FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
(202) 434-9950
December 6, 2012
|
SECRETARY OF LABOR, |
: : : : : : : : : : |
CIVIL PENALTY PROCEEDINGS
Docket No. KENT 2010-979 A.C. No. 15-02709-216244-01 Mine: Highland 9 Mine |
DECISION
Appearances: Neil
A. Morholt, Esq., Office of the Solicitor, U.S.
Department of Labor, Nashville, TN, on behalf of the
Petitioner;
Jeffrey
K. Phillips, Esq., Steptoe & Johnson, PLLC,
Before: Judge
Rae
This
case is before me upon a petition for civil penalties filed by the Secretary of
Labor pursuant to section 105(d) of the Federal Mine Safety and Health
Administration Act of 1977, 30 U.S.C. §801 et seq. (the “Act”), charging
Highland Mining Company, LLC (“Highland”) with one violation of 30 C.F.R. §75.400. The Secretary proposes a special assessment
in the amount of $30,200.00. A hearing was held in
I.
BACKGROUND
The
parties entered into the following stipulations of fact prior to the hearing:
1. The proposed penalty assessment will not affect Respondent’s ability to continue in business;
2.
3. Highland is subject to the Federal Mine Safety and Health Act of 1977;
4. The administrative law judge has jurisdiction to hear and decide this matter;
5.
All of the citations and the one order
at issue in these two dockets[1]
were properly served by a duly authorized representative of the Secretary upon
an agent of
6. The operator demonstrated good faith in abating the violations.
II.
FINDINGS
OF FACT CONCLUSIONS OF LAW
On January
11, 2010, Jeff Winders[2]
was accompanied by trainee Phillip Carlisle[3] on
an inspection of
Citation 8494959
Float
coal dust was allowed to accumulate on the rock dusted surfaces of the mine
floor and ribs on the 4C beltline from
crosscut #72 to crosscut #25, a distance of over 3300’. This
condition has been recorded in the belt examination record book by the belt examiner since 01/05/2010, and was
countersigned by a mine foreman on each day.
The
company engaged in aggravated conduct constituting more than ordinary
negligence in that the mine foreman knew
of this condition and no action was taken to correct the condition. This violation is an unwarrantable failure to
comply with a mandatory standard.
Ex. S-2.
The
citation is designated as significant and substantial (S&S) with a
reasonable likelihood of resulting in an injury or illness leading to lost
workdays or restricted duty affecting two persons and the result of high
negligence. In addition, it is alleged to be an unwarrantable failure to
comply. The Secretary has proposed a
special assessment in the amount of $30,200.
The
mandatory standard provides in relevant
part “coal dust, including float coal dust deposited on rock-dusted surfaces,
loose coal, and other combustible materials, shall be cleaned up and not be
permitted to accumulate in active workings.” 30
C.F.R. §75.400.
Significant
and Substantial (S&S)
An
S&S violation is a violation “of such nature as could significantly and
substantially contribute to the cause and effect of a . . . mine safety or health
hazard.” 30 U.S.C. § 814(d). A violation is properly designated S&S, “if,
based upon the particular facts surrounding the violation, there exists a
reasonable likelihood that the hazard contributed to will result in an injury
or illness of a reasonably serious nature.” Cement
Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). As is well
recognized, in order to establish the S&S nature of a violation, the
Secretary must prove: (1) the underlying violation; (2) a discrete safety
hazard – that is, a measure of danger to safety – contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury will be of
a reasonably serious nature. Mathies Coal Co.,
6 FMSHRC 1, 3-4 (Jan. 1984); see also,
Buck Creek Coal
It
is the third element of the S&S criteria that is the source of most
controversies regarding S&S findings. The element is established only if
the Secretary proves “a reasonable likelihood the hazard contributed to will
result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An
S&S determination must be based on the particular facts surrounding the
violation and must be made in the context of continued normal mining
operations. Texasgulf, Inc., 10 FMSHRC 1125 (Aug. 1985);
The S&S nature of a violation and the gravity of a violation are not
synonymous. The Commission has pointed out that the “focus of the seriousness
of the violation is not necessarily on the reasonable likelihood of serious
injury, which is the focus of the S&S inquiry, but rather on the effect of
the hazard if it occurs.” Consolidation
Coal Co., 18 FMSHRC 1541, 1550 (Sept. 1996).
Accumulations/fire
and ignitions
When
evaluating whether violations charging accumulations are S&S, the Commission
has stated:
When
evaluating the reasonable likelihood of a fire, ignition, or explosion, the Commission has examined whether a
‘confluence of factors’ was present based on the particular facts surrounding the violation. Texasgulf, Inc. 10
FMSHRC 498, 501 (April 1988). Some of the factors include the extent of the
accumulations, possible ignition sources,
the presence of methane, and the type of equipment in the area. Utah Power & Light Co., 12 FMSHRC 965, 970-71 (May 1990)(‘UP&L’); Texasgulf, 10 FMSHRC at 500-03.
