Secretary of Labor v. Leeco Incorporated

Plain-English summary

A continuous mining machine operator at Leeco's No. 68 Mine was fatally pinned against the rib in June 2010 after entering the machine's red zone, two months after the mine superintendent had counseled him about operating too close to that zone. Leeco stipulated to the violation of its roof control plan and to the violation being significant and substantial, so the only contested issue was negligence. Judge Thomas P. McCarthy had originally found moderate negligence, reasoning that MSHA's long-published Fatalgram best practices spelled out what a careful operator should have done, such as written tramming procedures, monitoring of work habits, engineering controls, or a helper. A Commission majority reversed, holding the Secretary never put on evidence of what a reasonably prudent operator would have done, so negligence could not be found. On remand the judge set out at length why he believes a judge may rely on MSHA's own published best practices, then accepted the Commission's no-negligence holding as the law of the case. Applying the six statutory penalty criteria with negligence removed but gravity still serious, he assessed $4,500 instead of the $21,442 MSHA proposed.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.220(a)(1) (roof control plan)
• Outcome: Citation No. 8359591 affirmed as modified by the Commission with no negligence attributed to Leeco, and the penalty reduced from the proposed $21,442 to $4,500.
• Key point: Under the Commission's ruling in this case, the Secretary must put evidence in the record of what a reasonably prudent operator would have done, because a judge cannot supply that standard from MSHA's published guidance alone.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

LEECO
INCORPORATED,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. KENT 2012-0166

A.C.
No. 15-17497-269552-01

Mine:
No. 68

DECISION AND
ORDER ON REMAND

Appearances:               Latasha
T. Thomas, Esq., Office of the Solicitor, U.S. Dept. of Labor,                                            Nashville,
Tennessee for Petitioner

Melanie J. Kilpatrick, Esq., Rajkovich,
Williams, Kilpatrick & True, PLLC, Lexington, Kentucky for Respondent

Before:           
           Judge McCarthy

I.
Statement of the Case on Remand

The
Mine Act is built around Congress’s fundamental declaration that “the first
priority and concern of all in the coal or other mining industry must be the
health and safety of its most precious resource – the miner.” 30 U.S.C. §
801(a); see Int’l Union, United Mine Workers of Am. v. MSHA , 823 F.2d
608, 617 (D.C. Cir. 1987). Consequently, it is critical to construe the Mine
Act in a manner that promotes miner safety.  

In
this case, continuous miner operator Bobby Smith was killed on June 24, 2010 when
he stepped into the “red zone” and was pinned against the rib just two months
after he was counseled by the mine superintendent for operating the continuous
miner machine in the “outer area [range] of the red zone.” Tr. 79-80. After
holding a hearing on the issue of negligence, because settlement was stymied by
a pending wrongful death suit, the undersigned affirmed the MSHA inspector’s
determination that the Respondent had displayed moderate negligence by failing
to meet “the standard of care that a reasonably prudent operator, with
knowledge of the goals of the Mine Act, would have undertaken in the same or
similar circumstances to ensure against any recidivism by Smith” after the
first red zone incident. Leeco, Inc. , 36 FMSHRC 1866, 1872 (July
2014) (ALJ). In what has been described by the dissenting Commissioner as
“dangerous precedent” (see Leeco, Inc. , 38 FMSHRC ___, No. KENT
2012-0166, slip op. at 8 (July 18, 2016) (Comm’r Cohen, dissenting)), a
Commission majority reversed my factual finding and credibility resolution that
it was likely that Smith would revisit the red zone again, and found that the
Secretary failed to adduce substantial evidence in the record that Leeco was
negligent in any way. [1]

Without evidence that a reasonably
prudent operator would have done more in the circumstances, it was error for
the Judge to conclude that Leeco’s response to Smith’s previous incident was
insufficient. Because the Secretary did not explain what a reasonably prudent
operator would have done under these circumstances, we cannot find the operator
to be negligent.

Leeco,
Inc. ,
38 FMSHRC ___, No. KENT 2012-0166, slip op. at 6 (July 18, 2016).

The
Commission recognized, as did I, that there were shortcomings in the
Secretary’s attempt to show what the operator “should have done” to meet its
standard of care. Because the Secretary did not spell out the specific measures
the operator should have taken to prevent Smith from approaching the red zone
again, the Commission majority faults my reliance on such measures to establish
that the operator should have exercised greater care under the roof control
plan. What the Commission may not have recognized, given the paucity of the
evidentiary record, is that I looked to the public record, to “best practice”
measures promulgated by the Secretary to Leeco, the mining industry, and the
public, to spell out the specific measures that Leeco should have taken to
prevent Smith from approaching the red zone again.

