FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY
TELEPHONE: (412)
920-7240
FACSIMILE: (412)
928-8689
December 7, 2012
|
SECRETARY OF LABOR, v. POWELL MOUNTAIN ENERGY LLC, |
: : : : : : : : : : |
CIVIL PENALTY PROCEEDING Docket No. KENT 2009-1029
Mine #1 |
DECISION
Appearances: Brian D. Mauk, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee, and Billy A. Parrott,
Conference and Litigation Representative, U.S. Department of Labor, Mine Safety
and Health Administration, Barbourville, Kentucky, for Petitioner.
John M.Williams, Esq., Rajkovich,
Williams, Kilpatrick, & True, PLLC, Lexington, Kentucky, for Respondent.
Before: Judge Tureck
This case is before me upon a
Petition for Assessment of Civil Penalty filed by the Secretary of Labor
(“Secretary”), acting through the Mine Safety and Health Administration
(“MSHA”), against Powell Mountain Energy LLC (“Respondent”), pursuant to
sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. §§815 and 820 (“the Act”). The Secretary proposes assessing penalties
against Powell totaling $7,788.00 for a 104(d)(1) citation and an ensuing
104(d)(1) order. The Secretary contends that the violations on which the
citation and order were based were reasonably likely to result in permanently
disabling injuries, involved seven persons, involved high negligence, and were
unwarrantable failures to comply with mandatory standards. Powell challenges
the severity of the assessed penalties and whether the citation and order can
be sustained as written.
The following are issues for
resolution in this case: (1) whether the Respondent violated 30 C.F.R. §§
75.370(a)(1) and 75.362(a)(2); (2) whether the violations were both significant
and substantial and unwarrantable failures to comply with mandatory standards;
(3) whether it is reasonably likely that seven miners could be affected by the
violations at issue and suffer permanently disabling injuries; and (4) whether
the violations were attributable to Respondent’s high negligence.
A formal hearing was held in
Jonesborough, Tennessee on August 31, 2011. At the hearing, Secretary Exhibits
S-1 through S-6 and Respondent Exhibits R-1 and R-2 were admitted into
evidence. The Respondent’s Post-Hearing Brief was received on November 2, 2011,
and the Secretary’s Post-Hearing Brief was received on November 3, 2011.
Findings of Fact
and Conclusions of Law
Powell
Mountain Energy Mine #1 (“the Mine”) is an underground coal mine located in
Harlan County, Kentucky. Tr. 30. Gary Oliver is an MSHA inspector, a position
that he had held for five years at the time of the hearing. Tr. 15. Inspector
Oliver is both an accident investigator and a collateral duty conference and
litigation representative. Tr. 16. Prior to working for MSHA, Inspector Oliver
worked approximately five years in the coal mining industry. Tr. 18. In total,
Inspector Oliver had ten years of experience in the mining industry at the time
of the hearing. Tr. 18.
On
February 17, 2009 at 10:00 p.m., Inspector Oliver arrived at the Mine to
conduct an EO-1 inspection. Tr. 22-23. An EO-1 inspection involves an
inspection of the entire mine, including the surface, the records, and
everything underground. Tr. 23. Mine inspectors are to conduct EO-1 inspections
four times a year at underground mines. Tr. 23-24.
Inspector
Oliver had inspected the Mine many times prior to February 17, 2009, and he was
familiar with its layout. Tr. 24. In addition, Inspector Oliver testified that
he was familiar with the ventilation plan because inspectors are required to
review all plans prior to starting an inspection. Tr. 31-32. When Inspector Oliver
arrived at the mine, he conducted a safety meeting with the third shift. He then went underground
accompanied by the third shift maintenance foreman, Tim Minton. When he arrived
at the section of the Mine that he was supposed to inspect, he conducted an
imminent danger run. Tr. 24-25. On the night of the inspection, there were
workers from the second shift producing coal and their shift overlapped with
the workers from the third shift, which is typically a maintenance shift. Tr.
29-30, 48.
According
to Inspector Oliver, three or four miners told him that only 20 foot cuts were
being made because the scrubber was down on the miner. Tr. 26.[1] When
he arrived at the section, he saw that a cut exceeding 20 feet had been taken. Id. Inspector Oliver measured the cut to
be 32 feet deep. Tr. 26-27. After some discussion, Inspector Oliver asked to
see the section foreman. Tr. 27. When he arrived, Inspector Oliver asked him how
the cut of 32 feet was taken without the scrubber. The foreman’s response was,
“I think it’s working.” Tr. 28. Inspector Oliver said, “Okay. Let’s go over to
the miner and we’ll see.” When Inspector Oliver arrived at where the continuous
miner was cutting, he asked the continuous miner operator, Ron Muse, to turn
the scrubber on. When he attempted to turn the scrubber on, it would not turn
on. Tr. 28.
