FMSHRC ALJ Decision

Appearances: Karen E. Wilcynski, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, for Petitioner;

Jason W. Hardin, Esq., and Mark E. Kittrell, Fabian & Clendenin, Salt Lake City, Utah, for Respondent.

These cases are before me on petitions for assessment of civil penalty filed by the Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), against The American Coal Company (“AmCoal”) pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The parties introduced testimony and documentary evidence at a hearing held in Benton, Illinois, and filed post-hearing briefs.

AmCoal operates the Galatia Mine, an underground coal mine in Saline County, Illinois. At the time the citations and orders in this case were issued, the mine was very large. It had three portals: the Main Portal, Galatia North Portal, and the Millennium Portal, which is now known as the New Future Portal. Miners would sometimes rotate between portals and equipment would sometimes be moved to different portals. The Main Portal and Galatia Portal were connected underground but, due to a fault line, the Millennium Portal was separate. All three portals had one identification number issued by the Department of Labor’s Mine Safety and Health Administration (“MSHA”) and were considered to be one mine for enforcement purposes. This mine employed a little over 1,000 people in 2007 and produced 7,009,160 tons of coal in 2007. In 2007, the mine liberated a little over four million cubic feet of methane a year and it was on a five day spot inspection cycle.

The citations at issue in these cases allege violations of notices to provide safeguards (“safeguard notices”) issued under 30 C.F.R. § 75.1403. AmCoal challenged the legality of the underlying safeguard notices by filing a motion for summary decision. The Secretary opposed the motion. In an order dated December 17, 2010, I denied AmCoal’s motion for summary decision.

My findings and conclusions in that order are incorporated into this decision by reference. In its motion, AmCoal argued that the safeguard notices involved here, and in the other dockets for which I am issuing a decision granting settlement on this date, are invalid because “they do not identify specific hazards, and/or they do not identify the conduct required of the mine operator to remedy such hazards, and/or they do not address hazards that are not covered by a mandatory standard.” (AmCoal Motion 5). Among other rulings in my order, I found that each contested safeguard notice identified a specific hazard and specified a remedy with sufficient precision to provide AmCoal with fair notice of what was required. In its post-hearing brief in these cases, AmCoal reiterates some of these arguments on this issue.

(AmCoal Br. 4-8).

On May 30, 2007, Inspector Michael Rennie issued Citation No. 6667032 under section 104(a) of the Mine Act for an alleged violation of 30 C.F.R. § 75.1403. The citation alleges the following:

The walkways along the active 8^th North longwall face were not being maintained free of all extraneous materials that would affect the safe travel of miners. When inspected, the walkways, shield bases, and the area between the face conveyor and shields [were] observed with large amounts of rock and coal spilled in the walkway. The extraneous materials were observed from the headgate to the tailgate at various locations. The accumulations ranged from a small amount to as high as the pan line hand rail.

(Ex. G-A). Rennie determined that an injury was reasonably likely and, if an injury did occur, it could reasonably be expected to result in a permanently disabling injury. He determined that the violation was of a significant and substantial nature (“S&S”), that one person would be affected, and that the violation was the result of the moderate negligence of the operator. The Secretary has proposed a civil penalty of $5,080.00 for this violation.

The cited safety standard provides that “[o]ther safeguards adequate, in the judgment of an authorized representative of the Secretary, to minimize hazards with respect to transportation of men and materials shall be provided.” 30 C.F.R. § 75.1403. This citation was issued based on Notice to Provide Safeguard No. 7582643 issued January 26, 2006. The safeguard notice was issued because a longwall working section had not been provided with a clear travelway between the longwall face conveyor and the shield bases for the entire length of the longwall face. (Ex. G-T). Coal and gob material were observed in the walkway and on the shield bases at various depths. The safeguard notice requires that “all longwalls at this mine shall maintain the walkways and shield bases between the face conveyor and the shields, free of all extraneous materials that would affect the safe travel of miners.” Id. Inspector Rennie, who issued the safeguard notice, testified that the safeguard notice requires AmCoal to keep the longwall shield bases and walkways along the longwall face free of coal and gob or other debris so that miners can safely travel up and down the longwall face. (Tr. 20).

When Rennie arrived at the mine he reviewed the preshift and onshift examination books. He testified the he saw entries in these books that indicated that coal and gob had been present on the longwall face for three shifts. (Tr. 26). At that time, the mine operated with three eight-hour shifts. The preceding shift change occurred at about 8:00 a.m. that morning. (Tr. 43). Rennie testified that when he inspected the subject longwall section “there was coal and rock that had spilled over into the walkway that was at various depths along the longwall face, and in some areas, all the way up and to the top of the panline or the face conveyor.” (Tr. 29). He estimated that the face conveyor was about three feet high and that the longwall face was about 1,000 feet in length. (Tr. 30). He observed this material along the entire length of the face. Between shield Nos. 150 and 144 he observed coal and rock to the top of the cable trough.

He believed that each shield was about 8 to 10 feet wide. (Tr. 31). About eight miners work on a longwall crew and these miners must walk up and down the longwall face during their shift.

Inspector Rennie determined that the violation was S&S because the accumulations of coal and rock created serious stumbling hazards to miners working on the longwall section. He testified that there is a limited amount of space for miners to travel on the longwall when the panline is pushed up. (Tr. 33). He determined that, with the amount of spillage, a miner could trip and get into the running face conveyor, which is made of steel, as he was trying to maneuver through the area. A very serious injury would likely result from this condition. In addition to the regular mining crew, miners performing repairs would face the same hazard. A miner could also trip and fall into the structure of the longwall shields and sustain serious injuries. (Tr. 34-35). Because of the depth of the spillage in some locations, it would be difficult for miners to see the rams underneath that connect the panline with the shields. The shields and the panline move forward as mining progresses with the result that miners may not be able to observe this movement when material is covering the rams and shield bases. (Tr. 35). The inspector testified that some spillage is to be expected along a longwall face, but the amount of spillage he observed was beyond that which should be allowed to accumulate. (Tr. 35, 49).

