Gatliff Coal Company, Inc.

Plain-English summary

Gatliff Coal operated a surface coal mine where an employee died after a truck accident and workers had to leave the mine property to find a telephone because no company two-way radio was present. The Commission held that employee-owned CB radios did not satisfy the requirement for an operator-established and maintained emergency communication system. It reversed the ALJ's finding that the violation was not Significant and Substantial, affirmed that the violation was not caused by unwarrantable failure, and remanded for reassessment of the civil penalty. Commissioner Nelson dissented from the unwarrantable-failure ruling, concluding that the operator's conduct was highly negligent.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.1701
• Outcome: The non-Significant-and-Substantial finding was reversed, the no-unwarrantable-failure finding was affirmed, and the case was remanded for penalty reassessment.
• Key point: An emergency communication system must be established and maintained by the operator, and a voluntary employee-owned CB system does not satisfy that requirement.

Full text (FMSHRC public release)

Page 2

~1982

                                 December 7, 1992

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket Nos. KENT 90-100
: KENT 90-215
v. : KENT 89-242-R through
: KENT 89-252-R
GATLIFF COAL COMPANY, INC. :

BEFORE: Holen, Chairman; Backley, Doyle and Nelson, Commissioners

                                    DECISION

BY: Holen, Chairman; Backley, and Doyle, Commissioners

  This consolidated contest and civil penalty proceeding, which arises

under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq.
(1988)(the "Mine Act" or "Act"), involves the emergency communication standard
set forth at 30 C.F.R. 77.1701.(Footnote 1) This matter is before the
Commission for a second time. The Commission's initial decision reversed the
administrative law judge's decision and held that the standard had been
violated. 13 FMSHRC 1370 (September 1991). On remand, Commission Admini-
strative Law Judge Gary Melick determined that the violation was neither
significant and substantial

1 The standard provides:

     Section 77.1701 Emergency communications; requirements.

              (a)   Each operator of a surface coal mine shall
              establish and maintain a communication system from the
              mine to the nearest point of medical assistance for
              use in an emergency.

              (b)   The emergency communication system required to
              be maintained under paragraph (a) of this section may
              be established by telephone or radio transmission or
              by any other means of prompt communication to any
              facility (for example, the local sheriff, the State
              highway patrol, or local hospital) which has available
              the means of communication with the person or persons
              providing emergency medical assistance or trans-
              portation in accordance with the provisions of
              paragraph (a) of this section.

Page 3

~1983
("S&S") nor an unwarrantable failure to comply.(Footnote 2) 13 FMSHRC 1641,
1647 (October 1991). The Secretary of Labor timely challenged those
determinations and the Commission granted review. For the reasons that
follow, we reverse the judge's finding that the violation was not S&S, affirm
that the violation was not an unwarrantable failure and remand for
reassessment of an appropriate civil penalty.

                                  I.

               Factual Background and Procedural History

  Gatliff Coal Company, Inc. ("Gatliff") owns and operates a surface coal

mine, known as Gatliff No. 1, Job 75, in Whitley County, Kentucky. On August
1, 1989, a truck driven by Gatliff employee Boyd Fuson went off an elevated
roadway on the mine property and tumbled down a 120 foot embankment. Two
Gatliff employees drove from the mine property to the nearest telephone to
summon help. Fuson died as a consequence of the accident.

  Because there was no company radio at Job 75 at the time of the

accident, the Mine Safety and Health Administration (MSHA) issued Gatliff a
section 104(d)(1) order charging a violation of 30 C.F.R. 77.1701.

  Gatliff typically maintains three company radios at the mine site. The

radios are two-way 40 watt radios with sufficient range to reach the Gatliff
mine office and are located in the foreman's truck, the mechanic's truck and
the lube truck. Tr. 151. Gatliff's standard emergency notification procedure
consists of communication via the two-way radios back to the mine office,
where there is a telephone. On the night of the accident, however, no company
radios were on the job site. Tr. 156.

  Before the judge, Gatliff asserted that, although no two-way radio was

present at Job 75 at the time of the accident, a CB radio was present.
Gatliff argued that use of the CB radio would have enabled the miners to make
contact with a nearby Gatliff mine site (Job 74) that did have such a two-way
radio on its lube truck. The judge found that the CB radio constituted an
"alternate" emergency communication system. 13 FMSHRC 368. The Commission
rejected that conclusion:

              The CB system was undeniably a voluntary system
        adopted by the miners utilizing their personal CB
        radios. Tr. 54, 154, 162, 219. The operator
        initially introduced CBs but effectively abandoned

2 The S&S terminology is taken from section 104(d)(1) of the Act, 30
U.S.C. 814(d)(1), which, in pertinent part, distinguishes as more serious in
nature any violation that "could significantly and substantially contribute to
the cause and effect of a ... mine safety or health hazard...." The
unwarrantable failure terminology is also taken from section 104(d)(1) of the
Act, which, in pertinent part, distinguishes those violations of mandatory
health or safety standards "caused by an unwarrantable failure of [an]
operator to comply with such mandatory health or safety standards...."

