Secretary of Labor v. Warrior Investments Company, Inc.

Plain-English summary

An unloaded scoop at Warrior Investments' low-coal mine rolled several feet after its parking brake was applied and stopped only when the operator lowered the bucket. Judge Thomas P. McCarthy found that the brake failed to hold the machine stationary and that normal practices of leaving scoops energized or failing to lower the bucket made a crushing accident highly likely. Given the scoop's weight, the mine's low height, nearby miners and equipment, and the vulnerability of miners' heads and chests, he affirmed the S&S designation, fatal gravity, moderate negligence, and $2,282 penalty. He denied two dismissal motions involving settlement conduct and missing witness notes because no discovery order had been violated and any loss was harmless. Eleven other citations were settled, producing a total penalty of $5,595.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.523-3(b)(4)
• Outcome: The litigated parking-brake citation was affirmed as written, 11 other citations were settled, and total penalties of $5,595 were ordered.
• Key point: A parking brake that cannot hold an unloaded scoop on a slight grade fails the standard and creates serious crushing and emergency-stopping hazards under continued normal operations.

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:
202-434-9900 / FAX: 202-434-9949

September 25, 2015

SECRETARY OF LABOR

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA),

Petitioner

v.

WARRIOR INVESTMENTS COMPANY, INC.,

Respondent

CIVIL PENALTY PROCEEDING

Docket No. SE-2014-347

A.C.  No.  01-03419-349329

Mine: Maxine-Pratt Mine

DECISION AND
ORDER

AND ORDER APPROVING
SETTLEMENT

Appearances:               C. Renita Hollins, Esq., U.S. Department
of Labor, Office of the Solicitor, Nashville, Tennessee for Petitioner

J.D. Terry, Esq.,
Warrior Investments Company, Inc., Jasper, Alabama for Respondent

Before:                        Judge McCarthy        

I.                  
Statement of the Case

This case is before me upon a Petition
for Assessment of Civil Penalty under section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 815(d).  This case involves 12 citations,
Nos. 8526290, 8526291, 8526292, 8527596, 8527598, 8528533, 8528534, 8528535,
8528536, 8528537, 8528538, and 8528539.  An evidentiary hearing was held in Birmingham,
Alabama on August 19, 2015.  The parties introduced testimony and documentary
evidence, and witnesses were sequestered.[1] 

In my view, as expressed to the parties in three pre-hearing conferences, this case should not have been tried. 
Unfortunately, both parties were intransigent and unwilling to compromise, even
during a formal settlement conference conduct by my clerk at my office.  Accordingly,
unnecessary time and resources were devoted to this litigation.  After
extensive prodding, the parties announced shortly before the outset of the
hearing that five of the citations had settled.  After opening statements at
the hearing, I suggested possible settlement terms and again strongly suggested
that the parties settle the remaining citations.  The parties agreed to settle
an additional six citations.  Only Citation No. 8528536 remained in dispute.  The
outline of a Settlement Agreement encompassing the other 11 of those 12 citations
was placed on the record and the undersigned left the record open for receipt
of the written Settlement Agreement.[2] 
Tr. 14, 18. 

The remaining citation, No.
8528536, alleges that a non-functioning parking brake on a scoop at Warrior
Investments Company, Inc.’s Maxine Pratt Mine constituted a violation of 30
C.F.R. § 75.523-3(b)(4).  That regulation requires that “(b) Automatic
emergency-parking brakes shall— (4) Hold the equipment stationary despite any
contraction of brake parts, exhaustion of any non-mechanical source of energy,
or leakage…” 

The issues presented are whether
Respondent violated 30 C.F.R. § 75.523-3(b)(4), whether any such violation
would be highly likely to result in a fatality, whether the violation was
properly designated as significant and substantial (S&S), and whether the
proposed penalty of $2,282.00  is appropriate.    

As explained herein, I find that the cited parking brake failed to hold the scoop stationary as required. 
Accordingly, I find a violation of 30 C.F.R. § 75.523-3(b)(4).  On the instant
record, I further find the violation to be significant and substantial, and I
affirm the inspector’s findings of moderate negligence, with one person highly
likely to suffer fatal injury.  Accordingly, Citation No. 8528536 is affirmed,
as written, and the proposed penalty of $2,282.00 is assessed after
consideration of the criteria set forth in section 110(i) of the Act.

Based on the entire record, including the parties’ post hearing briefs and my observation of the demeanor of the
witnesses[3],
I find the following:  

II.               
Stipulations

1.     
Warrior Investments Company, Inc., Mine ID 01-03419, is subject to the
Federal Mine Safety and Health Act of 1977 (the “Mine Act”) as amended. 

2.     
The Administrative Law Judge has jurisdiction over these proceedings,
pursuant to Section 105 of the Mine Act.

3.     
Warrior Investments Company, Inc., is an “operator” as defined in
Section 3(d) of the Mine Act.

4.     
Warrior Investments Company, Inc. operations affect interstate commerce.

5.     
Citations at issue in this proceeding were served by certified mine
inspectors acting in their official capacity as authorized representatives of
the Secretary of Labor during the time of the inspection and when the citation
was issued.

6.     
Warrior Investments Company, Inc. demonstrated good faith in abating the
cited conditions.

7.     
These matters would not affect Warrior Investments Company, Inc.’s
ability to remain in business.

P. Ex. 11; Tr. 20.

III.            
Motions to Dismiss

A.   
First Motion to Dismiss

Before addressing the substantive issues in this
matter, it is first necessary to deal with two Motions to Dismiss filed by
Respondent.  For the reasons that will follow, both of those motions are without
merit and are hereby denied.

