Secretary of Labor, MSHA v. BHP Navajo Coal Company

Plain-English summary

MSHA brought nine citations concerning dust visibility, gasoline storage and piping, electrical conditions, workplace examinations, and other surface-mine hazards at BHP Navajo's large New Mexico coal mine. Judge Richard W. Manning vacated the dust-visibility citation because the Secretary did not prove that dust significantly blocked the loader operators' view. He also vacated a fuel-line shutoff-valve citation because the cited standard did not require the additional valves alleged by the inspector. The judge affirmed or modified the remaining litigated citations, often reducing likelihood, affected-person counts, or penalties where the Secretary's gravity evidence was overstated. Two citations were settled, and BHP Navajo was ordered to pay $21,407 total.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.202, 77.400(a), 77.504, 77.1103(a)-(c), 77.1104, 77.1607(i), and 77.1713(a)
• Outcome: Two citations were vacated, five litigated citations were modified, two citations were settled, and $21,407 was assessed.
• Key point: The Secretary must prove the precise regulatory requirement and the claimed gravity; visible dust or a hazardous fuel area alone does not establish every cited violation or severity level.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

721 19th
Street, Suite 443

Denver, CO 80202-2536

303-844-5267/ FAX
303-844-5268

January 7, 2014

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

Petitioner,

v.

BHP NAVAJO COAL COMPANY,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. CENT 2012-199

A.C. No. 29-00097-271526

Navajo Mine

DECISION

Appearances:
Bryan Kaufman, Esq., Office of the Solicitor, U.S. Department of Labor, Denver,
Colorado, for Petitioner;

Charles
W. Newcom, Esq., Sherman & Howard LLC, Denver, Colorado, for Respondent.

Before:                        Judge Manning

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

BHP Navajo operates a large surface coal mine in
San Juan County, New Mexico. A total of seven section 104(a) citations were
adjudicated at the hearing. Two section 104(a) citations were settled
immediately before the hearing and therefore were not adjudicated. The
Secretary proposed a total penalty of $103,037.00 for the adjudicated citations.

I. DISCUSSION WITH
FINDINGS OF FACT

AND CONCLUSIONS OF
LAW

A. Citation No. 8141178

On September 20, 2011, Inspector Danny
Craig Cerise issued Citation No. 8141178 under section 104(a) of the Mine Act,
alleging a violation of section 77.202 of the Secretary’s safety standards. (Ex.
G-2). At hearing, the Secretary amended the citation to allege a violation of
section 77.1607(i). The citation states that float coal dust enveloped two
front end loaders that were loading coal from a stockpile into a train. The
dust made it “difficult to see rail cars.” Id. Inspector Cerise
determined that an injury was reasonably likely to occur and that such an
injury could reasonably be expected to result in lost workdays or restricted duty.
Further, he

determined that the violation was Significant and
Substantial (“S&S”), the operator’s negligence was moderate, and that two
persons would be affected. Section 77.1607(i) of the Secretary’s safety
standards requires that during the operation of loading equipment “[d]ust control measures
shall be taken where dust significantly reduces visibility of equipment
operators.” 30 C.F.R. § 77.1607(i). The Secretary proposed a
penalty of $1,304.00 for this citation.

For the reasons set forth below, I
vacate Citation No. 8141178.

Discussion
and Analysis

I find that the Secretary did not fulfill his
burden to show that Respondent violated section 77.1607(i). The Secretary must
prove the existence of a violation by a preponderance of the evidence. RAG
Cumberland Resources Co., 22 FMSHRC 1066, 1070 (Sept. 2000). Based upon the
inspector’s testimony and photographs, the dust reduced the visibility of the loader
operators. (Tr. 19-22; Ex. R-A). The Secretary did not show, however, that the
dust significantly reduced visibility of the equipment operators in
question. The photos in Respondent’s Exhibit A and the Secretary’s Exhibit 2 do
not conclusively show that the dust significantly reduced the visibility to the
loader operators such that a safety hazard was created. Although the dust is
thick in some places, those sections are generally below the cab of the
loaders, which would not significantly reduce the operators’ visibility. The
dust dissipated as soon as the loaders moved. Other than the two loaders, there
were no obstructions or other equipment in the loading area. (Exs. G-2, R-A). The
inspector, furthermore, did not have a view from inside the cab during
operation and he observed the cited conditions from a distance. (Tr. 37; Ex.
G-2). The operators of the vehicles told the inspector that their visibility
was unaffected by the dust clouds. (Tr. 37). Respondent, moreover, watered the
roadways in the cited area to combat dust. (Tr. 42, 60). The Secretary did not
present sufficient evidence to show that the cited condition significantly obscured
the visibility of the operators of the equipment in question. I hereby VACATE
Citation No. 8141178.