Page 4

~1984
their use in favor of two-way radios. Tr. 219. The operator did not enforce
the use of CBs and there is no evidence that the operator told employees that
the CB system was an alternate emergency system.... The fact that the CBs
were the miners' personally owned equipment, not Gatliff's, and that miners
were free to decide whether to bring CBs to work, is also inconsistent with
the standard's requirement that the emergency communication system be operator
established and maintained. That the operator knew that its employees were
routinely using CBs, did not disapprove of their use, and aided this practice
to the extent of providing cable and antennae for them does not amount to
sufficient involvement to constitute operator establishment and maintenance of
the system.
... [B]ecause the CB system was neither operator
established, nor operator maintained, it did not
satisfy the requirements of section 77.1701.

13 FMSHRC 1375.

  Upon remand, the judge determined that the violation was not S&S and

that it did not result from the operator's unwarrantable failure.

                                    II.

                           Disposition of Issues

  A.      Whether the violation was significant and substantial

  The Commission established its test for determining whether a violation

is significant and substantial in Mathies Coal Co., 6 FMSHRC 1 (1984). There
the Commission set forth the elements the Secretary must prove to demonstrate
that a violation is significant and substantial:

                In order to establish that a violation of a
          mandatory safety standard is significant and
          substantial ... 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.

Id. at 3-4.

  The judge, after setting forth the Commission's Mathies test for

evaluating whether a violation is significant and substantial, focused his
analysis upon the third element of the test and the Commission's decision in

Page 5

~1985

U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). In addressing
the likelihood of injury in terms of continued mining operations, he stated:

                Ordinarily, according to the undisputed
          evidence, Gatliff maintains as its standard operating
          procedures, three 40-watt two way radios at each mine
          site sufficient to call the mine office where there is
          a telephone. It is further undisputed that these
          communication systems would meet the cited regulatory
          requirements. On the night at issue however, for
          reasons not fully explained, none of the three
          vehicles having such radios was at this particular
          location at the mine. It may reasonably be inferred,
          therefore, that the absence of such a radio was an
          aberrant situation and would not ordinarily have
          existed under normal mining operations.

13 FMSHRC 1647.

    The judge also relied upon the presence of a CB radio at the mine site:

                It is also undisputed that alternative means of
          communication was available at the time at issue from
          the mine to the nearest point of medical assistance in
          the event of an emergency. This system was provided
          by CB radio and two-way radio on the lube truck to the
          mine office. Under all the circumstances, I do not
          find that the violation was "significant and
          substantial" or of high gravity.

Id.
The Secretary contends that the judge erred in his S&S analysis (1) by
factoring into his conclusion that the absence of the two-way radio was an
aberrant situation that would not ordinarily have existed under normal mining
operations, (2) by holding that the violation would not continue into the
future, and (3) by relying upon the presence of the CB radio as an available
alternative means of communication in the event of an emergency. Sec. Br. at
6, 8. For the reasons stated below, we agree that the judge erred in his
determination that the violation was not S&S.(Footnote 3)

3 We note that the Secretary also urged that the judge's non S&S finding
should be reversed on the basis that the emergency communication standard is
one of a class of standards that are applicable only when an underlying
emergency (such as the truck accident in this instance) has already occurred
and therefore, for such standards, the occurrence of the underlying emergency
should be presumed. This argument was not presented below and consequently
the administrative law judge was not afforded an opportunity to pass on it.
For the reasons stated in Beech Fork Processing, Inc., 14 FMSHRC 1316 (August
1992) we do not consider this aspect of the Secretary's challenge. See also
section

Page 6

~1986

    In U.S. Steel, the Commission said:
          a determination of "significant and substantial" must
          be made at the time the citation is issued (without
          any assumptions as to abatement), but in the context
          of "continued normal mining operations."

6 FMSHRC at 1574.

  The Mathies test requires evaluation of the violation at the time of

citation, including an examination of the risk of serious injury, given the
presence of the violative condition in normal mining operations. In contrast,
the judge determined that under continued normal operations the absence of the
two-way radio was an aberrant situation. 13 FMSHRC at 1647. He misapplied
the third element of the Mathies test in inferring that the violative
condition would cease. Accordingly, the judge erred.

  In his S&S analysis the judge also relied upon the presence of an

employee-owned CB radio at the mine site on the evening of the accident. The
judge characterized the radio as an:

          ... alternative means of communication [that] was
          available at the time at issue from the mine to the
          nearest point of medical assistance in the event of an
          emergency.

