.
S & M CONSTRUCTION, INC
June 20, 1996
WEST 96-3
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
June 20, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 96-3
Petitioner : A.C. No. 48-01215-03521
v. :
: Coal Creek Mine
S & M CONSTRUCTION, INC., :
Respondent :
DECISION
Appearances: Ann Noble, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for the Petitioner;
Stephen Kepp, Safety Director, S & M Construction,
Inc., Gillette, Wyoming, for the Respondent.
Before: Judge Koutras
This proceeding concerns proposals for assessment of civil
penalties filed by the petitioner against the respondent pursuant
to section 110(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. � 820(a), seeking civil penalty assessments
for alleged violations of mandatory training safety standards 30
C.F.R. 48.25(b) and 48.26(a). The respondent filed a timely answer
and a hearing was held in Gillette, Wyoming. The petitioner filed
a posthearing brief, but the respondent did not. However, I have
considered its oral arguments made on the record in the course of
the hearing, as well as the arguments advanced by the petitioner.
Issues
The issues presented in this case are (1) whether the conditions
or practices cited by the inspector constitute violations of the
cited mandatory safety standards, (2) whether the alleged violations
were "significant and substantial" (S&S), and (3) the appropriate
civil penalties to be assessed for the violations,taking into account
the civil penalty assessment criteria found in section 110(i) of the
Act.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 U.S.C. � 801 et seq.,
2. 30 C.F.R. �� 48.25(b) and 48.26(a).
3. Commission rules, 29 C.F.R. � 2700.1 et seq.
Stipulations
The parties stipulated to the following:
1. The respondent is the owner and operator of the
subject mine.
2. The respondent is engaged in mining and selling of
coal in the United States, and its mining operations
affect interstate commerce. The mine is subject to
the jurisdiction of the Mine Act.
3. The Administrative Law Judge has jurisdiction in
this matter.
4. The subject citations were properly served by a duly
authorized representative of the petitioner upon an
agent of respondent on the dates and places stated
therein, and may be admitted into evidence for the
purpose of establishing their issuance, and not for
the truthfulness or relevancy of any statements
asserted therein.
5. The exhibits to be offered by respondent and the
petitioner are stipulated to be authentic, but no
stipulation is made as to their relevance or the
truth of the matters asserted therein.
6. The respondent demonstrated good faith in abating
the violations.
7. The respondent produced 3,356,712 tons of coal
in 1994.
8. The certified copy of the MSHA Assessed Violations
History (Exhibit P-1) accurately reflects the
history of the mine for the two years prior to the
date of the citations.
Discussion
Section 104(g)(1) "S&S" Order No. 3848781, issued at
5:30 p.m. on February 21, 1995, by MSHA Inspector Herbert A.
Skeens, cites an alleged violation of 30 C.F.R. 48.26(a),
and the condition or practice cited is described as follows:
The following employees have not received the
training required by 30 C.F.R. 48.26:
Derward Lint employed since 5/17/94.
Richard Chesmore employed since 1/17/95
Raymond Holzer employed since 6/24/94
John Milliken employed since 10/6/94
Bill Morris employed since 5/13/94
Craig Olson employed since 11/29/94
Richard Villmow employed since 6/14/94
Wilbert Williams employed since 5/31/94
Burt Gleason employed since 10/26/94
All of the cited miners were ordered to be withdrawn from
the mine. The order was modified on February 22, 1995, to allow
miners Williams, Villmow, Holzer, and Chesmore to return to work
because they received the required training. Miner Milliken was
allowed to return to work on February 23, 1995, after his newly
employed experienced miner training was documented. Except for
miner Morris, who was no longer employed at the mine, the remaining
miners were allowed to return to work on March 10, 1995, when their
newly employed experienced miner training was documented.
The respondent's answer states, in relevant part, as follows:
This order states 9 employees were inadequately
trained as experienced miners working at Coal Creek
mine. The order states that due to inadequate
training these individuals were reasonably likely
to be injured and that the injury would result in
a fatality.
In fact: The least experienced miner had 4 years
practicing his craft. Seven of the 9 have 15 years
experience in their craft. All nine individuals
had current training certificates issued by S&M
Construction. Seven of the nine individuals have
been employed by S&M for more than 4 years and had
received annual training during that time frame.
The Secretary's regulatory training requirements for miners
working at surface mines and surface areas of underground mines
are found in Part 48, Subpart B, Title 30, Code of Federal
Regulations. Section 48.26(a) provides as follows:
(a) A newly employed experienced miner shall
receive and complete training in the program
of instruction prescribed in this section before
such miner is assigned to work duties.
(b) The training program for newly employed
experienced miners shall include the following:
(1) Introduction to work environment. The course
shall include a visit and tour of the mine. The
methods of mining or operations utilized at the
mine shall be observed and explained.
(2) Mandatory health and safety standards. The
course shall include the mandatory health and safety
standards pertinent to the tasks to be assigned.
(3) Authority and responsibility of supervisors
and miners' representatives. The course shall
include a review and description of the line of
authority of supervisors and miners' representatives
and the responsibilities of such supervisors and
miners' representatives; and an introduction to the
operator's rules and the procedures for reporting
hazards.
(4) Transportation controls and communication
systems. The course shall include instruction on
the procedures in effect for riding on and in mine
conveyances; and controls for the transportation of
miners and materials; and the use of mine communi-
cation systems, warning signals, and directional signs.
(5) Escape and emergency evacuation plans;
firewarning and firefighting. The course shall
include a review of the mine escape system;
escape and emergency evacuation plans in effect
at the mine; and instruction in the firewarning
signals and firefighting procedures.
(6) Ground controls; working in areas of highwalls,
water hazards, pits, and spoil banks; illumination
and night work. The course shall include, where
applicable, an introduction to and instruction on
the highwall and ground control plans in effect at
the mine; procedures for working safely in areas of
highwalls, water hazards, pits, and spoil banks, the
illumination of work areas, and safe work procedures
for miners during hours of darkness.
(7) Hazard recognition, The course shall include the
recognition and avoidance of hazards present in the
mine, particularly, any hazards related to explosives
where explosives are used or stored at the mine.
(8) Such other courses as may be required by the
District Manager based on circumstances and conditions
at the mine.
Section 104(g)(1) "S&S" Order No. 3848782, issued at
8:05 a.m., on February 22, 1995, by Inspector Skeens, cites an
alleged violation of 30 C.F.R. 48.25(b), and the cited condition
or practice states as follows:
Judy Gerber and Jack Knoell have not received
new miner training required by 30 C.F.R.
48.25(b)(4)(8), and (12). Gerber has been
employed at the mine since May 11, 1995, and
Knoell since July 11, 1994. Both miners are
to be withdrawn.
Both of the cited miners were allowed to return to work on
February 24, 1995, when their new miner training was documented.
The respondent's answer states, in relevant part, as follows:
This order states 2 employees were inadequately
trained as inexperienced miners working at
Coal Creek Mine. The order states that due to
inadequate training these individuals were
reasonably likely to be injured and that the
injury would result in a fatality. Gerber, one
of the two individuals, was one of the first
people hired by S & M at Coal Creek. She received
her inexperienced miner training at the same time
the original hires did -- over a period of days.
