Secretary of Labor v. Paramont Coal Company Virginia LLC and Paramont Coal Company Virginia LLC v. Secretary of Labor

Plain-English summary

Paramont's misaligned conveyor belt rubbed against metal hangers near float coal dust and wooden baffles that had begun smoldering from contact with the belt. The Commission remanded so the Judge could consider those conditions together, along with the mine's methane liberation, under continued normal operations. Judge Alan G. Paez found that friction would continue heating the hangers, the baffles supplied another ignition source, and untreated coal dust or methane could fuel a belt fire. Because smoke inhalation and burns would be serious, he held that the alignment violation was S&S. The Judge affirmed the citation as written and assessed the proposed $1,569 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1731(b)
• Outcome: The conveyor-belt alignment citation was affirmed as S&S with a $1,569 penalty.
• Key point: Belt-fire risk must be assessed from the full confluence of friction, ignition sources, combustible dust, methane, and continued mining conditions.

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: 202-434-9950
/ FAX: 202-434-9949

July 13, 2015

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

PARAMONT
COAL COMPANY VIRGINIA LLC,

Respondent.

PARAMONT
COAL COMPANY VIRGINIA LLC,

Contestant,

v.

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA),

Respondent.

CIVIL
PENALTY PROCEEDING

Docket
No. VA 2010-458

A.C.
No. 44-07123-223318

Mine:
Deep Mine No. 35

CONTEST
PROCEEDINGS

Docket
No. VA 2010-369-R

Citation
No. 8166777; 04/07/2010

Docket
No. VA 2010-370-R

Citation
No. 8166778; 04/07/2010

DECISION AND
ORDER ON REMAND

Before:                        Judge
Paez

This
matter is before me on remand from the Commission. 37 FMSHRC , slip op. at 1,
No. VA 2010-458 (May 27, 2015) (citing 35 FMSHRC at 1155). On April 30, 2013,
Administrative Law Judge George Koutras issued a decision after hearing that
involved two section 104(a) citations and two section 104(b) withdrawal orders.
35 FMSHRC 1118, 1158 (Apr. 2013) (ALJ). The Commission’s decision vacated and
remanded one aspect of Judge Koutras’s decision regarding one of the section
104(a) citations. 37 FMSHRC , slip op. at 6, No. VA 2010-458 (May 27, 2015). Judge
Koutras has since retired, so Chief Administrative Law Judge Robert J. Lesnick reassigned
this matter to me on June 9, 2015.

The matter on remand involves Citation
No. 8166774, which was issued to Paramont Coal Company Virginia LLC
(“Paramont”) by the Department of Labor’s Mine Safety and Health Administration
(“MSHA”), for a misaligned conveyor belt at Paramont’s Deep Mine No. 35. The
citation alleged a significant and substantial (“S&S”)[1]
violation of the safety standard in 30 C.F.R. § 75.1731(b), which requires
conveyor belts to be properly aligned.[2]
The Commission determined that Judge Koutras erred by failing to consider the
frictional contact between the wooden baffles and the misaligned No. 3 belt as
a factor that could contribute to a belt fire. See 37 FMSHRC __, slip
op. at 5 (citing 35 FMSHRC at 1155).

I.  PROCEDURAL
BACKGROUND AND ISSUES ON REMAND

Judge Koutras’s decision in this matter discussed
three citations issued by Inspectors Bobby Hall and Lloyd Robinette in
connection with their inspection on April 5, 2010, as well as two orders issued
on April 7, 2010. First, the Secretary alleged in Citation No. 8166773 that
Paramont violated 30 C.F.R. § 75.400 for allowing coal dust to
accumulate along the belt line in Deep Mine No. 35. Second, in Citation No.
8166774 the Secretary alleged that the alignment on Paramont’s belt conveyor
violated 30 C.F.R. § 75.1731(b). The Secretary designated both
citations as S&S and included both citations in Docket No. VA 2010-458.

A few hours later, Inspectors Hall and
Robinette returned to the same area of the mine and issued Citation No.
8166775, charging Paramont with a violation of
30 C.F.R. § 75.1731(c). 35 FMSHRC at 1127, 1129. Citation No.
8166775 involved wooden boards—which Judge Koutras refers to as “wooden
baffles”—that had been constructed across the belt conveyor and which
contributed to a frictional heating hazard. Id. at 1124–25. The body of
Citation No. 8166775 indicates that the conveyor belt was rubbing against those
wooden baffles and the atmosphere smelled like smoldering wood. Id. at
1125. Float coal dust and coal fines were also present. Id. To abate
Citation No. 8166775, Paramont’s foreman “immediately destroyed the wooden
baffle materials by knocking them out with a sledge hammer.”[3] Id. at 1129. Two
days later, the Secretary issued section 104(b) Order Nos. 8166777 and 8166778
for failing to abate the conditions cited in Citation Nos. 8166773 and 8166774.[4] See 35
FMSHRC at 1120–21.

