Secretary of Labor v. Oak Grove Resources, LLC

Plain-English summary

Oak Grove pushed a haulage car carrying a 24-ton shearer body on its main haulage road despite a mine-specific safeguard prohibiting the pushing of cars there. During the move, the carrier derailed, two locomotives rolled downhill, and a miner was pinned against the carrier and fatally injured. The Commission held that the safeguard covered all cars, including carriers transporting heavy equipment, and that a revoked waiver gave the operator additional notice. The majority reversed the S&S finding because the record did not show that pushing contributed to the identified hazards of reduced visibility, a pinch point, or loss of control, and independent evidence pointed to the wire-rope connection, debris, and unset brakes. The Commission remanded for a new penalty assessment without the S&S designation, replacing the Judge's $55,000 assessment. Commissioner Robert F. Cohen Jr. would have affirmed S&S, while Commissioner Michael G. Young would have found the safeguard invalid.

Decision snapshot

• Cited authority: 30 C.F.R. §§ 75.1403-1(b), 75.1403-10(b); 30 U.S.C. § 874(b)
• Outcome: The safeguard violation was affirmed, the S&S designation was reversed, and the case was remanded for reassessment of the penalty.
• Key point: A safeguard can clearly prohibit a transport practice yet the resulting violation is not S&S unless substantial evidence connects that practice to a discrete injury-producing hazard.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

SECRETARY OF LABOR,                                         :       

MINE SAFETY AND HEALTH                  
 :                   

ADMINSTRATION (MSHA)                         :        Docket
Nos.    SE 2009-261-R

:                                SE 2009-487  

v.                                              
 :

:

:

OAK GROVE RESOURCES, LLC               :

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

DECISION

BY: Jordan, Chairman; Nakamura
and Althen, Commissioners

These proceedings
arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (2012) (“Mine Act”),
involve a citation issued by the Department of Labor’s Mine Safety and Health Administration (“MSHA”)
to Oak Grove Resources, LLC following a fatal accident at its mine. The Secretary alleges that Oak
Grove violated a notice of safeguard (“safeguard”) which had been previously issued to the mine
pursuant to section 314(b) of the Mine
Act, 30 U.S.C. § 874(b).

Oak Grove contested the citation
and the associated civil penalty before a Commission Administrative Law Judge. Initially,
the Judge vacated the citation; he concluded that the safeguard had not been validly issued
and, therefore, a violation of the safeguard could not be sustained. 33 FMSHRC 846, 852-54
(Mar. 2011) (ALJ). The Secretary petitioned the Commission for review, which we granted.

The Commission
reversed the Judge, concluded that the safeguard was valid, and remanded the
citation to the Judge for further proceedings as appropriate. 35 FMSRHC 2009, 2015 (July 2013).

On remand, the Judge
concluded that Oak Grove violated the safeguard and that the violation was
significant and substantial (“S&S”).[1] 35 FMSHRC 3422, 3431 (Nov. 2013) (ALJ). Oak
Grove then filed a petition for discretionary review, which we granted.

For the reasons that
follow, the Commission now affirms the Judge’s conclusion that Oak Grove violated the safeguard,
but reverses his decision that the violation was S&S. The proceedings are remanded to the
Judge so that he may assess an appropriate civil penalty.

I.

Legal Framework

Although an operator is usually cited for violations
of mandatory safety and health standards developed through notice-and-comment
rulemaking pursuant to Title I of the Mine Act, 30 U.S.C. § 811(a), Title III
of the Mine Act also gives the Secretary the authority to issue safeguards in
underground coal mines to reduce hazards associated with the transportation of
miners and materials. 30 U.S.C. § 874(b).[2]
The Secretary implements this provision by authorizing inspectors to issue safeguards
on a mine-by-mine basis. A safeguard informs the mine operator about conduct
that is mandated or prohibited in a given situation involving transportation in
the mine. The inspector issues the safeguard in writing and indicates a time by
which the operator must provide and subsequently maintain that safeguard. 30
C.F.R.

§ 75.1403-1(b). If the operator does not comply with
the safeguard, the inspector issues a citation. See Wolf Run Mining Co. v. FMSHRC, 659 F.3d 1197, 1204 (D.C. Cir. 2011).

II.

Factual and Procedural
Background

On May 28, 2008, a
fatal accident occurred at an underground coal mine operated by Oak Grove in
Jefferson County, Alabama. Stips. at 1-2; Gov’t Ex. 4, at 2. Oak Grove was in
the process of transporting the body of a shearing machine to the mine’s
longwall face. The
24-ton body was placed on a “shearer carrier,” a haulage car specifically
designed for the task.
Tandem locomotives led the shearer carrier, while a second set of tandem locomotives pushed
the shearer carrier down the main haulage road.

