DECISION
Appearances: Emily B. Hays, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, on behalf of the Secretary of Labor;
Wesley T. Campbell, Manager of Safety and Training, Tri County Coal, LLC, Crown III Mine, Farmersville, Illinois, for Tri County Coal, LLC.
Before: Judge Zielinski
These cases are before me on Petitions for Assessment of Penalty filed by the Secretary
of Labor pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 815(d). The petitions allege that Tri County Coal, LLC, is liable for 12 violations of the
Secretary’s Mandatory Safety Standards for Underground Coal Mines
and a related regulation,
and propose the imposition of civil penalties in the total amount of $50,442.00. Prior to the
hearing, the parties agreed to settle six of the violations. That settlement will be approved. A
hearing was held in St. Louis, Missouri, on the remaining violations, for which $21,551.00 in
penalties were assessed. The parties filed post-hearing briefs following receipt of the transcript.
For the reasons that follow, I find that Tri County committed the violations, and impose civil
penalties in the total amount of $12,225.00.
Findings of Fact - Conclusions of Law
The Crown III mine is a large underground coal mine located in Macoupin County, Illinois. It is owned by Springfield Coal Company and is operated by Tri County Coal, LLC. The violations in contest in these proceedings were issued by authorized agents of the Secretary in August 2010 and January and March 2011. Civil penalties assessed for the violations were timely contested by Tri County.
Docket No. LAKE 2011-308
Citation No. 8418832
Citation No. 8418832 was issued by MSHA inspector Jeffrey Adams
at 11:00 a.m., on
August 5, 2010, pursuant to section 104(a) of the Act. It alleges a violation of 30 C.F.R.
§ 75.1725(a), which requires that, “Mobile and stationary machinery and equipment shall be
maintained in safe operating condition and machinery or equipment in unsafe condition shall be
removed from service immediately.” The violation was described in the “Condition and
Practice” section of the citation as follows:
The #102 Simmons-Rand battery ram car, located at the Unit #4 battery barn is not being maintained in safe operating condition. The service brakes are weak and will not readily bring the equipment to a stop. The ram car was immediately removed from service.
This standard was cited 27 times in two years at this mine.
Ex. G-9
Adams determined that it was reasonably likely that the violation would result in a permanently disabling injury, that the violation was significant and substantial (“S&S”), that one person was affected, and that the operator’s negligence was moderate. A specially assessed civil penalty in the amount of $3,700.00 was proposed for this violation.
The Violation
Adams was conducting a regular quarterly inspection of the Crown III mine on August 5,
2010. At the unit 4 battery barn, he inspected a battery-powered ram car. The car was not
locked and tagged out, and by all appearances was available for use. At Adams’ request, the
miners’ representative that accompanied him operated the car. When the brakes were applied,
the car pulled to one side, and the operator remarked that “something wasn’t quite right with the
brakes.” Tr. 108; Ex. G-10. The car was taken out of service. Maintenance foremen soon
arrived and, after checking the car, determined that one of two brake systems on the car was not
working. Tr. 109.
The ram car brake systems are comprised of springs and friction plates, and are integral to the car’s two gear cases, one on each side of the equipment. When the car is operating, hydraulic pressure releases the brakes and allows the car to move. Depressing the brake pedal “dumps” the hydraulic oil back into a tank, releasing the pressure and allowing the brakes to engage. The gear cases are complicated mechanical assemblies, and the mine does not attempt to repair them. The defect was remedied by replacement of the defective gear case.
Tri County concedes that the brake on the car was defective, and that safety standards
must be complied with for all equipment unless it has been effectively taken out of service.
However, it argues that, while the car was available for service, the citation should be vacated
because the defective condition was identified during what was essentially a typical pre-operational inspection.
Tri County has a policy that requires pre-operational inspections of
mobile equipment. It contends that the defect would have been discovered during the inspection
and that the car would not have been put into service. The argument appears to be based, in part,
upon Wake Stone, 33 FMSHRC 1205 (May 2011) (ALJ) (review granted, June 9, 2011), wherein
two citations alleging defects in mobile equipment at a surface metal/nonmetal mine were
vacated because they were discovered when the MSHA inspector allowed the operator to conduct
a pre-operational inspection mandated by regulation prior to inspecting the equipment, which
was found to have negated the operator’s strict liability.
I cannot accept Tri County’s argument. The decision in Wake Stone, which is presently
on review before the Commission, was based upon regulations applicable to surface metal and
nonmetal mines, and is arguably inconsistent with Commission precedent. See Allen Lee Good,
23 FMSHRC 995, 996-98 (Sept. 2001). While those regulations require that audible warning
devices on mobile equipment be “maintained in functional condition,” they also require that such
equipment be inspected before being put into operation and that any defects affecting safety be
“corrected in a timely manner,” or that the equipment be taken out of service.
In contrast, the
regulations applicable to underground coal mines require that equipment be maintained in safe
operating condition and that “equipment in unsafe condition shall be removed from service
immediately.”
There is no statutory or regulatory mandate to conduct pre-operational
inspections of non-diesel powered equipment in underground coal mines. Moreover, as noted in
Wake Stone, I had previously issued a decision at odds with that holding. See Bilbrough Marble
Div., Texas Architectural Aggregate, 24 FMSHRC 285 (March 2002) (ALJ).
As Tri County notes in its brief, there is no dispute that the ram car had a defective brake and that it was available for use by miners, i.e., it had not been removed from service immediately. Under the Act’s strict liability rule, Tri County is liable for the violation. Application of the strict liability doctrine is consistent with the Act’s overriding purpose of assuring the safety of miners. It does not reflect negatively on the importance or obvious merit of Tri County’s policy of requiring pre-operational inspections.
Significant and Substantial
The Commission recently reviewed and reaffirmed the familiar Mathies
framework for
determining whether a violation is S&S. As explained in Cumberland Coal Res., 33 FMSHRC
2357, 2363-65 (Oct. 2011):
The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d), and refers to more serious violations. A violation is S&S if, based on 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. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies, 6 FMSHRC 1, the Commission further explained:
In order to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum, the Secretary of Labor 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 in question will be of a reasonably serious nature.
Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria). An evaluation of the reasonable likelihood of injury should be made assuming continued normal mining operations. See U.S. Steel Mining Co., 6 FMSHRC 1824, 1836 (Aug. 1984).
. . . .
. . . .
The Commission recently discussed the third element of the Mathies test in Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010) (“PBS”) (affirming an S&S violation for using an inaccurate mine map). The Commission held that the “test under the third element is whether there is a reasonable likelihood that the hazard contributed to by the violation, i.e., [in that case] the danger of breakthrough and resulting inundation, will cause injury.” Id. at 1281. Importantly, we clarified that the “Secretary need not prove a reasonable likelihood that the violation itself will cause injury.” Id. The Commission also emphasized the well-established precedent that “the absence of an injury-producing event when a cited practice has occurred does not preclude a determination of S&S.” Id. (citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)).
The fact of the violation has been established. The violation contributed to a discrete safety hazard, an impaired braking system that made the ram car stop more slowly and pull to one side creating an increased risk of a collision with a miner, an object, or another vehicle. Any injury resulting from such a collision would most likely be reasonably serious. The question is whether the discrete safety hazard was reasonably likely to result in an injury producing event.
Adams determined that the violation was S&S because the defective brake caused the car to stop more slowly and to pull to one side. The car was operated on a split working section, where as many as 15-20 other miners might be working. Tr. 110. He reasoned that a miner might suffer crushing injuries to lower extremities if he were struck and pinned against another piece of equipment or a coal rib if the car pulled to the side or failed to stop quickly enough. Such a collision could also result in injury to the operator of the car, although not as severe. The operator might also suffer an injury if the car collided with a coal rib or another vehicle.