Inspector Oliver testified that he
then asked Muse if he checked the dust parameters on the miner prior to
starting the miner that night. Muse
answered that he had not. Tr. 29. Inspector Oliver then turned to the section
foreman and asked him if he had done the dust parameter checks on the miner or
if he had watched someone else do them; He answered that they had checked the
scrubber. Tr. 29.
Inspector Oliver then informed the
section foreman that he was issuing Citation Number 8318195 under §104(d)(1)
for failure to follow the ventilation plan by taking extended cuts beyond 20
feet without the scrubber working. He also informed the section foreman that he
was issuing Order Number 8318196 for not examining the scrubber as a part of
the dust parameter checks. Tr. 29. Inspector
Oliver testified that he issued Citation Number 8318195 because “[t]he scrubber
was inoperative, and so therefore, they had to be violating the ventilation
plan because the plan limited them to 20 foot cuts because of the malfunction
of the scrubber.” Tr. 31. Inspector
Oliver found both the Citation and Order to be the result of high negligence
and unwarrantable failure. Tr. 45-46; 57-58. Citation No. 8318195 was abated by
Inspector Oliver holding a safety meeting with the section foreman and the
miner operator. Order Number 8318196 was
abated by holding a safety meeting with the second shift crew on the section
and instructing them to make the required on shift examinations and not to take
cuts of more that 20 feet if the scrubber is not working. Tr. 51.
The
purpose of a scrubber is “[t]o reduce the levels of dust that people could be
exposed to.” Tr. 37. It works similarly
to a vacuum cleaner. It pulls dust through its duct work and sprays water on
the dust to trap it into the bottom of the scrubber system. Tr. 35-36. At the
same time, the de-mister puts fresh air back into the mine. Tr.37. The wet dust
that is settled into the bottom of the scrubber is sucked out by a pump, and is
then discharged onto a conveyor and out of the mine via the conveyor belt. Tr. 37.
Inspector
Oliver testified that the ventilation plan states “when a flooded-bed dust
collector system is not used, an exhaust curtain will be installed and
maintained within 20 feet of the face.” Tr. 35. He further testified that the
greater the distance that a cut is from a curtain, the less effective the
ventilation will be in controlling dust. The scrubber is essentially an
additional safety precaution for extended cuts. Tr. 37. Inspector Oliver
further testified that when an extended cut is taken, there will generally be
more dust suspension. This could lead to coal dust ignition or a possible
explosion. In addition, dust suspension in the air exposes miners to respirable
dust inhalation, which can lead to black lung and silicosis. Tr. 38.
Respondent’s
ventilation plan required the use of a scrubber only when cuts greater than 20
feet were made. Tr. 27-28; Sec’y Ex. S-4. Prior to Inspector Oliver’s
inspection of the mine, the mine had a history of respirable dust samples that
were above the standards mandated by MSHA regulations. On the day of the
inspection, the mine was on a reduced standard for respirable dust due to
excessive weight gains in the dust samples that had been collected. Tr. 41-42.
These samples showed that either there was a lot of respirable dust or high
levels of spores present in the mine. Tr. 42.
Ron
Muse is 60 years old and has been working in the mines for over 30 years. Tr. 83.
He has been a continuous miner operator for 20 of those years. He only worked
at the Mine for five months, leaving in March, 2009. Tr. 84. On the night of the alleged violations, Muse
was the miner operator on the second shift. Tr. 85. Muse testified that on the evening of the
inspection, the scrubber had been malfunctioning. When Muse came in for his
shift, he was told by the day shift operator that “[t]he scrubber has been
giving us problems. It will kick off. Sometimes it will run, sometimes it
won’t.” Tr. 86. He added that “[y]ou can run maybe three or four 20-foot cuts
then the scrubber would back down and run for a few moments and then go back
off.” Tr. 86.
It
was Muse who made the extended cut on February 17th and 18th for which Inspector
Oliver cited the Mine. Muse’s testimony during the hearing regarding how he
made the extended cut was fairly incomprehensible. For example, Muse initially
testified that the sequence he utilized for the extended cut was to first make the
32-foot cut and then cut on the curtain side, then, when the scrubber started,
he completed the cut to 32 feet. He then
stated that he ran the entire 32-foot cut with the scrubber on. He then completed
the other 12-foot cut on the curtain side. Tr. 89. Muse then testified that the
sequence he utilized was a 20-foot cut on one side, a 12-foot cut on the other
side, and then a 32-foot cut. Tr. 91. He later testified that he made a 20-foot cut first, then he
added 12 feet on top of that 20-foot cut, and then he backed out and did a
32-foot cut. Tr. 101. Later still, he
testified that he made two 20-foot cuts and then two 12-foot cuts on both
sides. Tr. 104. He also contradicted himself by saying that he had cut the
curtain side first. Tr. 111.
