Twentymile Coal Company
Twentymile Coal Company (FMSHRC WEST 2008-879): Escapeway violations split with $27,605 total penalties
Apply this to your situation
This order from 2012 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current MSHA standards and Commission precedent, with citations.
Plain-English summary
MSHA cited Twentymile Coal for escapeway marking and lifeline-access conditions at its underground Foidel Creek Mine. Judge Richard W. Manning upheld an order involving inadequate primary-escapeway route markers and assessed $18,000. He also upheld a citation for a water hose that impeded access to a lifeline and assessed $2,200. The judge vacated a separate lifeline citation because the Secretary did not establish that the cited entry was part of the designated escapeway when the citation was issued. With three additional citations resolved by settlement, the total penalty was $27,605.
Decision snapshot
- Cited standards: 30 C.F.R. §§ 75.380(d)(2) and 75.380(d)(7)
- Outcome: Two litigated escapeway violations were affirmed, one was vacated, three others were settled, and total penalties of $27,605 were ordered.
- Key point: Escapeway markers and lifelines must provide usable route guidance and access, but the Secretary must prove that the cited location was actually part of the designated escapeway.
Full text (FMSHRC public release)
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
th
721 19 Street, Suite 443
Denver, CO 80202-2500
303-844-5267/ FAX 303-844-5268
August 27, 2012
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. WEST 2008-879
Petitioner, : A.C. No. 05-03836-123538
:
: Docket No. WEST 2009-081
v. : A.C. No. 05-03836-163960
:
: Docket No. WEST 2009-241A
: A.C. No. 05-03836-166946-03
:
TWENTYMILE COAL COMPANY, :
Respondent. : Foidel Creek Mine
DECISION
Appearances: Amanda K. Slater, Esq., Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado, for Petitioner;
R. Henry Moore, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for
Respondent.
Before: Judge Manning
This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”),
against Twentymile Coal Co. (“Twentymile” or “Respondent”) pursuant to sections 105 and 110
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the “Mine Act”).
The parties introduced testimony and documentary evidence at a hearing held in Steamboat
Springs, Colorado. The parties filed post-hearing briefs.
This case involves Order No. 7622766, Citation No. 7291716 and Citation No. 7621434
issued at Twentymile’s Foidel Creek Mine. Twentymile operates the Foidel Creek Mine, a large
underground coal mine in Routt County, Colorado. The mine extracts coal in panels using a
longwall system.
I. BASIC LEGAL PRINCIPLES
A. Significant and Substantial
The Secretary alleges that the violations discussed below were of a significant and
substantial nature (“S&S”). An S&S violation is a violation “of such nature as could significantly
and substantially contribute to the cause and effect of a . . . mine safety or health hazard.” 30
U.S.C. § 814(d) (2006). A violation is properly designated S&S, “if, based upon 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). In order to establish the S&S nature of a 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 will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC
1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc., 52 F. 3rd. 133, 135 (7th Cir. 1995); Austin
Power Co., Inc. v, Sec’y of Labor, 861 F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).
It is the third element of the S&S criteria that is the most difficult to apply. The element is
established only if the Secretary proves “a reasonable likelihood the hazard contributed to will
result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 7 FMSHRC 1125,
1129 (Aug. 1985). An S&S determination must be based on the particular facts surrounding the
violation and must be made in the context of continued normal mining operations. Texasgulf,
Inc., 10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co., Inc., 6 FMSHRC 1573,
1574 (July 1984)). “The Secretary need not prove a reasonable likelihood that the violation itself
will cause injury.” Musser Engineering, Inc. 32 FMSHRC 1257, 1281 (Oct. 2010).
The S&S nature of a violation and the gravity of a violation are not synonymous. The
Commission has emphasized that, in accordance with the language of section 104(d)(1), 30
U.S.C. § 814(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 1573, 1575 (July 1984).
The Commission and court have observed that an experienced MSHA inspector’s opinion that a
violation is S&S is entitled to substantial weight. Harland Cumberland Coal Co., 20 FMSHRC at
1278-79; Buck Creek Coal Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995). The focus of the
gravity of a violation is not necessarily on the reasonable likelihood of serious injury, which is the
focus of the S&S inquiry, but rather on “the effect of the hazard if it occurs.” Consolidation Coal
Co., 18 FMSHRC 1541, 1550 (Sept. 1996). Thus, a violation can be serious without being S&S.
