FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9950 / FAX: 202-434-9949
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SECRETARY OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Petitioner,
v.
WARRIOR INVESTMENTS CO., INC., Respondent. |
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CIVIL PENALTY PROCEEDING:
Docket No. SE 2015-174 A.C. No. 01-03419-370628
Mine: Maxine-Pratt Mine |
DECISION
Appearances: Willow E. Fort, Esq., U.S. Department of Labor, 618 Church Street, Suite 230, Nashville, TN 37219-2456, for Petitioner
J.D. Terry, Esq., Warrior Investments Co., Inc., 218 Highway 195, Jasper, AL 35503, for Respondent
Before: Judge Barbour
This civil penalty case arises under section 105(d) of the Federal Mine Safety and Health Act of 1977 (“the Act”), as amended, 30 U.S.C. § 815(d). The Secretary of Labor (“Secretary”) on behalf of his Mine Safety and Health Administration (“MSHA”) seeks the assessment of civil penalties for two alleged violations of section 316(b) of the Act, 30 U.S.C. § 876(b), which requires each underground coal mine operator to develop and adopt an emergency response plan subject to review and approval by the Secretary.[1] The Secretary alleges that Warrior Investments Company, Inc. (“Warrior” or “the company”) failed in two separate instances to comply with a provision of its approved emergency response plan requiring an inline beacon reader to be located at the intersection of the rescue chamber lifeline and the primary escapeway lifeline. The Secretary charges that the alleged violations were significant and substantial contributions to a mine safety hazard (“S&S”[2]), reasonably likely to cause eight miners to suffer lost work days or restricted duty, and the result of Warrior’s moderate negligence. The alleged violations occurred at an underground bituminous coal mine owned and operated by Warrior near Jasper, Alabama.
The Secretary filed the subject petition requesting the Commission to assess proposed civil penalties totaling $2,206 for the two alleged violations. The Commission’s Chief Judge assigned the case to the court, which directed the parties to engage in discussions to determine if the alleged violations could be settled. After the parties were unable to reach a settlement, the violations were tried on December 15, 2015, in Birmingham, Alabama. At the end of the hearing, the parties agreed to forego briefing and instead offered closing arguments on the record. Tr. 239.
I. STIPULATIONS
1. At all times relevant to this matter, [Warrior] was the operator of the mine as defined by [section 3(d)] of the Mine Act, 30 U.S.C. § 803(d).
2. [T]he mine is a mine as that term is defined in Section 3(a) to the Mine Act, 30 U.S.C. § 803(a).
3. [A]t all material times involved in this matter, the products of the subject mine entered commerce, or the operations thereof[] affected commerce within the meaning and scope of Section 4 of the Mine Act, 30 U.S.C. § 803.
4. [T]he citations were issued to [Warrior] on the dates set forth therein.
5. [Warrior] operations at the mine are subject to the jurisdiction of the . . . Federal Mine Safety and Health Review Commission, and its designated administrative law judges pursuant to Sections 105 and 113 of the Mine Act, 30 U.S.C. §§ 815, 823.
6. [I]nspector Todd Smith was [acting] in his official capacity and as an authorized representative of the Secretary when he issued the citations.
7. [T]he total proposed penalty for the above-referenced docket will not affect [Warrior’s] ability to remain in business.
8. [T]he proposed assessment form, Form 1000-179[,] accurately sets forth [Warrior’s] size and . . . controller tonnage, the total number of assessed violations for the 15 months preceding the month of the citations, and the total number of repeat violations for the 15 months preceding the month of the citations.
Tr. 11-13.
II. BACKGROUND
Every active underground coal mine in the nation has an emergency response plan (“ERP”) developed by the mine operator and approved by MSHA’s district manager, setting forth tracking and communication requirements to help locate and recover miners in the event of an emergency situation. Tr. 26. Each plan is tailored to the specific conditions and resources of the individual mine. Tr. 26. The company’s Maxine-Pratt mine submitted its ERP for approval on July 6, 2014, and received approval on July 31, 2014. Tr. 44.