Inspector Rennie determined that the condition had been allowed to accumulate for three shifts based on what he observed in the preshift and onshift books. (Tr. 36, 52-53). The longwall was operating when he traveled underground. The preshift examiner for the shift, the foreman, or the longwall coordinator should have shut down the section when he observed the spillage. In his notes, Inspector Rennie wrote that an injury was “[r]easonably likely due to the 3^rd shift had been running the longwall [which] caused people to crawl over this rock directly next to the moving face conveyor.” (Tr. 37; Ex. G-A, p. 11 of notes). He believed that any injuries resulting from the conditions observed could have been permanently disabling. The inspector determined that the operator’s negligence was moderate because he “couldn’t place a foreman . . . along the longwall face at that time to designate any higher, and [he] hadn’t been having a problem until this time with [AmCoal] not keeping the longwall clean . . . .” (Tr. 39). He did not observe anyone cleaning up any of this spillage and, if some effort had been made to remove the spillage, these efforts were not very effective. (Tr. 39, 58). Typically spillage along the longwall would be removed using shovels. (Tr. 56). Inspector Rennie gave AmCoal 24 hours to remove the material. (Tr. 57).

Bill Crittendon is a safety specialist with AmCoal and accompanied Inspector Rennie during the subject inspection. (Tr. 64). He testified that when he went to the longwall face before the citation was issued, he observed a couple of miners shoveling the spillage. (Tr. 67, 86). He was not sure whether Inspector Rennie was with him at that time. He believes that the longwall was down at that time. Id.

Crittendon testified about the preshift examination for May 30, 2007, that was performed between 5:00 a.m. and 8:00 a.m. (Tr. 69-70). The preshift examiner’s report for that examination states as follows: “feet dirty 57, 77, 86, 116, 137 to 146.” (Tr. 70; Ex. R-48 p. 10). Under the heading “Action Taken,” the report states “Preshifted and Reported (work in progress).” Id. Crittendon testified that these entries make clear that the preshift examiner discovered the conditions, reported the conditions, and that work was being done to correct the conditions. (Tr. 71). The foreman and mine manager on the oncoming shift would have reviewed these entries.

Crittendon also reviewed the preshift examination report for May 29, 2007, that was performed between 9:00 p.m. and 12:00 p.m. (Tr. 72; Ex. R-48 p. 8). The entry on that report states that no hazardous conditions were observed by the preshift examiner. Id. The onshift examination record for May 30 for the 12:00 a.m. to 8:00 a.m. shift does not show any entries for spillage along the longwall face. (Tr. 73-74; Ex. R-48 p. 9). The preshift examination on May 29 that was performed between 1:00 p.m. to 4:00 p.m. shows no observed hazardous condition on the longwall face. (Tr. 74; Ex. R-48 p. 6). The onshift examination record for the 4:00 p.m. to 12:00 midnight shift on May 29 also does not indicate that there was spillage in the longwall face area. (Tr. 76; Ex. R-48 p. 7). Crittendon testified that these are the same books that Inspector Rennie would have reviewed and that the books would not have been altered. (Tr. 75).

The midnight to 8:00 a.m. shift on May 30 was the shift just prior to the shift during which Inspector Rennie issued his citation. The “Production and Delay Report” (“P&D Report”) for this shift shows that the shearer started cutting coal at 12:40 a.m. and cutting was completed for the shift at 6:42 a.m. (Tr. 78; Ex. R-45 p. 1). Under a section entitled “Equipment Status/Problems,” this report states, in part: “Cleaned Rock off Shield Feet, Washed Shields.” (Tr. 80; Ex. 45 p. 1). This report also shows that the shearer was shut down (“delayed”) during much of the shift. (Tr. 80-81; Ex. 45 p. 1). One delay recorded on the P&D Report was from 6:40 a.m. until 8:50 a.m. (Ex. 45 p. 1). Another delay recorded on this report was between 8:50 a.m. and 9:30 a.m. The notation for this delay states: “Spragging Shields/Cleaning Rock Up.” (Tr. 81; Ex. R-45 p. 1). The subject citation was issued by Inspector Rennie at 9:45 a.m.

At 9:30 a.m., Inspector Rennie issued an order under section 104(b) of the Mine Act on the headgate entries leading up to the subject longwall face because muddy conditions that were the subject of a previous citation had not been completely abated. The inspector ordered everyone on the section to be withdrawn from the area, including miners working on the longwall face. Crittendon testified that the men, who had been removing the spillage along the longwall face, were ordered withdrawn by Inspector Rennie when he issued the section 104(b) order. (Tr. 82-83). He testified that mine management knew that there was a problem with accumulated material on the face and that AmCoal was taking steps to rectify the conditions. (Tr. 83). The P&D Report shows that the shearer had not been cutting coal since 6:42 that morning. (Tr. 83).

The delays for the following shift show that the shearer was not cutting coal between 8:40 a.m. and 3: 25 p.m. (Ex. R-45 p. 2). The longwall was down between 8:40 a.m. and 1:00 p.m. because of the section 104(b) order. The delay between 1:00 p.m. and 2:45 p.m. was a result of miners shoveling up the spillage cited by the MSHA inspector. (Tr. 85; Ex. R-45 p. 2). Crittendon was not sure how long it took for the conditions cited by the inspector to accumulate, but he believed that, if the top were bad, such material could quickly accumulate. (Tr. 89-90).

The Secretary argues that the evidence supports the findings and conclusions of Inspector Rennie and she contends that the citation should be affirmed. She maintains that the evidence substantiates the inspector’s S&S determination. She goes on to argue that the evidence shows that AmCoal’s negligence was high rather than moderate. She contends that the court should not credit the testimony of Bill Crittendon because he had little independent recollection of the events of May 30, 2007. (Tr. 65).

