Secretary of Labor v. M-Class Mining, LLC

Plain-English summary

M-Class Mining stored a transformer, cable tub, and water pump beside a conveyor in the alternate escapeway, narrowing the route from the required 6 feet to as little as 15 inches. A four-person stretcher team had to line up, lift the stretcher overhead, and slide it across equipment, which did not show that injured miners could escape quickly during an emergency. Judge Alan G. Paez affirmed that violation with high negligence and a $425 penalty. He vacated a separate citation for lacking a fire extinguisher atop a clean-coal stacker because the citation was inaccurate, the inspector repeatedly changed which component he considered a permanent electrical installation, and the Secretary presented no reliable evidence of the alleged fire hazard.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.380(d)(4) and 77.1109(d)
• Outcome: The narrow-escapeway citation was affirmed as written with a $425 penalty, and the fire-extinguisher citation was vacated.
• Key point: An equipment exception does not permit an escapeway constriction that delays a stretcher team, while a firefighting citation fails when the Secretary cannot identify the electrical installation and corresponding fire hazard.

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

December 22,
2014.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

M-CLASS
MINING LLC,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. LAKE 2011-295

A.C.
No. 11-03189-241092

Mine:
MC #1 Mine

DECISION

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

Christopher D. Pence, Esq., Hardy Pence
PLLC, Charleston, West Virginia, for Respondent.

Before:                        Judge
Paez

This case is
before me upon the Petition for the Assessment of a Civil Penalty filed by the
Secretary of Labor (“Secretary”) pursuant to section 105(d) of the Federal Mine
Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). In dispute are
two section 104(a)(1) citations issued by the Mine Safety and Health
Administration (“MSHA”) to M-Class Mining LLC (“M-Class” or “Respondent”) as
the owner and operator of the MC #1 Mine. To prevail, the Secretary must prove
the cited violations “by a preponderance of the credible evidence.” In re:
Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819,
1838 (Nov. 1995) (citing Garden Creek Pocahontas Co., 11 FMSHRC 2148,
2152 (Nov. 1989)), aff’d sub nom., Sec’y of Labor v. Keystone Coal
Mining Corp., 151 F.3d 1096, 1106–07 (D.C. Cir. 1998). This burden of proof
requires the Secretary to demonstrate that “the existence of a fact is more
probable than its nonexistence.” RAG Cumberland Res. Corp., 22 FMSHRC
1066, 1070 (Sept. 2000) (citations and internal quotation marks omitted), aff’d,
272 F.3d 590 (D.C. Cir. 2001).

I.  STATEMENT OF
THE CASE

The
two alleged violations in this case were issued at M-Class Mining’s MC #1 Mine.
The first alleged violation involves Citation No. 8424233,
which charges M-Class with a violation of 30 C.F.R. § 75.380(d)(4)[1]
for failing to maintain the mine’s alternate escapeway at the required width. The
second involves Citation No. 8424774, which charges Respondent with a violation
of 30 C.F.R. § 77.1109(d)[2]
for failing to provide a fire extinguisher at the top of the clean coal stacker
tower. The Secretary characterizes M-Class’s negligence as high for Citation
No. 8424233 and as moderate for Citation No. 8424774. The Secretary proposes a
penalty of $425.00 for the first violation and $100.00 for the second, for a
total penalty of $525.00.

Chief
Administrative Law Judge Robert J. Lesnick assigned Docket No. LAKE 2011-295 to
me, and I held a hearing in Evansville, Indiana.[3]
The Secretary presented testimony from MSHA inspectors Marty Gayer and J. Scott
Lee. M-Class Mining presented testimony from Safety Manager Tim Kirkpatrick,
former M-Class Vice President of Operations Barrett Fox, and current M-Class
President Anthony Webb. The parties each filed post-hearing briefs and reply
briefs.

II.  ISSUES

For Citation No. 8424233, the Secretary asserts
that Respondent failed to fulfill the duty imposed by 30 C.F.R. § 75.380(d)(4)
by placing equipment in the mine’s alternate escapeway that impermissibly reduced
the width of the passage, preventing miners from exiting quickly through the
escapeway during an emergency. (Sec’y Br. at 8–11.) The Secretary claims that M‑Class’s
actions constituted high negligence because the operator knew MSHA considered
the conditions to be a violation. (Id. at 14.) In contrast, M-Class argues
that an exception in the regulation requires only that miners be able to move
through the narrowed escapeway carrying a stretcher, and that its miners
satisfactorily completed this stretcher test. (Resp’t Br. at 1–2.) M‑Class does
not claim that any other regulatory exceptions apply. (Id.) Alternatively,
Respondent claims its actions did not constitute high negligence because it did
not know the conditions constituted a violation under the regulations. (Id.
at 16–17.)

