Secretary of Labor v. Warrior Investment Company, Inc.

Plain-English summary

A section foreman tried to clean mud from a conveyor roller while the belt was stopped but not locked out or blocked against motion. Another miner started the belt, pulling the foreman's arm between the belt and roller and causing an injury that required hospital treatment and a month away from underground work. Judge David F. Barbour held that cleaning the roller was maintenance covered by the standard and affirmed the violation as S&S, serious, and highly negligent. He found the unsafe practice foreseeable because the foreman had used and observed the same method before, and ordinary training had not stopped it. The Judge assessed the proposed $5,961 penalty and approved a separate citation settlement for $700, totaling $6,661.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1725(c) and 75.220(a)(1)
• Outcome: The S&S belt-maintenance violation was affirmed at $5,961, a second citation was settled for $700, and total penalties were $6,661.
• Key point: Cleaning a conveyor roller is maintenance, so the belt must be powered off and blocked against motion before the work begins.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE: 202-434-9958
/ FAX: 202-434-9949

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

WARRIOR
INVESTMENT COMPANY, INC.,

Respondent.

CIVIL
PENALTY PROCEEDING:

Docket
No. SE 2014-388

A.C.
No. 01-03419-351947

Mine:
Maxine-Pratt Mine

DECISION

Appearances:               Lauren
A. Polk, Esq., U.S. Department of Labor, Office of the Solicitor, Denver,
Colorado for Petitioner

J.D. Terry,
Esq., Warrior Investment Company, Inc., Japser, Alabama for Respondent

Before:                        Judge
Barbour

In this civil penalty case arising under
sections 105(d) and 110(i) of the Federal Mine Safety and Health Act of 1977 (Mine
Act), as amended (30 U.S.C. §§ 815(d), 820(i)), the Secretary of Labor (Secretary)
on behalf of his Mine Safety and Health Administration (MSHA) seeks the assessment
of civil penalties for two alleged violations of mandatory safety standards for
the nation’s underground coal mines. The standards are set forth at 30 C.F.R.
Part 75. In citing the alleged violations MSHA’s inspectors made findings as to
whether the violations were significant and substantial contributions to mine
safety hazards (S&S violations). They also made findings regarding the violations’
gravity and the negligence of Warrior Investment Company, Inc. (Warrior
Investment or the company). The violations purportedly occurred at an
underground bituminous coal mine owned and operated by Warrior Investment. The mine
is located near Jasper, Alabama.

Following issuance of the citations, the
Secretary proposed civil penalties. When the company contested the Secretary’s
assessments, the Secretary filed the subject petition requesting the Commission
assess the penalties as proposed. The company answered, admitting it was
subject to the Mine Act, but denying the violations occurred, or, if they did, stating
that the proposed penalties were inappropriate. The Commission’s Chief Judge
assigned the case to the court, which directed the parties to engage in
discussions to determine if the alleged violations could be settled. The court
advised the parties that it would receive evidence and arguments concerning
allegations the parties could not settle. The parties ultimately agreed to
settle one of the violations. The other violation was tried on March 18, 2015,
in Birmingham, Alabama.

THE
MINE and THE INSPECTION

The
company’s Maxine-Pratt mine contains four belt conveyers. Tr. 23. The violation
that went to hearing allegedly occurred on the 15 West section. Id. Two
conveyers are on the section, 15 West and 15-5. Id. The 15 West belt
runs east-west, and the 15-5 belt runs north-south. Tr. 64-65. The alleged violation
occurred on the 15-5 belt. Tr. 32-33.

Randall Weekly is an MSHA inspector. Tr.