Tri County raises two arguments against the S&S allegation. It asserts that no injury was likely because its policy of requiring pre-operational inspections dictated that the defect would have been discovered in the normal course of continued mining operations before the car was put back into service. It also challenges Adams’ testimony on the likelihood that a miner might be pinned against a rib or another piece of equipment by the car’s pulling to the side. It has a strict policy that no one can be in the “red zone” on either side of a machine while it’s being trammed in any direction. Tr. 157. When asked whether a miner might enter the red zone of a piece of equipment, John Rolando, a Tri County safety technician with 38 years of mining experience, testified “absolutely not.” Tr. 161-62. Adams stated that he had never seen a Tri- County miner in the red zone of a piece of equipment. Tr. 126.
Violations of safety standards under the Mine Act are evaluated taking into account the vagaries of human conduct. See, e.g., Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984). Here, despite Tri County’s policies, a miner might operate the piece of equipment with the known defect, or a miner might put himself, or be put in, close proximity to the ram car where he might be injured as a result of the defective brake. There is evidence of such vagaries of human conduct here. Adams believed that the defect could not have occurred while the car was sitting idle at the battery barn, a reasonable conclusion that Tri County appears to agree with. Tr. 115-16; Resp. Br. at 20. Consequently, the last miner to operate the car should have been aware of, what the parties agree, was an obvious problem with the brake. Richard Frigo, chairman of Tri County’s safety committee, opined that no one would operate the car “if they found that condition existed.” Tr. 167. However, the defect was not reported, and the ram car remained available for use by another miner. Moreover, it would not have been necessary for a miner to violate Tri County’s red zone policy in order to suffer an injury, although that would certainly have been within the realm of possibilities. The defective brake could have resulted in the car’s colliding with a rib or another piece of equipment, either on the working section or while traveling to or from it, resulting in an injury to one or both operators.
In order to establish the significant and substantial nature of a violation, the Secretary need not prove that the hazard contributed to actually will result in an injury causing event. Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 678 (Apr. 1987). Considering the vagaries of human conduct, I find that the discrete safety hazard was reasonably likely to result in a reasonably serious injury, and that the violation was S&S.
Negligence
Tri County argues that its negligence was no more than low because there is no evidence that it had any knowledge of the defective condition. Adams believed that the defect could not have occurred while the car sat idle at the battery barn, and that the miner that last operated it should have known of the defect and reported it. Tr. 115-16. That equipment operator was, no doubt, negligent. However, the negligence of a rank and file miner cannot be imputed to Tri County. Whayne Supply Co., 19 FMSHRC 447, 451-53 (Mar. 1997); Fort Scott Fertilizer-Cullor, Inc., 17 FMSHRC 1112, 1116 (July 1995); Southern Ohio Coal Co., 4 FMSHRC 1459, 1463-64 (Aug. 1982) . There is no evidence that the defect was reported to a Tri County manager or agent.
I find Tri County’s negligence to have been low.
Order No. 6676764
Order No. 6676764 was issued by MSHA inspector Dennis Baum
at 12:50 a.m., on
August 23, 2010, pursuant to section 104(d)(2) of the Act. It alleges a violation of 30 C.F.R.
§ 75.202(b), which requires that, “No person shall work or travel under unsupported roof.”
The violation was described in the “Condition and Practice” section of the order as follows:
Evidence is present to indicate that persons have been working and/or traveling under unsupported roof in the number 3 entry in the 2 South/Main West. There are at least 8 roof bolts just inby #8 crosscut that the roof has fallen away from the bolts or there is only loose shale between the plates and the roof, and at crosscut 9 ½ , there are at least 6 bolts with a like condition. Those bolts are no longer effectively supporting the roof. These areas have been cleaned with a scoop or mini-trac with a bucket and there are tire tracks still visible to show the location of travel in the area. The operator engaged in aggravated conduct constituting more than ordinary negligence in that they allowed persons to operate equipment under these unsupported areas. This violation is an unwarrantable failure to comply with a mandatory standard. The area has been closed to all persons except those allowed under Section 104(c) of the Mine Act.Standard 75.202(b) was cited 3 times in two years at mine 1102632 (3 to the operator, 0 to a contractor).
Ex. G-13.
Baum determined that it was reasonably likely that the violation would result in a lost work days or restricted duty injury, that the violation was S&S, that one person was affected, and that the operator’s negligence was high. The order was issued pursuant to section 104(d)(2) of the Act because Baum determined that the operator’s negligence rose to the level of unwarrantable failure. A specially assessed civil penalty in the amount of $8,400.00 was proposed for this violation.
The Violation – S&S
A major roof fall occurred at the Crown III mine on August 20, 2010, which blocked an escapeway and a travelway to the working section. An order was issued pursuant to section 103(k) of the Act, barring entry to the area until it could be examined, and Tri County could prepare and secure MSHA’s approval of a plan to rehabilitate the area. Thereafter, miners were allowed to perform approved rehabilitation work. The area in question, the #3 entry near crosscuts #8 and #9, had not been actively used prior to the fall. However, as part of the rehabilitation plan, the #3 entry was to become a travelway, and re-supporting of the mine roof was needed in this and other areas in proximity to the roof fall.
Baum was involved in MSHA’s examination of the fall and, on August 23, was
inspecting the rehabilitation work.
Tr. 174. He was accompanied by Ken Fox, the
superintendent, and Steve Norman, a miner’s representative. Considerable rehabilitation work
had been done in the #3 entry between crosscuts #5 and #8. Ex. G-14. Eight foot tension bolts
had been installed and props had been set. The area from the #8 to the #9 crosscut had yet to be
rehabilitated. Baum observed that that area had been cleaned, most likely by a scoop or a mini-trac, both of which he observed in the area. Tr. 186. The entry had been cleaned rib-to-rib,
indicating that multiple passes had been made, and the material had been pushed past the #9
crosscut. There were two clusters of roof bolts in the #3 entry, around which material had fallen
away. Inby the #8 crosscut there were eight bolts from which the immediate mine roof had fallen
away, leaving the plates 18 to 24 inches from what was “apparently rock roof.” Tr. 178. As
Baum described it, the mine roof in that area consisted of a small layer of coal below a layer of
shale approximately two feet thick, which was topped by the limestone main mine roof. Over
time, the coal and shale dried and fell from between bolts. Two of the bolts were “coned,” i.e., broken shale remained resting on the 6" x 16" roof bolt plates, in a cone shape.
The second
area was just inby the #9 crosscut, where six-to-eight bolts were exposed, most of them being
coned. The material remaining around those bolts consisted of larger chunks, up to the size of a
basketball, and it appeared ready to fall if disturbed. Tr. 180. The tire tracks of the vehicles that
had cleaned the entry ran directly under the clusters of bolts with loose material around them.
Baum considered the loose material around the shafts of the bolts to be unsupported roof. Since the tire tracks of the vehicles that had cleaned the area ran directly under the unsupported roof, and neither of the vehicles had protective canopies, he determined that the standard had been violated and that the violation was S&S.
Tri County does not dispute the accuracy of the conditions described by Baum. Nor does
it argue that the violation was not S&S.
Rather, its challenge is directed to the unwarrantable
failure allegation. It contends that the section 104(d)(2) order should be changed to a section
104(a) citation, with an appropriate reduction in penalty. Resp. Br. at 22-24.