For Citation No. 8424774,
the Secretary contends M-Class failed its duty under 30 C.F.R. § 77.1109(d)
to provide a fire extinguisher for all permanent electrical installations. (Sec’y
Br. at 16–17.) The Secretary asserts that electrical fixtures at the top of
M-Class’s clean coal stacker belt required a fire extinguisher. (Id. at
17.) Respondent contends no permanent electrical installations were located at
the top of the clean coal stacker, and therefore a fire extinguisher was not
required at the location. (Resp’t Br. at 18.)

Accordingly,
the following issues are before me: (1) whether the Secretary has carried his
burden of proof that Respondent violated the Secretary’s mandatory health or
safety standards regarding the requisite width of mine escapeways; (2) whether the
Secretary has carried his burden of proof that Respondent violated the
Secretary’s mandatory health or safety standards regarding the presence of fire
extinguishers at above-ground mine locations; (3) whether the record supports
the Secretary’s assertions regarding the gravity of the alleged violations; (4)
whether the record supports the Secretary’s assertions regarding M-Class
Mining’s negligence in committing the alleged violations; and (5) whether the
Secretary’s proposed penalties are appropriate.

For
the reasons that follow, Citation No. 8424233 is AFFIRMED as written and
Citation No. 8424774 is VACATED.

III.  BACKGROUND

The
MC #1 Mine is a coal mine in Franklin County, Illinois, that opened in 2008. (Tr. 194:15–20.)
By October 2010, M-Class had begun development of the headgate and tailgate
that eventually would provide access and ventilation for the mine’s first
longwall panel. (Tr. 74:8–16.) The mine’s headgate, which is integral to
creating the longwall operation, had three entries, with large pillars of coal
approximately 100 feet wide separating each entry. (Tr. 78:7–9,
Tr. 95:2–3; Ex. MC–1, Ex. MC–1A). Every 100 feet, crosscuts through
the coal pillars connected the entries, creating a latticework grid pattern if
viewed from above. (Tr. 95:7–10; Ex. MC–1.)

M-Class
installed permanent concrete stoppings in the crosscuts to control the flow of
air through the mine. (Tr. 79:21–23, 179:12–22.) Fresh air flowed into the
headgate through the No. 3 Entry to ventilate the area being developed by a
continuous miner. (Tr. 78:19–79:6.) The No. 3 Entry, as the intake, also
served as the primary escapeway from the headgate. (Tr. 78:19–25,
190:13–191:12.) After sweeping across the face where active mining was taking
place, the now-contaminated air flowed down the No. 1 Entry, or the return, and
out of the mine. (Tr. 79:24–25.) A lesser volume of air also flowed away
from the active mining face and down the No. 2 Entry, which is located between
the No. 1 and No. 3 entries. (Tr. 79:7–16.) The No. 2 Entry served as the
mine’s alternate escapeway, i.e., the back-up route of escape in case the
primary escapeway is blocked. (Tr. 79:7–12.)

In
accordance with MSHA regulations, M-Class placed its coal conveyor belt in the No.
2 Entry. (Tr. 79:7–9.) The coal conveyor belt transports coal mined during the
headgate’s development to the surface, where the coal is processed before being
placed into storage. (Tr. 27:5–12, 143:14–17.) After this processing, a
long belt takes the clean coal to the top of a 100-foot-tall clean coal stacker
tower, from which the mine loads the coal into storage silos to await shipment
to market. (Tr. 157:8–12, 158:2–3.)

In
the No. 2 Entry, M-Class had hung the coal conveyor belt from the ceiling so
the bottom of the belt’s frame was two or three feet above the mine floor. (Tr.
38:23–39:15, 90:20–21.) Near the active mining face, M‑Class also kept several
other large pieces of equipment in the No. 2 Entry, including a power
transformer, cable tub, and water booster pump. (Tr. 28:11–23.) The power
transformer supplied electricity to mining equipment used at the face. (Tr. 28:20–23.)
The water pump provided water to the continuous miner to suppress the coal dust
produced from the mining process. (Tr. 28:22–23.) The cable tub held slack
in the cable that connected the transformer with power sources closer to the
surface. (Tr. 29:4–7.)

M-Class
developed the headgate of the MC #1 Mine at a rate of nearly 500 feet per day. (Tr. 221:7–14.)
As a result, M-Class had to advance its coal belt and the mining equipment by
several crosscuts every 24 to 48 hours. (Tr. 86:2–5, 221:10–14.) To
simplify the moving process, the company chose to leave the transformer, cable
tub, and booster pump in the No. 2 Entry rather than placing them in the
crosscuts. (Tr. 209:13–210:6.) By leaving the equipment in the entry, M-Class
could advance the section by hooking the three pieces of equipment to a scoop,
towing them straight forward like a train. (Tr. 207:15–17.) M‑Class also
believed that moving the equipment straight forward rather than in and out of the
crosscuts enhanced safety in the mine. (Tr. 221:12–222:9.)