She developed into our best, most versatile employee
before taking a temporary leave. And Knoell has
been a heavy machine mechanic for 20 years and
traveled with experienced S & M mechanics when he
first started working at Coal Creek.
30 C.F.R. 48.25(a) requires new miners to receive no less
than 24 hours of prescribed training, and except as otherwise
provided, the training shall be received before they are assigned
to work duties. Subsection (b) of section 48.25(a), requires the
training program for new miners to include the following courses:
(1) Instruction in the statutory rights of
miners and their representatives under the Act;
authority and responsibility of supervisors.
(2) Self-rescue and respiratory devices.
(3) Transportation controls and communication
system.
(4) Introduction to work environment.
(5) Escape and emergency evacuation plans;
firewarning and firefighting.
(6) Ground control; working in areas of
highwalls, water hazards, pits and spoil banks;
illumination and night work.
(7) Health.
(8) Hazard recognition.
(9) Electrical hazards.
(10) First aid.
(11) Explosives.
(12) Health and safety aspects of the tasks to
which the miner will be assigned.
(13) Such other courses as may be required by
the District Manager based on circumstances and
conditions at the mine.
Petitioner's Testimony and Evidence
MSHA Inspector Herbert A. Skeens testified that he has
been so employed for three and one-half years, and previously
worked in the mining industry for 18 years. He is a high
school gradu -ate, attended the MSHA Academy in Beckley ,
West Virginia, and has Virginia and Kentucky mine foreman's
certificates (Tr. 10-12). He confirmed that he conducted a
"spot inspection" at the mine in February, 1995, for the purpose
of reviewing the Part 50 reporting and Part 48 training records,
and that respondent's representative Steve Kepp accompanied him.
Mr. Skeens described the mine as an open pit surface coal mine,
and stated that the respondent began operating it sometime
in April or May 1994
(Tr. 13).
Mr. Skeens confirmed that he issued the two contested orders
in question. He explained that Mr. Kepp provided him with
the information regarding employee training records,
including MSHA training certificate 5000-23 forms. Mr.
Skeens stated that he reviewed the training records for
approximately 60 employees, and he and Mr. Kepp determined
their hire dates. Mr. Skeens then reviewed the training
certificates for each employee and found that the
individuals who are named in the orders had not received the
required training. He identified Exhibit P-7 as a training
record Form 5000-23, and he explained the information on the
form and how it is filled out (Tr. 15-20).
Mr. Skeens stated that it took him approximately 10 hours
to review all of the training records furnished to him by Mr.
Kepp. He explained that the "hire dates" shown for each
cited employee were obtained from dated training
certificates or from infor - mation provided by Mr. Kepp.
(Mr. Kepp did not dispute any of the "hire dates" listed in
the orders (Tr. 21).)
Mr. Skeens identified Exhibit P-2 as a copy of his order
of February 21, 1995, citing nine employees for lack of
training. He stated that these employees should have
received newly experienced miner training. With regard to
cited miner Derward Lint, Mr. Skeens stated the records
reflected that he had received annual refresher training
through a contractor with an approved training program, but
had not received any newly employed experienced miner training.
He explained that newly employed experienced miner training
includes three subjects that are not covered or included in annual
refresher training, and he identified them as hazard recognition,
introduction to work environment, and authority and responsibility
of supervisors and miners' representatives, and explained the
course contents (Tr. 22-25).
Mr. Skeens stated that eight of the nine employees listed
received annual refresher training, but not the proper newly
employed experienced miner training, which would have
included the aforementioned three training course subjects.
In short, they missed these three courses. With regard to
one employee, Burt Gleason, he could find no records
indicating that he had any training (Tr. 26). Further, there
were lapses of a week to six months from the hire dates of some
of the employees until they were trained, and he testified to the
hire dates and training dates for cited employees Lint, Chesmore,
Holzer, Milliken, Morris, Olson, Villmow, and Williams (Tr. 26-28).
In support of his gravity findings associated with the
February 21, 1995, order, Mr. Skeens stated as follows (Tr. 29-30):
Q. Okay. You indicated on the citation form that
an injury was reasonably likely. What did you
mean by that?
A. Go ahead.
Q. How did you come to that conclusion?
A. Well, any miner that doesn't have the proper train-
ing is considered to be a hazard to themselves and
a hazard to others. These subjects that we discussed
earlier are pertinent to a miner's health and safety.
Going out there and not knowing anything about the
mine site, the mine conditions, the traffic patterns,
the blasting rules, the blasting procedures, the
authority and responsibility of the supervisors,
those types of things could easily lead to an accident.
Q. And you said that injury might be fatal. How did
you come to that conclusion?
A. Well, with just the hazards associated with that
mine. You've got high walls 60 to 80 feet in
height. You got people working underneath them;
working above them; working close to them; spoil
banks. You've got the conditions of the mine that
a person could drive off that high wall if they
didn't know where he was.
There's a lot of work before daylight hours,
a lot of work after dark. I know when you're out
there if you don't know where you are, you better
make sure, because you could run off of a high wall
face.
Mr. Skeens defined a "significant and substantial" violation
as "a violation of health or safety standard, and that violation is
reasonably likely to result in injury or illness, and that injury or
illness would be of a reasonably serious nature" (Tr. 31).
Mr. Skeens stated that the mine has a complicated work schedule
with four crews reporting for work between the hours of 4:00 a.m.
and 10:00 a.m., and working different shifts, but he could not explain
the work schedule and indicated that work might be taking place around
the clock at any given time (Tr. 30).
Mr. Skeens stated that he based his "high" negligence finding on
the fact that during a prior inspection in November, 1994, he issued
two section 104(g)(1) orders, and during a close-out conference and
other discussions with Mr. Kepp, and possibly other management persons,
compliance with Part 48 was discussed (Tr. 31, 52).
Mr. Skeens reviewed a copy of a settlement decision issued
by Commission Judge Manning on October 26, 1995, and he identified
two November 28, 1994, orders citing a violation of section 48.26(a)
and a mechanic for not receiving newly employed experienced
miner training, and a blaster for not receiving hazard training
required by section 48.31 (Tr. 32, 35).
With regard to the order he issued in this case on
February 22, 1996, Mr. Skeens confirmed that he based the
order on the fact that his review of Training Forms 5000-23
indicated that cited miners Gerber and Knoell had not
received all of the required training. He identified the
three missing training segments as introduction to work
environment, hazard recognition, and health and safety
aspects of tasks assigned (Tr. 35).
Mr. Skeens stated that he did not determine the job
positions held by each of the eleven employees that he identified
in his orders as lacking the required training. He stated that
"some of these people are what I call utility; they do a
lot of different things" (Tr. 37). He stated that Richard
Villmow was a front-end loader operator, but "could very
well end up doing mechanic work on it if something happened
to the loader. He has observed Mr. Villmow steam cleaning
or washing the loader, and doing maintenance work. He
stated that "most of these employees, if something happens,
then they're required to pitch in and help the mechanic or do
another job task." He stated that Mr. Chesmore is a mechanic,
and he has observed Mr. Lint operating a pan scraper several
times. He believed that Ms. Gerber worked in the coal handling
plant in the control room or performing clean-up duties. He also
believed that people working in the large plant could be at any
plant location at any time (Tr. 38).
Mr. Kepp took issue with Mr. Skeen's testimony regarding the
job tasks in question. He stated that Mr. Lint was a welder
and would not be operating a scraper. He stated that Ms.