There is ample evidence that a miner traveled under unsupported roof while making multiple trips to clean the entry. A reasonably serious injury was reasonably likely to result from the safety hazard contributed to by the violation, and the violation was S&S.
Unwarrantable Failure - Negligence
In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission reiterated the law applicable to determining whether a violation is 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 an unwarrantable failure analysis is determined by looking at all the facts and circumstances of each case to see if any aggravating factors exist, such as the length of time that the violation has existed, the extent of the violative condition, whether the operator has been placed on notice that greater efforts are necessary for compliance, the operator’s efforts in abating the violative condition, whether the violation is obvious or poses a high degree of danger, and the operator’s knowledge of the existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) . . . ; Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of the relevant facts and circumstances of each case must be examined to determine if an actor’s conduct is aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353. Because supervisors are held to a high standard of care, another important factor supporting an unwarrantable failure determination is the involvement of a supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998).
The Secretary argues that the violation was the result of Tri County’s unwarrantable failure because the condition was obvious and extensive, it existed for three days, it posed a high degree of danger to miners, Respondent had been put on notice that greater efforts were needed for compliance, and management knew the violation existed. The Secretary’s focus on the “condition,” as opposed to the violation overstates her case somewhat. Tri County argues that MSHA has addressed coned bolts inconsistently in the past, and that it is not clear that a supervisor actually observed a miner travel under the coned bolts.
Obviousness – Length of time
The “condition,” the material fallen from between the bolts, no doubt was obvious and had existed for a lengthy period, probably months. However, as Baum explained, the #3 entry had been an “extra” entry, i.e., it had not been used and “no one probably would have been there, they were on the regular travelway.” Tr. 191. It only became active because of the August 20 roof fall in the main travelway, which necessitated re-routing of travelways and escapeways, and use of the #3 entry. Following the fall, and the issuance of the section 103(k) order, access to the area was restricted, and a plan was developed to rehabilitate the area around the fall and those areas that would be used for re-routed travelways and escapeways. That the coned bolts had existed, and continued to exist until the area was scheduled for rehabilitation, was not a violative condition. The violation was the miner’s travel under the loose material on the “coned” bolts.
The violation occurred over a relatively short period of time, however long it would have
taken for a scoop to have made several passes through the area, possibly an hour or less. It
would have been obvious that travel under the bolts coned with loose material would have been
hazardous, although there apparently was a difference of opinion on the degree of danger posed
by coned bolts, at least in certain areas.
Danger to miners
Baum was concerned about loose material falling and striking a miner, which he determined could result in an injury necessitating lost work days or restricted duty. Tr. 183. That loose material was on the coned bolts, not bolts that were completely exposed, i.e., where the immediate shale roof had fallen away up to rock. He was not concerned about a major roof fall, which could have had far more serious consequences. Tr. 181, 216. The first group of bolts consisted largely of “clean” bolts, i.e., there was no loose material remaining on the plates. Only “a couple” of those bolts were coned, and the loose material consisted of dried shale, which typically flakes and falls in thin layers. Tr. 178. Of more concern was the second cluster of 6 to 8 bolts, only a “couple” of which were clean – the rest being coned with larger chunks of loose material. Tr. 180. Those bolts were apparently at the outer end of the area that was to be rehabilitated. They were inby at crosscut #9 1/2 and Baum’s notes reflect that “the only area to be completed yet is reinforcing #3 entry from 8-9 xc and 9 xc back to entry 4 from 3.” Ex. G-14 at 8.
The violation posed a measure of danger to miners, a reasonable possibility of an injury resulting in lost work days or restricted duty. There were only a “couple” of coned bolts in the first area, and the loose material on the plates was relatively small pieces of shale. There was a larger number of coned bolts, with larger pieces of loose material, in the second area. Under the facts of this case, I find that the violation posed a moderately high degree of danger to miners.
Operator’s knowledge
Tri County certainly had knowledge of the condition of the bolts. As Baum explained, issuance of the section 103(k) order restricted entry to the area of the fall to MSHA, state inspectors, and company and miners’ representatives, who had to closely examine the entire area. Tri County had to prepare a plan to rehabilitate the area, and establish a new travelway and escapeways. That plan had to be approved by MSHA before the 103(k) order was modified to allow implementation of the plan. Fox, who accompanied Baum, stated that four supervisors oversaw the rehabilitation work and at least one was present in the area at all times. Tr. 186. That was consistent with Baum’s understanding of how a rehabilitation plan was typically implemented, i.e., “there was also a management person there. They didn’t just send people there – somebody oversaw that work all the time.” Tr. 189-90.
The rehabilitation plan was not introduced into evidence. While all involved parties knew, or should have known, about the defective bolts in the #3 entry, there apparently was nothing in the plan specifically addressing the sequence of steps for cleaning and re-bolting those areas. Baum believed that the proper sequence to perform those tasks was to clean the entry up to the loose bolts, install new bolts, and then finish the cleaning. Tr. 194. Instead, the entire area was cleaned before any re-bolting was done, most likely, as Baum suspected, because it may have been deemed “quicker to scoop the whole thing.” Tr. 194.
While Tri County knew about the loose bolts, it is unclear whether a Tri County manager directed or oversaw the actual cleaning and travel under the coned bolts, or whether a rank-and-file miner simply decided to clean the whole area, rather than stop at the first cluster of loose bolts. The roof fall affected a relatively large area, and a supervisor overseeing rehabilitation work would not necessarily have been present in the #3 entry when the cleaning was done. It is possible that the work could have been overseen, or at least tacitly approved, by a manager, because Tri County did not share Baum’s views on the dangers posed by loose or coned bolts. However, there is insufficient evidence upon which to base a finding that a manager directed or oversaw the hazardous travel.
Extensiveness
The extensiveness factor involves consideration of the scope or magnitude of a violation, not an additional consideration of dangerousness or obviousness. Eastern Associated Coal Corp., 32 FMSHRC 1189, 1195 (Oct. 2010). The violation cited is travel under unsupported roof, which has at least two components, space and time. The first cluster of loose bolts encompassed an area of approximately 10' x 18', but only a “couple” of bolts in that area were coned with loose material. The second area was somewhat smaller, but contained more coned bolts. Travel under those bolts most likely occurred for a relatively short period of time. I find that the violation was not extensive.
Notice of a need for greater compliance efforts
In issuing the order, Baum had considered Tri County’s “history of roof falls and accidents,” and the fact that he had previously issued two citations for violations of section 75.202(b). Tr. 192, 195. The offhand reference to a history of roof falls and accidents, unquantified as to time and number, is of little relevance, particularly since Baum was not concerned about a major roof fall. Similarly, I find that the issuance of two citations for violations of section 75.202(b), without disclosure of when or under what circumstances they were issued, is not sufficient to find that Tri County had been put on notice of a need for greater compliance efforts with respect to this violation.
Abatement efforts
The focus of the abatement effort factor is on compliance efforts made prior to the issuance of the violation, generally a measure of an operator’s response to violative conditions that were known, or should have been known to it. While the parties stipulated that Tri County exhibited good faith in abating the violation, post-citation efforts are not relevant to the determination of whether the operator engaged in aggravated conduct by allowing a violative condition to occur. Enlow Fork Mining Co., 19 FMSHRC 5, 17 (Jan. 1997).
Again, the distinction between unsupported roof conditions, and the actual violation – travel under unsupported roof – must be kept in mind. The roof conditions were known to Tri County, and to all other involved parties, including MSHA and State inspectors. A rehabilitation plan had been approved, pursuant to which those conditions were being addressed. In the course of implementation of that plan, a miner operated an open scoop or mini-trac under the unsupported roof. There is no direct evidence that Tri County had notice of the actual violation, prior to its occurrence. I find that the abatement efforts factor should not be considered in the unwarrantability determination.
