Secretary of Labor v. Mach Mining, LLC

Plain-English summary

MSHA cited Mach Mining after a primary escapeway at its Mach #1 Mine was narrowed from the required four feet to 26 inches at a ventilation regulator. The judge found a violation of 30 C.F.R. § 75.380(d)(4)(ii), but determined that it was not significant and substantial and resulted from relatively high negligence. The Commission affirmed both determinations, noting that the parties agreed the violation was not S&S and that the mine president knew about the narrowed opening for about two months. Commissioner Robert F. Cohen Jr. agreed with the result but explained that evacuation-standard analysis assumes an emergency and must identify the discrete hazard caused by the violation.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.380(d)(4)(ii)
• Outcome: The non-S&S determination and relatively high negligence finding were affirmed.
• Key point: A supervisor's mistaken understanding of an escapeway requirement did not materially reduce negligence where the supervisor knew about the condition for months.

Full text (FMSHRC public release)

FEDERAL MINE
SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW

SUITE
520N

WASHINGTON,
DC 20004

June
2, 2014

SECRETARY OF LABOR,                             

MINE SAFETY AND HEALTH                          

ADMINISTRATION (MSHA)

v.

MACH MINING, LLC

Docket No. LAKE 2009-427       

A.C. No. 11-03141-180760-02

BEFORE: Jordan,
Chairman; Young, Cohen, Nakamura, and Althen, Commissioners

DECISION

BY THE COMMISSION:

In this proceeding arising under the Federal
Mine Safety and Health Act, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or
“Act”), the Commission, by sua sponte review, directed the parties to address
whether the Administrative Law Judge correctly determined that an escapeway
violation[1]
was not significant and substantial (“S&S”).[2]
33 FMSHRC 2428, 2435-36 (Oct. 2011) (ALJ). Mach also filed a petition for
discretionary review contesting the Judge’s high negligence finding associated
with the escapeway violation. The Commission granted the petition. For the
reasons stated herein, we affirm in result the Judge’s S&S determination,
and we affirm the Judge’s high negligence determination.

I.

Facts and
Proceedings Below

During a February 12, 2009 inspection, an
inspector with the U.S. Department of Labor’s Mine Safety and Health
Administration (“MSHA”) observed that one of the primary escapeways of Mach #1
Mine had been narrowed to 26 inches in width. 33 FMSHRC at 2433. This had been
done by closing the regulator on the entryway. A regulator is a concrete wall
with a hole knocked out of it to control the amount and velocity of air going
to the section. Id. at n.9. As a result, the inspector issued a citation
for a violation of section 75.380(d)(4)(ii), alleging that the escapeway was
not at least four-feet wide. Id. at 2433.

After a hearing on the merits, the Judge
concluded that a violation of section 75.380(d)(4)(ii) had occurred. Id.
The Judge found that the violation was not S&S. Id. at 2435-36. The
Judge concluded that Mach’s level of negligence was “relatively high” because
Mach’s president and mine superintendent, Anthony Webb, was aware of the
violative condition for a number of weeks prior to the citation and was subject
to a high standard of care as a supervisor. Id. at 2435 n.11, 2437-38.

II.

Disposition

A.        S&S

On the S&S issue, both parties agree that
the violation is not S&S. Based on the record, we affirm the Judge in
result.

B.        Negligence     

The Commission reviews a Judge’s negligence
finding, which is a component of a penalty assessment, to determine whether the
factual findings are supported by substantial evidence[3]
and are consistent with the statutory penalty criteria set forth in section
110(i) of the Mine Act, 30 U.S.C. § 820(i). Westmoreland Coal Co., 8
FMSHRC 491, 492 (Apr. 1986).

We conclude that the Judge’s finding of
relatively high negligence is supported by substantial evidence. The record
demonstrates that the mine president and superintendent, Anthony Webb, had
knowledge of the narrowed regulator, and that the condition had existed for
approximately two months. 33 FMSHRC at 2437-38; Tr. 81, 86-88. Like the Judge,
we reject Mach’s contention that, because an MSHA inspector had previously
traveled through the regulator at issue, Mach’s negligence should be mitigated.
33 FMSHRC at 2437-38.

We are not persuaded by Mach’s assertion that
the negligence level should be reduced based on Webb’s mistaken good faith
belief that the regulator could be reduced to less than 48 inches in the
primary escapeway, if the narrowed regulator passed a stretcher test.[4]
As the Judge stated, Webb must exercise a high standard of care because of his
supervisory role, and therefore Webb’s testimony that he was not aware of the
width requirements provided only “slight mitigation.” Id. at 2438. The
Commission has held that supervisors “[can]‘not close their eyes to violations,
and then assert lack of responsibility for those violations because of
self-induced ignorance.’” Douglas R. Rushford Trucking, 23 FMSHRC
790, 793 (Aug. 2001) (citation omitted). Accordingly, in Prabhu Deshetty,
16 FMSHRC 1046, 1051, 1053 (May 1994), the Commission affirmed a high
negligence determination despite the manager’s claim that he was not aware of
whether the cited conditions were prohibited under the law. See also
Rushford Trucking, 23 FMSHRC at 793 (adhering to the general principle that
“ignorance of the law is no defense.”)

