FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE
OF ADMINISTRATIVE LAW JUDGES
1331
PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON,
DC 20004-1710
TELEPHONE:
202-434-9958 / FAX: 202-434-9949
SECRETARY
OF LABOR MINE SAFETY
AND HEALTH ADMINISTRATION
(MSHA), Petitioner v. MACH MINING, INC., Respondent |
|
CIVIL PENALTY PROCEEDING Docket No. LAKE 2014-77 A.C. No. 11-03141-334561 Docket No. LAKE 2014-132 A.C. No. 11-03141-337701 Mine: Mach Mining No. 1 Underground Mine |
DECISION
AND ORDER
Appearances: Thomas J. Motzny, Esq., Office of
the Solicitor, U.S. Dept. of Labor, Nashville, Tennessee for Petitioner
Christopher
D. Pence, Esq., Hardy Pence, PLLC, Charleston, West Virginia for Respondent
Before: Judge McCarthy
I. Statement of the Case
These
cases are before me are upon two Petitions for Assessment of Civil Penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977, as amended,
(“the Mine Act”), 30 U.S.C. § 815(d). The two dockets at issue contain 16
citations alleging violations of mandatory health and safety standards. Prior
to hearing, one citation was vacated and the parties settled nine others. At
hearing, Respondent moved for a directed verdict on Citation Nos. 8443200 and
8443901 in Docket No. LAKE 2014-132. The
undersigned granted the motion because the Secretary’s evidence did not support
a violation of section 75.821(a). Tr. 242-62.[1]
Citations No. 8451651 in Docket No. LAKE 2014-132, and Citation Nos. 8439446, 8432319,
8439454, and 8452203 in Docket No. LAKE 2014-77, remain to be adjudicated after
hearing.
A hearing was held on in Carbondale,
Illinois. During the hearing, the parties introduced testimony and documentary
evidence.[2]
Witnesses were sequestered. Thereafter, the parties submitted post-hearing
briefs.
For
the reasons set forth below, I modify Citation No. 8451651 to reduce the level
of negligence from “high” to “moderate.” I modify Order No. 8452203 to raise
the level of negligence from “moderate” to “high.” I find that Citation Nos. 8439446,
8432319, 8439454 were properly issued, as written. I assess a total civil penalty of $32,636 for the five citations
adjudicated herein.
Based
on a careful review of the entire record, including the parties’ post-hearing
briefs and my observation of the demeanor of the witnesses,[3]
I make the following findings of fact and conclusions of law:
II.
PRINCIPLES OF LAW
A.
Establishing a Violation
To
prevail on a penalty petition, the Secretary bears the burden of proving by a
preponderance of the evidence that a violation of the Mine Act occurred. RAG Cumberland Res. Corp., 22 FMSHRC
1066, 1070 (Sept. 2000), aff’d, 272
F.3d 590 (D.C. Cir. 2001). A mine operator is held strictly liable for
violations that occur at its mine. Spartan
Mining Co., 30 FMSHRC 699, 706 (Aug. 2008). The operator may avoid
liability only by showing that it was not properly on notice of the violative
nature of its conduct. Even in the absence of actual notice, the Secretary may
properly charge the operator with a violation when a reasonably prudent person
familiar with the protective purposes of the cited standard and the factual
circumstances surrounding the allegedly hazardous condition, including any
facts peculiar to the mining industry, would have recognized a hazard
warranting corrective action within the purview of the applicable regulation. LaFarge North America, 35 FMSHRC 3497, 3500-01
(Dec. 2013); Ideal Cement Co., 12
FMSHRC 2409, 2415-16 (Nov. 1990); Alabama
By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982).
B. Gravity
The
gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. §
820(i), “is often viewed in terms of the seriousness of the violation.” Consolidation
Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996) (citing Sellersburg Stone
Co., 5 FMSHRC 287, 294-95 (March 1983), aff'd, 736 F.2d 1147 (7th
Cir. 1984); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681 (Apr.
1987)). The seriousness of a violation can be examined by looking at the
importance of the standard violated and the operator’s conduct with respect to
that standard, in the context of the Mine Act’s purpose of limiting violations
and protecting the safety and health of miners. See, e.g., Harlan Cumberland Coal Co.,
12 FMSHRC 134, 140 (Jan. 1990) (ALJ).
The
gravity analysis focuses on factors such as the likelihood of an injury, the
severity of an injury, and the number of miners potentially injured. The
Commission has recognized that an assessment of the likelihood of injury is to
be made assuming continued normal mining operations, without abatement of the
violation. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985).
C. Significant and Substantial
(S&S)
The Mine Act describes an S&S violation as one
“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)(1).[4]
In a seminal early decision interpreting this
statutory provision, the Commission held that a violation is S&S “if, based
on the particular facts surrounding the violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness
of a reasonably serious nature.” Cement
Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In so holding, the
Commission rejected the Secretary’s argument that all violations are S&S
except technical violations or violations that pose only a remote or
speculative risk of injury or illness. The Commission found that the
Secretary’s interpretation would result in almost all violations being
categorized as S&S, which would be inconsistent with the statutory language
and the role the S&S provision is intended to play in the Mine Act’s graduated
enforcement scheme. 3 FMSHRC at 825, 828. The Commission also found that the
Secretary’s interpretation would leave little room for inspectors to exercise
their independent judgment. Id. at
825-26.[5] In addition, the Commission found that the
Secretary’s interpretation would render the Act’s S&S language almost
superfluous, and would render the Act’s pattern-of-violation provisions wholly
punitive by making it almost impossible for a mine to be relieved of withdrawal
order liability once placed on notice of a pattern of violations. Id. at 826-27. Although the Commission
did not develop a test to determine whether violations are S&S, it
enunciated several guiding principles. Specifically, it stated that the term
“hazard” denotes “a measure of danger to safety or health” and that a violation
is S&S if it “could be a major cause” of such a danger. Id. at 827.
In its subsequent Mathies decision, the Commission set forth a four-prong test for
determining whether a violation is S&S under National Gypsum. Mathies Coal
Co., 6 FMSHRC 1 (Jan. 1984). To
establish an S&S 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 in question will be of a
reasonably serious nature. Id. at
3-4. The Secretary, mine operators, and the federal appellate courts have
accepted the Mathies test as
authoritative. See Knox Creek Coal Corp.
v. Sec’y of Labor, 811 F.3d 148, 160 (4th Cir. 2016) (noting federal
appellate courts’ uniform adoption of Mathies
test and parties’ recognition of authority of test); Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1267 (D.C. Cir.
2016) (applying Mathies criteria); Buck Creek Coal, Inc. v. Fed. Mine Safety
& Health Admin., 52 F.3d 133,
135 (7th Cir. 1995) (recognizing wide acceptance of Mathies criteria); Austin
Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
use of Mathies criteria).
Ensuing case law has solidly established several
general principles regarding the proper application of the Mathies test. The Commission has held that the S&S determination
should be made assuming “continued normal mining operations.” McCoy Elkhorn
Coal Corp., 36 FMSHRC 1987,
1990-91 (Aug. 2014) (citing U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985)). The
assumption of continued normal mining operations considers “the length
of time that the violative condition existed prior to the citation and the time
it would have existed if normal mining operations had continued,” without any
assumptions as to abatement. Black Beauty
Coal Co., 34 FMSHRC 1733, 1740 (Aug. 2012), aff’d sub nom. Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611
(7th Cir. 2014); Rushton Mining Co.,
11 FMSHRC 1432, 1435 (Aug. 1989); see
also Knox Creek, 811 F.3d at 165-66 (upholding Commission’s rejection of
“snapshot” approach to evaluating S&S for accumulations violation); Mach Mining, 809 F.3d at 1267-68 (citing
with approval McCoy Elkhorn’s
discussion of operative timeframe for S&S). The Commission has repeatedly
stated that the S&S determination must be based on the particular facts surrounding
the violation. See, e.g., Wolf Run Mining Co., 36 FMSHRC 1951,
1957-59 (Aug. 2014) (remanding S&S finding for further consideration of
relevant circumstances); Black Beauty,
34 FMSHRC at 1740; Peabody Coal Co.,
17 FMSHRC 508, 511-12 (Apr. 1995); Texasgulf, Inc., 10 FMSHRC 498,
500 (Apr. 1988).
A line of cases beginning with the Seventh Circuit’s
decision in Buck Creek, supra, has established that an operator
cannot rely on redundant safety measures to mitigate the likelihood of injury
for S&S purposes. See, e.g., Brody Mining, LLC, 37 FMSHRC 1687, 1691
(Aug. 2015).[6]
Finally, Commission precedent indicates that the likelihood of injury is the
key consideration in determining whether a violation is S&S. Consolidation Coal Co., 18 FMSHRC 1541,
1550 (Sept. 1996) (comparing S&S inquiry, which focuses on “the reasonable
likelihood of serious injury,” with gravity inquiry, which focuses on “the
effect of the hazard if it occurs”).
The evolving case law, however, has presented
conflicting guidance as to how some of these principles should be applied. In
particular, there is some confusion about how to evaluate the facts surrounding
the violation and the likelihood of injury under the second and third prongs of
the Mathies analysis. The Fourth
Circuit’s recent decision in Knox Creek,
supra, and the Seventh Circuit’s
decision in Peabody Midwest Mining, LLC
v. FMSHRC, 762 F.3d 611 (7th Cir. 2014), have cast doubt on whether the
traditional application of the literal language of the second and third prongs
of the Mathies test is still valid.
Traditional
Application of Mathies Test
Under the traditional approach, Commission
Administrative Law Judges (ALJs) have conducted the fact-intensive component of
the analysis and evaluated the reasonable likelihood of injury at the third
prong. In one of its earliest decisions applying the Mathies test, the Commission explained that “the reference to
‘hazard’ in the second element [of the test] is simply a recognition that the
violation must be more than a mere technical violation – i.e., that the
violation present a measure of danger.” U.S.
Steel Mining Co., 6 FMSHRC 1834, 1836. “There is no requirement of
‘reasonable likelihood’” encompassed in this element. Musser Engineering, Inc., 32 FMSHRC 1257, 1280 (Sept. 2010). Rather,
longstanding Commission precedent indicates that the likelihood of harm should
be accounted for in the third Mathies element,
which “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, 6 FMSHRC at 1836 (quoted by the Commission on numerous occasions
over the next two decades, including in
Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); Bellefonte Lime Co., 20 FMSHRC 1250, 1254-55 (Nov. 1998); Zeigler
Coal Co., 15 FMSHRC 949, 953 (June 1993); and Texasgulf, 10 FMSHRC at 500). As the Commission explained in
another early decision, “The third element embraces a showing of a reasonable likelihood that the hazard will occur,
because, of course, there can be no injury if it does not.” Consolidation Coal Co., 6 FMSHRC 189,
193 (Feb. 1984).
Following this guidance, ALJs have traditionally
applied Mathies by identifying the
potential hazard at the second prong, and then at the third prong, assessing
whether there is a reasonable likelihood that the hazard will result in injury
under the particular facts of the case at hand, with the caveat that normal
mining operations are assumed to continue without abatement of the violation. The
crux of this traditional Mathies analysis
is the third and fourth prongs of the test, which effectuate National Gypsum’s definition of S&S
(reasonable likelihood of a reasonably serious injury) and are often combined
into a single showing (reasonable likelihood that a particular serious injury
will occur under the facts of the case). Consistent with this approach, MSHA
inspectors determine whether a violation meets the criteria for S&S by the
likelihood of injury and the expected severity of injury, which correspond to
the third and fourth Mathies elements.[7]
Over the years, it appears that the Commission, with
court approval, has developed special rules for applying the Mathies test in two situations. First,
for violations that contribute to the hazard of an ignition, fire, or
explosion, the Commission has held that the third Mathies element is satisfied only when a “confluence of factors” is
present that could have triggered an ignition, fire, or explosion, under
continued normal mining operations. Zeigler
Coal Co., 15 FMSHRC at 953; Texasgulf,
10 FMSHRC at 501; see, e.g., Paramont Coal Co. Va., LLC, 37 FMSHRC 981, 984
(May 2015). Second, for violations of emergency safety standards, the
Commission assumes the emergency when making the S&S evaluation. See, e.g., Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1027-28 (D.C.
Cir. 2013); Mill Branch Coal Corp.,
37 FMSHRC 1383, 1394 (July 2015).
Effect
of Recent Fourth & Seventh Circuit Decisions
The Fourth Circuit’s recent Knox Creek decision issued in January 2016 appears to shift the
focus of the S&S analysis from the third to the second Mathies prong and to restrict consideration of the facts bearing on
the reasonable likelihood of injury under the third prong. The Fourth Circuit interpreted the second Mathies prong to entail an inquiry into
the likelihood of harm, stating:
In our view, the second prong of the test …
primarily accounts for the Commission’s concern with the likelihood that a given violation may cause harm. This follows
because, for a violation to contribute to a discrete safety hazard, it must be
at least somewhat likely to result in harm.
Knox Creek, 811 F.3d at 162. Significantly, the Fourth Circuit
further held that the occurrence of the hazard must be assumed under the third
prong of the Mathies test. Id. at 161-65. Evidence of the
likelihood that the hazard will occur is not considered at this prong,
according to the Fourth Circuit. Rather, the inquiry is whether the hazard,
assuming it occurred, would result in serious injury. Id. at 162.
The
particular hazard confronted by the Fourth Circuit in Knox Creek was the escape of ignited gas into the mine atmosphere
through impermissible enclosures. Id. at
164. The parties had stipulated that the mine was a “gassy” mine that liberated
more than 500,000 cubic feet of methane or other explosive gases per day. Id. at 164. Consequently, the ALJ had found that methane
was reasonably likely to accumulate to explosive concentrations. Id. The ALJ had also found that a
resulting explosion was reasonably likely to cause serious injuries, but he had
ultimately declined to find that the violation was S&S because the
Secretary had failed to prove the likelihood of an ignition. Id. at 154, 164-65. Without discussing
the likelihood of ignition, the Fourth Circuit deemed the ALJ’s other findings
sufficient to satisfy the third Mathies prong.
Id.
Previously, in Peabody
Midwest Mining, the Seventh Circuit had similarly suggested that the
S&S analysis assumes the occurrence of the hazard. The violation at issue
in that case was the mine operator’s failure to erect berms on an elevated
roadway. The Seventh Circuit defined the hazard as the risk that a vehicle
would veer off the roadway and go over the edge. Peabody Midwest, 762 F.3d at 616. The operator had argued that a vehicle
was not reasonably likely to veer off the road. Id. However, the Seventh Circuit stated that the question “is not
whether it is likely that the hazard (a vehicle plummeting over the edge) would
have occurred” but “whether, if the hazard occurred (regardless of likelihood),
it was reasonably likely that a reasonably serious injury would result.” Id.
Peabody
Midwest does not discuss the proper role
of deference in the S&S context, but the
Fourth Circuit reached its holding in Knox
Creek by deferring to the Secretary’s interpretation that the third Mathies element requires proof that the
hazard, not the violation itself, is likely to cause injury. 811 F.3d at 161
(declining to afford deference under Chevron,
USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), but finding
the Secretary’s interpretation persuasive and therefore entitled to deference
under Skidmore v. Swift & Co.,
323 U.S. 134 (1944)). The Fourth Circuit further asserted that this
interpretation is consistent with a number of prior cases, including the
Seventh Circuit’s decisions in Peabody
Midwest and in Buck Creek, supra, 52 F.3d at 135 (assuming
occurrence of fire at third Mathies prong
when ALJ had engaged in “confluence of factors” analysis at second prong); the Fifth Circuit’s decision in Austin Power, supra, 861 F.2d at 103-04 (declining to require evidence that the
hazard was likely to occur); and the
Commission’s decision in Musser
Engineering, supra, 32 FMSHRC at
1280-81 (stating that the third Mathies prong
requires a showing that the hazard, not the violation itself, will cause
injury). 811 F.3d at 161-62.[8]
The Fourth Circuit rejected the operator’s argument that under Zeigler Coal Company, supra, the Secretary must show that an
ignition is reasonably likely under the third Mathies prong. 811 F.3d at 164. The Court found this position to be
“flatly contradicted” by Musser
Engineering and by decisions of other federal appellate courts. Id.
The Fourth Circuit emphasized, however, that the Mathies approach that it has adopted
“still allows plenty of room for a fact-intensive S & S analysis, both
under prong two, where the Secretary must establish that the violation
contributes to a discrete safety hazard, and within prongs three and four,
where evidence is still necessary to establish that the hazard is reasonably
likely to result in a serious injury.” Id.
Realistically, however, it will likely require very little fact-specific
analysis to conclude that any given non-technical violation contributes to a
discrete safety hazard, because the Secretary generally does not promulgate a
mandatory health and safety regulation (except technical regulations), unless
the Secretary has already found that violating the standard would contribute to
a hazard. Under the third Mathies prong,
judges must consider all of the facts surrounding the violation, but must
assume continued normal mining operations without abatement of the violation,
and may not rely on redundant safety measures to mitigate the likelihood of
injury. Now, under Knox Creek and Peabody Midwest Mining, judges must also
assume that the hazard will actually occur. At some point, so many
circumstances are either assumed or precluded from consideration that judges
will find themselves evaluating the likelihood of injury in the abstract. If
this is the case, the Commission will have turned its back on the principles
set forth in National Gypsum because
the Mathies test will have become a
longhand expression for “non-technical violations.” S&S will apply to
almost all violations and therefore will no longer serve as a statutory tool by
which the Secretary can single out the violations that he believes the
Commission should consider significant and substantial when assessing a
penalty.
As noted above, the Fourth Circuit reached its
result in Knox Creek by deferring to
the Secretary’s interpretation of the Mine Act, and the Seventh Circuit reached
a similar result. At the outset of its analysis, the Fourth Circuit indicated
that it would review the Commission’s legal conclusions de novo but would afford deference to the Secretary’s, not the
Commission’s, legal interpretations. Id. at
157 (citing Sec’y of Labor ex rel. Wamsley v. Mut. Mining, Inc.,
80 F.3d 110, 113-15 (4th Cir. 1996), in which the Fourth Circuit discussed the
Mine Act’s split-enforcement scheme and concluded that an informal rule created
and implemented by the Secretary was entitled to deference over a contrary
Commission decision).
It is not surprising that the Circuit Courts have
departed somewhat from the traditional Mathies
analysis in favor of the Secretary’s legal interpretation, given the rule
of deference mentioned above, and given the fact that the Secretary’s
attorneys, and not the Commission’s, are the ones who argue for enforcement of
the Commission’s decisions in the Circuit Courts of Appeals. That latter
protocol is strange. Notwithstanding the propriety of the rule of deference
applied by the Fourth Circuit, which raises concerns that I previously
discussed in Knife River Corporation
Northwest, 34 FMSHRC 1109, 1125-27 (May 2012) (ALJ), it does not make sense
that although Congress conferred independent adjudicatory authority upon the
Commission to serve as an impartial forum for Mine Act litigation, and although
the Commission itself laid out the test that parties have followed for more
than thirty years to litigate S&S in this forum, the Secretary is permitted
to challenge the Commission’s interpretation of this long-standing test in the
Circuit Courts of Appeals and litigate his own interpretation on behalf of the
Commission. It should be obvious that since the Secretary is one of the
litigating parties before the Commission at the trial level, the Commission’s
and the Secretary’s views on interpretation of the Act may differ. See e.g., The American Coal Co., 36 FMSHRC 1311 (May 2014) (ALJ), petition
for interlocutory review granted,
Unpublished Order dated July 11, 2014. In my view, the Commission’s
interpretations of Mine Act provisions that turn on adjudication and not
enforcement should be accorded at least some form of deference based on the
power to persuade, as evidenced by the fact that courts and litigants have uniformly
followed the Commission-derived Mathies test.[9]
Compare Chevron, supra (according full deference to agency’s reasonable
interpretation of ambiguous statutory provision) with United States v. Mead Corp., 533 U.S. 218 (2001) (according deference based on “power to
persuade” under Skidmore, supra, and finding that Chevron applies only where the agency
was authorized by Congress to make rules carrying the force of law and did in
fact promulgate the proffered interpretation in the exercise of that authority).
