MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
MACH MINING, LLC,
Respondent
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Docket No. LAKE 2009-427
A.C. No. 11-03141-180760-02
Mine: Mach #1 Mine
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE N. W., SUITE 9500
WASHINGTON, D.C. 20001
October 11, 2011
Appearances: Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago, Illinois, for the Petitioner
Christopher D. Pence, Esq., Allen Guthrie & Thomas, PLLC, Charleston, West Virginia, for the Respondent
Before: Judge Weisberger
DECISION
This case is before me based upon petitions for assessment of civil penalties filed by the Secretary of Labor (“Secretary”), alleging violations by Mach Mining LLC (“Mach”) of various mandatory safety standards set forth in 30 C.F.R. The cases were scheduled for hearing on May 24 and 25, 2011 in St. Louis, Missouri. On July 22, 2011, the parties filed proposed findings of fact and a brief. In addition, on August 15, 2011, Respondent filed a response to the Petitioner’s post-trial brief.
I. Citation No. 8414216 (Docket No. Lake 2009-427)
Mach operates the Mach #1 Mine, an underground coal mine. A ventilation fan on the
surface of the mine
forced fresh surface air to the areas of the mine located underground. The
blades of the fan were recessed in housing (Gov. Ex. 10), approximately forty inches behind a
circular collar. The circular opening to the fan was guarded by two semicircular guards, placed
vertically one on top of the other, (“the upper guard” and “the lower guard”). Each guard
covered half the area of the collar opening. Thus, in combination the guards completely covered
the area of the circular collar, and blocked access to the blades of the fan.
On February 18, 2009, MSHA inspector Bobby Jones inspected the subject site. He
observed that the upper guard was not in place. He noted that the lack of an upper guard resulted
in an unguarded area of approximately twenty-five
feet, which provided access to the moving
blades of the ventilation fan. According to Jones, as a result, a miner in the area could be drawn
through the opening created by the missing top guard, and come in contact with the fan blades.
In this connection, Jones made reference to an accident that had occurred at the fan site in
December 2008, when two miners were forcibly pulled against the guards causing one miner to
receive injuries to his head which required approximately 20 stitches.
According to Jones, at the time of the accident, both guards were in place. He opined that in the absence of the upper guard, should a similar accident occur, a miner would be pulled through the resultant opening, and be forced into contact with the blades causing serious injuries.
Jones issued a citation alleging that “the main mine fan inlet [was not in conformity with 30 C.F.R. § 77.400(a) in that it] was not adequately guarded to prevent a person from contacting the rotating fan.”
A. Violation of Section 77.400(a), supra
Section 77.400(a) provides, in relevant part as follows: fan inlets, and similar exposed moving machine parts which may be contacted by persons, and which may cause injury to persons shall be guarded. 30 C.F.R. § 77.400(a).
In order to establish a violation under Section 77.400a, supra, it is incumbent upon the Secretary to establish that the item cited was within the purview of Section 77.400, i.e., that: (1) the cited area was a “fan inlet” or that there were exposed moving parts, (2) these parts were not guarded, (3) the exposed moving parts may be contacted by persons, and (4) contact may cause injury to persons.
The record establishes that the cited area is a moving part, or fan inlet that falls within the scope of section 77.400, supra. See Thompson Brothers Coal Co., 6 FMSHRC 2094, 2096 (Sept. 1984.) Also, it is not contested that, when cited, the top or upper guard was not in place. Further, it is clear that should a person be pulled through the unguarded area, he could come in contact with the fan blades, and might be injured. Accordingly, the sole matter to be resolved is whether the Secretary established that the exposed fan blades “may be contacted.” Thompson, supra.
1. The Secretary’s Evidence
According to Jones, the fan would be examined weekly by persons who are responsible for making an examination of the above ground operations. Also, security personnel “make perimeter checks around the mine site.” (Tr. 150). In addition, Jones opined that in an emergency, miners exiting from an escape shaft would be approximately 15 to 20 feet from the fan guards.
Jones further testified that the closest house was between three and four hundred yards from the fan, and that there were not any signs posted to prevent persons from traveling to the front of the fan, nor was the fan area fenced off. Also, there was not any notice provided regarding the lack of a guard. Jones theorized that in addition to miners, hunters, hikers, trespassers, or children might be in the area and become exposed to the pull of the fan. Jones concluded that should a person be pulled through the opening and come in contact with the fan a reasonably serious injury or fatality was reasonably likely to have occurred.
