Cumberland Contura, LLC v. Secretary of Labor

Plain-English summary

An MSHA inspector saw a miner walk between a rib and a derailed 20-ton locomotive while workers were preparing to rerail it, stopped the work, and issued a section 107(a) imminent-danger order within about three minutes. The judge credited the inspector's honest fear but held that the conclusion was not objectively reasonable. The inspector had not measured the clearance, determined where the locomotive's wheels sat relative to the rails, or adequately questioned experienced witnesses; that readily available information showed the locomotive could not slew sideways into the miner at that moment. Because the danger had also passed by the time the order issued, the judge found an abuse of discretion, vacated the order, and dismissed the case.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 802(j) and 817(a)
• Outcome: Imminent Danger Order No. 9078215 was vacated and the contest proceeding was dismissed.
• Key point: An inspector's good-faith perception of danger must still be objectively reasonable in light of information known or readily available through a prompt, sensible investigation.
• Scope: The ruling was expressly case-specific and did not require physical evidence or a prolonged inquiry before every imminent-danger order.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE:
412-920-7240 / FAX: 412-928-8689

CUMBERLAND
CONTURA, LLC,

Contestant,

v.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH    

ADMINISTRATION
(MSHA),

Respondent.

CONTEST PROCEEDING

Docket No. PENN 2018-50-R

Order No. 9078215; 09/28/2017

Mine ID: 36-05018

Mine: Cumberland Mine

DECISION AND
ORDER

Appearances:               R.
Henry Moore, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for Contestant.

Jordana L. Greenwald, Esq., Office of the
Solicitor, U.S. Department of Labor, Philadelphia, Pennsylvania, for Respondent.

Before:
                       Judge Lewis

I.                   
STATEMENT
OF THE CASE

This
case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et. seq. (2006) (“Mine Act” or “Act”). At issue is an imminent danger order
issued under section 104(a) of the Act. On January 11, 2018, a hearing was held
in Pittsburgh, PA. The parties presented testimony and documentary evidence and
filed post-hearing briefs.

II.                
JOINT
STIPULATIONS [1]   

The
parties have stipulated to the following facts:

1. Cumberland is an
   “operator” as defined in § 3(d) of the Federal Mine Safety and Health Act of
   1977, as amended (hereinafter “the Mine Act”), 30 U.S.C. §803(d), at the mine
   at which the subject Order in this proceeding was issued.

2. Operations of
   Cumberland mine are subject to the jurisdiction of the Mine Act.

3. This proceeding
   is subject to the jurisdiction of the Federal Mine Safety and Health Review
   Commission and its designated Administrative Law Judge pursuant to Sections 105
   and 113 of the Mine Act.

4. Andrew W.
   Gallagher, who is a Health Specialist for MSHA and whose signature appears in
   Block 22 of the Order at issue in this proceeding, was acting in an official
   capacity and as an authorized representative of the Secretary of Labor when the
   subject Order was issued.

5. A true copy of
   the Order at issue in this proceeding was served on Cumberland as required by
   the Act.

6. Cumberland Mine
   is owned and operated by Cumberland Contura, LLC.

III.             
SUMMARY
OF TESTIMONY

Anthony
Gallagher

Anthony
Gallagher had been working for MSHA since 2013, first as an inspector trainee
E0-1 inspector, and then for the last two years as a health specialist. Tr.
20-21 [2] .
His job duties included “running dust or running noise” on coal mine sections.
Tr. 21. Prior to coming to MSHA, he had worked as a coal miner for 6 years,
possessing a miner’s certification. [3]
Tr. 22.

On September 28, 2017, Gallagher issued
a dust citation and imminent danger order to Cumberland Mine. Tr. 22. He had
traveled to Cumberland on E0-1 inspections in the past. Tr. 23. While coming up
81 East Mains Track, going into the 68 headgate area, he observed an off-track
motor and some cap lamps. Tr. 24-26. After going with Contestant’s employees to
find blocking and cribbing materials, Gallagher returned on a mantrip with Bob
Dalnoky (the mine’s senior safety representative). Tr. 26-27, 137. Contestant’s
employees started placing materials under the motor “to start jacking it up and
slewing it over.” Tr. 28. Gallagher then saw the cap lamp of Will Christopher
coming through the “least clearing side of the motor” as the motor was being
lifted off the ground with a jack walker. [4]
Tr. 28-30. The jack walker was attached to the motor. Tr. 31.

There
was “a lot” of wind, making it difficult to hear conversation without the raising
of voices. Tr. 31. Gallagher flagged both Christopher and an individual in the
kitchen operator’s compartment of the 20-ton motor to stop everything, and
ordered that the diesel motor be shut down. Tr. 32. Gallagher did so because he
“was scared” for Christopher’s life. Tr. 32. In his experience, when blunt
pieces of steel [5]
were being put together, they sometimes “unexpectedly and very surprisingly”
move in an unforeseen direction. Tr. 32.

