Mountain Coal Company, LLC v. Secretary of Labor (ALJ decision, December 10, 2009)

Plain-English summary

Judge Richard W. Manning had affirmed a hydraulic-hose maintenance violation but originally wrote that the Secretary failed to prove it was S&S. The Secretary moved to correct the decision because she had already agreed at the hearing to delete the S&S designation. Mountain Coal did not oppose correction but asked to retain the Judge's gravity discussion and some S&S analysis. The Judge granted the motion, struck page 19, and substituted a page explaining that miners rarely approached the pressurized hoses and that protective clothing reduced injury risk. The replacement page retained findings of low gravity and low negligence, while all other parts of the October decision remained unchanged.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1725(a)
• Outcome: Page 19 was replaced to reflect the Secretary's deletion of the S&S designation, with low-gravity and low-negligence findings retained.
• Key point: A clerical correction may conform a decision to an earlier litigation concession without changing the remaining merits findings.

Full text (FMSHRC public release)

FMSHRC ALJ Decision

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19TH STREET, SUITE 443

DENVER, CO 80202-2500

303-844-3577/FAX 303-844-5268

December 10, 2009

MOUNTAIN COAL COMPANY, LLC,

Contestant

v.

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Respondent

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

OHIO COUNTY COAL COMPANY,

Respondent

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CONTEST PROCEEDING

Docket No. WEST 2007-409-R

Citation No. 7291353; 3/26/2007

West Elk Mine

Mine Id. 05-03672

CIVIL PENALTY PROCEEDING

Docket No. WEST 2008-129

A.C. No. 05-03672-128598

West Elk Mine

ORDER CORRECTING CLERICAL ERROR IN DECISION

On October 16, 2009, I issued a decision on the merits in these cases. (31 FMSHRC 1220). In the decision, I held that the Secretary established a violation of section 75.1725(a), as alleged in Citation No. 7291353, but I determined that the Secretary did not establish that the violation was of a significant and substantial nature (“S&S”).

The Secretary has filed a motion to correct a clerical error in the decision. She moves that the decision be amended to reflect the fact that, at the start of the hearing, she agreed to amend the citation to delete the S&S determination. (Tr. 7). She asks that my discussion of the S&S issue on page 19 of the decision be modified to reflect her concession that the citation was not S&S. (31 FMSHRC 1238). In response to the motion, Mountain Coal stated that it did not object to the motion but asked that the amended decision include my discussion of the gravity criterion and some of the S&S discussion. The Secretary does not object to this request.

For good cause shown, the motion is GRANTED, in accordance with the authority vested to me under 29 C.F.R. §2700.69(c). Page 19 of my October 16, 2009, decision (31 FMSHRC 1238) is STRICKEN from the decision and is replaced by the modified page attached to this order. In all other respects, the decision in these cases remains unchanged.

Richard W. Manning

Administrative Law Judge

Distribution:

Laura E. Beverage, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202-1958

Mary Forrest-Doyle, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Boulevard, 22nd Floor, Arlington, VA 22209

RWM

MOUNTAIN COAL COMPANY, WEST 2007-409-R & WEST 2008-129

This page replaces page 19 of the decision issued by Judge Manning on October 16, 2009

31 FMSHRC 1220, 1238

hose replacement policies to make sure that the policies are sound and are understood by its maintenance personnel. It also may want to consider reducing its policies to writing.

2. Significant and Substantial; Gravity; Negligence.

At the start of the hearing, the Secretary agreed to modify the citation by deleting the inspector’s S&S determination. (Tr. 7). I find that this modification is reasonable. The hoses were in the back walkway, which is behind the leg cylinders. Miners do not work in that area. The back walkway is a confined area where it is difficult to move around.

The most common
reason for anyone to be in the back walkway is to conduct a permissibility inspection, when the supply hoses are not pressurized, or to replace a hose. As stated above, miners are generally not near the supply hoses when they are pressurized as the shields are moved. Angel testified that a miner would have to be within inches of a hose in order to sustain an injury from the resulting spray. The return hydraulic hoses, which are always pressurized during production, operate at 100 to 200 psi. The return hoses were rated at 5,800 psi and they have four layers of wire braiding. In addition, the miners working along the long wall typically wear protective clothing, as described above. This clothing would protect them from injury. I credit the testimony of Kunde on this issue.

I find that the gravity was low because, if a hose were to leak hydraulic fluid, it is unlikely that anyone would be seriously injured as a result. An injury from a fluid injection or from a whipping hose was unlikely. The most likely injury would be from a slip and fall on a deck plate that was covered with spilled hydraulic fluid.

I also find that Mountain Coal’s negligence was low. I credit the company’s evidence that it has been using the same criteria for determining when a hydraulic hose should be replaced