Secretary of Labor v. Big Ridge, Inc.

Plain-English summary

MSHA found a 20-foot gap in the directional lifeline for a secondary escapeway at Big Ridge's Willow Lake Mine. The missing section was at a heavily traveled crosscut intersection near a conveyor belt, and at least 40 miners could have needed that route during an emergency. The Commission affirmed the judge's significant-and-substantial finding because evacuation standards are evaluated in the assumed context of an emergency, regardless of how likely an emergency was to occur. Dense smoke, intersecting cables, possible ventilation disruption, and the lack of a rib line could disorient miners and make even a 20-foot lifeline gap reasonably likely to delay escape and cause serious or fatal injuries.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.380(d)(7)(i)
• Outcome: The lifeline violation and its S&S designation were affirmed.
• Key point: The seriousness of a lifeline gap depends on its emergency context and location, not distance alone.

Full text (FMSHRC public release)

FEDERAL MINE
SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW

SUITE
520N

WASHINGTON,
DC 20004

May
23, 2014

SECRETARY OF LABOR,                             

MINE SAFETY AND HEALTH                          

ADMINISTRATION (MSHA)

v.

BIG RIDGE, INC.    

Docket Nos.    LAKE 2009-490                           

LAKE 2009-491

LAKE 2009-531

LAKE 2009-532

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”), an Administrative Law Judge found a violation of the lifeline
requirements contained in 30 C.F.R. § 75.380(d)(7)(i)[1]
to be significant and substantial (“S&S”).[2]
33 FMSHRC 689, 693-99 (Mar. 2011) (ALJ). Big Ridge, Inc., subsequently
petitioned for review of the Judge’s S&S finding, which the Commission
granted. For the reasons stated herein, we affirm the Judge’s decision and
conclude that Big Ridge’s violation of the lifeline requirements was S&S.[3]

I.

Facts and
Proceedings Below

During a March 12, 2009 inspection, an inspector
with the U.S. Department of Labor’s Mine Safety and Health Administration
(“MSHA”) observed that 20 feet of a lifeline was missing on a secondary
escapeway at Big Ridge’s Willow Lake Mine. 33 FMSHRC at 694-95. The secondary
escapeway was next to a belt entry at a heavily traveled crosscut intersection.
Id. At least 40 miners in the working area would have used this escape
route in the event of an emergency. Id. at 695. As a result, the
inspector issued a citation alleging that the secondary escapeway was not being
provided with a lifeline at a crosscut intersection for approximately 20 feet. Id.
at 694.

There was no dispute that there was a 20-foot
gap in the lifeline. Id. at 694-97. After a hearing on the merits, the Judge
concluded that a violation of section 75.380(d)(7)(i) had occurred and found
the violation to be S&S. Id. at 693-99.

The Judge applied the Commission’s four-part
S&S analysis established in Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan.
1984). The Judge found that a “discrete safety hazard existed as a result of
the violations, i.e, the danger of being unable to quickly and safely escape
the mine in the event of an emergency where smoke and/or fire are created by
various scenarios.” 33 FMSHRC at 697.

The Judge did not find it necessary to assume
the existence of an emergency, as requested by the Secretary, because she
determined that “an emergency [wa]s likely to occur” “in the continued course
of mining operations.” Id. at 698-99. She also concluded that the hazard
described would result in an injury and that the injury would be “serious or
fatal.” Id. at 699. Additionally, the Judge found that this violation
would affect 40 or more miners who used the travelway on a daily basis.  Id.
at 699.        

II.

Disposition

The S&S terminology is taken from section
104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1), 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 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, the Commission further explained:

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.

6 FMSHRC 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).

Because this case involves a violation of an
emergency lifeline standard, our application of the Mathies test is
controlled by Cumberland Coal Res., LP, 33 FMSHRC 2357 (Oct. 2011), aff’d
Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020 (D.C. Cir. 2013). In Cumberland,
the Commission held that “[t]he hazard contributed to by defectively placed
lifelines necessarily involved consideration of an emergency situation.” 33
FMSHRC at 2364. This is because “[e]vacuation standards are different from
other mine safety standards. They are intended to apply meaningfully only when
an emergency actually occurs.” Id. at 2367.  

When applying the Mathies analysis with
respect to escapeway violations, a Judge is to consider the S&S nature of
those violations within the context of an emergency. Cumberland, 717
F.3d at 1027-28 (providing that “assuming the existence of an emergency” when
evaluating the S&S nature of emergency safety measures is consistent with Mathies).
The D.C. Circuit made clear that the likelihood of an emergency actually
occurring is irrelevant to the Mathies inquiry, which focuses on the
nature of the violation itself. 717 F.3d at 1027 (citing Sec’y of Labor v.
FMSHRC, 111 F.3d 913, 917 (D.C. Cir. 1997)). Cf. Spartan Mining Co.,
35 FMSHRC 3505, 3509 (Dec. 2013) (Secretary need not prove the likelihood of an
emergency when evaluating whether escapeway violations were S&S).

Applying the Mathies test to the case at
bar, we note that the first Mathies element is satisfied by the Judge’s
finding of violation. 33 FMSHRC at 697.