Motor No. 8 led the
procession. Connected to its rear by a coupling device was Motor  No. 3, establishing a rigid
connection. Motor No. 3 was then connected to the shearer carrier by a one inch diameter, flexible, wire
rope. The shearer carrier was in turn connected to Motor No. 4 by a solid drawbar. Finally,
Motor No. 4 was connected to Motor No. 9 by a coupling device, establishing a rigid connection.
The wire rope connection between Motor No. 3 and the shearer was the only connection that was not rigid.[3]

As the lead motors
ascended an incline in the mine floor, the shearer carrier derailed. Id. It was the fifth time the
carrier had derailed during that trip. The operator of Motor No. 3, miner Lee Graham,
exited his motor and walked over to examine the derailed carrier. Graham was standing on

the tracks, downhill from Motors
No. 3 and No. 8, when the motors rolled down the grade, pinning him against the carrier and
inflicting the fatal injuries.[4]

David Allen, a
mining engineer and a supervisor at MSHA, investigated the accident. Tr. 16-17, 19; Gov’t Ex. 4, at 3.
As a result of his investigation, he issued Oak Grove a citation for a violation of Safeguard No. 2604892. The citation
states:

A fatal accident
occurred on May 22, 2008, when a motorman was crushed between a derailed haulage car and the
locomotive he had been
operating. The haulage car was being pushed on the main haulage road. The victim would
not have been exposed to the pinch point between the locomotive and the haulage car if the car was being pulled instead of
pushed on the main haul road.

Gov’t Ex. 3 (Citation No.
7696616). Inspector Allen designated the citation as S&S. Id.

The safeguard had been issued to
Oak Grove on March 3, 1986; it implements the criteria at 30 C.F.R. § 75.1403-10(b). The safeguard states:

The No. 902 battery
powered locomotive was being used to push two loaded supply cars consisting of
a car of timber and a car of roof bolts down the graded haulage supply mine track entry of the main south area of the mine, near
the intersection of the No. 7 and No. 14 section switch and the No. 10 and the No. 5
section switch. Such
area is approximately 2100 feet from the main bottom area of the mine and approximately 3600
feet from the No. 7 section and the No. 10 sections, respectively.

This notice to
provide safeguard requires
that cars on main haulage roads not be pushed except where necessary to push
cars from the side tracks located near the working section to the producing
entries and rooms.

Gov’t Ex. 2 (Safeguard No.
2604892).

Oak Grove contested the citation,
the S&S designation, and the Secretary's proposed $55,000 civil penalty. Oak Grove’s
contest of the citation included a challenge to the validity of the underlying safeguard.

On August 19, 2010,
an Administrative Law Judge issued an order concluding that the safeguard was
in effect at the time of the accident. 32 FMSHRC 1081 (Aug. 2010) (ALJ) (order

denying Oak Grove’s motion for
summary judgment).[5]  Thereafter, the parties
proceeded to a hearing.
On March 28, 2011, the Judge issued a decision determining that the safeguard
was not validly
issued. 33 FMSHRC at 852 (citing Southern Ohio Coal Co., 7 FMSHRC
509, 512 (Apr. 1985)
("SOCCO I”). Therefore, the Judge vacated the citation at issue. Id.

On July 25, 2013, the Commission
reversed the Judge and held that the safeguard is valid because it identifies a hazardous
practice and specifies a remedy. 35 FMSHRC at 2014. We remanded the case to the Judge
to determine if the Secretary proved that Oak Grove violated the safeguard as alleged and to conduct other appropriate
proceedings.

On November 13, 2013,
the Judge issued his decision upon remand. He ruled that Oak Grove had violated the
safeguard, rejecting Oak Grove’s argument that the safeguard did not apply when the mine was moving
heavy equipment such as the shearer carrier. 35 FMSHRC at 3425-26. The Judge also
concluded that the Secretary proved that hazards associated with pushing contributed to the fatal incident, rejecting the operator’s claim that the
accident had no relation to the safeguard. The Judge therefore affirmed the Secretary’s S&S designation, and assessed a
penalty of $55,000.

III.

Disposition

When considering citations issued
for alleged violations of safeguards, the Commission interprets the language of the
safeguard narrowly to ensure that the operator was provided sufficient notice. SOCCO I, 7
FMSHRC at 512; see also Green River Coal Co., 14 FMSHRC 43 (Jan. 1992); Bethenergy
Mines, Inc., 15 FMSHRC 981 (June 1993). The D.C. Circuit has recognized that “the Commission
has through adjudication interpreted the criteria so as to ensure that an operator has adequate
notice of what safeguard is required.” Wolf Run, 659 F.3d at 1202 &
n.8. This approach balances the Secretary’s broad grant of authority to issue what
are in effect mine-specific mandatory standards against the absence of the
traditional protections accorded by notice-and-comment rule making procedures. SOCCO I, 7
FMSHRC at 512. When issuing a safeguard, however, the Secretary is required to provide
written notice of the hazardous condition identified by the inspector and a specific
remedy. The American Coal Co., 34 FMSHRC
1963, 1969 (Aug. 2012).