Relevant portions of the ERP in place at the mine during the month of November 2014 require that inline beacon readers be installed inby the portal (at the entrance of the mine), on both the intake and return[3] sides of each working section, at the “number 2 belt drive,” and at intervals of a maximum of 2,000 feet; that a beacon reader be installed at the intersection of the rescue chamber lifeline and the primary escapeway lifeline; and that the tracking system be examined weekly by a designated, competent person. GX-2 at 2-3. The Secretary’s mandatory safety standards for the nation’s underground coal mines also require that a rescue chamber be located within 1,000 feet of each working face (where coal is actively being mined). 30 C.F.R. § 75.1506(c)(1).
The witnesses offered useful definitions and descriptions of the terms mentioned above. The primary escapeway, which also functions as the intake side of each section, provides the likeliest means of safe exit from a working section out of the mine in case of an emergency or accident. Tr. 64, 210. (There is also a secondary escapeway located along the belt line that miners may use in an emergency if the primary escapeway is rendered unsafe. Tr. 210.) The primary escapeway lifeline, which may be a rope or metal line, hangs from the roof of the mine and runs along the entire length of each escapeway, indicating the proper route for safely exiting the mine. Tr. 65. Beacon readers hanging from the lifelines detect miners who pass within a certain radius of the readers.[4] Tr. 49. The company typically places beacon readers every 1,800 feet, or sometimes closer together, throughout the mine.[5] Tr. 206. The beacon readers are capable of identifying specific miners by the identification tags they carry with them. Tr. 49; GX-2 at 2. The readers then transmit a signal by wire outside of the mine indicating that a miner has passed within their radius of detection. Tr. 56-57.
A refuge chamber, also known as a refuge alternative, is a physical box with 96 hours worth of emergency supplies and “breathable air under a pressurized system.” Tr. 69, 128. It provides refuge to stranded miners if an accident or emergency occurs and miners are unable to reach the surface. Tr. 69-70. Each chamber at this mine can accommodate up to 25 people. Tr. 128. The refuge chamber lifeline guides miners from the primary escapeway to the refuge chamber if they are unable to complete the trip out of the mine using the primary escapeway. Tr. 71.
In the event of an emergency, the first responders will initially check to see the last recorded location of any missing miner by a beacon reader and then focus their search and recovery efforts on the area within that beacon reader’s radius. Tr. 59, 67. Beacon readers, by requirement, are concentrated along the areas where first responders expect to find trapped miners in an emergency, including at each working section. Tr. 62-63, 81.
During the month of November 2014, Warrior was mining coal in two sections of the mine, which the company referred to as section 15 West and section 35 West. Tr. 190. There were eight people at a time working on each of the two sections during that time period. Tr. 191. The company ran three eight-hour shifts each day. Tr. 118, 194. Todd Smith, who had approximately three and a half years of experience as an MSHA Inspector, and further experience as a member of a federal mine emergency rescue team, cited Warrior for the two alleged violations at issue during a quarterly inspection in November 2014. Tr. 22, 37. Citation No. 8530016 was issued on November 5, 2014, during an inspection of the 15 West section of the mine, while Citation No. 8530019 was issued on November 21, 2014, during an inspection of the 35 West section. Tr. 72, 91. The citations were issued pursuant to section 104(a) of the Act. 30 U.S.C. § 814(a).
III. THE CITATION S
CITATION NO. DATE 30 U.S.C. §
8530016 11/5/2014 876(b)
8530019 11/21/2014 876(b)
Both citations state:
Management failed to follow the approved Emergency Response Plan, page 2 paragraph 5, which states that, “An inline beacon reader will be located at the intersection where the rescue chamber lifeline connects to the primary escapeway lifeline.” When inspected, the inline beacon reader was not installed at the intersection by the . . . section refuge alternative.
GX-3; GX-4. Citation No. 8530016 then concludes, “The line was coiled up in the intersection without the reader.” GX-3 at 1. Citation No. 8530019 instead concludes, “The line had been run by the refuge alternative and into the adjacent entry toward the face, but the inline beacon reader had not been installed.” GX-4 at 1. The citations were abated by installing the missing beacon readers at the refuge alternatives. GX-3 at 2; GX-4 at 2.