B. Citation No. 8567301

On September 20, 2011, Inspector Jeff
D. (Bill) Scott issued Citation No. 8567301 under section 104(a) of the Mine
Act, alleging a violation of section 77.1103(b) of the Secretary’s safety
standards. (Ex. G-5). The citation states that the operator “failed to install
flexible connections to prevent adverse effects from the tank settling.” Tank
movement possibly pushed the conduit clamps off and damaged a steel pipe and
union, creating a constant drip of gasoline. The condition existed for more
than a shift to weeks; large paint blister developed from the leaking gasoline
and a large vapor ball existed. Id. Inspector Scott determined that an
injury was highly likely to occur and that such an injury could reasonably be
expected to result in a fatal injury. Further, he determined that the violation
was S&S, the operator’s negligence was moderate, and that nine persons
would be affected. Section 77.1103(b) of the Secretary’s safety standards
mandates that “[o]utlet piping shall
be provided with flexible connections or other special fittings to prevent
adverse effects from tank settling.” 30 C.F.R. § 77.1103(b). The Secretary
proposed a penalty of $32,810.00 for this citation.

For the reasons set forth below, I modify
Citation No. 8567301. I find that the cited conditions were reasonably, not
highly likely, to cause a serious injury and I find that fewer than nine
persons would be affected.

Discussion
and Analysis

Inspector Scott issued Citation Nos. 8567301,
8567302, 8567303, and 8567304 at the North Plant of the mine. The North Plant
was a large open area that contained maintenance facilities and a laboratory. (Ex.
R-D). Along the south side of this plant there were bulk storage tanks
containing diesel fuel and gasoline. These tanks were on a concrete pad that
was a few feet below ground level and there was a concrete retaining wall
around the tanks. (Ex. R-B). The roadway entrance to the North Plant was on the
north side. A fueling station was located to the west of the storage tanks. There
was a chain-link fence along the south side of the North Plant behind the fuel
tanks but there was at least one opening in the fence that constituted a
principal means of access because miners could use that opening to enter the
area on foot from a parking lot. (Tr. 177; Ex. R-D). There was no roadway
entering the North Plant from the south.

I find that the conditions cited in
Citation No. 8567301 violated section 77.1103(b). The cited fuel tank lacked a
flexible connection to prevent adverse effects caused by the tank settling. Although
one end of the cited fuel line had a flexible connection, the end attached to
the fuel tank did not. (Tr. 101-02). As a result, a conduit clamp was missing
from one section of the fuel line and the fuel tank leaked gasoline. (Ex. G-5
at 4). I find that this damage was most likely caused by the lack of a flexible
connection between the fuel tank and the fuel line. Respondent argues that the
Secretary did not show that the cited tank settled and also asserts that the
fuel line had numerous and sufficient flexible connections. I credit the
inspector’s testimony that the settling of the tank combined with the lack of
the specific flexible connection between the fuel tank and line caused the
broken conduit clamp and leak. (Tr. 111-12). Although the cited fuel line did
have flexible connections, it lacked a flexible connection at the vital
juncture where the tank and fuel line met. The fact that the leak occurred at
that point suggests that the leak was caused by movement of the tank itself and
not of the fuel lines. The lack of a flexible connection between the tank and
fuel line caused the adverse effect of a fuel leak when the tank settled.