Gallagher
was approximately five or six feet from the diesel motor when Christopher walked
over. Tr. 33. See also GX A . The derailed
motor was in the crosscut area. Tr. 35. There was approximately 36” of space
between the motor and rib when Christopher walked through.  Tr. 36. On the
other side of the motor there was approximately 6-7 feet of space to the
closest rib. Tr. 37.

After
stopping all progress, Gallagher pulled the two motor men, Christopher and
Dalnoky, to the outby end of the motor. Tr.38. He informed them that it was
extremely unsafe for somebody to walk through a pinch point while the motor was
being lifted or re-railed. Tr. 38. Gallagher also opined that there were “too
many bosses,” that the re-railing was unorganized, and that there should have
been a plan prior to attempting to re-rail a piece of equipment. Tr. 38.

Respondent’s employees went back to work cribbing up
the motor to slew it over, using the jack walker. Tr. 38-39. As company
representatives, including (Jeff) Everett, were walking up to Gallagher’s right
hand side, Gallagher heard a “big bang” when the jack walker had “unexpectedly
slipped or grabbed hold of something and slammed.” Tr. 39.

Gallagher
explained to Everett that it was unsafe to have so many people around, “barking
orders,” while a piece of equipment was being moved. Tr. 39. At this point
Gallagher informed Dalnoky that he was issuing a 107(a) imminent danger order
for Will Christopher having walked through the pinch point between the motor
and the rib. Tr. 40.

Dalnoky
disagreed with Gallagher’s determination, asserting that re-railing equipment
was within Contestant’s expertise, and that it was not an unsafe act. [6] Tr. 40.

Gallagher
estimated that the time between when he first observed Christopher walk by the
motor and his issuance of a 107(a) imminent danger order was “under three
minutes.” Tr. 41. Christopher had reported that he did not know that the motor
was going to be raised when he had walked through. Tr. 42. Further, the individual
in the operator’s compartment had not known that Christopher was going to walk
past the motor. Tr. 42; See also Tr. 50.

Gallagher
had also spoken with the outby mechanic who reported that a pair of jack
walkers had broken down the day before in the same intersection, approximately
20 feet from where the motor was sitting. Tr. 43.

Gallagher
recorded his notes prior to going underground, while underground, and
subsequently on the surface. Tr. 45; See also GX B. He had made a blunt
drawing of the motor and track according to his observations on the day of the
incident. Tr. 47; GX B, p.7. Gallagher had not specifically mentioned that
there had been a bang in his notes. He did not think that the bang had anything
to do with the imminent danger order. Tr. 53.

On
the way to terminate the rock dust citation Gallagher had a “man to man
conversation,” with Bob Dalnoky, involving some, “pretty aggressive yelling,”
in the intersection of the occurrence, ending with apologies and a handshake.
Tr. 53. Dalnoky further advised Gallagher that he would lose his job if an
imminent danger order were to be issued. Tr. 53. However, this conversation was
not mentioned in Gallagher’s notes. Tr. 57.

On the elevator ride to the surface
Gallagher has spoken with Christopher. Christopher had stated that he did not
know that they were going to raise a piece of equipment when he passed the
motor. Tr. 56.                

Gallagher also spoke with Frank Foster,
a member of Contestant’s Safety Department, who questioned whether there was
any other way to deal with the controversy rather than an imminent danger
order. Tr. 58. Gallagher explained this was the tool he had in his toolbox for
such situations. Tr. 58. Gallagher also advised that he would be issuing an
S&S Citation if there was a safeguard existing for this situation.
Otherwise, he would be writing a safeguard to stop such instances from
happening in the future. [7]
Tr. 59.

Gallagher
was aware of other occasions when miners were injured in the process of
re-railing diesel-powered equipment on similar rail systems. [8] Tr. 68.
Shortly before the incident at issue, a miner had sustained a severe foot
fracture while re-railing a piece of equipment. Tr. 68. The father of a
coworker of Gallagher’s had been killed in a re-railing accident. Tr. 69.
Gallagher reported that he had feared for Christopher’s life when Christopher
had walked between the big piece of equipment and a coal rib. Tr. 69. He had
declined to give a safety talk in lieu of issuing an imminent danger order
because, in his experience, such an approach did not, “clear up the situation.”
Tr. 70.

Gallagher
denied knowing of other inspectors who issued safeguards on the same day that
they had witnessed a particular condition. Tr. 71. He conceded that for two
months, from 9/28/17 to 12/1/17, the alleged unsafe condition could have
occurred again because no safeguard had been issued. Tr. 73.

Gallagher did not know the specific
facts regarding the accident involving an injury at Enlow Fork Mine referred to
in his earlier testimony. He did not know whether jack walkers were being used.
Tr. 76. He also did not know the specifics regarding the fatality at Loverridge
Mine that he referred to. Tr. 76. Nor had he looked into the specifics of the
other derailment injuries that he had testified about. Tr. 76. He testified
that he had never re-railed a track-mounted vehicle. Tr. 77.