It is within the Commission’s authority to specify how the second and third
factors of the Mathies test should be
applied – particularly, whether the hazard must now be assumed at the third
factor, and if so, what steps of the test account for the facts surrounding the
violation – and whether the Mathies test
is still intended to effectuate National
Gypsum’s interpretation of the S&S provisions of the Mine Act or
whether the Commission now interprets S&S differently.
Because I am bound by the Mathies test, I will
evaluate S&S under this test after taking into consideration the more
recent approach set forth in Knox Creek
and Peabody Midwest Mining.
D. Negligence
Negligence is not defined in the Mine Act. The
Commission has found “[e]ach mandatory standard thus carries with it an
accompanying duty of care to avoid violations of the standard, and an
operator’s failure to satisfy the appropriate duty can lead to a finding of
negligence if a violation of the standard occurred.” A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983) (citations
omitted). In determining whether an operator meets its duty of care under the
cited standard, the Commission considers what actions would have been taken
under the same or similar circumstances by a reasonably prudent person familiar
with the mining industry, the relevant facts, and the protective purpose of the
regulation. See generally U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug.
1984). See also Jim Walter Res.,
Inc., 36 FMSHRC
1972, 1975, 1976-77 (Aug. 2014) (requiring Secretary to show that operator
failed to take specific action required by standard violated); Spartan
Mining Co., 30 FMSHRC 699, 708 (Aug. 2008) (negligence inquiry
circumscribed by scope of duties imposed by regulation violated).
The Mine Act imposes a high standard of care on
foremen and supervisors. Midwest Material Co., 19 FMSHRC 30, 35 (Jan.
1997) (holding that “a foreman … is held to a high standard of care”); see also Capitol Cement Corp., 21 FMSHRC
883, 892-93 (Aug. 1999) (“Managers and supervisors in high positions must set
an example for all supervisory and nonsupervisory miners working under their
direction,” (quoting Wilmot Mining Co., 9 FMSHRC 684, 688 (Apr. 1987)); S&H Mining, Inc., 17 FMSHRC 1918,
1923 (Nov. 1995) (heightened standard of care required of section foreman and
mine superintendent).
Although MSHA’s regulations regarding negligence are
not binding on the Commission, see Wade
Sand & Gravel Co., 37 FMSHRC 1874, 1878 n.5 (Sept. 2015), MSHA defines
negligence by regulation in the civil penalty context as follows:
Negligence is conduct, either by commission or
omission, which falls below a standard of care established under the Mine Act
to protect miners against the risks of harm. Under the Mine Act, an operator is
held to a high standard of care. A mine operator is required to be on the alert
for conditions and practices in the mine that affect the safety or health of
miners and to take steps necessary to correct or prevent hazardous conditions
or practices. The failure to exercise a high standard of care constitutes
negligence. The negligence criterion assigns penalty points based on the degree
to which the operator failed to exercise a high standard of care. When applying this criterion, MSHA considers
mitigating circumstances which may include, but are not limited to, actions
taken by the operator to prevent or correct hazardous conditions or practices .
. . .
30 C.F.R. § 100.3(d).
MSHA regulations further provide that mitigation is
something the operator does affirmatively, with knowledge of the potential
hazard being mitigated, and that tends to reduce the likelihood of an injury to
a miner. This includes actions taken by the operator to prevent or correct
hazardous conditions. 30 C.F.R. § 100.3(d). According to MSHA, the level of negligence is
properly designated as high when “[t]he operator knew or should have known of
the violative condition or practice, and there are no mitigating
circumstances.” 30 C.F.R. § 100.3, Table X. The level of negligence is properly
designated as moderate when “[t]he operator knew or should have known of the
violative condition or practice, but there are mitigating circumstances.” Id. The level of negligence is properly
designated as low when there are considerable
mitigating circumstances surrounding the violation. Id.
Recently, the Commission held that Commission judges
are not required to apply the level-of-negligence definitions in Part 100 and may evaluate negligence from the
starting point of a traditional negligence analysis rather than from the Part
100 definitions. Brody Mining, LLC,
37 FMSHRC 1687, 1701 (Aug. 2015); accord
Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1263-64 (D.C. Cir.
2016). Moreover, because Commission judges are not bound by the definitions in
Part 100 when considering an operator’s negligence, they are not limited to a
specific evaluation of potential mitigating circumstances, and may find “high
negligence,” in spite of mitigating circumstances, or moderate negligence,
without identifying mitigating circumstances. Brody, 37 FMSHRC at 1701; Mach
Mining, 809 F.3d at 1263-64. In this regard, the gravamen of high
negligence is “an aggravated lack of care that is more than ordinary
negligence.” Brody, 37 FMSHRC at 1701
(citing Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998)0. Thus, in
making a negligence determination, a Commission judge is not limited to an
evaluation of allegedly mitigating circumstances and may consider the totality
of the circumstances holistically. Under such an analysis, an operator is
negligent if it fails to meet the requisite high standard of care under the
Mine Act. Id.
E. Penalty Assessment
The Act requires that the Commission consider the
following statutory criteria when assessing a civil penalty: (1) the operator’s
history of previous violations; (2) the appropriateness of the penalty to the
size of the business; (3) the operator’s negligence; (4) the operator’s ability
to stay in business; (5) the gravity of the violation; and (6) any good-faith
compliance after notice of the violation. Douglas
R. Rushford Trucking, 22 FMSHRC 598, 600 (May 2000); 30 U.S.C. § 820(i). The
Commission is not required to give equal weight to each of the criteria, but
must provide an explanation for any substantial divergence from the proposed
penalty based on such criteria. Spartan
Mining Co., 30 FMSHRC 699, 723 (Aug. 2008).
As I discussed in my final Big Ridge decision, in an effort to avoid the appearance of
arbitrariness, I look to the Secretary’s penalty regulations and assessment
formula as a reference point that provides useful guidance when assessing a
civil penalty. Big Ridge Inc., 36
FMSHRC 1677, 1681-82 (July 2014) (ALJ); see
also Wade Sand & Gravel, supra, at 1880 n.1 (Chairman Jordan and Commissioner Nakamura, concurring).
See also Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)
(holding that an agency’s interpretation of its own regulation should be given
controlling weight unless it is plainly erroneous or inconsistent with the
regulation). This formula is not binding, but operates as a lodestar, since
factors involved in a violation, such as the level of negligence, may fall on a
continuum rather than fit neatly into one of five gradations. Unique
aggravating or mitigating circumstances will be taken into account and may call
for higher or lower penalties that diverge from this paradigm. My independent
penalty assessment analysis applies to each of the citations at issue in this
case.
III.
Stipulated Facts
A. Stipulations
of Fact
At hearing, the parties agreed to
the following stipulations:
1.
Respondent is
subject to the Federal Mine Safety and Health Act of 1977 and to the
jurisdiction
of the Federal Mine Safety and Health Review Commission.
2. The presiding Administrative Law
Judge has the authority to hear this case and issue a
decision.
3. Respondent
has an effect upon commerce within the meaning of Section 4 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 803.
4. At
all relevant times, Respondent operated Mach No. 1 Mine, Mine ID 11-03141.
5. The
violations in this docket are complete, authentic and admissible, but the
Respondent does not stipulate to the allegations asserted therein.
6. Respondent mined 7,528,061 tons
of bituminous coal in 2012 at Mach No. 1 Mine.
7. The
violations in this docket were properly served on Respondent by a duly
authorized representative of the Secretary on the dates stated therein.
8. The
penalties proposed in this docket would not affect Respondent’s ability to
remain in business.
9. Respondent
abated the citations involved herein in a timely manner and in good faith.
8. Tom
Crum, Jr. is an agent of the operator Mach Mining. Tr. 272.
J. Ex.
1.
IV.
Background Information
Mach
Mining’s No. 1 Mine is an underground coal mine located in Marion, Illinois. The
height of the mine is generally nine to ten feet. Tr. 619. The mine is subject
to five-day spot inspections by the Department of Labor’s Mine Safety and
Health Administration (MSHA), pursuant to § 103(i) of the Mine Act because the
mine liberates more than one million cubic feet of methane or other explosive
gases during a 24-hour period. 30 U.S.C. § 813(i); see Tr. 35, 211-10. At the time of the October 14, 2014 inspection,
the mine liberated approximately two million cubic foot of methane in a 24-hour
period. Tr. 158, 211-10.
V.
Citation No. 8451651
A. Findings
of Fact
1.
The Inspection
On October 15, 2014, MSHA
inspector Chad Lampley[10]
issued Citation No. 8451651 during an E16 inspection of Mach Mine’s No. 1 mine.[11] Tr.
140-42. Mark Schilke, the mine safety manager,
accompanied Lampley during the inspection.[12] Tr.
143, 152, 159-160. The inspection was conducted during a production shift. Tr.
155. At the time of Lampley’s
inspection, however, mining had halted due to a problem with a conveyer belt.
Tr. 153-54, 214-15.
2.
The Location of the Truck
During the inspection, Lampley noticed a Dodge Ram pickup truck parked facing inby in the #3 tailgate entry at the no. 109 crosscut, two
crosscuts from the longwall face.
Tr.
144-45, 152; see P. Ex. 113.[13] Lampley used a 25-foot tape measure and determined that the
diesel-powered truck was approximately 144 feet from the face, rather than the required
150 feet. Tr. 146-47.[14] Shilke observed Lampley measure
the distance between the face and the truck. Tr. 302, 316. Neither Shilke nor Lampley reported any
other measurements of the truck’s location. Tr. 147, 301-02. Respondent does
not dispute that the truck was closer than 150 feet from the longwall face. R. Post Hr’g Br.
4.
Lampley learned that Tom Allen Crum, Jr. (Crum), the longwall maintenance supervisor, drove the truck. Tr.
152-53, 162, 213. Lampley did not speak to Crum. Tr.
215.
Crum testified
that he drove his truck into the #3 tailgate entry to repair a conveyor belt.
Tr. 265-67, 287.[15] Schilke testified that the truck was parked “slightly” inby the outby corner of crosscut 109. Tr. 305-06. Crum, however, testified that the truck was even with the
outby corner. Tr. 268-69. I credit Schilke,
particularly since his testimony is consistent with Respondent’s map of the
area where Crum parked. See R. Ex. 8.
There were no footage markers
to indicate the distance from the face. Tr. 316. Crum estimated that he parked
over 150 feet from the face because the crosscut centers were 120 feet and the
face appeared 50 feet further than the last crosscut center. Tr. 268-71, 284. Because
that crosscut was open, Crum knew that he was not permitted to drive further
into the return air. Tr. 282-83. There were no obstructions blocking Crum from
driving the truck all the way to the face. Tr. 216. Crum testified that had he intended
to breach the 150-feet limit, he could have easily parked by the face. Tr.
271-72, 280. Crum opined that his actions demonstrated his intent to comply
with the permissibility requirements, and that they negate any classification
of high negligence. Tr. 279-80.
Crum further testified that he
would have moved his truck before production resumed. Tr. 286-87. He further admitted
that he would have started the truck’s ignition to do so, because he had
assumed that it was not parked in return air. Tr. 287.
3.
The Presence of Methane
a.
The Temperature of the Air
Inspector Lampley
was concerned that the non-permissible diesel truck was parked in return air,
which presented a methane ignition hazard. Tr. 148-49. Lampley testified
that return air is warm and moist due to heat emitted from the longwall mining unit. Tr. 144, 146, 150. Near the truck, Lampley
observed that the air approaching him from the face was warmer than the intake
air at his back, indicating the presence of return air. Tr. 144, 146, 199.
Respondent’s witnesses disagree.
Schilke testified that the vehicle was in intake air
because he felt cool air at his back and warm return air was not present until
the middle of the intersection. Tr. 305-08. Crum testified that when he exited
his truck, he felt cool intake air at his back. Tr. 273-76. Crum testified that
there was little to no air movement where he parked the vehicle. Tr. 273. Crum further
testified that he did not feel return air until midway through the crosscut. Tr.
283.
Longwall
coordinator Parker Phipps drove an Electric Mine Utility vehicle (EMU) to the longwall tailgate that day. Tr. 324.[16]
Phipps was aware of the requirement to park in intake air at least 150 feet
from the face. Tr. 339. He parked approximately 150 feet from the face near
open crosscut no. 109. Tr. 324, 340; see P.
Ex. 110 and R. Ex. 8. After learning about the citation, Phipps observed Crum’s
truck underground. Tr. 330. Phipps testified
that Crum’s truck was parked even with the outby rib, approximately two feet
from the solid coal wall. Tr. 330-331, 333. Phipps testified that the front of Crum’s
truck was within ten feet of the front of his own vehicle. Tr. 343. Facing inby, Phipps walked into the area between Crum’s truck and
the solid right-hand rib. Tr. 333. Phipps testified that the air was cool and
moved inby. Id.
Because return air from the longwall was warmer and
more humid, Phipps opined that the truck was in intake air. Tr. 325, 328.
By the feel of the air, Phipps opined
that the return air began in the center of the crosscut. Tr. 329, 358-359. Phipps
referred to the crosscut center as a mixing zone for return and intake air. Tr.
329. Mixing zones are classified as return air. Tr. 363. Phipps believed that
the mixing zone was inby Crum’s truck, which left the
truck entirely within intake air. Tr. 329-331, 335, 363. Phipps later
testified, however, that the truck was near a “dead spot” with little air
movement, where both the outby and inby air courses
met. Tr. 353-54.
b.
Inspector Lampley’s Smoke
Test
After noting the temperature
differentials, Lampley performed a smoke test to
determine the direction of return air. Tr. 150-51. A smoke test reveals the
path of air along the mine’s ventilation pattern. Id. With respect to ventilation in this area, Respondent sent
90,000-100,000 cubic feet of air per minute (cfm) from the headgate,
which was well over the required 60,000 cfm. Tr. 181-82. Phipps testified that a great
velocity of air would dilute gases. Tr. 355. In fact, Phipps opined that as
little as 50 cfm of air would render flammable or noxious gases harmless,
although Phipps did not know if the air around the truck reached that velocity.
Tr. 361-62.
Lampley released smoke at the mining face and observed it
travel down the entry. Tr. 145-46, 150-51, 207-08. The heavy airflow displaced
the smoke, so Lampley released smoke into the
atmosphere several times as he neared the truck. Tr. 208-10.
The smoke test revealed that
the air traveled down the longwall face to the T-split,
where it either seeped into the gob or branched off towards the #2 and #3
tailgate entries. Tr. 145,
176, 182-84.[17] Because the #2 entry had
lower air pressure than the #3 entry, the majority of the air moved from the #3
entry into the #2 entry through the open no. 110 crosscut. The remaining air in
the #3 entry reached the open no. 109 crosscut where the truck was located. Tr.
145, 184, 205-07. Stoppings were legally removed at the nos. 109 and 110
crosscuts (the first two crosscuts after the T-split) to allow this air
movement. Tr. 187.
Because the return air that
reached the no. 109 crosscut was also drawn into the #2 entry, it moved faster
at the corner near the crosscut than it did in the middle or other side of the
entry near Crum’s truck. Tr. 186,
194-95. Lampley noticed that while a large portion of
the return air hugged the inby corner near the
crosscut, some smoke traveled directly over the hood, windshield, and cab of
the truck. Tr. 151, 185-87, 194, 200. Rather than continue over the back of the
truck, the air turned and exited into the #2 entry through the crosscut upon
meeting the intake air in a “mixing zone.” Tr. 147, 161, 198. Lampley testified that the front of the truck up to the cab
area was in return air, and that the cab to the tailgate bumper at the back of
the truck was in the intake air. Tr. 146, 198-99.
During the inspection, Schilke watched Lampley conduct
the smoke test. Tr. 303, 308. Schilke testified that Lampley had to stand “almost over the hood of the truck” before
the smoke sample traveled over the hood. Tr. 308. No smoke test was conducted at
the tailgate of the truck. Tr. 313-14.
Schilke
testified that when Lampley tested further inby from the truck, the sample traveled towards the no.
109 crosscut, rather than over the hood of the truck. Tr. 309-311. Further, Schilke testified that when Lampley
tested directly over the hood of the truck, the smoke rose and spread out,
indicating to Schilke that the truck was in a dead
spot. Tr. 307-309, 315. Schilke determined that this
dead spot was caused by a “mixing zone” where return and intake air met. Tr.
307. On cross examination, however, Schilke conceded
that if the truck was in the intake air, that air would push the smoke inby above the truck, which did not occur, rather than
allow the smoke to rise and spread, which did occur. Tr. 315-16.
Lampley testified that the exact location of the truck within
the return air was not important. Tr. 158-59. Rather, any place inby the intake air at crosscut no. 109 posed an equal
hazard because it had the same, undiluted gas concentration where no additional
air was added. Tr. 158-59, 194, 196-97, 221-22. Because of this, Lampley
chose not to test the air volume. Tr. 166, 195-96, 198, 219. Lampley conceded, however, that the concentration of gas
would diminish in a mixing zone. Tr. 198. Most of the mixing occurred near the
corner where the air velocity was greatest, not above the truck. Tr. 200-201,
222. Lampley did not see any swirling smoke over the
truck to indicate the mixing of intake and return air. Tr. 222-23. Lampley agreed,
however, that there was no way to easily distinguish between return air and
intake air. Tr. 201-02.
c.
Other Considerations
Schilke testified that the cited area usually had 20.9 %
oxygen and up to 0.1 % methane during production. Tr. 318. By contrast, Phipps
testified that methane concentrations typically reached 0.6 % to 0.8 % during
production. Tr. 332. While Phipps was in the cited area, his methane spotter
reported 20.8 % oxygen, no methane, and no carbon monoxide. Tr. 331. He
testified that historically no methane was produced in the area when the longwall was down. Tr. 331-332.
Crum also carried a methane
detector, which produces audio and visual warnings when methane concentrations
reach one percent. Tr. 276-77. Crum watched his detector closely and observed
no methane in the cited area. Tr. 277.
During the repair work near the longwall face, the miners were required to take air
readings every fifteen minutes with individual methane spotters. Tr. 289-90. The
readings detected no methane. Id. Crum
reported that all the checks were properly conducted. Tr. 290.
Schilke testified
that no methane or carbon monoxide was present because the longwall
had been down for several hours before Crum’s truck arrived. Tr. 312-13. Lampley did not know how long the longwall
had been down before Crum parked his truck, but Lampley
noted that the hood of Crum’s truck was still warm at the time of the
inspection. Tr. 155, 213-14.