Gerber's primary job was truck driver, but conceded that she
could be engaged in clean-up duties if the plant was not
running coal (Tr. 39-41). Mr. Skeens did not dispute Mr. Kepp's
information, and Mr. Kepp agreed that an employee needed to
be trained regardless of his job task or assignment (Tr. 41).
On cross-examination, Mr. Skeens identified the contractor
who trained one of the cited employees as "S & M Construction,
Inc.," and he confirmed that this company had an approved
train-ing plan (Tr. 42). In reviewing the
records of the individuals identified in Order No. 3848781,
he found other training certificates for different types of
training, such as annual refresher or task training, but he
was not sure that S & M Construction, Inc., provided that
training (Tr. 42).
Mr. Skeens stated that there is a difference between
training provided by a contractor and a operator because
they have different training plans, even though they may be
similar. He explained that a contractor employee who goes
to work for a mine operator must be trained by that
operator. He confirmed that Mr. Lint had received
contractor training, and that except for Mr. Lint and Mr.
Gleason, the other employees received annual refresher
training "in an untimely manner" from the Coal Creek Mine
operator. If these employees were working for the
contractor, they should have been trained under the
contractor's plan (Tr. 44).
Mr. Skeens stated that he was not sure about the length of
time required for training. He was of the opinion that taking
30 to 45 minutes for experienced miner training could be "cutting
it a little short," and it would depend on the individual miner,
the trainer, and the mine policy (Tr. 45). Mr. Skeens agreed
that if a miner is absent from the mine site for any period of
time, he cannot receive training and he would not be exposed
to the particular hazards at that mine (Tr. 47).
Mr. Skeens confirmed that the "employed since" dates for
each of the listed cited employees only refers to the dates
they started work at the Coal Creek Mine, and one cannot
infer from the dates shown that these were the first dates
they started working at a coal mine performing their
particular job tasks (Tr. 48).
In response to further questions, Mr. Skeens stated that
task training for anyone working in a mine must be given
before commencing a new task, and that a newly employed
experienced miner must receive training before commencing
any work duties. Newly employed persons, regardless of
experience, have to be trained the day they are hired (Tr. 50).
When asked to reconcile one of his prior violations of
November, 1994, concerning a blaster who had not received
hazard training, where he nonetheless made a gravity finding
that he would not be exposed to a fatal injury, Mr. Skeens
explained that the cited individual (Hansen) was an
experienced blaster who was comprehensively training at
other mines, but not at the mine where he was performing
duties when the violation was issued.
Mr. Skeens characterized the lack of mine specific hazard
training as "a technicality" (Tr. 53).
In response to further questions concerning the jobs
performed by the cited employees, Mr. Skeens and MSHA
counsel stated as follows (Tr. 54-56):
THE COURT: In the case at hand now, with the
exception of one or two people, you really don't
know what these other people did in terms of their
jobs?
THE WITNESS: I can't recall what they did. I
know I've observed each one of them at one time or
another. Some are mechanics, some are dozer operators,
loader operators, heavy equipment operators is most of
them.
THE COURT: Do you have any information as to
what the accident record is at this mine operation?
Have they had accidents? Have they had fatalities?
Do you know what their profile might be?
MS. NOBLE: No. We have statistics as to the
number of violations this mine and several other
mines in this area, which we intend to introduce.
But as to accident rates, I don't have those available
here. I don't have any reason to think that their
accident rate is any higher than mines in this
location -- in this area.
* * * * * *
THE COURT: What kind of situation results in
fatal accidents?
MS. NOBLE: What kind would result?
THE COURT: Yeah. Someone working under a high
wall? And if he's not trained in high wall recognition,
that's the kind of situation you're testifying to?
MS. NOBLE: Yeah.
THE COURT: Is there any information that any of
these individuals were required to work under a high
wall?
MS. NOBLE: No.
Larry L. Keller testified that he is the manager/supervisor
of the MSHA field office in Gillette, Wyoming, and that he is
Inspector Skeen's supervisor. He testified as to his experience
and training, including service as an inspector from 1972 to 1978.
He confirmed that he visited the mine in question in June and
November, 1994, accompanying inspectors who were inspecting the
mine. He confirmed that he attended a conference with Mr. Kepp
in connection with the section 104(g)(1) orders that were issued
during the November, 1994, inspection and that he and Mr. Kepp
discussed "cross-over training from S & M Construction,
Incorporated, three digit contractor number to the seven digit
mine identification number as a mining operator and entity"
(Tr. 58-61).
Mr. Keller stated that S & M Construction, Inc. is a local
contractor engaged in highway construction projects, road
construction, and "probably pipe laying." A part of that company,
S & M Construction, Incorporated, has a seven digit mine
operator's entity number and is the operator of the mine. The
construction company can provide all of the training required
of a miner who works at the mine except for the three of four
training items, such as the introduction to work environment,
duties and responsibilities of the foreman, and miners'
representatives at the mine site, and some additional hazard type
training. A contractor cannot provide this training for the
mine operator (Tr. 62-63).
Mr. Keller stated that the respondent had approximately
50 employees in 1994 and produced 3,000,000 tons of coal,
and in 1995 the mine produced approximately 8,000,000 tons.
MSHA's prior history computer print-out for the mine for the
period January, 1994, through January, 1996, reflects 72
violations (Tr. 64).
On cross-examination, Mr. Keller confirmed that on
November 27, 1994, MSHA training specialist Judy Tate from
the McAlester, Oklahoma office, conducted a review of
training records at the mine and no violations were issued
as a result of this review. He stated that Ms. Tate was not
authorized to issue any citations and reviewed Part 48
training records and Part 50 accident reporting records for
completeness. She would probably bring any errors to his
attention, and he would probably send someone to the mine to
check the matter (Tr. 69-73).
In response to a question as to how an inspector can
reasonably conclude that lack of training will result in a
fatality if he does not, on a case-by-case basis, determine
the hazard exposure for the particular individual, Mr.
Keller responded as follows (Tr. 74-75):
THE WITNESS: Through the years, the statistics
in the mining industry has shown this agency that newly
employed inexperienced miners suffer more injuries and
have suffered more fatalities in this industry than
older, more experienced employees.
Therefore, we base a lot of those type of deter-
minations on the gravity of what our experience has
been in this industry, and what our experience has been
in compiling the information that would require mine
operators to present to us.
THE COURT: That's an inexperienced miner
you're talking about?
THE WITNESS: Basically, yes, inexperienced.
THE COURT: Let's take an experienced miner. An
experienced miner who hasn't had hazards recognition,
statutory rights of miners and introduction to work
environment. My first question is, is that likely to
be a fatality in all cases?
THE WITNESS: No, not in all cases. He's
probably experienced through his work history. Each
one of those things are individual, anyway. He
probably knows what those hazards are, basically,
but going from one mine site to another on those
three open topics, we're asking -- each mine presents
unique hazard in itself.
THE COURT: Right.
THE WITNESS: Each mine has traffic rules that are
different from a previous mine. Or different mines,
their blasting signals could be different. If he's
gained all that experience at a particular mine, his
association to those hazards is probably pretty
knowledgeable just what he gained by being there.