B. Negligence and Unwarrantable failure
The Secretary defines conduct that constitutes negligence under the Mine Act as follows:
Negligence is conduct, either by commission or omission, which
falls below a standard of care established under the Mine Act to
protect miners against the risks of harm. Under the Mine Act, an
operator is held to a high standard of care. A mine operator is
required to be on the alert for conditions and practices in the mine
that affect the safety or health of miners and to take steps necessary
to correct or prevent hazardous conditions or practices. The failure
to exercise a high standard of care constitutes negligence.
30 C.F.R. § 100.3(d) (2011). The Commission has defined an unwarrantable failure as
aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9
FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is defined by such conduct as “reckless
disregard,” “intentional misconduct,” “indifference” or a “serious lack of reasonable care.” Emery
Mining Corp., 9 FMSHRC at 2003; see also Buck Creek Coal, Inc., 52 F. 3d. at 136. Whether
conduct is “aggravated” in the context of an unwarrantable failure analysis is determined by
looking at all the facts and circumstances of each case to see if any aggravating factors exist, such
as the length of time that the violation has existed, the extent of the violative condition, whether
the operator has been placed on notice that greater efforts are necessary for compliance, the
operator’s efforts in abating the violative condition, whether the violation is obvious or poses a
high degree of danger, and the operator’s knowledge of the existence of the violation. See e.g.
Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). All of the relevant facts and
circumstances of each case must be examined to determine if an actor's conduct is aggravated or
whether mitigating circumstances exist. Id. Because supervisors are held to a high standard of
care, another important factor supporting an unwarrantable failure determination is the
involvement of a supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar.
1998). Repeated similar violations are relevant to an unwarrantable failure determination to the
extent that they serve to put an operator on notice that greater efforts are necessary for compliance
with a standard. Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992).
II. DISCUSSION WITH FINDINGS OF FACT
CONCLUSIONS OF LAW
A. Order No. 7622766; WEST 2009-081
On August 6, 2008, MSHA Inspector Art Gore issued Order No. 7622766 under section
104(d)(2) of the Mine Act for an alleged violation of 30 C.F.R. § 75.380(d)(2).1 The order
alleges the following:
The primary escapeway for the 22 right longwall section, to
the 18 right escape shaft is not clearly marked to show the
route and direction of travel. The No. 1 entry of 22 right is
designated as the primary and there is one (blue, the
designated color) reflective marker for a distance of 4,800
feet.
(Ex. G-1). Inspector Gore determined that an injury resulting in lost workdays or restricted duty
was reasonably likely to occur, that the violation was S&S, that twenty-three persons would be
affected, and that the violation was the result of high negligence on the part of the operator. The
Secretary proposed a penalty of $17,301.00 for this alleged violation.
1
Section 75.380(d)(2) provides that “[e]ach escapeway shall be clearly marked to show
the route and direction of travel to the surface.”
1. Summary of Testimony
Inspector Art Gore has worked for MSHA for approximately 21 years. (Tr. 13). Prior to
his time with MSHA, Inspector Gore worked in the mining industry from 1971 to 1991 at
coalfields in West Virginia, Kentucky, and Colorado. (Tr. 14).
On August 6, 2008, Inspector Gore visited Twentymile’s Foidel Creek Mine as part of a
quarterly E01 inspection. (Tr. 17-18). When Inspector Gore went into the Number 1 Entry of 22
Right he saw that the entry was not clearly marked to show the direction and route of travel, a
violation of section 75.380(d)(2). (Tr. 19). Inspector Gore testified that most mines in the
industry mark escapeways with round reflectors attached to the roof with wire. (Tr. 20). These
reflectors are about two inches in diameter and are hung so that a person in the entry can shine a
light and see a row of reflectors in one direction and white plastic or nothing in the other
direction. Id. The distance between the reflectors varies, but a person at one reflector should be
able to see the next reflector. (Tr. 21). Inspector Gore testified that he saw this type of reflector
at Foidel Creek Mine on his last visit in 2011. Id. Inspector Gore testified that when he was in
Number 1 Entry of 22 Right on August 6, 2008 he saw only one reflector for 4,800 feet. (Tr. 23-
24). Inspector Gore marked Resp. Ex. 2 with a highlighter to indicate the area he was citing. (Tr.
22). Inspector Gore conceded that these reflectors would be difficult to see in smoke, but it
would be easier to see something reflective through smoke than to see something non-reflective.
(Tr. 42, 50).