IV.  CITATION
NO. 8424233—THE NARROWED ESCAPEWAY

A.  Findings of
Fact—Citation No. 8424233

On October 22,
2010, MSHA Inspector Marty Gayer visited M-Class Mining’s MC #1 Mine as part of
a regular quarterly inspection of the mine. (Tr. 22:6–14.) Inspector Gayer has
extensive training and experience as a mining safety inspector, working for
more than ten years as an MSHA inspector, training specialist, and conference
litigation representative. (Tr. 16:20–17:4.) Gayer also has specialized training
in mine emergency situations and worked as a member of MSHA’s national mine
rescue team. (Tr. 17:8–9, 17:25–18:18.) Prior to joining MSHA, Gayer worked for
almost 25 years in various other positions in the coal mining industry. (Tr. 20:7–13.)

On
the day of this inspection, Inspector Gayer went to the headgate, which M-Class
had advanced approximately 1,500 feet to the thirteenth crosscut. (Tr.
22:18–22.) Between the twelfth and thirteenth crosscuts in the No. 2 Entry,
Gayer found the alternate escapeway substantially blocked by the coal conveyor
belt on one side and on the other side by mining equipment, including the power
transformer, cable tub, and water pump. (Tr. 23:2–5, 28:11–23.) The lifeline running
down the mine roof of the alternate escapeway passed between the coal belt and
these three pieces of equipment. (Tr. 42:3–6.) Inspector Gayer measured the
distance between the power transformer and the frame of the coal belt and found
a width of only 34 inches. (Tr. 35:20–36:13; Ex. GX–2 at 3.) The passageway
narrowed even further to 17.5 inches between the belt and the cable tub, and
just 15 inches between the belt and the booster pump. (Tr. 37:1–13.) Altogether,
the equipment narrowed the alternate escapeway for a length of approximately 50
feet. (Tr. 57:13–15.)

Informed
that the alternate escapeway was impermissibly narrow, the operator requested
permission to attempt a stretcher test through the narrowed area. (Tr. 58:7–8.)
To perform the stretcher test, four miners placed another miner on an emergency
stretcher and attempted to carry him through the narrowed escapeway. (Tr. 57:21–25.)
The miners were able to pass through the pinched area, but Gayer noted that
they got through the area “with difficulty” and had to juggle and maneuver the
occupied stretcher to pass the constricted section. (Tr. 58:15–21, 115:3–7.) Rather
than carrying the stretcher with one miner at each corner, as designed, the
miners had to line up single file and reach across the stretcher to avoid
dumping out the supported miner. (Tr. 199:9–12, 204:13–25.) To pass the
power transformer, which stood approximately five feet tall, the miners had to lift
the occupied stretcher above their heads and sidestep through the narrow area. (Tr.
58:10–12.) The miners rested the stretcher’s weight on the water pump to pass
that piece of equipment. (Tr. 204:6–12.) Specifically, Inspector Gayer saw the
miners scooting or sliding the stretcher along the mining equipment. (Tr.
58:7–21.) While passing through the pinched area, the miners at times held on
to the frame of the coal conveyor belt. (Tr. 210:19–211:22.)

Based
on his observations, Inspector Gayer issued Citation No. 8424233, alleging a
violation of 30 C.F.R § 75.380(d)(4):

The Alternate Escapeway in #2 Conveyor Belt
Entry for Headgate #1 is not being maintained at least 6 feet wide. The
presence of the Section Transformer #PC 2, the 12,470 high voltage cable tub,
ISE Booster Water Pump #WP 1, and the conveyor belt reduces the width from 15
to 34 inches between the listed equipment and the conveyor belt on the North
side and from 16 to 35 inches between the rib and the listed equipment on the
South side for a distance of approximately 50 feet. The route of travel at this
location does not pass [through] a door or other permanent ventilation
controls, nor is there any necessary supplemental roof support in the affected
area, located between 12 and 13 crosscuts. The reduced width is due solely to
the presence of the equipment listed.

(Ex.
GX–1 at 1.) Gayer designated the violation as unlikely to cause injury and
characterized M‑Class Mining’s negligence as “high.” (Id.) Inspector
Gayer terminated the citation five days later on October 27 after M-Class
raised the coal conveyer belt so its bottom was at least five feet above the
mine floor. (Id. at 2.)