Schilke
testified that the inspection began at approximately 6:00 a.m. Tr. 301. Phipps testified
that the longwall had been down for several hours
when Phipps arrived between 5:00 and 6:00 a.m. Phipps further testified that Crum’s
truck had not yet arrived. Tr. 332, 338, 341-42. Crum, however, testified that after working the
day shift, he returned to the mine between 2:00 and 3:00 a.m. because the longwall was down. Tr. 265.
4.
Issuance of Citation No. 8451651
After observing that Crum’s non-permissible,
diesel-powered pick-up truck was being used where permissible electrical
equipment was required, Lampley issued Citation No.
8451651 for a violation of 30 C.F.R. § 75.1907(a), which requires that all
diesel-powered equipment used where permissible electrical equipment is
required must be approved under part 36. Tr. 147-48. Lampley
determined that the violation was S&S and contributed to a methane ignition
hazard that was reasonably likely to result in fatal injuries affecting four
miners, as a result of Respondent’s high negligence. Tr. 156, 162-63. The
Secretary proposed a penalty of $16,867.
Lampley determined that the cited diesel truck was not
permissible because it lacked properly enclosed electrical components necessary
to prevent a methane ignition in the mine atmosphere. Tr. 147-49. Engine
enclosures prevent flame paths from reaching the atmosphere. Tr. 149.
Lampley determined that the truck would likely ignite methane
for several reasons. The truck had
numerous ignition sources including a starter motor and a combustion engine,
which produced thousands of combustions per minute. The electrical components of the truck were
not sufficiently enclosed to contain any sparks from the engine. The diesel-powered truck did not have countermeasures,
such as flame arresters, that were required in permissible equipment. Tr.
156-7. Most of the ignition sources were
in the front of the truck and exposed to return air. Tr. 224. The cited truck was
in the tailgate (rather than a headgate), which
increased the likelihood of a methane ignition because the air in that area had
ventilated the face. Tr. 175-176. Further, Lampley
opined that since Crum was apparently unaware that he parked the truck in
return air, it was likely to remain there until the longwall
resumed production. Tr. 156. Further, during production, the face would move 2
and ½ feet closer to the truck with each pass of the longwall
drum. Tr. 177.
Lampley was not aware of any reserves of methane at the mine, nor was he aware
of the average concentration of methane in the mine atmosphere. Tr. 211-12. Lampley testified, however, that methane would be present
in return air coming off an active longwall face in a
gassy mine, which has gob, and would most likely be found at the tailgate or at
a bleeder system at the wall. Tr. 158. Lampley found no methane present when he took readings at
the T-split of air, when production was down. Tr. 189-91, 197. Lampley
testified that regardless of air quality, or the fact that when the citation
was written, the air from the T-split of the longwall
outby Crum’s truck was sufficient to dilute or render harmless any methane, MSHA
regulations do not allow shorter permissibility distances when the longwall is not in production. Tr. 173-74, 227-29.
Apart from the likelihood of
ignition during production, Lampley explained that an
ignition hazard could be realized spontaneously from a rock fall. Tr. 155,
189-92. He noted that rock falls were not unusual and major gob falls were
fairly common in longwall mining and that the methane
concentration “at the gob line where the T-split occurs, that could change at
any given moment whenever a roof fall occurs back there, and it’s going to
fall, it’s just when it’s going to fall.” Tr. 190-92, 230. If a major rock or gob fall prevented the
absorption of methane by sealing the gob, the resulting change in air pressure
would pull methane from the gob area and allow methane to accumulate in the
active working area. Tr. 227-30. Such a rock fall in the gob is fairly common
given mining conditions in that area, although pressure changes in this mine
were somewhat less likely because of the blowing and exhausting fans. Tr.
230-33.
Lampley testified that a methane ignition in a gassy mine
could result in a “massive” explosion. Tr. 162. A massive methane explosion
would be fatal to some or all of the miners on the face. Tr. 162-63. Lampley ascertained
that at least two shearer operators, a shieldman, and
a stage loader operator would be affected by an explosion. Tr. 162-64. Lampley referenced the Upper Big Branch explosion as one
caused by the ignition of methane on a tailgate. Tr. 158.[18]
With respect to the negligence
designation, Lampley found no mitigating
circumstances and determined that Respondent’s agent Crum should have been
aware of the presence of return air when parking his truck. Tr. 163-64, 167. Given
the change in air temperature and humidity and the lack of a visible stopping, Lampley opined that Crum knew or should have known that the
truck’s location created a permissibility violation. Tr. 163-64. Crum was a
member of management who should have been aware of the methane ignition hazard
created once Crum drove into the return air and broke the plane of the
intersection. Tr. 171-73. According to Lampley, once Crum
broke the plane and entered return air, it was too late to correct the
condition. Tr. 173. Rather, Lampley testified that Crum should have stopped 300 feet
from the face to ensure compliance. Tr. 174-175. Further, Lampley
opined that Respondent also could have placed signs 150 feet from the face or
blocked off the area to prevent the entrance of diesel equipment. Tr. 178. Lampley emphasized that the hazard remained whether the
truck was parked six feet within the 150-foot limit or directly next to the
face. Tr. 166-167. Rather, the dispositive issue was that the truck was in
return air. Tr. 166-67.
To abate the alleged violation, the truck was pulled by chain by another piece of equipment from intake air, and moved to an outby location outside the 150-foot limit where no return air was coursing over the pickup. Thereafter, the truck was disconnected and driven an additional 150 feet away from the face. Tr. 179; S. Ex. 114.
B.
Analysis and Disposition
1. The Violation of §75.1907(a)
30 C.F.R. §75.1907(a) provides
that diesel-powered equipment must meet permissibility standards where
permissible electrical equipment is required. 30 C.F.R. §75.1907(a). Electric
face equipment must be permissible within 150 feet from pillar workings or longwall faces or in return air outby the last open
crosscut. 30 C.F.R. §§75.1002 and 75.507-1. The
truck cited by inspector Lampley was diesel-powered
equipment that did not meet permissibility requirements. Tr. 148. It is undisputed that the equipment was closer
than 150 feet from the longwall face. R. Post Hr’g Br. 4. Accordingly, I find that the Respondent
violated the cited standard.
2. The Violation was Significant and
Substantial
a.
There was a Violation of a Mandatory Safety Standard
For the reasons explained above, I have found the underlying violation of
mandatory safety standard § 75.1907(a).
b.
The Violation Contributed to a Discrete Measure of
Danger to Safety
With
regard to the second Mathies factor,
the Secretary must show that the violation contributed to a discrete safety
hazard. For the reasons set forth below,
I find that the violation of parking an
impermissible diesel-powered truck in return air where permissible equipment
was required contributed to a discrete safety hazard or measure of danger to
safety, that is, a methane ignition or explosion.
Whether the violation in question
contributes to a discrete safety hazard implicitly assumes that a danger to
safety is at least somewhat likely to result from the violation. Knox Creek, 811 F.3d at 163 (finding
that “the second prong of Mathies . .
. implicitly requires a showing that the violation is at least somewhat likely
to result in harm,” citing Black Beauty,
34 FMSHRC at 1741, n.12 (“[I]f the roadway here had lacked berms for only a
short distance [thereby making the hazard of a vehicle falling off the edge
less likely], or if the violation had been otherwise insignificant, the
trier-of-fact could have found that the violation did not contribute to a
discrete safety hazard, and hence that the Secretary had failed in her proof
under the second element of Mathies.”),
aff’d sub nom. Peabody Midwest, 762 F.3d 611; Cumberland
Coal Res., LP, 33 FMSHRC 2357,
2368 (2011) (the violation, under the particular circumstances, was likely to
contribute to the relevant hazard under Mathies’
second prong), aff’d sub nom. Cumberland Coal Res., LP v.
FMSHRC, 717 F.3d 1020 (D.C. Cir. 2013); E.
Associated Coal Corp., 13 FMSHRC 178, 183 (1991) (same); Utah Power & Light Co., 12 FMSHRC
965, 970 (1990) (same).
Permissibility requirements like the one at issue here ensure that
ignitions occurring within enclosures on mining equipment with electrical
circuits will not escape into the mine atmosphere. Knox Creek, 811 F.3d at 153-54; Consolidation
Coal Co., 35 FMSHRC 2326, 2336 (Aug. 2013) (permissibility requirement is
designed to prevent hot gases from escaping from an enclosure containing
electrical connections, thus causing an ignition outside the enclosure.”). Thus,
the permissibility requirements are intended to prevent the ignition of
explosive air-methane mixtures surrounding mine equipment. Consequently, I must
determine whether it was somewhat likely that the violation contributed to the
hazard or danger of allowing an ignition source to be available in this gassy
mine. Cf., Consolidation Coal, 35
FMSHRC at 2335-36 (Commission affirmed judge’s description of relevant hazard
contributed to by the violation and her determination that second prong of Mathies was satisfied because the
violation contributed to the hazard of “the danger of allowing an ignition
source to be available in this gassy mine.”).
When examining the likelihood
of a permissibility violation to contribute to the hazard of a methane ignition
or explosion, the Commission has traditionally examined whether a “confluence
of factors” is present based on the particular facts surrounding the violation.
Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1988). The Commission has held
that the confluence-of-factors analysis requires consideration of the
particular circumstances in the mine, including the possible ignition sources,
the presence of methane, and the type of equipment in the area. Excel
Mining, LLC, 37 FMSHRC 459, 465 (Mar. 2015); Utah Power &
Light Co., 12 FMSHRC at 970-71; Texasgulf, 10 FMSHRC at
501-03. For example, the mine in Texasgulf contained only miniscule
amounts of methane and had never had a methane ignition or explosion. See 10
FMSHRC at 501. Given detailed testimony
establishing the mine's history of low methane emissions, the absence of
previous ignitions or explosions, and testimony establishing a reasonable
expectation of low methane emissions in the future, the Commission concluded
that that substantial evidence supported the judge's findings that there was
not a reasonable likelihood that the hazard contributed to would result in a
mine ignition or explosion.
On the other hand, numerous other Commission cases have upheld an
S&S determination where the particular facts surrounding a violation established
that a methane ignition was reasonably likely in a gassy mine. See e.g., U.S.
Steel Mining Co., Inc., 6 FMSHRC 1866, 1867–69 (Aug. 1984) (upholding
significant and substantial finding where coal mine liberated over one million
cubic feet of methane in 24-hour period, had a history of methane ignitions,
and there was an excessive accumulation of coal nearby); United States Steel Mining Co., Inc., 7 FMSHRC 1125, 1128–30 (Aug. 1985)
(upholding significant and substantial finding where coal mine liberated over
one million cubic feet of methane in a 24-hour period, had a history of past
methane ignitions, could liberate dangerous levels
of methane in a relatively short period, and ventilation was substandard); Youghiogheny & Ohio Coal Co., 9
FMSHRC 673, 677–678 (upholding significant and substantial finding where coal
mine was subject to inspection pursuant to section 103(i) and sudden outburst
of methane had occurred recently); Consolidation
Coal Co., 35 FMSHRC at 2337 (upholding a significant and substantial finding
for a roof bolter that violated permissibility standards where methane
was emitted during roof bolting, the bolter was located near the gob and far
from the bleeder fans, and the mine was gassy).
Applying
the confluence-of-factors analysis to the instant facts, I find that supervisor
Crum’s truck was a non-permissible ignition source that was parked in return
air and would therefore likely be exposed to an explosive concentration of
methane released from the longwall face during
continued normal mining operations. Parking impermissible, diesel-powered
equipment within 150 feet of the face in return air contributed to the discrete
safety hazard that restarting the truck could ignite any explosive
concentration of methane present in return air during continuous mining
operations. Accordingly, I find that the violation contributed to the hazard of
a methane explosion caused by the location of impermissible equipment in return
air.
Although
the testimony of Crum, Schilke and Phipps suggested
that the return air was inby the location where Crum
parked his non-permissible, diesel-powered Dodge truck (Tr. 275, 283-84, 308,
330-31), I find that the hood of the truck extended into the mixing zone intersection
and into return air and was not in intake air as Phipps, Crum and Schilke suggested. I credit Lampley’s
testimony and measurements that the truck was parked within 150 feet of the
face, and the hood of the vehicle, including the combustion engine, was
actually parked within the plane of the intersection or crosscut. Tr. 146-147,
158, 171, 198-99, 217. Crum’s testimony and Respondent’s own map indicate this.
Tr. 269; R. Ex. 8. Lampley
and Phipps both described the intersection at crosscut 109 as a mixing zone,
where return air met intake air. Tr. 107, 329. Lampley
and Phipps both noticed that warmer and more humid air that was characteristic
of return air was present in the intersection or crosscut itself, where such
air mixed with fresh intake air. Tr. 150, 328. Phipps conceded that areas containing return
air, including mixing zones, are properly classified as return air. Tr. 363. Further,
I have credited Schilke’s testimony that the truck
was parked slightly inby the outby corner of crosscut
109 (Tr. 305-06), over Crum’s testimony that the truck was parked even with the
outby corner. Tr. 268-69.
Although
Schilke testified that Lampley
had to stand directly at the Dodge truck and almost over the hood of the truck
to get the smoke to travel over the hood of the truck, Schilke
thereafter acknowledged that the smoke was in a dead spot and automatically
spread out over the hood of the Dodge truck. Tr. 309. I credit Lampley’s testimony that the results of his smoke test,
which recreated the movement of air from the longwall
face to the truck, established that return air wafted over the hood of the
truck where the engine was located, and then out across crosscut 109. Tr. 151. Based
on Lampley’s credited testimony, as supported by the
results of the smoke test, I find that return air, which would be carrying
methane during continuous mining operations in a gassy mine, reached the hood
and windshield of the truck, which extended into the intersection and mixing
zone. Tr. 151, 194, 202.
I further credit the testimony of Lampley that the truck was an ignition source. Tr. 156-57. Lampley identified
several sources of ignition within the truck that Respondent did not contest. Id. Most notably, the engine produced
thousands of combustions per minute. Id.
It is undisputed that the truck was not permissible equipment. Tr. 156-57, 275,
319. Consequently, the truck did not prevent sparks released by the combustions
from encountering potentially explosive methane concentrations in the air. Tr.
147-49. Due to the numerous ignition sources within the truck, the number of
ignitions per minute, and the lack of countermeasures to arrest a methane
ignition, I find that the truck was a likely source of methane ignition because
it was parked in return air in a gassy mine on five-day spot protocol where
methane would be coming off an active face and heading outby past gob and over
the truck, during continuous mining operations. Tr. 157-59.
It
is important to emphasize that the Mach #1 Mine was subject to section 103(i)
spot inspections every five days because of its excessive liberation of
methane. Although the Secretary put on
no evidence of any prior ignition at the Mach #1 Mine, and there is no mention
of a prior methane ignition on MSHA’s data retrieval, there is some evidence of
the presence of high dust concentration, including float coal dust, which might
propagate a methane ignition. For example, inspector Robert Bretzman
specifically testified that the mine normally had high dust concentration. In
this regard, with respect to Citation 8432319, alleging that on September 12,
2013, almost a year before Citation No.
8451651 was written, the longwall shearer on
the headgate six unit did not have a visible warning
device to adequately alert the shearer operator when the methane concentration
reached 1.0 percent, inspector Bretzman testified as
follows:
I
determined that if—in the event that we did have a high degree of methane,
excessive methane, and the operators were not aware of the methane and we was
in a high dust concentration, like we
normally are, we could have an ignition . . . .
Tr.
411 (italics added). As further
explained below, these facts coupled with Lampley’s
testimony that methane would travel off the active face in return air and past
gob to the truck (Tr. 157-59) are sufficient to make an accumulation of methane
at explosive concentrations reasonably likely during continued normal mining
operations. Cf., Knox Creek, 811 F.3d
at 164; Consolidation Coal Co., 35
FMSHRC at 2336.
Respondent argues that the truck was
not exposed to methane, much less any explosive concentration of methane. This
argument is unconvincing in the context of continued normal mining operations. Although
no methane was found in the readings taken at the time of the citation, I
credit Lampley’s testimony that the truck was exposed
to numerous sources of methane. The most likely source of methane was from the
gas released from the face during coal production, under continued normal
mining operations. Tr. 158. Additionally, Lampley convincingly
testified that bursts of methane released from rock falls within the gob could
spontaneously increase methane concentrations to explosive levels quickly. Tr.
189-92. Finally, as noted above, the Commission
has consistently found permissibility violations to be S&S where mines are characterized
as gassy. See e.g., Consolidated Coal Co., 35 FMSHRC at 2336
(affirming judge’s finding that of reasonable likelihood of injury from an explosion
despite no methane detected at time of violation because methane was emitted as
bolter drilled into the roof, the bolter was close to the gob and far from the
bleeder fans, and the mine was a gassy mine).
As emphasized, this mine was on a
five-day spot and liberated approximately two million cubic foot of methane in
a 24-hour period. Tr. 158. The risks of dangerous concentrations of methane quickly
rising to an explosive level from the above sources are increased where the
mine liberates such high quantities of methane. Although Respondent offered its
ventilation scheme as a sufficient countermeasure against methane accumulation,
the Commission has consistently found that adequate ventilation within a mine
is not sufficient to remove the danger of explosive levels of methane. U.S. Steel, 6 FMSHRC at 1869; Excel Mining, LLC, 37 FMSHRC at 466. Based on the entire record, I find it
reasonably likely that under continued normal mining operations, Crum’s
non-permissible truck would be exposed to an explosive concentration of methane
in the return air where it was parked.
Respondent
argues that the truck would have been removed before production restarted, thus
eliminating the presence of the ignition source. Tr. 286. I reject this argument. As the Fourth Circuit
recently recognized, the Commission has long “held that an S&S
determination ought to be ‘made at the time the citation is issued (without any assumptions as to abatement).’
Sec’y of Labor v. U.S. Steel Mining Co.,
6 FMSHRC 1573,1574 (1984) (emphasis added); see
also Sec’y of Labor v. McCoy
Elkhorn Coal Corp., 36 FMSHRC 1987, 1991 (2014) (rejecting the argument
that an S&S finding was erroneous ‘because [the mine operator] was in the
process of cleaning the accumulations when the inspector arrived’); Sec’y of Labor v.Gatliff
Coal Co., 14 FMSHRC 1982, 1986 (1992) (finding that the ALJ erred in
‘inferring that the violative condition would cease’ in the course of normal
mining operations).” Knox Creek, 811
F.3d at 165. In addition, Crum’s testimony that the truck would have been
removed before production restarted is speculative and unsupported by any
evidence. Apart from Crum’s interest as a longwall
maintenance supervisor in remaining by the longwall
to ensure that the belt and longwall operated
properly before he returned to his truck and the surface, Crum likely would
have been delayed in any number of ways as longwall
maintenance supervisor. Furthermore,
because Crum was ignorant of the violative condition (see e.g., Tr. 284), I
find it likely that he would have started the truck while it was in return air
after production restarted, thus increasing the likelihood of a methane
ignition.
In sum, I find that the presence of
an ignition source, the location of that ignition source within return air
reserved only for permissible equipment, the likelihood of a methane build up
to an explosive level during continued normal mining operations in this gassy
mine, and the testimony that the mine normally had high dust concentrations
make it likely that the violation contributed to a discrete methane ignition or
explosion hazard. As such, I find that the second prong of Mathies test was satisfied.
c.