A.    Oak Grove violated the
safeguard.

On review, Oak Grove
argues that the Judge erred by failing to narrowly construe the safeguard as required by SOCCO
I. More specifically, Oak Grove contends that because the safeguard cites the practice of
pushing loaded supply cars, it cannot be construed as applying to the practice of pushing heavy equipment on a haulage
car.

We disagree and affirm the
Judge's finding of a violation. We conclude that the safeguard applies in this case.[6]

The safeguard “requires that
cars on main haulage roads [are] not [to] be pushed.” Gov’t Ex. 2. Although
the hazardous condition discussed in the safeguard happened to involve supply
cars carrying timber and roof bolts, the remedy set forth prohibits the pushing
of “cars” on the main haulage road. We conclude that the specific equipment carried
by the car is immaterial. Oak Grove
was on notice that it was prohibited from pushing all “cars” on “main haulage
roads.”

We are not
persuaded by Oak Grove’s arguments that slight differences between a supply car
and shearer carrier, such as differences in the amount of ground clearance from
the mine floor, exempt the carrier from the requirements of the safeguard. Nor
are we persuaded that the speed at which the carrier was traveling or the
number of motors used in the move are sufficiently meaningful distinctions to
invalidate application of the safeguard.[7] Simply stated, the safeguard provided
notice that the operator was prohibited from pushing cars with a limited exception, and it is
undisputed that the exception was not met. See Gov’t Ex. 2 (“cars on main haulage
roads [shall] not be pushed except where necessary to push cars from the side
tracks located near the working section to the producing entries and rooms”).

Furthermore, we note
that while the Secretary initially provided Oak Grove with a waiver of the requirements of the
safeguard when it pushed heavy equipment, the waiver was revoked in 2001. Revocation of the waiver
by MSHA provided additional notice to Oak Grove that the safeguard prohibited the practice of
pushing heavy equipment.

Accordingly, the
Secretary has provided sufficient notice to the operator that the safeguard
governs pushing all cars on main haulage roads, including cars carrying heavy equipment. As
a result, we uphold the citation in question.

B.     The Judge erred by finding that
the violation was significant and substantial.

A violation is
S&S if, based on the particular facts surrounding the violation, there
exists a reasonable likelihood that the hazard contributed to by the violation
will result in an injury or illness of a reasonably serious nature. See Cement Div., Nat’l Gypsum
Co., 3 FMSHRC 822, 825 (Apr. 1981). In
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), 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.

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).

On remand, the Judge
affirmed the S&S designation. 35 FMSHRC at 3430. The first element of the Mathies test was
satisfied when the Judge affirmed the violation. The Judge concluded that the
second element was satisfied because the Secretary established three discrete
hazards “attendant to the practice of pushing cars.” Id. Those hazards
are “diminished visibility, the creation of a pinch point and the lack of
positive control.” Id. With respect to the third Mathies element, the Judge concluded
that the evidence demonstrated that the hazards resulted in the derailment of the shearer
carrier, and it was during the course of assessing the derailment that the accident
occurred. Finally, the Judge found that it was reasonably likely that the injury would be of a reasonably serious
nature.

For the reasons
that follow, we conclude that the Judge’s S&S determination was erroneous
because substantial evidence does not support a finding that this violation
(pushing the shearer carrier) contributed to diminished visibility, the
creation of a pinch point, or lack of positive control.

We discuss each of these hazards in turn.

Decreased visibility

The record reflects that decreased visibility was not
an issue in the circumstances presented by this case as a miner was operating a
motor at the head of the convoy, and was therefore in front of the pushing
motors. As described above, Lee Graham was operating the No. 3 Motor (the
second car in the procession), and Oak Grove’s assistant general mine
foreman/day-shift foreman was riding on Motor No. 4 (the fourth car). Tr.
98-100. As counsel for the operator explained at oral argument before the
Commission, “the whole theory that you are sitting behind the supply cars and
not being able to see up ahead doesn’t apply because you actually have somebody
up ahead.” Oral Arg. Tr. 11.[8]

In sum, substantial evidence does not support a
finding that the pushing violation contributed to the hazard of decreased
visibility.

Creation of a pinch point

There is also not substantial evidence in the record
to support the finding that pushing the cars contributed to the hazard of a
pinch point. Rather, the inspector
testified that a pinch point was created by the use of wire rope to connect
Motor No. 3 and the shearer carrier. Tr. 44. When the inspector was asked on direct examination how the
operator should remedy the hazard, the inspector
testified that it should “use a drawbar or tongue [as] the rigid connection
between the shearer carrier and the
motor and pull it.” Tr. 44. In fact, after the accident at the mine, a drawbar was attached in place of the wire rope,
and Oak Grove then continued to move the shearer carrier to the longwall face. Tr. 73. Thus, the inspector
clearly testified that the use of a
wire rope contributed to the hazard of a pinch point. Significantly, the
inspector did not articulate how pushing the shearer carrier contributed
to this specific hazard, as required by element two of Mathies.