Because of Muse’s confusing and inconsistent
testimony, it is difficult to determine how he made the extended cut. However,
what is undisputed is that when Muse was two feet from completing an extended
cut with the scrubber, the scrubber stopped working; and after it died, Muse completed the extended
cut without the scrubber. Tr. 89-91.
Muse examined the miner machine when he came
to work that evening. He examined the water sprays, headlights, and emergency
stop switches, but he did not examine the scrubber because it “wouldn’t turn
on.” Tr. 98. Curtis Davis, the section foreman, was not present when Muse made
the extended cut that was cited by Inspector Oliver. Muse did not know where
Davis was at the time the extended cut was made. Tr. 98.
Muse
testified that there was no suspended dust in the air when he made the extended
cut and that he did not make the extended cut with the scrubber disconnected.
Tr. 100. He further testified that the other miners in the section would not
have been exposed to the air from the cutting because they were not in the path
of return air. Tr. 95.
Davis,
the section foreman, was aware of problems with the scrubber because he
approached Muse during the first part of the shift and told him, “You know
they’re having problems with the scrubber.” Muse then responded, “Yeah, that’s
what Ron told me.” Tr. 116.
The
above facts are what led Inspector Oliver to issue the 104(d)(1) Citation and
Order that are at issue in this case. Both state that the violations were
reasonably likely to result in permanently disabling injuries, involved seven
persons, involved high negligence, and were significant and substantial
(“S&S”) violations and unwarrantable failures to comply with mandatory
standards. Sec’y Ex. S-1; Sec’y Ex. S-2.
Significant and
Substantial; Unwarrantable Failure
Citation No. 8318195 and Order No.
8318196 are both alleged to be “significant and substantial” and
“unwarrantable” as defined in 30 U.S.C. § 814(d)(1).
30
U.S.C. § 814(d)(1) provides:
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 a 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].
The
Commission and several courts of appeals have agreed that four conditions must
be met to find that a violation is “significant and substantial”:
[T]he 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. Secretary of Labor v. Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984); see also, Austin Power, Inc. v. Secretary of Labor, 861 F.2d 99, 103 (5th Cir.1988); Consolidation Coal Co. v. Federal Mine Safety and Health Review Comm'n, 824 F.2d 1071, 1075 (D.C.Cir.1987).
The
Commission has determined that unwarrantable failure is aggravated conduct
constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC
1997, 2001 (Dec. 1987). 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); see also Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving
Commission's unwarrantable failure test).
To
determine if this violation meets the requirements of being an unwarrantable
failure, the Judge must assess “the extent of a violative condition, the length
of time it has existed, whether the violation is obvious or poses a high degree
of danger, whether the operator has been placed on notice that greater efforts
are necessary for compliance, and the operator’s compliance efforts made prior
to the issuance of the citation or order.” Mullins
& Sons Coal Co., 16 FMSHRC
192, 195 (Feb. 1994); Peabody Coal Co.,
14 FMSHRC 1258, 1261(Aug. 1992); Quinlands
Coals, Inc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984); Beth Energy Mines, Inc., 14 FMSHRC 1232,
1243-44 (Aug. 1992); Warren Steen
Constr., Inc., 14 FMSHRC 1125, 1129 (July 1992). Repeated similar violations may be relevant to an unwarrantable
failure determination to the extent that they serve to put an operator on
notice that greater efforts are necessary for compliance with a standard.” Amax
Coal Company, 19 FMSHRC 846, 851 (May 1997).
Further, “these unwarrantable
failure factors must be examined in the context of all relevant facts and
circumstances of each case to determine if an operator’s conduct is aggravated,
or whether an operator’s negligence should be mitigated. In considering the
factors in this context, some may be relevant, while others may not be.” San Juan Coal Co., 29 FMSHRC 125 (March
2007).
Citation No. 8318195
Citation No. 8318195 alleges a
violation of §75.370(a)(1), which requires that a mine operator develop a
ventilation plan. The citation alleges that the operator was not complying with
the approved plan. The practice alleged to be significant and substantial and
an unwarrantable failure of §75.370(a)(1) is as follows:
The
operator is not complying with the provisions of the approved ventilation plan
for scrubber and extended line curtains for the 004 MMU. An extended cut of 32
feet has been cut in the 4 Right crosscut and the scrubber for the Joy
continuous miner is not working. The approved ventilation plan only permits
cuts no greater than 20 feet when a mechanical failure of the scrubber occurs.