Mr. Keller acknowledged that an inspector who issues
training citations based on his review of records would have
no way of knowing whether an employee is knowledgeable about
his work environment or whether he can recognize a hazard
unless he speaks with the employee. He stated that in cases
where an entire mine is under 104(g) withdrawal because of
training, it would be impossible to interview every miner and
the inspector must assume that the mine operator cannot provide
what was not done during any training (Tr. 76).
Inspector Skeens was recalled by the petitioner and he
confirmed that when he issued Order No. 3848781 concerning
the newly employed experienced miners, he explained to Mr.
Kepp that the employees in question needed newly employed
experienced miner training, including the three courses
previously mentioned, rather than the annual refresher
training that their training certificates indicated they
received. He stated that Mr. Kepp did not indicate to him
that any of the nine individuals had taken the three missing
courses (Tr. 79-80).
Respondent's Testimony and Evidence
Stephen Kepp testified that he has served as the
respondent's safety director for five years, is a certified
MSHA surface instructor, and holds Wyoming State surface
mining fore-man's papers. He also holds a bachelor's degree
in accounting and a master's degree in business administration.
He has 16 years of mining experience and is aware of MSHA's
training and paperwork requirements that are his responsibility
as safety director (Tr. 82).
Mr. Kepp stated that S & M Construction was awarded the
contract to operate the mine over eight other companies
because of its continuously improved safety record. There
have been three lost-time accidents since the respondent has
operated the mine, and there have been no lost time accidents
since October 28, 1995 (Tr. 83).
Mr. Kepp stated that the employees cited in Order
No. 3848781 are all experienced in their crafts, are aware
of their surroundings, and are knowledgeable of any hazards
that may exist in the course of performing their duties. He
did not believe that any of them presented a hazard to themselves
or to others (Tr. 85).
Mr. Kepp discussed the experience level of the cited
employees as follows (Tr. 83-85):
... Derward Line is a welder; he has 15 years of
experience. Dick Chesmore has 19 years of experience
working -- he is a plant mechanic. That's how he's
classified; he has 19 years of experience. He has
17 years with Amax Coal at Belle Ayr Mine. Very
knowledgeable individual, and very, very safety
conscious.
Ray Holzer is a dozer operator. He has been
with S & M Construction since the company was founded
ten years ago. He has 25 years of experience as a
dozer operator. John Milliken is a blade operator
with 20 years of experience. And has been with
S & M Construction since March of 1987. Bill Morris
is a welder; he has four years of experience, and has
been with S & M since 1992.
Craig Olson is another blade operator, with
11 years of experience. He is our finished blade
operator, meaning that his skills are extremely high.
Richard Villmow has 18 years of experience as an
equipment operator. He's operated several pieces
of equipment for S & M while out at Coal Creek.
Bill Williams is 72 years old. He has four years of
experience with S & M Construction as an equipment
operator. He currently operates a 627 Caterpillar
scraper. Burt Gleason is a plant mechanic with
16 years of experience. And I believe that experience
was from Exxon's Rawhide Mine here in the basin.
Mr. Kepp stated that Mr. Knoell is a mechanic who received
the proper training when he arrived at the mine, but it was
not documented. He indicated that Mr. Knoell was escorted
for the first several days so he could learn the roads to
the pits where the machines might be working. Judy Gerber
was one of the first individuals hired, and she was trained
on the equipment, and was part of a mine tour when she was
informed of mine areas that may present hazards. She is the
daughter of another construction company owner and she has
been around construction equipment all of her life (Tr. 86).
Mr. Kepp stated that Lint, Holzer, Milliken, Morris, Olson,
Villmow, and Williams had annual refresher training provided
by S & M Construction, the contractor, and it was similar to
the training provided by S & M Construction, the operator of
the mine. He stated that every employee who starts out at
the mine is escorted around so that he knows the roads and
traffic patterns, and they each must watch a hazard training
film which covers all topics, except the responsibility of
supervisors and miners' representatives. However, he could
not state with certainty that the topic was covered with
newly employed individuals (Tr. 86-87).
On cross-examination, Mr. Kepp stated that he is in charge
of safety for both the mine operator part and contractor
part of S & M's operations. His experience includes loading
coal trains, the limited operation of some heavy equipment,
and 16 years of surface coal experience (Tr. 90-92).
Mr. Kepp believed that Mr. Chesmore was very safety
conscious because he was an active participant in a January
1995 refresher training course. Mr. Kepp also believed
that, based on their experience, the nine cited employees
were aware of their work surroundings and had the ability to
recognize hazards. Further, with the exception of Mr.
Villmow, none of the employees had any lost time accidents
(Tr. 94-97).
Mr. Kepp stated that a 20-minute video that is mine specific
to Coal Creek Mine is viewed by the employees, and that one
would "have a good idea of what went on at the mine" by
watching the video. He conceded that simply viewing the
video would not cover all of the training requirements for
newly employed experienced miners or inexperienced miners
(Tr. 97).
Mr. Kepp stated that the three training topics previously
mentioned were covered as part of the employee training, but
the training was not documented by preparing a Form 5000-23.
He stated that all personnel who start work at the mine are
given a mine tour, and an equipment operator would be tested
and given hazard training before he is hired and starts
work. He confirmed that the training subject related to the
authority and responsi-bility of supervisors and miners'
representatives was not included as part of the hazard
training video, but that it was "very likely" included as
part of the mine tour conducted by him or a shift supervisor
(Tr. 95-100). He also alluded to first day tours and escorts
for Mr. Knoell and other new employees (Tr. 101).
Mr. Kepp stated that all of the cited employees were
"probably" trained in his office after the orders were
issued, and that the Forms 5000-23 were then executed and
shown to Inspector Skeens in order to abate the orders (Tr.
102-104, 112). In response to a question as to why he would
need to re-train the cited employees if they had in fact
been trained in the first place, Mr. Kepp stated that after
the prior record reviews by Ms. Tate, MSHA's training
representative, she was not sure of the kinds of training
that needed to be provided and suggested that he provide newly
employed experienced miner training to all mine employees and
that he did so in his capacity as the mine operator's trainer
and that this "would probably get me covered" (Tr. 104-105).
When asked why he had not prepared the 5000-23 Forms for
the cited employees after they were trained, Mr. Kepp stated
that "with respect to these nine individuals, they did have
what I thought was correct and current training forms" (Tr.
105). He also believed that the employees had been trained
by the con-tractor (S & M) and, although not trained by the
mine operator (S & M), he believed "all along that these people
did have current training" by "technically the same corporate
entity" (Tr. 107).
Mr. Kepp believed that the orders issued by Inspector Skeens
were exaggerated because seven of the cited nine employees
had current craft training and had been trained in the
introduction to their work environment, hazard recognition,
and the statutory rights of miners, but conceded that there
was no documentation of this training (Tr. 108).
With regard to the order citing Mr. Knoell and Ms. Gerber,
Mr. Kepp stated that "these people did receive their
training. I just didn't get three boxes checked off on
these individuals." After subsequently filling out the
form, the inspector abated the order (Tr. 112).