Loss of
positive control

The evidence in this case demonstrates that
pushing the shearer carrier did not contribute to the hazard of a loss of
positive control of the car. Nor is there any evidence that pushing caused the
derailment.

There is no
testimony regarding the likelihood of derailment when pushing a carrier as
opposed to pulling the carrier. Furthermore, the inspector never stated that
the lack of control increased the probability of a derailment. Rather, he
testified that the derailment occurred “because there was slack in the wire
rope between the #3 motor and the shearer carrier.”

Tr. 60. Furthermore, at oral argument before the
Commission, counsel for the Secretary conceded that material on the mine floor
caused the shearer carrier to derail. Oral Arg. Tr. 33, 36; Gov’t Ex. 4, at 7
(‘[a] build-up of material consisting primarily of a muddy combination of rock
dust and mine floor materials . . . most likely caused the carrier to derail as
indicated during interviews”).

In concluding
that the safeguard violation contributed to the hazard of a loss of positive
control, Commissioner Cohen relies solely on one page of transcript testimony
wherein the inspector stated that by pushing the cars, a miner cannot maintain
good positive control of the loads. Slip op. at 11 (citing Tr. 43). However,
when the inspector made this statement in the context of his general
explanation of the hazards addressed by the safeguard (Tr. 41), he intertwined
the hazard of poor visibility (which, as we have explained, did not apply in
this case) with the loss of positive control. The inspector testified that “if
you’re pushing a load and it derails, since your visibility is obstructed, a
lot of times you don’t know that it’s derailed until you’ve pushed it on
farther. You don’t have as good control. . . . If you’re pulling a load, you
can see if it derails and you know to stop immediately. And the severity of the
accident would be lessened.” Tr. 43. At
oral argument, Secretary’s counsel contended that pushing the cars is more
dangerous than pulling them, but he also based this on the need for visibility.
Specifically, he argued that “because the load was being pushed, those who were
propelling the load forward could not see the build-up.” Oral Arg. Tr. 33.

For these reasons,
we conclude that substantial evidence does not support a finding that the
violation of the pushing safeguard contributed to the hazards identified by the
Secretary. Thus, element two of the Mathies test has not been met.  

In fact, the record
evidence identifies an independent cause of the fatality: the park and service
brakes were not set
on Motors No. 3 or No. 8 at the time of the accident. Gov’t Ex. 4,

at 8-9. The Report of Investigation states that “if
either the service brakes or the park brakes on either motor were engaged,” Motors Nos. 3 and No. 8
would not have moved. Id. at 8. This evidence demonstrates that an independent
act, i.e., the failure to set the brakes on either motor, occurred after the
violation of the safeguard. The motors rolled downhill and tragically crushed
the miner. Indeed,
the Judge recognized this independent cause in his initial decision, stating
that “this accident occurred not because of any claimed failure to comply with
[the] safeguard.  In short the accident did not occur from pushing the shearer.”
33 FMSHRC at 850.[9]

Because the Secretary confined his case to the
circumstances of the accident and did not provide evidence of the likelihood of
injuries from any of the alleged hazards created by pushing cars in the context
of continued normal mining operations, he also failed to prove the third step
of Mathies. The record is bereft of evidence regarding any likelihood of
injuries from hazards contributed to by pushing cars during continued normal
mining activity in the context of the particular facts in this case. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985); National Gypsum, 3 FMSHRC at 825. In presenting his case on the third element of the Mathies test,
the Secretary relied entirely on the occurrence of the accident at issue,
producing no testimony demonstrating that hazards he identified (poor
visibility, creation of pinchpoints, and lack of positive control), would have
been reasonably likely to cause injury if normal mining operations had
continued.

The Secretary’s decision to base
his S&S argument on the evidence regarding this fatality limited both the
evidence and the arguments he asserted to support a reasonable likelihood that
hazards associated with pushing would result in serious injury. Perhaps the
Secretary could have introduced evidence that the violation would reasonably
have been likely to have resulted in a serious injury from continuation of the transportation
of the equipment. However, in concentrating solely on the occurrence of the
fatality, he failed to do so.[10] Because the Secretary’s case was confined
to the accident, the Secretary has failed to meet his burden in proving element
three of Mathies in this case.[11]

IV.

Conclusion

For the stated reasons above, we
affirm the Judge’s conclusion that Oak Grove violated Safeguard No. 2604892. We
reverse the Judge’s conclusion that the violation is “significant and substantial” because that
conclusion is not supported by substantial evidence in the record. This
proceeding is remanded to the Judge for assessment of an appropriate penalty.

/s/
Mary Lu Jordan

Mary
Lu Jordan, Chairman

/s/
Patrick K. Nakamura

Patrick
K. Nakamura, Commissioner 

/s/
William I. Althen

William
I. Althen, Commissioner                  

Commissioner Cohen
concurring, in part, and dissenting in part:

I
concur with my colleagues’ conclusion that Oak Grove violated Safeguard No.
2604892 when it pushed a shearer carrier on the main haulage road. I write separately
because I believe that the Judge’s determination that the violation was
significant and substantial (S&S) is supported by substantial evidence in
the record, and my colleagues are incorrect in concluding otherwise.