AmCoal contends that the testimony of Inspector Rennie should not be credited because he erroneously concluded that the cited condition had existed for three shifts. He admitted that, because the preshift books are kept on the surface, he relied on his memory when he reached this conclusion. (Tr. 50-51). The books actually show that the condition was reported once during the examination that occurred just before his inspection. In addition, AmCoal argues that the inspector’s determinations as to gravity, negligence, and S&S are clearly incorrect when compared with the evidence presented at the hearing. Inspector Rennie overstated the amount of the material that was present, the length of time it was present, and the length of time it took for the material to be cleaned up.

I find that the Secretary established a violation. In my order of December 17, 2010, I determined that Safeguard Notice No. 7582643 was validly issued. (Attachment 10-11). In addition, I find that the safeguard notice was applied by Inspector Rennie to hazardous conditions that were specifically identified in the safeguard notice. See Southern Ohio Coal Co., 7 FMSHRC 509, 512 (April 1985). The safeguard notice provided fair notice of what AmCoal was required to do to comply.

AmCoal argues that I should neither credit Inspector Rennie’s testimony nor defer to his judgment. It notes that the inspector testified that the condition had existed for three shifts based on his review of the preshift examination books. It maintains that the objective evidence establishes that the cited condition was only reported once in the preshift books, just prior to the shift when it was cited. Inspector Rennie recollection was incorrect and his inspection notes were incorrect as well. Inspector Rennie was also incorrect when describing the conditions he observed. He claimed that the deepest section of spillage was about 80 feet in length. During cross-examination, he admitted that distance was just an estimate. AmCoal argues that the objective evidence demonstrates that the condition could not have extended for more than 35 to 42 feet. In addition, the inspector believed that the longwall had been running when these conditions were present, but the objective evidence shows that the longwall had not operated since about three hours prior to the issuance of the citation.

Although I agree with AmCoal that Inspector Rennie was mistaken about some of the matters he observed, I find that his misunderstandings were in good faith and that the objective evidence establishes a violation. I also find that the evidence does not establish that the violation was S&S. An S&S violation is described in section 104(d)(1) of the Act as a violation “of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” A violation is properly designated S&S “if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). The Commission has 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.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission provided additional guidance:

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., Inc., 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).

This evaluation is made in terms of “continued normal mining operations.” U.S. Steel, 6 FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).

I have already found a violation of the cited mandatory standard. Further, I find that there was a discrete safety hazard created by the violation. Furthermore, I find that the fourth element of the Mathies test has been satisfied. If an injury were to occur as a result of the cited conditions, it would have been of a reasonably serious nature. However, the evidence does not support a conclusion that there was a reasonable likelihood that the hazard contributed to would have resulted in an injury assuming continued normal mining operations. I reach this conclusion because I credit the testimony of Mr. Crittendon that the cited condition had not existed for a very long period of time, miners were exposed to the hazard for a limited period of time, and AmCoal employees were in the process of cleaning up the accumulations. Moreover, the P&D Report and the various preshift and onshift examination reports corroborate Crittendon’s testimony. Indeed, he based his testimony, in large part, on the information in these reports. I primarily rely on the P&D reports and the preshift examination reports in making my findings on this issue. The shearer was down much of the previous shift and miners were not exposed to the cited hazard while it was operating. When he arrived on the section, Inspector Rennie was mostly concerned with AmCoal’s failure to abate the citation that had been issued in the headgate entries. He did not observe the longwall face area until most of the miners had been withdrawn. He would not have had any opportunity to observe whether miners were cleaning up the accumulated material. I credit the testimony of Crittendon that the material could have accumulated in a relatively short period of time if roof conditions were not optimal. The violation was serious, however, because a miner could have been seriously injured by the cited conditions.

I find that AmCoal’s negligence was low. The condition had been observed by the preshift examiner, the condition was noted in the book, and AmCoal was taking steps to eliminate the hazard. A penalty of $1,000 is appropriate for this violation.

On November 9, 2007, Inspector Steven Miller issued Citation No. 6668530 under section 104(a) of the Mine Act for an alleged violation of 30 C.F.R. § 75.1403. The citation alleges the following:

The diesel shield mover, company No. 7, was observed transporting a shield in the No. 3 entry of the 1^st West Flannigan Longwall Panel. The shield was not secured in all directions to prevent movement during transport. The shield was only secured by rope on a winch and had slid on the duckbill to the side.

(Ex. G-G). Miller determined that an injury was highly likely and, if an injury did occur, it could reasonably be expected to result in a permanently disabling injury. He determined that the violation was S&S, that one person would be affected, and that the violation was the result of the high negligence of the operator. The Secretary has proposed a civil penalty of $45,000.00 for this violation.

This citation was issued based on Notice to Provide Safeguard No. 7490527 issued June 14, 2007, by Inspector Miller. The safeguard notice provided, in part:

A serious accident occurred on May 24, 2007, at the mine during recovery of the 3^rd East Longwall. A miner was pinned between two longwall shields in the Main South storage area at Station 5+90 in the No. 5 Entry. One shield had been placed in the storage area and another shield had been transported there and was being unloaded. The shield had been moved there by a battery-powered “duckbill” shield mover. The shield had been secured to the “duckbill” shield mover by a hook fastened to a winch. During the process of unloading the shield the miner stepped between the two shields. The shield being unloaded slid toward the previously placed shield, pinning the miner.

This is a notice to provide safeguards. Shields being transported shall be secured in all directions to prevent movement during transport. Straps, hooks, chains, etc. shall be used in addition to the winch provided on the shield mover. In addition, safe work procedures shall be established and incorporated into the mine’s training plan which will address safe methods of shield loading and unloading, and safe locations for miners performing these duties.