In sum, we affirm the Judge’s relatively high
negligence determination as supported by substantial evidence in the record.

III.

Conclusion

For the foregoing reasons, we affirm in result
the Judge’s determination that the escapeway violation was not S&S and
affirm the Judge’s finding of relatively high negligence.

/s/
Mary Lu Jordan                 

Mary Lu Jordan,
Chairman

/s/
Michael G. Young

Michael
G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick
K. Nakamura, Commissioner

/s/
William I. Althen                                                                                                                           

William I.
Althen, Commissioner

Commissioner Cohen, concurring:     

I join my colleagues in affirming the Judge’s
determination that Mach Mining’s violation of the safety standard in 30 C.F.R.
§ 75.380(d)(4)(ii) was the result of relatively high negligence, and also the
conclusion that the violation was not significant and substantial (“S&S”).  I
write separately to point out certain fundamental errors in the Judge’s
application of the Mathies criteria to his analysis of the S&S
issues in this case.

The S&S terminology is taken from section
104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1),[5]
and refers to more serious violations. A violation is S&S if, based on the
particular facts surrounding the violation, there exists a reasonable
likelihood that the hazard contributed to by the violation will result in an
injury or illness of a reasonably serious nature. See Cement Div., Nat’l
Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).

In Mathies Coal Co., 6 FMSHRC 1 (Jan.
1984), the Commission set forth a four-step test for the analysis of whether a
violation is S&S:

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.

Id. at 3-4 (footnote omitted); accord Buck Creek
Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc.
v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies
criteria).

In the present case, the Judge concluded that
the Secretary had proved the first two Mathies elements, but had failed
to prove the third element. 33 FMSHRC 2428, 2435-36 (Oct. 2011) (ALJ).  In this
regard, the Judge stated that the evidence did not establish “the reasonable
likelihood of an injury-producing event”. Id. The Judge’s analysis is
erroneous under Mathies in two important respects.

First, the Judge failed to define or articulate
the discrete safety hazard which is necessary for analysis under both steps two
and three of Mathies.[6]
 The description of S&S in section 104(d)(1) of the Mine Act is
centered on a “mine safety or health hazard”. Our cases illustrate that
a Judge is required to articulate a discrete safety hazard in order to
determine whether the violation has contributed to it under step two and
whether it is reasonably likely to result in an injury under step three.[7]
See, e.g., Black Beauty, 34 FMSHRC at 1741; Consolidation Coal Co.,
35 FMSHRC 2326, 2328, 2333, 2335-36, 2338, 2345 (Aug. 2013) (noting, with
respect to five separate violations, how the judge described the discrete
safety hazard and approving the Judge’s articulation of the hazard). The
failure of a judge to clearly articulate the discrete safety hazard in an
S&S case impedes the Commission’s ability to perform its review function
under section 113(d)(2)(C) of the Mine Act, 30 U.S.C. § 823(d)(2)(C).    

Second, the Judge’s analysis under step three of
Mathies was flawed. In concluding that the evidence did not show a
reasonable likelihood of an injury producing event, the Judge relied on two
separate lines of testimony – (1) the absence of any obstacles to walking, the
fact that the lifeline was in good shape, and the fact that it was not
necessary to raise one’s foot in order to go from the surface of the overcast through
the regulator, and (2) the MSHA inspector’s testimony that an emergency was not
likely to occur as of the time of the inspection, and that “he did not indicate
the specific events or conditions that would be reasonably likely to occur with
the continuance of normal mining operations that would make an injury producing
emergency evacuation reasonably likely to occur.” 33 FMSHRC at 2435. The
Judge’s reliance on the absence of conditions likely to create an emergency was
in error. The mandatory safety standard at issue, 30 C.F.R. § 75.380(d)(4)(ii),
sets forth requirements for escapeways in bituminous and lignite coal mines. Because
an evacuation standard was at issue, the Mathies test does not require
consideration of whether an emergency was likely to occur. See Cumberland
Coal, 33 FMSHRC at 2366-67 (“[t]he Commission has never required the
establishment of the reasonable likelihood of a fire, explosion, or other
emergency event when considering whether violations of evacuation standards are
S&S”). As succinctly stated by the Court of Appeals for the D.C. Circuit in
affirming Cumberland Coal, “the likelihood of an emergency will usually
have nothing to do with the violation of the emergency safety standard.” 717
F.3d at 1027.

Although the Judge erred in his S&S
analysis, I would affirm his ultimate conclusion that this violation was not
S&S. The safety standard in 30 C.F.R. § 75.380(d)(4)(ii) states that “where
the route of travel passes through doors or other permanent ventilation
controls, the escapeway shall be at least 4 feet wide to enable miners to
escape quickly in an emergency.” The regulator involved in this case is a
permanent ventilation control within the meaning of the regulation. As stated
by MSHA inspector Bobby Jones, the discrete safety hazard under step two of
Mathies was that “the narrow opening through the regulator would impede
miners escaping rapidly.” Tr. 28.