The
majority suggests that I must have pulled these measures from the Action Plan, and
frolics into a discussion of subsequent remedial measures. As shown below, however,
my analysis was informed by the Secretary’s pre-existing and regularly published
best practices for avoiding red zone accidents as set forth by MSHA in
Fatalgrams, which have been issued to Leeco, the mining community, and the
public for many years prior to June 24, 2010. [2]
Had I failed to consider these best practices in determining the appropriate
standard of care, I would have been feigning ignorance of the Fatalgrams and
closing my eyes to the fact that red zone accidents have been a focus of MSHA’s
prevention efforts because the accidents are a leading and recurring cause of
serious injury and death. In consideration of MSHA’s best practices as set
forth in Fatalgrams, I found the following:

In short, Respondent failed to take
sufficient steps to ensure that mining machine operators, including Smith, were
outside the machine’s turning radius before starting or moving the equipment,
or to ensure that they were in a safe location while tramming the continuous
miner from place to place, or repositioning the miner in the entry during
cutting and loading. Although Respondent generally trained production crews and
management to understand the hazards associated with avoiding red zones, there
is no evidence that Respondent established any specific programs, policies, and
procedures for avoiding red zone areas. [ [3] ]
There is also no evidence that Respondent routinely monitored work habits to
ensure that operators were avoiding red zones. [ [4] ]
No engineering controls were in place to prevent this type of fatality. [ [5] ]
Nor did Respondent assign another miner or buddy to assist Smith or other
continuous miner operators when the miner was being moved or repositioned. [ [6] ]
In these circumstances, Respondent failed to follow many of the best practices
promulgated by MSHA. Accordingly, the citation was appropriately written with
moderate negligence.

Leeco,
Inc. ,
36 FMSHRC 1866, 1872 (July 2014) (ALJ) (footnotes added).

The
footnotes above identify the Fatalgram principles that I relied on to pinpoint
the sources of my knowledge of red zone hazards. I could have, and perhaps
should have, expressly taken notice of the Fatalgrams and other MSHA public
documents in my original decision under Commission precedent. See Brody
Mining, LLC , 36 FMSHRC 2027, 2030 n.4 (Aug. 2014); Sec’y of Labor on
behalf of Acton v. Jim Walter Res., Inc. , 7 FMSHRC 1348, 1355 n.7 (Sept.
1985).  I could have, and perhaps should have, also taken notice pursuant to
the broad doctrine of official notice under the Administrative Procedure Act. 5
U.S.C. § 556(e) (applicable to Commission proceedings under Commission
Procedural Rule 1(b), 29 C.F.R. § 2700.1(b)); see Sykes v. Apfel , 228
F.3d 259, 272 (3d Cir. 2000) (noting that APA provision is broader than judicial
notice provision at Federal Rule of Evidence 201, in that APA provision permits
notice of “technical or scientific facts that are within the agency’s area of
expertise”).

Even without such explicit notice,
however, it was apparent to me, based on specialized knowledge acquired from
the specified Fatalgram best practices, that a reasonably prudent person who
was familiar with the history of red zone accidents in the underground coal
mining industry and the guidance and recommendations that MSHA has produced on
this subject, and who was also familiar with the fact that Smith was counseled
after approaching the red zone just two months earlier, would conclude that additional
measures could have and should have been taken by Leeco to prevent Smith from
approaching the red zone again. Indeed, the Supreme Court has taken a
permissive stance toward allowing administrative agencies to make decisions
based on facts within their “special knowledge,” even if these facts are not
part of the formal record. See, e.g. , City of Erie v. Pap’s A.M. ,
529 U.S. 277, 298 (2000) (noting that an administrative agency “is not confined
to the evidence in the record in reaching its expert judgment”); Republic
Aviation Corp. v. NLRB , 324 U.S. 793, 800 (1945) (rejecting argument that
administrative tribunal had impermissibly “substitute[d] its knowledge of
industrial relations for substantive evidence”). See also American
Coal Co. , 38 FMSHRC __, No. LAKE 2011-13, slip op. at 7 (Aug. 25, 2016)
(citing 30 U.S.C. § 823(a) and Thunder Basin Coal Co. v. Reich , 510 U.S.
200, 214 (1994), to emphasize the “Commission’s expertise” in construing the
Mine Act).