This condition would expose miners working on the 004 MMU to excessive amounts
of respirable dust. Exposure to respirable dust is the leading cause of Black
Lung and Silicosis in coal miners. The 004 MMU has been cited in the past for
excessive quartz in respirable dust samples. Taking extended cuts without all
safety precautions in place constitutes more than ordinary negligence and is an
unwarrantable failure to comply with a mandatory health and safety standard.
Seven miners are present on the 004 MMU.
Sec’y
Ex. S-1. The gravity is alleged to be reasonably likely to result in an injury
or illness that could be reasonably expected to be permanently disabling, with
seven persons affected. Negligence is alleged to be high. The proposed penalty
is $3,689.00 and the citation is a 104(d)(1) citation.
Section
75.370(a)(1) states, in relevant part:
The
operator shall develop and follow a ventilation plan approved by the district
manager. The plan shall be designed to control methane and respirable dust and
shall be suitable to the conditions and mining system at the mine. The
ventilation plan shall consist of two parts, the plan content as prescribed in
§75.371 and the ventilation map with information as prescribed in §75.372.
Order No. 8318196
Order No. 8318196 alleges that
there was an inadequate on-shift examination of the scrubber on the miner, a
violation of 75.362(a)(2). The condition alleged to be significant and
substantial and an unwarrantable failure of section 75.362(a)(2) is as follows:
The
operators [sic] agent failed to
conduct an adequate on shift examination to assure compliance with the
respirable dust parameters outlined in the approved ventilation plan for the
004 MMU. There was [sic] no checks
conducted of the flooded wet bed dust collector of the Joy continuous miner. An
extended cut was taken in the 4 Right crosscut without the use of the scrubber.
If an adequate examination had been conducted as required, then the operators [sic] agent would have known that the
scrubber was not working and could have avoided taken [sic] an extended cut and exposing the miners who work on the 004
MMU to excessive amounts of respirable dust. The failure to conduct this
required examination constitutes more than ordinary negligence and is an
unwarrantable failure to comply with a mandatory health and safety standard.
Sec’y
Ex. S-2. The gravity is alleged to be reasonably likely to result in an injury
or illness that could be reasonably expected to be permanently disabling, with
seven persons affected. Negligence is alleged to be high. The proposed penalty
is $4,099.00 and the alleged order is a 104(d)(1) order.
Section
75.362(a)(2) states, in relevant part:
A person
designated by the operator shall conduct an examination to assure compliance
with the respirable dust control parameters specified in the mine ventilation
plan. In those instances when a shift change is accomplished without an
interruption in production on a section, the examination shall be made anytime
within 1 hour of the shift change. In those instances when there is an
interruption in production during the shift change, the examination shall be
made before production begins on a section. Deficiencies in dust controls shall
be corrected before production begins or resumes. The examination shall include
air quantities and velocities, water pressures and flow rates, excessive
leakage in the water delivery system, water spray numbers and orientations,
section ventilation and control device placement, and any other dust
suppression measures required by the ventilation plan. Measurements of the air
velocity and quantity, water pressure and flow rates are not required if
continuous monitoring of these controls is used and indicates that the dust
controls are functioning properly.
Discussion
Citation No. 8318195
The first issue to be resolved is
whether there was a violation of 30 C.F.R. §75.370(a)(1), i.e., whether there has been a violation
of the Mine’s ventilation plan. The
ventilation plan for the mine requires the use of a scrubber if a cut beyond 20
feet is to be made. Specifically it states:
The
flooded-bed dust collector system shall be operated at all times except as
noted below or when a mechanical failure occurs. If a mechanical failure
occurs, then an exhaust line curtain will be maintained to within 20 feet of
the face and a minimum of 4500 CFM or 60 FPM mean entry air velocity, whichever
is greater, will be maintained at the end of the line curtain.
Sec’y
Ex. S-4.
Citation
No. 8318195 alleges that the operator was not complying with the approved
ventilation plan since an extended cut of 32 feet was taken while the scrubber
was not working. Inspector Oliver issued the citation because of his belief
that the entire 32-foot cut was made while the scrubber was inoperable.[2] He believed that the scrubber was inoperable
during the entire extended cut primarily because he was told it was not working
by the roof bolt operators and, when he asked Muse to turn on the scrubber, it
would not turn on. Tr. 31, 79. But he
did not ask Muse or anyone else in a
better position than the roof bolters to know what had occurred whether the
scrubber was working at the time the extended cut was made. Tr. 71. When asked
if he knew if the scrubber had worked at all during the second shift, Inspector
Oliver testified, “I suspected that it didn’t.” Tr. 70.