Inspector Smith cited the company immediately after noticing the first missing beacon reader on November 5, 2014. Tr. 72. He was concerned about miners, unable to exit the mine, seeking refuge in the chamber after an emergency and first responders not recognizing they are there due to the absence of a beacon reader at that location. Tr. 74, 77. Instead, a rescue team would search for the missing miners near the last beacon reader that detected them, which could be a considerable distance away. Tr. 83. While the chambers did have other means of communication to the outside, Smith feared that miners could be too injured to take advantage of them or that an accident could hamper those lines of communication. Tr. 75-76, 89.
Smith designated the violation as S&S because he believed it would, in the event of an emergency, be reasonably likely to delay an injured miner’s rescue and recovery, thereby exacerbating injuries caused by the emergency itself. Tr. 78. Those injuries could include “burns, smoke inhalation from a fire, [or] broken bones from a fall.” Tr. 78. Smith also noted that the low height of the mine, which averaged about 42 inches, would already delay recovery efforts since a rescue team would have to crawl or “duck walk” through the mine to get around. Tr. 40, 78. He believed that eight persons would be affected by this hazard, since there are typically eight people working on the section. Tr. 79.
During cross-examination, Smith was asked whether a delay would be significant since, in the event of an emergency, MSHA would anyway dictate the timetable for rescue efforts and prohibit the operator from sending someone into the mine to rescue a missing miner until MSHA arrived.[6] Tr. 143, 151. Smith responded that the agency has not been doing that lately, and that MSHA’s response could vary depending on the mine’s conditions at the time. Tr. 151-52. Smith was also asked whether there was another beacon reader further inby in close proximity that would pick up a miner near the refuge chamber during an emergency. He responded that only the very same line with the missing beacon reader at the refuge chamber could have carried another beacon reader further inby. Tr. 155. But, as stated on the face of the citation, the line was coiled up right at the intersection where the refuge chamber was and not extended further, so there could not have been another beacon reader in the same entry further inby. Tr. 154-56; GX-3 at 1.
Smith designated the company’s negligence as moderate. GX-3 at 1. He believed that the condition had existed for approximately three shifts, occurring over one full day. Tr. 79, 134. He calculated that timeline based on the distance of the refuge chamber from the working face of the section.[7] Tr. 79. Although Josh Holbrook, who was the day shift mine manager at the time, told Smith that the company did not know that the beacon reader was missing, the area had undergone pre-shift examinations during all three of the prior shifts, so Smith believed that Warrior should have been aware of the condition. Tr. 87-88. Smith speculated that the pre-shift examiners might not have been properly trained to recognize the missing beacon reader, but he could not think of any reason why they would not have received that training. Tr. 88-89.
Smith issued the second citation 16 days later on November 21, after noticing the exact same issue with a missing beacon reader near a refuge chamber in the 35 West section of the mine, which was a “good distance” from the area of the first citation Tr. 90-91. Smith designated the violation S&S and a result of moderate negligence, and the analysis for both designations was nearly identical to the analysis for the first citation. GX-4 at 1. The primary differences were that Smith believed the condition had existed for three and a half to four shifts and that the company had failed to correct this problem after being cited for the exact same condition 16 days earlier, despite moving this chamber after the first citation. Tr. 97-98. Additionally, the wire that was supposed to carry the missing beacon reader was not coiled up at the intersection, but instead continued further into the adjacent entry. GX-4 at 1.
Frank McClanahan, the chief electrician and superintendent of the mine, testified to the conditions of the mine during the relevant timeframe in this matter. Tr. 183-84. The Maxine-Pratt mine is a drift-mine located on the side of a hill, above the water table, and according to McClanahan, the mine has never had any methane detected on a sample taken by MSHA. Tr. 185-87. Nor has there ever been methane detected in the two mines below the Maxine-Pratt mine, one of which is entirely flooded with water. Tr. 188. McClanahan also stated that there has never been an ignition, fire, or explosion at the mine. Tr. 188. There is a maximum of about 285 feet of overburden (overlying rock or soil) above the coal seam at the mine. Tr. 187.
