is not established.
Inspector Deel’s assessment of high negligence was not modified, but should have been, upon learning that the true number of volts present in the lead was not 480, but rather 32. The fact that this was not dangerous high voltage presented an entirely different level of gravity, which was not adequately addressed with the single modification on April 21, 2011. At most, this was moderate negligence based on the mitigating circumstances ascertained on review. 30 C.F.R. §100.3(d).
The inconsistencies between Deel’s notes and the citation and testimony are revealing. In his notes he wrote that the area was constantly wet, Ex. G-11, p. C/5, and it was stipulated that clean up with water hoses is routine. Stip. # 27. But he did not report wet conditions in the citation, and the photograph shows no visible moisture at all. Ex. G-12. Deel also wrote that numerous contractors traveled past the connection, EX. G-11, p. 12, but in the citation listed the number of persons affected as one. Deel’s testimony regarding the level of gravity, presented at a time when he had learned only 32 volts were present at the connection, is not credible. I do largely credit the testimony of electrician Kijowski; he candidly admitted that the connection could have been insulated, but did not consider the connection to be fatally hazardous. He was correct on both counts. In the opinion of the undersigned, issuing a 104(d) (2) withdrawal order was not appropriate. However, the operator is now on notice that any use of uninsulated electrical cable connections in the future will no doubt bring increased scrutiny and potential penalties.
The connection did not pose a high degree of danger and was not extensive, being isolated to one welding cart. The bare connection was obvious, but the fact that Kijowski used this type of connection for years without a citation being written supports a finding that the operator was not on notice that more needed to be done. From this discussion, it follows that I find this violation not to be the result of UWF. In conclusion, the citation is further modified.
Order No. 8008631
Contentions
The Respondent argues that the citation for violation of § 77.215(h) was issued prematurely, as there is nothing in the record to indicate that refuse piles were in excess of the allowable limit. The Respondent also argues that the regulation does not provide a time period within which the refuse must be compacted, and Deel cited the operator for possible future violations. It is asserted that the material was being compacted in two-foot lifts, but adverse weather conditions made compaction impossible, even if additional machinery and manpower were added.
The Respondent further argues that if there was a violation, it was not S&S or due to an unwarrantable failure because the refuse remained uncompacted due to weather conditions. The wet conditions at the refuse piles made compaction impossible because it is critical for the material to have a specific range of moisture content prior to compaction.
The Secretary argues that the operator was not compacting refuse into two-foot layers, thereby creating a risk of fire or instability. The Secretary argues that the uncompacted piles were approximately 10-15 feet high and 280 feet wide by 600 feet long, which would make them well above the limit allowed by the regulations. Furthermore, the operator did not stop adding to these piles, but rather shifted them around as more refuse was brought in. The Secretary argues that though there is no specific time allowance in the regulations, MSHA has consistently imputed a reasonable amount of time for compliance in the absence of statutorily imposed time limits. In this instance, the Secretary argues that the month-long presence of uncompacted refuse was unreasonable.
Findings of Fact and Conclusions
The record reveals that Inspector Deel issued the 104(d)(2) withdrawal order based on a concern for the future, fearing that compacted material would be added on top of uncompacted material, ultimately leading to instability of the pile. Tr. 164, 182, 185, 191, 192. However, this is not what he wrote in the order at 11 am on April 21, 2011, not long after he arrived at the site. He first wrote that the operator was not compacting refuse material in 2 foot thick layers. He also wrote that the material was being spread without being compacted, and that the operator was taking no action to correct that condition. Ex. G-21. However, there is no evidence that the compacted layers at the pile exceeded the two-foot thickness limitation. Material was being spread for future compacting, and this procedure is not in apparent conflict with the regulation. Far from taking no action, the operator had already begun to remedy the situation with the addition of a larger D7 dozer. Tr. 233. On the day of the inspection it was true that more refuse was being hauled to the site than could be handled by one person.
Deel has inspected surface refuse piles for about 4 years, but he has no experience actually working on a refuse pile or as a dozer operator. Tr. 203. Ken Hoffman has operated a dozer for 45 years. Engineer James Szalankewiecz actually designed the original pile at Dutch Run and had been a co-owner, operator and Chief Engineer of numerous mines. Tr. 238, 239. Both of these witnesses have much more experience with refuse piles than Deel. The testimony and opinions of Szalankewiecz, by virtue of his education, knowledge, expertise and experience, are found to be highly credible regarding the conditions on April 21, 2011. In his several years of experience at Dutch Run, there had never been material compacted in more than two-foot layers. Tr. 243. He pointed out that material cannot be compacted in wet, muddy and sloppy conditions because the moisture content must be correct. Tr. 241. He further testified that in the past at Dutch Run, when the weather was unsuitable, material was stockpiled and then redistributed and compacted when the moisture was decreased. Tr. 245. In his opinion, additional machines or manpower would not have reduced the extent of uncompacted material on April 21, 2011, since the site was overwhelmed as a result of the weather. Tr. 244. Since I find Szalankewiecz to be a credible witness, I therefore find Deel’s testimony to the effect that compacting can take place regardless of weather conditions not credible. Tr. 249.