Muse admitted that he was told that the
scrubber was malfunctioning since the 1st shift. Tr. 86. He was approached by Davis, the section
foreman, who informed him that the scrubber was malfunctioning. Tr.116. But Muse testified that the scrubber was not
disconnected at the time the extended cut was made. Tr. 100. Rather, he
testified that the scrubber started operating when he began making the extended
cut, and it continued to work until he was two feet from completing it. He completed the cut anyway. Tr. 89-90.
I
credit Muse’s testimony on this point, about the only one where his testimony
was consistent. If he was going to lie
about what happened, one would expect him to have testified that the scrubber
was working throughout the entire cut rather than admit it had shut off but he
completed the cut anyway. This testimony
was neither in his own interest nor the Respondent’s. Moreover, he only worked for Respondent for a
short time, and had not worked for Respondent for about 2 ½ years at the time
of the hearing, giving him little reason to slant his testimony in respondent’s
favor.
The
ventilation plan specifically states: “The flooded-bed dust collector system
shall be operated at all times except as noted below or when a mechanical failure occurs. If a mechanical failure occurs, then an exhaust line curtain will
be maintained to within 20 feet of the face….” (Emphasis added). Sec’y Ex. S-4. Since part of the extended cut was made while
the scrubber was not functioning, the ventilation plan was not complied
with. Therefore, Respondent has violated
30 C.F.R. §75.370(a)(1).
The
next issue is whether the violation was S&S. Since I have found that a violation of §75.370(a)(1)
occurred, the first element of the Mathies
test has been satisfied.
The second element of Mathies requires that there be a
discrete safety hazard that was contributed to by the violation. Coal
dust-induced respiratory ailments remain a pernicious risk to coal miners’
health. Recent data from the National Institute for Occupational Safety and
Health indicate that black lung is becoming more common among the nation’s coal
miners, with even younger miners showing evidence of advanced and seriously
debilitating lung disease. Lowering
Miners’ Exposure to Respirable Coal Mine Dust, Including Continuous Personal
Dust Monitors, 75 Fed. Reg. 64, 412, 64, 413 (Oct. 19, 2010).
The
Commission has long recognized the insidious nature of black lung disease. In
affirming an administrative law judge’s decision holding that respirable coal
dust in excess of the permissible level prescribed by 29 C.F.R. §70.100(a) is
serious and substantial, the Commission stated that, “[t]here is no dispute,
however, that overexposure to respirable dust can result in chronic bronchitis and pneumoconiosis.” Consolidation Coal Co., 8 FMSHRC 890,
898 (June 1986) (emphasis added), aff’d,
824 F.2d 1071 (D.C. Cir. 1987).
Nevertheless,
I find that the second element of Mathies
has not been met. No evidence was presented showing that a discrete safety
hazard resulted from making a single two foot cut without an operational
scrubber. No air quality readings were taken, so there is no evidence that the
air quality exceeded mandated limits despite the failure of the scrubber for
two feet of the cut. Further, there is
no evidence that the episode at issue was a frequent practice at the Mine. Rather, it appears to have been an anomaly
resulting from a miner’s poor judgment. Therefore, the level of negligence, as well as
a determination of whether the violation was S&S, must be based on only a
single brief instance of exposure to coal mine dust. Moreover, the evidence indicates that a full 32-foot cut would have
taken about 35-40 minutes (TR 101); therefore, two feet of that cut
should not have taken more than two or three minutes. I take judicial notice that it takes many
years – most often decades - of exposure to coal mine dust for respiratory
disease to develop from it. Even if the
air quality during those few minutes the scrubber was off exceeded regulatory
standards, it is impossible for the effects of that two minute exposure to coal
mine dust to have created a hazard even if there was evidence to show that it exceeded allowable limits.
Thus,
I find that the second element of Mathies
has not been satisfied. There is no
evidence that making the extended two-foot cut without the scrubber operating
caused the air quality even in the immediate area of the miner to exceed
allowable limits; and even if it did cause the dust level to reach unallowable
limits, that still would not have created a hazard. Since Mathies’s second element has not been met, the violation set out in
Citation 8318195 cannot be found to be S&S. Therefore, the third and fourth
elements of Mathies will not be
discussed.
Number
of Miners Affected
Inspector
Oliver testified that, at the time of the citation, approximately 12 to 14
miners from both the second and third shifts were working in the section. Tr. 50.
He determined that seven persons would be affected by this violation because “I
was counting the possibility that the bolt machine would be on the return side
of the miner. So that’s two persons. The miner/operator would be three persons.
The shuttle car operators would be two or three additional persons depending on
the number of shuttle cars in operation. And then, of course, you’ve got a
boss, an electrician and maybe some other a scoop operator that could have been
exposed.” Tr. 41.
Muse
testified that besides himself, the other men in the section at the time would
have been drill operators, a scoop operator, and shuttle car operators. Tr. 113.