Judge Koutras determined that Citation
No. 8166774 was not appropriately designated as S&S. Id. at 1158. He
declined to consider the frictional contact between the smoldering wooden
baffles identified in Citation No. 8166775 and the belt in question as a
possible ignition source that should be considered in determining whether a
confluence of factors existed that could trigger an explosion or ignition. Id.
at 1155–58. 

In remanding the matter, the Commission
states: “only the Secretary’s petition, seeking review of the Judge’s finding
that Citation No. 8166774 was not S&S, was granted.” 37 FMSHRC __,
slip op. at 2 n.4. As the Commission stated:

Citation Nos. 8166774 (at issue here)
and 8166775 both involved equipment that rubbed against the belt — bottom
roller hangers and wooden baffles respectively. Citation No. 8166773 involved
accumulations of float coal dust in the area. The main issue in the case is
whether the wooden baffles that were the subject of Citation No. 8166775 should
also have been considered as a potential cause of a belt fire when the Judge
made his S&S determination regarding Citation No. 8166774.

37
FMSHRC __, slip op. at 2 (footnote omitted). The Commission directs me to “consider
whether a confluence of factors, including the wooden baffles, could have
contributed to a   fire. . . . [and] also consider the Secretary’s argument
that the two hot hangers would eventually heat to a sufficient temperature to
contribute as an ignition source.” Id. at 5–6.

Consequently, the sole issues before me
on remand are (1) whether the Secretary established a confluence of factors
which would have resulted in the ignition of a belt fire, thus establishing
that Citation No. 8166774 was significant and substantial (“S&S”), and (2)
the appropriate penalty assessment for Citation No. 8166774.

II.  PRINCIPLES
OF LAW AND ANALYSIS

A.        Significant
and Substantial – Principles of Law

A violation is
S&S “if, based on the particular facts surrounding that 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). To establish an S&S violation, 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) (footnote omitted); see also Buck
Creek Coal, Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 133,
135–36 (7th Cir. 1995) (affirming ALJ’s application of the Mathies
criteria); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th
Cir. 1988) (approving the Mathies criteria).

The Commission has provided guidance to
Administrative Law Judges in applying the Mathies test. As
to the third Mathies element, the Commission specifically noted on
remand:

[T]he Commission has recognized that
‘“[i]n addressing [whether a hazard is reasonably likely to result in an
injury] . . . in cases involving violations which may contribute to the hazard
of . . . explosions or ignitions, the likelihood of an injury resulting from
the hazard depends on whether a ‘confluence of factors’ exists that could
trigger an explosion or ignition.”’ McCoy Elkhorn Coal Corp., 36 FMSHRC
1987, 1992 (Aug. 2014). Such factors include any potential ignition sources,
the presence of methane, float coal dust accumulations, loose coal or other
ignitable substance, and the types of equipment operating in the area. See
Utah Power & Light Co., Mining Div., 12 FMSHRC 965, 970-71 (May 1990); Texasgulf,
10 FMSHRC 498, 501-03 (Apr. 1988).

37
FMSHRC __, slip op. at 4–5.

The Commission’s remand decision also
noted that “an S&S determination must be made at the time the citation is
issued ‘without any assumptions as to abatement’ and in the context of ‘continued
normal mining operations.’” 37 FMSHRC __, slip op. at 5 (citing U.S. Steel
Mining Co., 6 FMSHRC 1573, 1574 (July 1984)). In addition, the Commission previously
indicated that “an inspector’s judgment is an important element” in an S&S
determination. Mathies, 6 FMSHRC at 5 (citing Nat’l Gypsum, 3
FMSHRC at 825–26); see also Buck Creek Coal, 52 F.3d at 135 (stating
that ALJ did not abuse discretion in crediting opinion of experienced
inspector).

B.        S&S
Analysis of Citation No. 8166774

The first Mathies
element is satisfied by Judge Koutras’s determination of a violation, a finding
which was not appealed. 37 FMSHRC __, slip op. at 4. Regarding
the second Mathies element, the Commission concluded that Judge Koutras
correctly determined that the violation contributed to the hazard of a belt ignition
fire. Id.

Turning to elements three and four of
the Mathies test, I note Judge Koutras’s factual findings that: (1) no
methane was present in this area of the mine; (2) no float coal dust was in
suspension; (3) no electrical wires were exposed; (4) no float coal dust was
turning or backed up in any of the belt rollers; (5) Paramont’s belt was fire
resistant or retardant; and (6) no rock dust or footprints were present on the
float coal dust to suggest anyone had been in the area. 35 FMSHRC at 1157.
Because the Commission’s decision did not disturb these findings, they remain
applicable to my S&S analysis on remand.