McClanahan did not dispute that the beacon readers were missing in the cited areas and that their absence constituted a violation of the mine’s ERP. Tr. 208. However, McClanahan questioned the severity of the violations. Tr. 208. He believed that the inline beacon reader on the intake side of each section would have detected any miner near the refuge chambers. Tr. 209. He testified that each chamber had been moved to the working section face roughly three shifts prior to each citation, and that the company mined approximately 150 feet during those three shifts. Tr. 202, 208-09. Therefore, the chambers would have been roughly 150 feet away from the working face when cited. Tr. 209. He also believed that there were two beacon readers on each working section which would have detected a miner within a 150 feet range. Tr. 209. McClanahan did not personally verify that those readers were there at the time, but he knew that they were supposed to be there and that nobody at the mine had told him that they were missing. Tr. 207-08.
McClanahan then detailed a number of redundant safety measures at the mine that, in his opinion, could have decreased the likelihood of a serious injury. These included multiple means of communication to the outside within the refuge chamber, as well as in the primary and secondary escapeways. Tr. 213-14. McClanahan also believed that in the event of an emergency there would be multiple man trip rides available out of the mine and that miners would most likely take advantage of a tether line that they could collectively fasten to each other so that they could all exit the mine together without anyone going missing. Tr. 214, 217.
IV. LEGAL ANALYSIS
1. The Fact of the Violation, Its Gravity, and Its Significant and Substantial Nature
Warrior concedes the fact of the violation for both citations, as both Smith and McClanahan agreed that beacon readers were not in place at the refuge chamber lifeline intersections as required by the mine’s ERP. Tr. 208, 239. The company instead disputes the negligence, gravity, and S&S findings.
The court agrees with the Secretary that both violations were S&S. When dealing with a violation of an emergency safety requirement, the court conducts the Mathies analysis in the context of an anticipated emergency. See Cumberland Coal Res., LP v. Sec’y of Labor, 717 F.3d 1020, 1027 (D.C. Cir. 2013) (providing that “assuming the existence of an emergency” when evaluating the S&S nature of emergency safety measures is consistent with Mathies); Spartan Mining Company, Inc., 35 FMSHRC 3505, 3509 (Dec. 2013). Thus, Warriors’ argument that “no methane gas [has been] detected [and that there has] never been a fire, . . . an ignition, . . . [or] an explosion . . . for the whole life of [the] mine” has little bearing on the S&S analysis once the court assumes the existence of the type of serious emergency for which the requirement of a beacon reader outside of the refuge chamber becomes relevant. Tr. 247. Assuming such an emergency, the court finds that both violations contributed to the hazard of a delay in rescue efforts for miners trapped in or around the refuge chambers, that this hazard would be reasonably likely to exacerbate injuries sustained during the emergency, and that the exacerbation of such injuries, ranging from burns to smoke inhalation or broken bones, would be reasonably serious.
Warrior offers evidence of a number of redundant safety measures in place at the mine, including alternate communication systems and other functioning beacon readers in the area, in order to argue that the hazard contributed to by the violation was not reasonably likely to lead to serious injuries. Tr. 245, 250. However, the Commission has held that “additional safety measures do not prevent a finding of S&S,” Black Beauty Coal Co., 36 FMSHRC 1121, 1125 n.5 (May 2014), and has even “rejected as irrelevant evidence regarding the presence of safety measures designed to mitigate the likelihood of injury resulting from the danger posed by the violation.” Brody Mining, LLC, 37 FMSHRC 1687, 1691 (Aug. 2015). The court similarly rejects the relevancy of Warrior’s evidence on this point. The court also rejects Warrior’s argument that delays caused by the missing beacon readers would be relatively insignificant given that MSHA would be dictating the timetable for rescue in any event. Tr. 250. No matter when rescue efforts began, the missing beacon readers would still be reasonably likely to cause further delays if first responders began their search in the wrong areas.