Conclusion
Of the factors considered to determine unwarrantability for this violation, the most significant are that the violation posed a moderately high degree of danger to a miner, and the operator’s knowledge. That the violation was not extensive, existed for a relatively short period of time, and the fact that the operator had not been put on notice of a need for greater compliance efforts, mitigate against a finding of unwarrantability. That travel under the coned bolts was an obvious violation is an important consideration, but is largely subsumed in the consideration of the operator’s knowledge.
Upon consideration of all of the factors, I find that the violation was not the result of Tri County’s unwarrantable failure. Baum’s determination was largely based upon a belief that Tri County supervisors were involved in the determination to scoop the area before correcting the unsupported roof conditions. However, it is equally plausible that that determination was made by a rank-and-file miner, and was executed without the knowledge of a supervisor.
Nevertheless, Tri County’s managers were heavily involved in the rehabilitation effort and, at the very least, they did not assure that the miners performing the rehabilitation work did so in a manner that did not involve travel under the loose bolts. I find its negligence to have been high.
Docket No. LAKE 2011-467
The violations at issue in this docket relate to ineffective and improperly sealed splices in a trailing cable of a roof bolter. On January 8, 2011, Baum issued two unwarrantable failure orders pursuant to section 104(d)(2) of the Act. The first violation was for the ineffective splices on the cable. The second was for an insufficient examination of the cable.
Order No. 8419153
Order No. 8419153 alleges a violation of 30 C.F.R. § 75.604(b), which requires that, “When permanent splices in trailing cables are made, they shall be [e]ffectively insulated and sealed so as to exclude moisture.” The violation was described in the “Condition and Practice” section of the order as follows:
The number 2, 3-conductor trailing cable supplying 480 VAC power to the number 67 Fletcher roof bolter, in service in the unit 1, 3 West/2 South Panel, contains five defective permanent type splices that are not effectively insulated and sealed so as to exclude moisture. The outer jackets on three of these splices are cut or torn exposing the insulated inner conductors and two of these splices have the outer jacket cut or torn such that the insulating material is so thin as to not be effective. The records of the weekly electrical examination of this bolter indicates that this bolter was just checked on the last previous shift. The condition of these splices is so obvious that anyone would have seen them during an examination. The only record of any hazardous conditions found during the weekly examination on 1/8/11 was a B.O. splice with corrective action showing it had been taped, but during the inspection of this bolter there were no areas in the cable that had any new tape. The operator has engaged in aggravated conduct constituting more than ordinary negligence in that the damaged splices were not found and properly recorded. This violation is an unwarrantable failure to comply with a mandatory standard.
Ex. G-17.
Baum determined that the violation was unlikely to result in a fatal injury, that it was not S&S, that one person was affected, and that the operator’s negligence was high. The order was issued pursuant to section 104(d)(2) of the Act, and alleged that the violation was the result of Tri County’s unwarrantable failure to comply with the standard. A civil penalty in the amount of $4,000.00 was assessed for this violation.
Order No. 8419155
Order No. 8419155 was also issued pursuant to section 104(d)(2) of he Act. It alleges a violation of 30 C.F.R. § 75.512, which requires that:
All electrical equipment shall be frequently examined, tested, and properly
maintained by a qualified person to assure safe operating conditions.[
] When a
potentially dangerous condition is found on electrical equipment, such equipment
shall be removed from service until such condition is corrected. A record of such
examination shall be kept and made available to an authorized representative of
the Secretary and to the miners in such mine.
The violation was described in the “Condition and Practice” section of the order as follows:
An inadequate weekly electrical examination of the number 67 Fletcher roof-bolter, in service in the unit 1, 3 West/2 South panel, was conducted on the midnight shift on 1/8/11. Five defective permanent type splices were found in the trailing cable as cited in a 104(d)(2) order issued during this inspection shift. The condition of these splices is very obvious and should have been found and corrected during the weekly examination. It is obvious that the cable has not been removed from the reel and examined. The operator has engaged in aggravated conduct constituting more than ordinary negligence in that a complete examination has not been conducted on this bolter resulting in the failure to find and correct obvious hazardous conditions. This violation is an unwarrantable failure to comply with a mandatory standard.
Ex. G-19.
Baum determined that it the violation was unlikely to result in a fatal injury, that it was not S&S, that one person was affected, and that the operator’s negligence was high. A civil penalty in the amount of $4,000.00 was assessed for this violation.
The Violations
On January 8, 2011, during a regular quarterly inspection, Baum inspected a Fletcher roof bolter and its trailing cable. The inspection was conducted during the day shift, on a Saturday. The mine had been idle since the second shift the day before. He was accompanied by Shane Gilpin, a fill-in committee man, who served as the miners’ representative. Tri County declined the opportunity to participate in the inspection. Baum started to examine the bolter’s cable, after it had been disconnected from the power center. He performed a “hand-over-hand” inspection of the cable, starting from the plug and moving toward the equipment. At the last open crosscut, where the cable was hung along the rib, he noticed two splices that appeared to be inadequately insulated. He examined the splices more closely, and observed that they had “opened up,” such that there was only a layer of tape covering the opening to the inner conductors
When he reached the bolter, he pulled the rest of the cable off the storage reel, and observed three additional splices that were completely open, exposing the inner conductors.
The pilot wire for the ground check system was protruding from one of the splices. He called the chief repairman and had all five splices cut open so that he could closely examine the inner conductors. Because the insulation on those conductors was intact, he determined that the conditions were unlikely to result in an injury, and that the violation was not S&S. However, in the course of continued normal mining operations the insulation on the inner conductors could be damaged, in which case a fatal injury would be possible to a miner handling the cable in the damp conditions. Tr. 241.
He was able to see the weakened splices in the cable on the rib as he walked up to them. He felt that they were obvious, and should have been observed and corrective action taken.
The three open splices that were discovered as the cable was removed from the reel were very obvious, and appeared to have existed for a substantial period of time, i.e., 4-5 days. When he exited the mine he checked the record of the bolter’s most recent permissibility examination, the equipment’s required weekly electrical examination. The report bore a date of January 8, 2011, indicating that it had been made on the midnight maintenance shift immediately prior to the day shift during which the inspection was conducted. Tr. 242-43; Ex. G-22. The report did not reflect any defects in the cable, noting only that one splice was retaped. Baum had not seen any recently applied tape on the cable. He then issued a second violation for failure to perform an adequate electrical examination. He rated Tri County’s negligence with respect to both violations as “high.”
Gilpin, was working for Tri County as an outby repairman at the time he accompanied Baum on the inspection. In March of 2012, he joined MSHA, and at the time of the hearing was an inspector in-training. He confirmed that there were five bad splices on the cable, and that the three that were exposed when the cable was taken off the reel were open and obvious. Tr. 281-82.
When he issued the violations, Baum believed that the mine had had a “clean” inspection,
and had come off of the “d-chain.”
As a result, the violations were issued pursuant to section
104(a) of the Act. As Baum explained it, the only thing keeping them from being issued
pursuant to section 104(d) was the fact that the violations were not S&S. However, when he
called his supervisor to advise of the issuance of the citations, he was told that the mine had not
had a clean inspection, and was still subject to section 104(d)(2) orders for unwarrantable
violations that were not S&S. He amended the citations to orders issued pursuant to section
104(d)(2) of the Act, and proceeded back underground to “red tag” the bolter.