Inspector Miller testified that he issued the safeguard notice because a longwall shield slid during the process of trying to remove it from the shield mover, which caused a nearly fatal accident. (Tr. 98). At the time of the accident, the mine was in the process of moving the longwall equipment to a new panel. The next panel was not ready for the installation of the longwall equipment, so the individual shields were being stored in an entry. As each shield was brought in, there was a miner present to help remove each shield from the shield mover and place it in the entry. When the accident happened, a shield was being removed in an area where the mine floor was at an angle. (Tr. 99). As a consequence, the left side of the shield mover was higher than the right side. The area was wet and slippery and the duckbill on the shield mover was wet with oil. When the miners started to remove the shield from the shield mover, one of the miners was standing between the shield on the shield mover and the shield that had been previously delivered to the area. The shield on the duckbill slid and pinned that miner between the two shields. The other miners had to drive wedges between the two shields to remove the pinned miner. (Tr. 100). He suffered serious injuries as a result of this accident.

Inspector Miller issued the safeguard notice after MSHA investigated this accident. He testified that he based the safeguard notice on conditions that existed at the mine at the time of the accident. He admitted that the hook attached to the wire rope on the winch had been removed from the shield when the shield slid on the duckbill. (Tr. 131). He testified that the shield would not have slid so far if the shield was hooked to the winch, but it still would have slid. (Tr. 134). He also testified that a pin connecting the knuckle to the relay bar was sticking out about two to three inches, which forced the nose of the shield up so that it was not flat against the duckbill. (Tr. 138). He admitted that this knuckle pin may have helped the shield slide off the duckbill. Id. Inspector Miller believes that additional chains or straps would have prevented this accident. In order to abate the safeguard notice, Inspector Miller required AmCoal to change its training plan to instruct miners on the proper procedures for shield loading, transport, and unloading. The safeguard notice was abated after the training plan was changed and the miners had been retrained. (Tr. 111).

Joseph Myers testified for AmCoal. He is the safety compliance manager at the mine. He has about 25 years working with longwall operations. (Tr. 233). Myers was the company representative when the safeguard notice was issued. He testified that, at the time of the accident, the shield mover operator and his helper were unhooking the shield from the hook on the winch rope. (Tr. 240). The helper positioned himself between the shield on the duckbill and another shield on the ground when he unhooked the winch rope. The shield on the duckbill slid, pinning him between the two shields. (Tr. 241). Myers testified that the safeguard notice specifically states that it covers the “transport” of shields on shield movers. In his opinion, unloading a shield from the duckbill should not be included in the definition of transport. (Tr. 242). Miners and supervisors were trained that additional methods to secure shields to the duckbill of the movers were required during transport. (Tr. 245). Miners were also trained not to place themselves in tight locations when the shields are moved and offloaded. This was the only accident that has ever occurred at the mine arising out of the relocation of longwall shields to a new panel since at least 1983. (Tr. 247-48). The safeguard notice covered all three portals of the mine. (Tr. 256).

Inspector Miller testified that he issued Citation No. 6668530 based on the requirements of the safeguard. The shield described in the citation was only secured by the hook attached to the winch line on the shield mover. The shield had not been strapped to the shield mover to prevent it from sliding off the side of the duckbill. (Tr. 106). The safeguard notice required AmCoal to use a chain or nylon strap to secure the shield near the front end so that it could not slide left to right.

The winch prevented movement from front to back. This citation was issued about six months after the safeguard notice had been in place.

Miller testified that, when he talked to the section foreman, the safety representative, and the miners helping move the shield, they were unaware of the safeguard notice. Inspector Miller testified that, as the shield mover transports the shield, it travels over uneven surfaces and around tight corners. Without being properly secured, the shield could easily slide on the duckbill and pin a miner against a rib or another piece of equipment. (Tr. 110). If the shield were to slide off the duckbill, it could also crush a miner’s foot or leg. He admitted, however, that if a shield is secured to the winch and it were pulled up tight against the shield mover, it could not slide very much on the duckbill. (Tr. 153-54). In addition, if shields have to be moved long distances, AmCoal often uses ram cars to move the shields. (Tr. 167).

Inspector Miller agreed that when the shield is loaded, it is pulled up onto the duckbill of the shield mover by using the winch to pull it up tight to the frame of the mover. (Tr. 145). Mine operators attach the shield to the winch using different methods, some use a tow bar and others simply use a clevis on the shield. (Tr. 144). Once the shield is properly positioned on the shield mover, the duckbill is raised for transport like the forks on a forklift. After the shield has been transported to the desired location, the duckbill is lowered and positioned in such a way that, as the wire rope on the winch is let out, the shield mover is pulled back and the duckbill is pulled out from under the shield. The area should be relatively flat. The duckbill should be tilted slightly forward as it is lowered so that the front end of the shield touches the ground when the shield mover is backed out, leaving the shield on the ground. Miller testified that the shield should extend out beyond the snout of the duckbill so that the weight of the shield is on the ground as the duckbill is pulled out. (Tr. 146-47). At some point in this process, the straps are loosened so that the shield remains on the ground as the shield mover is backed out. (Tr. 114-15).

Inspector Miller believes that the cited condition created a serious safety hazard that was S&S. During transport, the shields were maneuvered around corners and along uneven mine floors full of slopes, angles and inclines. (Tr. 106, 110). If the shield moved while being transported, it could pin someone between it and the rib or another piece of equipment.