In my view, a Commission administrative
law judge should be permitted to rely on the type of specialized knowledge set
forth by MSHA in Fatalgrams promulgating best practices in red zone cases. Those
best practices, which were summarized in my initial decision in this case, were
not based on the Action Plan or subsequent remedial measures. They arise from MSHA’s
pre-existing and widely publicized best practices in red zone Fatalgram cases,
which the Commission has discounted because of insufficient evidence of record
put on by the Secretary.    

In
sum, despite the ample public information regarding what Leeco could have done
– and, in my view, should have done – to prevent Smith’s recidivism and death, I
accept the Commission majority’s decision that Leeco was in no way negligent as
the law of the case. Accordingly, as directed on remand, I determine the
appropriate penalty based on the Commission majority’s finding that Respondent
was in no way negligent on this record when Smith was killed after again
visiting the red zone just two months after being counseled not to do so.

II.
Penalty Assessment Principles

The Act requires that the Commission
consider the following statutory criteria when assessing a civil penalty: (1)
the operator’s history of previous violations; (2) the appropriateness of the
penalty to the size of the business; (3) the operator’s negligence; (4) the
operator’s ability to stay in business; (5) the gravity of the violation; and
(6) any good-faith compliance after notice of the violation. Douglas R.
Rushford Trucking , 22 FMSHRC 598, 600 (May 2000); 30 U.S.C. § 820(i). The
Commission is not required to give equal weight to each of the criteria, but
must provide an explanation for any substantial divergence from the proposed
penalty based on such criteria. Spartan Mining Co. , 30 FMSHRC 699, 723
(Aug. 2008).

As I discussed in my final Big Ridge
decision, in an effort to avoid the appearance of arbitrariness, I look to the
Secretary’s penalty regulations and assessment formula as a reference point
that provides useful guidance when assessing a civil penalty. Big Ridge Inc. ,
36 FMSHRC 1677, 1681-82 (July 2014) (ALJ); see also Wade Sand &
Gravel , 37 FMSHRC 1874, 1880 n.1 (Chairman Jordan and Commissioner
Nakamura, concurring); Bowles v. Seminole Rock & Sand Co. , 325 U.S.
410, 414 (1945) (holding that an agency’s interpretation of its own regulation
should be given controlling weight unless it is plainly erroneous or
inconsistent with the regulation). This formula is not binding, but operates as
a lodestar, since factors involved in a violation, such as the level of
negligence, may fall on a continuum rather than fit neatly into one of five
gradations. Unique aggravating or mitigating circumstances will be taken into
account and may call for higher or lower penalties that diverge from this
paradigm. My independent and de novo penalty assessment of the citation in this
case is explained below.

The Secretary
proposed a penalty of $21,442 for the violation after considering the six
statutory penalty criteria under the penalty formula set forth in 30 C.F.R.
Part 100.  The parties stipulated to the fact of the violation under 30 C.F.R.
§ 75.220(a)(1) and to the fact that the violation was significant and
substantial (“S&S”), that one miner was fatally injured, and that
Respondent abated the citation in good faith and in a timely manner.  Tr. 8;
Sec’y’s Br. 2; Resp’t’s Br. 1. Accordingly, I find that the gravity of the
violation is serious. Because the Secretary failed to explain what a reasonably
prudent operator would have done under the circumstances, the Commission
majority stated that it “cannot find the operator to be negligent.”   Leeco,
Inc. , 38 FMSHRC __, slip op.at 6 (July 18, 2016). Exhibit A to the
Secretary’s penalty petition shows Leeco’s size and violation history, and
Leeco has not challenged the Secretary’s findings in this regard. Ex. S-5
(MSHA’s Assessed Violation History Report). The parties have also stipulated
that the proposed penalty will not affect Leeco’s ability to remain in business.
Tr. 8.  

Based on the
legal principles outlined above, after considering the six statutory penalty
criteria under section 110(i) of the Act, I assess a civil penalty of $ 4,500 for Respondent’s
violation of 30 C.F.R. § 75.220(a)(1).  

III. Order

It is ORDERED
that Citation No. 8359591 is AFFIRMED , AS MODIFIED by the
Commission, with a finding of no negligence attributable to Respondent Leeco. It
is further ORDERED that Respondent pay a civil penalty of $4,500 within thirty
days of this Order.