The Violation Contributed to a Hazard That was
Reasonably Likely to Result in Injury
As the Fourth Circuit has recognized, the
third and fourth prongs of Mathies, which are often combined in a single
showing, are primarily concerned
with gravity or the seriousness of the expected harm. To the extent that the
third and fourth prongs are concerned with likelihood at all, they are
concerned with the likelihood that the relevant hazard will result in serious
injury because requiring a showing at prong three that the violation itself is
likely to result in harm would make prong two superfluous. Knox Creek,
811 F.3d at 162, citing Mathies, 3
FMSHRC at 3-4.
Regarding the third Mathies
factor, the Secretary demonstrated a reasonable likelihood that the hazard
contributed to by the violation, i.e., a methane explosion contributed
to by parking an impermissible ignition source in return air, was reasonably likely to result in an injury to the four
miners working near the face. As noted,
for this element to be satisfied “[t]he Secretary need not prove a reasonable likelihood that the
violation itself will cause injury.” Cumberland,
33 FMSHRC 2357, 2365 (Oct. 2011) (quoting Musser
Engineering, Inc. & PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct.
2010). Nor is the Secretary required to
prove that the hazard contributed to will actually result in an injury-causing
event. Youghioghemy & Ohio Coal Co., 9 FMSHRC 673, 678
(April 1987).
Rather, the test under the third prong of Mathies is whether there is a reasonable likelihood that the hazard
contributed to by the violation . . . will cause injury. Knox
Creek, 811 F.3d at 161, citing Musser
Engineering, 32 FMSHRC at 1281, where the Commission assumed the existence
of the relevant hazard and considered only “evidence regarding the likelihood
of injury as a result of the hazard.” Although the Commission’s decision in Ziegler Coal Co., 15 FMSHRC 949, 953
(1993), supports the argument that evidence of the likelihood of the hazard is
relevant at prong three, as the Fourth Circuit noted, that position is flatly
contradicted by more recent Commission precedent in Musser, 32 FMSHRC at 1281, and by the unanimous voice of the Fourth,
Fifth and Seventh Circuits. See Knox
Creek, 811 at 164; see also Peabody Midwest 762 F.3d at 616 (holding
that the question is not whether it is likely that the hazard would have
occurred, but only if the hazard occurred, regardless of likelihood, it was
reasonably likely that a reasonably serious injury would result); Knox Creek, 811 F.3d at 161 (Skidmore deference applied to
Secretary’s litigating positions 1) that third prong of Mathies focuses on the likelihood that the hazard to which the
violation contributes will cause injury, not on the likelihood of the hazard
occurring, and 2) the existence of the relevant hazard should be assumed); Buck Creek, 52 F.3d at 135 (the third
prong of Mathies is satisfied where
the ALJ determined that in the event of the hazard, a reasonably serious injury
would result); Austin Power, 861 F.2d
at 103-04 (finding third prong of Mathies
satisfied where the hazard “would almost certainly result in serious injury,”
without requiring evidence that the hazard itself was likely); cf. Cumberland
Coal, 71 F.3d at 1027-28 (Secretary’s interpretation that decision
maker should assume the existence of an emergency when evaluating whether the
violation of an emergency safety standard is S&S is not inconsistent with Mathies or Commission precedent).
I
credit inspector Lampley’s testimony that the
violation, parking the impermissible truck with unapproved electrical
components in return air, contributed to a methane ignition or explosion hazard
that was reasonably likely to result in an injury to the four miners working at
the face. Tr. 156-63. The Commission has long recognized that a methane
ignition or explosion is likely to result in a fatal injury to exposed miners. See
Consolidation Coal, 35 FMSHRC at 2337 (affirming judge’s determination that
the lack of a permissible light on a roof bolter would contribute to the hazard
of a methane gas ignition or explosion, which is reasonably likely to cause a
permanently disabling or fatal injury); Black
Diamond Coal Mining, 7 FMSHRC 117, 1120 (1985)(“We have previously noted
Congress’ recognition that ignitions and explosions are major causes of death
and injury to miners”); Jim Walter Res.,
Inc., 37 FMSHRC 1968, 1976 (Sept. 2015)(“horrific mine explosion[s took]
the lives of 12 miners at Sago Mine”); Sec’y
of Labor v. Performance Coal Co., 34 FMSHRC 587, 588 (2012) (ALJ)
(explosion at longwall section due to an ignition of
methane propagated by coal dust resulted in deadliest U.S. mine disaster in 40
years, killing 29 miners); cf. Knox Creek,
811 F.3d at 163 (permissibility violations where a mine’s atmosphere contains
explosive concentrations of methane contribute to a methane ignition or
explosion hazard that is reasonably likely to result in an injury-producing
event). Accordingly, I find that the
third prong of Mathies was satisfied.
d.
There was a Reasonable Likelihood That the Injury in
Question Will Be of a Reasonably Serious Nature
With regard to the fourth Mathies
factor, I find a reasonable likelihood that any injury from a methane explosion
would be of a reasonably serious nature. A methane-related explosion
contributed to by the violation was reasonably likely to result in fatal
injuries to the four miners working at the face. Consolidation
Coal Co., 35 FMSHRC at 2337; Black
Diamond Coal Mining, 7 FMSHRC at 1120; Jim
Walter Res., Inc., 37 FMSHRC at 1976; Sec’y
of Labor v. Performance Coal Co., 34 FMSHRC at 588. Fatal injuries are necessarily serious in
nature. Thus, I find the fourth Mathies
factor satisfied.
In sum, considering all relevant
factors, I find the violation was S&S.
3. Respondent’s Negligence is Reduced from
High to Moderate
I
find that Respondent’s negligence should be reduced from “high” to “moderate.” It
was not unreasonable for Crum, an agent of the operator, who was visually
estimating distances, to mistake 144 feet for 150 feet and to park the hood of
his truck slightly in return air. I find this honest mistake to be a mitigating
circumstance that supports a reduction in Respondent’s negligence from high to
moderate.
4. Civil Penalty for Citation No. 8451651
Applying the penalty assessment
criteria set forth in section 110(i) of the Mine Act, I find that Respondent, Mach
Mining, Inc., operates the Mach Mining No. 1 Underground Mine, which mined
7,528,061 tons of bituminous coal in 2012. The parties stipulated that the originally proposed
penalty of $16,867 will not affect Respondent’s ability to remain in business. MSHA
recognized Respondent’s good-faith compliance in abating the citation. I have affirmed
MSHA’s gravity and S&S determinations. I have modified MSHA’s negligence
determination from high to moderate. After consideration of the penalty
assessment criteria set forth in section 110(i) of the Act, I assess a $5,081 civil
penalty against the Respondent for Citation No. 8451651.
VI.
Citation No. 8439446
A. Findings
of Fact
1.
Inspector Stanley’s Testimony
After determining that Respondent’s methane monitor attached to a roof bolting machine failed to register explosive concentrations of methane, Inspector Phillip Wayne Stanley[19] issued Citation No. 845394446 for a violation of 30 C.F.R. § 75.342(a)(4). Tr. 465-66. The cited standard requires that methane monitors be maintained in proper operating condition. Tr. 465. Properly operating monitors de-energize electrical equipment when methane concentrations reach 2.0 percent or when the monitor is not operating properly. 30 C.F.R. § 75.342(c); Tr. 465. Stanley determined that the violation was S&S and contributed to a methane ignition hazard that was reasonably likely to result in flash burns affecting two miners, as a result of Respondent’s moderate negligence. Tr. 156, 162-63. The Secretary proposed a penalty of $1,412.
On August 6, 2013, Stanley conducted
a regular inspection at Mach Mining. Tr. 461-62. As part of that inspection,
Stanley tested the methane monitor attached to roof bolter #4 on the eighth headgate panel. Tr. 462, 464. Stanley conducted the
inspection with a calibrator that displayed a digital readout, which listed the
methane level. Tr. 464-65. When Stanley applied 2.5% methane to the monitor, it
only read as high as 1.6 % methane. Id.
The roof bolter is programmed to automatically de-energize at 2.0 %. Tr. 465. With
an inaccurate methane monitor, the machine would likely fail to de-energize in
explosive levels of methane. Tr. 468.
Under MSHA regulation, methane
readings must be taken every twenty minutes during the process of roof bolting.
Tr. 466, 496; 30 C.F.R. §75.362(d)(2). If
a roof bolter lacks a methane monitor, readings must be taken with a probe at
the deepest point of the cut approximately
a foot from the roof or face. Tr. 467, 493-94. If the roof bolter has a methane
monitor, readings can be taken within sixteen feet of the front of the machine.
Tr. 466-67, 494-95. Stanley opined, but was not positive, that the methane monitor
on the bolter did not run all day and was only used when a reading was taken. Tr.
495.
Stanley
issued Citation No. 8451651 for a violation of 30 C.F.R. § 75.342(a)(4). Tr.
465-66. The cited standard requires that methane monitors be maintained in
proper operating condition. Tr. 465. Properly operating monitors de-energize
electrical equipment when methane concentrations reach 2.0 percent or when the
monitor is not operating properly. 30 C.F.R. § 75.342(c); Tr. 465.
Stanley marked the citation as
“reasonably likely” to result in an injury because the machine would not de-energize
when encountering an explosive concentration of methane. Tr. 468. The mine
liberated two million cfm of methane in a 24-hour period, and the eighth headgate panel itself released 25,000 cfm of methane in a
24-hour period. Id. Although more
methane is released during extraction, some methane is released during roof
bolting. Tr. 496. Because methane is lighter than oxygen, it accumulates in the
top third of the entry where bolting occurs. Tr. 472-73. The methane monitor
was placed on the automated temporary roof support system (ATRS) to gather
readings in this accumulation zone. Tr. 468-69, 492. Additionally, the area
near the roof of the mine was susceptible to sparking because the carbide tips
of the bolter’s drill bits encountered materials such as sandstone, limestone,
and shale. Tr. 469. The roof bolter also
created sparks when its wrench and bolt rotated against a steel-bearing plate. Id. Stanley referred to a 2012 ignition
at Prosperity Mine to demonstrate the hazard resulting from a malfunctioning
methane monitor on a roof bolter. Tr. 470.
Given the malfunctioning
methane monitor, the likelihood and location of methane accumulation, and the
potential for sparking, Stanley expected resulting injuries from an ignition to
manifest as flash burns. Id. Stanley
determined that these injuries would result in lost workdays or restricted duty
and would affect the two machine operators. Tr. 470-71.
At
the time of the citation, Respondent’s ventilation system met regulatory
standards. Tr. 490-92. Looking inby, the system
ventilated the roof bolter with air traveling from right to left, and included
a line curtain to assist with ventilation. Id.
This air acted to render harmless or remove noxious and hazardous gases and
dust. Id., Tr. 505. However,
ventilation systems may be inadequate where methane bleeders are encountered. Tr.
505-06. Bleeders are pockets of methane pressured under the strata. Id. They may continually replace
explosive concentrations of methane faster than the ventilation can sweep the
air. Id.
In deference to Respondent’s
implementation of seven-day checks on its methane monitors rather than the
thirty-one day intervals required by the regulations, Stanley determined that
Respondent’s negligence was moderate. Tr. 471.
2.
The Testimony from Respondent’s Witnesses
a.
Mark Schilke’s Testimony
Schilke accompanied Stanley during his inspection of the
roof bolter. Tr. 552. At the time of inspection, the bolter was pulled back approximately
eighty feet from the face and outby the feeder break or last open crosscut. Tr.
555-56. The roof bolter is typically pulled in to secure unsupported roof after
the continuous miner takes a fresh cut at the face. Tr. 557-58.
Schilke
testified that prior to positioning the roof bolter, the roof bolt operators would
take a methane reading. Tr. 553. A separate handheld methane monitor was
attached to the probe and extended at least fifteen feet beyond the bolter. Tr.
553, 629-630, 635. The bolter operators repeated these readings every twenty
minutes with a probe. Tr. 553, 624, 644. Schilke
testified that having a methane monitor attached to the bolter did not affect
the nature of the twenty-minute gas checks in any way. Tr. 629-632. There was
no evidence to suggest errors in the equipment or data derived from these
regular methane checks. Tr. 554.
Both Stanley and Schilke wore methane spotters and neither reported methane
near the face. Tr. 559. Schilke testified that
although the cited methane monitor failed to deenergize
the machine, it did emit a warning during the methane test. Tr. 552, 628-29. Schilke also emphasized that methane monitors were an
optional safety precaution. Tr. 552-53.
During roof bolting, Respondent
ran a curtain to the tail of the bolter, to facilitate the flow of approximately
3000 cfm of intake air. Tr. 556-57. This ventilation system directed the air
towards the face and across the bolter to remove gas and dust from the bolter. Tr.
556-58. Schilke admitted that the amount of
ventilation would not diminish the necessity of twenty-minute gas checks. Tr.
633.
b.
Johnny Robertson’s Testimony
General Manager Johnny Robertson[20]
testified that methane was only liberated when the continuous miners or the longwall shearers cut coal. Tr. 710-11, 742. Robertson
testified that methane is less likely encountered during roof bolting than
mining, and is usually only present when roof bolting into a coal seam. Tr.
716. Robinson testified that during his four years of tenure with Respondent,
there were no reports of methane released from the roof or during bolting. Tr.
718-19.
According to Robertson, the
regularity of spot inspections is determined by the amounts of methane and
intake air in the mine. Tr. 743. Higher volumes of intake air reduce the
methane content within the mine. Tr. 743-44. Robertson explained that Respondent’s
ventilation plan required a minimum of 3000 cfm of intake air blowing against a
line curtain and across the back of the roof bolters. Tr. 711. Although
Respondent met the ventilation requirements, its methane levels nonetheless
required five-day spot inspections. Tr. 709-10, 743-44. Robertson conducted
weekly methane readings where methane accumulated at the bleeder system behind
the longwall. Tr. 710. He testified that during his
time as general manager, neither his readings, nor any readings reported to him,
were above 0.7 % methane. Tr. 711.
Robinson
confirmed that Respondent used a continuous miner to carve out entryways. Tr.
717. After it cut forty feet of coal and withdrew, the roof bolter moved in to
support the roof. Id., Tr. 742-43. Robertson testified that the light on the monitor
was generally visible to the operator when the continuous miner cut and loaded
coal. Tr. 723-24. He testified that the operator stood in front of the methane
monitor. Tr. 745. He acknowledged, however, that the operator might turn away
from the monitor while the cutter drum cut coal, whenever the shuttle car
approached and loaded coal. Tr. 723-25, 745. Under such circumstances, the
methane monitor was not visible for a few seconds. Tr. 723-25, 746. The
continuous miner was not programed to automatically de-energize in
concentrations of one-percent methane. Tr. 746-47. Instead, it was de-energized
manually. Id.
Robertson also confirmed that when
the roof bolter had a methane monitor attached to the ATRS, the operators probe
sixteen feet in front of the bolter. Tr. 719. These methane checks were
repeated every twenty minutes during roof bolting. Id. If the bolter did not have an attached methane monitor on the
ATRS, these checks would occur with a different handheld monitor at the deepest
point of penetration about twelve inches from the face and roof. Tr. 720.
B. Analysis and Disposition
1.
The Violation of § 75.342(a)(4)
Section 75.342(a)(4) requires that operators
maintain methane monitors in permissible and proper operating condition and calibrate
them with a known air-methane mixture at least once every 31 days. A methane
monitor in permissible and proper operating condition shall automatically de-energize
electric equipment or shut down diesel equipment on which it is mounted when
the methane concentration reaches 2.0 percent or when the monitor is not
operating properly. 30 C.F.R. § 75.342(c).
Respondent admitted the violation. Tr.
552. See R. Br. 12. The methane
monitor failed to de-energize the machine when methane concentrations reached
2% and failed to provide readings higher than 1.6 %. Tr. 464-65. Respondent
argues that the violation was not S&S, that its negligence was less than
moderate, and that the proposed penalty calculation is inappropriate.
2.
The Violation was Significant and Substantial
a.
There was a Violation of a Mandatory Safety Standard
For the reasons explained above,
I have found and Respondent admits the underlying violation of a mandatory
safety standard, i.e., § 75.342(a)(4).
b.
The Violation Contributed to a Discrete Measure of
Danger to Safety
As stated previously, the second Mathies factor requires a showing that
the violation created a discrete safety hazard, “which implicitly requires a
showing that the violation is at least somewhat likely to result in harm.” Knox Creek,
811 F.3d at 16, citing Black Beauty Coal
Co., 34 FMSHRC at 1741, n. 12, aff’d
sub nom. Peabody Midwest, 762
F.3d 611 (7th Cir. 2014); Cumberland,
33 FMSHRC at 2368, aff’d sub nom. Cumberland, 717 F.3d 1020; E. Associated Coal Corp., 13 FMSHRC at
183; Utah Power & Light Co., 12
FMSHRC at 970. Where a violation poses a risk of fire
or explosion, this likelihood is demonstrated by the presence of a “confluence
of factors,” such as possible ignition sources, the presence of methane, and
the type of equipment in the area. Excel Mining, LLC, 37 FMSHRC at
465, slip op. at 7, (Mar. 2015); Utah Power & Light Co., 12
FMSHRC at 970-71; Texasgulf, 10 FMSHRC at 501-03. For
example, in Consolidation Coal, the
Commission found that a methane ignition was reasonably
likely because methane was emitted during roof bolting, the bolter was located
near the gob and far from the bleeder fans, and the mine was gassy. Consolidation Coal Co., 35 FMSHRC at 2337.
A properly functioning methane monitor is expected to automatically de-energize electrical equipment in two percent methane to avoid the potential ignition of explosive levels of methane at the 5-15% range. The monitor at issue in the present citation did not detect two percent methane when tested, and would not automatically de-energize the roof bolter in rising concentrations of methane, thus contributing to the likelihood of a methane ignition should methane accumulate to an explosive level during continued normal mining operations. Consequentially, I find that the hazard contributed to by the violation was a methane-related ignition caused by undetected explosive levels of methane where ignition sources were present.
The risk of
excessive methane in Respondent’s mine nearly parallels the risk cited in Consolidation Coal. Methane was
liberated during roof bolting. Tr. 469. Due to its weight, the methane
accumulated near the top third of the entry where bolting occurred. Tr. 468-69.
The potential for bleeders increased the possibility of dangerous methane
concentrations. Tr. 505-06.
Furthermore,
the Commission has held that if a mine liberates high levels of methane there
may be an even greater potential for a methane ignition to occur and that this
may be considered in a confluence-of-factors analysis. Excel Mining, LLC, 37 FMSHRC 465, slip op. at 7,
(Mar. 2015); Knox Creek Coal
Corp., 36 FMSHRC at 1134. As stated previously, the Mach Mining No. 1
Underground Mine is a gassy mine that is on a five-day spot inspection
schedule. Tr. 35. The mine liberates over two million cfm methane in a 24-hour
period and approximately 35,000 cfm methane at the eighth head-gate panel. Tr. 468. I find that the confluence-of-factors
test is satisfied here and that
the violation created a discrete safety hazard,
which was at least somewhat likely to result in harm.