B.  Analysis and
Conclusions of Law—Citation No. 8424233

Respondent
relies on two theories to escape liability: (1) the area in question fits under
the exception provided in section 75.380(d)(4)(iv), and, alternatively, (2)
M-Class did not have sufficient notice that the conditions constituted a
violation. (Resp’t Br. at 6–16.)

1.
 Violation of Section 75.380(d)(4)

Section
75.380(d)(4) requires that a coal mine’s escapeways be at least six feet, or 72
inches, wide unless an area falls under one of a limited number of exceptions. To
prove a violation, therefore, the Secretary must show (1) the escapeway was
less than six feet wide, and (2) the cited area does not fall under any of four
enumerated exceptions.

The
exception provided by section 75.380(d)(4)(iv) allows for mobile equipment or
longwall mining equipment to narrow the escapeway to less than six feet. 30
C.F.R. § 75.380(d)(4)(iv). Yet the area must still be of sufficient width
“to allow miners, including injured persons, to escape quickly in an
emergency.” Id. To determine whether an area is of sufficient width,
MSHA may require a stretcher test, whereby four miners carry a person through
the area in question on a stretcher. Id.; 61 Fed. Reg. 9764, 9811–9812
(Mar. 11, 1996).

Here,
Respondent argues that the cited area fell under the exception provided by section
75.380(d)(4)(iv).[4]
(Resp’t Br. at 7–11.) M-Class further asserts that its miners satisfactorily
completed a stretcher test, proving that the escapeway was of sufficient width
in accordance with the regulation. (Resp’t Br. at 11–13.)[5]

Contrary
to Respondent’s assertion, the evidence before me does not establish that the
alternate escapeway was wide enough that miners, including injured miners,
could escape quickly during an emergency. Respondent’s stretcher test failed
outright under a strict reading of section 75.380(d)(4)(iv), which requires four
persons to carry a miner through the area in question on a stretcher. As
Inspector Gayer and M-Class Vice President Fox testified, the miners rested the
stretcher on top of the water pump and slid it across the equipment instead of
carrying it. I see little to differentiate dragging the stretcher across the
equipment at hand and simply placing the stretcher on the ground and dragging
it through the cited area. Neither scenario satisfies the text of the regulation.

Moreover,
the evidence does not show that M-Class’s stretcher test satisfied the
protective intent of the regulation. Inspector Gayer credibly testified that
the miners had difficulty maneuvering through the chokepoint created by the
belt and the mining equipment. Instead of carrying the stretcher as designed,
the miners had to line up single file, lift the disabled miner over their
heads, and then shuffle the stretcher across the water pump in order to pass
through the narrow area. The miners were in regular contact with the frame of
the coal conveyor belt, which, when in operation, presents an additional hazard
to the miners. Notwithstanding Vice President Fox’s broad assertions that the
miners “carried the guy right down through there” (Tr. 196:5–7), Respondent did
not present evidence countering Inspector Gayer’s testimony. Given Inspector
Gayer’s detailed testimony and contemporaneous notes, I credit his testimony
over the vague statements by Fox.

Furthermore,
it is important to note that the miners performing the stretcher test
encountered these difficulties in ideal conditions. The Commission has
consistently held that the test with respect to the use of an escape route “is
not whether miners have been safely traversing the route under normal
conditions, but rather the effect of the condition of the route on miners’
ability to expeditiously escape a dangerous underground environment in an
emergency.” Am. Coal Co., 29 FMSHRC 941, 950 (Dec. 2007) (citing Maple
Creek Mining, Inc., 27 FMSHRC 555, 560 (citing 61 Fed. Reg. at 9810)). The
limited visibility and hazardous conditions caused by an emergency would be
expected to enhance the difficulties the miners encountered while attempting
the stretcher test. (Tr. 42:10–19.)

Respondent’s
unwavering focus on the miners’ ability to squeeze through the constricted
escapeway is misplaced. The Mine Act must be construed broadly to achieve the
goal of health and safety, and exceptions to remedial legislation must be
construed narrowly. Local Union 7107, UMWA v. Clinchfield Coal Co., 124
F.3d 639, 640–41 (4th Cir. 1997), cert denied, 523 U.S. 1006 (1998); Sec’y
of Labor v. Cannelton Indus. Inc., 867 F.2d 1432, 1437 (D.C. Cir. 1989). The
purpose of the escapeway-width requirement is to ensure that all persons,
including injured miners, can quickly get out of harm’s way amid a potentially
catastrophic emergency. See 61 Fed. Reg. at 9811–9812. A successful
stretcher test is a “demonstration that there is no delay in escape.” Id.
M-Class’s stretcher test demonstrated just the opposite—that miners scrambling
to escape a life-threatening emergency would be forced to wait as their
colleagues twisted and contorted and juggled a full stretcher through a 15-inch
gap. Miners should not be forced to choose between their own safety and the rescue
of injured comrades.