Citation No. 8567301 was S&S.[1]
The missing flexible connection contributed to the gasoline leak at the union
between the fuel tank and fuel line, which caused the hazard of fire or explosion.
Fires and explosions can cause injuries including burns and smoke inhalation
that could be fatal. I credit the inspector’s testimony that potential ignition
sources existed. (Tr. 134-36). These ignition sources included damaged
electrical conductors, a static charge, and welding equipment. I recognize that
these ignition sources were not always present, but it appears that the
gasoline leak existed for a considerable length of time and there is no
indication that it would have been corrected in the near future. Both the
inspector and Leonard Palmer, who dealt with injuries and escorted inspectors
for Respondent, smelled gasoline as they approached the fuel tanks and saw the
gas actively leaking from the tank. (Tr. 90, 115, 285-87). They differed as to
the strength of the odor. The inspector also averred that the gas leak could
create a dangerous “vapor ball” that could be ignited. (Tr. 90-91). I find that,
assuming continuing mining operations, the leaking gasoline would have
contributed to the cause and effect of a significant hazard of a fire or
explosion that would reasonably likely injure a miner.

Although the facts presented by the
Secretary convince me that a serious injury was reasonably likely, I find that the
Secretary did not fulfill his burden to prove that an injury was highly likely.
The testimony of the inspector and other evidence presented by the Secretary fails
to show the cited condition was highly likely to lead to an injury or even to
quantify how likely the cited conditions were to contribute to an injury. Despite
numerous and specific questions pertaining to the likelihood of an injury
occurring, the inspector would only testify that injuries caused by the cited
condition would be serious in nature and should have been obvious to miners. (Tr.
137-38). The inspector stated the conclusion that the cited condition was
highly likely to contribute to an injury, but did not provide an explanation
why it was highly likely to do so. (Tr. 139).

The inspector’s testimony
concerning possible ignition sources focuses on the contact of those sources
with the vapor ball. I do not credit the inspector’s testimony that the leaking
gasoline could have created a vapor ball capable of being ignited from as far
away as the laboratory to the east of the tanks or the employee parking lot to
the south. The leak was simply a drip that occurred every few seconds. Palmer
testified that the smell was not much stronger than what motorists would
encounter at a gasoline service station. (Tr. 284). Most importantly, this bulk
fuel storage facility was located outside, away from any buildings in an open
area on the high plains where breezes are almost always present. Any vapors
would quickly dissipate to a level that would be neither explosive nor
flammable. My S&S finding is based upon the contribution of the violation
to a fire or explosion if an ignition source came within a few feet of the
leak. I find it was not highly likely that flammable vapor would come into
contact with ignition sources that were not directly adjacent to the fuel
tanks. (134-35). Citation No. 8567301 was S&S because it was reasonably
likely to cause a serious injury with continued operations.

Respondent’s moderate negligence
caused the violation cited in Citation No. 8567301. Both the inspector and
Palmer smelled the gasoline leaking from the fuel line from a distance and saw
the leak once they approached it. (Tr. 285, 287, 115-17). Respondent should
have known of the cited condition.

I modify Citation No. 8567301 from
highly likely to reasonably likely to cause an injury. I also find that fewer
than nine persons would be affected by the violation. The inspector’s testimony
concerning the number of persons affected was vague, unconvincing, and seemed
to include every miner who approached him out of curiosity. (Tr. 139-40). I
find it more likely that only one or two miners would be in the area at the
same time in the event of a fire. Firefighting personnel and first responders
were less likely to be injured especially considering the open area around the
fuels tanks. The gravity was serious. A penalty of $10,000.00 is appropriate
for Citation No. 8567301.

C. Citation No. 8567302

On September 21, 2011, Inspector
Scott issued Citation No. 8567302 under section 104(a) of the Mine Act,
alleging a violation of section 77.1103(c) of the Secretary’s safety standards.
(Ex. G-5). The citation did not specify how the standard was violated, but the
inspector testified that the cited fuel lines lacked shutoff valves. (Ex. G-6;
Tr. 104). Inspector Scott determined that an injury was highly likely to occur
and that such an injury could reasonably be expected to be fatal. Further, he
determined that the violation was S&S, the operator’s negligence was moderate,
and that nine persons would be affected. Section 77.1103(c) of the Secretary’s safety
standards mandates that “[f]uel
lines shall be equipped with valves to cut off fuel at the source and shall be
located and maintained to minimize fire hazards.” 30 C.F.R. § 77.1103(c).
The Secretary proposed a penalty of $32,810.00 for this citation.

For the reasons set forth below, I vacate
Citation No. 8567302.

