Secretary of Labor v. Paramont Coal Company Virginia LLC

Plain-English summary

MSHA cited Paramont after a misaligned conveyor belt rubbed bottom roller hangers near coal-dust accumulations and wooden ventilation baffles. The ALJ found the alignment violation but ruled it was not significant and substantial, focusing on the hangers and excluding the baffles because they had been removed to abate a separate citation. The Commission held that S&S must be evaluated as conditions existed when cited, without assuming abatement and while considering continued normal mining operations. It directed the Judge to include the allegedly smoldering baffles, nearby coal dust, and the possibility that hot hangers would continue heating in the belt-fire analysis. The Commission vacated the non-S&S finding and remanded for a new S&S determination and penalty assessment.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1731(b)
• Outcome: The non-S&S finding was vacated, and the case was remanded for reconsideration of S&S and the penalty.
• Key point: An S&S analysis must consider the cited conditions before abatement, including hazards covered by a separate citation when they contribute to the same potential event.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE NW, SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY OF LABOR,                           
 :                         

MINE SAFETY AND HEALTH                    :                   

ADMINISTRATION (MSHA)                     
 :        Docket Nos. VA 2010-458

:                                VA 2010-369-R                                                   

v.                                                            :               
                VA 2010-370-R

:                                                      

PARAMONT COAL COMPANY                   :       

VIRGINIA LLC                                              :

BEFORE: Cohen, Nakamura, and
Althen, Commissioners[1]

DECISION

BY: Cohen, Nakamura and
Althen, Commissioners 

These proceedings
arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.           § 801 et seq. (2012) (“Mine Act”). They involve 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”)[2]
violation of the safety standard in 30 C.F.R. § 75.1731(b), which requires conveyor belts to be properly aligned.[3]

The
Administrative Law Judge found that the Secretary of Labor failed to prove that
the violation of the cited standard was S&S. 35 FMSHRC 1118, 1158 (Apr.
2013) (ALJ). The Judge found that the Secretary failed to establish a
confluence of factors which would have resulted in the ignition of a belt fire.
The Secretary filed a petition for discretionary review of the Judge’s determination
that the citation was not S&S, which we granted.

For the reasons
that follow, we vacate and remand the Judge’s decision that Citation  No.
8166774 was not S&S.

I.                  

Factual and Procedural Background

A.   
Factual Background

On April 5, 2010, MSHA inspectors Bobby Hall and Lloyd Robinette
arrived at Paramont’s Deep Mine No. 35, an underground coal mine in Virginia,
to conduct a ventilation inspection. During the inspection, the inspectors
viewed the area along the No. 3 belt between crosscuts 81 and 84. As discussed
below, three citations were issued on that day, and all concerned the same
general area. 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.[4]
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.

At
approximately 11:30 a.m., Inspector Hall issued Citation No. 8166774 for an S&S
violation of section 75.1731(b). Hall alleged that the No. 3 belt was
misaligned, resulting in the belt rubbing against 14 bottom roller hangers. He
noted that the friction between the belt and the hangers resulted in at least
two of the hangers being hot to the touch and that “the atmosphere in the area
had a strong odor from rubbing belt.” Gov’t Ex. P-3. Hall added that “[f]loat
dust was present in the area.” Id.

On
the same day, Hall issued two related citations concerning the same general
area between crosscuts 81 and 84 alongside the No. 3 belt. The first was
Citation No. 8166773, which was also issued at approximately 11:30 a.m. for a
violation of 30 C.F.R. § 75.400.[5] Hall alleged that float coal dust had accumulated
along the No. 3 belt on the travelway and offside areas, and in the crosscuts. Hall
added that “[f]loat coal dust and coal fines had accumulated between the two
new constructed [baffles, referred to in Citation No. 8166775] along the No. 3
belt conveyor near stopping No. 82. No methane was detected.” Gov’t Ex. P-2.