Jerry Pogue testified that on December 19, 2008, he was an employee of a security firm,
and was assigned to a guard shack located on the surface at the mine. On December 19, 2008,
Pogue met with Morris Niday at the fan, so that the latter could demonstrate how to knock ice off
the fan. According to Pogue, he and Niday stood adjacent to the guarding but a little bit behind
the collar opening. Pogue indicated that Niday hit the guard with a five-foot long rod in order to
knock off the ice. According to Pogue, the fan was on at the time, and Niday “got sucked in”
(Tr. 191), and he (Pogue)
was “swept off [his] feet” (id), and his head and shoulder came in
contact with the upper guard. (Tr. 193).
2. Discussion
The Commission, in analyzing the requirements of Section 77.400(e) supra, interpreted the phrases “may be contacted” and “may cause injury” as follows:
Use of the word “may” in these key phrases introduces considerations of the likelihood of the contact and injury, and requires us to give meaning to the nature of the possibility of contact and injury, including contact stemming from inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness. In related contexts, we have emphasized that the constructions of mandatory safety standards involving miners’ behavior cannot ignore the vagaries of human conduct. Applying this test requires taking into consideration all relevant exposure and injury variables, e.g., accessibility of the machine parts, work areas, ingress and egress, work duties, and as noted, the vagaries of human conduct. Under this approach, citations for inadequate guarding will be resolved on a case-by-[case] basis.
Thompson, supra at 2093.
Thus as set forth in Thompson, supra, it is incumbent on the Secretary to establish the reasonable possibility of contact and injury, taking into account the accessibility of the machine parts, work areas, ingress and egress, work duties, and the vagaries of human conduct. For the reasons that follow, I find that the Secretary has failed to meet this burden.
The Secretary’s argument that there was a reasonable possibility of being sucked into the blades as a result of the missing upper guard is predicated upon the prior accident in December 2008. Pogue testified that he is six feet seven inches tall, weighs 212 pounds. He said that as he stood to the left of and behind the collar, he was pulled against the guards, his feet were no longer in contact with the ground, and his head and a shoulder came in contact with the upper guard.
Not much weight was accorded his testimony regarding his contact with the upper guard.
This testimony was initially adduced in response to a leading question (Tr. 196). Also, I take
cognizance of his earlier testimony where he described his contact as being “somewhere . . .
either on the guard or the shaft and that [he was] not sure where . . . .”
(Tr. 193).
In addition, I note that Respondent adduced evidence of a prior statement made by Pogue which is not consistent with his testimony that he was pulled in contact with the upper guard. Mark Hamilton, who was the president of the security firm that had hired Pogue and assigned him to Mach in December 2008, spoke to the latter the day before the hearing, i.e. May 23, 2011 at the request of Respondent’s counsel “to verify a contact phone number.” (Tr. 254). At that time, Hamilton discussed the December 2008 incident with Pogue. According to Hamilton, Pogue said that when he made contact with the guard when he was “sucked in,” it was at or below the bottom of the top part. (Tr. 257). Hamilton testified that he asked Pogue whether, when he was hit, he was above or below the top portion of the guard. According to Hamilton, Pogue said that he was “he was at or below the portion where the top and the bottom guard come together.” (Tr. 259).
I observed Hamilton’s demeanor and found him to be a credible witness. There is not any
evidence that Hamilton would have any motive not to be completely truthful in his testimony.
Further, it is significant to note that Pogue was not recalled to testify and deny or explain his
prior inconsistent statements. There is not any indication in the record of any reasonable basis
for not having called Pogue to explain or contradict Hamilton’s statements.
For all these reasons, I find that evidence of a prior inconsistent statement, which has not been rebutted or impeached, greatly diminishes the probative value of Pogue’s testimony that he was pulled against the upper guard. Further, it is significant that aside from Pogue’s testimony, the Secretary did not present any scientific or other evidence to support the opinion of Jones that in the event of being subject to the pull of the fan, there was a reasonable possibility of being forced through the opening caused by the lack of an upper guard. Therefore, I find the probative value of Jones’ opinion to be diminished.