13 FMSHRC at 1647.

  As the Commission stated in its earlier decision, use of CB radios was a

voluntary system adopted by the miners utilizing their personally owned
radios. There was no evidence in the record that the operator instructed
employees to consider CB radios an alternate emergency communication system,
nor were the miners trained in the use of CB radios as an emergency
communication system. We noted further that the miners were free to decide
whether to bring CBs to work and, thus, the CBs did not meet the standard's
requirement that the emergency communication system be operator established
and maintained. 13 FMSHRC at 1375. The miners did not use the CB at the time
of the emergency, but instead drove off the mine property to reach a
telephone. The Commission having concluded that the CB radio was not an
operator established and maintained emergency communication system, it was
error for the judge to consider the CB radio to be an alternate emergency
system.

  Applying the Mathies analysis to these facts, we conclude that the

violation was significant and substantial. First, there was a violation of

  3(...continued)

113(d)(2)(A)(iii) of the Act, 30 U.S.C. 823(d)(A)(iii), which provides, in
pertinent part, that "[e]xcept for good cause shown, no assignment of error by
any party shall rely on any question of fact or law upon which the
administrative law judge had not been afforded an opportunity to pass.

Page 7

~1987

30 C.F.R. 77.1701; no operator established two-way radio was present at the
mine site. Second, there was a discrete safety hazard or measure of danger to
safety created by the violation; the absence of the two-way radio created a
delay in responding to the accident because miners had to leave the property
to seek help. The record demonstrates that the third and fourth elements, a
reasonable likelihood that the hazard contributed to would result in an injury
and a reasonable likelihood that the injury would be of a reasonably serious
nature, were established. Accordingly, we hold that, under these
circumstances, the violation was significant and substantial.

    B.    Whether the violation resulted from the operator's
          unwarrantable failure

    The Commission has explained that unwarrantable failure is:

          aggravated conduct constituting more than ordinary
          negligence by a mine operator in relation to a
          violation of the Act. Emery Mining Corp., 9 FMSHRC
          1997, 2004 (December 1987); Youghiogheny & Ohio Coal
          Co., 9 FMSHRC 2007, 2010 (December 1987). This
          determination was derived, in part, from the ordinary
          meaning of the term "unwarrantable failure" ("not
          justifiable" or "inexcusable"), "failure" ("neglect of
          an assigned, expected or appropriate action"), and
          "negligence" ("the failure to use such care as a
          reasonably prudent and careful person would use,
          characterized by "inadvertence," "thoughtlessness,"
          and "inattention"). Emery, supra. 9 FMSHRC at 2001.
          This determination was also based on the purpose of
          unwarrantable failure sanctions in the Mine Act, the
          Act's legislative history, and on judicial precedent.

Drummond Co., Inc., 13 FMSHRC 1362, 1366-1367 (September 1991).

    In addressing whether the violation was unwarrantable, the judge stated:

                [I]n light of the evidence that ordinarily three
          two-way radios are present at the mine and that the
          absence of a radio on the night at issue was anything
          other than the result of inattention or inadvertence,
          and that the miners were not left without a means of
          emergency radio communication, I cannot find that the
          violation was the result of "unwarrantable failure,"
          or more than simple negligence.

13 FMSHRC at 1647.

  The Secretary, citing Emery, 9 FMSHRC 1997, 2003-04, asserts that

conduct constitutes unwarrantable failure if the operator "knew or should have
known" that the conduct would result in a violation. Sec. Br. at 11. Noting
that the Commission earlier held that the two-way radio was the only

Page 8

~1988

established and maintained means of emergency communication, the Secretary
contends that:

        ... the foreman, who had full management responsi-
        bility for overseeing events at the site, `knew or
        should have known' that his conduct would violate [the
        standard] and would leave the miners with no adequate
        means of summoning assistance if, as indeed happened,
        one of them suffered a serious injury.

Sec. Br. at 11. On this basis the Secretary asserts that the foreman's
removal of the two-way radio from the mine site was unwarrantable. Id. at 12.

  Gatliff, like the Secretary, points to Emery for its authority. The

operator takes issue with what it views as the Secretary's out-of-context use
of the "should have known" language in Emery, noting that the Secretary's
position would equate unwarrantable failure with ordinary negligence. Gatliff
notes that in Emery the Commission distanced itself from the interpretation
urged by the Secretary. Gatliff Br. at 6, citing Emery, 9 FMSHRC at 2004.

  The judge erred in considering the presence of a miner's CB radio as an

alternative means of emergency communication. Consequently, he also erred in
viewing the CB radio as a mitigating factor in evaluating whether the
violation was unwarrantable. Nonetheless, the judge's finding that the
absence of the two-way radio was attributable to ordinary negligence is
supported by the record.