The
second related citation was Citation No. 8166775, which was issued at
approximately 3:00 p.m. for a violation of 30 C.F.R. § 75.1731(c).[6]
Hall alleged that the misaligned belt was rubbing against two wooden baffles
between crosscuts 81 and 82.[7]
The baffles consisted of wooden boards placed on the sides and across the top
of the belt as a ventilation control. As stated in Citation No. 8166773, Hall
alleged that float coal dust had accumulated between the baffles. Hall
specified that “[t]he conveyor belt was not aligned properly and was rubbing
the wood material and the atmosphere smelled of an odor of smoldering wood.” Gov’t
Ex. P-12.

B.    
The Judge’s Decision

In
regard to whether Citation No. 8166774 was S&S, the Judge concluded that there
was a violation — the misaligned belt rubbing against two hot hangers — that
contributed to a discrete safety hazard of a belt ignition fire.[8]
35 FMSHRC at 1154-55. However, the Judge found that the Secretary failed to
carry his burden of proof that the hazard was reasonably likely to result in
reasonably serious injury. Therefore, the
Judge found that the violation was not S&S. Id. at 1158.

The
Judge focused on the friction between the hangers and the belt, and ignored the
friction between the wooden baffles and the belt. The Judge stated that “[t]he
Secretary’s reliance on the wooden baffle materials as . . . contributing to
the . . . S&S finding is not well taken. The evidence establishes that
those materials were removed . . . and the Secretary’s counsel confirmed that
the baffles were ‘taken down immediately . . . which just left the belt
rubbing, and they did not feel that itself was an imminent danger.’” Id. at
1155. As to the friction between the hangers and the belt, the Judge found “no credible evidence of any confluence of factors [which]
could have come together to produce any ignition, combustion, fire, or other
injury producing hazards described by the inspector.”[9]
Id. at 1158. The Judge also found
that the hangers, at the time Hall observed them, were not sufficiently hot to
start a belt ignition or fire and that Hall could not specify how hot the
hangers must be in order to start a fire. Id.
at 1157.

II.               

Disposition

Under Commission case law, 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. 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 set forth the following four-part
test to evaluate whether a violation is properly designated as S&S:

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.

(footnote omitted); 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). An 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).

The first Mathies element is
satisfied by the Judge’s determination of a violation, a finding which has not
been appealed. Regarding the second Mathies element, we conclude that the
Judge correctly determined that the violation contributed to the hazard of a belt ignition fire.

As to the third Mathies element, the 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).

In this case, the Judge erroneously failed 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. 35 FMSHRC at 1155. He incorrectly reasoned that the
Secretary could not rely on the smoldering baffles as an ignition source (as
evidence establishing the third and fourth prongs of the Mathies test)
because the mine foreman had removed them (which he did in order to abate
Citation No. 8166775).

The Commission has long held 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.” U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July
1984) (emphasis added). Accordingly, in Gatliff Coal Co., 14 FMSHRC
1982, 1985-86 (Dec. 1992), the Commission determined that the Judge misapplied
the Mathies test by inferring that the violative condition would cease. Further,
the “operative time frame for determining if a reasonable likelihood of injury
exists includes both the time that a violative condition existed prior to the
citation and the time that it would have existed if normal mining operations
had continued.” Rushton Mining Co., 11 FMSHRC 1432, 1435 (Aug. 1989).

We decline to assume that the operator would have noticed and
removed the smoldering baffles in the absence of the inspector’s issuance of Citation
No. 8166775. Accordingly, we conclude that there is no merit in the Judge’s
reliance on the operator’s abatement of that baffles violation. The Judge
should have considered the wooden baffles which were allegedly smoldering and near
accumulations of coal dust (including float coal dust) in the confluence of
factors analysis.[10]

On
remand, the presiding Judge should consider whether a confluence of factors,
including the wooden baffles, could have contributed to a fire. The Judge
should also consider the Secretary’s argument that the two hot hangers would
eventually heat to a sufficient temperature to contribute as an ignition source.[11]

III.            

Conclusion

We vacate the Judge’s finding that
Citation No. 8166774 was not “significant and substantial” and remand the case
to the Chief Administrative Law Judge[12]
for further proceedings, including whether the violation was “significant and
substantial” and what penalty assessment is appropriate.

/s/ Robert F. Cohen, Jr.