Respondent filed its initial Motion to Dismiss on
August 13, 2015.  In that motion, Respondent alleges that the Secretary’s
counsel failed to comply with the Order of Assignment and Pre-Hearing Order as
well as the Order of Assignment to Settlement Attorney.  R. Ex. 3. 
Specifically, Respondent argues that the Secretary refused to discuss
settlement, failed to participate in the settlement conference in good faith,
failed to file a subpoena in a timely fashion, and filed the Pre-Hearing Report
on August 6, 2015, two days after the filing date.  Id. 

On the day the Motion to Dismiss was filed, I held a
conference call with the parties.  In that conference call, the Secretary’s counsel
refuted the allegations made in the Motion and offered to provide documentation
to support her positions.  Specifically, Secretary’s counsel claimed that she
had discussed settlement and made offers in good faith when her client was
available, Conference Call (CC) Transcript at 7-9 of 35.  In fact, she
demonstrated the Secretary’s willingness to compromise by averring that five of
the citations had settled.  CC Tr. at 8 of 35. 

During the call, I rejected Respondent’s arguments in
that call and stated that the Motion would be denied.  CC Tr. at 10 & 34 of

35.  I explained that the denial was appropriate because the Secretary had
settled several citations and I was not convinced that she was violating my
Orders.  CC Tr. at 30 of 35.  At hearing, I further explained that I did not
observe any violation of any Orders and that I was precluded from ruling on
issues arising from the confidential settlement negotiations with the
settlement attorney.  Tr. 142-143.  Also, with respect to the Pre-Hearing
Order, Commission records conclusively show that the Secretary filed the
required document on the deadline, August 4, 2015.  In short, Respondent’s
first Motion to Dismiss was without merit and appropriately denied.

B.    
Second Motion Dismiss

1.   Allegations
And Testimony Regarding Second Motion To Dismiss

On August 18, 2015, the first
day of the hearing, Respondent filed a Second Motion to Dismiss.  In that
motion, Respondent argues that on February 27, 2015, former foreman Josh Holbrook
was deposed by the Secretary’s counsel.  R. Ex. 2.  Respondent’s counsel was
not available for that deposition because of a pre-existing conflict, of which
the Secretary was aware.  Respondent argues that during that deposition,
Holbrook provided the Secretary with notes that Holbrook took contemporaneously
with Smith’s investigation of Citation No. 8528536.  R. Ex. 2.  Respondent
further argues that the Secretary never returned those notes to Holbrook.  More
importantly, Respondent argues that the Secretary refused to make those notes
available during discovery.  Id.  As a result, Respondent asks for
dismissal of the Secretary’s civil penalty proceeding with respect to Citation
No. 8528536.

In order to determine the
validity of Respondent’s allegations, I subpoenaed Holbrook and he testified at
hearing.  Tr. 128-130, 191.  Holbrook was questioned extensively regarding his
notes.  Specifically, Holbrook testified that he took notes every day for his
personal records while working at the Mine, and he placed extra emphasis on
those notes when inspectors were present.  Tr. 92, 154, 165-167.  His notes
covered the citations received in this matter, as well other information, and
said notes ranged from detailed to vague.  Tr. 153-154, 165.  Holbrook kept his
notes in a leather wallet, and changed the paper as necessary.   Tr. 155, 166. 

Holbrook testified that he took notes on the day of
the instant citation.  Tr. 152-153.  However, those notes were later lost and
he could not recall when that occurred.  Tr. 152-153, 156.   Holbrook recalled
the notes and characterized them as a “rough estimate” of the citation.  Tr. 161. 
He testified that the notes included no additional descriptions of the
conditions present.  Tr. 156, 191.  The notes also included loose copies of the
inspector’s citations.  Tr. 156.  At times, Holbrook’s notes included points of
disagreement with the inspector, but Holbrook testified that there were not any
points of disagreement with respect to the citation at issue.   Tr. 191-192. 
If he had disagreed with the citation, there would have been notes to that
effect, but Holbrook testified that his lost notes did not reflect anything
other than his agreement with the instant citation.  Tr. 192-93. 

Holbrook did have possession
of his notes and discussed them when he was deposed by the Secretary’s counsel
in February 2015.  Tr. 153, 165-168, 189.  At that time, all of Holbrook’s
notes were in his notebook in chronological order.  Tr. 168.   At the
deposition, the Secretary’s counsel asked if she could make a copy of his
notes, although Holbrook could not recall if copies were actually made.  Tr.
153-154, 168-169.  Holbrook believed he pulled the notes out of the notebook
and gave the loose notes to CLR Brandon Russell to make copies.[4]  Tr. 157,
169, 190. 

After Holbrook testified
pursuant to subpoena, Russell was called to testify by the undersigned.  Tr.
194-195.  When asked whether Holbrook had given Russell his notes for copying
at the deposition, Russell testified that that was possible, but Russell did
not recall ever receiving the notes or making copies.  Tr. 195-196.  Russell
opined that if he had taken the notes for copying, he would have given them
back to Holbrook afterwards.  Tr. 196-197.  Holbrook testified that his notes
may have been returned to him, but Holbrook could not locate them after his
deposition.  Tr. 169, 190-191.  Holbrook testified that he never had reason to
look at his notes again after the deposition.  Tr. 154, 190. 

At hearing, at the request of
the undersigned, the Secretary’s counsel made a representation as an officer of
the court as to her recollection about what happened to Holbrook’s notes at the
deposition.  She stated that she saw Holbrook reviewing his notes and initially
asked if she could make copies.  Tr. 197-198.  As the deposition progressed,
however, it became apparent that his notes were not detailed and did not
contain any worthwhile information.  Tr. 198.  As a result, no copies of the
notes were made and the Secretary’s counsel never took possession of them.  Tr.
199-200.