As the Commission has noted, the gravity penalty criteria and a finding of S&S are not synonymous, but may be based on the same evidence. See Consolidation Coal Co., 18 FMSHRC 1541, 1550 (explaining “the focus of the seriousness of the violation is not necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather on the effect of the hazard if it occurs.”) The court finds the violations to be serious, based on the types of injuries that could result from an emergency situation and worsen with a delayed response. Tr. 78. The court also finds that eight persons were affected by each violation, as that was the number of individuals working on each shift who may have had to seek refuge in the chambers, and this number contributes to the violations’ seriousness. Tr. 79.
2. The Company’s Negligence
Smith found that Warrior was moderately negligent[8] in both citations. GX-3; GX-4. Since it is undisputed that both cited conditions had existed for at least three shifts without being addressed during pre-shift examinations and that the second citation occurred 16 days after the company was cited for the same condition in a different section of the mine, the court finds negligence on Warrior’s part for both citations. Tr. 79, 90-91, 134, 208-09. However, the court would reduce the level of negligence based on the fact that the conditions had each existed for roughly one day. Given that the mine’s ERP requires examinations of the tracking and communication systems once every seven days by a designated competent person, the court does not view the one day oversight as especially negligent. GX-2 at 3.
Further, while redundant safety measures may be irrelevant in the S&S context, they do mitigate Warrior’s negligence. The company’s duty of care to identify missing beacon readers each and every day would be considerably higher if it did not already have numerous operational tracking and communication systems in place that could serve a similar function to the missing reader. In both cases, communication systems inside the refuge chamber and in the primary and secondary escapeways would generally allow miners seeking refuge (or miners aware of others seeking refuge) to notify those outside of their location. Tr. 213-14. In the situation covered by the second citation, the court finds it reasonable to infer the existence of an additional beacon reader further inby that would have picked up the location of a miner seeking refuge at the chamber. The court further infers that the refuge chamber was roughly 150 feet away from an inline beacon reader near the working face. This inference is consistent with McLanahan’s testimony on the distance from the refuge chamber to the working face (Tr. 207-09) and the lack of a citation for any other missing beacon readers near the face, where they would typically be found. Tr. 81, 126. As long as the chamber was sufficiently close to the section face, Warrior’s failure to identify the lack of what would have been a redundant safety measure was partially mitigated.
The Secretary argues that Warrior’s negligence should perhaps be elevated above the level designated on the citations in light of McLanahan’s testimony at hearing. Tr. 241. McLanahan stated that the company typically places beacon readers roughly 1,800 feet apart from each other at the mine, which allows Warrior to make use of the full length of the 1,850 feet cables to which the beacon readers are attached, rather than cut them short. Tr. 206-07. The Secretary suggests that this practice indicates that Warrior may have even been aware of the missing beacon readers and condoned the violations in order to save resources and avoid cutting its cables short. Tr. 241. However, McLanahan also testified that the company did shorten its cables when it needed to comply with an ERP provision requiring a beacon reader at a belt drive. Tr. 206-07. Presumably, it would have done the same thing at the intersections of the refuge chamber lifelines and the primary escapeway lifelines had it been aware of the violations. Therefore, the court does not find that this testimony elevates Warrior’s negligence.
V. OTHER CIVIL PENALTY CRITERIA
The parties stipulated that the penalty assessed will not affect Warrior’s ability to remain in business. Tr. 12-13. The parties also stipulated that the proposed assessment form submitted by the Secretary accurately sets forth Warrior’s size and violation history during the previous 15 months. Tr. 13. The form indicates that the mine and Warrior, as a controlling entity, are moderately large. GX-7. The form also indicates that Warrior has a low to moderate violation history, and that it had not violated the specific provision of the Act at issue in this matter in the preceding 15 month period. GX-7, GX-8.