Inspector Gore testified that the lifeline is a continuous directional line that miners can
use to find their way through smoke to an escapeway. (Tr. 25). At the Foidel Creek mine they
are equipped with tactile devices that designate the direction of travel and indicate the location of
doorways and SCSRs. Id. There are strips of reflective tape on the cones and on the lifeline
every 25 feet. (Tr. 26). Inspector Gore testified that this reflective tape is there to show the
miners where the lifeline is and does not indicate the direction of travel. Id.
Inspector Gore testified that there were multiple problems with the lifeline in Number 1
Entry of 22 Right. He stated that the lifeline was down on the mine floor along most of the cited
area. The floor was muddy and the reflective material on the lifeline was either covered with
mud or was missing. (Tr. 27). The inspector issued Order No. 7622768 on the same day
because of the condition of the lifeline. (Ex. G-3; Tr. 27-28). Inspector Gore testified that the
only directional indicator a miner would encounter in the event of an emergency in that
escapeway would be the cones, provided that the miner could find the lifeline in the mud. (Tr.
30).
Inspector Gore marked his order as reasonably likely to lead to an injury because at
Crosscut 104 some rooms were not adequately closed off and a miner in an emergency could
accidently walk into them and be exposed to bad roof or ribs. (Tr. 32-33). He determined that
23 miners would be affected. (Tr. 33). At that particular time, mine management was frequently
in the area due to problems with methane behind seals. (Tr. 34). Inspector Gore testified that the
conditions cited were obvious and extensive. (Tr. 34-35). Inspector Gore issued the order as
S&S. (Tr. 34).
Inspector Gore determined that the violation was the result of Twentymile’s
unwarrantable failure because he was able to spot the condition within five minutes and mine
managers were frequently in the area and should have recognized the condition. (Tr. 35-36).
The reflectors were hung in the escapeway to abate the condition. (Tr. 36).
Dennis Bouwens testified on behalf of Twentymile. (Tr. 51). He has worked for
Twentymile for 24 years and is currently the technical safety coordinator, a position he has held
for a little over a year. (Tr. 52). Prior to this position he was a general mine foreman for 18
years. Id. In both positions he has been responsible for evaluating safety plans and potential
hazards. (Tr. 52-53).
Bouwens discussed the order with Inspector Gore when the inspector came out of the
mine that day. (Tr. 55). Immediately following this conversation, Bouwens went underground
with Dick Conkle, who was the safety manager of the mine at that time. (Tr. 55-56). Bouwens
testified that he inspected the Number One Entry primary escapeway for the longwall and found
that some of the lifeline was suspended from the roof and some was attached to cans. (Tr. 56).
The lifeline did have reflective material on it, but in some places it was covered, damaged or
missing. (Tr. 56-57). Bouwens also testified that while some of the cones on the lifeline were
covered with dust or mud, the majority of the cones were visible. (Tr. 57).
Bouwens testified that the escapeway was marked by the directional cones on the lifeline
in such a way that a miner could escape. (Tr. 58). Bouwens and Conkle took photographs of the
lifeline. (Tr. 58). Res. Ex. 3 is a photo of the lifeline attached to the roof and reflectors in the
escapeway. (Tr. 59). This photo was taken before any corrections were made in response to the
citation. (Tr. 65).
Bouwens testified that the cones on the lifeline are designed to be a tactile device. (Tr.
68). He also stated, however, that a person trained on the use of cones would know which way
to go just by looking at the direction the cones were pointing. (Tr. 72). The tape on the lifeline
identifies the lifeline but does not indicate direction. (Tr. 70).
Bouwens testified that in Number 1 Entry, where the escapeway turns, there were three
supports with “caution” tape across them. (Tr. 60-61). A person walking down the escapeway
would know to turn at this point because the lifeline turned. (Tr. 61). If a person were not
holding on to the lifeline in a smoke-free environment, the person would know to turn because
those areas were barricaded off and the lifeline was visible going to the left. (Tr. 61-62).
Management notified miners of any changes to the escapeway as soon as the changes were made.
(Tr. 62).
Bouwens testified that reflectors are usually spaced about 250 feet apart. (Tr. 64). Blue
reflectors are used for the primary escapeway and red for the secondary escapeway. Bouwens
said that the cited area had once been a secondary escapeway and speculated that when the red
reflectors were removed, blue reflectors were not installed to replace them. (Tr. 64-65).