Based
on the evidence before me, I determine that Respondent’s stretcher test did not
show that the MC #1 Mine’s alternate escapeway was of sufficient width to
enable miners, including disabled persons, to escape quickly in an emergency. Accordingly,
the exception provided in Section 75.380(d)(4)(iv) does not apply to the cited
area.[6]

2.
 M-Class Mining’s Knowledge

In
its defense, Respondent claims it cannot be penalized for the blocked escapeway
because it had no knowledge that MSHA considered the discovered conditions to
be a violation. (Resp’t Br. at 13–16.) When determining whether an operator had
fair notice of the requirements of a regulation, the Commission asks “whether a
reasonably prudent person familiar with the mining industry and the protective
purposes of the standard would have recognized the specific prohibition or
requirement of the standard.” Ideal Cement Co., 12 FMSHRC 2409,
2416 (Nov. 1990). In applying this standard, the Commission has taken into
account a wide variety of factors, including the text of the regulation, its
placement in the overall regulatory scheme, its regulatory history, the
consistency of the agency’s enforcement, and whether MSHA has published notices
informing the regulated community with “ascertainable certainty” of its
interpretation of the standard in question. Lodestar Energy, Inc., 24
FMSHRC 689, 694–95 (July 2002).

First,
M-Class asserts the regulation is unclear because both the text and MSHA have
not provided a minimum acceptable width under section 75.380(d)(4)(iv). (Resp’t
Br. at 15.) Here, however, the regulatory history repeatedly emphasizes
the need for miners to be able to escape the mine without delay. 61 Fed. Reg.
at 9811–9812. The facts in this instance establish that M‑Class did not meet
that standard. The escapeway narrowed to 17.5 inches at the cable tub and to a
mere 15 inches between the operational coal belt and the water booster pump. Navigating
such a small gap would require careful maneuvering for even an unencumbered
miner, let alone a team of equipped miners carrying a wounded colleague during an
emergency.

Second,
Respondent argues that MSHA’s failure to cite the blocked escapeway in prior
inspections should forestall the violation in this instance. (Resp’t Br. at
16.) In support of its argument, Respondent points to a number of decisions
from Commission Administrative Law Judges vacating citations where MSHA for
years prior had either failed to identify violations or openly declined to cite
the conditions. (Id.) Those facts are not present in this case. At the
time of the inspection, M-Class’s first headgate was only 1,500 feet deep. M-Class
developed the headgate at a rate of nearly 500 feet per day, so the specific
conditions in this citation could not have existed for more than several days
prior to MSHA’s October 22 inspection.

Considering
these factors, I determine that a reasonably prudent miner would have
recognized the alternate escapeway with equipment stored in it was too narrow
to allow a stretcher team to escape quickly. While MSHA’s regulations envisage
instances where an alternate escapeway can be less than six feet wide, reducing
the passage to a mere 15 inches is such a drastic reduction that any reasonable
miner would notice the narrowing and realize it is insufficient. M-Class’s
tortured reading of the regulation is akin to shoving a square peg into a round
hole. That exercise, like M-Class’s argument, ultimately fails.

Consequently,
I conclude that the Secretary has satisfied both elements for a violation of section
75.380(d)(4), as the cited area of the escapeway was not at least six feet
wide, and no statutory exceptions to the width requirement were applicable. I
also conclude that M-Class reasonably should have known that its actions
constituted a violation of the regulation.

3.  Gravity

M-Class
Mining does not dispute the Secretary’s gravity determination for Citation No. 8424233.
Because the primary escapeway remained clear, I determine that the Secretary
properly concluded that the violation was unlikely to cause injury and that the
injuries most likely to result from an incident involving the violative
conditions would be lost workdays or restricted duty. Finally, I agree that the
Secretary properly determined that the violative conditions affected thirteen
persons, the number of miners working in that section of the mine.

4.  Negligence

M-Class
Mining disputes the Secretary’s determination that the operator displayed high
negligence in allowing the violative condition to exist, as the mine did not
know MSHA considered the blocked escapeway to be a violation. (Resp’t Br. at
16–18.) As discussed above, however, Respondent should have known that the escapeway
was too narrow to allow injured miners to escape quickly. Furthermore, I note
that M‑Class abated the violation by simply raising the coal conveyor belt
approximately three feet higher than it had been initially installed. Although
M‑Class presented testimony to the difficulty of placing its equipment in crosscuts
rather than the escapeway, Respondent provided no explanation for its failure
to adopt the simple precaution of raising the conveyor belt. Absent such
evidence, it is unclear to me why M-Class failed to pursue such a seemingly
straight-forward precaution to meet the high standards of miner safety required
by the Mine Act. I conclude that the Secretary has demonstrated M-Class
Mining’s level of negligence to be high. See 30 C.F.R. § 100.3(d)
at Table X (suggesting “high negligence” where the “operator knew or should
have known of the violative condition or practice, and there are no mitigating
circumstances.”)