Judge Koutras also found and concluded
that “it [was] unlikely and improbable that the two belt hangers observed by
the inspector, as well as the remaining hangers that evidenced past rubbing by the
belt[,] were viable heat sources that would contribute to, or result in a belt
fire, or an injury of reasonably serious nature.” 35 FMSHRC at 1158. Yet, the
Commission has specifically directed me to evaluate whether the friction
between the belt and belt hangers would heat to a sufficient temperature in the
course of continued mining operations to provide an ignition source. I note
Inspector Hall’s testimony that a temperature in excess of 140 degrees was
necessary to ignite a belt fire. (Tr. 140:18–141:5.) Likewise, I note Judge
Koutras’s finding that the misaligned belt had damaged twelve other belt
hangers at some point. 35 FMSHRC at 1157.

In the course of continued normal mining
operations, the repeatedly misaligned belt would continue to rub the belt
hangers. Cf. 37
FMSHRC __, slip op. at 5 n.10 (indicating the increase in severity of
conditions associated with the wooden baffles over three-and-a-half hours “shows
the effect of normal mining conditions on the development and worsening of the
hazard.”) Although
the temperature of the belt hangers was presently insufficient to cause
a fire, the record also demonstrates the belt hangers heated up in response to
friction. Indeed, the temperature of the two belt hangers in question was already
74 and 75 degrees, respectively, at the time of the citation.[5] (Tr.
332:19–334:1.) I therefore find that the frictional contact would continue to
build heat on the belt hangers and eventually reach a temperature that would provide
an ignition source for the float coal dust accumulations located just a few
feet away.

The
smoldering wooden baffles constituted another ignition source for the nearby
float coal dust accumulations. See 35 FMSHRC at 1133, 1157. Additionally,
Judge Koutras found that no rock dust was present at the time the inspector
issued the citation, and he inferred that its absence implied that no miners
had been present in the area. 35 FMSHRC at 1157. But I recognize that the absence
of rock dust actually increases the danger that the presence of float
coal dust raised in this case.[6]
According to Paramont’s rock dusting schedule, the area should have been rock
dusted the previous day. See 35 FMSRHC at 1141–47 (indicating that Paramont
applied rock dust to the belts once per week and as needed on other days). Paramont’s
failure to follow its rock dusting schedule suggests to me that in continued
mining operations float coal dust would have been present without any rock dust.
Notwithstanding Judge Koutras’ finding that no float coal dust was in
suspension at the moment, these untreated float coal accumulations would have
provided a dangerous fuel source for any suspension or ignition event that
occurred.

Methane presented a similar problem. Although
Inspector Hall did not detect any methane at the time, I recognize that MSHA
was required to provide spot inspections of Deep Mine #35 every 10 or 15 working
days because it liberated approximately 100,000 cubic feet of methane every
twenty-four hours. (See Tr. 130:19–25, 212:11–13;
30 U.S.C. § 813(i).) In the course of continued mining
operations, methane could accumulate quickly on the belt line and provide fuel
for the belt hanger and wooden baffle ignition sources. Cf. Knox
Creek Coal Corp., 36 FMSHRC 1128, 1132 (May 2014) (indicating that the ALJ
erred when he took a “‘snapshot’ approach” to the S&S analysis), appeal
pending, 4th Cir. 14-2313. Given the above evidence of record, I determine
that a float coal dust or methane ignition was reasonably likely to occur. I
therefore conclude that a belt ignition hazard was reasonably likely to result
in injuries, satisfying Mathies’ third element.

If a belt did catch fire, I have no
doubt that burns and smoke inhalation injuries would be serious. The Commission
has routinely considered smoke inhalation and burns to constitute reasonably
serious injuries for the purpose of a Mathies analysis. See, e.g.,
Big Ridge, Inc., 35 FMSHRC 1525, 1528–29 (June 2013) (affirming ALJ’s
S&S determination where smoke inhalation and burn injuries were reasonably
likely). Here, I credit the testimony of Inspectors Hall and Robinette that they
would expect smoke inhalation injuries. (Tr. 89:2–10, 96:16–98:2, 217:5–8.) Thus,
I determine that the Secretary has satisfied the fourth element of Mathies.

In view of the above, the Secretary has
met his burden of proof on all four elements of Mathies. Accordingly, I
conclude that MSHA appropriately designated Citation No. 8166774 as S&S.

III.
 PENALTY

Although the
Secretary proposes penalties, the Commission assesses penalties for violations
of the Mine Act de novo. Douglas R. Rushford Trucking, 22 FMSHRC
598, 600 (May 2000). When assessing a civil penalty, section 110(i) of the Mine
Act requires that I consider six criteria, including: the operator’s history of
previous violations, the appropriateness of the penalty relative to the size of
the operator’s business, the operator’s negligence, the penalty’s effect on the
operator’s ability to continue business, the gravity of the violation, and the
demonstrated good faith of the operator in attempting to achieve rapid compliance.
30 U.S.C.