With regard to the second Mathies
element, the Judge determined that a discrete safety hazard existed as a result
of the violation, i.e., “the danger of being unable to quickly and safely
escape in the event of an emergency where smoke and/or fire are created by
various scenarios.” Id. The Judge’s statement of hazard is consistent
with the Cumberland decisons and is an accurate description of
the relevant hazard contributed to by the violation. 33 FMSHRC at 2364.

Substantial evidence in the record supports the
Judge’s finding that the gap in the lifeline would contribute to a hazard of
miners being unable to quickly and safely escape in the presence of an
emergency.[4]
 As the Judge found, the area where the lifeline was missing for 20 feet is a
heavily-traveled area at a crosscut. 33 FMSHRC at 695; Tr. II at 122-24. In
such an intersection, there is no rib line to help miners find their way, and
other wires and cables may confuse miners looking for a missing lifeline. 33
FMSHRC at 695; Tr. II at 127-28, 131. In addition, the presence of the conveyor
belt would contribute to the thickness of the smoke in the cited area. 33
FMSHRC at 695; Tr. II at 129. The inspector testified that the air in the
escapeway was common to the air in the next entry, which contained the conveyor
belt. Tr. II at 121. In a fire near a belt, the smoke would be so thick from
the rollers on the belt that a miner would be unable to see his hand in front
of his face. Tr. II at 129. The Judge also found that at least 40 miners in the
working area would use this escape route in the event of an emergency. 33
FMSHRC at 695; Tr. II at 122-23.

We reject Big Ridge’s argument that miners would
find their way out because they knew which way the air was ventilated and would
have the air at their backs. As the Judge noted, even experienced miners panic
and become disoriented in an emergency. 33 FMSHRC at 695. In addition,
ventilation may be interrupted in an emergency. Tr. II at 123, 141-42, 164,

197. Moreover, this violation involved a secondary escapeway, where the air
     flows outby or away from the working face. Tr. II at 121. This increases the
     possibility that a fire inby, close to the face, would contaminate the entry
     with smoke, making a usable and accessible lifeline critically important.

Big Ridge argues that 20 feet of inaccessible
lifeline is not sufficient to support an S&S finding as shown by the longer
distances of the deficient lifelines in Cumberland.  Cumberland
involved four violations with inaccessible lifelines that spanned the distances
of 6,650 feet, 450 feet, 120 feet and 300 feet, respectively. 33 FMSHRC at
2358-60. Although a gap of 20 feet is smaller than the distances involved in Cumberland,
the Judge could reasonably find on this record that the deficient lifeline
posed a hazard when considered in the context of an emergency situation. In
particular, the gap occurred at a critical intersection, where miners could get
disoriented and lost; there were many cables and wires to further confuse
escaping miners; and the intersection was near a belt line with common air,
which would make any smoke very thick, greatly diminishing visibility. 33
FMSHRC at 694-95.

Substantial evidence also supports the Judge’s
determination that the third and fourth Mathies elements were satisfied.
In addressing the third and fourth Mathies elements, the Judge
determined: “It has been demonstrated that if a large gap remained in the lifeline,
it would hinder the evacuation of the mine, thereby causing serious injury.” Id.
at 699. Although Big Ridge calls the 20-foot gap small, we note that Inspector
Morris testified that “[i]n smoky conditions, 20 feet is a long way.” Tr. II at

129. As in Cumberland, the Judge relied on the inspector’s testimony
     that in an emergency, miners become disoriented or panic and cannot see in
     dense smoke, such that a directional lifeline is essential to help them find
     their way and avert disaster. Compare Cumberland, 33 FMSHRC at 2365, with
     33 FMSHRC at 695. The hazard of a delayed escape or no escape at all due to a
     missing lifeline in an emergency is reasonably likely to result in serious or
     fatal injuries. Accordingly, the Judge’s application of the Mathies test
     to conclude that the lifeline violation was S&S is fully supported by
     substantial evidence on the record.

III.

Conclusion

For the foregoing reasons, we affirm the Judge’s
determination that the lifeline violation was S&S.

/s/
Mary Lu Jordan       

Mary
Lu Jordan, Chairman

/s/Michael
G. Young     

Michael
G. Young, Commissioner

/s/
Robert F. Cohen, Jr.   

Robert
F. Cohen, Jr., Commissioner

/s/
Patrick K. Nakamura  

Patrick
K. Nakamura, Commissioner

/s/
William I. Althen      

William
I. Althen, Commissioner

Distribution

R. Henry Moore, Esq.

Arthur M. Wolfson, Esq.

Jackson Kelly, PLLC

Three Gateway Center

401 Liberty Avenue, Suite 1500

Pittsburgh, PA 15222

[email protected]

[email protected]

Edward Waldman, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor

Arlington, VA 22209

[email protected]

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Administrative Law Judge Margaret Miller

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

721 19th Street, Suite 443

Denver, CO 80202-5268

[1]
Section 75.380(d)(7)(i) provides as follows: “Each escapeway shall be provided
with a continuous, durable directional lifeline or equivalent device that shall
be installed and maintained throughout the entire length of each escapeway.”

[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]
We have determined that oral argument is not necessary and, therefore, Big
Ridge’s motion for oral argument is denied.                                                                                                                            

[4]
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)). In reviewing the whole record, an appellate tribunal must
consider anything in the record that “fairly detracts” from the weight of the
evidence that supports a challenged finding. Midwest Material Co., 19
FMSHRC 30, 34 n.5 (Jan. 1997) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)).