When
Gallagher made his drawing from the inby end of the motor, (GX B, p.7) the
motor was still off the track. Tr. 77.

Gallagher
acknowledged that Contestant’s employees whom he had heard, “barking orders,”
would have had to yell to be heard. Tr. 77.

Given
the location where motorman Stevens was sitting in the kitchen of the motor,
which was on the inby end, Christopher would have had to walk right by the
operator. Tr. 79. Christopher would be been wearing a cap light and reflective
clothing. Tr. 79. The motorman would have “probably” observed Christopher walk
by him. Tr. 80-81.

At
the point Gallagher had issued his verbal imminent danger order, Christopher
had already walked by the motor and was out of danger. Tr. 81-82.

Gallagher
estimated the distance between the motor and the rib to be approximately 36”.
Tr. 83. He never actually measured the distance (despite the motor having been
shut down) [9] .
Tr. 83. Further, he had not noticed whether any of the motor’s wheels were off
track. Tr. 85-86. He did not know how many times Contestant’s employees had to
jack up the outby end, or back end of the motor to get it back on track. Tr.

86. Gallagher agreed that in order to re-rail the motor, it would be necessary
    to jack the motor up, place blocking underneath the jack, and then jack the
    motor up again so it could be raised high enough to get the wheels up to the
    rail. Tr. 87. He further agreed that Dalnoky had not perceived the events at
    issue to constitute a hazard. Tr. 88.

Gallagher
himself had never driven any of the vehicles in the mine because he was an
inspector. Tr. 89. Nor had he ever re-railed any vehicles in the mine(s)
because he was an inspector. Tr. 89.

Gallagher
observed the jack walker “abruptly” move but could not determine the direction
of the “jerk”, nor did he know the distance that the jack walker had moved. Tr.

90. The loud bang that Gallagher heard while watching the re-railing process
    had “scared” him. He relayed such to Dalnoky. Tr. 90-91.

Christopher
did not advise him, as they were exiting the elevator, that Christopher had
announced to the motorman that he was going to pass the motor. Tr. 92.

Anthony
Gallagher Redirect Examination

Gallagher
was uncertain of the distance between the rib and motor on the outby end. Tr.

92. He did not recall hearing Dalnoky state that everything was static. Tr. 93.

Jeffrey
Spooner

Spooner
was a motorman at Cumberland Mine, working in this position for approximately 4
years. Tr. 96-97. He had begun working for Contestant in June 2011 and had no
previous mining experience. Tr. 99. As a motorman, he essentially transported
materials throughout the mine and moved goods. Tr. 97.

He
recalled the incident at issue and testified that he had been working with
Shawn Stevens on that day. [10]
Tr. 97-98. A guide rail had loosened causing the motor to come off track. Tr.

98. All four of the locomotives wheels had come off track. Tr. 101. The left
    inby wheel was located inside the rail. Tr. 101; See also GX A. The
    wheel on the other side would have been in the apex between the three tracks,
    straight in the turn. Tr. 102. The outby wheels were basically in the same
    location(s) inside the track rail. Tr. 102. Two were contained between the two
    track rails over the actual rail system. The other two were “completely outside
    of it between the straight rail and the turn rail.” Tr. 102.

Typically,
when a motor goes off track, jack walkers are used to elevate the motor to slew
it over. Tr. 103. However, in the instant matter, because the wheels had ended
up “much lower” [11]
below the top of the rail, blocking was also required. Tr. 103.

The
motor would need to be elevated by the jack walker as high as possible with blocking
being put under the motor and the process repeated until the wheels could clear
the rail. Tr. 103.

Initially,
Spooner was at the site alone with Stevens. Tr. 104. When Dalnoky and Gallagher
arrived, he took their jeep to obtain blocking at a location approximately
600-800 feet away. Tr. 104. Stevens remained in the motor with the lights on.
Tr. 104. When Spooner returned, he saw Gallagher walking towards the motor and
heard the inspector yell, “stop.” Tr. 105.

Spooner
did not believe that the area through which Christopher walked was unsafe. Tr.

106. There was “no way” that the motor could have moved over toward the rib
     because the “wheels wouldn’t allow it to jump the rail.” Tr. 106. That was the
     reason blocking was needed. Tr. 106. Spooner already on the same day had to
     jack up the motor 4 to 5 times. Tr. 107.

The area was loud and noisy due to the airflow and
revving up of the engine in the motor for hydraulics to work. Tr. 108.

It
was a typical event for a jack walker to come down and sometimes slew, going
under the I-beam of the rail, causing the “whole thing” to jump and make a loud
noise. Tr. 109. It was just the jack walker that moves; the motor does not
move. Tr. 109. When Christopher walked beside the motor, it was not moving. Tr.

109. Rather, it was just sitting there, idle. Tr. 109. Typically, when Spooner
     or his fellow workers are around a motor, a foot is taken off the dead man so
     that the motor cannot move and is inoperable. Tr. 109.