He did not know exactly where the scoop would have been located at the time the
extended cut was made. Tr. 94. He testified that the ventilation system in the
mine would have carried the dust produced by his cutting away from the other
miners. Id. He testified that the
other miners in the section at the time the extended cut was made would have
had no reason to be in the path of the return air. Tr. 95.
Comparing
the evidence submitted from both sides regarding the number of miners that
would have been affected, Inspector Oliver made his determination that seven
miners would be affected based on the number of miners that would have been in
004 MMU at that time, whereas the Respondent submitted evidence through a mine
map and Muse’s testimony that any suspended dust generated by his cutting would
have been circulated away from the five or six other miners in the vicinity at
the time the extended cut was taken. He also testified, as I mentioned above,
that the miners in the section would not have had any reason to be in the area
where the return air was circulating. The Secretary does not address this
evidence in her post-hearing brief, nor did she cross-exam Muse based on this
specific testimony. She only relies on Inspector Oliver’s determination, based
on his estimation at the time he wrote the citation. The Respondent argues
that, at most, Muse would have been the only miner affected by any suspended
dust at the time the extended cut was made. Res’p Br. 11.
I
find this argument convincing. The
Secretary has not met her burden of proving that seven miners would have been affected by
the violation of 30 C.F.R. § 75.370(a)(1). Therefore, for Citation No. 8318195,
I modify the number of miners affected from seven to one.
Further,
based on the above discussion, I modify the gravity level from “reasonably
likely” to “unlikely”, from “permanently disabling” to “no lost work days”, and
from “S&S” to “non-S&S.”
Negligence and Unwarrantable Failure
Next, it must be determined if a
finding of high negligence for Citation No.
8318195 is appropriate. 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.”
. . . 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. . . . MSHA considers mitigating
circumstances which may include, but are not limited to, actions taken by the
operator to prevent or correct hazardous conditions or practices.” 30 C.F.R. §100.3(d). Low negligence exists when “[t]he operator
knew or should have known of the violative conditions or practices but there
are considerable mitigating circumstances.” Id. Moderate negligence is
when “[t]he operator knew or should have known of the violative condition or
practice, but there are mitigating circumstances.” High negligence exists when
“[t]he operator knew or should have known of the violative condition or
practice, and there are no mitigating circumstances.” Id. at Table
X. See also Brody Mining, LLC,
2011 WL 2745785 (2011) (ALJ).
Curtis Davis, the foreman, who is an
agent of the Respondent, was on notice that the scrubber was malfunctioning.
Tr. 116. In fact, he approached Muse and told him, “they’re having problems with the scrubber.” Id.
Since the scrubber was malfunctioning,
and Davis knew that cuts in excess of 20 feet were contemplated at that time,
he should have taken the scrubber out of service or, if there was value in
making just 20 foot cuts until the scrubber was repaired, instructed the miner
operator not to make any cuts in excess of 20 feet. There was no evidence presented that he took
either of these actions. Nevertheless, there is no indication that Davis had
reason to believe Muse would make an extended cut if the scrubber was not
functioning, nor is there evidence that Muse would have attempted the extended
cut if the scrubber had not been working when he started it. Had Muse stopped the cut as soon as the
scrubber stopped working no violation would have occurred. Further, there is no
evidence that making an extended cut without an operational scrubber was a
generally accepted practice at the Mine.
Under these circumstances, I find
that the Respondent was only moderately negligent. For one thing, there was a mitigating
circumstance that was not considered by Inspector Oliver. Inspector Oliver
admitted that “[i]f they had told me that it [the scrubber] was working during
the shift that would have played into my consideration.” and he would have
considered that to be a “mitigating factor.” Tr. 72. In addition, although it was not unforeseeable
that Muse would attempt to make the extended cut since the continuous miner was
not locked out and it had been working intermittently, a reasonable man in
Davis’s place would not have expected that an experienced miner operator such
as Muse would continue to make the extended cut if the scrubber stopped
working. Finally, there is no evidence
that Davis sanctioned Muse’s actions.
Lastly
in regard to Citation 8318195, I conclude that this violation was not an
unwarrantable failure. An unwarrantable failure is a higher standard of
negligence. It involves “aggravated conduct constituting more than ordinary negligence.”
Emery Mining Corp. v. Secretary of Labor, 9 FMSHRC 1997, 2001 (Dec.
1987). This violation did not involve
aggravated conduct on Respondent’s part.
There is no evidence that Respondent knew the extended cut was going to
be made or encouraged its miner operators to make cuts in violation of the
Mine’s ventilation plan. Moreover, none
of the conditions listed in Mullins &
Sons Coal Co. which must be present to find a violation to be an
unwarrantable failure are present here.
Accordingly, I conclude that Respondent did not engage in a
unwarrantable failure to comply with §75.370(a)(1).