C.  Penalty

The
Secretary proposes a $425.00 civil penalty for this violation. Under section
110(i) of the Mine Act, I must consider six criteria in assessing a civil
penalty: (1) the operator’s history of previous violations; (2) the
appropriateness of the penalty relative to the size of the operator’s business;
(3) the operator’s negligence; (4) the penalty’s effect on the operator’s
ability to continue in business; (5) the violation’s gravity; and (6) the
demonstrated good faith of the operator in attempting to achieve rapid compliance
after notification of a violation. 30 U.S.C. § 820(i).

In
the seven months prior to the MSHA inspectors’ visit, M-Class Mining received
sixteen citations or orders for violations of mandatory safety and health
standards. M-Class is a relatively large operator, receiving nine out of a
potential ten points for controller size under the Secretary’s penalty criteria
in his Part 100 regulations. See 30 C.F.R. § 100.3(b). Nothing
in the record suggests that the penalty would impinge on Respondent’s ability
to remain in business. Moreover, M-Class was highly negligent in allowing its
mining equipment to block much of the mine’s alternate escapeway, and although
the violation was not likely to cause injury or illness, the restricted
escapeway affected a large number of persons. Nevertheless, I acknowledge
Respondent’s timely efforts to remedy the violative condition.

Considering
all of the facts and circumstances of this matter, I conclude that the
Secretary’s proposed penalty is appropriate and assess a penalty of $425.00.

V.  CITATION NO.
8424774—THE CLEAN COAL STACKER

A.        Findings
of Fact—Citation No. 8424774

On
October 28, MSHA Inspector J. Scott Lee inspected the surface areas at
M-Class’s MC #1 Mine as part of a regular quarterly inspection of the mine. (Tr.
141:25–142:5.) Lee had worked for a total of 37 years in the mining industry,
including 22 to 23 with mine operators and another 13 with MSHA. (Tr. 122:4–6.)
Lee inspected coal stacker belts as a regular part of his job with MSHA and
frequently as a safety inspector for the coal mines. (Tr. 122:21–25.)

The
MC #1 Mine’s stacker belt is powered by drive motors located at the bottom of
the belt. (Tr. 144:8–13.) The top of the clean coal stacker belt contains a laser
sensor that trips a mechanism to stop the motors if the belt becomes clogged. (Tr.
163:20–164:3.) The sensor switch is controlled from the main controller room,
not from the top of the belt. (Tr. 166:23–25.) The laser sensor is connected to
the main controller room with a low-voltage computer cable. (Tr.
163:20–164:12.) In addition, several lights hang from the coal stacker tower to
illuminate the area below. (Tr. 167:18–168:7.) There are also a number of
lights along the walkway leading to the top of the clean coal stacker. (Tr. 167:15–17.)
No power distribution center or power box is located at the top of the clean
coal stacker belt. (Tr. 170:2.)

Inspector
Lee testified that he found permanent electrical installations, such as a
circuit control panel, at the top of the mine’s clean coal stacker. (Tr. 131:17–20.)
Lee searched for but did not find a fire extinguisher at the top of the coal
stacker. (Tr. 139:7–20.) Based on his observations, Inspector Lee issued
Citation No. 8424774, alleging a violation of 30 C.F.R. § 77.1109(d):
“There was no fire extinguisher located at the permanent electrical
installation. This condition was observed at the drive motor for the clean coal
stacker belt on top of the clean coal stacker.” (Ex. GX–4.) Lee designated the
violation as unlikely to cause injury and characterized M‑Class’s negligence as
“moderate.” (Id.)

When
M-Class Mining’s safety manager, Timothy Kirkpatrick, learned that Inspector
Lee was issuing a citation for the lack of a fire extinguisher at the top of
the tower, he asked Lee what equipment required a fire extinguisher. (Tr.
159:25–160:3.) Lee told Kirkpatrick the citation was for two gray boxes at the
top of the tower. (Tr. 160:2–4.) When pressed by Kirkpatrick, Lee
indicated the citation was for the stacker belt’s drive motors. (Tr. 160:5–10.)
After Kirkpatrick informed Inspector Lee that the belt’s drive motors were not
located at the top of the tower, Lee indicated to Kirkpatrick that two gray
boxes at the top of the tower required a fire extinguisher. (Tr. 160:11–20.)