Spooner
had seen no potential for the motor to have moved over into the walkway where
Christopher was walking. Tr. 110. Christopher would have had to be wearing a
cap lamp, reflective clothing, and blinking lights. Tr. 110.

Spooner
agreed that you would not want “a bunch of people milling about,” during
re-railing and would want only one-person giving orders. Tr. 111.

During
the re-railing at issue, Stevens was communicating with Spooner and Dalnoky was
helping Spooner move the blocking. Tr. 111.

Spooner
did not witness personally any movement of the jacks when Christopher walked up
alongside the motor. Tr. 112. Looking outby, Christopher would have been on the
right side of the motor, and both the front and back wheels were on the inside
of the rail. Tr. 112. The motor was sitting at an angle and could not have
moved in such a way so as to move (sideways) to where Christopher was walking.
Tr. 112. Jack walkers drop approximately 12”-14” and slew approximately 6”-8”.
Tr. 113.

Jeffrey
Spooner Cross Examination

Spooner
was not facing the motor when he had heard Gallagher hollering. Tr. 115. He was
not certain whether Christopher had passed the motor entirely when Gallagher
had yelled, “stop”. Tr. 116. Further, he did not actually witness whether the
motor was in motion in any direction when Christopher passed through. Tr. 116.
Christopher was certain the motor was not in motion because if Christopher had
walked up and alerted Stevens that he was walking by, Stevens would have taken
his foot off the dead man and stopped all activity. Tr. 117.

Spooner
agreed that a miner should not walk by machinery that was being jacked, even if
it were safe to do so because one should not take a chance to go by moving
equipment. Tr. 117. Common sense also dictated such. Tr. 119.

William
Christopher

Christopher had worked at Cumberland Mine since
2010. Tr. 122. He had previously worked as a contractor at Bailey Mine since
2005. Tr. 122. His past mining jobs, including shuttle car operator, outby
utility, general inside laborer, and presently rock dust motorman. Tr. 122.

As
to the incident at issue, Christopher observed Spooner’s motor off track at the
corner of the 81 East Mains with its lights on. Tr. 123. Coming from an inby
direction, Christopher walked down to the motor. Tr. 124. The motor could not
be raised high enough with the blocking material at the scene so Christopher
told Stevens he wanted to get more blocking materials from Spooner who had just
returned to the site. Tr. 124. At that point Christopher walked past Stevens,
down along the right side of the motor to get blocking materials. Tr. 124.
Christopher remembered informing Stevens, “hold that, I want to get cribs from
Spooner” before walking past the motor. Tr. 125. Coming outby, the right hand
wheel was between the two rails. Tr. 126. The left hand wheel would have been
in the middle of the other row because “you had to switch the apex or
whatever.” Tr. 126. Christopher thought it was safe to walk by the motor
because the motor was off-track and he had alerted Stevens “to hold that.” Tr.
127.

Christopher
did not notice Gallagher flagging him as he walked by. While not remembering
Gallagher’s exact words, Christopher did however recollect that Gallagher had
said something concerning the fact that the motor could have slid over. Tr.

127. Christopher did not mention if the jack walker had slipped off or had made
     a sudden movement. Tr. 129. Subsequently, during a ride in the elevator,
     Christopher told Gallagher that he had not noticed whether the motor was being
     lifted when he walked by. Tr. 130.

William
Christopher Cross Examination

Christopher
had told Stevens to stop because it was common practice in the mine that before
passing any piece of machinery to make sure the operator knows you are going
through. Tr. 131. It could be unsafe to move the motor while someone was
walking by. Tr. 132.

Christopher
reported that he could not be sure whether the motor was being raised as he
passed through. Tr. 133. Nor was he sure, whether there were any sudden
movements as the jacking process proceeded. Tr. 135.      

Robert
Dalnoky

At
the time of hearing, Robert Dalnoky had been the senior safety representative
at Cumberland Mine for two years. Tr. 137. His duties included escorting
inspectors, performing training, and ensuring employees worked in a safe
fashion. Tr. 137. He had previously worked as a shift foreman at the Emerald
Mine. Tr. 138. Identical rail haulage systems were utilized at both mines. Tr.

138. Some of Emerald Mine’s motors had in fact been transferred to Cumberland
     Mine after Emerald’s closing. [12]  

Dalnoky
had Pennsylvania certification papers for mine foreman and assistant mine
foreman. Tr. 141. He also had a two-year mining technical degree from Penn
State University. Tr. 141.

As
to the 9/28/2017 incident in question, Dalnoky remembered traveling with
Gallagher to the 68 Head Gate Section. Tr. 142. As they rounded a curve, they
came upon a derailed motor off track. Tr. 142. Spooner flagged them to come
forward as he needed some wood. Returning from 69 Section, Dalnoky saw
Christopher talking to the operator of the motor as he was approaching, Tr.