Petitioner's counsel agreed that in view of the fact that
the cited employees worked for the contractor and the mine
operator, basically the same company, there may have been
confusion in early November, 1994, regarding the type of
training that was required. However, after the prior orders
were issued in late November, 1994, for the same type of
violations, there was no confusion and Mr. Kepp "should have
gotten everything up to date then and kept it up to date"
(Tr. 110). Mr. Kepp conceded the lack of documentation, and
further explained as follows (Tr. 113-114):
THE WITNESS: What I've agreed to is that
documentation has not been done and these orders
are exaggerated. They should have been not S and S
citations for failure to document training. That's
my position.
THE COURT: How would the inspector know whether
or not all these people received all this training when
he appears at the mine there and starts perusing the
records? Did you tell him what you testified to today
about how you thought all these people had been trained.
THE WITNESS: I'm sure at the time -- no, I did
not make any statements along that line.
Mr. Kepp stated that he filled out new training forms to
abate the orders that were issued, and when asked why he
simply did not document the training, rather than retraining
the cited individuals to abate the orders, he responded
(Tr. 116-117):
A. I guess maybe to answer that question, I wanted
to get something established. Something organized
with a pattern such that when I made a statement,
`[y]es, he did receive newly employed experienced
miner training,' it was the steps that I covered,
and I wanted to start with the first individual.
Through and up to today, I do it the same way.
* * * *
Q. So you wanted to make sure the second time that
you filled it out in order to terminate the with-
drawl order. You wanted to make sure that
everything was really included?
A. Something I cannot do, something I will not
do is just check off a box and sign the form.
That carries it's own set of penalties, including
personal penalties, and I'm not going to do that.
** * * *
A. I guess maybe it's just dotting the i's and
crossing the t's.
Q. So this time you dotted the i's and crossed the
t's, and the withdrawal orders were terminated?
A. That's correct.
Findings and Conclusions
Fact of Violations
Order No. 3848781. The respondent is here charged with a
violation of 30 C.F.R. 48.26(a), because of its alleged failure
to provide newly employed experienced miner training to nine
of its employees. Inspector Skeens testified credibly that
he issued the violation after reviewing the respondent's employee
training records, and comparing their "hire dates" (which are
not disputed) with the available training records. Although
Mr. Skeens found that eight of the cited employees had
received annual refresher training by the respondent in its
contractor capacity, and that one had received no training,
he determined that the refresher training for the eight
employees in question did not include three of the training
courses required by section 48.26(a), namely, Introduction
to Work Environment, Authority and Responsibility of
Supervisors and Miners' Representatives, and Hazard
Recognition, as required by section 48.26(b)(1), (3), and
(7) (Tr. 22-26).
Inspector Keller explained that the respondent's company
consists of two parts, a road and highway construction
contractor with a three digit MSHA identification number,
and a contractor mine operator with a seven digit MSHA
identification number. He stated that a construction
contractor may provide all of the training required of a
miner working at a mine except for the items that were
omitted in this case, and that a contractor cannot provide
this training for the mine operator (Tr. 62-63).
Inspector Skeens testified that when he issued the order
he explained to Mr. Kepp that the cited employees needed
newly employed experienced miner training, including the
three omitted courses, rather than their annual refresher
training, and that Mr. Kepp did not indicate to him that any
of them had taken the three missing courses (Tr. 79-80).
None of the cited miners were called to testify in this
case. Mr. Kepp asserted that seven of the miners had
annual refresher training provided by the respondent in its
"Contractor" capacity, and that it was "similar" to the
training provided by the respondent in its mine operator
capacity (Tr. 86). Although he alluded to a video viewed by
nine employees, he conceded that simply viewing and video
would not cover the training require-ments in question
(Tr. 97).
Although Mr. Kepp maintained that the three training courses
in question were covered as part of employee training, he
admitted that it was not documented by the proper MSHA forms
and that the course dealing with the authority and
responsibility of supervisors and miners' representatives
was not part of the video, but "very likely" a part of a
mine tour (Tr. 99). Since the cited employees were trained
by the "contractor," but not the "mine operator," he
believed that they had current training by "technically" the
same corporate entity (Tr. 107).
Mr. Kepp admitted that he did not inform Inspector Skeens
about his belief that the employees had been trained, and he
agreed that he did not document the alleged training that he
claims was given. He believed that the order in question
was exaggerated and that it should have been issued as a
non-"S&S" citation for failure to document training (Tr.
113).
After careful review of all of the testimony and evidence, I
conclude and find that the petitioner has established a
violation of the cited training standard by a preponderance
of the credible and probative evidence adduced in this case.
Accordingly, section 104(g)(1) Order No. 3848781 IS
AFFIRMED.
Order No. 3848782. The respondent is charged with a
violation of 30 C.F.R. 48.25(b), for its alleged failure to
provide new miner training for two employees who had worked
at the mine for 8 and 10 months prior to the issuance of the
vio - lation on February 22, 1995. The inspector cited
the employees after determining that they had not been
trained in three of the 13 courses required by section
48.25(b)(4), (8) and (12), namely Introduction to Work
Environment, Hazard Recognition, and Health and Safety
Aspects of Assigned Tasks.
Inspector Skeens confirmed that he issued the violation
after reviewing the training records provided by Mr. Kepp
and determining that the two cited employees did not receive
all of the required training, namely, the three missing
cited training courses (Tr. 35). He stated that newly
employed individuals must be trained the day they are hired,
and must be task trained before commencing a new task (Tr.
50).
Mr. Kepp asserted that cited employee Knoell received
"proper training" when he arrived at the mine, but that it
was not documented. As for Ms. Gerber, Mr. Kepp stated that
she has been around construction and equipment all of her
life, was trained on the equipment, and was part of a mine
tour when she was informed of mine areas that may present
hazards (Tr. 86). As noted earlier regarding the viewing of a
video, Mr. Kepp admitted that it would not cover all of the
training requirements for newly employed inexperienced miners
(Tr. 97). He also alluded to first day tours and escorts for
Mr. Knoell and other new employees (Tr. 101), but none of this
is documented or corroborated and, as previously noted, none
of the cited employees were called to testify. Mr. Kepp conceded
the lack of documentation (Tr. 113).
After careful review of the testimony and evidence, I
conclude and find that the respondent has not rebutted the
credible testimony and evidence adduced by the petitioner in
support of this violation. I conclude and find that the
petitioner has established a violation of the cited training
standard by a preponderance of the credible and probative
evidence. Accordingly, section 104(g)(1) Order No. 3848782
IS AFFIRMED.
Significant and Substantial Violations
A "S&S" violation is described in section 104(d)(1) of
the Act as a violation "of such nature as could significantly
and substantially contributed to the cause and effect of a coal
or other mine safety or health hazard." 30 C.F.R. � 814(d)(1).
A violation is properly designated S&S "if, based upon the
particular facts surrounding the violation there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonable serious nature."
Cement Division, National Gypsum Co., 3 FMSHRC 822, 825
(April 1981).
In Mathies Coal Co., 6 FMSHRC 3-4 (January 1984), the
Commission explained its interpretation of the term "S&S" as
follows:
In order to establish that a violation of
a mandatory safety standard is significant and
substantial under National Gypsum the Secretary
of Labor must prove: (1) the underlying violation
of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to
safety-contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed
to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of
a reasonably serious nature.
See also Austin Power, Inc. V. Secretary, 861 F. 2d 99,
103-04 ( 5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021
(December 1987) (approving Mathies criteria).