Inspector
Lee terminated the citation after M-Class placed a fire extinguisher on two
gray boxes at the cited location that hold a carbon dioxide bottle. (Tr.
161:5–13, 163:1–9; Ex. GX–4 at 1, Ex. GX–5 at 3.) Inspector Lee did not go back
to the top of the tower to see where M-Class placed the fire extinguisher. (Tr.
149:3–7.)

Inspector
Lee did not mention the presence of the drive motor in his field notes, which
Lee thought he filled out shortly after issuing the citation. (Tr. 125:16–24.) Lee’s
notes do not identify the installation requiring a fire extinguisher, but
instead refer generally to an unspecified “permanent electrical installation.” (Ex.
GX–5 at 2.)

B.        Analysis
and Conclusions of Law—Citation No. 8424774

The
threshold issue is whether the Secretary has established a violation of
30 C.F.R. § 77.1109(d). Inspector Lee issued Citation No. 8424774 for
M-Class Mining’s failure to provide a fire extinguisher at the top of the clean
coal stacker belt. (Ex. GX–4.) To demonstrate a violation of 30 C.F.R. § 77.1109(d),
the Secretary must prove by the preponderance of the evidence that the operator
(1) failed to provide a fire extinguisher (2) commensurate with the fire hazard
presented by an electrical installation.

In
a sparse, two-page argument, the Secretary asserts that the citation should be
affirmed because M-Class failed to provide a fire extinguisher for the sensor
eye located at the top of the clean coal stacker belt. (Sec’y Br. at 16.) Notably,
the Secretary’s argument is a sharp diversion from the citation issued during
Lee’s October 28 inspection. Inspector Lee explained his erroneous wording in
the citation as a clerical error that resulted from him using a template
citation rather than starting from scratch. (Tr. 124:8–20.) Although the
Secretary had ample opportunity to amend the citation to properly reflect the
violative conditions discovered atop the clean coal stacker belt, he
nevertheless declined to do so. Moreover, Lee’s notes from the inspection
provide no additional clarity. (Ex. GX–5 at 2–3.)

Inspector
Lee’s citation and notes are not the only shortcomings in the Secretary’s case.
At hearing, Lee’s testimony was unclear at best. When the Secretary’s counsel presented
Inspector Lee with Respondent’s photographs of the area at the top of the clean
coal stacker belt, Lee could not identify with certainty a permanent electrical
installation requiring a fire extinguisher nearby. (Tr. 129:23–130:7,
131:13–132:15.) When further prompted on direct examination to identify the
location of the cited permanent electrical installation, Inspector Lee first
stated he had a feeling the electrical installation was on one side of the
stacker tower but then subsequently identified the culprit as a small metal box
located on the opposite side of the tower. (Tr. 132:9–12, 134:13–135:1; Ex.
GX–6 at 2–5.) Undeterred, Lee again switched his testimony on cross-examination,
asserting that the cited permanent electrical installation was in the first location
he identified. (Tr. 146:13–25.) The Secretary did not introduce his own
photographs identifying the violative condition.

Inspector
Lee also could not identify what the alleged permanent electrical installation
was. Lee first testified that he would have cited a circuit control panel. (Tr.
131:17–20.) He subsequently testified that even a junction box, where two wires
meet, would be a permanent electrical installation for the purposes of section
77.1109(d). (Tr. 135:17–19). On cross-examination, Lee testified that he had
identified a circuit box or control panel that was used to distribute
electricity to instruments at the top of the clean coal stacker belt. (Tr.
145:5–8.) Lee then expanded his definition of a permanent electrical installation
to include all conduits. (Tr. 145:9–18.) When questioned whether his
expansive understanding effectively includes all wires capable of carrying an
electrical current, Lee backed off his testimony and again insisted he was
looking for a box. (Tr. 145:19–146:6.) Lee further testified that he did not
need to know the contents of a “silver box” in order to identify it as a
permanent electrical installation. (Tr. 150:2–18, 151:19–23.) Indeed, Lee
admitted that he had not thoroughly checked the alleged electrical installation
he cited. (Tr. 151:20–152:3.)

Considering
Kirkpatrick’s testimony regarding the inspection, I do not find Inspector Lee’s
testimony to be credible. See Grizzle v. Picklands Mather & Co., 994 F.2d 1093,
1096 (4th Cir. 1993) (indicating ALJs have the “sole power to make credibility
determinations and resolve inconsistencies in the evidence”). Furthermore, the
citation itself is admittedly inaccurate and the notes unilluminating. Altogether,
the Secretary has provided no evidence to support his allegations that the top
of M-Class Mining’s clean coal stacker belt contained any permanent electrical
installation requiring a fire extinguisher to be placed nearby. Although the
Secretary in his reply brief points to the laser sensor as proof that a fire
extinguisher was needed atop the clean coal stacker, he provides no details
regarding the fire hazard posed by this low-voltage sensor and no theory
suggesting what type of fire extinguishing equipment such an instrument would
require.[7]
The Secretary chose not to put Inspector Lee on the stand in rebuttal or call
any rebuttal witnesses.