/s/
Thomas P. McCarthy

Thomas
P. McCarthy

Administrative
Law Judge

Distribution:

Melanie J. Kilpatrick, Esq., Rajkovich,
Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre Circle, Ste. 375,
Lexington, KY 40513

Latasha T. Thomas, Esq., Office of the
Solicitor, U.S. Dept. Of Labor, 211 7 th Ave. North, Ste. 420,
Nashville, TN 37219

[1] Credibility
determinations reside in the province of the administrative law judge’s
discretion, are subject to review only for abuse of that discretion, and cannot
be overturned lightly. Dynamic Energy, Inc. , 32 FMSHRC 1168, 1174 (Sept.
2010) (citing Buck Creek Coal Co ., 52 F.3d 133, 135 (7th Cir. 1995)). An
administrative law judge’s credibility findings can be very significant and
affect whether the record supports an agency’s contrary decision on
administrative appeal. See Universal Camera Corp. v. NLRB , 340 U.S. 474,
496 (1951) (considering findings by an ALJ). Furthermore, the Commission has
recently reiterated the “well established” principle that “it is not within our
power to reweigh the evidence or to enter de novo findings of fact based
on independent evaluation of the record.” See Knox Creek Coal Corp ., 38
FMSHRC ___, No. VA 2014-343-D, slip op. at 11 n.13 (Aug. 23, 2016) (citing Island
Creek Coal Co ., 15 FMSHRC 339, 347 (Mar. 1993)); see also Wellmore Coal
Corp. v. Fed. Mine Safety & Health Review Comm’n , No. 97-1280, 1997 WL
794132, at *3 (4th Cir. 1997).

[2] Fatalgrams are
notices published by MSHA to alert operators, the mining industry and the
public to tragic losses of life in the mines and to prevent recurrences in the
future by outlining best practices that all in the industry should follow. MSHA,
Preliminary Accident Reports, Fatalgrams and Fatal Investigation Reports ,
http://arlweb.msha.gov/fatals/ (last visited Sept. 1, 2016). Leeco is
familiar with Fatalgrams. Leeco’s witnesses acknowledged that before the fatality
occurred, MSHA had sent the company Fatalgrams pertaining to other red zone
accidents, and management officials had discussed these Fatalgrams in safety
meetings. Tr. 75-76, 90-91.

[3] MSHA has
repeatedly recommended that mine operators establish specific procedures for
avoiding red zone injuries when tramming mobile equipment. For example, in a
2003 Fatalgram issued after a continuous miner operator was fatally pinned to
the rib, MSHA suggested the following best practice: “Ensure that a Standard
Operating Procedure (SOP) is in place before tramming the remote controlled
continuous miner to another entry or crosscut.” MSHA, Fatalgrams and Fatal
Reports , Fatality #27 – October 22, 2003 , http://arlweb.msha. gov/FATALS/2003/fab03c27.pdf .
In 2004, after another red zone crushing fatality, MSHA reiterated: “Develop a
Standard Operating Procedure (SOP) for tramming remote-controlled continuous
mining machines. Train the production crew in the SOP and ensure that it is
followed.” Fatality #7 – April 3, 2004 , http://arlweb.msha.gov/FATALS/2004/fab04c07.pdf .
See also Fatality #23 – October 16, 2008 , http://arlweb.msha.gov/FATALS/2008/fab08c23.pdf
(“Develop proactive programs, policies, and procedures for starting and
tramming remote-controlled continuous mining machines. Train all production
crews and management in the programs, policies, and procedures and ensure that
they are followed.”), Fatality #9 – May 18, 2004 , http://arlweb.msha.gov/FATALS/2004/fab04c09.pdf
(“Establish safe operating procedures for remote control continuous mining
machine operations, including tramming and cable handling.”), Fatality #3 – February
1, 2004 , http://arlweb.msha.gov/FATALS/2004/fab04m03. pdf
(“Establish procedures and follow them, especially when employees tram a remote
controlled continuous miner.”), and Fatality #18 – August 12, 2002 , http://arlweb.msha.gov/
FATALS/2002/FAB02c18.HTM (“Establish procedures for moving machinery and
equipment.”).