Discussion
and Analysis

The condition cited in Citation No. 8567302 did
not violate section 77.1103(c) and I therefore vacate Citation No. 8567302. The
cited gasoline tank was equipped with valves that cut off the fuel at the
source. Ned Begay, a safety specialist for Respondent, testified that an electric
emergency cut off switch was 68 feet from the fuel tanks and could cut off the
fuel from all three tanks. (Tr. 246-47; Ex. R-B at 11). The solenoid for the
electric cut off switch was located a few inches from the tanks and would shut
off the fuel at that location when the switch was activated. (Tr. 317, 330-31;
Ex. G-6 at 3). George Kelly, a business process data coach for Respondent,
corroborated Begay’s testimony, but also testified that there was a manual
shutoff valve on the discharge side of each of the tanks. (Tr. 314). The
inspector also testified that manual shut off valves existed. (Tr. 187-88). Based
upon the cited testimony, I reject the Secretary’s argument that the fuel shut
off valves would not cut off fuel at the source; the solenoid switch was only
inches from the cited tank, which was the source of the fuel. The switch to
operate that solenoid was 68 feet from the tank and could be accessed safely in
the event of an emergency. I hereby VACATE Citation No. 8567302.

D. Citation No. 8567303

On September 20, 2011, Inspector
Scott issued Citation No. 8567303 under section 104(a) of the Mine Act,
alleging a violation of section 77.1103(a) of the Secretary’s safety standards.
(Ex. G-7). The citation states that the operator did not post required placards
upon the south and east sides of fuel tanks. Id. Inspector Scott
determined that an injury was highly likely to occur and that such an injury
could reasonably be expected to be fatal. Further, he determined that the
violation was S&S, the operator’s negligence was moderate, and that nine
persons would be affected. Section 77.1103(a) of the Secretary’s safety
standards mandates that “[f]lammable
liquids shall be stored in accordance with standards of the National Fire
Protection Association.” 30 C.F.R. § 77.1103(a). The Secretary proposed
a penalty of $32,810.00 for this citation.

For the reasons set forth below, I modify
Citation No. 8567303. I find that the cited condition was a violation of
section 77.1103(a) and the result of Respondent’s moderate negligence, but was
unlikely to lead to a serious injury and would not affect nine people.

Discussion
and Analysis

I find that Respondent violated section
77.1103(a). The National Fire Protection Association (“NFPA”) requires that, at
a minimum, warning placards must be posted at “[e]ach principal means of access
to an exterior storage area” of flammable liquids. (Ex. G-16). Respondent did
not have placards upon the south and east sides of the cited fuel tank. (Tr.
151).

I find, however, that Citation No. 8567303 was
not S&S. The cited absence of warning placards was not reasonably likely to
lead to a serious injury in the event of a fire. Violations involving safety
during an emergency should be evaluated in the context of the contemplated
emergency. Cumberland Coal Resources LP, 33 FMSHRC 2357 (Oct. 2011),
2366 aff’d 717 F.3d 1020 (D.C. Cir. 2013). The NFPA placards serve to
provide information about flammable materials to firefighters and other
responders in the event of a fire. The main entrance to the fueling area was on
the north side of the plant and that entrance was the only entrance for
vehicles. (Tr. 176). Placards were posted upon the fuel tanks in a position
visible from the north. (Tr. 178; Ex. R-B). I credit Val Lynch’s testimony that
access from the main gate of the mine to fueling area was via the haul road to
the north of the plant and that firefighters were unlikely to approach the fire
from the south or east. (Tr. 351, 359, 362). Even if the wind blew from the
south or east, the approach would be from the north and west. The tanks were
clearly marked from those directions. In addition, firefighters would be
unlikely to fight a fire with a fence to their backs. The missing placards were
not reasonably likely to contribute to a serious injury because firefighters
would see the placards upon the north and west sides of the tanks.

I find that Citation No. 8567303
was the result of Respondent’s moderate negligence. The fuel tanks formerly had
placards upon the south and east sides and Jay Arnold, an electrician at the
mine, testified that he had requested that these placards be replaced. (Tr.
214). Respondent should have known of the cited condition. For the reasons
discussed in reference to Citation No. 8567301, I find that fewer than nine
persons would be affected by the cited condition. The gravity was low. A
penalty of $2,000.00 is appropriate for Citation No. 8567303.