108. At the time of the events in question, he had over nine years of
     experience with MSHA. Id. On the morning of March 5, 2014, Weekly
     traveled to the Maxine-Pratt Mine to continue an earlier inspection. Tr.
     112-113. Shortly after arriving and before traveling underground, Weekly met
     with mine foreman Joseph Holbrook. Tr. 113. Weekly learned that earlier that
     morning section foreman Charles Gunroe was injured while cleaning coal and mud
     off part of the 15-5 conveyer belt. Id. Weekly also learned that Gunroe
     was being brought to the surface, and he briefly spoke with Gunroe about the
     accident and Gunroe’s injury before Gunroe was taken to the hospital. Tr.
     114-115. Weekly then went underground, spoke to several of the miners who
     worked with Gunroe, concluded the accident was the result of a violation of a
     mandatory safety standard, and issued Citation No. 8526289 to the company for
     the alleged violation.[1] The citation was issued
     pursuant to section 104(a) of the Act. 30 U.S.C. §814(a).

THE
ALLEGED VIOLATION

CITATION
NO.                    DATE             30
C.F.R. §                 PROPOSED PENALTY

8526289                                  3/5/14              75.1725(c)
                  $5,961

The citation states:

On the 15 west section on the 15-5 belt,
the

belt was not locked out or blocked
against

motion when maintenance was being

performed on it on the day shift. The

section [f]oreman was cleaning coal and

mud off of a top roller frame when the
belt

started pulling his arm between the top
belt

and roller injuring his arm severely
enough

that he was transported to the hospital
to

receive medical treatment. If this
condition

is allowed to exist persons working on
the

belt would receive permanently disabling
or

fatal injuries while working on the
belt.

Gov’t Exh. 1.

Section 75.1725(c)
states:

Repairs or maintenance shall
not be

performed on
machinery until the power

is off and the
machinery is blocked against

motion, except
where machinery motion is

necessary to
make adjustments.

Charles Gunroe, the injured second shift
section foreman, was called to testify by the Secretary. Tr. 16. Gunroe stated
that at the time of the accident he had 14 years of mining experience. Tr. 17. On
March 5, he arrived at the mine at 6:00 a.m. and proceeded to the face of the
15 West section. Tr. 25-26. Gunroe and his crew began to mine when the
tailpiece of the 15-5 conveyer belt started spilling coal. Tr. 26. Gunroe
instructed his men to stop mining and to adjust the tailpiece. Id. The
belt was shut down. There were piles of coal at each end of the belt. Tr. 28. Gunroe
thought that the tailpiece and rollers near it needed to be cleaned and
adjusted to prevent the spillage and to keep the belt from breaking. Id.

As Gunroe and his crew were cleaning and
adjusting a roller near the tail piece, Gunroe noticed mud on the roller. Tr.

33. Gunroe was holding a piece of wood. Tr. 34. He attempted to remove the mud,
    using the piece of wood. Tr. 40. Due to the low roof, Gunroe was on his knees
    and he bent over and toward the belt as he attempted to remove the mud. Tr.
    46-47. Gunroe stuck his arm between the frame of the belt and the belt roller. Tr.
34. As he did so, a miner on Gunroe’s crew turned on the belt. Tr. 48. Almost
    immediately, Gunroe’s arm was pulled between the belt and the roller. Id.
    (Gunroe believed that the belt caught his shirt, and this caused his arm to be
    caught. Id.) The belt was quickly turned off. Tr. 49. Gunroe’s crew cut
    him free of the belt. Tr. 49-50. Gunroe testified that he was in a lot of pain.
    Tr. 49. He stated he felt like an elephant was standing on his arm. Id. He
    knew he needed medical attention and began to ascend from the mine, meeting
    Holbrook on the way. Tr. 51. Once he reached the surface, Gunroe briefly met
    with Weekly before heading to the hospital. Tr. 52. A representative of the
    company, Bobby Meadows, accompanied Gunroe to the hospital. Id.[2]

THE
VIOLATION

The
court finds that the violation occurred as charged. The language of the
standard is clear and must be applied as written. The standard pertains to
machinery or equipment that is being repaired or maintained. Walker Stone
Co., 19 FMSHRC 48, 51 (Jan. 1997)[3]; Jim Walter Res., Inc.,
28 FMSHRC 983, 987-88 (Dec. 2006). The cited conveyer belt was both
machinery (“all devices . . . which permit a thing to function or accomplish an
end”) and equipment (“the implements . . . used in operation or activity”). Webster's
Third New Int'l Dictionary, Unabridged 768 (1986). Equally important,
cleaning the mud and coal from the rollers and adjusting the tail piece were
both “repair” (“to restore to a sound . . . state”) and maintenance (“[p]roper
care, repair, and keeping in good order”). Webster's at 1923 (1986); A
Dictionary of Mining, Mineral, and Related Terms 675 (1968).