The
Commission reviews a Judge’s factual determinations under the Mathies
test in accordance with the substantial evidence test. 30 U.S.C. §
823(d)(2)(A)(ii)(I); see also Black Beauty Coal Corp., 34 FMSHRC 1733,
1741 (Aug. 2012), aff’d sub nom. Peabody Midwest Mining, LLC v. FMSHRC, 762
F.3d 611 (7th Cir. 2014). “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 Consolidation Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)).

Under
the substantial evidence standard, the Commission’s task is a narrow one.
“[E]ven if we would have weighed the evidence differently,” our sole
responsibility is to “determine whether a … reasonable factfinder could have
reached the conclusions actually reached by … the ALJ.” Sec’y of Labor v.
Keystone Coal Mining Corp., 151 F.3d 1096, 1104 (D.C. Cir. 1998) (internal
quotations omitted).

For the reasons that follow, I would hold that the record contains
substantial evidence to support the Judge’s determinations as to each of the
four Mathies elements.

Mathies Step Two

The second element of Mathies requires the Secretary to
demonstrate that the violation contributed to a safety hazard. The Secretary
argued that the violation contributed to three distinct hazards. Sec’y
Post-Hearing Br. at 8-9. The Judge concluded that the Secretary demonstrated that
pushing the carrier contributed to these hazards. 35 FMSHRC at 3430. I conclude
that the record contains substantial evidence to support the Judge’s decision.

Decreased
Visibility

Common
sense dictates that a 24-ton shearer carrier would obstruct the vision of a
motor operator who was pushing the load along a graded haul road. In fact, the
inspector testified that when a miner uses a motor to push rather than to pull
a load it is “harder to see the track and the traffic in front of you.” Tr. 43.
Notably, the inspector was testifying about the visibility of the miner who
was actively engaged in pushing the shearer-carrier in violation of the
safeguard.

The majority
concludes that it was not reasonable for the Judge to rely on the inspector’s
testimony that pushing the carrier contributed to a visibility hazard. See
slip op. at 6. Instead, the majority independently determines that complete
visibility of the track and traffic was not necessary for the miners operating
the motors pushing the load. Citing oral argument by Oak Grove’s counsel, the
majority concluded that the position of the two miners in front of the load
rendered the visibility requirements of the pushing motor operators
superfluous. See slip op. at 6 (“decreased visibility was not an issue
in the circumstances presented by this case as a miner was operating a motor at
the head of the convoy”).

However, the
majority ignores the fact that when a load is being pushed, the power to move
it comes from the pushing motors, while the two motors which Oak Grove placed
in front of the load were used to guide the shearer carrier and to help prevent
derailment of the carrier. Gov’t Ex. 4, at 2; Tr. 35, 69. When a load is being
pulled, the miner who operates the pulling motor can see what is in front of
him and react immediately if there is a problem with the track or traffic in
front of the motor. Tr. 43. However, with the configuration used by Oak Grove,
the miner operating the front motor could see a problem ahead (just as
he would if he were operating a pulling motor), but would have to also communicate
with the miner operating the pushing motor so that the miner operating the
pushing motor could take effective action to avoid the problem. The necessity
of communicating as well as seeing thus contributes to a hazard.

Creation of a
pinch point

Contrary to the
majority opinion, the inspector did testify how pushing the load rather than
pulling it contributed to the hazard of the creation of a pinch point. The
inspector explained that when a load is pulled, there is a solid bar – a tongue
or drawbar – between the motor and the car being pulled. Tr. 29. However, with
the configuration used by Oak Grove, instead of a bar there was a wire rope
connecting the car with the load and the motor in front of it. Tr. 29, 35, 37,

39. The wire rope was a component of the pushing
    configuration; it was connected to a forward motor to supply tension to the
    carrier which would help to prevent the shearer carrier from derailing while
    the carrier was being pushed, but in turn it created the hazard of a pinch point.
    Tr. 44, 50-51.

Loss of
Positive Control

The Judge also
concluded, based on the inspector’s testimony, that pushing heavy equipment
decreases the amount of control the operator has over the load. 35 FMSHRC at
3430.