143. As Christopher passed the motor, Dalnoky saw nothing-unsafe happening. Tr.
144. The motor was off all four wheels. The outby jack walker was up but the
     motor was not moving. Tr. 143.

Dalnoky
did not see the jack walker raise the motor any further as Christopher walked
by. Tr. 144. Even if the motor were being raised, there would have been no
danger because the wheels were in between the track(s) and the motor could not
have slewed over. Tr. 145-146. Because of the blowing air, Dalnoky could not
hear the words exchanged between Stevens and Christopher. Tr. 146.

After
Christopher had walked past the motor, it began to be jacked up. The tip of the
jack walker was sitting on the flange of the rail and slipped, creating a bang.
Tr. 147. At that point, Gallagher raised his hands, yelling, “stop.” Tr.
146.When Dalnoky asked him “what is the matter,” Gallagher replied, “you scared
me.” Tr. 147.

There
followed an exchange between Gallagher and Dalnoky in which Gallagher asserted
that Christopher could have been injured in passing by the motor and Dalnoky
asserted that it was not possible for such. Tr. 148.

After
other of Contestant’s supervisory personnel arrived at the scene, Gallagher
announced that he was issuing an imminent danger 107(a) order because “that guy
walked along the rib there,” and “there is just too many people around here.” Tr.
149.

Dalnoky
disagreed and became, “a little excited,” at which point Jeffrey Everett
grabbed him by the shoulder. Dalnoky then walked away. Tr. 150.

Dalnoky
then helped to get the motor on the track, repairing the guide rail whose bolt
had broken with a new bolt. Tr. 150.

Gallagher advised Dalnoky that an
imminent danger order was “the only tool in his tool box” and could not be
convinced from issuing such. Tr. 151.

A map of the site was created to reflect where the
motor was at the time the imminent danger order was issued and where
Christopher had walked past the motor. Tr. 152-154; CX 1A. Dalnoky observed
Gallagher taking measurements of the distance between the rib and motor where
Christopher walked which he announced to be three feet. Tr. 154-155.

Subsequently,
while in a jeep with Gallagher, Dalnoky apologized for “going off.” Tr. 155.
Dalnoky understood how Gallagher, due to his inexperience in rail haulage mines,
may have been frightened by the re-railing scene that he witnessed. Tr. 156.
However, he still disagreed that Christopher’s actions posed an imminent
danger. Tr. 156. Dalnoky denied ever telling Gallagher that he might be fired
if an imminent danger order were issued. Tr. 156.

When
the jack walker skipped off the flange, the motor did not move. Tr. 157.
Dalnoky had written notes immediately after the incident to keep matters fresh
in his mind. Tr. 158; CX 2. He corrected one of the observations contained in
the notes to reflect that Christopher had actually walked down the “wide” side
of the motor rather than the tight side. Tr. 158; See also CX 1A.

Normally,
it takes about approximately four times to jack a motor back up onto the rail.
In his career, Dalnoky had re-railed a countless number of motors, lowboys, and
equipment. Tr. 159.

Jack
walkers (attached to motors) are the “safest thing” to have: there was no
chance of the bar hitting you or the jack flying out. Tr. 160.

Dalnoky
characterized the re-railing at issue as a “textbook” operation, stating that
Spooner was the only individual giving directions, and that it was a routine
procedure. Tr. 161.

Robert
Dalnoky Cross Examination

Dalnoky
could not hear the actual exchange between Christopher and the motorman during
Christopher’s walk-by. Tr. 163, 165. He would not have heard if Christopher
were giving directions to Mr. Stevens. Tr. 166.

Dalnoky
disagreed that Christopher was in a “pinch zone” at the time of the incident.
Tr. 171. The motor was still off on all four wheels when the jack walker was
up. Tr. 173. He further asserted that it was only after Christopher had
walked through that the jack walker slipped off the rail and that Gallagher
“went nuts.” Tr. 175. Dalnoky disagreed with the wording of the Respondent’s
written order because the jack walker was not being used when Christopher
walked through. Tr. 185.

Jeffrey
Everett

The mine superintendent, Jeffrey
Everett, testified at the hearing. He had worked 6 years as such, previously
working for two years as superintendent of Emerald Prep Plant. [13] Tr. 192.

On the date in question, Everett
travelled to the scene with various corporate personnel and heard yelling. Tr.

194. He noticed Gallagher yelling and observed Spooner and Dalnoky with
     cribbing material in their hands. Tr. 155. He asked Gallagher what was going on
     and Gallagher replied that he feared somebody was going to get hurt because
     more than one person was giving directions. Tr. 195. At some point Everett
     learned that a 107(a) order was being issued. Tr. 196. Everett assumed the
     order was being issued due to him and other corporate personnel passing along
     the tight side of the motor. Tr. 196. He may have put his hand on Dalnoky’s
     shoulder. Tr. 198.

Everett
explained the benefits of using jack walkers, which allowed controlled movement
with no risk of falling over. Tr. 200-202. The maximum horizontal movement or
side-by-side movement was 9 inches. Tr. 201-202.