The question of whether any particular violation is S&S
must be based on the particular facts surrounding the violation,
including the nature of the mine involved, Secretary of Labor
v. Texasgulf , Inc., 10 FMSHRC 498 (April 1988); Youghiogheny &
Ohio Coal Company, 9 FMSHRC 2007 (December 1987). Further,
any determination of the significant nature of a violation
must be made in the context of continued normal mining
operations. National Gypsum, supra, 3 FMSHRC 327, 329
(March 1985). Halfway, Incorporated, 8 FMSHRC 8 (January 1986).
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129 (August 1985), the Commission stated further as follows:
We have explained further that the third
element of the Mathies formula `requires that
the Secretary establish a reasonable likelihood
that the hazard contributed to will result in an
event in which there is an injury.' U.S. Steel
Mining Co., 6 FMSHRC 1834, 1836 (August 1984).
We have emphasized that, in accordance with the
language of section 104(d)(1), it is the contribution
of a violation to the cause and effect of a hazard
that must be significant and substantial. U.S. Steel
Mining Company, Inc., 6 FMSHRC 1866, 1868 (August
1984).
The Commission recently reasserted its prior determinations
that as part of his "S&S" finding, the Secretary must prove
the reasonable likelihood of an injury occurring as a result
of the hazard contributed to by the cited violative condition or
practice. Peabody Coal Company, 17 FMSHRC 508 (April 1995);
Jim Walter Resources, Inc., Docket No. SE 94-244-R, decided
April 19, 1996.
In Highwire Incorporated, 10 FMSHRC 22, 67-68 (January
1988), I affirmed an inspector's "S&S" findings where the
facts and circumstances clearly established that a lack of
task training presented a reasonable likelihood of serious
injuries associated with such a violation. Highwire
involved a fatal truck accident that occurred when the
driver lost control of the truck on a curve and overturned.
The mine operator was charged with several violations,
including a violation of 30 C.F.R. 48.26, for failing to
provide newly employed experienced miner training to the
truck driver. Contrary to the instant case, the Secretary
in Highwire provided probative testimony and evidence
concerning the operator's training plan, the driver's job
and experience, and sufficient evidence supporting its "S&S"
position.
In Patch Coal Company, 10 FMSHRC 782 (June 1988), I affirmed
several citations for failure of the mine operator to give newly
employed experienced miner training to equipment operators in
violation of 30 C.F.R. 48.26(a), but vacated the inspector's S&S
findings associated with each of the citations. My reasons
for vacating these findings were based on the inspector's general
and speculative testimony regarding certain perceived hazards, and
his assumptions that a lack of training would expose miners to
injuries and fatalities generally associated with any mining
operation, rather than on any specific prevailing mining conditions
from which one could reasonably conclude that the newly employed
miners were in fact exposed to mine hazards in their new work
environment which would likely result in injuries of a reasonably
serious nature.
In Sunny Ridge Mining Company, Inc., 13 FMSHRC 928, 931
(June 1991), former Commission Judge James A. Broderick affirmed
a violation of 30 C.F.R. 48.26(a) because of the operator's
failure to train 11 newly employed experienced miners.
However, he vacated the inspector's "S&S" findings and
modified the vio - lation to non-"S&S" after concluding
that the evidence did not establish that the hazard
contributed to by the violation would reasonably likely
result in a serious injury. In support of his findings,
Judge Broderick noted that the evidence established
that the miners were experienced and that the mine
environment was not particularly dangerous or threatening.
In the instant case, there is no evidence of any fatal
accidents at the mine, and the petitioner has no information
concerning the mine accident profile (Tr. 54). However, Mr.
Kepp testified that the respondent was awarded the contract
to operate the mine because of its continuously improved
safety record, and while there were three lost time
accidents since the respondent has operated the mine, there
have been no lost time accidents since October 28, 1995. He
confirmed that the three accidents involved two broken
wrists and a broken ankle, and explained that the mine
operated for 462 days accident free before the accidents
which occurred within a seven-week period (Tr. 83). There
is no evidence that any of these incidents involved a lack
of training.
While it is true that most of the miners completed the
required training after their "hire dates," there is no credible
or probative evidence to establish that the delay exposed
them to any particular hazards. Mr. Kepps' credible and
unrebutted testimony reflects that all of the cited employees
were experienced equipment operators with many years of service
with the respondent or other mining companies. Although Mr. Kepps
did not dispute any of the employee "hire dates" listed in
the orders, Inspector Skeens agreed that these dates only
reflect when the individuals began work at the mine, and he
conceded that one cannot infer that these were the dates the
individuals first started performing their particular job
tasks. He also confirmed that in reviewing the training
certificates of eight of the cited employees, he found
training certificates for different types of training, such
as annual refresher or task training, and he confirmed that
the respondent had an approved MSHA training plan.
As noted earlier, Mr. Kepp testified credibly to the work
experience of the cited miners. In addition to annual refresher
and other training that they had received, he testified that
employees who start work at the mine for the first time are escorted
so that they know the roads and traffic patterns, and that they
are required to watch hazard training films and a
20-minute mine specific video about the mine. He further
testified that cited employee Knoell was escorted to his
work location for the first several days to familiarize
himself with the roads, and that Ms. Gerber was informed
about the mine areas as part of a mine tour. Although I
cannot conclude that these procedures necessarily fulfilled
MSHA's training requirements to the letter, absent any
evidence to the contrary, they do mitigate the hazard and
gravity exposure associated with these violations.
Inspector Skeens testified that a lack of knowledge about
the mine site, the mining conditions, traffic patterns, and
the blasting rules and procedures "could easily lead to an
accident." However, Mr. Skeens admitted that he did not
determine the job positions held by the cited employees, did
not speak with them, could not recall what they did, and
simply observed them "at one time or another" (Tr. 37, 54-
56). Supervisory Inspector Keller acknowledged that an
inspector who issues training citations based solely on a
review of the training records would have no way of knowing
whether or not the cited employee is knowledgeable about his
work environment and can recognize a hazard unless he speaks
with him (Tr. 76).
Although it may be burdensome for an inspector to develop
all of the relevant facts in determining the potential hazard
exposure for all employees at a large mining operation, the
instant case only involves less than 12 employees who received
annual refresher training, and who apparently completed the
training courses required by the cited regulations, except
for those dealing with their work environment, hazard
recognition, and the responsibilities of supervisors and
miners' representatives. I find no evidence in this case
to support any reasonable conclusion that missing a course
on the responsibilities of supervisors and miners'
representatives had any adverse impact on the safety of the
cited miners.
With respect to the required training course subjects on
hazard recognition and work environment, I agree that they
are important components of any approved training program.
However, in this case, the inspector's conclusion that
injuries were reasonably likely was based on his belief that
improperly trained miners are considered a hazard to
themselves and to others. Although one may agree with this
generalized conclusion, I conclude and find that an
inspector must develop some factual evidence, on a case-by-
case basis, to establish that the cited miners would
reasonably likely suffer injuries of a reasonably serious
nature because they were not timely trained on hazard
recognition and their work environment at the particular
mine where they are employed.
In the absence of any evidence concerning the required job
tasks performed by the cited employees and the presence or
likelihood of any adverse mining conditions that they would
encounter in performing these tasks, I cannot speculate or
conclude that the absence of some of the required training would
reasonably likely lead to an accident or fatality.