There
is no doubt that the belt was not powered off or blocked against motion when
Gunroe was injured. Tr. 135. The court accepts Gunroe’s testimony that the belt
needed to be shut down and the tailpiece cleaned to prevent the belt from
breaking and to stop the spillage. Tr. 26-28. The court rejects the company’s
assertion that maintenance was not being performed on the belt at the time of
injury, as Gunroe’s act of attempting to remove the mud from the roller was
part of his overall effort to “[keep the belt] in good order” and thus was
clearly an act of maintenance within the meaning of section 75.1275(c). Webster’s
at 1923 (1986). Because Gunroe was performing repair and maintenance on the
15-5 belt, because the power to the belt was not locked out even though the
belt was shut down, and because the belt was not blocked against motion, the
company violated section 75.1725(c).

GRAVITY and
S&S

As the Commission has noted, the gravity
penalty criteria and a finding of S&S are not identical, but are frequently
based on the same evidence. Quinland Coals, Inc., 9 FMSHRC 1614, 1622
n.11 (Sept. 1987). The court finds Weekly’s analysis of the gravity of the
violation persuasive. Weekly noted that Gunroe was lucky to have survived, as
accidents of this sort are often at least permanently disabling, and if Gunroe
had not been quickly cut free and the power to the belt had not been quickly
shut off, the result easily could have been fatal. Tr. 133. The court finds
that the violation was serious.

The court further agrees with the
Secretary that the violation was S&S. A violation is S&S, “if, based
upon 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., National Gypsum Co., 3
FMSHRC 822, 825 (Apr. 1981). The Commission explained:

In
order to establish that a violation of a mandatory safety

standard
is significant and substantial under National Gypsum,

the
Secretary . . . 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.

Mathies Coal Co. 6 FMSHRC 1, 3-4 (Jan. 1984).

The
court believes that all four elements have been met. There was an underlying
violation of a mandatory safety standard. Power to the belt was not off and the
belt was not blocked while maintenance was underway, creating a discrete safety
hazard. As evidenced by the fact that the accident happened, there was a
reasonable likelihood that an injury would result, fulfilling the third element.
Lastly, it was reasonably likely that the injury in question would be
reasonably serious. Indeed, as noted above, Gunroe was lucky to survive. Tr. 133.

NEGLIGENCE

Weekly also found that the company was
highly negligent in allowing the violation. Gov. Exh. 1. He noted that Gunroe
was an agent of the operator as a foreman and knew what he was doing was wrong.[4]
Tr. 157. While it is true, as Respondent’s counsel noted, that there is an
exception to imputing the negligence of a supervisor to the company, Gunroe’s
conduct does not fall within the exception. The exception only applies [“w]here
. . . an operator has taken reasonable steps to avoid a particular class of
accident and the erring supervisor unforeseeably exposes only himself to risk.”
Nacco Mining Co., 3 FMSHRC 848, 850. In this case, neither element of
the exception is satisfied.

The court recognizes the company trained
Gunroe on belt safety. However, Gunroe must not have paid attention. He testified
that he had cleaned the rollers in the same way before and he had witnessed
other miners doing it as well. Tr. 48. In the context of continuing mining, it
was not unforeseeable that the accident would happen. In addition, the company
offered no evidence Gunroe received any discipline for his actions or that it
took reasonable steps to avoid the type of accident that was foreseeable. Gunroe
was also not the only one at risk; by not locking and tagging out the belt, the
other miners were also at risk of the belt suddenly being turned on. The court
concludes the unsafe practice was pervasive and the company should have known
about it and taken steps beyond routine training to stop it.