Jeffrey
Everett Cross Examination

Everett was not
present at the time that Christopher actually walked past the motor and would
not know whether there was any movement of the motor during such time. Tr. 203.

IV.             
ISSUE
PRESENTED

Did
the Secretary carry his burden of proving by the preponderance of the evidence
that the Section 107(a) imminent danger order in question was properly issued?

V.                
 LAW
AND REGULATIONS

Section 107(a), 30
U.S.C. § 817(a) in pertinent part, provides:

If,
upon any inspection or investigation of a coal or other mine which is subject
to this [Act], an authorized representative of the Secretary finds that an
imminent danger exists , such representative shall determine the
extent of the area of such mine throughout which the danger exists, and issue
an Order requiring the operator of such mine to cause all persons, except those
referred to in section [104(c)], to be withdrawn from, and to be prohibited
from entering, such area until an authorized representative of the Secretary
determines that such imminent danger and the conditions or practices which
cause such imminent danger no longer exist. (Emphasis supplied)

Section 3(j) of the Act, 30 U.S.C. §802(j) defines
an “imminent danger” as “the existence of any condition or practice in a coal
or other mine which could reasonably be expected to cause death or serious
physical harm before such condition or practice can be abated.”

VI.             
CONTENTIONS
OF THE PARTIES

The
Secretary contends that, in the within matter, MSHA’s representative properly
exercised his discretion in issuing a 107(a) order. Inspector Gallagher came
upon a scene in which a 20-ton locomotive was derailed. He heard “too many
bosses” yelling orders. (TR. 38, 78, 107, 111). He observed a miner,
Christopher, walking through a narrow interspace between the derailed
locomotive and coal rib, and concurrently heard a loud bang and perceived
machinery movement. (TR. 28-30, 38-40). Fearful for the miner’s safety,
Gallagher, within minutes, concluded that an imminent danger order was
warranted.

Inter
alia , Contestant maintains that, during the time period when Christopher
had passed the derailed motor, it was not possible for the motor to have moved
any distance horizontally so as to have endangered the miner. Any reasonable
investigation would have revealed such.

VII.          
FINDINGS
OF FACT AND CONCLUSIONS OF LAW

It
is the duty of the Secretary to establish by a preponderance of the evidence
that an imminent danger order is properly issued. This question turns on
whether the conditions or practice observed by the inspector could reasonably
be expected to cause death or serious bodily injury before the practice could
be eliminated. Wyoming Fuel Co. , 14 FMSHRC 128, 129 (Aug 1992).

An inspector’s issuance of a Section 107(a) order is
reviewed under an “abuse of discretion” standard. Island Creek
Coal Co. ,
15 FMSHRC 339, 345-346 (Mar. 1993). An imminent
danger order will be upheld if the Secretary proves by a preponderance of the evidence
that the inspector concluded, based upon information that was known or reasonably
available to him at the time the order was issued, that an imminent danger
existed. Id. at 346.

However, in both Island Creek , 15 FMSHRC at
346, and Knife River Construction , 38 FMSHRC, 289 at 1291 (June 2016),
the Commission emphasized that the Judge is not required to accept an
inspector’s subjective perception that an imminent danger existed but rather
must evaluate whether it was objectively reasonable for an inspector to
conclude that an imminent danger existed.

This Court finds that Gallagher had an honest belief
that possible movement of the derailed motor during the time Christopher passed
such would have posed an imminent danger. Gallagher’s descriptions of coming
upon the derailment scene and hearing men shouting and hearing loud noise(s),
of observing Christopher entering a narrow space between the motor and rib, of
perceiving possible movement of equipment all support the bona fide and good
nature of Gallagher’s subjective belief.         

However considering the specific factual
circumstances of the within controversy, this Court is not persuaded that
the inspector’s belief was a reasonable one. As set forth supra in the summary
of testimony , Contestant’s witnesses consistently maintained that it was
not physically possible for the locomotive to have slewed over so as to
have struck Christopher at the moment that Christopher had passed through the
rib/locomotive inter-space. ( See inter alia Spooner testimony at
Tr. 106, 112 that the locomotive wheels were located inside the tracks and that
there was, “No way… No matter what happened,” that the wheels could jump the
rail; Christopher testimony at Tr. 127; Dalnoky testimony at Tr. 147-148;
Everett testimony that jack walkers were spaced at all four corners of the
machine and at that time there was no risk of the machine, “automatically just
falling over” at Tr. 202).

In
his investigation, which lasted less than three minutes (TR. 40-41), Gallagher had
failed to take such steps as measuring the actual interspace distance [14]
and of noting where the derailed motor’s wheels were actually located vis-à-vis
the tracks. Tr. 85-86. As noted intra, brief interviews with available
witnesses would have revealed the physical impossibility of untoward motor
movement.