VI. PENALTY
CITATION NO. DATE 30 U.S.C. § PROPOSED PENALTY ASSESSMENT
8530016 11/5/2014 876(b) $1,235.00 $835.00
8530019 11/21/2014 876(b) $971.00 $671.00
The court has found that the violations were serious and S&S, that an injury was reasonably likely, and that the violations were due to the company’s low negligence. The Secretary proposed a penalty of $1,235.00 for Citation No. 8530016 and a penalty of $971.00 for Citation No. 8530019, but given these findings and the civil penalty criteria discussed above, the court finds that a penalty of $835.00 is appropriate for Citation No. 8530016 and that a penalty of $671.00 is appropriate for Citation No. 8530019. The court has departed from the proposed penalties because it has found the negligence in both citations to be lower than the Secretary alleged.
ORDER
In view of the conclusions and findings set forth above, within 30 days of the date of this decision, Citation Nos. 8530016 and 8530019 SHALL BE MODIFIED to change the level of negligence from “moderate” to “low,” and the company SHALL PAY a civil penalty in the amount of $1,506.00. Upon payment of the penalty, this proceeding IS DISMISSED.[9]
/s/ David F. Barbour
David F. Barbour
Administrative Law Judge
Distribution:
Willow E. Fort, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 230, Nashville, TN 37219-2456
J.D. Terry, Esq., Warrior Investments Co., Inc., 218 Highway 195, Jasper, AL 35503
/rd
[1] At hearing, the Secretary moved to amend the citations to allege that the operator violated section 316(b) more broadly, rather than section 316(b)(2)(c). The court granted the motion without objection from the company. Tr. 20-21.
[2] An S&S violation is a violation “of such nature as could significantly and substantially contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d). A violation is properly designated S&S “if, based upon the particular facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co. 3 FMSHRC 822, 825 (Apr. 1981). In order to establish the S&S nature of a violation, the Secretary 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 will be of a reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc. 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 F.2d 99, 103 (5th Cir. 1988) (approving the Mathies criteria).
[3] The intake side of a section delivers fresh air or ventilation inby from outside of the mine, while the return side contains air or ventilation that has passed through the working faces of the mine. Tr. 210.
[4] The ERP states that the beacon reader reads a distance of both 150 feet and 450 feet. The witnesses in this matter believed that one of those measurements was incorrectly listed, but neither witness knew which of the two was correct. Tr. 113, 228-29; GX-2 at 2.
[5] The cables connecting each beacon reader to a power supply are either 1,580 or 1,850 feet long. Testimony was inconsistent on this point. Tr. 204-06. The company typically places the beacon readers at the end of each cable, and then runs a subsequent cable nearby with another beacon reader at the end of it. This allows the company to comply with the ERP requirement that the readers be at most 2,000 feet apart, without having to cut the cables short. Tr. 205. However, the company also places a beacon reader at certain belt drives, and since a belt drive can be less than 1,800 feet from the closest beacon reader, the company occasionally cuts the cable short to attach a new beacon reader at the belt drive. Tr. 206-07.
[6] The company’s witness, Frank McClanahan, later reiterated this belief during his testimony. Tr. 211.
[7] The mine is required to keep the refuge chamber within 1,000 feet of the working face. Because active mining pushes the working face further away from the chamber, the company typically moves the chamber closer to the face whenever the distance between the two approaches 1,000 feet. Since the distance between the face and the chamber at the time of the citation was approximately the same distance that the company would have advanced in the course of active mining during three shifts, Smith concluded that the chamber had been moved roughly three shifts prior, and had persisted without a beacon reader for at least those three shifts. Tr. 79-80.
[8] The Secretary’s Part 100 regulations define “moderate negligence” to mean that “[t]he operator knew or should have known of the violative condition or practice, but there are mitigating circumstances.” 30 C.F.R. § 100.3. However, the Commission has clarified that “when Commission Judges consider ‘whether the operator was negligent’ in assessing a civil penalty in accordance with section 110(i), they need not defer to the definitions of ‘negligence’ established by the Secretary in his Part 100 regulations.” Wade Sand & Gravel Company, 37 FMSHRC 1874, 1879 n.5 (Sept. 2015).
[9] Payment should be sent to: Mine Safety and Health Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.