In support of his findings that any injury could reasonably
likely be expected to be fatal, Mr. Skeens testified that
the mine has 60 to 80 feet highwalls, and that "people" work
above, below, or close to these highwalls, and that a
"person could drive off that highwall if they didn't know
where he was." He also indicated that work is performed at
the mine before and after daylight hours, and that someone
"could run off a high wall face" if they did not know where
they were. However, there is no evidence that any of the
cited miners worked at times other than a normal daylight
work shift, and no evidence was presented connecting any of
the cited employees with these hazards. Indeed, in response
to a bench question as to whether there was any information
in this case that any of these individuals were required to
work under a highwall, petitioner's counsel responded, "No."
(Tr. 56).
I take note of one of the prior November 1994, violations
issued by Inspector Skeens to the respondent citing a blaster
who had not been hazard trained as required by 30 C.F.R. 48.31,
before commencing his work duties in a coal pit (Exhibit P-3,
pg. 15). Mr. Skeens determined that the blaster was allowed
to work on the day of the violation and on one prior
occasion, and although he found that the cited blaster was
exposed to the cited condition and could suffer "a lost
workday accident," he con-cluded that an accident was
unlikely, and that the violation was non-"S&S."
Mr. Skeens explained that the cited blaster in question was
experienced, had hazard training from other mines, and the
fact that he did not have the particular hazard training for
the respondent's particular mine "really came down to a
technicality" (Tr. 53). In the instant case, I have
difficulty reconciling the petitioner's concern about the
lack of training to assure that a miner is aware of the
potential hazards at a particular mine where he is employed,
with Mr. Skeens' rather contradictory belief that the
failure to task train the blaster in question was merely "a
technicality," warranting a non-"S&S" finding.
On the facts of this case, and after careful review and
consideration of Inspector Skeens' testimony in support of
his "S&S" findings as to each of the violations, I conclude
and find that these findings were based on general and
speculative assumptions that a lack of training would expose
miners to injuries and fatalities generally associated with
any mining operation, rather than on any reliable and
probative evidence that the job tasks performed or expected
to be performed by the miners, coupled with their lack of
several required training courses, and the prevailing mining
conditions under which they were expected to work, presented
conditions from which one could reasonably conclude that
they were in fact exposed to mine hazards likely to result
in injuries of a reasonably serious nature. In short, I
conclude and find that the petitioner has failed to
establish by a preponderance of the credible and probative
evidence adduced in this case that the violations were
"S&S." Accordingly, the inspector's findings in this regard
are rejected and they ARE VACATED.
Size of Business and Effect of Civil Penalty Assessments
on the Respondent's Ability to Continue in Business
Inspector Keller believed that the mine was producing
"in the neighborhood of eight million" tons in 1995, and had
approximately 50 employees in 1994 (Tr. 63-64).
The parties stipulate that the respondent's 1994 coal
production was 3,356,712 tons, and that the respondent is a
medium-to-large sized mine operator (Tr. 4-5).
Although the respondent's representative "lined through" a
proposed stipulation that MSHA's proposed penalty assessments will
not affect the respondent's ability to continue in business, he
stated that "what I was concerned about is our company is in
a loss situation for the year and it certainly would have an
impact" (Tr. 118). In response to a bench inquiry as to
whether or not MSHA's proposed penalty assessments would put
the respondent out of business, Mr. Kepp stated "No, sir, it
would not, I did not mean to imply that" (Tr. 118).
Absent any information or evidence to the contrary, I cannot
conclude that the penalty assessments that I have made for the
violations in this case will adversely affect the respondent's
ability to continue in business, and I conclude and find that
they will not.
History of prior Violations
Inspector Keller made reference to a computer print-out
for the 24-month period from January 1994 through January 1,
1996, and indicated that it reflected a total of 72
violations (Tr. 64). However, the actual print-out referred
to by Mr. Keller was not offered, and it is not part of the
record.
MSHA's computer print-out for the subject mine for the
period April 18, 1994 to February 21, 1995 (Exhibit P-1)
reflects that the respondent paid civil penalty assessments
for 28 violations, including one violation of section 48.25(a),
two violations of section 48.29(c), and one violation of
section 48.31. The violations that were the subject of a
prior settle-ment (Exhibit P-3) are included in the print-
out, and I note that three of these violations were issued
because of the respondent's failure to have the training records
for two miners available at the mine, and for not completing a
training form for one miner. In each of these instances, the
miners were in fact trained.
For an operation of its size, I cannot conclude that the
respondent has an overall poor compliance records. However,
in view of its prior training violations, I believe that the
respondent needs to pay closer attention to MSHA's training
regulations. Mr. Kepp, in his capacity as safety director
and the mine official responsible for training, must devote
more time and attention to insure that all miners are properly
trained, and that all of the required training documentation
is timely and properly maintained. In several instances
during the course of the hearing, Mr. Kepp appeared
uncertain when he stated that one training segment
"very likely" was included as part of a mine
tour, and that all of the cited employees were
"probably" trained in his office to abate the violations
(Tr. 95-102). In any event, I have considered the
respondent's compliance record in assessing the penalties
for the violations which I have affirmed and find that on
the record here presented, any addi-tional increases over
those penalty amounts are not warranted.
Good Faith Compliance
The petitioner asserts that the respondent was cited for
high negligence "since it failed to exercise reasonable care
in locating violations within a reasonable period of time
and in taking appropriate action to see that those violation
were abated" ( Posthearing Brief pgs. 5-6). I agree with
the con- clusion that the respondent failed to exercise
reasonable care, but I reject the petitioner's assertion
that the respondent failed to abate the violations that are
in issue in this case. The petitioner stipulated that the
respondent demonstrated good faith in abating the violations,
and, at page 7 of its brief, the petitioner recognizes that
the respondent demonstrated good faith in abating the violations
cited in this case.
The petitioner's "failure to abate" argument is apparently
based on the notion that after the November 1994 training
violations were issued, abated, and terminated, any subsequent
training violations may be construed as non-abatement. I
find absolutely no support for any such theory, and it is
rejected.
I conclude and find that the respondent demonstrated good
faith in abating the violations in this case.
Gravity
Although I have found that the violations were not "S&S,"
I nonetheless conclude and find that the failure to provide
the prescribed training were serious violations.
Negligence
Inspector Skeens testified that his "high" negligence
finding associated with Order No. 3848781 (Exhibit P-2) was
based on two prior section 104(g)(1) training orders that he
issued in November, 1994, and his close-out conference
discussions, and other discussions that he had with Mr.
Kepp, and possibly other mine management people, concerning
compliance with MSHA's Part 48 training requirements
(Exhibit P-3, Tr. 31).
With regard to Order No. 3848782 (Exhibit P-4), Inspector
Skeens checked the "high" negligence block on the face of
the order form, but offered no testimony in support of this
finding. The hearing transcript reflects that Inspector
Skeens was handed hearing Exhibits P-2 and P-4 by petitioner's
counsel, and after looking at Exhibit P-2 confirmed that it
was one of the orders that he issued (Tr. 20). He then proceeded
to testify about that order (Tr. 20-31).
Inspector Skeens identified page 6 of Exhibit P-3 as one
of the prior section 104(g)(1) orders he issued on November
28, 1994, and confirmed that it was "related" to Order No.
3848782, the second citation that had not as yet been
discussed (Tr. 32).