Tri County introduced no evidence to rebut the descriptions of the conditions of the splices given by Baum and Gilpin. It argues that the examination of the cable was actually conducted on January 4, nearly four days earlier than the date reflected on the report. Consequently, it contends that the Secretary did not prove that the bad splices were present during the examination and that the examination order should be vacated. Based upon the same argument, it contends that the unwarrantable failure designation of the bad splice order should be deleted and that the order should be modified to a citation issued pursuant to section of 104(a) of the Act, and the penalty adjusted accordingly.
Tri County’s defenses are based upon its contention that the date on the electrical
examination report reflects the date that the examination of the bolter was completed, not the
date that the cable was examined. It contends that the examination was actually started several
days earlier, and that the cable was inspected on January 4. It places primary reliance on a
memorandum dated January 12, 2011, subject “Investigation of Citation #8419155.” Ex. R-11.
The body of the report consists of typed summaries of statements made by three electrical
repairmen who participated in the examination of the roof bolter. They relate that the
examination was started on Monday, January 3, 2011, and that the cable was inspected while the
bolter was de-energized during a power move on January 4. Two of the repairmen stated that a
splice was made on Monday, one stated that in addition to the splice, one “spot was re-taped” on
Tuesday. They indicated that the date on the examination report, January 8, was the date that the
examination was completed. None of the repairmen were called to testify at the hearing. Two
remained employed by Tri County; one worked for a different mine.
Tr. 288-89.
Aymer explained that weekly electrical examinations were generally started on Monday, and it was often not possible to complete an examination on a bolter in one day because the repairmen were frequently called away to attend to other, more urgent, repair tasks. Gilpin agreed that the equipment at the mine is relatively old and, as a result, more items may require attention, which can extend an examination. Breakdowns on other equipment can also divert repairmen’s attention from examinations.
The examiners use pre-printed forms, listing the components of each piece of equipment that need to be examined. As a component was examined, a check mark was placed in a box next to that component on the examination sheet. When all items for a particular piece of equipment had been checked, a date was entered reflecting that the examination had been completed. Aymer explained that they were “always told” to enter the date completed, that MSHA did not want a start date, just a completion date. Tr. 302. Dates were not entered reflecting when individual components had been examined because the issue “had never come up.” Tr. 311. Following issuance of the orders, Tri County’s procedures were modified, such that dates were entered when each component of a piece of equipment was examined. Tr. 305, 311. Frigo concurred with Aymer’s explanation of the history of Tri County’s use of the examination form. Tr. 315-21.
When Baum returned to the mine the following Monday, January 10, officials from Tri County wanted to discuss the orders, explaining that the inspection of the cable actually
occurred on January 4th, during a power move, as reported during its “investigation.” Baum
replied to Tri County’s representative that he did not believe what the repairmen had reported.
While Baum conceded that it was possible that an electrical examination of a piece of equipment
might not be completed in one shift, he stated that he did not see anyone “piecemeal” an
examination when he worked at the mine. Tr. 248. Moreover, he did not believe that a proper
electrical examination had been conducted, even if the cable had been examined on the 4th,
because he believed that the three open splices that were exposed when the cable was removed
from the reel would have been present on the 4th, and he did not observe any recently applied
tape as one repairman had claimed. Tr. 252. He repeatedly stated his conclusion that the orders
were properly issued as unwarrantable failure violations even if the examination of the cable had
been performed on the 4th. Tr. 248, 252, 255.
Tri County’s contention that the cable was examined on January 4, rather than January 8, is plausible. Although it is also plausible that the repairmen fabricated their accounts in an effort to avoid discipline. However, the argument is unavailing because the three open splices in the cable would have been present at that time, and should have been discovered in the course of a competent examination. Assuming that a power move was done on January 4, i.e., the power center was moved inby closer to the working faces, the excess cable on the bolter would have been wound up on the reel. Tr. 295. It would have remained on the reel until Baum pulled it off to inspect it on January 8. No plausible argument or explanation has been advanced as to how the obvious damage to the cable could have occurred after it had been examined but before it was wound up on the reel, or while it was on the reel. Consequently, it had to have existed at the time of the power move. Gilpin observed dirt in the open splices, indicating that they had been dragged through the gob and mud, prior to being rolled onto the reel. Tr. 294-95. Both Baum and Gilpin testified, credibly, that the three open splices had existed for a considerable period of time, e.g. four to five days. Tr. 248, 252, 255, 283. It follows that, either the cable had not been examined, or the examination was conducted in a grossly negligent manner.
I find that Tri County violated section 75.604(b) as alleged in the bad splice order, Order No. 8419153. I also find that Tri County violated section 75.512 as alleged in the examination order, Order No. 8419155.
Unwarrantable Failure - Negligence
In carrying out required examination duties for an operator, an examiner may be appropriately viewed as being charged with responsibility for the operation of part of a mine, and “therefore, the examiner constitutes the operator’s agent for that purpose.” Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Pocahontas Fuel Co. v. Andrus, 590 F.2d 95 (4th Cir. 1979) (holding that preshift examiner’s knowledge was imputable to the operator for unwarrantable failure purposes under principles of respondeat superior); Ambrosia Coal & Constr. Co., 18 FMSHRC 1552, 1561 (Sept. 1996) (finding relevant that employee made required daily examinations and entered findings in an examination book).
The negligence of the electrical examiners, who failed to conduct a proper examination of the bolter’s cable are imputable to Tri County. As a result, five improper splices, three of which were open and obvious, were allowed to remain as hazards to miners handling the cable. That negligence, either a complete failure to perform that part of the examination, or a grossly incompetent conduct of that part of the examination, is easily characterized as aggravated conduct constituting more than ordinary negligence.
No detailed analysis of the other factors typically considered in the unwarrantable failure
analysis is required.
The overriding factor, knowledge imputable to the operator, combined
with the obviousness of the violation is sufficient to establish that the violations were the result
of Tri County’s unwarrantable failures to comply with the respective standards.
Docket No. LAKE 2011-690
Citation No. 8429564
Citation No. 8429564 was issued by MSHA inspector and health specialist Marsha
Price
at 10:30 a.m., on March 9, 2011, pursuant to section 104(a) of the Act. It alleges a
violation of 30 C.F.R. § 72.630(b), which requires that “Dust collectors shall be maintained in
permissible and operating condition.” The violation was described in the “Condition and
Practice” section of the citation as follows:
The dust collection system provided on Company No 60, Fletcher Double Boom Bolter, (Serial Number 99028/2009304, Dust Approval Number 25B-1058) being used on the active Number 1 Unit (MMU 010-0), the 3rd West Miner Section is not being maintained in persmissible and operating condition. The following items were found in the dust collection system:
(1) The left side collection system has a leak in the dust collection hose from the drill pod to the drill arm.
(2) The left side and right side collection boxes have dust on the clean side of the filters.
Ex. G-4.
Price determined that it was reasonably likely that the violation would result in a permanently disabling injury, that the violation was S&S, that two persons were affected, and that the operator’s negligence was moderate. A civil penalty in the amount of $1,026.00 was assessed for this violation.
The Violation
On March 9, 2011, Price was conducting respirable dust sampling as part of the regular
quarterly inspection of the Crown III mine. In the third west miner section, MMU 010-0, she
examined the dust collection system on a Fletcher, double-boom, roof bolter. There is an
independent dust collection system for each of the two drill heads. A vacuum system draws air
from the drill chuck, through hoses, to dust collection boxes and filters. The cleaned air is
exhausted at the rear, or sides, of the machine. The vacuum, measured at the drill chuck, is
required to be between 12 and 20 inches of mercury. As Price placed a vacuum gauge on the left
drill chuck, she heard a leak, and saw a hole in the vacuum hose. She measured the vacuum at
the drill heads at 19 inches of mercury on the left and 16 inches on the right, both well within the
required range.