2.     
Denial Of Respondent’s Second Motion To Dismiss

Under Commission Rule 56, “[p]arties
may obtain discovery of any relevant, non-privileged matter that is admissible
evidence or appears likely to lead to the discovery of admissible evidence.” 
29 C.F.R. § 2700.56.  Clearly, an eyewitness’ contemporaneous notes would be
relevant, non-privileged, and generally admissible.  Therefore, Respondent made
a proper discovery request.  Further, it is undisputed that the Secretary
failed to provide the requested notes.  However, despite these circumstances,
Respondent’s Second Motion to Dismiss must fail for two reasons.

First, a party can only provide
requested discovery documents that are in its possession or control.  At
hearing, Russell testified that he did not recall receiving Holbrook’s notes or
making copies.  Tr. 195-196.  Similarly, the Secretary’s counsel as officer of
the Court, represented that although she initially asked to make copies of the
notes, she ultimately decided not to do so.  Tr. 197-200.  Finally, Holbrook
testified that he thought that he may have given his notes to Russell, and that
Russell may have returned them.  Tr. 169, 190-191, 196-197.  Holbrook simply
did not recall what happened to his notes after the meeting and had no reason
to look for them.  Tr. 154, 169, 190.  Based on this testimony, I find it most
likely that Holbrook simply misplaced his loose notes after his deposition. 

Regardless of what actually
happened to Holbrook’s notes, Respondent failed to establish that the Secretary
was withholding evidence.  The motion was based solely on Respondent’s
uncorroborated suspicion.  Therefore, dismissal of this matter is
inappropriate.

In addition, Commission Rule 59
provides that “[u]pon the failure of any person, including a party, to respond
to a discovery request or upon an objection to such a request, the party
seeking discovery may file a motion with the Judge requesting an order
compelling discovery.”  29 C.F.R. § 2700.59.   Only after a party has failed to
comply with an order compelling discovery may the judge take actions that are
“just and appropriate, including … dismissing the proceeding in favor of the
party seeking discovery.”  Id.  In the instant matter, Respondent never
filed a motion requesting an order to compel discovery.  Therefore, I lack the
authority to dismiss this matter in the manner urged by Respondent. 

Essentially, Respondent decided to
spring the Motion to Dismiss on the Secretary without following the proper
procedure.  If Respondent wishes to sanction the Secretary for allegedly
failing to follow the rules, Respondent must also follow the rules in pursuing
such sanction.    Further, if Respondent had followed the proper procedure, and
worked with the Secretary toward amicable resolution of outstanding issues
rather than quarrel with the Secretary every step of the way, it may have
learned sooner that the Secretary was not in possession of the documents.

I further note that the
consequences of the missing notes were somewhat mitigated by my issuance of a
subpoena compelling Holbrook to testify at hearing.  While Holbrook’s notes may
have shed light on Holbrook’s testimony, he was able to testify to the general
content of his notes, if not the details.  He credibly testified that the notes
contained rough descriptions of the citations and that the notes would only
confirm that he agreed with the inspector’s assessments in all respects.  Tr.
156, 191-193.  Accordingly, based on this testimony, I find alternatively that any
failure by the Secretary to turn Holbrook’s notes over during discovery was
harmless error that does not warrant granting Respondent’s eleventh-hour motion
to dismiss.  Accordingly, Respondent’s motions to dismiss are denied.  

Having determined that dismissal in
this matter is inappropriate, I now turn to the substantive matters at issue
here.

IV.            
Findings of Fact

MSHA Inspector Todd Smith[5] conducted
an EO-1 inspection of Maxine-Pratt Mine on March 6, 2014.[6]  Tr. 69-70,

91.  The mine ranges between 30 inches and 56 inches in height with an average
height of 42 inches.  Tr. 79, 160.  The terrain in the mine is largely flat
with some small, rolling hills.  Tr. 85, 93-94, 182-183.  There is between 40
and 200 feet of cover above the mine and at least two additional mines 60 and
460 feet below.  Tr. 94. 

During the instant inspection, inspector Smith and
Josh Holbrook, approached a scoop located at the feeder in Section 35 West and found
the scoop operator and helper preparing to load supplies or material into the
scoop bucket.[7] 
Tr. 73, 75-76, 91, 93, 95-96, 108, 115, 158, 160.  The scoop was approximately
two feet tall, 16-22 feet long, 8-12 feet wide, and likely weighed around 2,000
pounds when unloaded, and 3,500 pounds when loaded.  Tr. 79-80, 86-87,
160-161.  This particular scoop was not loaded and it was unclear what supplies
or material the miners were preparing to place in it.  Tr. 86-87, 97-98.  The
scoop did not appear to be moving, and it was unclear whether it was energized
when Smith and Holbrook approached.  Tr. 96, 113, 117.  There was a great deal
of equipment in the area around the scoop, including section pumps, power
boxes, belts, park rides, crib blocks, and toolboxes. Tr. 89-90, 179.

Smith and Holbrook decided to conduct an inspection of
the scoop’s braking system at the location in which they found the machine.  Tr.
73, 86, 98, 106, 108, 158.  The scoop was sitting on a small roll, or hill, in
the mine.  Tr. 79, 86, 108.  There were two brakes on the scoop, a service
brake and a parking brake.  Tr. 174.  The parking brake was also used as an
emergency braking system.  Tr. 174.  The inspection was designed to test
whether the parking brakes were capable of stopping the machine and holding it
stationary within five seconds of application.  Tr. 74, 101, 107.  During the
test, inspector Smith told the scoop operator to avoid the service brake to
ensure that only the parking brake was tested.  Tr. 110. 