My colleagues
conclude that “[t]he evidence in this
case demonstrates that pushing the shearer carrier did not contribute to the
hazard of a loss of positive control of the car.” Slip op. at 7. However, the inspector testified that
pushing a car provides less control as compared to pulling the car. Tr. 43
(stating that pushing the carrier creates a hazard because “[y]ou don’t have as
good control. It’s like pulling a boat, it’s easier to pull a boat than it
would be to push a boat.”). An inspector’s judgment is an important element in
a S&S determination. Mathies Coal Co., 6 FMSHRC 1, 5 (Jan. 1984)
(citing Cement Div., National Gypsum Co., 3 FMSHRC 822, 825-26
(Apr. 1981)); see also Buck Creek Coal Inc., v. MSHA, 52 F.3d at
133, 135-36 (7th Cir. 1995) (stating that the Judge did not abuse his
discretion in crediting the opinion of an experienced inspector). 1

The Judge relied
on the testimony of the MSHA inspector in finding that the violation of the
safeguard contributed to three discrete safety hazards – decreased visibility,
creation of a pinch point and loss of positive control. My colleagues assert
that Step 2 of the Mathies test was not met here because “substantial
evidence does not support a finding that the violation of the pushing safeguard
contributed to the hazards identified by the Secretary.” Slip op. at 7. However,
as described herein, the inspector testified as to each of the three hazards. The
question of whether a particular violation is S&S is based on the
particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC
498, 501 (Apr. 1988). Here the particular facts surrounding the violation
include the configuration of the motors and shearer carrier which Oak Grove
used to move the shearer. The inspector’s testimony about how the pushing of the
shearer carrier with that configuration contributed to discrete hazards
provides substantial evidence in the record supporting the Judge’s finding as
to Step 2 of Mathies.

Mathies
Steps 3 and 4

My colleagues also state that the record does not
support the Judge’s decision that it was reasonably likely that the hazards
contributed to would result in a reasonably serious injury. See slip op.
at 8. In reaching this conclusion, the majority restricted their analysis to
the evidence relating to the derailment and the fatal accident which followed.2

However, it is well established that a
Judge’s evaluation of the reasonable likelihood of injury should be made assuming
continued normal mining operations. See U.S. Steel Mining Co., 7 FMSHRC
1125, 1130 (Aug. 1985) (emphasis added). The evaluation is made in
consideration of the length of time that the violative condition existed prior
to the condition and time it would have existed if normal mining operations had
continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S.
Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). More recently, the
Commission has reaffirmed that the S&S analysis should not contain any
assumption that the violative condition would be abated by the operator. Paramont
Coal Co. Virginia LLC, 37 FMSHRC 981, 985 (May 2015).

Therefore,
the majority’s consideration of the fatal accident in isolation from continued
normal mining operations is inconsistent with our case precedent.  

In contrast, I believe that the record
contains substantial evidence to support the conclusion
that under continued normal mining operations it was reasonably likely that the
hazards would contribute to a reasonably serious injury. It is undisputed that
Oak Grove transports heavy equipment such as shearers, scoops, shields, and
continuous miners on the haulage road a couple of times a year. Tr. 86-87,
108-09. This equipment is of tremendous weight. For example, the shearer weighs
24 tons and a shield weighs approximately 19 tons.

Tr. 27, 46, 108-09. Since at least January 2002, the
practice at Oak Grove was to push heavy

equipment because the drawbar was oriented on the
outby side of the carrier.3  Tr. 85-86, 89, 99. The evidence supports
the conclusion that a loss of visibility, or creation of a pinch point, or a
loss of control that occurs during the move of a 24-ton piece of equipment (or
equivalent) on a graded haulage road would be reasonably likely to result in a
reasonably serious injury. See Peabody Midwest, 762 F.3d at 616 (the
third step under Mathies only requires a Judge to determine whether, if
a discrete hazard occurs (regardless of likelihood), it is reasonably likely
that a reasonably serious injury would result). Indeed, it is hard to
understand why the majority would conclude that any loss of control of such
equipment on a graded road in a confined space would not reasonably be likely
to result in an injury. According to Peabody, the Commission must
determine whether, if the hazard occurs – e.g., a miner loses control of
a 24-ton piece of equipment – there is evidence to support a conclusion that it
is reasonably likely a miner will suffer an injury. I join the MSHA inspector
and the Judge in concluding that the evidence supports such a conclusion. A
derailment is just one of the events that may occur as a result of a loss of
control, creation of a pinch point, or diminished visibility.4

The accident at issue in these proceedings
may not have occurred in a foreseeable manner. A mine is a dynamic environment
and hazardous practices may lead to injuries in unpredictable ways. The
Commission should not conflate our S&S analysis with tort law and require
the Secretary to demonstrate that the violative practice actually and
proximately caused a specific injury. Instead, the Commission should continue
to consider whether it was reasonably likely that the hazards would contribute
to a reasonably serious injury if normal mining operations continued with the
hazardous practice.  

Therefore, I would affirm the Judge’s
conclusion that the violation was S&S, and dissent from the majority’s
reversal of that portion of the Judge’s Decision.

/s/ Robert
F. Cohen, Jr.

Robert
F. Cohen Jr., Commissioner

Commissioner Young, dissenting:

In the Commission’s initial decision,
I dissented from the finding that the safeguard in this case was valid. 35
FMSHRC 2009, 2016-18 (July 2013). Because we remanded the case to the judge
after the Commission majority upheld the facial validity of the safeguard, the
operator has not had an immediate opportunity to appeal our holding on that
issue; it is not final, nor is it binding on any subsequent appeal. See
Kyocera Corp. v. Prudential-Bache Trade Serv., Inc., 341 F.3d 987, 995 (9th
Cir. 2003 ) (legal conclusions of three-judge panel binding on other
three-judge panels reviewing case, but not on Court rehearing case en banc).