She then examined the dust boxes and filters and found visible dust on the
brackets holding the filters and dust in the ducts on the “clean” side of the filters on both the right
and left side collection systems. Tr. 22. In her experience, it was very uncommon to find dust
on the brackets, which indicated either that the systems had been leaking severely or that they
had been leaking for a long time. Tr. 22.
She determined that the dust collection systems were not being maintained in permissible or operating condition, in violation of the standard. The term “permissible” is defined in the regulations as: “Permissible, as applied to a dust collector, means that it conforms to the requirements of this part, and that a certificate of approval to that effect has been issued.”
30 C.F.R. § 33.2(a).
Manufacturers of dust collection systems for use on roof bolters in mines must submit them for testing by MSHA, which entails measuring the net concentration of airborn dust at each drill operator’s position while a series of test holes are drilled. See, gen. 30 C.F.R. Part 33. Dust concentrations may not exceed 10 million particles (5 microns or less in diameter) per cubic foot of air. 30 C.F.R. § 33.33(b). Systems that pass the test are issued a certificate of approval, which must be reproduced as an approval plate. The plate must be stamped or affixed to the unit, which identifies it as permissible. Id. § 33.11. Without an approval plate, no unit has the status of “permissible.” Id. § 33.11(d). Use of the approval plate is not authorized except on units that conform strictly with the drawings and specifications upon which the certificate of approval was based. Id. § 33.11(e).
Price determined that both conditions that she observed on the dust collection systems could not have conformed with the drawings and specifications upon which the approval certificate was based. Tr. 17, 21, 33-34. Consequently, they had not been maintained in permissible condition. She also determined that the conditions impaired the operation of the systems, such that they had not been maintained in operating condition.
Tri County argues that, under the Secretary’s regulations, dust collection systems must be
evaluated as a whole, and that the citation must be vacated in the absence of a dust sampling at
the drill operator’s position revealing non-compliance with applicable performance standards.
The regulation relied upon applies to the initial testing of dust collection systems, successful
completion of which would result in the issuance of a certificate of approval to the manufacturer.
It is well-settled, however, that section 72.630, upon which the citation was based, is a workplace
standard designed to protect, not only drill operators, but other miners in the immediate area, and
that enforcement of the standard does not require dust sampling. Jim Walter Resources, Inc., 17 FMSHRC 1423, 1444-45 (Aug. 1995) (ALJ); aff’d Jim Walter Resources, Inc. v. Sec’y of
Labor, 103 F.3d 1020, 1024 (D.C.Cir. 1997), cited in Genwal Resources, Inc., 27 FMSHRC 580,
588 (Aug. 2005) (ALJ); White Buck Coal Co., 30 FMSHRC 535, 541-42 (June 2008) (ALJ).
Arguably, the hole in the left-side vacuum hose did not render the system inoperable because it maintained a vacuum of 19 inches of mercury at the drill chuck. However, the certificate of approval would not have been issued for a system with a hole in the vacuum hose. Consequently, the left-side dust collection system was not maintained in permissible condition. The presence of visible dust on the filter brackets and in the ducts behind the filters conclusively established that the dust collection systems were not maintained in a permissible or operating condition. If the systems were working properly, there should not have been any dust on the clean side of the filters. The fact that no visible dust was observed emanating from the systems, as Price conceded, is of no consequence. Tr. 38, 40; Ex. G-4. If visible dust could bypass the filters, certainly invisible respirable dust could also bypass the filters, and would have been exhausted into the mine atmosphere. Tr. 23, 26.
I find that the hole in the left-side vacuum hose and the presence of dust on the filter brackets and in the ducts on the “clean” sides of the filters established that the dust collection systems were not being maintained in permissible or operating condition in violation of the standard.
S&S
The fact of the violation has been established. The improperly maintained dust collection systems contributed to a discrete safety hazard, respirable dust being expelled into the mine’s atmosphere which presented a risk of contracting silicosis or pneumoconiosis to miners who might be exposed to it. Any such injury would be serious. Whether the violation was S&S turns on whether the hazard was reasonably likely to result in an injury causing event.
Price determined that two persons were affected by the violation, i.e., exposed to the dust
that was exhausted by the systems “directly into the mine atmosphere.” Tr. 23, 27. Those
persons were the two roof bolt operators, who were not wearing respirators. Tr. 27. However,
the exhaust ports of the systems, where inadequately filtered air was discharged, were located at
the rear or on the sides of the machine. Tr. 61-62. The ventilation air current, channeled by line
curtain within 5 feet of the bolter, flowed into the face of the entry and back out. Tr. 62.
Consequently, the systems’ exhaust ports were “downstream” from the operator’s positions in
the prevailing air flow. Tr. 62-67. Price conceded that the roof bolt operators were “upstream”
of the exhaust ports, and that they were either not exposed to the inadequately filtered air or their
exposure was substantially reduced.
Tr. 65-67.
Price testified that there may have been other miners downstream of the roof bolter that could have been affected by the violative condition. She identified a scoop operator, a car driver and a foreman as persons who might have been exposed. Tr. 71. However, Price did not identify any such persons as being affected by the violation when it was cited, or in the course of her direct examination, and there is no evidence that such persons were actually exposed. While I would find that sampling was not required in order to establish that a dust control violation was S&S, there are serious questions as to the degree of any such exposure here. Price did not observe any visible dust in the air in the vicinity of the roof bolter, which suggests that there was not a great amount of dust bypassing the filters. Tr. 38. Any such dust would have been disbursed in the 3,000 cubic-feet-per-minute of air ventilating the working faces. Consequently, downstream exposure would not have been nearly as intense as that from a defect in the collection part of the system that would have directly affected the bolter operators.
While, as Price stated, exposure to even small amounts of respirable dust over a period of
time can cause lung damage or disease, I find that the uncertainties as to the amount of exposure
here, including the concentration of any respirable dust, whether miners downstream of the bolter
were actually exposed, and, the amount of time that any such miner would have been exposed,
preclude a finding that the hazard contributed to was reasonably likely to result in a reasonably
serious injury or illness.
I find that the violation was unlikely to result in a permanently
disabling injury to one person and was not S&S.
Negligence
Respondent’s approved ventilation plan required that the dust collection systems be examined during every on-shift examination when in operation, and that the entire system be cleaned if the system was found to be contaminated, i.e., “dust is observed coming from a muffler or dust collects behind the dust box filter.” Ex. G-5. Price determined that Respondent’s negligence was moderate because she was told that the on-shift examination of the dust collection systems had been done, which should have disclosed the violative conditions. Tr. 29-30. She did not write a citation for failure to perform an adequate on-shift examination of the systems. Tr. 30, 42. Tri County argues that its negligence should be rated as low because MSHA’s inspection of the system was more comparable to the manufacturer’s recommendation for a periodic or weekly examination, and the more demanding requirements in its ventilation plan are not specifically required by the Secretary’s regulations.
Respondent’s arguments miss the mark. The fact is that thorough on-shift examinations were required by its ventilation plan, and supposedly were performed on the date and shift in question. While there is some question as to how long the violative conditions existed, they most likely should have been discovered at that time. I find that Tri County’s negligence was moderate.