2. Brief Summary of the Parties’ Arguments
a. Secretary of Labor
The Secretary argues that the Respondent violated section 75.380(d)(2) by failing to
clearly mark the cited escapeway. Although Respondent marked the escapeway with a lifeline
and attached cones, the state of the lifeline and the lack of reflectors made these markings
insufficient. Most of the lifeline was on the ground and in the mud, and the reflective material
on the cones was mostly damaged or missing. Furthermore, the lack of reflectors might
convince a trained miner that the cited escapeway was not an escapeway at all. In an emergency
situation, a miner would be unable to determine the location and direction of the escapeway; the
Secretary therefore argues that Respondent failed to clearly mark the cited escapeway.
The Secretary further argues that this case is distinguishable from my June 2010
Twentymile decision because the cited lifeline in the present case was covered in mud and down
on the mine floor. See Twentymile Coal Co., 32 FMSHRC 628 (June 2010) (ALJ). My previous
decision held that a lifeline may satisfy the standard if it clearly marks the direction of travel to
the surface. Whether the lifeline clearly marks the direction of travel to the surface was intended
to be determined on a case-by-case basis. In the present case, due to the poor condition of the
lifeline, the lifeline does not clearly mark the direction of travel to the surface and therefore does
not satisfy the standard.
According to the Secretary, the lifeline was designed to be a tactile device, not a visual
aid, and cones used as a visual device are not sufficient to satisfy the standard. Congress
intended for the cones on the lifeline to be used in addition to visual aids such as hanging
reflectors and not as a replacement for those reflectors. Even ignoring this intent, the use of the
cones as a visual aid is confusing and difficult due to the orientation of the cones. The lifeline
and cones were meant to supplement visual aids, and even if they were not, this particular lifeline
would not satisfy the standard as a visual aid. Therefore, the Secretary asserts that the lifeline
and its attached cones did not satisfy the safety standard.
Furthermore, the Secretary argues that the violation was S&S. Respondent violated
section 75.380(d)(2), which contributed to the discrete safety hazard of delaying miners during
an evacuation, which could reasonably contribute to a serious injury such as smoke inhalation in
the event of an evacuation.
The violation of section 75.380(d)(2) was the result of high negligence and an
unwarrantable failure to comply with a mandatory safety standard on the part of the Respondent
based upon the entire circumstances, argues the Secretary. The violation was obvious and
extensive, Respondent was on notice that greater efforts were necessary for compliance with this
standard, supervisors were involved in this violation, and the lack of a clearly marked escapeway
created a highly dangerous situation. The combination of these factors results in the Secretary’s
determination that the violative condition was the result of both high negligence and an
unwarrantable failure.
b. Twentymile Coal Co.
Twentymile contends that no violation of section 75.380(d)(2) existed because the
escapeway was clearly marked in compliance with 75.380(d)(2). The lifeline was in the
escapeway, had visible markers, and had cones to indicate direction. The escapeway is marked
by the lifeline, which shows the route of travel. These elements combine to clearly mark the
escapeway and satisfy the standard.
Twentymile argues that compliance with section 75.380(d)(7) necessarily satisfies the
general requirements of section 75.380(d)(2) and this relationship was interpreted in my previous
Twentymile decision. Respondent argues that general statutory or regulatory provisions should
be subordinate to specific related provisions. Therefore, 75.380(d)(2), a general provision,
should be subordinate to section 75.380(d)(7), which is a specific statutory provision. The result
of this subordination is that Twentymile did not violate section 75.380(d)(2).
Twentymile then explains that the lifeline met the specific directional route requirements
of section 75.380(d)(7). Respondent argues that the lifeline and the cones were “clearly visible,”
even with missing reflective material. If there were no smoke present, the lifeline and cones
would be plainly visible, and if there were smoke in the area then neither the reflectors nor the
lifeline and cones would be visible. Therefore, the presence or absence of reflective material
does not determine whether an escapeway marking is clearly visible or not. Both the lifeline and
the cones in the present case were therefore “clearly visible.” The lifeline satisfies the route
requirement of the standard and the cones satisfy the directional requirement of the standard.
The lifeline and cones are sufficient to satisfy the specific directional route requirements of
section 75.380(d)(7), just as the lifeline in Twentymile Coal Co. did; therefore there was no
violation of section 75.380(d)(2).
Twentymile further argues that if a violation existed, it was not properly designated as
S&S because the inspector stated that harm “could occur,” which is not sufficient to support an
S&S finding.