I continue to believe that the
ALJ decided this issue correctly the first time, and I incorporate by reference
my dissent in our previous decision. I would further note that the majority’s
own opinion would seem fatal to the theory under which the safeguard was
affirmed – i.e., that the practice of pushing cars in this mine was so
obviously hazardous that nothing more particular needed to be said in
describing the hazard allegedly identified in the safeguard.  

Indeed, in a case arising from
a fatal accident, my colleagues have found that none of the supposed
dangers MSHA has postulated significantly and substantially contributed to a
mine safety and health hazard in this case. Slip op. at 5-8. This
exposes the glaring inadequacy of the safeguard notice.

Safeguards were intended to
provide immediate protection against particular, mine-specific transportation
hazards in mines. See Southern Ohio Coal Co., 14 FMSHRC 1, 8 (Jan. 1992)
(“SOCCO II”) (“A
safeguard . . . must address a transportation hazard that is actually present in
the mine in question.”). In SOCCO II, the Commission identified the
parameters of MSHA’s authority to issue safeguards as follows:

In order to issue a notice to provide
safeguards, an inspector must determine that there exists at a mine an actual
transportation hazard that is not covered by a mandatory standard; that a
safeguard is necessary to correct the hazardous condition; and the
corrective measures that the safeguard should require.

Id. (emphases added).1

While the Solicitor initially agreed with
my suggestion that his agency believes pushing cars to be a per se hazardous
practice, Oral Arg. Tr. at 43-45, he has disclaimed that position as a
matter of agency policy. Ltr., Edward Waldman, Esq., to Lisa Boyd, May 22,
2015. I am somewhat relieved to learn that MSHA has not failed for decades to
promulgate a formal rule protecting all miners from a known serious danger to
miner health and safety. However, the Secretary’s concession on this point
precludes the identification of the practice, alone, as a hazardous condition.

Because the practice itself is not
characterized as inherently and obviously dangerous, the expression of the
particular dangers supposedly inherent in the practice become more critical. The
safeguard, however, is silent on the question of particular hazards. And among
those identified by the Secretary, none was contributory to the fatal accident.
Furthermore, the majority has found that the practice at issue here was not an
S&S violation, reversing the ALJ’s findings on all three of the Secretary’s
bases.

The Secretary asserted, and the Judge
found, that pushing cars creates a visibility issue. 35 FMSHRC at 3425, 3430. While
the visibility problem would have been a sufficient statement of a hazard, had
it been expressed properly in the safeguard notice, it was not expressed in the
notice. Even if it had been, in this case, miners were positioned on one of the
motors which was in front of and helping to steer the car, so the visibility
was the same as if the car had been pulled. Thus, the operator might not have
been in violation of a safeguard notice that had properly stated poor visibility
as the hazard. Slip op. at 6; Tr. 98-100.

The Secretary also claimed that pushing
equipment creates a pinch-point hazard, and again the Judge agreed. 35 FMSHRC
at 3425, 3430. Again, this hazard is not stated in the safeguard notice. Nor is
it self-evident. Indeed, the majority holds that the Secretary has not provided
a sufficient explanation under Mathies for the manifestation of this
hazard. Slip op. at 6. Nothing in American Coal excuses the Secretary
from describing with particularity a hazard that is not self-evident from the
description of the practice or condition. And the majority has found the
“hazard” here to be unsupported, even after trial and the opportunity to
present evidence in support of the pinch-point hypothesis.

Finally, the Secretary argued that pushing
cars gives rise to a lack of “positive control.” 35 FMSHRC at 3425, 3430. The
majority has concluded that “[t]he
evidence in this case demonstrates that pushing the shearer carrier did not
contribute to the hazard of a loss of positive control of the car. Nor is there
any evidence that pushing caused the derailment.”

Slip op. at 7. It’s not possible to limit that holding
to the accident at issue, because, again, there’s no description of the hazard
itself in the safeguard. Thus, the majority must consider the application of
the safeguard notice to the practice involved, and for the third and final time
concludes that there’s no evidence of the manifest danger suggested by the
Secretary – a danger which, under SOCCO II and its progeny, including American
Coal, must be obvious from the prohibited practice.  

We have held today that the operator shall
be punished because it engaged in conduct which is not formally and properly
proscribed by the regulatory program, without any substantial evidentiary
support for the required finding that it failed to protect its miners from a
dangerous practice or condition. This is error. Once again, I urge the
Secretary to at least look at this practice in light of his own concerns and
take steps to protect all miners from the potential danger MSHA has found so
troubling in this case. And once again, I dissent from the Commission’s holding
that the operator failed to conform to a valid safeguard notice.