Further, regarding the likelihood of an injury producing event, I note that on cross-examination Jones agreed to the following: that in the absence of the top guard, the fan would not
have to be de-iced; that miners enter and leave the underground mine from an entry one to a half
miles from the fan; that in an emergency necessitating miners to exit from the shaft he expects
them to be in an area where suction forces are not experienced; that “shortly” (Tr. 165) outside
the width of the fan collar, a person can stand up and tolerate the suction force; that examinations
can be conducted without stepping on the concrete pad; and that the top of the bottom guard ends
at a point approximately seventy inches (six feet) above the pad; and that the force of the fan
would pull someone “ straight to the guard.”
(Tr. 169) (emphasis added). As such, the
likelihood of contact with the unguarded area six feet above the pad is diminished.
In these regards, I also note the following testimony of Anthony Webb, the President of Mach, who was in charge of any activities on the surface: (1) that during weekly maintenance, the fan is greased at a location between the guard collar and the escape shaft which is not subject to any fan suction; (2) that the greatest suction pull is within the perimeter of the fan collar; (3) and that should the bottom guard develop ice, the fan would be shut down to allow de-icing of the guard. (Tr. 214-218, Gov. Ex. 9).
Therefore, based upon all the above, I conclude that the Secretary has failed to establish by a preponderance of evidence that there existed a reasonable possibility of contact with the blades of the fan as a result of the absence of the upper guard. As a consequence, I find that it has not been established that Mach violated Section 77.400, supra.
II. Citation No. 8414209 (Docket No. Lake 2009-427)
A. Violation of 30 C.F.R. § 75.380 (d)(4) (ii)
On February 12, 2009, Jones inspected the underground portion of the Mach #1Mine,
specifically, the primary escapeway to the headgate (“H.G.”) #2. He observed a regulator
on the
overcast over the main South #3 entry. The regulator extended five feet in height from the top of
the overcast to the mine roof, and had been closed down to 26 inches in width.
Jones issued a citation alleging a violation of section 75.380(d)(4)(ii), supra, which requires as follows: “where the route of travel passes through doors or other permanent ventilation controls, the escapeway should be at least four-feet wide to enable miners to escape quickly in an emergency . . .” 30 C.F.R. § 75.380(d)(4)(ii).
Based on the inspector uncontradicted testimony, as well as Mach’s representation at the hearing that it admits to a technical violation of section 75.380, supra, I find that Respondent did violate this section.
B. Significant and Substantial
1. The Secretary’s evidence
Jones determined that the violation was significant and substantial, as the cited condition
was reasonably likely to contribute to an injury. He explained that the narrow opening in the
regulator would impede rapid escape and present an obstacle at the top of the stairs leading to the
overcast (Gov. Ex. 3). Jones noted that since the direction of the airflow in this entry was inby,
and in the event of an escape outby, miners would be “fighting against the air”(Tr. 32)
especially if they were carrying a stretcher. Jones explained that since a stretcher is carried by
four men, one located in each corner, it would not be able to pass through the 26-inch wide
regulator as the total width of the men and the stretcher would exceed 26 inches.
Jones indicated that it was likely that a strain or sprain would result from “potentially” slipping and falling down the stairs in the area especially while trying to carry the stretcher through the opening. (Tr. 36). He noted that since four persons would be carrying the stretcher, the likelihood of an injury would be increased.
2. Discussion
A "significant and substantial" violation is described in section 104(d)(1) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”) as a violation "of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard." 30 U.S.C. § 814(d)(l). A violation is properly designated significant and substantial "if based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature." Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981.)
In Mathies Coal Co., the Commission explained its interpretation of the term "significant and substantial" as follows:
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.
6 FMSHRC 1, 3-4 (Jan. 1984).
In United States Steel Mining Company, Inc., the Commission stated further as follows:
We have explained further that the third element of the Mathies formula "requires that the Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury." U. S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance with the language of section 104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial. U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
7 FMSHRC 1125, 1129 (Aug. 1985) (emphasis added).
Based on the inspector’s testimony and the record, I find that the first two elements of the
Mathies test have been met. Thus, in order to prevail, the Secretary must establish, first of all,
the reasonable likelihood of an injury producing event. Mathies, supra. In this connection, Jones
noted that in an emergency evacuation the miners would be walking outby, from an inby
position, and would be fighting the oncoming airflow. Also, they would have to ascend stairs up
to the regulator, go through the narrowed opening of the cited regulator, then descend stairs while
possibly carrying a stretcher.
According to Jones, in an evacuation miners would “without a
doubt” be panicked (Tr. 48), and might be exposed to smoke.