Citing facts discussed in the Consolidation
Coal ALJ decision, Respondent argues in its response to the Secretary’s
Post-Hearing brief that the risk of excessive methane in the present case is
substantially different from the risk of excess methane in Consolidation Coal. R. Resp. Br. 6-7. According to Respondent, respondent Consolidation
Coal had higher levels of methane because the roof bolters and continuous
miners shut down four to five times in a cycle, and a curtain was removed by a
foreman, thus raising methane levels to 7.7%. Id. However, the facts that Respondent relies on were not
determinative in Consolidation Coal. Instead,
the Commission cited only three
factors when establishing a sufficiently dangerous risk for a methane ignition.
Consolidation
Coal Co., 35 FMSHRC at 2337 (emphasis
added). The Commission cited the
emission of methane while roof bolting, the location of the roof bolter near the
gob and further from the bleeder fans, and the fact that the mine was gassy. Id. (“[T]he Robinsons Run mine liberates more than a million
cfm of methane during a 24-hour period and is subject to five-day methane spot
inspections”). Given the cited conditions, the Commission quoted the
inspector’s testimony that “it would only take a roof-fall for the gob air to …
create an explosive amount of methane.” Id.
at 2336. With the additional danger of encountering pockets of methane
bleeders, the present risk factors are nearly identical to those enumerated by
the Commission in Consolidation Coal.
Accordingly, I do not find Respondent’s
argument persuasive.
Respondent also cites Judge Zielinski’s decision in Ohio County Coal for the proposition that a malfunctioning methane monitor is not S&S where the mine has low levels of methane concentrations. Ohio County Coal Co., 32 FMSHRC 220 (Feb. 2010)(ALJ). Ohio County Coal is distinguishable from the present case in at least one major way. The mine in Ohio County Coal did not liberate excessive quantities of methane, as noted by Judge Zielinski in his analysis. 32 FMSHRC at 224 (comparing Freedom mine to mines that liberate greater quantities of methane and are subject to spot inspections). Instead, the mine in that case emitted a mere 12,000 to 13,000 cfm methane in a 24-hour period, in comparison to Respondent’s liberation of one million cfm methane in a 24-hour period. Id.
In short, Respondent roof bolted with a malfunctioning methane monitor in an area of methane emission and accumulation within a gassy mine. The inspector credibly testified that sparks released from roof bolting in excess methane concentrations will cause an ignition. I find that this combination of risk factors satisfies the confluence-of-factors test for a methane ignition hazard and supports a finding that the hazard is at least somewhat likely to occur. Accordingly, I find that the second Mathies factor is satisfied.
c.
The Violation Contributed to a Hazard That was
Reasonably Likely to Result in Injury
As stated previously, federal
appellate law and Commission precedent have sufficiently established that a
methane explosion is reasonably likely to result in injures. See
Buck Creek, 52 F.3d at 135; Consolidation Coal Co., 35 FMSHRC at
2337; Black Diamond Coal Mining, 7
FMSHRC at 1120; Jim Walter Res., Inc.,
37 FMSHRC at 1976; cf. Knox Creek, 811
F.3d at 164-65. Accordingly, I
find that the third Mathies factor is
met.
d.
There was a Reasonable Likelihood That the Injury in
Question Will Be of a Reasonably Serious Nature
With regard to the fourth Mathies factor, I find a reasonable
likelihood that any injury from a methane explosion would be of a reasonably
serious nature. The record establishes that a methane-related ignition contributed
to by the violation was reasonably likely to result in a serious injury or
illness to at least two miners working with the bolter, who would suffer flash
burns from a methane ignition. I find that the designation of “lost workdays or
restricted duty” was appropriate for this violation.
In sum, considering all the relevant
factors, I find that the violation was properly designated as S&S.
3.
Respondent’s Negligence was Appropriately Designated
as Moderate
Based on the testimony and briefs, I
do not find considerable mitigating circumstances that would justify reducing the
negligence designation from moderate to low. Respondent knew or should have
known of the violation. Respondent’s
ventilation and weekly methane monitor calibrations are mitigating
circumstances that support a moderate negligence designation. However, Respondent highlighted no action that
considerably mitigated the likelihood
or severity of a methane ignition during roof bolting without a properly
functioning methane monitor. In these circumstances, I conclude that the
Secretary properly designated Respondent’s negligence as moderate.
4.
Civil Penalty for Citation No. 8439446
Applying
the penalty assessment criteria set forth in section 110(i) of the Mine Act, I
find that Respondent mined 7,528,061 tons of bituminous coal in 2012. The
parties stipulated that the originally proposed penalty of $1,412 will not
affect Respondent’s ability to remain in business. MSHA recognized Respondent’s
good-faith compliance in abating the citation. I have affirmed MSHA’s gravity,
negligence, and S&S determinations. After consideration of the penalty
assessment criteria set forth in section 110(i) of the Act, I assess a $1,412
civil penalty against the Respondent for Citation No. 8439446.
V.
Citation No. 8432319
1.
Inspector Bretzman’s
Testimony
After observing the absence of an auxiliary methane alarm light on a longwall shearer, MSHA inspector Robert L. Bretzman[21] issued
Citation No. 8432319 for a violation of 30 C.F.R. § 75.342(b)(2), which
requires that “[t]he warning signal device of the methane monitor shall be
visible to a person who can de-energize electric equipment or shut down
diesel-powered equipment on which the monitor is mounted.” Tr. 409. Bretzman determined
that the violation was unlikely to contribute to a methane ignition hazard, but
that any injuries that did result from the hazard would result in lost work
days or restricted duty affecting three miners, as a result of Respondent’s low
negligence. Tr. 409-411. The Secretary proposed a penalty of $117.
On September 11, 2013, Bretzman was among several inspectors who conducted a
quarterly inspection of Respondent’s longwall. Tr.
396-97. Bretzman testified that the longwall was probably producing coal when he arrived, but
he could not say for sure. Tr. 418. During
the inspection, Bretzman noticed that there was no
auxiliary alarm light on the longwall shearer. Tr.
398. In Bretzman’s
experience, longwall shearers always have auxiliary alarm
lights. Tr. 407, 410. The shearer at issue has an electric panel with a four to
six-inch LED screen, which constantly displays the current concentration of
methane. Tr. 439-440. This methane reading flashes when methane levels reach a
certain percentage. Tr. 440-441. When methane concentrations reach one percent,
an alarm light turns on to alert the shearer operator of excessive methane. Tr.
441. This alarm light is located in the bottom right-hand corner of the panel
and is approximately the size of a quarter. Tr. 411-412, 441; S. Ex. 102.
Respondent usually has two longwall shearer
operators, a headgate operator and a tailgate
operator, and each has a remote control box that can de-energize the shearer. Tr.
404-05, 433. The shearer also has an emergency stop button that can be operated
by anyone in the area, including the stage loader operator. Tr. 434-36. Bretzman testified that the stage loader
operator works in a stationary position at the headgate
of the longwall. Tr. 435-36. Bretzman
testified that the only way to see the alarm on the shearer is to stand directly
in front of the monitor. Tr. 402, 413. Respondent failed to present any testimony
that the stage loader operator could see the auxiliary light on the longwall shearer.
Bretzman did not observe the longwall
in operation and did not know for certain where the operators stood that
particular day. Tr. 437-438, 442. However, Bretzman
testified that it was highly unlikely that a miner would stand where he could
see the monitor because from that location he would be unable to see the
cutting drums. Tr. 402-403. At any given time, an operator may stand anywhere
along the shearer, up to twenty-five feet from the monitor. Tr. 412-15,
438-439, 447. Upon questioning headgate operator Mike
Skelton, Bretzman learned that he was positioned
outby the headgate drum when it traveled towards the headgate. Tr. 446; see
S. Ex. 100, p. 3. This location confirmed Bretzman’s
suspicion that the shearer operator would not see the warning light. Tr. 446. Bretzman’s notes from the day of the inspection do not
indicate the tailgate operator’s usual location, although Bretzman
opined that Skelton would have volunteered that information if it was
exculpatory. Tr. 456-57.
Bretzman returned to MSHA and verified that alarm lights were
required on the shearer. Tr. 405, 408, 443. Bretzman decided,
and the MSHA field office supervisor agreed, that a citation was appropriate. Tr.
444. Bretzman returned to the mine the next day and
issued the citation. Tr. 408. The cited standard requires that “[t]he warning
signal device of the methane monitor shall be visible to a person who can de-energize
electric equipment or shut down diesel-powered equipment on which it is
mounted.” 30 C.F.R. § 75.342(b)(2); see also
Tr. 409. Bretzman determined that the operator could not see the
monitor during normal mining operations unless he was in the direct line of
sight of the readout. Tr. 409, 412, 441. As a result, the operator would not
have accurate methane readings during mining. Tr. 409. However, Bretzman conceded that the standard does not specifically
say that the monitor must be visible to the headgate
or tailgate operator. Tr. 436-37. Any person assigned to watch the monitor
would be sufficient. Tr. 437, 439. To Bretzman’s
knowledge, no one stood at the center of the shearer. Tr. 447.
Furthermore, Bretzman could not recall anyone from Respondent telling him
that the indicator light could be seen by a person who could de-energize the
machine. Tr. 446.
Respondent
argues that the lack of previous citations from past inspections suggests that
the condition was not a violation. Tr. 725-27. Since 2006, Respondent developed
longwall panels for three miles and was subject to
many inspections, including E01 inspections, spot inspections, and permissibility
certifications for 2G longwall equipment. Tr.
422-442. Bretzman testified that the 2G approvals
were irrelevant because they only certified diagrams and plans of the mine, and
not the ways in which equipment was actually used. Tr. 451-452. For instance, Bretzman recalled a similar citation at the same mine requiring
an auxiliary alarm light on a stage loader. Tr. 406. In that case, the stage
loader satisfied 2G permissibility requirements if one assumed that the operator
was in view of the methane alarm. Tr. 451-52. In practice, however, MSHA inspectors
observed that the operators were not always in position to view the alarm and
therefore issued a citation. Id. Bretzman could not recall if he had spoken with Respondent
previously about the failure to place a light on the shearer, although he
believed he had. Tr. 422, 431. Bretzman testified
that every longwall shearer that Bretzman
worked with at Consol, and most of the ones at Joy Technologies had auxiliary
alarm lights. Tr. 407.
Bretzman determined that the unlikely injury that would
result from the alleged violation was lost work days or restricted duty for
three miners. Tr. 410-11. He testified that there was normally a high
concentration of coal dust at the site. Tr. 411. Excessive methane in an
environment with coal dust creates an ignition hazard. Id. As a result, Bretzman
determined that the shearer operators and shieldman
were at risk for burns. Id. Bretzman wrote the citation as unlikely because mining had
stopped and he had no evidence to suggest that methane was present. Tr. 410,
420. Furthermore, Respondent’s ventilation pushed over 100,000 cfm of intake
air over the headgate, and the shearers were designed
to automatically de-energize at 2.5 % methane. Tr. at 417-21. The monitors
designed to shut off the shearers worked properly at the time of the citation. Tr.
421.
To
abate the alleged violation, Respondent ordered the equipment necessary to
install an auxiliary alarm light on the shearer. Tr. 412. Respondent installed
a new, two-inch flashing light that was visible to the shearer operators. Tr.
448. The citation was terminated by another inspector. Tr. 457-58.
2.
The Testimony from Respondent’s Witnesses
a.
James Key’s Testimony
James Key was a shearer operator for the Respondent.[22] Key explained that a longwall shearer is a piece of equipment with two drums,
one at the head and one at the tail end. Tr. 649-650. As the shearer passes from
the headgate to the tailgate, the tail drum cuts the
top, and the head drum cuts the bottom. Id.
The headgate operator runs the head drum with a
remote control as cuts are made, while the tailgate operator does the same with
the tail drum. Tr. 650-52. The remotes have stop buttons that can turn off, but
not de-energize, the machine. Tr. 651. Instead, the shearer has an emergency
stop that de-energizes the machine. Tr. 652.
When
the shearer moves from the headgate to the tailgate,
the tailgate operator typically stands approximately six to seven feet to the
right of the alarm light in the direction of the tailgate. Tr. 653, 664. Key further
testified that the alarm light was visible to the tailgate operator, if he
turned his head. Tr. 664. According to Key, the headgate
operator was usually in a variety of locations, including anywhere from right
behind the tailgate operator to the back of the head drum. Tr. 653-54, 664-65,
668. Key testified that the headgate operator could
also see the light, if he turned his head. Tr. 664.
Key
testified that when the shearer moved in the opposite direction, the tailgate
operator typically stood on the head side of the drum. Tr. 655, 666-68. The headgate operator was usually located closer to the alarm
light, although neither operator remained in a certain location. Tr. 666-68. Although
the light was usually visible, the operators might not have been in position to
see the light at any given moment. Tr. 666. Key admitted that there was not
always someone standing in front of the light during mining. Tr. 674.
Key
was familiar with the methane monitor and the lights on the display. Tr. 661. Key had worked for a different coal company
with a similar longwall system, which had the monitor
in the same location. Tr. 669. According to Key, the light, which turned on
when methane levels reached one percent, was “pretty bright.” Tr. 662-63, 665. The
light was approximately an inch in circumference. Tr. 663. It was located
within an enclosure that jutted out around the edges. Tr. 673. The raised edges
limited the light’s visibility at certain angles from the monitor. Tr. 673-74.
b.
Johnny Robertson’s Testimony
General Manager Robertson was
familiar with the methane monitor on the longwall
shearer. Tr. 720-21. Robertson testified that in one percent methane, a yellow
light turned on. Tr. 722, 746. Further, given adequate ventilation, the
operator merely had to stop mining to halt methane liberation. Tr. 722. Once
methane levels dropped below one percent, the operators could resume mining. Id.
Robertson testified that
Respondent had never received a citation for the location of the auxiliary alarm
light on the shearer during the prior six years when Respondent used the longwall. Tr. 725-27. Additionally, Robertson testified that
Massey Energy used the same methane display and never received a citation
during his four years as a general manager there. Tr. 725-28. Until the instant
inspection, Robertson had never heard of a citation for this issue. Tr. 729. Robertson
testified that, apart from the issuance of the citation, Respondent suffered no
reported negative consequences from the location of the alarm light. Tr.
751-53. Respondent abated the citation
by ordering an alarm light and installing it on a Saturday, when the longwall was down. Tr. 756.
Robertson
testified that approximately five years before the date of the hearing, MSHA
inspector, Dean Cripps, issued a similar citation for lack of visibility on a
monorail methane monitor.[23]
Tr. 728-30, 749-50. Robertson testified that Cripps’ concern about the location
of the alarm light was limited to the monorail because Cripps did not issue a
citation for the alarm light on the longwall shearer.
Tr. 730. According to Robertson, Cripps informed Robertson’s supervisor,
Anthony Webb, that any change in policy for the shearer methane monitors would
be accompanied by written verification from MSHA. Tr. 730, 738. Robertson testified
that Respondent never received verification in writing on this issue until the
issuance of the citation. Tr. 738-41.
Robertson further testified that
two years ago, Webb and Robertson determined that installing the light required
partially dismantling the shearer, and therefore, any necessary alterations to
the alarm light would occur when the shearer was rebuilt for another mining
panel. Tr. 730-32, 749-50. Robertson, however, admitted that Respondent did not
have to rebuild the shearer to install the light for abatement purposes. Tr.
752.
Robertson relayed his
conversations with Cripps and Webb to Bretzman. Tr.
733, 739-40.
B. Analysis
and Disposition
1.
Respondent had Adequate Notice of the Requirements for
§ 75.342(b)(2)
Respondent argues that it did not have fair notice of the standard before receiving the citation. R. Br. 25-27. Respondent asserts that a previous MSHA inspector (Cripps) assured Respondent that a change in policy on the methane monitors would be accompanied by written notification. Tr. 730, 738. Respondent contends that Cripps’ assurance, coupled with a lack of previous citations on the longwall shearer’s methane monitor, establish that Respondent did not receive fair notice of the standard.
Due process considerations prevent the adoption of an agency’s interpretation of a regulation that “fails to give fair warning of the conduct it prohibits or requires.” LaFarge North America, 35 FMSHRC 3497, 3500-01 (Dec. 2013)(citing Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C. Cir. 1986)). The Commission has held that adequate notice is provided where a regulation has clear meaning and is not inconsistent with MSHA’s Program Policy Manual (PPM). Jim Walter Res., Inc., 28 FMSHRC 579, 594-95 (Aug. 2006). Where a regulation is not expressly defined, the Commission has found adequate notice where clarification is found in MSHA policy publications. See e.g., Dolese Brothers Co., 16 FMSRHC 689, 693-94 (Apr. 1994)(where MSHA’s PPM and a policy letter clarified the applicable standard).
Here, the language of the regulation is clear when it states that the “[t]he warning signal device of the methane monitor shall be visible to a person who can deenergize electric equipment or shut down diesel-powered equipment on which the monitor is mounted.” § 75.342(b)(2). This standard is further explained in MSHA’s Program Policy Manual (PPM) for machines operated by remote controls. Thus, even assuming some ambiguity in the regulatory language, the PPM was sufficiently clear regarding the requirements of the standard. See Coal Employment Project v. Dole, 889 F. 2d 1127, 1130 n. 5 (D.C. Cir. 1989)(PPM, although not binding, is an accurate guide to current MSHA policies and practices); accord Mettiki Coal Corp., 13 FMSHRC 760, 766-67 & nn. 6 & & (May 1991). For such machines, the PPM requires that methane warning devices be installed “in such a location that [it] can be readily seen or heard by…the machine operator…at all locations from which the machine is operated.” V MSHA, U.S. Dep’t of Labor, Program Policy Manual, Part 75.342 at 41(2015) (emphasis added). I find that the plain language of the regulation, coupled with the accompanying explanation in the PPM, provided clear and fair notice to Respondent regarding the interpretation of the cited standard. That is, MSHA requires that methane warning devices for remote-controlled machinery be visible from all locations from which the operator is located. 30 C.F.R. 75.342(b)(2).
Respondent’s argument that it detrimentally relied on inspector Cripps’ assurances that a change in policy on the methane monitors would be accompanied by written notification is not persuasive. Essentially, Respondent argues that MSHA should be estopped from issuing a citation on the methane warning light on the longwall shearer because of Cripps’ assurances and lack of previous enforcement. The Commission has declined to apply equitable estoppel against the government, or in this case, its agents. King Knob Coal Co., 3 FMSHRC 1417, 1421 (June 1981). Generally, “those who deal with the Government are expected to know the law and may not rely on the conduct of government agents contrary to law.” Heckler v. Community Health Services, 467 U.S. 51, 63 (1981). The Commission has held that “an inconsistent enforcement pattern by MSHA inspectors does not prevent MSHA from proceeding under an application of the standard that it concludes is correct.” Mach Mining, 34 FMSHRC 1769, 1774 (Aug. 2012) (citing Austin Powder Co., 29 FMSHRC 909, 920 (Nov. 2007)).
I have credited Bretzman’s testimony that MSHA requires visible alarm warnings on methane monitors on longwall shearers. Bretzman recognized an alleged violation and verified the applicability of the regulation with his supervisor at MSHA. Tr. 444. I have found that the plain language of the regulation, coupled with the accompanying explanation in the PPM, provided clear and fair notice to Respondent regarding the interpretation of the cited standard. Accordingly, I conclude that Respondent had adequate notice of the requirements of 30 C.F.R. § 75.342(b)(2).
2.