Keith Medley, a longwall production foreman, testified that there are typically 189 shields on a longwall face. The citation issued by Inspector Miller concerned the final shield that needed to be set. (Tr. 201). At the start of the shift, the shield was on the shield mover, but the mover was not manned and it was shut off. Medley asked a miner to get on the mover and start it up. At that moment, Inspector Miller arrived and told him to shut it down. (Tr. 202). Miller asked him, “What is wrong with this picture?” When Medley could not answer, the inspector asked why the shield was not chained to the duckbill so it would not move from side to side. Medley replied that he did not know that he had to do this. Id. He was not aware that the safeguard notice had been issued. (Tr. 218, 223). Medley testified that the shield mover was parked and that the duckbill was down on the ground. (Tr. 203). The shield was secured to the mover with the winch rope. The only step left was to move the shield to set it into position. He estimated that it was only about 75 feet from the face. (Tr. 204, 221). Medley testified that the shield was a little “cocked” on the duckbill, which was not an unusual occurrence and did not present a safety hazard. (Tr. 227-28). All of the shields were transported to the face in the same manner without the use of any additional straps or chains. (Tr. 220-21).

Medley testified that he has worked on longwalls for almost 13 years. He testified that he knows of no other accidents or near accidents involving moving shields other than the accident that resulted in the safeguard notice. All that was going to be done to install the last shield was move it about 75 feet to the longwall face and set it into place. (Tr. 209). The shield is fully secured by the winch rope until you “slack off on the winch rope, raise your duckbill, push the shield in [place, and] unhook it.” (Tr. 210). He has never observed any problem with the shield being secure on the duckbill when it is held in place with the winch rope. (Tr. 211-12, 227). Medley has participated in about 30 longwall moves during his career. (Tr. 212). Ram cars are generally used to move shields long distances and they typically bring the shields close to the longwall face. (Tr. 226-27, 229). The roadways at the mine were muddy and uneven and ram cars cannot be used to move shields if the roof is too low. (Tr. 230-31).

Medley also testified that, during annual safety training and on a regular basis, miners are trained not to place themselves between equipment and a rib or another piece of equipment. These are danger zones and equipment operators are trained to look out for anyone in their area of operation.

Joseph Myers accompanied Inspector Miller on this inspection. When Miller told him that he was going to issue a citation based on the safeguard notice, he could not immediately recollect the safeguard notice. (Tr. 236-37). Myers testified that he does not have occasion to deal with safeguard notices frequently enough to remember them all. About 50 to 60 safeguard notices had been issued at the mine at that time. (Tr. 237, 248-49). In addition, the longwall shields are only moved once or twice a year. When he called the surface office, the safety department verified that the safeguard notice that Miller referenced had been issued. When this citation was issued, Myers made sure that mine management understood what was required when moving shields on shield movers. (Tr. 243-44; Ex. S-G, p. 3). Longwall moves are very safe at the mine because of the heightened awareness of the potential hazards. (Tr. 249-50).

The Secretary argues that Inspector Miller observed the shield at an angle on the duckbill so he reasonably concluded that the shield had slid as it was being transported. The shield was only secured by the winch. The safeguard notice clearly requires that a shield also be secured with a strap or other device to prevent it from moving from side to side. This was a clear violation of the safeguard notice. In addition, the Secretary argues the evidence established that the violation was S&S and very serious. At the hearing and in her brief, the Secretary argues that AmCoal’s blatant disregard for and failure to comply with the safeguard notice constitutes high negligence and rises to the level of aggravated conduct constituting an unwarrantable failure.

AmCoal argues that the underlying safeguard notice is invalid because it lacks the requisite specificity, is overly broad, and has been enforced in an inconsistent and unpredictable manner. AmCoal first maintains that the safeguard notice failed to address the hazards that caused the accident. The safeguard notice should have focused on requiring further training on where and how to lower a duckbill onto the mine floor, how to check for stuck knuckle pins, and the proper positioning of miners during the unloading of shields. (AmCoal br. 22). The safeguard notice only addressed “shields being transported” and required the attachment of chains or straps. The phrase “being transported” is ambiguous and, indeed, Inspector Miller interpreted it in two different ways at the hearing. (Tr. 102, 156-57). The inspector also recognized that any supplemental chains or straps would have to be removed or loosened prior to actually unloading the shield from the duckbill. (Tr. 114). For that reason, AmCoal argues that the safeguard notice would not prevent the same accident from occurring again. AmCoal concludes that the safeguard notice does not apply to the alleged conditions because the circumstances that gave rise to citation “are so starkly different from what led to the accident in May 2007.” (AmCoal Br. 25).

AmCoal also concludes that those portions of the safeguard notice “related to the extra measures to secure a shield during transport are overly broad, do not appear to be related to any hazard actually identified during the accident investigation or thereafter and, in and of themselves, would not have protected miners from the same hazard that led to the accident in May 2007.” (AmCoal Br. 23). Consequently, the safeguard notice failed to “identify with specificity the nature of the hazard at which it is directed.” Id. quoting SOCCO, 7 FMSHRC 509, 512 (April 1985).

AmCoal argues that no deference should be given to Inspector Miller’s testimony because it was “inconsistent, ever-changing and contradictory and because his designation of gravity (degree of injury) varied between Citations 6668530 and 6683959 for no justifiable reason.” (AmCoal Br. 14-15). AmCoal states that the inspector opined that the conditions that caused the accident in May 2007 were also present when Citation No. 6668530 was issued, yet the Secretary only offered general, non-specific evidence to back up this claim. The accident report was not introduced, nor were any of the notes taken during the accident investigation. It is quite clear that the shield involved in the accident slid on the duckbill after the shield had been released from the winch. In addition, the duckbill was lowered onto a very uneven floor at the time of the accident. The inspector also admitted that a knuckle pin that was sticking out from the relay bar kept the shield from lying entirely flat on the duckbill because it was holding the nose of the shield up, and that this might have helped the shield slide off the duckbill. AmCoal contends that this evidence demonstrates that the circumstances that led to the accident were entirely different from the circumstances that existed at the time Inspector Miller issued the citation. That shield was firmly attached to the winch, the duckbill was not slick with oil, the duckbill was not resting on an uneven surface, and there was no knuckle pin present to prevent the shield from lying flat.