Enlow Fork Mining Co.,
19 FMSHRC 5, 9 (Jan. 1997).
As
Winders explained, float coal dust propagates an explosion when in
suspension. Heat sources in a belt
entry are created by stuck rollers and misalignment of the belt. Tr. 48-49.
Winders testified that he designated this violation as S&S because
it was reasonably likely for an injury to occur if there was an explosion. He felt there was a “possibility” of an
explosion. Tr. 50.
Examining
the reasonable likelihood (rather than the “possibility”) of an explosion based
upon the Enlow Fork factors, I make the following
findings.
Extensiveness
- Winders and Carlisle both testified
that the float coal dust extended for approximately 3300 feet.
It was described by Winders as paper thin but deep enough to leave a
ripple when crossed with a golf cart.
Tr. 39, 41. However, at a prior
deposition, there was no mention of rippling or leaving tracks by Winders when
asked to describe the depth of the material.
Tr. 56. Carlisle described the
area consisting of float coal dust on top of rock dust which became airborne
when driven through with the golf cart.
Tr. 15. Although Carlisle felt it
was extensive, he felt the condition was mostly just in need of rock dusting
rather than shoveling to clean. Tr.14,
26. While Winders testified that there was little to no rock dust present, he
did acknowledge that the belt book indicated that rock dusting was to continue
which he interpreted as meaning rock dusting was being done. Tr. 59-60. Both of the Secretary’s witnesses
stated that there was an individual shoveling the belt entry near the
header. Tr. 26, 57. Winders recalled,
additionally, that the belt examiner was making his rounds on the day of the
inspection but had not yet made it to the inby
section where the inspectors were located.
Tr. 57.
Neither
inspector found the coal dust to be so extensive as to warrant shutting down
the belt or exiting the golf cart and walking the entry to avoid an ignition.
Tr. 29, 67-68. After authorizing five
hours for cleanup, Winders did not check for compliance until two days later.
Tr. 68.
Travis
Little, Highland’s safety manager, testified that he was present during the
inspection and noted that the accumulations cited varied in color with some
turning darker gray meaning rock dusting may be needed soon. Tr. 109-111.
He also confirmed that Highland has a rock dusting schedule. With this belt entry having been dusted on
January 5th, the next rock dusting evolution would take place on the
night of the inspection or the following night.
Tr. 115. Little further stated
that different examiners and inspectors could have a difference of opinion as
to what conditions warranted dusting and which did not. Tr. 107. In fact, Winders conceded this point and
confirmed an incident one week prior to this inspection where a Highland belt
examiner had noted an area that needed rock dusting. When Winders inspected it,
he felt it did not. Tr. 108-109.
I
find that while the accumulation of float coal dust was lengthy in dimension,
it was not extensive in depth nor did it pose a reasonably serious degree of
danger.
Ignition
Sources- By all accounts there were none.
Carlisle testified that rollers and bearings can go out at any time but
acknowledged that he found no stuck or frozen rollers, no misalignment of the
belt or other ignition sources except for the possibility of the golf cart
which he didn’t find necessary to abandon.
T. 28-29. Both Carlisle and
Winders testified that the danger posed by float coal dust is that it
propagates an explosion. Tr. 18,
48-50. Winders clarified that float coal
dust does not pose a danger during normal mining operations if the belt is
running correctly. Tr. 73-74.Winders
also confirmed that he didn’t find any stuck rollers or hot spots from a
misaligned belt. In fact, because he
found an ignition was not reasonably likely to occur, he did not feel it was
necessary to shut down the belt or exit the golf cart. Tr. 67-68.
The
Secretary countered the evidence of a lack of an ignition source by introducing
evidence that rollers had been changed along the 4C belt as documented in Ex.
S-3. Tr. 49. A review of that exhibit,
however, makes note of a top roller at crosscut #3 but does not indicate that
it was stuck or replaced. There are no
notations for rollers being replaced in the cited area along the 4C belt entry
from January 5 through the date of the inspection.
The
fact that stuck rollers may occur or a belt may become misaligned is
insufficient to find an ignition was reasonably likely to occur. In Rockhouse Energy
Mining Company Judge Barbour aptly stated that if the fact that potential
ignition sources might occur at some point in the future were enough to
establish an S&S violation, then every accumulations violation would be
S&S which is not contemplated by the Act.
Rockhouse Energy, 31 FMSHRC
622 (June 2009).