The Violation of § 75.342(b)(2)
Section 75.342(b) provides that the warning signal device of the methane monitor must be visible to a person who can de-energize the equipment on which the monitor is mounted. 30 C.F.R. § 75.342(b)(2). The regulations require the monitor to give this alarm signal when methane concentrations reach one percent. 30 C.F.R. § 75.342(b)(1). At that point, the miner must de-energize or shut down the equipment. 30 C.F.R. § 75.342(b)(2).
The Commission and the D.C. Circuit have previously examined the application of this regulation to longwall methane monitors. Consolidation Coal Co., 136 F.3d 819 (D.C. Cir. 1998) affirming Consolidation Coal Co., 18 FMSHRC 1903 (Nov. 1996). The D.C. Circuit determined that a visible alarm is essential because it alerts miners of dangerous concentrations of methane should other safety measures fail. Id. at 822. The warning functions as a fail-safe to ensure that miners respond to potentially hazardous situations. Id. at 823. The D.C. Circuit Court concluded that the Secretary’s interpretation of § 75.342(b) which requires that a warning signal be visible at all times to a miner who can “react to increasing methane levels and, if necessary, de-energize mining equipment,” was appropriate. Id. at 822.
Respondent attempts to distinguish the present case from Consolidation Coal on the basis of
notice. R. Resp. Br. 25-26. In that case, the Commission found actual notice
where MSHA reiterated the requirement in seven meetings over the course of one
year. Consolidation Coal, Co., 18
FMSHRC at 1907. Those facts do not prevent a finding of fair notice in the
present case, for the reasons explained above.
I credit Bretzman’s
testimony that the longwall shearer operators would
not be able to see the alarm light from various positions. Tr. 446. Although
Key described the warning light as bright, both he and Bretzman
testified that it was quite small, only up to an inch in circumference. Tr.
412, 661. Furthermore, the control panel in which the alarm light was contained
had raised edges, which further limited its visibility at certain angels. Tr.
673-74. Finally, Bretzman credibly testified that the
operators worked up to twenty-five feet from the warning light. Tr. 415.
Respondent argues that because Bretzman did
not observe an operator working thirty feet from the monitor, the citation was
inappropriate. R. Resp. Br. 26. However, Key corroborated Bretzman’s
testimony that the operators were not stationary during mining. Tr. 664-668. Further, Key acknowledged that the alarm was
not in the line of sight of the operators at certain locations or angles. Tr. 666.
Bretzman determined that the operator could not see
the monitor during normal mining operations unless he was in the direct line of
sight of the readout. Tr. 409, 412, 441. Therefore, I find that the Secretary
proved by a preponderance of the evidence that the small methane alarm light on
the longwall shearer was not visible from all
locations where the machine was operated, to a person, especially a machine
operator working up to twenty-five feet from the control panel, who could de-energize
the equipment. Indeed, a light the size of a quarter and located within the
enclosure described, would not be visible at much shorter distances. Respondent failed to rebut the Secretary’s
case by establishing that a person could see the alarm light from all locations
from which the machine was operated remotely. Further, Bretzman
could not recall anyone from Respondent telling him that the indicator light could
be seen by a person who could de-energize the machine. Tr. 446. Accordingly, I find a violation of § 75.342(b)(2).
Bretzman
determined that because production had halted and because he had no evidence of
methane present at the time of the citation, the violation was unlikely to
result in an injury. Tr. 410, 420. Under
extant Commission precedent, I lack authority to modify the non-S&S
designation and make it S&S.[24]
3.
Respondent’s Negligence was Appropriately Designated
as Low
The Secretary argues that Respondent’s negligence was low, citing the
lack of previous enforcement as a mitigating factor in the inspector’s
analysis. P. Post Hr’g Br. 3-4 (quoting Mach Mining, LLC, 34 FMSHRC 1769, 1744
(Aug. 2012), citing Austin Powder Co.,
29 FMSHRC 909, 920 (Nov. 2007)). In determining the weight to be given the lack
of enforcement, I note that Commission judges are not bound to apply the levels
of negligence definitions that are designated by potential mitigating
circumstances in the Secrtary’s regulations. Brody, 37 FMSHRC at 1701; Mach Mining, 809 F.3d at 1263-64. While
the Commission has held that inconsistent enforcement is not a defense to liability,
it is relevant to the determination of negligence, and may be cited as a
mitigating factor in reducing said negligence. Mach Mining, 34 FMSHRC at 1744 (citing King Knob Coal Co., 3 FMSRHC 1317, 1422 (June 1981), aff’d sub nom Mach Mining, LLC v. FMSRHC, 809 F.3d 1259 1259 (D.C. Cir. 2016)
(inconsistent enforcement of a regulation may reduce the level of negligence
and detrimental reliance on MSHA’s incorrect interpretation of a regulation is
properly considered in mitigation of penalty).
Both this citation and the previous citation involve violations of the
same standard. While the similarity between the citations might result in
comparable negligence determinations, the precedent cited above permits
consideration of inconsistent prior enforcement at this juncture to determine
the appropriate level of negligence. I
credit Robinson’s testimony that MSHA overlooked the violation of §75.342(b)(2) on the instant shearer for years
before issuing a citation on the date of the inspection. Tr. 725-27. Given the lack of previous enforcement, I find
that the Secretary properly designated Respondent’s level of negligence as low.
4.
Civil Penalty for Citation No. 8432319
Applying the penalty assessment criteria set forth in section 110(i) of the Mine Act, I find that Respondent mined 7,528,061 tons of bituminous coal in 2012. The parties stipulated that the originally proposed penalty of $117 will not affect Respondent’s ability to remain in business. MSHA recognized Respondent’s good-faith compliance in abating the citation. I have affirmed MSHA’s gravity and negligence determinations. After consideration of the penalty assessment criteria set forth in section 110(i) of the Act, I assess a $117 civil penalty against the Respondent for Citation No. 8432319.
VII.
Citation No. 8439454
A. Findings
of Fact
1.
Inspector Stanley’s Testimony
On August 15, 2013, Stanley
returned to the mine to conduct a regular inspection of the surface of the
property, including any underground equipment found on the surface. Tr. 472. Stanley
inspected a Kubota 10, a two-seater diesel Road Taxed Vehicle (RTV), used to
transport men or material underground. Tr. 473. Stanley did not know who
operated the Kubota, but thought that it was Schilke.
Tr. 499. Stanley examined the steering components of the vehicle as the
operator turned the steering wheel. Tr. 474, 482. Stanley inspected the Kubota again
in the repair shop. Tr. 486. Stanley testified that both times, he observed
impermissible play in the lower left ball joint. Id.
Stanley observed and concluded
that there was excessive wear and play in the lower left ball joint for three
reasons. Tr. 474-75, 482. First, the tires did not simultaneously turn with the
steering wheel. Tr. 474-75, 508. Stanley described this as hesitation or delay
in the steering. Tr. 474-75. Second, there were areas of shine on the ball
joint. Tr. 474, 508. Stanley observed that the shiny area was more than an
eighth of an inch. Tr. 483. He testified that this shine occurs when the tie-rod
end wears on the ball. Tr. 474. Finally, Stanley observed that there was in
excess of an eighth of an inch of play on the joint. Tr. 474, 480.
Stanley did not use a dial indicator or any other tool to assist his
measurements during either inspection. Tr. 483, 487, 507. Instead, he examined for separate movement in
steering components. Tr. 474-75, 487,
498. Stanley testified that an excess of an eighth of an inch of play contravenes
MSHA out-of-service criteria. Tr. 507-08. Stanley was unable to verify where the standard
for an eighth of an inch of play could be found in writing. Tr. 511-12. Stanley
further testified that the day before the hearing, he learned from Kubota’s
service personnel that a steering linkage component with any play must be
replaced immediately. Tr. 475, 507, 510.
After
observing excessive wear on the ball joint of a Kubota vehicle, inspector
Stanley issued Citation No. 8439454 for a violation of 30 C.F.R. § 75.1914(a),
which requires that all diesel equipment be maintained in proper operating condition.
Tr. 465, 476. Stanley determined that the violation was S&S and contributed
to a loss of steering hazard that was reasonably likely to result in a lost
workdays or restricted duty injury for one miner as a result of Respondent’s
moderate negligence. P. Ex. 107; Tr. 476-77. The Secretary proposed a penalty
of $1,026.
The Kubota was driven at
speeds up to approximately 21 miles per hour (mph) in the mine. Tr. 500, 503. When
underground, the Kubota was driven on a rough, concrete travel road, with potholes
and a steep decline of approximately 3000 feet. Tr. 477, 501-02. Stanley
described the slope as having at least an eight-percent grade. Tr. 478. He
testified that an excessively worn and unrepaired ball joint will cause “the
steer tire [to] most likely fold over and lay down… [resulting in a] complete
loss of steering on the vehicle.” Tr. 477. Stanley determined that such a
hazard was likely to cause injury to the Kubota operator or one of the pedestrian
miners clearing coal near the conveyor belt along the travelway.
Tr. 477-79. The latter type of injury would
result from the Kubota either striking a miner or pinching a miner against other
structures. Tr. 478. Stanley testified that the brakes on the Kubota were in
good working condition, and that operators generally drove at speeds consistent
with road conditions. Tr. 499-500.
Stanley opined that the
condition needed more than one day to develop. Tr. 479. He further testified
that the wear would not likely be discovered during weekly inspections. Id. Stanley
did not recall whether Respondent’s miners made any statements about mitigating
factors when he issued the citation. Tr. 488. Without evidence indicating how
long the condition actually existed, Stanley classified the Respondent’s
negligence as moderate. Tr. 479.
The citation was abated later
that day when the tie-rod end and the ball joint were replaced. Tr. 480, 488. Stanley
did not take measurements after abatement, although he did go under the Kubota to
examine the repair. Tr. 498.
2.
The Testimony from Respondent’s Witness
a.
Schilke’s Testimony
As
noted, Schilke accompanied Stanley during the
inspection. Tr. 560. Schilke testified that he did
not recall if Stanley initially examined the vehicle. Tr. 563. Schilke then testified that Stanley observed the steering
while Jeff Wilkins, the Kubota operator, was directed to turn the steering
wheel. Tr. 560, 563-64.
According to Schilke, after Stanley’s inquiry, Wilkins told Stanley that
Wilkins had checked the Kubota prior to use and found no issues with the
steering. Tr. 560-61, 624, 627. Stanley then directed Wilkins to drive the
Kubota to the repair shop. Tr. 561-62. Schilke
observed no problems with the steering as Wilkins drove the vehicle to the shop.
Id., Tr. 624. At the shop, the
vehicle was lifted and the ball joints were examined. Tr. 561, 567. There Schilke observed movement in the ball joint, although
neither he nor Stanley used an instrument to quantify how much movement was
present. Tr. 561-62, 567-68, 621, 625. Schilke opined
that the movement was less than an eighth of an inch, or less than the
thickness of a quarter. Tr. 568, 622, 625. Schilke conceded
that the movement would get worse over time if not repaired. Tr. 625.
Schilke testified that the Kubota that Wilkins drove was very
similar to the Kubota that Schilke drove. Tr. 565-66;
see R. Ex. 5 (photograph of Schilke’s Kubota). Schilke described the brakes on the Kubotas
as “pretty good.” Tr. 566. The Kubotas have hydrostatic transmissions, which slow down the
vehicles when pressure is removed from the gas pedal. Id. Finally, Schilke described the
concrete slope in the mine as rougher than an interstate, with a rutted and
grooved surface. Tr. 636.
When
asked on direct examination to offer any mitigating circumstances, Schilke testified that the movement of the ball joint had
little impact on the steering. Tr. 569. He also mentioned that any impact on
steering was further reduced by the soft tread of the tires on the soft clay
floor of the mine. Id. Finally, Schilke reiterated that Wilkins had driven the Kubota down
to the seals of the mine and back, and that Wilkins had found no difficulty
with steering. Id.
Schilke also testified that he spoke with a mechanic for Respondent after Stanley issued the citation. The mechanic did not testify at hearing. Schilke testified that the mechanic told him that he would not have allowed an unsafe Kubota to go underground. Tr. 627, 637. According to Schilke’s testimony, the mechanic was of the opinion that the Kubota was safe because Wilkins had told him that the steering worked fine. Id. Schilke further testified that the mechanic told him that although the Kubota manufacturer wants no movement in the ball joint, in practice, vehicles that are used in a mine experience similar movement. Tr. 561-62, 566. Schilke later conceded on cross-examination that the steering in a private vehicle is very different from the steering in a Kubota. Tr. 620.
b.
Jeff Wilkins’ Testimony
Jeff Wilkins was a mine examiner
for Respondent.[25]
Tr. 683. Wilkins operated the Kubota in question every day. Tr. 685-686, 697. On
the date of the inspection, Wilkins conducted a pre-operational check of the
Kubota. Tr. 687. This check included an examination of the steering, which he
performed by turning the wheel back and forth to ascertain any slack.[26]
Tr. 687-88. Wilkins stated that a visual inspection of the ball joint while the
wheel was turned was not necessary to detect movement in the ball joint. Tr.
688-89. Instead, the movement would
manifest as play in the steering wheel. Id.
Wilkins testified that without turning the wheel, he would not notice wear in
the ball joint, unless it was substantial. Tr. 699. Wilkins claimed that he
would notice gradual slack in the Kubota’s steering over time. Tr. 698. Wilkins
further testified, consistent with Schilke’s account,
that Wilkins did not notice any problems with the steering during his
pre-operational check of the vehicle. Id.
After concluding his
pre-operational check, Wilkins drove his Kubota underground for approximately
one hour. Tr. 689-90. He described the
underground path driven as a fairly steep slope, with smooth and rough patches,
with rough conditions encountered where rocks fell off beltlines and along
intake ways. Tr. 695-96. He testified that the Kubota was a slow-moving vehicle
and he experienced no problems with the steering or the brakes. Tr. 690-91,
701.
Wilkins contrasted
his trip on the day of the citation with an earlier experience that he had driving
a Kubota with faulty steering. Tr. 692. In the later instance, Wilkins noticed the
steering arm loosen and jerk when he drove over a rough area. Id. He testified that without repair, such
a steering arm may disconnect from the steering jack, forcing the vehicle to
halt instantly. Id. Wilkins testified
that the Kubota automatically stops when the wheel is turned and the operator
removes his foot from the gas. Tr. 693.
Contrary to
Schilke’s testimony, Wilkins testified that he did
not operate the Kubota around Stanley. Tr. 696. Rather, Wilkins testified that he left the
Kubota after returning to the surface. Tr. 693-94. Wilkins was not present for
Stanley’s initial inspection of the vehicle or for the inspection that occurred
in the repair shop. Id. When Wilkins returned to the vehicle,
Stanley and Schilke had already decided to relocate
the vehicle to the repair shop. Id.
B. Analysis and Disposition
1.
The Violation of § 75.1914(a)
Section 75.1914 imposes two duties upon an operator: (1) to maintain machinery and equipment in safe operating condition, and (2) to remove unsafe equipment from service. Derogation of either duty violates the standard. Peabody Coal Co., 1 FMSHRC 1494, 1495 (Oct. 1979). The Kubota cited by inspector Stanley was mobile equipment. It is undisputed that such mobile equipment was in service when cited. The dispute is whether the Kubota was maintained in safe operating condition. I find that the Kubota was not maintained in safe operating condition and was not removed from service. Accordingly, I find the violation.
Equipment is in unsafe operating condition when a reasonably prudent person familiar with the factual circumstances surrounding the alleged hazardous condition, including any facts peculiar to the mining industry, would recognize a hazard warranting corrective action within the purview of the applicable regulation. Ambrosia Coal & Construction, 18 FMSHRC 1552, 1557 (Sept. 1996) (citing Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982) (applying identical standard in underground coal mines)).
The Commission has recognized that movement in steering linkage ball joints alone can rise to the level of a hazardous defect. See LaFarge North America, 35 FMSHRC at 3500 (applying § 56.14100(c), which concerns defects that make continued operation hazardous, and remanding to determine amount of movement in ball joints and whether such amount constitutes a hazardous defect). Stanley credibly testified that MSHA finds violations where there is excess play in the ball joint. Tr. 507. Both Stanley, and through Schilke’s hearsay admission, Respondent’s mechanic, reported that the Kubota manufacturer requires no movement in the ball joint. Tr. 475, 561. In addition, I take administrative notice of the North American Standard Out-of-Service Criteria, issued by the Commercial Vehicle Safety Alliance.[27] This manual provides that a vehicle is to be taken out of service if any of its ball and socket joints exhibit “any motion, other than rotational, between any linkage member and its attachment point of more than 1/8 inch (3.2 mm) measured with hand pressure only” or if any tie rod exhibits “any looseness in any threaded joint.” Commercial Vehicle Safety Alliance, North American Standard Out-of-Service Criteria, at 44 (revised April 2010).
I credit inspector Stanley’s testimony that there was impermissible movement in the lower left ball joint. A simple visual inspection by Stanley as the operator turned the wheel revealed a hesitation in steering, while the shine on the ball joint itself supplied physical evidence of wear. Tr. 474. Schilke corroborated the play in the ball joint when recalling the examination conducted in the repair shop. Tr. 561-62. The operator, Wilkins, used the Kubota after conducting a pre-operational examination, which he admits did not include a visual examination of the ball joint, and failed to reveal the play in the ball joint. Tr. 687-89.[28] Neither side disputes that, if left unchecked, the movement would grow worse over time. Tr. 477, 625. Accordingly, I find that excess play in the ball joint as visually observed by inspector Stanley constitutes a hazard making continued operation of the Kubota unsafe and requiring its removal from service.
I discredit the recollection of Respondent’s witnesses concerning the ball joint examination. Respondent’s witnesses contradict themselves and each other with regard to the Kubota’s inspection. Schilke alleged that he could not recall Stanley’s examination of the Kubota’s steering, and then immediately proceeded to describe the inspection. Tr. 563-64. Although Wilkins did not remember participating in the inspection, both Stanley and Schilke confirmed the participation of Wilkins during Stanley’s inspection. Tr. 482, 560-64, 693.
Based on my review of the testimony, I find that the Secretary proved by a preponderance of the evidence that Respondent violated § 75.1914(a) by failing to maintain the Kubota in safe operating condition, and by failing to remove it from service.
2.
The Violation was Significant and Substantial
a.
There was a Violation of a Mandatory Safety Standard
For the reasons explained above,
I find the underlying violation of mandatory safety standard § 75.1914(a).
b.
The Violation Contributed to a Discrete Measure of
Danger to Safety
My finding of a violation supports a finding of a discrete measure of danger to safety as the standard violated requires a failure to maintain mobile equipment in safe operating condition. Accordingly, if the Kubota is not maintained in safe operating condition, there is necessarily a discrete measure of danger to safety. This conclusion is supported by the fact that MSHA, the Kubota manufacturer, and the North American Standard Out-of-Service Criteria manual require that vehicles with ball joints exhibiting excessive wear must be immediately repaired or removed from service. Tr. 507, 475. Furthermore, Stanley credibly testified that such a ball joint, if left unrepaired, would fail and result in compromised steering and control over the vehicle. Tr. 477. Accordingly, I find that the second Mathies factor is satisfied.
c.