On the other hand, I note that on cross-examination Jones indicated that there were not any obstacles in the walkway, stairs, or on the overcast surface from the regulator outby to the next step. Also, he conceded that the lifeline was in good shape, and that the only violation that he noted in the cited area was the restriction in the width of the regulator. He also agreed that it was not necessary to raise one’s foot in order to go from the surface of the overcast through the regulator.
He was asked whether, on the date of his inspection, he found any conditions that made an emergency likely to occur. He answered as follows: “[n]ot at that very moment” but that “the dynamics of a mine are changing constantly.” (Tr. 72). However, he did not indicate the specific events or conditions that would be reasonably likely to occur with the continuance of normal mining operations that would make an injury producing emergency evacuation reasonably likely to occur.
Within the above context, and noting especially the lack of any obstructions in the area of
the cited regulation,
I find that the third element of Mathies has not been met in that it has not
been established that there was a reasonable likelihood of an injury producing event. c.f., Mach
Mining, LLC, 32 FMSHRC 213 (Feb. 2010 ) (finding a significant and substantial violation of
section 75.380, supra based on evidence of various obstacles in an escapeway, particularly
concrete blocks, a pallet of crib ties, and a steel take-up track).
C. Penalty
1. Affect on ability to continue in business, size of the operator, history of violations, good faith abatement, and gravity
The parties stipulated that the payment of the total proposed penalty will not affect Mach’s ability to continue in business. The parties further stipulated with regard to the amount of total production of tons of coal in 2008, and the history of violations. There is nothing in the record justifying either an increase or decrease in penalty based on the operator’s size and history of violations.
It would appear that Mach abated the violation in good faith as there is not any evidence that it failed to do so. Based on the uncontradicted testimony of Jones that sprains or strains could result should persons slip and fall as a consequence of the violative condition, I find that possible resultant injuries are not very serious. Thus, I conclude that the level of gravity was only moderate.
2. Negligence
Jones determined that the negligence was high inasmuch as, (1) Webb told him (Jones) that a supervisor should have been aware of the opening in the regulator and (2) Webb did not provide any information to mitigate the level of negligence.
In addition, according to Jones, Mach made a decision to decrease the volume of air at the start of the longwall recovery. According to Jones, he was at the mine daily and was “aware” that the recovery started “somewhere around the second to the fourth of February.” (Tr. 42-43). Thus, he estimated that the cited condition had existed for seven to 10 days prior to his inspection on February 12.
Webb testified that, as the underground superintendent, he was aware of all ventilation
changes and has personal knowledge of ventilation changes. He indicated that the regulator at
issue, H.G. #2, had been installed in Panel 2 when the section was being developed in the fourth
quarter of 2007, and was originally more than the 48 inches width requires of section
75.380(d)(4) supra. According to Webb, “between December 2008 and January 2009,” the
cited regulator was reduced from its original width to 26 inches in order to send more air to H.G.
#3 and #4 that were being developed.
(Tr. 86-88).
Thus, it is clear that mine manager, i.e., Webb, had knowledge of the violative condition, and that it had existed for more than a few weeks prior to its being cited on February 12, 2009.
3. Mitigating factors
Webb indicated that in the fourth quarter of 2008, he went through the regulator at issue with MSHA inspector Jim Rusher. According to Webb, the latter did not say that the width was too narrow, and he did not issue any citation. In response to a leading question by Respondent’s counsel he (Webb) agreed that this occurred “after” the width had been reduced to twenty-six inches. (Tr. 101) (emphasis added).
This testimony might have some mitigating effect on the level of Mach’s negligence if Rusher’s inspection of the regulator at H.G. #2 in the fourth quarter of 2008, took place after its width had been reduced. According to Webb, this reduction was done in the period “December 2008 to January 2009.” (Tr. 88). However, the record does not establish with any degree of clarity if Rusher’s inspection was prior to, or after this period. The only evidence in the record consists of the following portion of Webb’s testimony:
Q.At the time that you ordered the regulator at the mouth of Headgate 2 to be reduced to 26 inches, did you know that the regulations at that time did not provide for stretcher tests in the primary escapeway?
A.No.
(Tr. 118).
The probative value of this testimony is minimized since (1) as it does not consist of his own words, but rather his agreement with a leading question posed by counsel on direct-examination, and (2) it was elicited on cross-examination that Webb did not recall the exact date of Rusher’s inspection.