Methane
– The Secretary poses, based upon the testimony from another hearing involving
Highland, that this mine was on a 10-day spot inspection for methane liberation
as evidence of the presence of methane. However, Winders testified (as did the
inspector in the other hearing) that he was not concerned with methane because
he had never found levels of methane in excess of permissible levels in the
belt entries. Tr. 78.
Equipment
– There is no evidence of equipment in the belt entry except for the belt
itself and the golf cart. Neither
Winders nor Carlisle felt the cart posed a real threat of sparking an ignition
necessitating their walking the entry instead of riding.
My
conclusion, based upon the above, is that this violation is not S&S.
Unwarrantable Failure/Negligence
In Lopke Quarries, Inc., 23 FMSHRC 705, (July
2001), the Commission stated the law applicable to determining whether a
violation was the result of an unwarrantable failure:
The unwarrantable failure terminology is taken
from section 104(d) of the Act, 30 U.S.C.§
814(d), and refers to more serious conduct by an operator in connection with a violation.
In Emery Mining Corp., 9
FMSHRC 1997 (Dec. 1987), the Commission determined
that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at 2001.
Unwarrantable failure is characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference," or a
"serious lack of reasonable
care." Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13
FMSHRC 189, 194 (Feb. 1991) (“R&P”); [see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d
133, 136 (7th Cir. 1995)] (approving
Commission's unwarrantable failure test).
Whether
conduct is “aggravated” in the context of unwarrantable failure is determined by looking at all the facts and
circumstances of each case to see if any aggravating factors exist, such as the length of time that
the violation has existed, the extent of the violative condition, whether the operator has
been placed on notice that greater efforts are necessary
for compliance, the operator’s efforts in abating the violative
condition, whether the
violation is obvious or poses a high degree of danger, and the operator’s knowledge of the existence of the
violation. See Consolidation Coal Co., 22 FMSHRC 340,
353 (Mar. 2000), appeal docket, No.
01-1228 (4th Cir. Feb. 21, 2001) (“Consol”); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir.
1999); Midwest Material Co., 19
FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC
192, 195 (Feb. 1994); Peabody Coal Co.,
14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of the
relevant facts and circumstances of each case must be examined to determine if
an actor’s conduct is
aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353.
Because supervisors are held to a high standard of care, another important factor supporting an
unwarrantable failure determination is the involvement of a supervisor in the violation. REB
Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998).
Lopke Quarries
at 711.
Winders
considered this violation to be a result of high negligence and an
unwarrantable failure because of the length of time it had existed, the actions
taken by Highland to abate the condition, their knowledge of the condition and
that they had been put on prior notice regarding this type of condition. Tr. 53.
Length
of time the condition existed – Carlisle and Winders testified that union
representative Dyer, who was also a belt examiner, had noted in the belt
examination book that the 4C belt entry was in need of cleaning for several
days but the condition had not been abated.
Tr. 16. Dyer apparently went on
to say that because of the lack of attention, he started writing up one section
on one day and another section on another day in the hopes that Highland would
pay more attention to it. Tr. 16, 26,
69-70. When Winders was asked on
cross-examination whether Dyer admitted to falsifying the examination book by
omitting areas he believed were in need of cleaning, Winders’ response was that
Dyer admitted that he broke it up into smaller units. Tr. 69. Winders was asked if he thought it was
possible that Dyer felt the ten crosscuts that he omitted from the book were
not in need of rock dusting, He stated it was possible, however, the belt
examiner before and after Dyer included the entire area in the book as needing
dusting. Tr. 70. When asked whether falsifying an examination
book was a prosecutable offense, Winders responded in the affirmative. Tr. 71.
I find, based upon this exchange, Dyer’s statements to the inspectors
lacks credibility.[5]
The
uncontested evidence of record indicates that the belt entry had been rock
dusted six days prior to the inspection.
Tr. 57. Little testified that
based upon Highland’s dusting schedule, it would be dusted again either the
night of the inspection or the following night.
Carlisle testified that he could see rock dust below the float coal
dust. Tr. 14. Winders testified that he saw a notation in
the belt examination book that said to continue to rock dust which he
interpreted to mean they had been doing so.
Tr. 57. The examination book for
the 4C entry has several notations for need of cleaning at the header, tail and
last pull as well as areas at certain crosscuts between January 5 and January
9. The corrections pages also indicate
cleaning being performed repeatedly at the header, low framing, tail and other
areas. Ex. S-3. The entries in the
examination book do not necessarily indicate that the conditions noted were
hazardous or left uncorrected.
When asked directly how long the condition had existed,
Winders response was the he believed it had been for more than one shift. Tr.
42. As a normal by-product of mining, it
is not unusual for accumulations to be present.
One shift is not a particularly long period of time for a non-hazardous
condition to exist. I note, additionally, that the belt walker and the miner
cleaning the belt had not yet made it to the cited area on the day of the
inspection.