AmCoal also argues that, on direct, Inspector Miller gave the impression that the shield was teetering on the edge of the duckbill, when the drawing that he made at the time he issued the citation showed that the shield was only slightly off-center. (Tr. 155; Ex. G-G, p. 7 of notes). Keith Medley testified that it is not uncommon to load a shield slightly “cocked.” AmCoal maintains that this is the more rational explanation of the condition the inspector observed and that he incorrectly jumped to the conclusion that the shield had slid on the duckbill.

AmCoal maintains that, if the citation is not vacated, the court should find that an injury was unlikely because the mine is on heightened awareness during a longwall move and there was no reasonable likelihood that the conditions would result in an injury. The shield was secured to the shield mover via the winch. There is no evidence that the shield mover was placed in an area where there was uneven ground, tilted, or pitched. Setup rooms for a longwall section are typically dry, rock dusted, and flat. There simply was no potential for the shield to fall off or shift on the duckbill while it was moved to the setup room and off-loaded. The evidence establishes that shield had not slid on the duckbill, but it was a little crooked when it was loaded. In addition, there was no evidence that a knuckle pin was protruding on the shield or that there was any oil, mud, or grease on the duckbill.

As to the negligence criteria, AmCoal argues that there were mitigating circumstances. AmCoal does not dispute that neither Medley nor Myers could recall the safeguard notice when Inspector Miller asked them about it. But Myers confirmed its existence within minutes. AmCoal, however, repeatedly reminded its employees not to place themselves in potential pinch points or in equipment danger zones. The safety department briefed management about the requirements of the safeguard notice following its issuance. As stated above, the provisions of the safeguard notice would not have prevented the May 2007 accident and that accident was a very unusual event at this mine.

In her reply brief, the Secretary contends AmCoal’s attempt to have the safeguard notice invalidated should be rejected for the reasons set forth in my order of December 17, 2010. Similarly, she argues that AmCoal’s “as-applied” challenge should be rejected as well. The safeguard notice was issued “to prevent multiple hazards related to the transportation of shields.” (Sec’y Reply Br. 4). The conditions faced by Inspector Miller when he issued the citation need not be exactly the same as the conditions that existed when the safeguard notice was issued. The evidence shows that AmCoal chose to ignore the requirements set forth in the safeguard notice and continued to transport shields without adequately securing them to the shield mover. Finally, the Secretary argues that there is no evidence to support AmCoal’s contention that the cited shield had been loaded on the duckbill so that it was crooked. Inspector Miller has extensive mining experience and the drawing in his notes corroborates his testimony that the shield slid on the duckbill during transport.

AmCoal maintains in its reply brief that the Secretary “presented no evidence in relation to the prior accident or any other accident (or even a near miss) that suggests a shield loaded on a duckbill – while still secured by the winch – posed any hazard whatsoever.” (AmCoal Reply Br. 6). Although AmCoal is not suggesting that a safeguard notice can only cover identical circumstances, it argues that it is clear that, “in interpreting a safeguard, a narrow construction of the terms of the safeguard and its intended reach is required” and that the safeguard must “identify with specificity the nature of the hazard at which it is directed.” SOCCO, 7 FMSHRC at 512.

I find that the safeguard notice at issue is valid for the reasons set forth in my order of December 17, 2010. (Attachment 15-16). The safeguard notice identifies the hazards that it was drafted to protect against and the steps the operator must take to reduce those hazards. In addition, the fact that a different, more narrowly drafted safeguard notice could have been issued does not invalidate the safeguard notice that was issued by Inspector Miller. I do not agree that the evidence establishes that the May 2007 accident would have occurred even if the extra measures required by the safeguard notice had been present. If a chain or strap were present to secure the shield in May 2007, it would have been loosened when the shield was offloaded but it may have prevented the shield from sliding so far as to crush the miner on the ground. The fact that other steps, such as only off loading a shield in a flat area, also helps reduce the risk of an accident does not negate the importance of the requirements set forth in the safeguard notice. It is also important to note that the safeguard notice also required AmCoal to ramp up its training program to recognize the risks involved in moving shields and to take precautions to reduce this risk. I find that the safeguard notice is not overly broad and that it identified with specificity the nature of the hazard at which it was directed.

The record does not establish that the safeguard notice lacks the required specificity or that it has been enforced in an inconsistent manner. It is quite clear that the Secretary has consistently interpreted the requirement to secure a shield on the duckbill to commence when the shield is first loaded onto the shield mover and that this requirement continues until the shield is offloaded. Although it is true that the supplemental straps or chains need to be loosened when the shield mover is backed out, they are required in order to help prevent slippage during the off- loading process.

The conditions that existed on November 7, 2007, when the citation was issued were not exactly the same as existed at the time of the accident in May 2007. As noted by AmCoal, the ground was relatively flat, a knuckle pin was not present, the duckbill was relatively clean of oil or grease, and the shield was attached to the line on the winch. One common element, however, is that in both instances there was not a supplemental chain or strap present to prevent the shield from sliding to one side or the other. I credit the testimony of Inspector Miller as to the reasons why having additional measures to secure the shield reduces the risk of injury. I also credit his testimony describing the types of accidents that can occur if the shields are not secured as required by the safeguard notice. There is no doubt that having the shield attached to the hook on the winch line with the winch line taut is the most important factor in keeping the shield stable on the duckbill, but I find that the Secretary established that having an extra chain or strap provides additional support that prevents the shield from sliding on the duckbill. A shield is a very heavy piece of equipment and keeping it secure on the shield mover helps ensure that no injuries will occur during transport.

Based on the foregoing, I find that the Secretary established that AmCoal violated Safeguard Notice No. 7490527 when it failed to secure the shield “in all directions to prevent movement during transport” by using straps, hooks, or chains. There is no dispute that these additional measures were not taken when the shields were relocated to a new longwall panel.