E. Citation No. 8567304

On September 21, 2011, Inspector
Scott issued Citation No. 8567304 under section 104(a) of the Mine Act,
alleging a violation of section 77.1713(a) of the Secretary’s safety standards.
(Ex. G-8). The citation stated that the “[r]equired on Shift Examination Record
Book reflects an inadequate examination and/or no examination of the fuel Tanks
and Fuel Island.” Id. Inspector Scott determined that an injury was unlikely
to occur and that any injury could reasonably be expected to result in lost
workdays or restricted duty. Further, he determined that the operator’s
negligence was moderate and that nine persons would be affected. Section 77.1713(a)
of the Secretary’s safety standards mandates that “[a]t least once during each working shift…each active working
area and each active surface installation shall be examined by a certified
person…any hazardous conditions noted during such examinations shall be
reported to the operator and shall be corrected by the operator.” 30
C.F.R. § 77.1713(a). The Secretary proposed a penalty of $897.00 for this
citation.

For the reasons set forth below, I modify
Citation No. 8567304 to reflect that fewer than nine persons would be affected
by the cited condition.

Discussion
and Analysis

I find that Respondent violated section
77.1713(a). I credit the inspector’s testimony that the examinations were not
performed. None of Respondent’s examination books show that the cited fuel tank
was examined, no foreman could tell the inspector who was responsible for the
examinations, and Respondent did not produce a witness with personal knowledge
of the actual performance of the examinations.[2]
(Tr. 158). Respondent argues that it examined the tanks, but did not record the
examination in the books because no hazards were found and that Kelly’s
testimony proves this argument because it establishes the “usual procedure” of
the examinations. (Respondent’s Br. at 11; Tr. 311-12). I reject Respondent’s
argument because Kelly did not have actual knowledge that the examinations were
performed. He could only testify that the examinations of the fuel tanks should
have been performed based upon procedure. Kelly testified, furthermore, that if
examinations of the fuel tanks were performed, procedures insured that the area
would be listed in the books under “active surface installation/work area
examined.” (Tr. 332-33; Ex. G-14). The records show no such entry. The
examination records and testimony by both Kelly and Inspector Scott show that
Respondent performed no examinations in September. For the reasons discussed concerning
Citation No. 8567301, I find that fewer than nine persons would be affected by
the cited condition. This violation was particularly serious because on-shift
examinations are crucial to the maintenance of a safe workplace. Respondent’s
negligence was high given the importance that should be placed upon pre-shift
and on-shift examinations. An increased penalty of $5,000.00 is appropriate for
Citation No. 8567304 taking into consideration the serious nature of the
violation and Respondent’s negligence.

F. Citation No. 8466798

On September 20, 2011, Inspector
Scott issued Citation No. 8466798 under section 104(a) of the Mine Act,
alleging a violation of section 77.202 of the Secretary’s safety standards. (Ex.
G-3). The citation stated that the operator allowed dangerous amounts of coal
dust and moisture residue to accumulate in the energized digger wheel control
cabinet, creating a fire hazard. The door seals were cracked and damaged, coal
dust was upon the walls, wires, contactors, and the floor of the box and
evidence of water movement was present. Id. Inspector Scott determined
that an injury was reasonably likely to occur and that such an injury could reasonably
be expected to result in lost workdays or restricted duty. Further, he
determined that the violation was S&S, the operator’s negligence was
moderate, and that one person would be affected. Section 77.202 mandates that “[c]oal dust in the air of, or in, or on
the surfaces of, structures, enclosures, or other facilities shall not be
allowed to exist or accumulate in dangerous amounts.” 30 C.F.R. § 77.202.
The Secretary proposed a penalty of $1,203.00 for this citation.

For the reasons set forth below, I modify
Citation No. 8466798; the cited condition was unlikely to cause a serious
injury and was non-S&S.