To conduct the inspection, Smith told the scoop
operator to tram the machine forward and hit the “panic bar.”  Tr. 73, 77, 98,
106, 162.  The panic bar was designed to de-energize the scoop and
automatically set the brake.  Tr. 73-74.  Smith and Holbrook both testified that
during the test, the operator hit the panic bar and the machine continued to
move; it did not stop within five seconds.  Tr. 74, 78, 86, 101, 162, 173. 
Smith believed the panic bar did not set the brake.  Tr. 98-99, 101.  Holbrook
believed that the parking brake set, but failed to stop the scoop.  Tr. 174,

184.  Smith recalled that he then asked the scoop operator to reverse, set the
brake manually, and try again.[8] 
Tr. 78.  When the operator did so, the de-energized scoop rolled once again. 
Tr. 74-75, 78-79, 101-102, 104-105, 108-109.  Smith testified that the scoop rolled
5 to 10 feet, and Holbrook testified that it rolled between 3 and 8 feet and
only stopped when the scoop operator lowered the bucket.  Tr. 79, 104, 109,
162, 175, 184, 193.  Smith never tested the scoop without the operator in it because
the brakes could not hold the machine while the operator was controlling it. 
Tr. 111.

After the test, the scoop operator began to back up
and Smith and Holbrook noticed that the scoop moved despite the fact that the
brake was still engaged.  Tr. 74, 102-105, 111, 159.  Holbrook testified that
the machine would not stop “whatsoever.”  Tr. 159.  Smith recorded these facts in
his inspection notes.[9] 
Tr. 100. 

After the testing, Smith issued a section
104(a) Citation No. 8528536 (P. Ex. 5.).  Tr. 71, 99.   The citation alleged a
violation of 30 C.F.R. § 75.523-3(b)(4) and states:   

The
parking brake for the S&S 482 scoop (Co#1) located on 35 West section would
not hold the equipment stationary.  When inspected, the parking brake would set
but would not prevent the equipment from further movement.  This violation
poses a hazard to miners working near or around the scoop of being struck or
pinned by the machine if left unattended. This scoop is the primary scoop for
the 35 West section.

P. Ex. 5.  Smith testified that he issued the citation
because the brakes were supposed to hold a fully-loaded piece of equipment on the
steepest grade at the mine, and they could not hold an empty scoop on a small
incline.  Tr. 87, 106.  At hearing, former Warrior representative Holbrook
testified that he agreed with Smith’s determination regarding the issuance of
the citation.  Tr. 162, 192. 

The citation was designated as “highly likely” to
result in injury.  P. Ex. 5.  Smith testified that this designation was
appropriate because the brakes on the scoop did not work, there were people
working around and loading the scoop, and the low height of the mine limited
visibility, create multi-directional sound, and increased exposure.  Tr. 83, 90-91,
119-120.  Smith testified that the scoop, if left unattended, would roll,
strike a miner, and cause crushing injuries.  Tr. 80-81.  Smith testified that
a miner could be crushed between the scoop and the rib or between the scoop and
another piece of equipment.  Tr. 90.  Further, he testified that miners often
left their scoops while working, and it was normal for the scoop to be left
energized at those times.  Tr. 80-81, 113.  Although miners were supposed to
de-energize the scoop, it would take 20-30 seconds to re-energize the scoop if
it was turned off and they did not always do so.  Tr. 114-118, 180-181.  Smith testified
that several fatalities occurred each year in this manner.  Tr. 81.  At
hearing, Holbrook agreed with Smith’s determination regarding likelihood of
injury.  Tr. 163.  However, neither Smith nor Holbrook could recall any serious
injuries involving equipment at the Maxine-Pratt mine.  Tr. 119, 186. 

Holbrook testified that Respondent trained its miners
in the proper procedure for operating scoops.  Tr. 179.  Under industry best
practices, the scoop bucket should be on the ground and facing the rib.  Tr.
115-116, 118-119, 180-182.  Holbrook testified that placing the bucket down
would take pressure off the tires and render movement and injury impossible.
Tr. 183, 185-186.  He opined that taking such safety precautions would insure
that the scoop would not hurt anyone.  Tr. 188. 

In the instant matter, the bucket was down when Smith
arrived and it was raised for the test.  Tr. 117, 184.  However, both Smith and
Holbrook testified that miners did not always follow best practices.  Tr. 121,
180-182.   In fact, Holbrook recalled instances where miners failed to follow
their training and jumped out of scoops without putting their buckets down. 
Tr. 193.  Further, in the instant situation, the scoop was not facing the rib. 
Tr. 117-118. 

The citation was also designated as S&S.  P. Ex. 5. 
Smith testified that this designation was appropriate because the parking brake
would not hold the equipment on uneven terrain and contributed to the hazard that
the scoop would move and crush a miner.  Tr. 83-84.  At hearing, Holbrook
testified that he agreed with Smith’s determination regarding the S&S
designation.  Tr. 163.

The citation was also designated as “fatal.”  P. Ex. 5.  Smith
testified that this designation was appropriate because the 42-inch height of
the mine meant that miners would be crawling and their vital areas (head and
chest) would be exposed to the crushing force of moving or rolling equipment. 
Tr. 84-85, 120.  Further, Smith emphasized the history of such fatalities in
the industry.  Tr. 85.   In addition, the size of the equipment supported his “fatal”
designation.  Tr. 121-122.

The citation was also designated as affecting “one” person.
P. Ex. 5.  Smith testified that this designation was appropriate because either
the scoop operator or another miner would be in the area.  Tr. 88.  Smith
testified that generally at this mine, scoop operators work alone and exit
their machines to collect material.  Tr. 88-89.  While doing so, they typically
leave the machine on, with the brake set.  Tr. 88-89.  Smith testified that the
cited scoop with the defective parking brake would have struck the operator in
such a scenario.  Tr. 89. 

The citation was also designated as resulting from
Respondent’s “moderate” negligence.  P. Ex. 5.  Respondent’s counsel conceded that
if the citation was valid, it resulted from Warrior’s moderate negligence.  Tr.
88. 