I also find that the violation was S&S. The Secretary clearly established the first, second, and fourth element of the Mathies S&S test. The question is whether she established the third element, i.e., whether there was a reasonable likelihood that the hazard contributed to by the violation would result in an injury, assuming continued normal mining operations. I find that this element was established. This case does not present a situation in which the operator inadvertently failed to comply with a mandatory safety requirement. The operator’s representatives were not even aware of the requirements of the safeguard notice. All of the other shields had been transported without taking the required steps to ensure that they were secure in all directions through the use of straps or other devices. Given the credible testimony of the inspector, I find that it was reasonably likely that the hazard contributed to by the violation would have resulted in an injury. I have considered the evidence presented by AmCoal that there has been only one known accident involving the transportation of shields. This fact, however, does not establish that another accident may not occur that would have been prevented if AmCoal complied with the requirements of the safeguard notice. In addition, shields may have shifted on duckbills and “near misses” may have occurred that would not necessarily be reported to management.

I find that AmCoal’s negligence was very high. Its safety compliance manager and the longwall production foreman were unaware of the requirements of the safeguard notice. A mine operator cannot possibly comply with a safeguard notice if its managers and miners are unaware of its requirements. I agree with the Secretary’s argument that AmCoal’s blatant disregard of the requirements of the safeguard notice warrants a high negligence finding. Nevertheless, I find that there is insufficient evidence in the record to modify the section 104(a) citation to include an unwarrantable failure finding. Commission case law sets forth a number of elements that must be examined in reaching a finding of unwarrantable failure including whether the operator has been placed on notice that greater efforts are necessary for compliance, for example. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000).

In reviewing the statutory criteria for assessing a civil penalty, I find that a penalty of $60,000 is appropriate. I have raised the assessed penalty from the Secretary’s proposed $45,000 penalty based on the high degree of negligence exhibited by the mine operator.

On May 1, 2008, Inspector Miller issued Citation No. 6673959 under section 104(a) of the Mine Act for an alleged violation of 30 C.F.R. § 75.1403. The citation alleges the following:

A shield was observed being transported on the New Future bottom area without being secured in all directions to prevent movement. The shield was setting on the duckbill of Shield Mover, company number 777, and was only secured on the rear of [the] shield. The shield was not fastened down on the head end of the duckbill and could have shifted off the duckbill very easily.

(Ex. G-H). Miller determined that an injury was highly likely and, if an injury did occur, it could reasonably result in a fatal injury. He determined that the violation was S&S, that one person would be affected, and that the violation was the result of the high negligence of the operator. The Secretary has proposed a civil penalty of $19,793.00 for this violation. This citation was based on the same safeguard notice as the previous citation.

Some of the evidence presented with respect to the previous citation relates to this citation. On May 5, 2008, Inspector Miller was at the mine investigating a complaint filed under section 103(g).

(Tr. 121-22). During his investigation, the inspector was at the bottom of the New Future section of the mine when longwall shields that had been rebuilt on the surface were being lowered into the mine in a small cage one at a time. Inspector Miller testified that he observed a shield on a shield mover that was only secured with the winch. (Tr. 123, 168-69). Apparently, no other fastening devices were wrapped around the shield to prevent it from sliding off the duckbill. Barry Burgess, the manager supervising the movement of shields into the mine, was one crosscut away from the subject shield mover. (Tr. 178). Given the recent history at the mine, the inspector believed that mine management should have been on “heightened awareness” that the shields needed to be fully secured to the shield movers. Securing shields to the duckbill is not difficult. Most operators put holes in the duckbills so that chains or straps can be looped around the shield as it is moved. (Tr. 125).

Inspector Miller determined that the violation was S&S and that a fatal accident was reasonably likely. He made this determination because the shield mover was at the bottom on an incline and it was in an area where miners frequently travel. (Tr. 126). This created a higher degree of danger to miners. Miller testified that a miner was standing within 3 to 4 feet of the shield when the inspector arrived. (Tr. 179). The shield could slide and pin a miner to a rib. (Tr. 165). The roadways in this section of the mine were in poor condition in many places. He also determined that the company’s negligence was high.

On cross-examination, Inspector Miller was presented with a drawing that he made when he issued this citation. (Tr. 170; Ex. R-69). The drawing was not in his notes related to the issuance of the subject citation, rather it was in the notes he made during his investigation of the 103(g) complaint. Id. Inspector Miller had not reviewed this drawing in preparation for the hearing. (Tr. 192). When counsel for AmCoal showed him the drawing, counsel suggested that it indicated that the shield was secured by both the winch and a chain wrapped across the shield. The inspector replied that the drawing indicated that the wire rope for the winch was not actually connected to the shield with the hook. (Tr. 171). Based on the drawing, he concluded that the chain shown on the drawing was the only device securing the shield to the duckbill of the shield mover. The drawing shows the chain, which is marked “chain,” and a caption states, “Only secured to the mover on the front.”

(Ex. R-66, p 5 of notes). Inspector Miller stated that the drawing shows that the winch line was not connected to the shield. He testified, as follows:

If you look at the drawing, it’s showing that winch, that breaking line right there must not have been connected. I mean, if you see where I’ve drawn the winch, there’s a void between the coupling and that there . . . so that [chain] must have been the only way it was secured.

(Tr. 171). The writing around the drawing does not indicate whether the winch line was connected; the inspector relies strictly on the fact that the line he drew between the shield and the body of the shield mover has a break in it. (Tr. 171-72). He does not state, in either set of notes, whether the winch was connected to the shield with the wire rope and hook. When asked whether he was saying that the chain was connected but the winch was not connected, he replied:

That’s what I’d have to say looking at this drawing. If my notes don’t say anywhere that it is secured with the winch as I’ve said in the two previous citations that it was secured with the winch, then I’ve got to believe that the only way it was fastened was on these two corners of the shield [with the chain].