Also, Twentymile argues that the violative condition did not result from an unwarrantable
failure, due to the Secretary’s failure to meet her burden. The Secretary bears the burden of
proving an unwarrantable failure. Considering all of the circumstances, the Secretary did not
show aggravated conduct on behalf of Respondent and therefore did not meet its burden. The
unwarrantable designation was not appropriate because the violation was not readily identifiable
by management, argues Twentymile. The lifeline clearly marked the escapeway and, therefore,
the absence of reflectors would not constitute an obvious hazard to management. Furthermore,
the length of time that the violation existed was limited to the time that the longwall was
operating. An unwarrantable failure designation is not supported by the Secretary’s evidence or
the facts and is therefore inappropriate.
3. Analysis of the Issues
It is not disputed that there were no reflective markers attached to the roof to indicate the
direction of travel out of the primary escapeway in the event of an emergency. The issue is
whether the lifeline that was present satisfied the requirements of the cited safety standard. In
Twentymile Coal Co., I determined that a lifeline can satisfy the requirements of section
75.380(d)(2). 32 FMSHRC at 640. My decision on that issue is incorporated herein by
reference. 32 FMSHRC 638-42. Based on that decision, I find that an analysis must be
undertaken to determine whether the particular lifeline in question in this case clearly marked the
primary escapeway to show the route and direction of travel. Based on the evidence presented at
the hearing, I find that the lifeline did not do so.
I credit the testimony of Inspector Gore as to the conditions he found. There was only
one reflector for a distance of about 4,800 feet in the primary escapeway for the 22 Right
longwall section. Inspector Gore also credibly testified that the lifeline in the cited area was
down, mostly in mud, on the mine floor. The cones and the reflective material on the lifeline
were either missing or covered in mud for much of this distance. (Tr. 23, 29-30). In some areas,
the lifeline was hanging below eye level about three to four feet off the mine floor, while in other
areas the lifeline was hanging properly. I find that the Secretary established a violation because
there were no clearly visible reflectors, markings, or other objects that would direct miners out of
the mine along the cited escapeway in the event of an emergency.
I also find that the Secretary established that the violation was S&S. The discrete safety
hazard associated with having a significant portion of an escapeway insufficiently marked to
show the direction of travel is the risk that miners would not be able to escape quickly in an
emergency, resulting in an increased risk of injury due to a delay in evacuation. Cumberland
Resources, 33 FMSHRC 2357 at 2364 (Oct. 5, 2011). The escapeway in the cited area was not
straight or clearly marked, with the result that miners could become lost or confused. The
resulting delays in escape are reasonably likely to contribute to a serious injury such as smoke
inhalation. It is also reasonably likely that, in the absence of a clearly marked escapeway, miners
working in the section would follow each other so that all 23 miners on the section would be
delayed.
I also affirm Inspector Gore’s negligence and unwarrantable failure determinations. The
violation was extensive and obvious. Inspector Gore noticed the violation within minutes of
arriving in the entry and the lack of marking on the roof extended for up to a mile. Inspector
Gore previously talked to mine management about problems he observed concerning escapeways
and improperly installed lifelines. Even assuming that Twentymile concluded that a lifeline can
clearly mark an escapeway to show the route and direction of travel to the surface, it should have
been clear to anyone that the lifeline in question could not possibly perform this function.
Examiners walked this route on a weekly basis, yet it does not appear that the condition was
reported in the weekly exam book. A serious safety hazard was created as a result of conditions
cited by the inspector. Although the violation was not the result of Twentymile’s “reckless
disregard,” or “intentional misconduct,” Twentymile demonstrated a “serious lack of reasonable
care” which constituted aggravated conduct constituting more than ordinary negligence. A
penalty of $18,000.00 is appropriate for this violation.
B. Citation No. 7291716; WEST 2009-241A
On September 3, 2008, MSHA Inspector Gore issued Citation No. 7291716 under section
104(a) of the Mine Act for an alleged violation of 30 C.F.R. § 75.380(d)(7)(iv).2 The citation
alleges the following:
The continuous lifeline located in 17 Left #2 entry, crosscut 48+70
was not located in such a manner for miners to use effectively to
escape. A 1 inch water hose ran underneath of the lifeline
restricting it from being pulled down.
(Ex. G-4). Inspector Gore determined that an injury resulting in lost workdays or restricted duty
was reasonably likely to occur, that the violation was S&S, that six persons would be affected,
and that the violation was the result of moderate negligence on the part of the operator. The
Secretary has proposed a penalty of $2,106.00 for this alleged violation.