Finally, a $2,282.00 civil penalty was
proposed by MSHA.  P. Ex. 5.

V.        The Parties’ Closing
Arguments

At the close of the hearing, the
parties agreed to forego post-hearing briefs.  Tr. 200-201.  Instead, the
parties offered closing statements in which they summarized their legal
arguments. 

The Secretary contends that Respondent
violated the cited standard because the parking brake on the cited scoop failed
and would not hold the equipment.  Tr. 201.  The Secretary also argues that a
fatal injury was highly likely because of the mine height, the size of the scoop,
the fact that miners were on foot nearby, the fact that other equipment was
near the scoop, the fact that nothing was present to secure the scoop, and the
fact that the scoop was tested while unloaded and only on a slight incline. 
Tr. 201-203.  The Secretary emphasizes that both inspector Smith and Holbrook agreed
that the Citation was properly written.   Tr. 203.

The Respondent argues that the Citation
should be vacated because the scoop was improperly tested while energized.  Tr.
205-206.  Respondent argues that it was improper to test the scoop while it was
unloaded in the location where cited with an operator at its controls, rather
than when loaded and unattended on the steepest incline at the Mine.  Tr. 42-43,

205.  Respondent also notes that Smith and Holbrook testified inconsistently on
whether the panic bar that is used to activate the cited parking brake was
effective.  Tr. 204.  Respondent further argues that an injury was not highly
likely to occur because it was common practice for the scoop operator to de-energize
the scoop, face the scoop toward the rib, and place the scoop bucket on the
ground when exiting, thereby making movement impossible.  Tr. 207-208. 

VI.       Conclusions of Law and Legal Analysis Re-Affirming Preliminary Bench Decision

Following the hearing, and after considering
record evidence and opening and closing statements from both parties, I made preliminary
conclusions and findings regarding Citation No. 8528536.  Specifically, I
stated the following at hearing:   

I am going to affirm the citation as written and the
proposed penalty unless there’s any aggravating factors that would increase the
penalty.  I will fully explain my decision in my written decision which will
follow.  The testimony of the inspector was essentially unrebutted by any
witness from the Respondent.  It was essentially corroborated by the testimony
from Mr. Holbrook this morning.  And the Court doesn’t have any choice in light
of those facts except to affirm the citation as written.  And that’s what I’m
going to do.  I’m going to find that the violation was—was a violation of the
standard because it did not hold the equipment stationary despite any
contraction of brake parts.  It was a discrete safety hazard that the equipment
would move in a mine which was only 40 to 56 inches in height.  There was
exposure of the scoop operator and a miner at the time of the incident.  I’m
going to find that it was highly likely under the facts as set forth by the
inspector, and as affirmed by Ms. Hollins in her closing remarks, that highly
likely that the violation contributed to a hazard; i.e., the scoop moving, that
was highly likely to result in injury to a miner, the injury would be serious
in nature.  There would be crushing injuries either when the scoop moved and
pinned the miner against another piece of equipment or against a rib.  And I am
likely to affirm the penalty as written, $2,282.00, consistent with the
criteria in Section 110(i).

Tr. 209-210.  Having carefully reviewed the record,
I affirm my preliminary findings and conclusions, as set forth below.

Based upon further reflection and review of the transcript,
I find that Respondent violated 30 C.F.R. § 75.523-3(b)(4) because the parking
brake on the 482 scoop (Co#1) failed to hold the machine stationary after
application.  Smith and Holbrook’s testimony regarding this violation is
essentially unrebutted.  Specifically, during a test of the parking brake, the
operator hit the panic bar and the scoop continued to move.  Tr. 74, 78, 86,
101, 162, 173.  Smith testified that the scoop was then stopped and the parking
brake was manually set.  Tr. 78.   The parking brake, however, failed to hold
the machine in a stationary position; it began rolling again while it was de-energized. 
Tr. 74-75, 78-79, 101-102, 104-105, 108-109.  Holbrook testified that the machine
rolled at least three feet and Smith testified that it roiled perhaps as much
as ten feet.  Tr. 79, 104, 109, 162, 175, 184, 193. 

I reject Respondent’s argument that the scoop was
improperly energized during the test and therefore the citation should be
vacated.  As discussed supra, Smith testified credibly that the scoop
was de-energized during the test.  Tr. 79, 104.  Respondent presented no
evidence at hearing to rebut this testimony.  Respondent’s entire argument
apparently rests on a section of Smith’s notes where he wrote, “[t]he scoop
would roll after set and would tram when operator applied power.”  Tr. 100. 
However, Smith credibly explained that this reference in his notes described
the fact that the scoop easily reversed under power while the brake was set, showing
the degree to which the brake’s stopping power was diminished.  Tr.  74,
102-105, 111.  The note did not refer to the test itself.  

I similarly reject Respondent’s argument that the scoop was
improperly inspected because it not tested while loaded and left unattended on
the steepest incline at the Mine.  As I explained at hearing, the fact that the
inspector did not test on the steepest grade while the scoop was fully loaded
showed that the brakes were in a worse condition than necessary to prove a
violation of the cited standard.  Tr. 112.  Similarly, when inspector Smith was
asked whether he tested the scoop while unattended, Smith replied, “Lord no,”
and explained that because the scoop would not remain stationary with an
operator, he did not want to risk testing it when unattended.  Tr. 111.  I find
that the failure of the parking brake to hold the machine stationary at grade,
with less than full load or weight, necessarily meant that the parking brake would
fail a more stringent test under the requirements of the standard. 