As inspector Ashworth testified, the history
of coal mining has shown red zone injuries to be “a frequent type accident”
that “deserves a little more attention,” i.e., this is one of the high-risk
areas that mine operators should specifically address when developing safety
policies and training programs. Tr. 39-40, 59. As a member of the coal mining industry,
Leeco should have been aware of this before Smith died, especially since MSHA
had recently called attention to red zone hazards as part of its Safety Targets
initiative launched in 2008. See U.S. Dep’t of Labor, Office of Public
Affairs, News Release: MSHA announces major initiative to bolster mine
safety (Oct. 16, 2008), http://arlweb.msha.gov/Media/PRESS/2008/NR081016.pdf
(noting start of new “Safety Targets Training Program” to address common causes
of fatalities); MSHA, MSHA’s Safety Targets Program: Safe Operation and
Maintenance of Continuous Miners , http://arlweb.msha.gov/Safety_Targets/Continuous%20Miner%20Package/RCCM.asp
(last visited Sept. 1, 2016) (addressing red zone hazards). Yet there is no
evidence that the Respondent implemented policies specifically addressing this common,
serious hazard until after the fatality occurred.

[4] MSHA has repeatedly
made the common-sense suggestion that mine operators should monitor workers to ensure
that training programs have been effective and that proper procedures are being
followed to avoid red zone accidents. For example, in the “best practices”
section of a Fatalgram issued after a red zone crushing death in 2000, MSHA
noted that training for safe operation of equipment includes “observation of
all tasks required to be performed” and that “[p]roper follow up is required to
assure the training is understood and implemented.” Fatality #12 – May 12,
2000 , http://arlweb.msha.gov/FATALS/2000/FAB00C12.HTM . As another
example, in 2008, after yet another fatal red zone accident, MSHA recommended:
“Frequently review, retrain, and discuss avoiding the ‘RED ZONE’ areas when
operating or working near a remote controlled continuous mining machine. Follow
established safe work practices and provide periodic training along with
checks to ensure that the safe work practices have been properly
implemented.” Fatality #7 – April 18, 2008 , http://arlweb.msha.gov/FATALS/2008/
fab08c07.pdf . In the instant case, as the Commission acknowledges, a
section foreman was aware that Smith had approached the red zone on a prior
occasion while tramming the continuous miner and was told to “keep an eye out”
for this behavior, yet he admitted that he had not, in fact, watched Smith tram
the machine very often. Tr. 79-82, 111-12.

[5] Another best
practice MSHA recommended after an April 2008 red zone fatality was to
“[p]ursue new technology such as proximity detection to protect personnel and
eliminate accidents of this type.” Fatality #7 – April 8, 2008 , http://arlweb.msha.gov/FATALS/2008/
fab08c07.pdf . Several months later, after another crushing fatality, MSHA
reiterated, “Install and maintain electronic proximity detection devices. See
the proximity detection single source page on the MSHA website .” Fatality

23 – October 16, 2008 , http://arlweb.msha.gov/ FATALS/2008/fab08c23.pdf

(emphasis in original). MSHA had tested proximity detection technology at
certain mines between 2002 and 2006 and launched a “Remote Control Continuous
Mining Machine Special Initiative” to inform operators and miners of red zone
hazards in 2004, but crushing accidents continued to occur. See MSHA, Request
for Information: Proximity Detection Systems for Underground Mines , 75 Fed.
Reg. 5009, 5009-10 (Feb. 1, 2010). As a result, six months before the
occurrence of the fatality at issue in the instant case, MSHA publicly
concluded that “a safety program based on sound risk management principles
should include proximity detection systems, or some other engineering control
that addresses the hazard at the source” of the red zone crushing fatalities,
and solicited input from interested parties regarding potential regulatory
action. Id. at 5010. Ultimately, MSHA did promulgate a regulation
requiring proximity detection systems on continuous mining machines, although
the process took several years and the regulation became effective too late to have
any impact on the events of this case. See MSHA, Final Rule:
Proximity Detection Systems for Continuous Mining Machines in Underground Coal
Mines , 80 Fed. Reg. 2188 (Jan. 15, 2015) (codified at 30 C.F.R. § 75.1732).
However, it is very likely that long before the regulation was finalized, and
before Smith died, coal industry players including the Respondent would have
been well aware of MSHA’s public push to promote proximity detection or similar
engineering controls to prevent red zone crushing accidents.

[6] It is common
knowledge that a “miner helper” is sometimes assigned to aid a relatively
inexperienced continuous miner operator with tasks such as pulling cable and
moving the machine.