In his notes, Deel recorded information about his meeting with Dozer operator Hoffman, Engineer Szalankewiecz, and Plant Superintendent Stan White. Hoffman stated to Deel that more refuse was coming than could be spread in one shift. Szalankewiecz said that the site ran out of space due to the storage of filter cake, and Stan White told him that the refuse material would be compacted but, due to the weather, the filter cake had been too wet to move. Ex G-11, 4/21/2011, pp. 3, 6, 7-8.
While meeting with White and the engineers on that day, Deel also learned that they were working out a plan to remedy the situation at the site. Ex. G-11, 4/21/2011, pp. 9-10. They were going to immediately move part of the filter cake, start compacting on the outer lip of the site, bring in a second large D7 dozer, run additional shifts as needed, and start a new layer of the pile on the northern end of the site. In addition, a written plan would be submitted to MSHA. Ex. G-11, 4/21/2011, pp. 9, 10. Yet Deel wrote in the order that the operator was taking no action to correct the condition. Ex. G-21.
On April 27, 2011, only days after the citation was issued, Deel modified the order to a non-S&S citation, with injury unlikely but expected to be permanently disabling. Ex. G-21. On June 8, 2011, Deel traveled to the refuse site and found that all the filter cake and refuse had been spread and compacted, and he terminated order number 8008631. Ex. G-11, 6/8/11, p. 1.
Nothing in the inspection notes or testimony indicates that any refuse had been compacted on top of uncompacted or improperly compacted refuse. In fact, Deel testified that the material under the uncompacted material had been compacted. Tr. 250. Deel also acknowledged that there was a very flat compacted area with a roadway and dozer tracks, and he was aware that filter cake was just being stored for further processing. Tr. 172-174. In his conversations on April 21, 2011, Deel learned that: management was already aware of the situation, a large, D7 dozer had already been added to the site, filter cake would immediately be moved to facilitate existing compaction, a new layer for compacting would be started in another area, and additional shifts of personnel would be added as needed. Ex. G-11, 4/21/11, pp. 9-11; Tr. 197. Despite this information, Deel issued the withdrawal order, which in the opinion of the undersigned was inconsistent with the standard cited and hence unnecessary.
When compared to the refuse safety standard, set forth above, it becomes clear that the
order was issued in error. The standard does not limit the amount of uncompacted refuse stored
at a pile. The standard does not prohibit storing and spreading refuse, and compacting it at a
later time.
See e.g. Secretary v. Power Operating Company, 17 FMSHRC 421 (Mar. 1995)
(ALJ) (holding that an operator waiting several days to compact as the refuse dried complied
with regulation). Nothing in the standard requires compaction within a certain amount of time
after refuse arrives at a site. And, the standard does not require that compaction take place
regardless of adverse weather conditions.
Even a cursory reading reveals § 77.215(h) to be a results-oriented regulatory provision. It speaks directly to the construction of a refuse pile in compacted layers not exceeding two feet in thickness, along with certain slope requirements. The process, methods, timing and other factors that go into achieving the mandated result are not addressed. It can only be concluded in this context that the process is left up to the operator, so long as it is within a reasonable timeframe. Here, the undersigned credits Szalankewiecz’s testimony that the weather served as a hindrance to immediate compaction, Tr. 241, and therefore finds the timeframe reasonable. Deel did not discover compacted material on top of uncompacted refuse. There was no fire or burning material noted. Therefore, there is no evidence of instability or a toxic inhalation or burn injury hazard. A hazard warranting corrective action within the purview of Section 77.215(h) was not present. Alabama By-Products, 4 FMSHRC 2129 (Dec. 1982).
In the days that followed, mine management followed the plan communicated to Deel. Tr. 233. A second D7 dozer was added, for a total of three dozers on site. Rock trucks and a compaction machine were added, and manpower increased three fold with multiple shifts as needed. Tr. 197, 233, 248. The plan was successful; by June 8, 2011, all refuse was being compacted and the citation was terminated. Ex. G-11, 6/8/11, p. 1.
Although modified, the order should have been vacated because the standard cited was not violated. Given all of the facts and circumstances surrounding the Dutch Run refuse site from April 21, 2011, through June 8, 2011, the operator should have been commended for recognizing a challenging situation and taking action to insure the proper construction of the pile. Instead, the operator was cited and fined. Since I am unable to find this order to have been validly issued, it is vacated.