In
Knife River Construction, objective observable facts supported the
inspector’s conclusion that an imminent danger order should have been issued.
In Knife River, the inspector stopped what he believed to be an unsafe
scraper and asked for a demonstration that the vehicle was capable of stopping
and holding on a grade while it was carrying a load before issuing an imminent
danger order. 38 FMSHRC at 1290. The scraper failed to do so, the inspector
observed it failing to come to a stop on a grade and at the bottom of such. Id.
The inspector was aware that an embankment was under construction and feared
that the scraper would continue to travel toward the waste dump, an area of the
mine with multiple grades and depart the embankment. Id.

In
Knife River there was clear objective evidence that the scraper
could not hold its land on a grade and/or come to a safe stop. In the
instant matter there was no such clear objective evidence presented by the
Secretary that the motor in question, given its location off-track, could have
moved horizontally during the jacking up process so as to have endangered
Christopher.

Of
course, as discussed within, an inspector’s reasonable belief in the existence
of an imminent danger may be validated -- despite the lack of actual objective
evidence supporting his determination. Hazardous situations often arise when an
inspector must necessarily rely solely upon his own experience, personal
perceptions, and instincts in determining the need for an imminent danger
order. However, to avoid a finding of arbitrariness, an inspector must timely
and prudently investigate all available evidence regarding a perceived danger
before issuing his order. This Court finds that Inspector Gallagher failed to
fulfill this duty of sensible investigation and thus abused his discretion.

At
hearing and in their briefs all parties essentially concurred that it was
unwise and unsafe for a miner to pass through a squeeze point while machinery
is in motion. Indeed, Contestant has not challenged the notice of Safeguard
issued in this matter that prohibits anyone from positioning themselves in a
pinch point while re-railing track-mounted equipment.

This
Court suspects that the combination of Dalnoky’s “know it all attitude” and
verbal aggression toward the less experienced Gallagher had played a role in
Gallagher’s failure to have properly investigated whether the derailed motor in
question could have in fact moved in such a manner so as to have injured
Christopher. [15]

This Court finds that, given this case’s
particular circumstances, a prudent inspector, possessing a qualified
inspector’s education and experience, would not have concluded after a reasonable
investigation that an imminent danger had actually existed. In reaching
this determination, this Court has made various credibility determinations,
including giving credit to Contestant’s witnesses’ consistent assertions that
it had not been physically possible for the derailed motor to have moved
horizontally or sideways during the time period in question. [16]

This
Court found Gallagher to be an honest individual. However, this Court concludes
that Gallagher’s inexperience with the re-railing process and machinery at
issue, coupled with his initial misapprehension at viewing what he believed a
chaotic and dangerous re-railing scene, led him to an unreasonable
determination based upon inadequate investigation.

Considering
also that any imminent danger as to Christopher had already passed once
Christopher had walked by the locomotive, this Court finds that Gallagher had
abused his discretion in issuing the within 107(a) order.

In essence this case scenario raises the
following issue. Considering the totality of the circumstances, including any
facts peculiar to the mining industry and including any information known or
readily available, would a prudent inspector reasonably conclude that an
imminent danger in fact existed? This Court is not persuaded that, in
investigating the site of the derailment and in interviewing parties at the
scene, a reasonably prudent inspector would have concluded that an imminent
danger was posed.

This
Court emphasizes that an inspector is not required—in garnering all available
information—to conduct an unduly prolonged investigation or engage in a lengthy
complex analysis of risk. But he must reasonably inspect the imminent danger
scene at issue, question available witnesses, and make straightforward
assessments of whether the condition or practice at issue in fact can
reasonably be expected to cause death or serious physical harm. Given the total
circumstances, Gallagher’s investigation was not sufficient. An example of his
investigatory insufficiency was Gallagher’s failure to note where the motor’s
wheels rested— inside or outside the tracks—after the derailment.

The
Court also emphasizes that the within holding is based upon specific
credibility assessments and case specific factual findings. This is a narrow case-specific
holding and it in no way intended to abrogate the general rule that inspectors
may reasonably believe an imminent danger exists even if no mandatory safety
standard was actually being violated. See Utah Power and Light Co. ,
13 FMSHRC 1617, at 1622 (Oct. 1991).

In finding that Gallagher’s belief that an imminent
danger existed was objectively unreasonable, this Court is not holding that
inspectors may only issue 107(a) orders when there is “objective,
ascertainable, evidence” [17]
of looming danger. Nor does this Court suggest that the Secretary may only
prove the existence of an imminent danger by introducing physical evidence,
disinterested corroborative testimony and supporting expert testimony. Such
evidence may not be readily obtainable in imminent danger situations where the
unsafe condition can arise suddenly and in a remote section of the mine, where
the inspector is alone, and where physical evidence is elusive. Rather, this
Court merely holds that, consistent with the Mine Act’s purpose and legislative
history and consistent with Commission case law, an issuing inspector’s honest
perceptions must be reasonable ones under the circumstances ; and that
Gallagher’s determination, albeit in good faith, was not a reasonable one due
to his failure to garner and consider all available evidence. [18]

A
preponderance of the evidence establishes that it would not have been possible
for the derailed motor to have struck Christopher as he passed through the
interspace at issue. This could have been readily ascertained upon a reasonable
survey of the site and upon reasonable inquiry of available witnesses. Neither
of which would have required a prolonged safari in time and space.