Order No. 8318196
The first issue to be resolved in
regard to this order is whether there was a violation of 30 C.F.R. § 75.362(a)(2),
which requires an on-shift examination to assure that the ventilation plan is
being carried out. The approved
Ventilation Plan at the time of the violation at issue required:
Scrubber
Include checks of the following as
part of on-shift exam of
dust control parameters where
appropriate:
·
Scrubber
air quality
·
Cleanliness
of duct, screen, etc.
·
Water
pressure for screen spray
·
Operation
of screen spray
·
Operation
of demister and sump
·
Centerline
pitot reading correlates to full traverse
S-4, at
17.
The
evidence in the record shows that there were no on-shift checks made on the
scrubber of the Joy continuous miner. Tr. 58. Muse admitted that he did not
examine the scrubber. Tr. 98, 107. The Respondent argues in its post-hearing
brief that since Muse had been told at the beginning of the shift that the
scrubber was not operating, Muse’s failure to turn on the scrubber in order to
do the dust parameter check cannot be high negligence. Resp. Br. 6-7. This
argument has no merit. Regardless of whether this would absolve Respondent of
the need to do an on-shift examination of the scrubber at that time, the fact
remains that eventually Muse elected to make a cut for which he needed the
scrubber. Once he made that decision,
the rationale for failing to perform an on-shift examination of the scrubber is
no longer applicable. That an on-shift
examination was not conducted prior to using the scrubber is a clear violation
of the ventilation plan requirements cited above. Thus, the evidence
unequivocally shows that there was a violation of 30 C.F.R. §75.362(a)(2).
Significant
and Substantial/Gravity of Violation
The next issues to be resolved are
whether the failure to check the scrubber is a significant and substantial
violation of a mandatory standard and whether the gravity level should be
affirmed. The citation lists the violation as having a reasonable likelihood of
injury or illness that could be reasonably expected to result in a permanently
disabling injury, with seven persons affected.
Failing to conduct an on-shift check
of the scrubber satisfies the first prong of the Mathies test, as an underlying violation of the mandatory safety
standard §75.362(a)(2).
In regard to Mathies’s second element, Inspector Oliver determined that the
discrete safety and health hazard from Respondent’s lack of an adequate
on-shift examination was the exposure of miners to excessive amounts of
respirable dust. Tr. 58. But the mere fact that the scrubber was not examined
did not cause “a measure of danger to safety”.
Even if the scrubber was not working, the continuous miner could be
operated without putting any miners at risk of injury. Danger to safety, i.e., an unsafe level of respirable dust, would only occur if the
miner was operated without an operational scrubber in violation of the
ventilation plan, that is, if the miner was making extended cuts with the
scrubber off. That no danger to safety
existed is emphasized by the fact that Inspector Oliver did not require the
continuous miner to be removed from service to abate the violation. He simply required that the miner not be used
to make extended cuts until the scrubber was repaired. TR 52-53.
This is different from the failure to perform a required examination of items
such as a vehicle’s brakes or steering, for a vehicle cannot be operated safely
at all if items such as these are not working properly. The miner could be operated safely despite
the malfunctioning scrubber provided no extended cuts were made.
I find that the failure to conduct
an on-shift examination of the scrubber did not cause a danger to safety. Accordingly, I conclude that the second prong
of the Mathies test has not been
satisfied, and the violation was not significant and substantial.
Negligence/Unwarrantable
Failure
Next, it must be determined if a
finding of high negligence for Citation No.
8318196 is appropriate and if there was an unwarrantable failure to comply
with a mandatory standard. Davis, the foreman, who is an agent of the Respondent,
was on notice that the scrubber was malfunctioning. Tr. 116. He told Inspector Oliver that no one checked
the scrubber, as was required by the dust parameter checks. Tr. 76. This was
confirmed by Muse’s testimony that he did not check the scrubber. Tr. 98, 107.
As stated above, this is a direct violation of the ventilation plan
requirements, although that violation is not at issue here. Further, it was negligent on the part of
Davis since the section was under his direct oversight and control.
As
was noted above, high negligence exists when “[t]he operator knew or should have
known of the violative condition or practice, and there are no mitigating
circumstances.” As there are no mitigating circumstances to this negligent
behavior on the part of the mine operator, it meets the requirements of high
negligence.
Although I have found that
Respondent’s failure to conduct an on-shift examination of the scrubber constituted
high negligence, the evidence fails to prove that Respondent acted with
reckless disregard or intentional misconduct.