Robert F. Cohen Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

[1] Chairman Mary Lu Jordan and Commissioner Michael G.
Young assumed office after this case had been considered at a Commission
meeting. A new Commissioner possesses legal authority to participate in pending
cases, but such participation is discretionary. Mid-Continent Res., Inc.,
16 FMSHRC 1218 (June 1994). In the interest of efficient decision making, Chairman
Jordan and Commissioner Young have elected not to participate in this matter.

[2] The S&S terminology is taken from section
104(d)(1) of the 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.”

[3] 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.”

[4] While
both parties filed petitions for discretionary review, only the Secretary’s
petition, seeking review of the Judge’s finding that Citation No. 8166774 was
not S&S, was granted. In regard to the two related citations, Citation No.
8166773 was litigated before the Judge below while Citation No. 8166775 was
settled. 35 FMSHRC at 1166; see Docket No. VA 2010-408.

[5] 30 C.F.R. § 75.400 states that “[c]oal dust, including float coal dust deposited on
rock-dusted surfaces, loose coal, and other combustible materials, shall be
cleaned up and not be permitted to accumulate in active workings, or on
diesel-powered and electric equipment therein.”

[6] 30 C.F.R. § 75.1731(c)
states that “[m]aterials shall not be allowed in the belt conveyor entry where
the material may contribute to a frictional heating hazard.”

[7] At trial, Paramont disputed the exact location of the
wooden baffles on the No. 3 belt at the time in question. Tr. 133-34, 403-04. On
remand, the Judge may wish to determine the exact location of these baffles
when determining whether Citation No. 8166774 was S&S.

[8] Based on his credibility determination, the Judge
found that only two of the bottom roller hangers were rubbing against the belt
at the time of the inspection, with the remaining 12 bottom roller hangers
indicating past rubbing by the belt. 35 FMSHRC at 1157-58.

[9] The Judge found that the following conditions
existed:

(1) the absence of any methane; (2) the
absence of any float coal dust in suspension; (3) no exposed electrical wires;
(4) no float coal dust turning or backed up in any of the belt rollers; (5) a
fire resistant and retardant belt line; and (6) the absence of any rock dust or
foot prints on the float coal dust accumulations that would indicate the
presence of anyone in the area.

Id. at 1157.

[10] The fact that the smoldering baffles were also the
subject of a separate citation, Citation No. 8166775, is irrelevant to
consideration of the baffles in the S&S analysis of Citation No. 8166774. Citation
No. 8166775 is not duplicative of Citation No. 8166774 because they allege
violations of separate standards, involving separate duties. Citation No.
8166775 was issued at approximately 3:00 p.m., three-and-a-half hours after the
issuance of Citation No. 8166774. Inspector Hall testified that after issuing
Citation Nos. 8166773 and 8166774, he went to the face to determine whether air
was getting to the face. Tr. 154-55. After returning to the No. 3 belt between
crosscuts 81 and 84, where the belt was misaligned, Inspector Hall observed
that the belt was rubbing against the wooden baffles, causing friction,
smoldering, smoke and an odor. Tr. 83-84, 155-57. Inspector Hall had not observed
this condition earlier. Tr. 157. The fact that the severity of conditions
resulting from the misaligned belt had increased over three-and-a-half hours
does not militate against an S&S finding for Citation No. 8166774. Rather,
it shows the effect of normal mining conditions on the development and
worsening of the hazard.

[11] The
Secretary also asserts that the Judge erred in his S&S finding for Citation
No. 8166774 by improperly conflating the
S&S and imminent danger analyses contrary to Commission precedent. See
Eastern Assoc. Coal Corp., 13 FMSHRC 178, 183 (Feb. 1991) (“the
conditions created by [a S&S) violation need not necessarily be so
impending as to constitute an imminent danger”). However, we find that the
Judge included the phrase “imminent danger” as part of a quotation discussing
the abatement of the baffles violation (Citation No. 8166775) and did not
discuss any of the requirements for an “imminent danger.” 35 FMSHRC at 1155. Therefore,
we reject the Secretary’s argument, which overlooks the context in which the
Judge included the phrase “imminent danger.”

[12] The Judge who originally decided this case has since
retired.