Discussion
and Analysis

I find that the conditions cited in Citation No.
8466798 violated section 77.202. Respondent argues that the Inspector did not
prove that a dangerous amount of coal dust accumulated in the cited area. The
Commission has held, with reference to electric control boxes cited under
section 77.202, that “if a ‘potential’ ignition source is present in the
vicinity of an accumulation, the accumulation is dangerous within the meaning
of the standard.” Pittsburg & Midway Coal Mining Co., 8 FMSHRC
4, 6 (Jan. 1986). The inspector testified that the cited accumulations were
exposed to the control contacts that could arc, leading to ignition or
explosion, just as in Pittsburg & Midway Coal. (Tr. 378). Although
the inspector’s testimony and some of the photos show minimal amounts of
accumulations, the inspector testified that the largest amount of accumulations
occurred at the bottom of the control box. The picture depicting the top of the
cited box also reveals a significant amount of coal accumulations that could
easily fall into the box through the unsealed edge of the door. (Ex. G-5 at 5;
Tr. 377). I find that Respondent allowed coal dust to exist or accumulate in dangerous amounts upon and
within the cited box in violation of section 77.202.

I find that Citation No. 8466798 was not S&S.
Respondent’s violation of 77.202 contributed to the safety hazard of a fire or
explosion, which could cause a variety of serious injuries, but was not
reasonably likely to do so. The Secretary argues that moisture could cause a
direct short or the contactors could go phase-to-phase, either of which would
cause an explosion. Although the cited conditions were dangerous, they are not
reasonably likely to cause a serious injury because the ignition sources were
unlikely to ignite a fire. The contacts and components in the control box
described by the inspector were undamaged. To ignite the coal fines the
electrical components in the control box must first malfunction. The Secretary
did not provide any evidence that a malfunction was at all likely. In addition,
I find that it was not established that it was reasonably likely the moisture
detected by the inspector would be sufficient to create an arc that would ignite
the coal dust. The conditions cited in Citation No. 8466798 were not reasonably
likely to contribute to an injury. Respondent’s negligence was moderate.

A penalty of $800.00 is appropriate for Citation
No. 8466798.

G. Citation No. 8466799

On September 20, 2011, Inspector
Scott issued Citation No. 8466799 under section 104(a) of the Mine Act,
alleging a violation of section 77.400(a) of the Secretary’s safety standards. (Ex.
G-4). The citation stated that a guard on the No. 5162 belt had “broken loose
and was flopping around,” creating an opening that was 12 by 1.5 inches. Id.
The guard contacted the moving parts. The condition existed for multiple shifts
or days and created a cutting or smashing hazard. Id. Inspector Scott
determined that an injury was reasonably likely to occur and that such an
injury could reasonably be expected to result in lost workdays or restricted
duty. Further, he determined that the violation was S&S, the operator’s
negligence was moderate, and that one person would be affected. Section 77.400(a)
of the Secretary’s safety standards mandates that “exposed moving machine parts which may be contacted by
persons, and which may cause injury to persons shall be guarded.” 30
C.F.R. § 77.400(a). The Secretary proposed a penalty of $1,203.00 for this
citation.

For the reasons set forth below, I modify
Citation No. 8466799 to be unlikely and non- S&S.

Discussion
and Analysis

I find that the conditions cited in Citation No.
8466799 violated section 77.400(a). The Commission
has held that a violation of section 77.400(a) requires a “reasonable
possibility of contact and injury” that includes “contact stemming from
inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness.”
Thompson Brothers Coal Company, Inc., 6 FMSHRC 2094, 2097 (Sept.
1984). To determine whether a reasonable possibility
exists, the Commission stated that all “relevant exposure and injury variables,
e.g., accessibility of the machine parts, work areas, ingress and egress, work
duties, and as noted, the vagaries of human conduct” must be considered,
emphasizing that “the vagaries of human conduct” cannot be ignored. Id. Respondent
argues that its policy prohibited entry into the area of the cited guard while
the piece of equipment operated and a yellow cable surrounded the area. (Tr.
434-35). Neither the policy nor the rope, however, provided a physical barrier
that would surely stop a miner from entering the area due to human carelessness
or the vagaries of human conduct. Respondent also argues that the unguarded
area was too small for a miner to contact unless they did so advertently. I
credit the inspector’s testimony that a miner could use the guard for stability
when moving through the area from platform to platform. (Tr. 412-15). While
grabbing the guard, a miner could inadvertently place his hand or fingers
through the hole in the guarding.[3]
The condition cited in Citation No. 8466799 violated section 77.400(a).