§
820(i). The criteria are not required to be given equal weight. Jim Walter
Res., Inc.,

36 FMSHRC 1972, 1979 (Aug. 2014).

In
his decision, Judge Koutras found that Paramont’s history of previous violations
was “not egregious.” 35 FMSHRC at 1165. He also noted the parties’ stipulation
that Paramont was a large mine operator and that the proposed penalties would
not adversely affect its ability to remain in business. Id. Further, he
observed that Paramont’s abatement efforts to achieve compliance were on-going
but not completed at the time the section 104(b) orders were issued on April 7,
2010. Id. Judge Koutras also agreed with the Secretary that Paramont
acted with a moderate level of negligence. Id. Finally, he ordered Paramont
to pay a civil penalty of $1,400.00 in connection with Citation No. 8166773, affirmed
Withdrawal Order No. 8166778, and vacated Order No. 8166777. Id. at
1166.

Because the Commission has not disturbed
the above determinations, the only factor that I must revisit under section
110(i) is the gravity of Citation No. 8166774. Based on the evidence before me
and in the context of continued mining operations, I have determined that Citation
No. 8166774 was sufficiently dangerous to constitute an S&S violation. I
therefore conclude that the Secretary’s proposed penalty of $1,569.00 is
appropriate for Citation No. 8166774.

IV.
 ORDER

In light of the
foregoing, it is hereby ORDERED that Citation No. 8166774 be AFFIRMED
as written. Furthermore, Paramont is ORDERED to PAY a total civil
penalty of $1,569.00 within forty (40) days of the date of this decision on
remand.    

/s/ Alan G. Paez

Alan G. Paez

Administrative
Law Judge

Distribution:

Cheryl
E. Carroll, Esq., U.S. Department of Labor, Office of the Solicitor, 201 12th
Street South, Suite 500, Arlington, VA 22202-5450

Cameron
S. Bell, Esq., Penn, Stuart & Eskridge, P.O. Box 2288, Abingdon, VA 24212-2288

/pjv

[1] The S&S
terminology is taken from section 104(d)(1) of the Mine Act, 30 U.S.C.

§ 814(d)(1), which distinguishes as more serious any violation that “could
significantly and substantially contribute to the cause and effect of a . . .
mine safety or health hazard.”

[2] 30 C.F.R. §
75.1731(b) states that “[c]onveyor belts must be properly aligned to prevent
the moving belt from rubbing against the structure or components.”

[3] Citation No.
8166775 was included in a separate docket, Docket No. VA 2010-408, and the
parties agreed to settle that civil penalty proceeding. 37 FMSHRC __, slip op.
at 2 n.4. Judge Koutras issued a Decision Approving Settlement for Docket No.
VA 2010-408 in 2010. That matter is not before me.

[4] Paramont
contested these section 104(b) orders in Docket Nos. VA 2010-369-R and  VA
2010-370-R. Judge Koutras affirmed Order No. 8166778 and vacated Order No.
8166777. 35 FMSHRC at 1166. Although both dockets are before me on remand, the
Commission’s decision did not disturb Judge Koutras’s decision regarding either
order.

[5] The record in
this case does not make clear
what the ignition temperature for a belt fire would be. On cross-examination,
Inspector Hall admitted that it would be higher than 140 degrees. (Tr.
140:25–141:5.) However, it is unclear how high the ignition temperature would
be for the fire resistant/retardant belt in question. Given their experience as
coal miners and MSHA inspectors (Tr. 57:23–58:25, 191:6–193:11), I credit the testimony
from Inspectors Robinette and Hall that friction between the belt and the belt
hangers and the wood baffles in question presented an ignition source. (Tr. 87:24–88:4,
89:2–16, 144:14–145:6, 148:5–18, 210:13–22.) See also Harlan Cumberland Coal
Co.,
20 FMSHRC 1275, 1278–79 (Dec. 1998) (relying on the opinion of an experienced
inspector to conclude that substantial evidence supported an ALJ’s S&S
determination).

[6] Rock dust is
applied to help reduce the dangers of float coal dust. See, e.g., American
Geological Institute, Dictionary of Mining, Mineral, and Related
Terms 465 (2d ed. 1997) (defining rock dust as “[t]he general name for any
kind of inert dust used in rendering coal dust inert . . . .” and rock dusting
as “[t]he dusting of underground areas with powdered limestone to dilute the
coal dust in the mine atmosphere and on mine surfaces, thereby reducing
explosion hazards.”).