I conclude that the record does not contain
substantial evidence to support a conclusion that the violation at issue would
contribute to a failure of miners to escape quickly in an emergency. The
inspector testified that he believed that in an emergency if an injured miner
had to be transported out of the mine on a stretcher, miners carrying the
stretcher would be delayed or injured trying to navigate the stretcher and the
injured miner through the narrowed escapeway. Tr. 32, 35-36, 48. However, the
inspector failed to describe with any detail how the narrowed escapeway would
functionally impede the passage of miners with a stretcher. In particular, the
inspector was unaware of the width of the stretchers used by Mach Mining, or
how their width compared with the width of the escapeway as it passed through
the regulator. Tr. 70-71. Furthermore, the inspector testified that he did not
observe any obstructions in the walkways on either side of the overcast, on the
stairs, or on the overcast itself, and that the lifeline was in good shape. Tr.
64-65.

Moreover, as the Judge noted, Anthony Webb, the
president of Mach Mining, testified that the mine had previously conducted
testing at the request of and in the presence of MSHA inspectors, and had
determined that miners carrying a stretcher were able to navigate through a
24-inch escapeway without difficultly. 33 FMSHRC at 2435 n.11; Tr. 98-99. He
explained that the stretchers used by the operator are constructed with handles
or hand holds at either end of the stretcher. This enables the stretcher
carriers to walk in front and behind the stretcher rather than beside it. 33
FMSHRC at 2435 n.11; Tr. 98-99. This testimony was uncontradicted.

Because the record lacks any evidence that the
violation of regulator width would contribute to a hazard of miners being
unable to escape quickly in an emergency, the Secretary failed to sustain her
burden of proof under step two of Mathies. In Cumberland Coal,
the Commission noted that not every violation of an evacuation standard would
be S&S, even though such violations are viewed in the context of an
emergency. 33 FMSHRC at 2369. We observed that if violations of an evacuation
standard are “relatively minor in nature and scope, a fact-finder may well not
[find] that the violations contributed to the hazard of miners being delayed in
escaping from the mine in an emergency”.  Id. at 2368. This is such a
case.

The Judge’s conclusory statement that the second
element of the Mathies test was satisfied lacks evidentiary support. Therefore,
the violation was not significant and substantial.

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner              

Distribution:

Christopher D. Pence, Esq.

Allen Guthrie & Thomas, PLLC

500 Lee Street, East, Suite 800

P.O. Box 3394

Charleston, WV  25333-3394

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA  22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Administrative Law Judges Avram Weisberger (Retired)

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004

[1]
The standard at issue, 30 C.F.R. § 75.380(d)(4)(ii), requires that “[w]here the
route of travel passes through doors or other permanent ventilation controls,
the escapeway shall be at least 4 feet wide to enable miners to escape quickly
in an emergency.”

[2]
The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C.

§ 814(d)(1), which distinguishes as more serious any
violation that “could significantly and substantially contribute to the cause
and effect of a . . . mine safety or health hazard.”

[3]
When reviewing an administrative law judge’s factual determinations, the
Commission is bound by the terms of the Mine Act to apply the substantial
evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I). “Substantial evidence” means
“‘such relevant evidence as a reasonable mind might accept as adequate to
support [the judge’s] conclusion.’” Rochester & Pittsburgh Coal Co.,
11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)).

[4]
30 C.F.R. § 75.380(d)(4)(iii) provides that an alternate escapeway may
be less than four feet wide if a “stretcher test” is met. The Judge noted that
a successful stretcher test was held by MSHA in an alternate escapeway that had
been narrowed to 24 inches. 33 FMSHRC at 2435 n.11. However, this stretcher
test provision does not apply to the primary escapeway at issue here.

[5]
Section 104(d)(1) provides, in pertinent part,

If, upon any inspection of a coal
or other mine, an authorized representative of the Secretary finds that there
has been a violation of any mandatory health or safety standard, and if he also
finds that, while the conditions created by such violation do not cause
imminent danger, such violation is of such nature as could significantly and
substantially contribute to the cause and effect of a coal or other mine safety
or health hazard, . . . he shall include such finding in any citation given
to the operator under this Act.

30 U.S.C. § 814(d)(1) (emphasis added).

[6]
Regarding the first element of Mathies, the Judge correctly found that
Mach Mining violated the safety standard when it narrowed the escapeway through
the regulator from 48 inches to 26 inches. 33 FMSHRC at 2433.

[7]
The Commission has described a safety hazard (i.e., the “measure of danger to
safety”, as stated in Mathies) as “the dangerous situation that the
mandatory safety standard anticipates.” Black Beauty Coal Co., 34 FMSHRC
1733, 1741 (Aug. 2012) (citing Cumberland Coal Res., LP, 33
FMSHRC 2357, 2366 (Oct. 2011), aff’d 717 F.3d 1020 (D.C. Cir. 2013); Musser
Engineering, Inc., and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct.
2010).