Finally, I reject Respondent’s argument that the witnesses
differed on whether the panic bar used to activate the cited parking brake was
effective.  Respondent is correct that there were some minor differences in
Smith and Holbrook’s testimony regarding the panic bar.  Specifically, Smith testified
that the panic bar did not set the brake, while Holbrook testified that the
parking brake set, but failed to stop the scoop.  Tr. 98-99, 101, 174, 184. 
Holbrook also did not recall whether Smith had the scoop operator manually set
the brake to conduct a re-test.  Tr. 176-178, 184.  These apparent
inconsistencies, however, were substantially immaterial.  As discussed at
length supra, the unrebutted testimony of both Smith and Holbrook showed
that at some point, the brake was activated and failed to hold the de-energized
scoop in a stationary position.  Neither witness had any doubt that the scoop
failed the test.  Whether each witness could recall the exact minutiae of the
inspection a year and a half after the fact is not significant. As such,
Respondent’s arguments in no way undermine the substantial evidence in the
record that the scoop’s parking brake flunked the test.

In sum, based on my review of the entire record, I
find that the Secretary has proven by a preponderance of the evidence that
Respondent violated 30 C.F.R. § 75.523-3(b)(4) because the parking brake on the
scoop failed to hold the machine stationary after application

I similarly conclude that the violation of 30 C.F.R. §
75.523-3(b)(4) was significant and substantial in nature.  The violation
contributed to a discrete crushing hazard that was reasonably likely to result
in injury, and the injury was reasonably likely to be of a serious nature. 

The Mine Act describes an S&S
violation as one “of such nature as could significantly and substantially
contribute to the cause and effect of a coal or other mine safety or health
hazard.”  30 U.S.C. § 814(d)(1).  The Commission has held that a violation is
S&S “if, based on the particular facts surrounding the violation, there
exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum
Co., 3 FMSHRC 822, 825 (Apr. 1981).  Consistent with the language of
section 104(d)(1), it is the contribution of a violation to the cause and
effect of a hazard that must be significant and substantial.  U.S. Steel
Mining Co., 6 FMSHRC at 1575. 

To establish an S&S violation
under National Gypsum, the Secretary must prove the four elements of the
Commission’s subsequent Mathies test: (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. 
See Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); accord
Buck Creek Coal, supra, 52 F.3d 133, 135 (7th Cir. 1995) (recognizing wide
acceptance of Mathies criteria); Austin Power, Inc. v. Sec’y of Labor,
861 F.2d 99, 103 (5th Cir. 1988) (approving use of Mathies criteria). 
An S&S determination must be based on the particular facts surrounding the
violation and in the context of continued normal mining operations.  Texasgulf,
Inc., 10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co.,
6 FMSHRC 1573, 1574 (July 1984)).

For the reasons explained above, I
have found the underlying violation of mandatory safety 30 C.F.R. § 75.523-3(b)(4).

With regard to the second Mathies
factor, the violation contributed to a discrete crushing hazard from the
scoop when it was left unattended, and to a discrete hazard of being unable to
stop the equipment in an emergency, both measures of danger to safety. 

With respect to the crushing
hazard, inspector Smith offered credible, unrebutted testimony that miners were
working on foot in front of the machine.  Tr. 76.  The miners were working in
low coal and with limited visibility and hearing.  Tr. 83, 90-91, 119-120.  Smith
persuasively testified that the scoop, if left unattended, would roll, and
crush a miner.  Tr. 80-81.  He further credibly testified that a miner could be
crushed between the scoop and the rib, or between the scoop and another piece
of equipment.  Tr. 90. 

With respect to the emergency
hazard, my finding rests on the Commission’s decision in Consolidation Coal
Co.,  35 FMSHRC 2326 (Aug. 2013).  In that case, the operator
violated 30 C.F.R. § 75.523-3(b) “because the emergency brake on a scoop, when
applied using the panic bar, did not engage and bring the equipment to a
complete stop.”  Id. at 2332.  The Commission affirmed the judge’s decision
that this violation contributed to the hazard of being unable to stop the
equipment in an emergency.  Id. at 2333, citing Cumberland Coal Res.,
LP, 33 FMSHRC 2357, 2364.   The Commission found that, much like the
lifeline issue addressed in Cumberland, the need for the panic bar on a
scoop would arise in the context of an emergency that required use of the
emergency brake.  Id.  The Commission noted, “[t]hus, as the judge
concluded, the relevant hazard contributed to by the panic bar violation is the
inability to stop the scoop in an emergency.”  Id., citing Maple
Creek Mining Inc., 27 FMSHRC 555, 563 n.5 (Aug. 2005).  In the instant
matter, the panic bar either failed to activate the emergency brake or once
activated, the brake failed to stop the scoop or hold it in a stationary
position.  Therefore, the violation contributed to the hazard of the scoop
being unable to stop in an emergency. 

With respect to the third Mathies
factor, the Secretary must “a reasonable likelihood [that] the hazard
contributed to will result in an event in which there is an injury.”  U.S.
Steel Mining Co., 7 FMSHRC 1125, 1129 (Aug. 1985).   “The Secretary need
not prove a reasonable likelihood that the violation itself will cause injury.”
 Cumberland Coal Res., LP, 33 FMSHRC 2357, 2365 (Oct. 2011) (quoting Musser
Engineering, Inc. & PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct.
2010).  Moreover, the Secretary is not required to prove that the hazard
contributed to will actually result in an injury causing event.  Youghioghemy
& Ohio Coal Co., 9 FMSHRC 673, 678 (April 1987).   Rather, the
Secretary need only establish that the hazard contributed to is reasonably
likely to result in an injury.  See Peabody Midwest Mining, LLC, 762
F.3d 611, 616 (7th Cir. 2014)(“the question is not whether it is likely that
the hazard… would have occurred; instead, the ALJ had to determine only
whether, if the hazard occurred (regardless of the likelihood), it was
reasonably likely that a reasonably serious injury would result.”).    