The evidence also does not show
that the violation at issue occurred more than once, for there is no history of
similar violations. Further, the
violation occurred within a discrete period, since the on-shift examination was
required to be conducted within an hour of the start of the third shift. In addition, although the violation was
obvious, it did not create a high degree of danger. Although in failing to
examine the scrubber Respondent acted with indifference, and Respondent was on
notice that greater efforts were needed to comply with its ventilation plan
since it was on a reduced respirable dust standard, I find that these factors
do not outweigh the elements of an unwarrantable failure that have not been
met. Therefore, I conclude that the
failure to perform the on-shift examination of the scrubber was not an
unwarrantable failure.
Civil Penalty
Section 110(i) of the Mine Act sets
forth the criteria to be considered in determining an appropriate civil
penalty. The Mine Act delegates the duty of proposing penalties to the
Secretary, 30 U.S.C. §§ 815(a) and 820(a), but delegates to the Commission and
its judges “authority to assess all civil penalties provided in [the] Act.” 30
U.S.C. § 820(i). Thus, when an operator
notifies the Secretary that it intends to challenge a penalty, the Secretary
petitions the Commission to assess the penalty, but the Commission is not bound
by the Secretary’s proposed assessment. 29 C.F.R. §§2700.28, 2700.30(b). Under
Section 110(i) of the Mine Act, the Administrative Law Judge must consider the
following six criteria in determining an appropriate civil penalty:
[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).
Reviewing the operator's history of
violations, the Mine had a relevant history of 12 violations at the time of the
hearing, with penalties totaling $1,369.00, none of which were 104(d)(1)
citations or orders. Altogether, the operator's mines had 22 violations with
penalties totaling $2,369.00. Sec’y Ex. S-5. Respondent produced approximately
203,763 tons of coal in the year in which the contested citation and order were
issued. Sec’y Br. 1. As established by my analysis above, the operator was negligent
in its violations of 30 C.F.R. §§75.370(a)(1) and 75.362(a)(2). The operator
does not contend that payment of the proposed penalties would affect its
ability to continue in business. As I have concluded above, the violation of §75.370(a)(1)
was unlikely to cause injury and was moderately negligent, but it was not
S&S. In violating §75.362(a)(2), Respondent was highly negligent but the
violation was not S&S or an unwarrantable failure.
As
to abatement, in regard to the violation of §75.370(a)(1), Inspector Oliver had
a safety meeting with the section
foreman and the miner operator immediately after the violation was discovered, and
it was agreed that no more extended cuts would be made until the scrubber was
repaired. The violation of §75.362(a)(2)
was abated with another safety meeting,
this time with all the production crews, regarding the requirements of the on
shift dust parameter checks.
Taking
into account the six penalty criteria set forth in the Mine Act, including the
reduction in the level of negligence for Citation No. 8318195, I find that the
following penalties are appropriate in this case:
Citation
No. 8318195 – 104(a) citation, moderate negligence, injury unlikely, no lost
workdays, non-S&S, and one person affected: $100.00.
Order
No. 8318196 – 104(a) citation, high negligence, injury unlikely, permanently
disabling, non-S&S, and one person affected: $1,500.00.
Order
Based on the foregoing, Citation No.
8318195 is modified to a citation issued pursuant to section 104(a) of the Act
with moderate negligence, injury unlikely, no lost workdays, one person
affected, non-S&S. Order No. 8318196 is modified to a citation issued
pursuant to section 104(a) of the Act, injury unlikely, non-S&S, one person
affected. Powell Mountain Energy LLC is hereby ORDERED to pay the Secretary of Labor the sum of $1,600.00 within 30
days of the date of this decision.
/s/ Jeffrey Tureck
Jeffrey Tureck
Administrative
Law Judge
Distribution
(Certified Mail):
Brian D.
Mauk, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7th Avenue
North, Suite 420, Nashville, TN 37219
John M.
Williams, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont
Centre Circle, Suite 375, Lexington, KY 40513
[1] The scrubber is more formally known as a “flooded bed dust collector system.” Tr. 35.
[2]Inspector
Oliver relied to some extent on what he states he was told by a miner who approached him when he
was outside on the surface. That miner allegedly told Inspector Oliver that the
scrubber was unhooked in the panel board and he was the one who unhooked it
because it was tripping the breaker on the miner. Tr. 80. The miner also
allegedly told Inspector Oliver that he would look him in the eye and call him
a liar if he was brought into court because he was worried about losing his
job. Id. Inspector Oliver testified
that he promised to keep the identity of the miner confidential, and he has. Id.
Although hearsay may be admitted
under the Commission’s rules (see §2700.63(a)),
it does not have to be. The hearsay
evidence regarding Inspector Oliver’s conversation with the unnamed miner is
not inherently reliable, and the Respondent has no possible way to challenge
the miner’s observations or his veracity since Respondent does not know his
identity, let alone have the opportunity to confront him. I will not consider this evidence.