/s/
Michael G. Young

Michael G. Young, Commissioner

[1]
The “significant
and substantial” terminology is taken from section 104(d)(1) of the Mine Act, 30 U.S.C. §
814(d)(1), which distinguished as more serious in nature any violation that “could
significant and substantially contribute to the cause and effect of a . . .
mine safety and health
hazard.”

[2] Section 314(b) of the Act states that “[o]ther
safeguards adequate, in the judgment of an authorized representative of the
Secretary, to minimize hazards with respect to transportation of men and
materials shall be provided.” 30 U.S.C. § 874(b).

[3] Motors
No. 4 and No. 9, the pushing motors, generated most of the force to move the carrier. Tr. 99, 104. The wire rope connecting Motor No. 3
to the shearer carrier behind it “was [used to] help pull the
equipment.” Tr. 104. It was also used “to help guide
the carrier, particularly around curves, and to prevent derailments by using tension." Gov’t Ex. 4 at
4; see also Tr. 44. The
rope was used to pull the carrier
back into position on the rails following a derailment. Gov’t Ex. 4, at
6; Tr. 106-07.

[4]  The brakes had not been set on either
of the lead motors. 33 FMSHRC at 850; Tr. 57-58; Gov’t Ex. 8. According to MSHA’s Report of
Investigation, post-accident tests “revealed that the motors would not move if either the
service brakes or the park brakes on either motor were engaged.” Gov’t Ex. 4, at 8.

[5] On
August 31, 1987, MSHA issued a “waiver” to Oak Grove which ‘permitted [Oak Grove] to push heavy mining equipment
on track haulage roads” if six specified conditions were met. OG Ex. 1, at 2. By letter dated
December 3, 2001, MSHA informed Oak Grove that the waiver was void. Id. at 1.

[6]
Commissioner Althen did
not participate in the Commission’s initial Oak Grove decision. Although
Oak Grove continues to contest the validity of the safeguard, Commissioner
Althen finds that the validity of the safeguard for purposes of Commission
review was established in the Commission’s initial decision. Thus, he expresses
no opinion on the validity of the underlying safeguard.

[7] Oak
Grove argues that “the safeguard is only applicable to the transportation of
specific supplies and
materials, namely timbers and roofbolts.” OG Br. at 19. We conclude that Oak
Grove’s interpretation of the safeguard would lead to absurd results. In order
to issue enforceable
safeguards, inspectors would need to separately cite each individual piece of
equipment that should not be transported, potentially requiring dozens of
safeguards to fully implement the criteria at 30 C.F.R.

§ 75.1403-10(b), an unnecessary burden for
both the inspectors and mine
management.

[8]
At the hearing, counsel for the Secretary never
asked any witness if visibility obstructions contributed to this derailment.

[9] The Judge subsequently contradicted this finding in
his decision on remand. 35 FMSHRC at 3430 (relying on “the closely-connected
hazardous pushing practice which precipitated the derailment”).

[10] At oral argument before the Commission, the
Secretary’s counsel was asked whether there was any record evidence in this
case that derailments are reasonably likely to cause death or serious injury. He
replied, “In the abstract? No. No. All of the evidence in this case is about
this case.” Oral Arg. Tr. 51.

[11] Although
Commissioner Cohen states that substantial evidence supports his theory that
there was a reasonable likelihood that the hazards will result in an injury,
slip op. at 12-13, the only evidence he cites is the weight of the equipment
transported.  Essentially, therefore, his dissent simply assumes a reasonable
likelihood that a serious injury would have occurred had the movement of the
equipment not been interrupted.

1 The majority implies that I have made the legal conclusion that the
violation contributed to the hazard of loss of control. See slip op. at

7. This is incorrect. Instead, as previously stated, I conclude that
   substantial evidence supports the Judge’s legal conclusion that the
   violation contributed to a loss of control. See 35 FMSHRC at 3430. It was reasonable for the Judge to
   rely on the inspector’s opinion that pushing a carrier provides less control as
   compared to pulling.

2 Admittedly, the Secretary at trial (but not on
appeal) and the Judge also confined their analysis to the facts of the accident
rather than considering Steps 3 and 4 of Mathies in the context of
continued normal mining operations.

3 After the accident Oak Grove acquired a new carrier
which can be pulled. Tr. 114.

4 The majority
contends that I “simply assume” that there is a reasonable likelihood that
serious injury would occur during the course of continuing mining operations. Slip
op. at 8 n.11. I disagree. Instead, I conclude that the weight of the
equipment, together with the frequency of the moves, the graded haul road used
to transport the equipment, and the number of miners involved in each move are
factors which, combined, provide substantial evidence to support the Judge’s
conclusion that the third Mathies element was satisfied. No
“assumptions” are necessary.

1 Section 314(b) originates from the Federal Coal Mine
Health and Safety Act of 1969. While the legislative history of this provision
is limited, it is apparent that Congress recognized the need to grant the
Secretary supplemental authority to address specific transportation hazards in
a particular mine in addition to the general obligation to promulgate mandatory
standards through notice and comment rulemaking. See 30 U.S.C. §§ 811,
861.