Webb indicated that when he ordered the regulator at issue to be reduced to 26 inches, he did not know that “stretcher tests” (P. 15, Fn. 11, infra) were allowed in alternate but not in primary escapeways. I note that as the underground supervisor, he has to exercise a high standard of care. However, I observed his demeanor, and find his testimony relating to lack of knowledge of a regulatory distinction to be credible, but of only slight mitigation.
Considering all the above, I find that the level of Respondent’s negligence was relatively high.
4. Conclusion
After weighing all the penalty factors set forth in Section 110(i) of the Act, as discussed above, and placing significant weight on the finding of only a moderate level of gravity, I conclude that a penalty of $8,000.00 is appropriate for this violation.
III. Citation No. 8414211 (Docket No. Lake 2009-427)
A. Introduction
On May 14, 2009, a hearing was held relating to, inter alia, a Notice of Contest filed in
Docket No. Lake 2009-323-R
, (Citation No. 8414211). The parties were directed to file briefs
addressing the limited issue of whether the cited area was a “working section.”
Each party
subsequently filed a brief, and a reply. On July 15, 2009, the undersigned issued a partial
decision determining that the cited area was a “working section.”
A conference call was held November 9, 2009; the parties indicated that they did not seek an opportunity to present additional evidence relating to the remaining issues raised by the Notice of Contest regarding Citation No. 8414211.
On February 24, 2010, a decision was issued finding that Mach violated Section 75.380(d), supra, and that the violation was significant and substantial. Mach Mining v. Secretary of Labor, 32 FMSHRC 213 (February 24, 2010) (“Mach I”). The only issue remaining regarding Citation No. 8414211 is the amount of penalty to be assessed against Mach for its violation of Section 75.380(d), supra.
B. Factors set forth in Section 110(i) of the Federal Mine Safety and Health Act of
1977 (“The Act”)
1. Ability to continue in business, size, good faith abatement, history of violations, and gravity
I reiterate the findings made above, II (c)(1) infra, relating to Mach’s ability to continue in business, size, and history of violations. It would appear that Mach abated the violation in good faith, as there is not any evidence that it failed to do so. Based on the uncontradicted testimony of MSHA Inspector Bobby Jones, further, for the reasons set forth in Mach I, supra, at 218-219, I find that the level of gravity was relatively high.
2. Negligence
In Mach Mining, 32 FMSHRC 1376 (Sept. 27, 2010) (“Mach II”) one of the issues at bar was whether Mach’s failure to record the hazardous material cited in Citation No. 8414211, constituted an unwarrantable failure. For the reasons set forth in Mach II, supra, at 1382, 1385, I reiterate the findings made relating to the extent of the violative conditions, and the length of time they existed. Further, for the reasons set forth in Mach I, supra, at 218-219 I find that the violative conditions posed a high degree of danger.
On the other hand, for the reasons set forth in Mach II, supra, at 1383-84, I reiterate findings made therein that Mach had not been placed on notice that, prior to the issuance of the citation at issue, greater efforts were necessary for compliance. Nor had Mach been previously cited for existence of materials in the escapeway that would impede a speedy evacuation. Further, for the reasons set forth in Mach II, supra at 1384-1385, I reiterate the findings therein that although the violative conditions were obvious, Mach had a “good faith” belief that they were not hazardous, and that this belief was objectively reasonable.
Considering all of the above, I find that a penalty of $6,500 is appropriate for the violation of Section 75.380(d), supra.
IV. Citation Numbers: 66746698, 8414208, 8414206, 8414207, 8414212, and 8414210
Subsequent to the hearing in this matter, the Secretary filed a Motion to Approve Partial Settlement relating to the above citations.
A reduction in penalty from $7,063.00 to $2,270.00 is proposed. I have considered the representations and documentation submitted in this case. Especially representations that, in essence, “upon further review” a reduction in penalty is sought. I conclude that the proffered settlement is appropriate under the criteria set forth in Section 110(i) of the Act.
Order
It is ordered that Citation No. 8414216 be dismissed. It is further ordered that Mach, within thirty (30) days of this decision, pay a total penalty of $16,770.00 for the violations found herein.
/s/
Avram Weisberger
Administrative Law Judge
202-434-9964
Distribution:
Barbara Villalobos, Esq., United States Department of Labor, Office of the Solicitor, 230 South Dearborn Street, Suite 844, Chicago, IL 60604
Christopher D. Pence, Esq., Allen Guthrie & Thomas, PLLC, 500 Lee Street, East, Suite 800, Charleston, WV 25333-3394
/cmj