I find that Citation No. 8466799 was not
S&S; although it was possible for a miner to contact the pulley due to the
cited guard, it was not reasonably likely. Respondent’s policy that miners
could not approach the area of the cited guard while the machine operated was
buttressed by the yellow cord, a clear indication to miners to avoid the area,
which makes miners entering the area unlikely. The inspector also testified
that miners would enter the area while the machine operated to examine the
machine if they suspected an operational problem. (Tr. 430-31). This testimony
was speculative and, even if it were correct, a miner searching for a problem
would be wary of safety issues, making that miner less likely to contact an
unguarded area. Miners were unlikely to enter the area of the cited condition
and therefore not reasonably likely to sustain a serious injury. The
inspector’s statement in the citation that the guard “was flopping around” is
pure speculation because he admitted that the equipment was not operating at
the time of his inspection. (Tr. 424).

Citation No.
8466799 was the result of Respondent’s moderate negligence because Respondent
should have known of the cited condition. I credit the inspector’s testimony
that condition existed for multiple shifts or even days. I find that a penalty
of $800.00 is appropriate for Citation No. 8466799.

II. SETTLED
CITATIONS

The parties settled two of the
citations in this case. (Tr. 8). Respondent agreed to withdraw its contest of
Citation No. 8466796. The Secretary agreed to modify Citation No. 8467305 to
delete the S&S determination because an injury was unlikely. The penalty is
reduced to $2,000.

III. APPROPRIATE CIVIL PENALTIES

Section 110(i) of
the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. I have considered the Assessed Violation History
Reports, which demonstrate that during the 15 months preceding the issuance of
the citations in this case, Respondent was issued 121 citations and 52 of these
citations were S&S. (Ex. G-15). At all pertinent times, Respondent was a
large coal mine operator. The violations were abated in good faith. The
penalties assessed in this decision will not have an adverse effect upon the
ability of BHP Navajo Coal Company to continue in business. The gravity and
negligence findings are set forth above. In those instances in which I reduced
the penalty from that proposed by the Secretary, I did so because, based upon
the evidence presented at the hearing, I found that the likelihood of an injury
was not as great as the Secretary believed and the number of people who would
reasonably be affected by the violation was not as great as the Secretary assumed.

IV. ORDER

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

Citation No.                                        30
C.F.R. §                              Penalty

8466796                                              77.504                        
           807.00

8141178                                              77.1607(i)                   
VACATED

8466798                                              77.202                                     800.00            

8466799                                              77.400(a)                                 800.00

8467301                                             77.1103(b)                          10,000.00

8467302                                              77.1103(c)                  
VACATED                

8467303                                              77.1103(a)                            2,000.00

8467304                                              77.1713(a)                            5,000.00

8467305                                              77.1104                                2,000.00

TOTAL PENALTY                                $21,407.00

For the reasons set forth above, I VACATE
Citation Nos. 8141178 and 8567302 and MODIFY Citation Nos. 8567301,
8567303, 8567304, 8466798, and 8466799. BHP Navajo Coal Company is ORDERED
TO PAY the Secretary of Labor the sum of $21,407.00 within 30 days of the
date of this decision.[4]

/s/
Richard W. Manning

Richard
W. Manning

Administrative
Law Judge

Distribution:

Bryan Kaufman, Esq., Office of the Solicitor, U.S.
Department of Labor, 1244 Speer Blvd., Suite 515, Denver, CO, 80202-5708 (Certified
Mail)

Charles W. Newcom, Esq., Sherman & Howard LLC, 633 17th
Street, Suite 3000, Denver, CO 80202-5708 (Certified Mail)

[1]
An S&S violation is a
violation “of such nature as could significantly and substantially contribute
to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. §
814(d) (2006). A violation is properly designated S&S “if, based upon the
particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness
of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981). In order to establish the S&S nature of a violation,
the Secretary must prove: “(1) the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard – that is, a measure of danger to safety
– contributed to by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable likelihood that
the injury will be of a reasonably serious nature.” Mathies Coal Co., 6
FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc., 52 F.3d
133, 135 (7th Cir. 1995).

[2]
Much like the foremen interviewed by Inspector Scott, Palmer testified that the
examinations occurred, but his testimony was inconclusive concerning who
performed them. (Tr. 297-300).

[3] The standard is not limited to inadvertent or
accidental conduct. See Mainline
Rock and Ballast, Inc., 693 F.3d 1181, 1185 (10th Cir. 2012).

[4]
Payment should be sent to the Mine Safety and Health Administration, U.S.
Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.