High negligence is appropriate when the
actor has knowledge of the violative condition and fails to act. Deshetty,
emp. by Island Creek Coal Co., 16 FMSHRC 1046, 1053 (May 1994). Gunroe
was aware that the belt was not locked out and not blocked against motion when he
attempted to clean the mud. Tr. 37. Given this and the fact that the exception
to attributing the negligence of a supervisor to the company does not apply,
the court agrees with the Secretary that the company was highly negligent.

OTHER CIVIL
PENALTY CRITERIA

The parties stipulated that the company
exhibited good faith in abating the violation. Joint Exh. 1 at 2. No testimony
was given on the size of the company. Therefore, the court accepts the
Secretary’s findings as to the size of the company and as a result finds that
while the subject mine is small, the company as a controlling entity is large. In
addition, no testimony was given regarding the impact of the civil penalties
assessed on the company’s ability to continue in business. Therefore, the court
assumes there is no impact. The Secretary submitted a printout purporting to
show all violations cited and assessed at the mine that became final between
September 5, 2012, and March 4, 2014. Gov’t Ex. 5. There are 83 such final
violations. The court finds that the company had a large history of prior
violations.

ASSESSMENT OF
CIVIL PENALTIES

CITATION
NO. 
DATE      30 C.F.R. §     PROPOSED PENALTY     ASSESSMENT

8526289             
3/5/14          75.1725(c)       $5,961                               $5,961

The court finds
that the violation was serious and the company’s negligence was high. Given
these findings and the other civil penalty criteria, the court assesses a
penalty of $5,961 for the violation.

SETTLED VIOLATION

The parties agreed to settle one alleged
violation. At the close of the hearing, counsel for the Secretary read the
details of the settlement into the record. Tr. 217-221. The settlement is as
follows:

CITATION NO. DATE 30
C.F.R.§  PROPOSED PENALTY SETTLEMENT AMOUNT

8529309             4/23/14 75.220(a)(1)
$1,026                              $700

There are no modifications to the
citation. However, the reasons for the settlement were explained by counsel
after which the settlement was approved on the record by the court. Tr. 221.

ORDER

In view of the conclusions, findings,
and approval set forth above, within 30 days of the date of this decision the company
SHALL PAY civil penalties in the amount of $6,661 ($5,961 for the
contested violations and $700 for the settled violations).[5]
Upon PAYMENT of the penalties, this proceeding IS DISMISSED.[6]

/s/ David F.
Barbour

David F. Barbour

Administrative
Law Judge

Distribution:
(Certified Mail)

Lauren A. Polk, Esq., U.S. Department of Labor, Office of the
Solicitor, 1244 Speer Blvd., Suite 216, Denver, CO   80204

J.D. Terry, Esq./Safety Director, Warrior Investment Co., Inc.,
218 Highway 195, Jasper, AL  35503

/db

[1] Weekly’s
inspection additionally resulted in the issuance of Citation No. 8529309, the
citation the parties settled.

[2] Gunroe still
had a knot in his arm at the time of hearing, but suffered no permanent damage
to his arm, regaining full use of it. He was unable to work in the mine for a
month after the accident, during which time he sat in the mine office or received
physical therapy. Tr. 55-56.

[3] Although Walker
Stone concerns 30 C.F.R §56.14105, the metal nonmetal standard pertaining
to procedures used during repairs or maintenance of machinery or equipment, the
Commission’s holdings regarding interpretation of section 56.14105 and the
meaning of “repair” and maintenance apply equally to similarly worded section
75.1725(c).

[4] Weekly reached
the conclusion that Gunroe knew what he was doing was wrong based on Gunroe’s
experience, training, and position. Tr. 136-137.

[5] Payment shall
be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR,
PAYMENT OFFICE, BOX 790390, ST. LOUIS, MO 63179-0390.

[6] This decision
was prepared by Commission Intern Cole Stevens.