1. Summary of Testimony
Inspector Gore testified that he inspected Foidel Creek Mine on September 3, 2008. (Tr.
75). He was accompanied on his inspection by Diane Ponikvar, Compliance Manager for
Twentymile. (Tr. 75). Inspector Gore issued Citation No. 7291716 because he observed that a
water line that supplies water to the seal pump was attached to the roof under and perpendicular
to the lifeline, rendering the lifeline inaccessible. (Tr. 76). The roof in this area was ten feet
high, which is a typical roof height at Foidel Creek Mine. Id. The lifeline was attached to the
roof with a break-away, which is a plastic fastener designed to break when a miner pulls the
lifeline. (Tr. 77). The water line was attached with cable fasteners. (Tr. 77). When a miner
using the lifeline reaches the water line, he will not be able to pull down the lifeline because the
water line will prevent him from doing so. Id. According to Inspector Gore, a miner would have
to let go of the lifeline and would likely not be able to reach it on the other side of the water line
because it was ten feet above the mine floor. (Tr. 77-78). Inspector Gore testified that a miner
using the lifeline would be carrying 50 pounds of gear and may be wearing a rescuer, making it
difficult for him to jump and grab the lifeline. (Tr. 78). Inspector Gore testified that to correct
the violation, someone had to get a step ladder, cut the lifeline, and then retie it under the water
line. (Tr. 78, 83). Inspector Gore did not mention a ladder in his notes from that day. (Tr. 88).
Inspector Gore issued the citation as S&S because the condition would hinder or delay a
miner’s exit from the mine in an emergency. (Tr. 82). A miner could be injured trying to get the
lifeline down or the delay could cause the miner to be exposed to hazardous conditions. Id.
2
Section 75.380(d)(7)(iv) provides that “[e]ach escapeway shall be provided with a
continuous, durable directional lifeline or equivalent device that shall be located in such a
manner for miners to use effectively to escape.”
Miners can grab the lifeline at various locations where tags hang down from the line so the miner
can pull it down, but those tags were not present in this area. (Tr. 84).
Inspector Gore conceded that the cited escapeway was actually in the 23 Right section
rather than in the 17 Left as stated in the citation. As a consequence, the affected area was a
continuous miner section, not a longwall mining section. (Tr. 85-87). Inspector Gore did not
know why there would be a seal pump on a continuous miner section and did not ask who
installed the water line. Id.
Dianna Ponikvar testified on behalf of the mine. Ponikvar works at Twentymile as
compliance manager and supervises a compliance crew to check for possible violative
conditions. (Tr. 90). Ponikvar has extensive mining experience and holds certifications as a
mine foreman and mine examiner, among others. (Tr. 91).
Ponikvar testified that there is a difference between a water line and a water hose and
that she saw a water hose under the lifeline when Inspector Gore issued his citation. (Tr. 92).
Ponikvar testified that the hose was sagging under the lifeline. (Tr. 93). Ponikvar is 5 feet 5
inches tall and was able to reach the water hose without a ladder or jumping. (Tr. 93-94).
Ponikvar testified that she abated the citation by disconnecting the water hose. (Tr. 93).
Ponikvar testified that all the lifelines are hooked with a tag line that the miner pulls to
dislodge the lifeline and make it drop down. (Tr. 94). Furthermore, she asserted that, in an
emergency, a miner in this area would still have easy access to the lifeline by reaching around
the hose to grab it. (Tr. 94-95). According to Ponikvar, a miner would not be delayed by having
to reach around the hose. (Tr. 94). Ponikvar also testified that the hose and lifeline were both
next to the rib and that the lifeline was high enough that equipment moving through the area
would not catch on it.
2. Brief Summary of the Parties’ Arguments
a. Secretary of Labor
The Secretary argues that the Respondent violated section 75.380(d)(7)(iv) by impeding
access to a lifeline in a primary escapeway by installing a water line underneath the lifeline. At a
minimum, the Secretary asserts that the presence of the water line would require a miner to let go
of the lifeline and search for it on the other side of the water line, which would constitute a
violation. At worst, however, the miner would have no way to reach the lifeline after letting go
of it because the lifeline was secured to the ceiling. In either scenario, the presence of the water
line could impede the quick escape of a miner during an evacuation and Respondent, therefore,
violated section 75.380(d)(7)(iv).