The Mine Act imposes on the Secretary the burden of
proving the violation the Secretary alleges by a preponderance of the evidence.
See Consolidation Coal Co., 11
FMSHRC 966, 973 (June 1989) (citations omitted). Given the lack of evidence
before me, I determine that the Secretary has not satisfied his burden
of proof to demonstrate the elements of a violation of section 77.1109(d). Citation
No. 8424774 therefore is vacated.

VI.  ORDER

In
light of the foregoing, it is hereby ORDERED that Citation No. 8424233 is AFFIRMED. It is further ORDERED
that Citation No. 8424774 be VACATED.

WHEREFORE, Respondent is ORDERED to
pay a penalty of $425.00 within 40 days of this Decision.[8]

Alan
G. Paez

Alan
G. Paez

Administrative
Law Judge

Distribution:

Bryan
Kaufman, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer
Boulevard, Suite 515, Denver, CO 80204-3516

Christopher
D. Pence, Esq., Hardy Pence, LLC, P.O. Box 2548, Charleston, WV 25329

/lct

[1] Section
75.380(d) provides, in relevant part—

Each escapeway
shall be –

. . . .

(4) Maintained
at least 6 feet wide except –

. . . .

(iv) Where mobile equipment near working
sections, and other equipment essential to the ongoing operation of longwall
sections, is necessary during normal mining operations, such as material cars
containing rock dust or roof control supplies, or is to be used for the
evacuation of miners off the section in the event of an emergency. In any
instance, escapeways shall be of sufficient width to enable miners, including
disabled persons, to escape quickly in an emergency. When there is a need to
determine whether sufficient width is provided, MSHA may require a stretcher
test where 4 persons carry a miner through the area in question on a stretcher.

[2] Section 77.1109
provides, in relevant part, as follows:

Preparation plants, dryer plants,
tipples, drawoff tunnels, shops, and other surface installations shall be
equipped with the following firefighting equipment.

. . . .

(d) Fire extinguishers shall be provided
at permanent electrical installations commensurate with the potential fire
hazard at such installation in accordance with the recommendations of the
National Fire Protection Association.

[3] In this
decision, the hearing transcript, the Secretary’s exhibits, and M-Class
Mining’s exhibits are abbreviated as “Tr.,” “Ex. GX–#,” and “Ex. MC–#,”
respectively.

[4] M-Class does
not dispute the Secretary’s contention that the exceptions provided in section
75.380(d)(4)(i), (ii), and (iii) do not apply. See 30 C.F.R.
§ 75.380(d)(4)(i), (ii), (iii) (describing exceptions to the width
requirement for escapeways).

[5] In support of
its argument, Respondent points to Rochester & Pittsburgh Coal Co.,
13 FMSHRC 933 (June 1991) (ALJ). (Resp’t Br. at 12–13.) In that case, an
Administrative Law Judge vacated the Secretary’s citation under a prior version
of the regulation because the Secretary failed to meet its burden of proof to
show a stretcher could not be navigated through an area approximately 36 inches
wide. Nevertheless, Rochester & Pittsburgh is both legally and
factually distinct from the case at hand. First, Rochester & Pittsburgh dealt
with an earlier version of the regulations addressing the need to maintain
escape facilities to ensure passage. Furthermore, Rochester & Pittsburgh
involved a three-foot-wide opening, more than double the width of the
escapeway in question here. I am not bound by Rochester & Pittsburgh,
and, given the factual and legal differences, I see no reason to follow it. 29
C.F.R. § 2700.69(d).

[6]
Because M-Class’s
escapeway did not meet the regulation’s width requirement, I need not reach the
question of whether the power transformer, cable tub, and water pump qualified
under the section as mobile equipment or equipment necessary for the
development of a longwall.

[7] Although MSHA
has not provided direct guidance on what constitutes a permanent electrical
installation for the purposes of section 77.1109(d), the agency’s Program
Policy Manual mentions “electric motors or transformers” as examples of such
installations. V MSHA, U.S. Dep’t of Labor, Program Policy Manual, Part
77, 199–200 (2003). Here, the Secretary has provided no evidence to suggest the
low-voltage sensor shares any essential characteristics with the permanent
electrical installations noted in MSHA’s Program Policy Manual.

[8]
Payment should be sent to: U.S. Department of Labor, MSHA, Payment
Office,    P.O. Box 790390, St. Louis, MO 63179-0390. Please include docket and
A.C. numbers.