Citation No. 8429565
Citation No. 8429565 was issued by Price at 1:15 p.m., on March 9, 2011, pursuant to section 104(a) of the Act. It alleges a violation of 30 C.F.R. § 75.1505(b), which requires that escapeway “maps shall be kept up-to-date and any change in route of travel, location of doors, location of refuge alternatives, or direction of airflow shall be shown on the maps by the end of the shift on which the change is made.” The violation was described in the “Condition and Practice” section of the citation as follows:
All maps shall be kept up-to-date and any change in route of travel, location of doors, location of refuge alternatives, or direction of airflow shall be shown on the maps by the end of the shift on which the change is made. The Refuge Chamber located at crosscut 39 between entry 6 and entry 7, The Refuge Chamber located at crosscut 39 and the lifelines in the primary and secondary escapeways are not noted on the active Number One Unit, the Third West, MMU 010-0.
Standard 75.1505(b) was cited 2 times in two years at mine 1102632 (2 to the operator, 0 to a contractor).
Ex. G-7.
Price determined that it was unlikely that the violation would result in a fatal injury, that the violation was not S&S, that one person was affected, and that the operator’s negligence was moderate. A civil penalty in the amount of $425.00 was assessed for this violation.
The Violation - Negligence
When Price inspected the subject unit, she observed that maps located at rescue chambers in the primary and secondary escapeways were not accurate in that they reflected that the chambers were located at crosscut 35, whereas the chambers were located at crosscut 39. Maps located near phones at the beginnings of the escapeways reflected the same error. The chambers were actually located within two crosscuts of the primary escapeway phone and within four crosscuts of the secondary escapeway phone, four crosscuts closer to the phones than as erroneously shown on the maps. Tr. 74. Price determined that the failure to update the maps was a violation of the standard, and that a miner who was outby could have been mislead as to the location of a chamber and could have perished as a result.
Tri-County does not dispute the fact of the violation, or the determination that its negligence was moderate.
Gravity
Price determined that the hazard contributed to by the violation was unlikely to result in an injury because there was no immediate hazard at the time, i.e., that it was unlikely that an emergency condition necessitating evacuation of miners would occur. Her determination that one person was affected was not explained in detail. However, it was apparently based upon an assessment that no more than one person would have been outby and could have suffered the consequences of finding no rescue chamber at crosscut 35, i.e., would not have survived long enough to realize that the chamber was four crosscuts inby and to reach it before available emergency breathing aids were exhausted. It was unclear how a person attempting to reach one of the rescue chambers from outby could have been mislead by the maps. Tr. 96.
At the hearing, Price testified that, in light of decisions “like the Cumberland decision,”
she would have determined that a fatal injury was reasonably likely.
Tr. 75. She explained that
such violations should be evaluated as though an emergency situation existed, and “if there was
smoke in the air or if someone was panicked and it was an emergency, they are not going to
know where the chambers are.” Tr. 76. Price also stated that the “whole working section”
should have been affected, rather than one potential person outby. Tr. 78. No evidence was
offered as to the number of persons that would have been on the working section.
Tri-County challenged Price’s opinion that a fatal injury could occur because of the
inaccurate maps. It argues that the maps at the beginnings of the escapeways were unlikely to
cause a miner to fail to find a rescue chamber because a miner would follow the lifeline out the
escapeway and would see the chamber at crosscut 39, getting to it sooner than anticipated. If
unable to see because of smoke, the miner would, nevertheless, find the chamber because the
lifelines have tactile alerts on them which indicate the location of the chambers. Price confirmed
that, in her opinion, miners attempting to evacuate the section in an emergency should be able to
find a rescue chamber by following a lifeline, and that tactile markers on the lifelines would alert
them to the locations of the chambers. Tr. 85-86. She also confirmed that the lifelines were in
good condition.
Tr. 100.
Obviously, the erroneous maps located at the chambers could not have caused anyone to fail to find the chambers. Tr. 95. Price opined that miners in the chambers might mislead potential rescuers if they were able to communicate with the surface, prompting persons attempting to drill a rescue shaft to drill in the wrong location. Tr. 86-87. However, up-to-date maps are also required on the surface and Price did not include inaccurate surface maps in the citation. Tr. 87. She did not know if those maps were up-to-date. Tr. 94. It would be unlikely that the maps at the beginnings of the escapeways would mislead a person approaching from outby. If an emergency condition occurred outby, a miner who was outby might proceed inby, rather than move to exit the mine. However, he would almost certainly follow a lifeline and would find a rescue chamber, either by sight, or through the tactile indicator on the lifeline, before he reached the end of the lifeline where the erroneous maps were located. Tr. 95-96.
From the discussion above, it would be questionable whether the violation contributed to a discrete safety hazard that was reasonably likely to result in a reasonably serious injury, i.e., whether the violation could have been S&S. However, it is not necessary to reach that issue. In her brief, the Secretary argues that the citation “was properly designated as S&S” and should be affirmed. Sec’y Br. at 17-18. However, the violation was not designated as S&S in the citation. It was rated as “Unlikey” to result in an injury, and the “No” box was checked in the Significant and Substantial block. Ex. G-7. In her reply brief, the Secretary argues that the citation “should be affirmed as written.” Sec’y Reply Br. at 5.
This raises the question whether the citation should be amended to allege that the violation was S&S. The Secretary has not moved to amend the citation. However, under the guidance of Fed. R. Civ. P. 15(b), post-hearing amendment of a citation or order is permissible in Commission proceedings even in the absence of a formal motion. See Cumberland Coal Res., LP, 32 FMSHRC 442, 446-48 (May 2010). As explained in Cumberland, in order to justify such an amendment it must be shown that the issue was tried with the express or implied consent of the parties, and that the opposing party had a fair opportunity to defend against the issue. When evidence supporting an issue allegedly tried by implied consent is also relevant to other issues actually pleaded and tried, implied consent may not be found. Id. The Commission has recognized Rule 15(b)’s “emphasis upon the parties understanding that the unpleaded claim is, in fact, being litigated” in determining whether a posthearing amendment of a citation is warranted. Consolidation Coal Co., 20 FMSHRC 227, 236 (March 1998).
I decline to amend the citation here. A Commission Administrative Law Judge cannot unilaterally elevate a non-S&S violation to S&S status. Mechanicsville Concrete, Inc., 18 FMSHRC 877 (June 1996). Under Mechanicsville it is doubtful that such an amendment would be permissible even if it were found that the issue was tried with the implied consent of the parties. A timely motion to amend would be the proper procedure to add an S&S allegation. However, the Secretary has never moved to amend the citation. There was ample time to have done so prior to the hearing. The Commission’s decision in Cumberland was issued on October 5, 2011, and the hearing was held over eight months later. The Secretary’s prehearing report, filed on May 18, 2012, made no mention of an intention to change the S&S designation on the citation. It merely stated that the “Secretary will present evidence in support of Citation 8429565 and prove that the refuge chamber located at crosscut 39 and the lifelines in the primary and secondary escapeways were not noted on the map as required.” Sec’y Prhr. Rep. at 6. Inspector Price was identified as a witness who would testify regarding “the issuance of the Citation including the gravity and negligence characterizations, and the basis for the proposed penalty assessments.” Id. at 7.
Since the addition of an S&S allegation was never formally proposed, Tri-County did not expressly consent to litigate that issue. It did challenge the allegation that the violation could result in a fatal injury. It so stated in its prehearing report, and the Secretary likewise stated that that was her understanding of Tri-County’s position on the violation. The evidence presented on the likelihood of a fatal injury closely paralleled the evidence that the Secretary relies upon to argue that the violation was S&S. While Respondent’s representative performed reasonably well in presenting defenses to the alleged violations at the hearing, he is not a lawyer, and has no formal legal training. Under the circumstances, a finding of implied consent would have to rest largely on Tri County’s representative’s failure to object to a brief exchange during Price’s direct examination in which her “looking back” testimony on the S&S issue was elicited. Tr. 75-76.