Also, the Secretary argues that the violation was S&S. Respondent violated section
75.380(d)(7)(iv), which contributed to the discrete safety hazard of miners not being able to
escape during an emergency, which is reasonably likely to contribute to a reasonably serious
injury. Therefore, Citation No. 7291716 was S&S.
The violation was due to at least moderate negligence, argues the Secretary. The water
line running underneath the lifeline was obvious. An employee of Respondent intentionally
hung the water line and he should have been trained to properly install the water line above the
lifeline. No mitigating circumstances explaining the violative condition existed at the time of the
trial or the issuing of the citation. Respondent was moderately negligent in allowing the water
line to be installed underneath the lifeline and not correcting it immediately.
b. Twentymile Coal Co.
Twentymile contends that there was no violation of section 75.380(d)(7) because the
water hose under the lifeline was at a height that it could readily be reached and a miner could
grab the lifeline on the other side of the hose. The lifeline was continuous, crossed in only one
section by the water hose. Grabbing the lifeline on the other side of the hose would not delay
effective escape by a miner. Therefore, no violation of the cited standard existed.
Twentymile further argues that if a violation is found, the S&S designation was
inappropriate. A lifeline violation is not automatically designated as S&S; the Secretary must
show that the actual hazard created would be reasonably likely to result in a reasonably serious
injury. The Secretary did not meet this burden. Therefore, if the violation is found, it should not
be S&S.
3. Analysis of the Issues
I find that Twentymile impeded access to the lifeline in the primary escapeway in the 23
Right section. I credit the testimony of Inspector Gore that a “one-inch water hose had been
hung from the mine roof preventing it from coming down.” (Tr. 79; Ex. G-5, p. 8). The water
hose was about six inches below the roof at the cited location and was attached to the roof with
cable fasteners. (Tr. 88). The lifeline was at least that high where it crossed over the hose.
Furthermore, the placement of the lifeline above the water hose could require miners to let go of
the lifeline and then find it again on the other side of the water hose. Given the 10-foot height of
the mine roof, it may be difficult for miners to locate the lifeline on the other side of the hose and
then pull it down, especially if the conditions are perilous and miners must exit the mine as
quickly as possible.3 I find that the presence of the water hose below the lifeline could
reasonably be expected to prevent miners from having continuous access to the lifeline, as
required by the safety standard. The operator is required to provide a “continuous” lifeline that
is “located in such a manner for miners to use effectively to escape.” 30 C.F.R. §
75.380(d)(7)(iv). The presence of the hose below the lifeline violated this requirement. I relied
on the testimony of Inspector Gore as to the conditions he observed in reaching this conclusion.
Whether the violation was S&S is a closer question. As stated above, the Commission
and court have observed that an experienced MSHA inspector’s opinion that a violation is S&S
3
If a miner saw the water line before reaching it, he may also be able to yank on the
lifeline which could loosen it from the break-away tie on the other side of the water hose so that
he could easily grab it. I cannot assume, however, that a miner could easily do this during an
emergency.
is entitled to substantial weight. Harland Cumberland Coal Co., 20 FMSHRC at 1278-79; Buck
Creek Coal Inc., 52 F.3d at 135. I find that the evidence establishes that it is reasonably likely
that a miner trying to exit the mine using the cited escapeway would have to let go of the lifeline
to get around the water hose. In an emergency situation, miners may not be able to quickly
locate and pull down the lifeline on the other side of the hose. Any delay in being able to escape
during an emergency is reasonably likely to lead to an injury of a reasonably serious nature. The
Secretary is not required to establish that it is more probable than not that an injury will result
from a violation. U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996). I find that the
Secretary established the S&S nature of the violation.
The Secretary established that Twentymile’s negligence was moderate. A penalty of
$2,200.00 is appropriate for this violation.
C. Citation No. 7621434; WEST 2008-879
On June 6, 2007, MSHA Inspector Phil Gibson issued Citation No. 7621434 under
section 104(a) of the Mine Act for an alleged violation of 30 C.F.R. § 75.380(d)(7)(i).4 The
citation alleges the following:
The alternative escapeway in No. 1 entry of 19 Right,
tailgate entry for 20 Right active longwall section, was
provided with a directional lifeline that was installed near
the right coal rib if a miner were going outby but it was not
maintained throughout the entire length of this alternate
escapeway. The inspector observed that the lifeline was
broken in two just outby No. 7+00 crosscut and was lying
on the mine floor for about 200 feet. This condition creates
a potential delay of rapidly escaping in the event of an
emergency.