The Violation Contributed to a Hazard That was
Reasonably Likely to Result in Injury
Regarding the third Mathies factor, the Secretary demonstrated that the hazard contributed to by the violation, i.e., loss of steering of a Kubota within the mine, was reasonably likely to result in an injury. Schilke and Wilkins testified that Kubotas are slow to a stop when pressure is removed from the gas pedal. Tr. 499, 692-93. However, a Kubota driven at speeds up to approximately twenty-one miles an hour on rough mine roads at an eight degree slope with undiscovered excess wear on the ball joint, is reasonably likely to contribute to compromised steering and loss of control of the Kubota, which hazard is reasonably likely to result in injury to the driver or injury to a miner working nearby. The driver is exposed to injury due to the excessive wear in the ball joint, which contributes to a compromised or loss-of-steering-control hazard that would likely result in collision with an object or rib and injury to the driver. Further, Stanley’s testimony credibly establishes that miners working along the conveyer belt adjacent to the travelway were exposed to injury from a collision due to the loss of control of the Kubota. In these circumstances, the loss-of-control hazard contributed to by the violation, was reasonably likely to result in injury during continued operation of the Kubota with excessive wear in the ball joint.
d.
There was a Reasonable Likelihood That the Injury in
Question Will Be of a Reasonably Serious Nature
With regard to the fourth Mathies
factor, I find a reasonable likelihood that any such injury would be of a
reasonably serious nature. The loss-of-control hazard contributed to by the
failure to maintain the Kubota in safe operation condition was reasonably
likely to result in a collision with associated serious or fatal injury to the
Kubota operator or pedestrian miners working nearby. The Kubota is large enough
to seat two people and has a dump bed in the back. See R. Ex. 5. A collision with a miner, the rib, or other equipment
would likely be serious or fatal. A miner struck by the Kubota and pinned
against the vertical supports within the mine would likely suffer serious
injuries. Accordingly, the Secretary has shown a reasonable likelihood that an
injury resulting from the hazard contributed to by the violation was reasonably
likely to be serious or fatal.
3.
Respondent’s Negligence was Appropriately Designated
as Moderate
As discussed above, a reasonably
prudent operator engaging in appropriate buddy-checks of steering linkage
components should have been aware of the cited condition. Based on the
testimony and briefs, I do not find considerable mitigating circumstances that
would justify reducing the negligence designation from moderate to low. Respondent’s
assertion that the soft floor of the mine would reduce the impact of
malfunctioning steering is not persuasive. There was no evidence that the floor
disturbed the speed or performance of a Kubota in safe operating condition. Therefore,
I discredit Schilke’s inference that the same floor would
hinder a Kubota with compromised steering. Tr. 569. Further, the assertion that
the Kubota’s operator (Wilkins) noticed no defect in the steering that day does
not eliminate the likelihood of the danger. Rather, the insufficient
examination procedure supports at least a moderate negligence designation. Respondent’s
Kubota operator failed to perform any visual examination the vehicle, much less
while another person turned the wheel. Tr. 699. In these circumstances, I find
that the Secretary properly designated the Respondent’s level of negligence as
moderate.
4.
Civil Penalty for Citation No. 8439454
Applying
the penalty assessment criteria set forth in section 110(i) of the Mine Act, I
find that Respondent mined 7,528,061 tons of bituminous coal in 2012. The parties stipulated that the originally
proposed penalty of $1,026 will not affect Respondent’s ability to remain in
business. MSHA recognized Respondent’s good-faith compliance in abating the
citation. I have affirmed MSHA’s gravity, negligence, and S&S determinations.
After consideration of the penalty assessment criteria set forth in section
110(i) of the Act, I assess a $1,026 civil penalty against the Respondent for
Citation No. 8439454.
VII. Citation
No. 8452203
A. Findings
of Fact
1.
Inspector Horseman’s Testimony
After observing a missing portion of an emergency lifeline, MSHA inspector Steven Paul Horseman[29] issued Citation No. 8452203 for a violation of 30 C.F.R. § 75.380(d)(7)(i), which requires that lifelines be installed and maintained throughout the entire length of the escapeway. Tr. 465, 476. Stanley determined that the violation was S&S and contributed to an inability-to-timely-escape hazard that was reasonably likely to result in injuries affecting thirty miners as a result of Respondent’s moderate negligence. Tr. 156, 162-63. The Secretary proposed a penalty of $13,268.
On September 8, 2013, Horseman
conducted an EO2 section 103(i) spot inspection, while being accompanied by
safety manager Schilke. 30 U.S.C. §813(i); Tr. 517;
P. Ex. 109. On the way toward headgate seven,
Horseman lost sight of the lifeline along the East Mains travel road. Tr. 517. He
asked Schilke to pull over and the two of them
located the lifeline one entry over in the secondary escapeway.
Tr. 517, 529. They returned to their
vehicle and followed the lifeline until they found a break in the line. Id. The lifeline dangled from the
ceiling, approximately five feet above the ground. Tr. 517-18. The other end of
the line was located approximately 160 feet away. Tr. 518. Horseman measured
the gap between the ends of the lifeline, while Schilke
found replacement line. Id. With the
extra line, Horseman and Schilke connected the two
ends of the lifeline. Id., 525-26.
Horseman
issued Citation No. 84522036 for a § 75.380(d)(7)(i) violation. Tr. 519. §75.380(d)(7)(i)
requires lifelines to be installed and maintained throughout the entire length
of the escapeway. Id.
A lifeline is typically a durable, nylon rope. In the event of an emergency, a
lifeline provides disoriented miners with a tactile method of escape if the
entry fills with smoke. Tr. 520. The lifeline has cones and reflective lights
that direct the miner towards the exit near the slope. Tr. 543-45; 30 C.F.R. §
75.380(d)(7)(iii-v).
Horseman opined that all lifeline citations are not automatically
S&S. Tr. 526. He designated the
instant violation as S&S because he determined that the violation
contributed to a hazard that was reasonably likely to result in fatal injuries
affecting 30 miners. Tr. 523-24. With respect to likelihood, Horseman testified
that the lifeline would only be used in the event of an emergency. Tr. 523. If
a fire or explosion occurred, Horseman testified that it would not be unusual
for ventilation control devices to fail. Id. With
failed ventilation, Horseman testified that miners would inhale toxic fumes
from smoke, or find themselves in a buildup of carbon monoxide. Id. Even assuming sufficient time
to don self-contained self-rescuers (SCSRs), Horseman noted the reduced
efficacy of these devices should the miners panic or fumble during the emergency.
Tr. 523. He recalled an incident from his own experience as a miner when a
smoke-filled entry limited visibility to the point where “you could not see
your hand in front of your face.” Tr. 521. He testified that in such
conditions, 160 feet of missing lifeline would prevent a miner from locating
the other end of the lifeline and escaping the mine. Id. Additionally, he testified that the miners may not
have been aware that the lifeline changed entries, which left them susceptible
to further disorientation. Tr. 522. Given these conditions, Horseman believed
that fatal injuries were reasonably likely. Tr. 523. With respect to the number
of persons affected, Schilke informed Horseman that
three loading crews comprised of ten miners apiece were working inby the missing lifeline. Tr. 524.
Horseman designated the Respondent’s negligence as
moderate. Id. He made this designation
because he could not determine how long the condition existed. Tr. 524-25. He conceded
that of the 35,000 feet of secondary escapeway, he
found only 160 feet of the lifeline that was missing. Tr. 542-43. He confirmed
that Respondent held escape drills for miners to familiarize themselves with
using the escapeways. Tr. 547. Additionally,
Respondent’s vehicles had tethers. Id.
A tether allows miners to stay attached to one another in case a single miner
grows disoriented. Tr. 547-49.
2.
The Testimony from Respondent’s Witnesses
a.
Schilke’s Testimony
Schilke confirmed that a portion of the
lifeline was missing in the East Mains #1 travelway. Tr.
570-72. Schilke did not know how the condition
occurred, or for how long it had existed prior to discovery by Horseman. Tr.
601-02. Schilke
admitted that he traveled that route daily and had not discovered the condition.
Tr. 615. The mine records did not contain any notations regarding the missing lifeline.
Tr. 602. The cited condition was in an area where tractors were driven all day
long, including the third-shift tractors, which had passed through the area
before the inspection. Tr. 602-03. Schilke did not
find the disconnected section of the lifeline and speculated that it could have
been dragged away by a passing vehicle. Tr. 612-15. The remaining ends of the
lifeline, normally at shoulder height, were on the ground. Tr. 613-14.
Schilke testified about the location of the missing
lifeline. If one walked towards the exit of the mine, the lifeline primarily followed
the direction of the travel road. Tr. 600. The travel road headed north before
turning west into the #3 entry of the East Mains #1 route. Id. The lifeline did not turn with the travel road, but continued
into the #2 entry before turning west. Tr. 601. This detour ran parallel to the
travel road and past three crosscuts. Id. The gap in the lifeline occurred
within this detour in the #2 entry. Tr. 578, 599-601. The detour turned south
down the #29 crosscut to rejoin the travel road in the #3 entry. Tr. 597-601; see R. Ex. 11. A miner, who followed the lifeline into the #2 entry,
needed to walk through two crosscuts to find the other end of the line. Tr.
574-75.
Schilke testified that the miners were aware of the detour because the
lifeline had followed that path since the area was developed. Tr. 610. He
conceded, however, that miners would not be expecting the section of the
lifeline to be missing. Tr. 611. Schilke opined that miners, who encountered a gap in the lifeline, would
continue forward following the flow of air rather than choose to retrace their
path to rejoin the travel road. Tr. 608. However, he admitted that in an
emergency, the direction of air can change, thus preventing miners from using
air courses as directional indicators. Tr. 616. Nonetheless, he opined miners
would know which direction they were walking because the mine graded up as it
headed outby. Tr. 616-17.
According to Schilke, if the miner could not
find the other end of the line, he or she would eventually hit stoppings placed
west and north of the detour through the #2 entry.[30] Tr. 596, 608. Thus,
disoriented miners would eventually be forced to turn south or return east in
the direction from which they came. Tr. 596-98, 608. When choosing between
these options, Schilke opined that the miners would
not return east in the direction from where smoke traveled. Tr. 608. The
remaining direction, south, would lead the miners to the travel road. Tr.
596-97, 608.
The self-contained
self-rescuers (SCSRs) are equipped to last from forty-five minutes to an hour. Tr.
617. Schilke recalled that the nearest self-rescuer
caches were approximately 2,500 feet inby the missing
lifeline, and 3,000 feet outby the missing lifeline. Tr. 640-42. As noted, the
height of the mine is generally nine to ten feet. Tr. 619. Schilke estimated
that it would take approximately an hour to travel about 5,700 feet, although
some miners may move more slowly than others. Tr. 619, 637, 644. Additionally, disoriented
or lost miners may take longer to reach a cache. Tr. 644-45. According to Schilke, the distance from the three working sections to
the missing lifeline was 15,000 feet. Tr. 618. The distance between the missing
lifeline and the slope exit of the mine was about another 15,000 feet. Tr.
617-18. On foot, it would take a miner nearly three hours to reach the slope
from the missing lifeline. Tr. 619, 637.
Schilke opined that directional signals on the lifeline and Respondent’s
safety protocols reduced the danger of the violation. On either end of the missing
lifeline section, Respondent’s lifeline had cones and reflectors that indicated
the direction towards the exit. Tr. 572-73, 614. The reflectors were visible in
the cited area. Tr. 573-74. Reflectors were spaced every twenty-five feet and were
attached to either a cone or the lifeline itself. Tr. 573. Schilke recalled
that the cones were spaced every 100 feet. Tr. 573. The cones were situated on
the lifelines so that a miner’s hand would slide smoothly over the tip of the
cone towards the base as the miner traveled towards the exit. Tr. 573. If a miner
traveled in the wrong direction, the miner’s hand would stop against the base
of the cone. Tr. 573.
Additionally, Schilke testified that escaping miners would not rely
solely on lifelines during an emergency situation. Tr. 609. He testified that in
the event of an emergency, the ideal method for escape was by vehicle. Tr. 574,
604-05, 609. He further testified that an escaping vehicle would continue along
the main travelway, rather than detour into the
adjacent entry to follow the lifeline. Tr. 574. Depending on the level of
smoke, however, Schilke was uncertain whether the
vehicle could drive down the secondary escapeway. Tr.
611-12. Schilke opined that a pedestrian miner would exit
the mine along the main travelway, rather than follow
the lifeline. Tr. 574-576. He conceded, however, that a miner might become
disoriented, panic, and become lost in an emergency. Tr. 611, 644-45.
Schilke confirmed that Respondent held escapeway
drills every ninety days and instructed miners to use tethers to keep together
during a mine evacuation. Tr. 603-605, 609, 611. Additionally, he testified
that signs labelling the crosscut numbers would indicate a miner’s location. Tr.
573-74. Schilke maintained that these precautions,
combined with the miner’s knowledge of the mine’s topography and air flow, were
sufficient for miners to find their way out of the mine in an emergency
situation. Tr. 608-10.
B. Analysis and Disposition
1.
The Violation of § 75.380(d)(7)(i)
Section 75.380(d)(7)(i) provides
that a continuous directional lifeline must be installed and maintained
throughout the entire length of each escapeway. 30
C.R.F. § 75.380(d)(7)(i). Neither side contests that
a portion of the lifeline was missing. Tr. 572; see R. Ex. 14 (missing lifeline denoted in red). The missing
portion of the line was approximately 160 feet. Tr. 518. A A
missing portion or gap in the lifeline makes it non-continuous under the plain
meaning of the standard and creates a violation of § 75.380(d)(7)(i).
Respondent argues that the violation
was not S&S because the missing portion of the lifeline was relatively
small compared to the full length of the line, and because additional safety
measures were adequate to ensure the safe evacuation of the miners.
2.
The Violation was Significant and Substantial
a.
There was a Violation of a Mandatory Safety Standard
For the reason explained above,
I find the underlying violation of mandatory safety standard § 75.380(d)(7)(i).
b.
The Violation Contributed to a Discrete Measure of
Danger to Safety
With regard to the second Mathies factor, the violation created a discrete safety
hazard or measure of danger to safety. The Commission has found that an
accurate description of the hazard contributed to by an inaccessible lifeline
is “the danger of not being able to access or use the lifeline in the event of
an emergency where visibility is reduced and miners must rely upon the tangible
nature of the lifeline to quickly and safely escape the mine.” Black Beauty Coal Co., 36 FMSHRC 1121,
1124 (May 2014). This description supports the Commission’s earlier
understanding of the hazard as “miners not escaping quickly in an emergency
with attendant increased risk of injuries due to a delay in escape.” Cumberland, 33
FMSHRC at 2346, aff’d sub nom., Cumberland Coal Res., LP v. FMSHRC, 717
F.3d 1020 (D.C. Cir. 2013). I find that a 160-foot gap in the lifeline is a significant
and substantial hindrance that contributes to the hazard of not being able to
use the lifeline to escape the mine in an emergency situation.
Respondent argues that an S&S designation is inappropriate because
160 feet of missing lifeline is a small percentage of the length of the entire
lifeline. R. Br. 20-21. The
percentage of uninterrupted line is essentially immaterial to the impact that a
160-foot break in the line would have on escaping miners. In Black
Beauty, the Commission found that 110 feet of inaccessible lifeline was
reasonably likely to contribute to an inability-to-timely-escape hazard that
would result in injury. Black Beauty, 36 FMSHRC at 1124-25. Given the
greater length of missing lifeline in the present case, I find that 160 feet of
missing lifeline supports my S&S finding for this violation.
Respondent also argues that its miners would use quicker alternatives to escape, and that their knowledge of the primary escapeway would keep them on the quickest path towards the exit, allowing them to disregard the lifeline entirely. I reject this argument. Although the Commission has not yet defined the weight that must be given to the presence of additional safety precautions, the Commission discounts the argument that additional safety measures prevent an S&S finding. See Brody Mining, 37 FMSHRC at 1691 (stating that evidence of redundant safety measures has been consistently rejected as irrelevant); Black Beauty, 36 FMSHRC at 1125 n.5 (stating that additional safety measures do not prevent a finding of S&S); Cumberland, 33 FMSHRC at 2369 (stating that allowing redundant safety measures to provide a defense to a finding of S&S would defeat the purpose of any safety protection, and citing Buck Creek, 52 F.32 at 136). Thus, alternative safety protocols do not undercut the significant and substantial contribution that violations of mandatory standards have toward discrete safety hazards.
In the present case, I examine
the impact of a missing lifeline on a miner that must rely upon said lifeline
to quickly and safely exit the mine in an emergency situation. In short, I find
that the hazard contributed to by the violation was the prevention of a quick
escape from the mine by miners who were entitled to rely on a continuous
lifeline when escaping the mine during an emergency. Accordingly, the second Mathies factor is satisfied.
c.
The Violation Contributed to a Hazard That was
Reasonably Likely to Result in Injury
I find that the violation
contributed to the hazard that miners would become lost, disoriented, or otherwise
unable to quickly escape from the mine because of a compromised lifeline, and
that such hazard was reasonably likely to result in injury. The Commission
requires its judges to examine the S&S factors for lifeline violations
within the context of emergency conditions. Cumberland,
33 FMSHRC at 2357, aff’d Cumberland Coal
Res., LP v. FMSHRC, 717 F.3d 1020
(D.C. Cir. 2013). The Commission has discussed different hazards that are
reasonably likely to result in an injury because of a lifeline violation in an
emergency situation. Black Beauty, 36
FMSHRC at 1125 (inaccessible lifelines contribute to injuries that are
reasonably likely to result from hazards such as tripping or stumbling, an
interruption of ventilation, miner panic and disorientation during an
emergency, and excessive smoke filling a corridor as a result of an a fire inby). In the present case, should miners follow the
lifeline into the secondary escapeway, and should the
secondary escapeway fill with smoke, visibility may
be completely compromised. Because the gap in the lifeline occurs within the
secondary escapeway, miners will be unable to use the
lifeline to navigate out of the secondary escapeway in
conditions of reduced visibility, re-enter the primary escapeway
and continue exiting the mine via the primary escapeway.
Tr. 522; R. Ex. 11. Inspector Horseman testified that he personally experienced
a situation where smoke within the mine was so thick that he could not see his hand
in front of his face. Tr. 521. With such reduced visibility, locating a lifeline
160 feet away is a staggering and time-intensive obstacle to overcome. A miner
with little to no visibility and no lifeline is likely to be disoriented or
lost.
The Commission has discussed
different ways a lifeline violation in an emergency situation was reasonably
likely to result in injury. Black Beauty,
36 FMSHRC at 1125 (inaccessible lifelines contribute to injuries that may
result from hazards such as tripping or stumbling, an interruption of ventilation,
miner panic and disorientation during an emergency, and excessive smoke filling
a corridor as a result of an a fire inby). Should ventilation
fail in an emergency, miners may breathe toxic air or a buildup of carbon
monoxide. Tr. 523. The miners carry portable ventilation self-rescuers that only
last for forty-five minutes to an hour. Tr. 617. This time is reduced if the
miners fumble or panic in an emergency. Tr. 523. In an emergency, time spent
lost or disoriented due to a missing lifeline reduces precious air supply, may
prevent miners from reaching the next self-rescuer supply cache, or may thwart
them from escaping the mine entirely.
Respondent put on evidence that
it has adequate safety protocols and training to ensure that miners will not panic
in an emergency. Tr. 608-10. However, the Commission has reasoned that even
experienced miners “panic and become disoriented in an emergency.” Black
Beauty, 36 FMSHRC at 1124. I find
it likely that panic will exacerbate the consequences of reduced visibility or
limited ventilation.