Civil Penalties
The principles governing the authority of Commission administrative law judges to assess civil penalties de novo for violations of the Act are well-established. Section 110(i) of the Act delegates to the Commission and its judges the authority to assess all civil penalties provided in [the] Act. 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 C.F.R. § 2700.28. The Act requires, that in assessing civil monetary penalties, the Commission [ALJ] shall consider the six statutory penalty criteria:
[1] the operator’s history of previous violations, [2] the appropriateness of such penalty to the size of the business of the operator charged, [3] whether the operator was negligent, [4] the effect of the operator’s ability to continue in business, [5] the gravity of the violation, and [6] the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation.
30 U.S.C. § 820(i).
The undersigned affirms Citation No. 7061996 as issued, and finds the inadequate examination of the Dutch Run plant to have been a violation of 30 C.F.R. § 77.1713(a). The citation was correctly designated as being S&S, resulting from high negligence and an unwarrantable failure. The citation and penalty of $5,503.00 were correct as issued and are affirmed.
The undersigned also affirms Order No. 7061997 as issued, and finds the accumulations of combustible materials, as they were, to have been a violation of 30 C.F.R. § 77.1104. The citation was correctly designated as being S&S, resulting from high negligence and an unwarrantable failure. The citation and penalty of $6,115.00 were correct as issued and are affirmed.
The undersigned also affirms Order No. 8008603 as issued and finds the lack of daily examinations for hazardous conditions to have been a violation of 30 C.F.R. § 77.1713(a). The
citation was correctly designated as being S&S, resulting from high negligence and an unwarrantable failure. The citation and penalty of $2,000.00 were correct as issued and are affirmed.
Order No. 8008680 was issued for a violation of 30 C.F.R. § 77.504 for an uninsulated connection on a welder. The violation was modified by the Inspector to non-S&S, but was designated as resulting from high negligence and an unwarrantable failure, and a penalty of $4,000.00 was assessed. For the reasons articulated above, the undersigned modifies the order to a 104(a) citation, non-S&S, non-UWF and resulting from moderate negligence. Accordingly, the penalty amount will be reduced. The Act requires, that in assessing civil monetary penalties, the Commission [ALJ] shall consider the six statutory penalty criteria outlined in §110(i).
The undersigned has fully considered all six statutory penalty criteria and assesses a civil penalty in the amount of $500.00. The operator stipulated that the higher penalty amount proposed by the Secretary would not affect its ability to continue in business, so it follows that this reduced penalty will similarly not affect the operator’s ability to continue in business. Stip. #4. Although the Dutch Run plant has a history of violations in the 15-month period preceding the issuance of the instant citation, Stip. #7, Rosebud had only operated this plant since January 1, 2011. There was only moderate negligence. The undersigned further notes that there was rapid good faith compliance. Stip #5.
Finally, the undersigned vacates Order No. 8008631, issued for alleged violation of 30 C.F.R. § 77.215(h) with the assessed penalty of $4,000.00. As articulated more fully above, the citation was incorrectly issued, as there was no evidence that the operator was not complying with the regulation by compacting the refuse material in a reasonable manner and within a reasonable timeframe.
In summary:
Violation # |
Original Assessment |
Penalty Determined |
7061996 |
$5,503 |
$5,503 |
7061997 |
$6,115 |
$6,115 |
8008603 |
$2,000 |
$2,000 |
8008680 |
$4,000 |
$500 |
8008631 |
$4,000 |
$0 (Vacated) |
Total |
$21,618 |
$14,118 |
The reduction in the total penalty to $14,118.00 is reasonable considering the operator’s negligence, the gravity of the violations and the demonstrated good faith in attempting to achieve rapid compliance.
Considering the stipulation that the penalty of $21,618.00 originally charged would not affect the operator’s ability to continue to in business, Stip. #4, and also regarding the size and history of Dutch Run, Stip. #7, the total penalty as assessed herein is reasonable.
ORDER
For the reasons set forth above, the citations are AFFIRMED, MODIFIED, or
VACATED as indicated. Rosebud Mining Company is ORDERED TO PAY the Secretary of
Labor the sum of $14,118.00 within 40 days of the date of this decision.
/s/ Kenneth R. Andrews
Kenneth R. Andrews
Administrative Law Judge
Distribution: (Certified Mail)
Joseph A. Yuhas, Esq., Rosebud Mining Company, P.O. Box 1025, Northern Cambria, PA 15714
Rebecca Simon-Pearson, Esq., U.S. Department of Labor, Office of the Solicitor, 170 S. Independence Mall West, Suite 700 East, Philadelphia, PA 19106