I find that the issue of whether the violation was S&S was not tried with the express or implied consent of Tri County, and find that the violation was unlikely to result in a fatal injury.
The Appropriate Civil Penalties
As the Commission recently reiterated in Mize Granite Quarries, Inc., 34 FMSHRC ___ (Aug. 7, 2012) (slip op. at 4-5):
Section 110(i) of the Mine Act grants the Commission the authority to assess all civil penalties provided under the Act. 30 U.S.C. § 820(i). It further directs that the Commission, in determining penalty amounts, shall consider:
the operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in business, the gravity of the violation, and 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).
Under this clear statutory language, the Commission alone is responsible for assessing final penalties. See Sellersburg Stone Co. v. FMSHRC, 736 F.2d at 1151-52 (“[N]either the ALJ nor the Commission is bound by the Secretary’s proposed penalties . . . we find no basis upon which to conclude that [MSHA’s Part 100 penalty regulations] also govern the Commission.”). While there is no presumption of validity given to the Secretary’s proposed assessments, we have repeatedly held that substantial deviations from the Secretary’s proposed assessments must be adequately explained using the section 110(i) criteria. E.g., Sellersburg Stone, 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May 2000); Cantera Green, 22 FMSHRC at 620-21 (citations omitted). A judge need not make exhaustive findings but must provide an adequate explanation of how the findings contributed to his or her penalty assessments. Cantera Green, 22 FMSHRC at 622. In addition to considering the statutory criteria, the judge must also set forth a discernible path that allows the Commission to perform its review function. See, e.g., Martin Co. Coal Corp., 28 FMSHRC 247, 261 (May 2006).
Good Faith - Operator Size - Ability to Continue in Business
The parties stipulated that Tri County demonstrated good faith in abating the violations and that the proposed penalties would not affect its ability to remain in business. Stipulated Facts. The parties did not stipulate to the Tri County’s size as an operator. However, forms reflecting calculations of penalty assessments, filed with the petitions, indicate that Tri County is a very large operator and that it’s controlling entity is also large, and I so find.
History of Violations
A portion of Tri County’s history of violations is reflected in six reports from MSHA’s database. Ex. G-1, G-2. The reports list violations issued at the Crown III mine that had a “Final Order Date” between August 23, 2008 and March 8, 2011, while the mine was under three different controllers and three different operators, including Tri County. Aside from its apparent overbreadth, the violation history set forth in the exhibits is deficient in that it provides no qualitative assessment, i.e., whether the number of violations attributable to Tri County is high, moderate or low. See Cantera Green, 22 FMSHRC at 623-24.
Some qualitative violations’ history information can be found on forms reflecting calculations of the proposed assessments, which were filed with the petitions. The assessment forms for the six litigated violations reflect an assessment of two to five points for overall violation history. Those numbers correspond to a relatively low history of total violations on the regulatory scale of 0 - 25 points. See 30 C.F.R. § 100.3(c)(1)
I find that Tri County’s overall history of violations, as relevant to these violations, was low, and should be considered a mitigating factor in the penalty assessment process.
Docket No. LAKE 2011-308
Citation No. 8418832 is affirmed as an S&S violation. However, Tri County’s negligence was found to be low, rather than moderate. A specially assessed civil penalty in the amount of $3,700.00 was proposed for this violation. The reduction in the level of Tri County’s negligence would have resulted in a regular assessment under the Secretary’s Part 100 regulations in the range of $400.00. Considering the factors itemized in section 110(i), and the diminished likelihood that a special assessment would have been deemed appropriate for the violation as modified, I impose a penalty of $500.00 for this violation.
Order No. 6676764 is affirmed as an S&S violation. However, while Tri County’s negligence was found to be high, the violation was not the result of its unwarrantable failure. A specially assessed civil penalty in the amount of $8,400.00 was proposed for this violation. A penalty calculated pursuant to the Secretary’s Part 100 regulations would have resulted in an assessment in the range of $1,660.00. Considering the factors itemized in section 110(i), and the diminished likelihood that a special assessment would have been deemed appropriate for the violation as modified, I impose a penalty of $3,000.00 for this violation.
Docket No. LAKE 2011-467
Order Nos. 8419153 and 8419155 are affirmed as S&S and unwarrantable failure violations. Civil penalties in the amount of $4,000.00 were assessed for these violations. Section 110(a) of the Act mandates that the minimum penalty imposed for a violation issued under section 104(d)(2) shall be $4,000.00. 30 U.S.C. § 820(a)(3), (4). While it appears that section 110(a)(4) is directed at Federal appellate courts, it would be incongruous to hold that a reviewing circuit court was compelled to impose at least the statutory minimum penalty, but that the Commission was not so constrained. I impose a penalty in the amount of $4,000.00 for each of these violations, which I also find to be appropriate upon consideration of the factors itemized in section 110(i) of the Act.
Docket No. LAKE 2011-690
Citation No. 8429564 is affirmed as a violation. However, it was found to be unlikely to result in a permanently disabling injury to one person, and was not S&S. A penalty in the amount of $1,026.00 was assessed for this violation. The reduction in the likelihood of injury and the number of persons affected, justifies a corresponding reduction in the penalty. Considering the factors itemized in section 110(i), and guided by the Secretary’s penalty assessment regulations, I impose a penalty of $300.00 for this violation.
Citation No. 8429565 is affirmed as a violation in all respects. A regularly assessed penalty in the amount of $425.00 was proposed for this violation. Considering the factors itemized in section 110(i), I impose a penalty of $425.00 for this violation.
The Settlement
As announced at the commencement of the hearing, and as reflected in a post-hearing
motion to approve partial settlement, the parties agreed to settle Citation Nos. 8418836 and
8418840 in Docket No. LAKE 2011-308, Citation Nos. 8418845 and 6676757 in Docket No.
LAKE 2011-467, and Citation Nos. 8419441 and 8419442 in Docket No. LAKE 2011-690.
The total of the penalties assessed for those violations is $28,891.00 and the proposed penalties
for settlement total $27,247.00. The bases for the compromises were disclosed at the hearing. I have considered the representations and evidence submitted and conclude that the proffered
settlement is appropriate under the criteria set forth in section 110(i) of the Act. Accordingly the
settlement will be approved and Respondent will be ordered to pay civil penalties in the amount
of $27,247.00 for the settled citations.
ORDER
Upon consideration of the above, the motion for approval of settlement is GRANTED, and it is ORDERED that Respondent pay penalties in the amount of $27,247.00 for the settled violations.
Citation No. 8429565 and Order Nos. 8419153 and 8419155 are AFFIRMED. Citation Nos. 8418832 and 8429564 are AFFIRMED, as modified. Order No. 6676764 is modified to a citation issued pursuant to section 104(a) of the Act, and is otherwise AFFIRMED. Respondent, Tri County Coal, LLC, is ordered to pay civil penalties in the amount of $12,225.00 for the litigated violations.
Civil penalties in the total amount of $39,472.00 shall be paid within 45 days.
/s/ Michael E. Zielinski
Michael E. Zielinski
Senior Administrative Law Judge
Distribution (Certified Mail):
Emily B. Hays, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202-5710
Wesley T. Campbell, Manager of Safety and Training, Archie Parker, Tri City Coal, LLC., #2 Mine Rd., Farmersville, IL 62533