This
Court finds that the inspector abused his discretion and acted arbitrarily and capriciously
in issuing the subject order. The 107(a) Order is hereby Vacated.

ORDER

It
is hereby ORDERED that 107(a) Order No. 9078215 is VACATED .
Having found that the order is invalid, this case is DISMISSED .

/s/
John Kent Lewis

John
Kent Lewis

Administrative
Law Judge

Distribution:

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center,
Suite 1500, 401 Liberty Avenue, Pittsburgh, PA 15222

Jordana L. Greenwald, Esq., Office of the Solicitor, U.S.
Department of Labor, Suite 630E, The Curtis Center, 170 S. Independence Mall West,
Philadelphia, PA 19106-3306

[1] The Joint
Stipulations were submitted at hearing as Joint 1, which will hereinafter be
referred to as JX-1. The Secretary’s exhibits will be referred to as GX
followed by its alphabetical letter and Contestant’s exhibits will be referred
to as CX followed by its number.

[2] Reference to
the hearing transcript will be referred to as Tr., followed by the page
number(s).

[3] Gallagher did
not have any foreman’s or miner’s papers. Tr. 74. He had become an authorized
representative in the spring of 2015. Tr. 74-75. When he had worked at Rosebud
Mining, the transportation utilized was rubber-tired vehicles. Tr. 75. His past
experience with jacking up dollies involved free-standing jacks that were
positioned under the dollies so that they could be slewed over to be put back
on the rail. Tr. 75.

[4] A jack walker
is essentially a hydraulic jack attached to an I-beam that will push down on
the mine floor and move the motor. Tr.30.

[5] The “blunt
pieces of steel” which Gallagher was referring to were the track, the jack
walker, the frame of the 20-ton diesel motor, the undercarriage, everything
that was involved in the situation. Tr.33.

[6] Gallagher noted
that Dalnoky was “pretty verbal” in his disagreement. Tr. 40.

[7] Gallagher
explained that he could not simply issue a safeguard immediately upon
witnessing an unsafe act without following prescribed procedures. (T. 59-60). A
safeguard was eventually issued on 12/1/17. Tr. 62; See also GX D
wherein it states: “This is a notice to provide a safeguard preventing anyone
from positioning themselves in a pinch point while re-railing track mounted
equipment.”

[8] See
cross-examination regarding such incidents at Tr.76.

[9] As discussed infra
the ALJ notes the discrepancy between inspector Gallagher’s testimony and that
of Dalnoky on this point, as well as Gallagher’s decision not to perform an
actual measurement of the interspace at issue.

[10] Spooner stated
that Stevens had health issues (and was therefore not at the hearing).

[11] Spooner
estimated that the wheels were 12” to 14” below the rail. Tr.103.

[12] Prior to
working at Emerald Mine, Dalnoky had worked for Consol and Gateway Mine as a
section foreman and part-time shift foreman. At Consol’s Westland Mine a rail
coal haulage system was used with cars being pulled by 50-ton motors. Tr.139-141.

[13] Everett’s
former jobs included: maintenance superintendent since 1999 and union
maintenance man for 22 years. Tr.192.

[14] This Court
specifically accepts Gallagher’s testimony that he had not actually measured
the distance but estimated such, and rejects Dalnoky’s testimony on this point.
This Court also rejects Gallagher’s contention that taking measurements after
the ordered work stoppage would have presented a hazard.

[15] Dalnoky
displayed the same off-putting hubris at hearing but did offer persuasive
testimony that the derailed motor at the moment Christopher passed had not
posed an actual danger to the miner.

[16] This Court is unable
to find that all of the Contestant’s witnesses perjured themselves on this
point. This Court does, however, accept that Dalnoky was incorrect, possibly
because of faulty recollection, in his assertions that Gallagher had actually
measured the interspace at issue. This Court declines to apply a “ falsus in
uno falsus in omnibus” assessment as to Dalnoky’s remaining testimony,
which was found to be credible in light of such factors as Dalnoky’s lengthy
past experience in the re-railing process at issue.

[17] See Commission’s
discussion of and rejection of stringent “objective, ascertainable evidence”
test in validating reasonable belief in Secretary of Labor on behalf of
Robinette v. United Castle Coal Co , 3 FMSHRC 809-812 (April 1981).

[18] The proper test
for assessing the subjective/objective components of a miner’s work refusal in
discrimination cases is essentially similar to the test applied herein to an
inspector’s 107(a) subjective/objective determination. See again Robinette
at 808-812 (April 1981) for an excellent in depth analysis of such.