I conclude that a miner who becomes
lost, disoriented, or delayed in locating a missing portion of the lifeline in
order to escape during a mine emergency is reasonably likely to suffer injury
from smoke inhalation, carbon monoxide inhalation, or entrapment during the emergency.
Accordingly,
the third Mathies factor is
satisfied.
d.
There was a Reasonable Likelihood That the Injury in
Question Will Be of a Reasonably Serious Nature
With regard to the fourth Mathies factor, any such injury from a
delayed escape from the mine is reasonably likely to be of a serious nature. Black Beauty, 36 FMSHRC at 1125 (“The
hazard of delayed or no escape at all due to an inaccessible lifeline in an
emergency is reasonably likely to result in serious or fatal injuries”); Cumberland, 717 F.3d at 1029 (“[T]he
lifeline violations at issue here would delay miners from escaping from an
emergency and that such a delay would be reasonably likely to cause serious
injuries or death”). The hazard of a delayed escape is supported by inspector
Horseman’s testimony. He reasonably determined that limited air supply from the
self-rescuers in a corridor filled with smoke and carbon monoxide, miner panic
and disorientation during an emergency, and reduced visibility are reasonably
likely to inhibit a timely escape from the mine. Tr. 523-24. I credit his testimony
that the prolonged inhalation of smoke and carbon monoxide during such an escape
from the mine is reasonably likely to be of a reasonably serious nature or
fatal. Id. Accordingly, the Secretary
has demonstrated a reasonable likelihood that any injury resulting from the
hazard contributed by the violation would be serious or fatal.
3.
Respondent’s Negligence is Raised from Moderate to
High
I find that Respondent’s negligence should
be raised from moderate to high. Respondent knew or should have known of the
missing lifeline and there are no mitigating circumstances. Initially, I note that
escapeways must follow “the most direct, safe and
practical route to the nearest mine opening suitable for the safe evacuation of
miners.” 30 C.F.R. § 75.380(d)(5).
The lifeline followed a circuitous route used by drivers to avoid a belt drive
that was once installed in the main travelway. Tr.
610. However, at the time of the citation, the belt was no longer within the travelway. Tr. 610. Respondent’s
failure to move the line to the primary travelway
indicates that Respondent paid little to no attention to the path of the line after
the belt drive was removed. Furthermore, Respondent failed to discover the
condition of the lifeline for an undetermined length of time.
The violation before me presents
more than a lifeline that was merely in poor condition. A portion of the
primary escapeway did not have a lifeline because the
lifeline took a detour into the secondary escapeway
that was costly in both time and distance for a miner escaping on foot. Within
that detour, 160 feet of lifeline was entirely absent. Schilke
testified that he traveled the route daily and did not notice the condition. Tr.
615. Respondent’s inability to definitively explain why the line was missing or
for how long the violation existed is not a mitigating circumstance, but
instead, is further evidence of a cavalier lack of care towards a condition
that is essential to the survival of miners in an emergency situation. Further,
Respondent’s ignorance raises the concern that a similar section of the
lifeline could go missing again without discovery. Finally, Respondent has not
justified its failure to maintain an intact lifeline -- a failure that
jeopardized the lives of thirty miners. I find that the Respondent should have
known of the violative condition and corrected it immediately as a top priority.
Accordingly, Respondent’s negligence is raised from moderate to high.
4. Civil Penalty
Applying
the penalty assessment criteria set forth in section 110(i) of the Mine Act, I
find that Respondent mined 7,528,061 tons of bituminous coal in 2012. The
Secretary originally proposed a penalty of $13,268 and the parties have
stipulated that the total proposed penalty from all seven citations equaling $39,500
will not affect Respondent’s ability to remain in business. MSHA recognized
Respondent’s good-faith compliance in abating the citation. I have affirmed MSHA’s S&S
determination. I have modified MSHA’s negligence determination from moderate to
high for the reasons stated above. After consideration of the penalty
assessment criteria set forth in section 110(i) of the Act, I assess a $25,000
civil penalty against the Respondent for Citation No. 8452203. Respondent’s new total penalty from the
combined citations is now $32,636. Given that this is lower than the total amount
which Respondent stipulated will not affect its ability to remain in business,
I find that this increase in penalty is appropriate and justified for the
gravity and severity of the violation and would not affect Respondent’s ability
to remain in business.
VIII. ORDER
It is ORDERED that Citation No. 8451651 be MODIFIED to reduce the level of negligence from high to moderate.
It is ORDERED that Citation No. 8439446 be AFFIRMED, as written.
It is ORDERED that Citation No. 8432319 be AFFIRMED, as written.
It is ORDERED that Citation No. 8439454 is AFFIRMED, as written.
It is ORDERED that Citation No. 8452203 be MODIFIED to raise the level of negligence from moderate to high.
It is ORDERED that the operator pay a total penalty of $32,636[31]
within thirty days of this decision.[32]
/s/
Thomas P. McCarthy
Thomas
P. McCarthy
Administrative
Law Judge
Distribution:
Marty J. Gayer, Conference & Litigation Representative,
U.S. Department of Labor, MSHA, 2300 Willow St, Suite 200, Vincennes, IN 47591
Christopher D. Pence, Esq., Eric L. Silkwood,
Esq., Hardy Pence PLLC, 500 Lee St. East, Ste. 701, Charleston, WV 25301
Jason Grover, Esq., Office of the Solicitor, U.S. Dept. Of
Labor, 11—Wilson Blvd., 22nd Floor West, Arlington, VA 22209
Daniel McIntyre, Esq., U.S. Dept. of Labor, Office of the
Solicitor, 1999 Broadway, Ste. 800, Denver, CO 80202
Thomas J. Motzny, Esq., U.S. Depot. Of Labor, Office of the
Solicitor, 211 7th Ave. North, Ste. 420, Nashville, TN 37219
[1] Both citations alleged
that Respondent violated Section
75.821(a) because chip alerts were not working on longwall
equipment. A mule train is comprised of several pieces of equipment that
distribute power to the longwall. Tr. 53. Power
enters the unit through a disconnect box, which can be switched on or off, and
then travels to the power centers within the mule train. Tr. 55. Chirp alerts indicate that the equipment is
energized by making a chirping noise and emitting a flashing light. Tr. 32-33.
On the cited disconnect box in Citation No. 8443200, the chirp alert failed to
make the chirping sound. Tr. 37. On the cited power center in Citation 8443901,
the chirp alert failed to make the chirping sound and the flashing light
failed. Id. MSHA inspector John
Butcher testified that without notification from the chirp alerts that a piece
of equipment is energized, the miners are at risk of fatal injuries from
electrocution. Tr. 65-66, 74-75. Essentially,
the Secretary argues that since the equipment was not being maintained, there
was a violation of Section 75.821(a). Section 75.821(a) requires that every
seven days, a person qualified to perform electrical work must test and examine
longwall equipment to determine that such equipment
is being properly maintained. 30 U.S.C. §75.821(a).
The Secretary failed to establish that Respondent did not assign a qualified person to test and examine the chirp alerts within the last seven days to ensure that the equipment was being properly maintained. Inspector Butcher conceded on cross examination that as far as he knew, the required testing was actually performed and that he was not alleging that the mine was not conducting the appropriate testing and examination, but merely alleging that the chip alerts on the inspected equipment were not working properly. Tr. 109.
Q: …As far as you know, the test that was
required every seven days was actually performed,
correct?
A: As
far as I know, yes.
Q: Okay.
And that’s not your allegation, is it, that the test—
A: No.
Q: —wasn’t
performed?
A: No.
Q: Okay.
So your—your allegation is — is not that the mine wasn’t conducting
examinations? Your allegation is — is, When I inspected this equipment,
the chirp alert wasn’t working, right?
A: Yes.
Q:
So there’s no dispute in your mind
that the tests that are required by [Section] 75.821(a)
were actually performed at the times required, correct?
A: Correct.
Tr. 109. In these
circumstances, I found that Respondent complied with the requirements of § 75.821(a), and granted Respondent’s motion
for directed verdict. Tr. 242-62.
[2] ALJ Exhibits (ALJ Exs.) 1-8,
Petitioner Exhibits (P. Exs.) 100-115, Respondent
Exhibits (R. Exs.)1-8 and 11, and Joint Exhibit (J.
Ex.) 1 were received into evidence. Tr. 10, 19-20, 304. R. Exs.
9 and 10 were not offered into evidence. Tr. 757.
[3] In resolving
conflicts in testimony, I have taken into consideration the demeanor of the
witnesses, their interests in this matter, the inherent probability of their
testimony in light of other events, corroboration or lack of corroboration for
testimony given, experience and credentials, and consistency, or lack thereof,
within the testimony of witnesses and between the testimony of witnesses.
[4] See also id. § 814(e), the Mine Act’s
pattern-of-violations provision, which is the only other provision that mentions
S&S, and which defines the term the same way as § 814(d)(1).
[5] The Commission has consistently reiterated that the
inspector’s judgment is an important element of the S&S determination.
However, the concept has generally been raised in the context of deferring to
the inspector’s opinion that a violation was S&S, rather than in the
context of examining whether the inspector exercised independent judgment in
forming this opinion as opposed to merely following the “mechanical approach”
advanced by the Secretary and rejected by the Commission in National Gypsum, 3 FMSHRC at 825. See, e.g., Wolf Run Mining Co., 36 FMSHRC 1951, 1959 (Aug. 2014); Maple Creek Mining, Inc., 27 FMSHRC 555,
563 n.6 (Aug. 2005); Harlan Cumberland
Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998).
[6] It is not completely clear whether redundant safety
measures are precluded from consideration such that it is error to take them
into account, which could make it difficult for judges at the trial level to
discharge their duty of considering all the particular facts surrounding the
violation, or whether arguments that rely on redundant safety measures are
simply disfavored as a defense to S&S. Compare Brody Mining, 37 FMSHRC at 1691 (stating that evidence regarding
redundant safety measures has been “consistently rejected as irrelevant”) with Black Beauty, 36 FMSHRC 1121, 1125 n.5
(May 2014) (stating only that such measures “do not prevent a finding of
S&S”) and Buck Creek, 52 F.3d at
136 (“The fact that Buck Creek has safety measures in place to deal with a fire
does not mean that fires do not pose a serious safety risk to miners.”).
[7] The Secretary’s citation/order form contains boxes
for inspectors to check the likelihood of injury and the expected severity of
injury immediately above the line where they designate the violation S&S or
non-S&S. Inspectors are trained not to designate a violation as S&S,
unless item 10.A on the form is marked “reasonably likely,” “highly likely,” or
“occurred,” and item 10.B is marked “lost workdays or restricted duty,”
“permanently disabling,” or “fatal.” See MSHA,
Program Policy Manual, Vol. I, §
104 (2003).
[8] It is debatable to what extent Austin Power and Buck Creek truly
stand for the proposition the Fourth Circuit seems to be embracing, which is
that the actual likelihood of injury is irrelevant, except to the extent
necessary to establish a “discrete” hazard at the second Mathies prong. In Austin
Power, the Fifth Circuit upheld an S&S finding for a fall protection
violation, reasoning that “[a] danger of falling is a necessary element of this
violation, so by the very nature of a violation there was a discrete safety
hazard.” 861 F.2d at 103. However, the hazard had actually occurred and had
resulted in a fatality, which may have influenced the Court’s failure to
require additional evidence of likelihood at the third Mathies prong. 861 F.2d at 100.
In Buck Creek, the Seventh
Circuit did not expressly discuss the proper application of the Mathies test, but simply rejected the
mine operator’s argument that the ALJ had not put enough emphasis on the third
and fourth Mathies factors when
evaluating S&S for an accumulations violation. 52 F.3d at 135. The ALJ had
made a finding at the second Mathies prong
(rather than the third) that there existed a confluence of factors, including
fuel sources and ignition sources, that could trigger a fire. Id. By contrast, in Knox Creek, the Fourth Circuit did not require a “confluence of
factors” analysis or a showing that an ignition source existed at any prong of
the Mathies test.
[9] But see
Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1027 (D.C. Cir. 2013)
(expressly declining to address validity of Mathies
test).
[10] At hearing, Lampley had been a certified mine inspector with MSHA for
seven years. He received a degree in Applied Science from Southern Illinois
University (SIU). Upon graduation, Lampley worked in
the automotive field and taught classes at SIU in automotive base, and
electrical theory and operation. Prior to his employment at MSHA, Lampley worked at American Coal performing general mining tasks
and maintenance. Tr. 140-41.
[11] MSHA ceased
its regular EO1 quarterly inspections and normal 103(i) spot inspections during
the 2014 government shutdown. Tr. 142. Nonetheless, Lampley
still conducted E16 spot inspections of the working areas of the mine. Id.
[12] Schilke was a certified
mine manager, examiner, instructor, and mine rescuer. 299-300. He worked for
Respondent since 2010 in a variety of roles. Tr. 299. He had a bachelor’s
degree in mining engineering from SIU. Tr. 299-300.
[13] There is some confusion about the correct crosscut
numbers. The crosscut referenced in the text above as no. 109 is referred to in
Lampley’s testimony as no. 108 and in Schilke’s testimony as no. 109. Similarly the crosscut referred
to herein as no. 110 is referred to in Lampley’s
testimony as no. 109 and in Schilke’s testimony as
no. 110. In the interest of clarity, I use Schilke’s numbers as
he was more certain about this issue at hearing.
[14] Electric face equipment must be permissible within
150 feet from pillar workings or longwall faces or in
return air outby the last open crosscut. 30 C.F.R. §§75.1002 and 75.507-1.
[15] Crum had 13-14 years of mining experience and had worked
at several companies in a variety of roles. Tr. 263-64. Crum was a certified
mine electrician, with face and examiner papers. Tr. 264. He was a member of
mine management and a stipulated agent of Respondent. Tr. 272.
[16] Phipps was a licensed, professional engineer and was
a certified mine examiner, manager, and fire boss. Tr. 323. His duties included
running the longwall on a day-to-day basis, planning
production, and dealing with MSHA inspectors. Tr. 323-324.
[17] A “gob” is an area of the mine where coal has been
removed and the roof and strata have been allowed to cave in. Tr. 177.
[18] Lampley did not personally
investigate the explosion and could not testify whether the majority of the air
samples taken at Upper Big Branch contained methane rather than natural gas, or
whether the gas originated from the face, or from another location, such as a
crack in the floor. Tr. 210-11.
[19] At the time of
the hearing, Stanley had been a coal mine inspector for MSHA for four years and
eight months. Tr. 461. Starting in December 1990, Stanley worked in potash
mining for sixteen to seventeen years. Id.
Thereafter, he worked in coal mining for approximately eight years. Id. Stanley graduated from high school
in 1980, worked in the military for four years, and completed his training at
the National Mine Safety and Health Academy. Tr. 461-62.
[20] Robertson had thirty-two years of experience in
mining. For six years before commencement of employment with Mach Mining,
Robertson was employed at Foresight Energy, which owns Mach Mining. Tr. 706. Before
that, he worked for Massey Energy for twenty-six years, and held positions in
engineering, safety, and operations. Id.
He supervised multiple mine sites and was president of one of Massey Energy’s large
resource groups. Tr. 706-07. He was certified in Ohio, New Mexico, and Illinois
as a foreman or mine manager. Tr. 707. Robertson was a MSHA instructor with
certifications in dust and noise. Tr. 707. He has a Bachelor’s Degree from
Marshall University in West Virginia. Id.
Robertson served in the Army Special Forces. Id.
[21] Inspector Bretzman was employed by MSHA as a special investigator for
two and a half years, and as an electrical specialist for five years. Tr. 394. Bretzman worked in mining since 1977. Tr. 395. He held
positions as a belt maintenance worker, a shieldman,
a mechanic, and a maintenance foreman. Id.
Additionally, Bretzman worked for a short time in the
electrical department for Joy Technologies, a mine manufacturing company. Id. Bretzman holds
an Associate’s degree and received his Bachelor’s degree from Southern Illinois
University in work force education and training. Tr. 396. He was a certified
mine examiner, who possessed a federal electrical card. Tr. 398.
[22] Key had been employed by Mach Mining since January
2007. Tr. 647. At the time of the citation, Key was certified as a mine
examiner and mine manager. Tr. 648. Prior to that, Key worked as a shearer
operator on the longwall at American Coal’s Galatia
Mine for 20 months. Tr. 646-48. Key had twenty years of mining experience. Tr.
647.
[23] Both Robertson and Bretzman
referred to a prior similar citation. Tr. 728-30, 749-50. Bretzman testified that the alarm light in the prior instance
was on a stage loader, and Robertson testified that the citation was for a
monorail alarm light. Id. The
particular equipment is not determinative in the present case.
[24] Mechanicsville
Concrete, Inc. t/a Materials Delivery,
18 FMSHRC 877, 880 (June 1996).
[25] Wilkins was employed with Respondent for seven and a
half years. Tr. 683. Apart from his position as an examiner, Wilkins worked as
an outby laborer and foreman. Id. Prior
to his employment with Respondent, Wilkins worked at three separate mines:
Willow Lake Mine, Eagle Valley Mine, and Sahara Mine. Tr. 683-84. Wilkins was a
certified examiner with an electrical card. Tr. 685.
[26] When the wheel turned, suspension rose and descended,
pivoting the ball joint that was threaded in the tie rod. Tr. 701-03. The ball
joint had a nut and cotter pin that were intact. Id.
[27] This manual is relied on and cited by the United
States Department of Transportation. 49 C.F.R. Pt. 385.4(b)(1)(2013); 79 F.R.
27766, (May 15, 2014). Under Commission precedent, judicial notice can be taken
of the existence or truth of a fact or other extra-record information that is
not the subject of testimony, but is commonly known, or can safely be assumed,
to be true. Union Oil, 11 FMSHRC 289,
300 n.8 (Mar. 1989).
[28]
Although Respondent was not cited for an
inadequate pre-operational inspection, I have determined in previous cases that
a proper pre-operational inspection of a ball joint requires one person
monitoring the steering linkage while another person moves the steering wheel. Extra Energy, 36 FMSHRC 2733, 2743 (Oct.
2014)(ALJ). Wilkins failed to conduct a
visual inspection of the ball joint while another person turned the wheel, or
vice versa.
[29] At the time of
hearing, inspector Horseman had been employed with MSHA for one year and eleven
months. Tr. 515. Apart from a four-year stint with a phone company, Horseman had
worked in mining since 1991. Tr. 516. He has experience in longwall
and continuous mining and has held various positions, including equipment
operator, examiner, IT specialist, electrician, and mine supervisor. Id.
[30] There was a stopping in the #2 entry inby the # 29 crosscut, which prevented miners from walking
further westward. Tr. 595-96. There were additional stoppings that blocked
access to the crosscuts and entries to the north of the #2 entry. One of the
stoppings in the crosscuts north of the #2 entry had a man door. Tr. 596. A man door allow miners to cross through a
stopping. Id. During normal production, man doors are
closed. Tr. 595-96.
[31] As noted herein, I assess a penalty of $5,081 for
Citation No. 5481651, $1,412 for Citation No. 8439446, $117 for Citation No.
8432319, $1,026 for Citation 8439454, and $25,000 for Citation No. 8452203.
[32] Payment should be sent to: Mine Safety & Health Administration,
U.S. Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO
63179-0390.