  While it is true that the foreman drove off the mine property in the

truck with the two-way radio in it, there is no evidence in the record that
this was due to anything beyond inadvertence. Indeed, at trial no evidence
was elicited on the foreman's state of mind, or on the custom, practice or
circumstances surrounding the removal of the two-way radio from the mine site.
See Tr. 148-156.

   Although the foreman's actions may have been negligent, the Commission

has explained that negligence and unwarrantable failure are not synonymous
terms:
The terms "unwarrantable failure" and
"negligence" are distinguished in the Mine Act. A
finding by an inspector that a violation has been
caused by an operator's unwarrantable failure to
comply with a mandatory health or safety standard may
trigger the increasingly severe enforcement sanctions
of section 104(d). 30 U.S.C. 814(d). Negligence,
on the other hand, is one of the criteria that the
Secretary and the Commission must consider in
proposing and assessing, respectively, a civil penalty
for a violation of the Act or of a mandatory health or
safety standard. 30 U.S.C. 815(b)(1)(B) & 820(i).
Although the same or similar factual circumstances may
be included in the Commission's consideration of
unwarrantable failure and negligence, the concepts are

Page 9

~1989

         distinct. See Quinland Coals, Inc., 7 FMSHRC 1117, 1122 (August
         1985); Black Diamond Coal Co., 9 FMSHRC 1614, 1622 (September
         1987). Nevertheless, as explained in Emery, [9 FMSHRC 1997] and
         Youghiogheny & Ohio, [9 FMSHRC 2007] aggravated conduct
         constitutes more than ordinary negligence for purposes of a
         special finding of unwarrantable failure. "Highly negligent"
         conduct involves more than ordinary negligence and would appear,
         on its face, to suggest an unwarrantable failure. Thus, if an
         operator has acted in a highly negligent manner with respect to a
         violation, that suggests an aggravated lack of care that is more
         than ordinary negligence.

Eastern Associated Coal Corp., 13 FMSHRC 178, 186 (February 1991).

  There is substantial evidence in the record to support the judge's

conclusion that the foreman's actions constituted no more than ordinary
negligence. Thus, we affirm that the violation was not unwarrantable.

    C.   Civil Penalty

  Following the Commission's earlier remand, the judge, after finding the

violation to be neither S&S nor unwarrantable, modified the order to a section
104(a) citation and assessed a civil penalty of $50. Although we have
affirmed the judge's holding that the violation was not unwarrantable, we have
reversed his finding as to S&S. Accordingly, this matter is remanded for
reassessment of the civil penalty in light of our determination that the
violation was S&S.

Page 10

~1990
III.

                              Conclusion

  For the foregoing reasons, we reverse the judge's finding that Gatliff's

violation of 30 C.F.R. 77.1701 was not significant and substantial, affirm
the judge's determination that the violation was not unwarrantable, and remand
for the assessment of an appropriate civil penalty.

                                Arlene Holen, Chairman

                                Richard V. Backley, Commissioner

                                Joyce A. Doyle, Commissioner

Page 11

~1991
Commissioner Nelson, concurring in part and dissenting in part:

  I must dissent solely with regard to the majority's affirmation of the

ALJ's determination that the violation did not constitute unwarrantable
failure. Such affirmation seemingly results more from concern with fine
points in preceding decisions than with concern for basic fundamentals
expressed in the Mine Act with regard to miner safety.

  Our governing statute states at the outset (in Section 2(d) and (e))

that the operator of a mine -- with the assistance of the miners -- has
primary responsibility to prevent the existence of unsafe conditions and
practices in the mine. Section 2(g) authorizes the Secretary of Labor to
promulgate mandatory safety standards to protect the safety of every miner.

  Here we have a mandatory safety standard requiring the operator to

establish and maintain a communication system for use in an emergency. The
essential component of the communication system established for use at this
mine site, i.e., a two-way radio, was removed from the site by a foreman and
never returned during some nine hours prior to the occurrence of an accident
resulting in a fatality.

  The majority observes that evidence in the record indicates only that

the foreman acted inadvertently in removing the two-way radio from the mine
site where the accident occurred nine hours later. (In fact, it is abundantly
clear that the absence of a two-way radio persisted through one shift and into
another shift, unless the shift periods exceeded eight hours.)

  My observation is to the effect that the record clearly demonstrates

highly negligent conduct on the part of the mine operator in failing to
provide requisite attention to the training of supervisory employees in order
to assure compliance with an extremely important safety standard requiring the
presence of an emergency communication system at this mine site. The absence
of a fundamentally essential component of the requisite emergency
communication system for a period of at least nine hours sufficiently
establishes, in my view, highly negligent conduct constituting unwarrantable
failure on the part of this operator.

                                L. Clair Nelson, Commissioner