Inspector Skeens then proceeded to testify as to his
reasons for issuing Order No. 3848782 (Tr. 35-38). After
cross-examination (Tr. 58), MSHA witness Larry Keller was
called to testify. Apart from his comment that his prior
order of November 28, 1994, where he also found "high"
negligence "was related to Order No. 3848782, Inspector
Skeen offered no testi - mony in support of his "high"
negligence finding with respect to that order.
MSHA field supervisor and manager Larry L. Keller
confirmed that he accompanied inspectors during the November
1994 inspection when some section 104(g)(1) orders were
issued and that he attended a conference with Mr. Kepp where
"cross-over" training and three-digit contractor and seven-
digit mine operator entity identification numbers were
discussed (Tr. 59-60). However, Mr. Keller offered no
testimony concerning Inspector Skeens' negligence findings
with respect to the contested orders in this case, and he
was never questioned about this issue.
Apart from Inspector Skeens' testimony that his "high"
negligence finding concerning Order No. 3848781 was based on
two prior orders issued in November, 1994, and his
discussions with Mr. Kepp at that time concerning MSHA's
training requirements , and his testimony that one of the
prior November orders "was related" to Order No. 3848782,
the petitioner offered no further testimony in support of
the inspector's "high" negligence findings.
At page 3 of its brief, the petitioner states that the
special penalty assessments followed the respondent's
"unwarrantable failure to comply with MSHA's training
regulations," and at page 6, the petitioner states that the
violations "exhibited an unwarrantable failure" by the respondent
to ensure the health and safety of its miners. Following these
statements is a conclusion (page 8) that the violations in
this case were designated as "unwarrantable failure," a
statement at page 7 that MSHA elected to special assess the
violations "because the operator exhibited an unwarrantable
failure to comply" with the cited training standards, and
arguments in support of the alleged unwarrantable failure
violations (Brief, pgs, 6-7).
Inspectors Skeens and Keller presented no testimony or
evidence either alleging or supporting any section 104(d)
unwarrantable failure findings in this case. Inspector
Skeens' orders were issued as section 104(g)(1) orders, and
the pleadings filed by the petitioner never alleged or
charged the respondent with any unwarrantable failure
violations. Although the inspector was free to issue
citations or orders pursuant to section 104(d)(1) or (d)(2),
and ordering the withdrawal of miners pursuant to section
104(g)(1), he did not do so. He simply issued the section
104(g)(1) orders withdrawing the affected miners, and he
never modified the orders to reflect any
unwarrantable failure charges and the petitioner never
amended its pleadings to reflect any unwarrantable failure
charges. It's attempts to do so now through its
posthearing brief ARE REJECTED. I find no evidentiary
support for the petitioner's assertions that the
violations constitute unwarrantable failures by the
respondent to comply with the cited standards.
I take note of the fact that the petition for assessment
of civil penalties filed in this case by the petitioner
includes an MSHA Form 1000-179, containing the notation
"Special Assessment-See Attached Narrative." However, the
narrative statement was not attached as part of the initial
pleadings, and it was produced by the petitioner for the
first time at the hearing (Exhibit P-6).
MSHA's narrative special assessment findings reflect a
decision to specially assess the violations in accordance
with its penalty assessment criteria found in 30 C.F.R.
100.5. This regulation contains eight violations categories
under which special assessments are appropriate, including
unwarrantable failures and violations "involving an
extraordinarily high degree of negligence or gravity or
other unique aggravating circum-stances." The narrative
findings in support of the specially assessed violations in
this case do not mention any unwarrantable failures to
comply and include no discussion with respect to any
"extraordinary" negligence, gravity, or "unique aggravating
circumstances." Indeed, the gravity finding reflects
"serious" violations, and negligence findings based on a
failure to exercise reasonable care.
As part of his inspection report in this case, Inspector
Skeens executed an MSHA Form 7000-32, recommending a
"special assessment," and he described the "serious or
aggravating circumstances" involved as the previously issued
November 1994 training violations, and the closeout conference
with the respondent following that inspection. I cannot conclude
that the eight prior training violations, three of which did not
involve a lack of training, and the fact that they were
conferenced with the respondent, standing alone,
constitutes "aggravating" circumstances. However,
considering the fact that most of the prior violations were
issued on November 28, 1994, just two or three months prior
to the issuance of the violations in this case, and the
unrebutted testimony of the inspectors that these
matters were discussed with safety director Kepp, I
conclude and find that Mr. Kepp had a heightened duty to
review his training records to insure compliance with the
cited standards in question.
While there may have been some confusion concerning
the respondent's bifurcated contractor-operator training
obligations prior to November, 1994, I agree with the
petitioner's argument that no such confusion existed when
the February 1995 violations were issued. Under all of
these circumstances, although the inspector's testimony in
support of his "high" negligence find- ings associated with
the violations is rather sparse, I conclude and find that
the record, as a whole, supports his "high" negligence
findings as to both violations, and they ARE AFFIRMED.
Civil Penalty Assessments
The petitioner has proposed a "special penalty assessment
of $7,500 for Order No. 3848781, and a "special" assessment
of $5,000 for Order No. 3848782. The petitioner asserts
that these proposed "special" penalty assessments reflect an
objective and fair appraisal of the facts presented,
particularly in light of the respondent's unwarrantable
failure to comply with the cited standards, the "gravity of
its negligence," its history of prior violations (especially
of the same type), and its failure "to identify the
potential violations after having been notified of them in
November 1994."
It is clear that I am not bound by the petitioner's proposed
penalty assessments, and that I may impose penalty assessments
de novo, after consideration of the penalty criteria set
forth in section 110(i) of the Act, Westmoreland Coal Co.,
8 FMSHRC 491, 192 (April 1986); Sellerburg Stone Co., 5
FMSHRC 287, 290-94 (March 1983), aff'd , 736 F. 2d 1147
( 7th Cir. 1984). Where appro-priate, it is clearly
within my discretion to assess penalties higher or lower
than those proposed by the petitioner, or accept and affirm
those proposed by the petitioner. On the facts and evidence
of record in this case, I conclude and find the petitioner's
proposed penalty assessments are unsupported and not
warranted.
On the basis of my foregoing findings and conclusions, and
my de novo consideration of the civil penalty assessment
criteria found in section 110(i) of the Act, I conclude and
find that the following penalty assessments are reasonable
and appropriate for the violations that have been affirmed
in these proceedings:
30 C.F.R.
Order No. Date Section Assessment
3848781 2/21/95 48.26(a) $2,500
3948782 2/22/95 48.25(a) $1,000
ORDER
IT IS ORDERED as follows:
1. Section 104(g)(1) "S&S" Order Nos. 3848781 and
2848782 ARE MODIFIED as non-"S&S" Orders, and as
modified, they ARE AFFIRMED.
2. The respondent shall pay civil penalty assessments
in the amounts shown above for the violations that
have been affirmed. Payment is to be made to MSHA
within thirty (30) days of the date of this decision
and order, and upon receipt of payment, this matter
is DISMISSED.
George A. Koutras
Administrative Law Judge
Distribution:
Ann Noble, Esq., Office of the Solicitor, U.S. Department
of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)
Stephen Kepp, S & M Construction, Inc., P.O. Box 2606,
Gillette, WY 82717 (Certified Mail)
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