In the instant matter, the Secretary
established that a miner being crushed by a scoop would be reasonably likely to
suffer injury.  The scoop was extremely large, and even when unloaded it
weighed about 2,000 pounds.  Tr. 79-80, 86-87, 160-161.  A miner, who was
pinned to other equipment or to the ribs by the movement of such a massive
piece of machinery, would easily suffer crushing injuries.  Tr. 80-81, 90. 
Further, a large scoop that could not be stopped in an emergency situation
could easily strike other miners in the area and endanger the scoop operator. 
Therefore, there was a reasonable likelihood that the discrete hazards
contributed to by this violation would result in injury. 

Finally, with regard to the fourth Mathies factor, I
find a reasonable likelihood that the injury resulting from the instant
violation would be of a reasonably serious nature and most likely fatal. 
Smith’s unrebutted testimony established that the height of the mine, the
position of  the miners, the vulnerability of the miners’ heads and vital
organs, and the large size and heavy weight of the equipment, made a fatal
injury likely.  Tr. 84-85, 120-122.  Accordingly, I find that the fourth
element of the Mathies test has been established.  Consequently the Secretary
has established that the cited condition was S&S.  

In an issue that is related to, although not subsumed
by, the S&S determination, I further conclude that the violation of 30
C.F.R. § 75.523-3(b)(4) was highly likely to result in a fatal injury to one
miner.  It would be unnecessarily repetitive to discuss the likelihood of a
fatal injury to one miner at length, given the S&S analysis above.  It
suffices to note that while the S&S analysis required only a finding that
an injury was “reasonably likely,” the facts shown above go much further and a finding
of “highly likely” is appropriate.  I note further that Holbrook testified that
he agreed with the gravity assessment.  Tr. 163.   Therefore, I find that this
citation was reasonably likely to result in fatal injuries to one miner.

Respondent argues that an injury was not highly likely
because it was common practice for the scoop operator to de-energize the scoop,
face the scoop toward the rib, and place the scoop bucket on the ground when
exiting, thereby rendering scoop movement impossible.  Tr. 207-208.  At
hearing, Holbrook confirmed that taking such actions were industry best
practices.  Tr. 115-116, 118-119, 180-182.  Further, Holbrook agreed that
taking all of these precautions would make an injury unlikely or impossible. 
Tr. 188. 

Both Smith and Holbrook testified, however, that miners
do not always follow such practices.  Tr. 121, 180-182.   Smith testified that
miners were supposed to de-energize scoops before leaving them, but that
re-energizing took 20-30 seconds, and that miners often left scoops energized. 
Tr. 80-81, 114-118, 180-181.  Similarly, Holbrook testified that he was
familiar with situations where miners failed to follow prescribed training and exited
their scoops without putting their buckets down.  Tr. 193.  Further, the record
establishes that the cited scoop was not turned so that it was facing the rib. 
Tr. 117-118.  In short, in the dynamic mining environment like the one prevailing
at the Maxine-Pratt Mine, it was highly likely that a miner would exit the
scoop while it was energized, with its bucket up, and while it was not facing
the rib.  As a result, a fatal injury to one miner would be highly likely.  As
such, Respondent’s argument in no way undermines my findings.

For all
of the foregoing reasons, Citation No. 8528536 is
affirmed, as written.  

VI.            
Civil Penalty

The Act requires that when
evaluating a civil monetary penalty the Commission shall consider six statutory
penalty criteria: 1) the operator’s history of previous violations; 2) the
appropriateness of the penalty to the size of the business; 3) the operator’s
negligence; 4) the operator’s ability to stay in business; 5) the gravity of
the violation; and 6) any good faith compliance after notice of the violation. 
Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (May 2000).   The
Commission is not required to give equal weight to each of the criteria, but
must provide an explanation for a substantial divergence from the proposed
penalty under the criteria.  Spartan Mining Co., 30 FMSHRC 699. 723
(Aug. 2008).  

Here, as is typical, the Secretary
provided a proposed assessment.  The Commission has frequently recognized that
section 110(i) of the Mine Act confers upon the Commission the authority to
assess all civil penalties provided under the Act.  See Wade Sand &
Gravel Company, Docket No. SE 2013-120-M, slip op. (Sep. 16, 2015); and Mining
& Property Specialists, 33 FMSHRC 2961, 2963 (Dec. 2011).  Neither the
Judge nor the Commission is bound by the proposed assessment. 29 C.F.R. §
2700.30(b); Wade Sand & Gravel Company, supra; Sellersburg
Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984) (“[Neither] the
ALJ nor the Commission is bound by the Secretary's proposed penalties… we find
no basis upon which to conclude that [MSHA's Part 100 Penalty regulations] also
govern the Commission.”).  However, while the Secretary’s proposed penalty is
not binding, the Commission has recognized that substantial deviations from the
Secretary's proposed assessments must be adequately explained using the section
110(i) criteria.  Performance Coal Co., 2013 WL 4140438, *2 (Aug. 2,
2013); Spartan Mining Co., 30 FMSHRC supra; Cantera Green,
22 FMSHRC 616, 620-21 (May 2000). 

In light of the Commission authority
described above, I take pains to ensure that my penalty assessments are as
transparent as possible.  As I discussed in my final Big Ridge decision,
in an effort to avoid the appearance of arbitrariness, I look to the
Secretary’s assessment formula as a reference point.  Big Ridge Inc., 36
FMSHRC 1677, 1681-82 (July 19, 2014) (ALJ).  This formula is not binding, but
operates as a lodestar, since factors involved in a violation, such as the
level of negligence, may fall on a continuum rather than fit neatly into one of
five gradations.  Further, unique aggravating or mitigating circumstances may
call for higher or lower penalties, and will be taken into account under my
independent analysis of the the criteria set forth in section 110(i) of the
Mine Act and Commission precedent.   