The Secretary argues that the citation should be affirmed for many of the same reasons as set forth in the previous citation. The failure to secure the shield in all directions shows a “pattern of indifference” with respect to the requirements of the safeguard notice. (Sec’y Br. 23).

AmCoal makes all of the same arguments with respect to this citation as it did with respect to the other two, discussed above. In addition, AmCoal argues that Inspector Miller changed his testimony when presented with his drawing of the shield mover to say that the winch was not connected to the shield because of small gap in the drawing. The accompanying notes make no mention of the winch not being connected. He went on to testify that he would have issued the citation whether the chain or the winch was the sole means of securing the shield. It contends that the citation should be vacated because the Secretary failed to prove a violation. AmCoal also makes the same arguments with respect to gravity, negligence, and the inspector’s S&S determination.

In her reply brief, the Secretary notes that the citation was issued several years prior to the hearing and the inspector’s notes for the complaint investigation (E03) were separate from the notes for his regular inspection (E01), during which he issued the subject citation. It was a “difficult task for Inspector Miller to interpret the significance of the nuances of the drawings in the E03 investigation notes having seen them for the first time in three years at the hearing.” (Sec’y Reply Br. 8). The evidence establishes that the cited shield was not secured in all directions as required by the safeguard notice. The evidence did not establish that the shield was secured by both the winch and the chain.

I find that this citation must be vacated. The Mine Act imposes on the Secretary the burden of proving an alleged violation by a preponderance of the credible evidence. In re: Contests of Respirable Dust Sample Alteration Citations , 17 FMSHRC 1819, 1838 (Nov. 1995)., aff’d sub nom. Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998). The preponderance standard requires proof that something is more likely than not so. Id. 17 FMSHRC at 1838.

Here it is not clear just how the cited shield was secured to the shield mover. The citation just states that the shield was not “secured in all directions to prevent movement.” Inspector Miller first testified that only the winch was attached to the shield. When he was presented with his drawing of the shield mover, he testified that only a chain secured the shield to the shield mover. He based this conclusion on a small gap in the line he drew between the body of the shield mover and the shield on the drawing that he prepared at the time he issued the citation. He also relied on the fact that both the safeguard notice and Citation No. 6668530 specifically state that the shield was connected to the winch. Because he did not mention the winch in the present citation, he concluded that it must not have been attached. None of his notes affirmatively state that the winch was not attached to the shield, which is a fact that one would expect the inspector to highlight in his notes. His specific testimony on this issue was that “I’ve got to believe that the only way it was fastened was on these two corners of the shield [with the chain].” (Tr. 173) (emphasis added). Although the citation itself asserts that the shield was not adequately secured to the duckbill in violation of the safeguard notice, the evidence is not clear on this point. I find that the evidence is much too speculative to find a violation of the safeguard notice.

I also find it unusual that AmCoal would transport a shield without having it attached to the winch because the winch is generally used to help pull the heavy shield onto the duckbill when it is being loaded.

There would be no reason to disconnect the winch until the shield was off-loaded. Based on the evidence presented at the hearing, I cannot affirmatively find that the shield was not secured in all directions to prevent movement. Consequently, Citation No. 6673959 must be vacated.

A number of the citations at issue in these cases settled, either prior to the hearing or at the conclusion of the hearing. The terms of the settlements are set forth below:

By order dated November 5, 2009, I approved the Secretary’s motion for partial settlement for 19 of the 20 citations at issue in this docket in the amount of $64,505.

This docket contains Citation Nos. 6668529 and 6668530, both of which were issued based on a safeguard notice. The parties agreed to settle Citation No. 6668529 for $20,000. This citation was issued based on a safeguard notice.

6668207	$4,000.00	$4,000.00	Lost work days, 3 miners affected
6672814	$4,000.00	$4,000.00
6674136	$4,000.00	$176.00	104(a); moderate negligence
6672875	$807.00	$605.00	Citation based on safeguard notice
6672877	$687.00	$687.00
6672878	$634.00	$634.00
6673565	$2,901.00	$1,304.00	3 people affected
6673567	$687.00	$687.00
6673583	$21,993.00	$10,000.00	Citation based on safeguard notice
6674271	$540.00	$540.00
6674273	$873.00	$873.00
6674275	$1,026.00	$1,026.00
6674276	$2,678.00	$807.00	Gravity - Lost workdays
6674281	$8,209.00	$8,209.00
7493253	$8,893.00	$2,678.00
7493711	$1,026.00	$207.00	Gravity - unlikely
7572872	$3,689.00	$3,689.00
7572873	$1,111.00	$0	Vacated
7572875	$2,678.00	$2,678.00
	$70,432.00	$42,800.00	Total Settlement in Lake 2008-624

With respect to the three settled safeguard citations, AmCoal is not waiving it right to file a petition for discretionary review of my order of December 17, 2010, denying its motion for summary decision as applied to these citations.

Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an appropriate civil penalty. I have reviewed the Assessed Violation History Reports, which are not disputed by AmCoal. (Sec’y Ex. AA). AmCoal is a large mine operator. The violations were abated in good faith. The penalties assessed in this decision will not have an adverse effect on AmCoal’s ability to continue in business. The gravity and negligence findings are discussed above.

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the following civil penalties:

For the reasons set forth above, Citation No. 6673959 is VACATED and the other citations and are AFFIRMED or MODIFIED as set forth in this decision. The American Coal Company is ORDERED TO PAY the Secretary of Labor the sum of $123,800.00 within 40 days of the date of this decision.

Karen E. Wilcynski, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202 (Certified Mail)

Jason W. Hardin, Esq., Fabian & Clendenin, 215 South State Street, Suite 1200, Salt Lake City, UT 84111-2323 (Certified Mail)

Jason Witt, Esq., Assistant General Counsel, Coal Services Group, 56854 Pleasant Ridge Road, Alledonia, OH 43902 (First Class Mail)