Extent of the Violative
Condition – as stated above in more detail, while the accumulation of float
coal dust was lengthy, it was not extensive in depth nor did it pose a
reasonably serious degree of danger.
Obviousness or high degree of danger – the accumulations
may have been obvious but what is not is whether it was in need of immediate
attention or routine rock dusting.
Winders admitted there may be a legitimate difference of opinion (and
not necessarily the operator’s as opposed to the inspector’s) as to when an
area is in need of rock dusting. The accumulations were paper thin and not
consistent in dryness. Neither Carlisle
nor Winders felt it necessary to halt production during the five hours given
for abatement or abandon the golf cart during the inspection. It did not pose a high degree of danger due
to the lack of ignition sources, according to Winders.
The operator’s knowledge of its existence –
Highland was certainly aware that belt examiners had placed entries in the
examination book of areas they felt were in need of attention. However, as
stated above, the books also indicated that dusting was being done and there
was no indication that the condition was a hazard in need of more immediate
action than the scheduled dusting.
Notice of need for greater compliance - Winders testified that he had place Highland
on notice that greater compliance was required of them for accumulations. He stated that on December 23, 2009, he met
with mine management regarding this issue. Tr. 33-34. However, on cross-examination, he confirmed
that when asked for his reasons for designating this violation as unwarrantable,
he never mentioned this meeting. He also
could not produce any notes or records to substantiate what was discussed. Tr. 55-56.
He went further to clarify that his discussion with Highland, conducted
at the behest of Peabody, not MSHA, was concerning accidents and violations in
general and the need to reduce combustible materials accumulations. Tr.
34.
Accumulations violations run a very broad gamut and
include many types of combustible materials such as oil, coal fines, trash and
other fluids and solids. The claim that
Winders held a general discussion regarding accumulations with Highland is
insufficient evidence that Highland was placed on notice of the need for
greater compliance with float coal dust accumulations along the belt entry for
unwarrantable failure purposes here.
In sum, I do not find that the length of time, the extent
or obviousness of the condition, or the degree of danger posed by the cited
condition rises to the level of aggravating circumstances evidencing more than
ordinary negligence.
The violation is reasonably serious but I do find
Highland was engaged in rock dusting and had a schedule in place for dusting
for non-hazardous accumulations. Their
use of two person dusting machines as well as sling dusters and hand dusting
with shovels is sufficient evidence of mitigation to reduce the level of
negligence to moderate.
III.
PENALTY
The
principles governing the authority of Commission administrative law judges to
assess civil penalties de novo, including proposed special assessments, for
violations of the Mine 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 requires that in assessing civil
monetary penalties, the Commission or 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 on 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
parties have stipulated that the mine is a large mine and that the proposed
penalties would not affect the operator’s ability to continue in business. There is no dispute that the conditions were
abated in good faith or that the mine has a significant history of
violations. The findings with regard to
the gravity and negligence involved are discussed at length above. The
appropriate penalty is $1200.00.
IV.
ORDER
Based upon the criteria in section 110(i) of the Mine
Act, 30 U.S.C. §820(i), I modify the citation to non-S&S and not an
unwarrantable failure. I reduce the
negligence to moderate and assess a penalty of $1200.00. Highland is ORDERED to pay the Secretary of Labor
the sum of $1200.00 within 30 days of the date of this decision.[6]
/s/ Priscilla M. Rae
Priscilla
M. Rae
Administrative
Law Judge
Distribution: (Certified Mail)
Neil
A. Morholt, Esq., Office of the Solicitor, U.S.
Department of Labor, 618 Church St., Ste. 230, Nashville, TN 37219-2440
Jeffrey
K. Phillips, Esq., Steptoe & Johnson PLLC, 1010 Monarch St., Ste. 250, P.O.
Box 910810, Lexington, KY 40591-0810
[1]Docket No. KENT 2010-980 which was consolidated with this docket settled on March 15, 2012.
[2]Winders
has been an MSHA inspector since October 2007. Prior to his employment with MSHA, he was a
miner for 23 years running various pieces of equipment as well as acting as a
fire boss and conducting belt examinations.
He obtained his foreman’s papers from the State of
[3]
[4]Little
has 17 years of mining experience performing general labor tasks such as rock
dusting and shoveling, and installing headers.
He was involved in mine rescue for six years, was a section foreman and
holds national and state EMT certifications as well as federal and state
underground instructor qualifications. He currently is the safety manager for
[5] I further find that Dyer’s admissions constitute a serious offense and I question the Secretary’s offering this testimony. It further taints the credibility of the inspector that he accepted the fact that a miner admitted to falsifying the examination book without taking appropriate action.
[6]Payment should be sent to the Mine Safety and Health Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.