I find that the penalty proposed by the Secretary of $2,282.00 is consistent with the stipulated findings and my
findings herein regarding the statutory criteria set forth in section 110(i) of
the Mine Act.  30 U.S.C. 820(i).  Accordingly, I assess a $2,282.00 civil
penalty against Respondent for Citation No. 8528536. 

In addition to this citation, I have reviewed the
parties’ Joint Motion to Approve Partial Settlement.  With respect to the 11
citations discussed in that Motion, a reduction in penalty from a reduction in penalty
from $5,091 to $3,313.00 is proposed. 

Specifically, the parties request that Citation Nos. 8527596,
8527598, 8528534, 8528539, 8526290, 8526291, and 8526292 be modified to reduce
the likelihood of injury or illness from “Reasonably Likely” to “Unlikely” and
to delete the significant and substantial designation.  The parties request
that Citation No. 8528537 remain unchanged, but request a reduction in penalty by
stating that there are legitimate factual and legal disputes regarding gravity
and negligence.  Finally, the parties agreed to accept Citation Nos. 85285333,
8528535, and 8528538, as written.  

I have considered the representations and
documen­tation submitted in this case, and I conclude that the proffered settle­ment
is appropriate under the criteria set forth in section 110(i) of the Act.[10]  The settlement amounts are as follows:

Citation No.

Assessment

Settlement

8526290

$634.00

$375.00

8526291

$634.00

$375.00

8526292

$499.00

$100.00

8527596

$460.00

$275.00

8527598

$460.00

$275.00

8528533

$499.00

$499.00

8528534

$308.00

$100.00

8528535

$224.00

$224.00

8528537

$499.00

$450.00

8528538

$540.00

$540.00

8528539

$334.00

$100.00

Total:

$5,091.00

$3,313.00

VII.         
Order

Wherefore, it is ORDERED that Citation Nos. 8528533, 8528535, 8528536, and 8528538 be AFFIRMED, as
written. 

It is ORDERED that Citation No. 8527596,
8527598, 8528534, 8528539, 8526290, 8526291, and 8526292 be MODIFIED to
reduce the likelihood of injury or illness from “Reasonably Likely” to “Unlikely”
and to delete the significant and substantial designation

It is ORDERED that Citation No. 8528537
be MODIFIED to reduce the civil penalty. 

To
the extent Respondent has not already done so, within 40 days of the date of
this decision, Respondent Warrior Investments Company, Inc., is ORDERED TO
PAY a total civil penalty of $5,595.00 in this matter.[11]    

/s/ Thomas P. McCarthy

Thomas
P.  McCarthy

Administrative
Law Judge

Distribution:

J.D. Terry, Esq., Safety
Director, Warrior Investments Company, Inc., 218 Highway 195, Jasper, AL 35503

C Renita Hollins, Esq., U.S.
Department of Labor, Office of the Solicitor, 211 7th Avenue North,
Suite 420, Nashville, TN 37219

[1]
P. Exs. 1-13, R. Exs. 2-6, and Joint Exhibit 1 were received into evidence.  Tr.
9-11, 15, 30, 136-139.  Respondent’s Exhibit 1 was marked at hearing, but was
later withdrawn.  Tr. 12, 136.

[2]
In a further display of uncooperative behavior, the parties continued to fight
over the terms of the settlement after the hearing.  As a result, the
settlement documents were not filed until September 22, 2015, well over a month
after the hearing.

[3]
In resolving conflicts in testimony, I have taken into consideration the
demeanor of the witnesses, their interests in this matter, the inherent probability
of their testimony in light of other events, corroboration or lack of
corroboration for testimony given, and consistency or lack thereof within the
testimony of witnesses and between the testimony of witnesses.

[4]
Brandon Russell was an MSHA Conference and Litigation Representative, who was
present at Holbrook’s deposition and at the hearing.  Tr. 195.  

[5]
At the time of the hearing, Smith had been employed as a coal mine inspector at
MSHA for about three years.  Tr. 65.  His prior mining experience was limited
to about a year working as a general laborer at CONSOL Buchanan No. 1 Mine. 
Tr. 67-69.  He also spent time at a mine owned by his father, although he did
not work there.  Tr. 68. 

[6]
An EO-1 inspection is a normal, quarterly, general inspection.  Tr. 70. 

[7]
As noted, Holbrook testified at the outset of the second day at the hearing
pursuant to a subpoena issued by the undersigned after the first day of
hearing.   See Tr. 128-130, 191.   At the time of the hearing, Holbrook was
employed at North Pratt Mine.  Tr. 146.  He had previously worked as a foreman and
assistant to Warrior’s superintendent from August 2012 to March 2014.  Tr.
146-147, 164.  Holbrook had 14 years of mining experience and held a variety of
jobs and certifications at various mines in three states.  Tr. 148-150,
163-164.

[8]
Holbrook did not recall this second part of the test, and he was not sure that the
scoop had a manual activation for the parking brake.   Tr. 176-178, 184. 

[9]
Specifically, Smith wrote, “[t]he parking brake on the S&S 482 scoop,
company No. 1, located on 35 West section would not hold the equipment
stationary when inspected.  Parking brake would set, but would not prevent
further movement.  The scoop would roll after set and would tram when operator
applied power.”  Tr. 100.

[10]
Pursuant to 29 C.F.R. 2700.1(b) and Federal Rule of Civil Procedure 12(f), I
strike paragraphs three and four of the motion as immaterial and impertinent to
the issues legitimately before the Commission.  The paragraphs incorrectly
cite and interpret the case law and misrepresent the statute, regulations, and
Congressional intent regarding settlement under the Mine Act. 
Instead, I have evaluated the proposed settlement in accordance with sections
110(i) and 110(k) of the Act.

[11]
Payment should be sent to: Mine Safety & Health Administration, U.S.
Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.