(Ex. G-7). Inspector Gibson determined that an injury resulting in lost workdays or restricted
duty was reasonably likely to occur, that the violation was S&S, that nine persons would be
affected, and that the violation was the result of moderate negligence on the part of the operator.
The Secretary has proposed a penalty of $ 3,996.00 for this alleged violation.
1. Summary of Testimony
Inspector Phil Gibson testified on behalf of the Secretary. Inspector Gibson works for
MSHA as a coal mine inspector, a job he has held for 35 years. (Tr. 105). Prior to becoming an
MSHA inspector, Gibson worked in the mine industry for six years as a general laborer,
mechanic, and fire boss. (Tr. 105-06). He holds a certification as a fire boss. (Tr. 106).
Inspector Gibson was unable to review his notes concerning the citation at issue because his
4
Section 75.380(d)(7)(i) provides, in part, that each escapeway shall be provided with a
continuous directional lifeline “[i]nstalled and maintained throughout the entire length” of the
escapeway.
notes were lost in a fire in November 2007. (Tr. 107). Prior to this hearing, Inspector Gibson
visited the mine to ask questions and refresh his recollection of the events. (Tr. 119).
On June 6, 2007, Inspector Gibson wrote Citation 7621434 because a lifeline installed in
an alternate escapeway was not continuous. (Tr. 108). Inspector Gibson testified that in June of
2007, Twentymile was mining right to left on the map marked Gov. Ex. 14. (Tr. 109). The
parties stipulated that the longwall at this time was between the 47 Crosscut and the headgate and
the 62 Crosscut and the headgate. (Tr. 104).
Inspector Gibson testified that the escapeway on the map changed. (Tr. 110). An
escapeway might change due to a roof fall or standing water. Id. At the time there were two
potential exits, the first out of the 18 Right air shaft and the second out of the 6 Main North air
shaft. (Tr. 110-11). The 6 Main North air shaft was the closest exit to where Twentymile was
mining. (Tr. 111). 20 Right had three entries that lead to the 18 Right air shaft. Id. Entry 3 was
a conveyor belt entry, blocked with a conveyor belt; Entry 2 was blocked by a roof fall; and
Entry 1 had standing water in it, preventing a miner from traveling through the entry. (Tr. 112).
Inspector Gibson recalled having conversations with Dennis Bouwens about water issues in
Entry 1 and Entry 2. (Tr. 124).
Inspector Gibson testified that on June 6, 2007, the alternate escapeway was in Number 1
Entry of 19 Right, on the tailgate side. (Tr. 113). Inspector Gibson testified that if this were not
the escapeway at that time, he would not have issued the citation. (Tr. 114). Further, Inspector
Gibson testified that no one told him this was not the escapeway. The entry was marked with a
lifeline with directional cones oriented in the correct direction. Inspector Gibson testified that
the tailgate is not the preferred entry for an escapeway because it has return air and is subjected
to the most roof stresses, but there is nothing that prevents the tailgate being used as an
escapeway. (Tr. 120, 124).
Inspector Gibson testified that Number 1 Entry of 19 Right would have been the
escapeway when 19 Right was first developed and was a continuous miner section. (Tr. 120-21).
It is generally Twentymile’s practice not to remove the lifeline after an entry ceases to be an
escapeway. (Tr. 121).
According to Inspector Gibson, the lifeline was broken for a distance of roughly two
hundred feet, and any miners using the lifeline would be delayed in searching for the other end.
(Tr. 116). This delay could result in injuries if there were a fire in the area or if a miner’s
equipment became loose during the search. Id. Inspector Gibson determined that nine people
would have been affected because that was the number of people on the section. (Tr. 117). He
wrote the citation as S&S because, in an emergency, a broken lifeline is a hazard. Id. Inspector
Gibson determined that the citation was due to moderate negligence because the operator had
been cited before and there was an attempt to provide a lifeline but it was not maintained. Id.
Inspector Gibson testified that the condition was obvious. The citation was abated by tying an
additional length of lifeline to the existing lifeline. (Tr. 118).
Kevin Copeland testified on behalf of Twentymile. Copeland works at Twentymile as a
draftsman. (Tr. 126). He has been a draftsman for 32 years and creates all of the mine maps. Id.
Copeland searched for, but could not find, the maps from June of 2007. (Tr. 126-27). He did
find maps from prior to and after June 2007. (Tr. 127). MSHA requires maps to be on hand in
case there is an emergency. (Tr. 127-28). If there is a change to the escapeways, it is marked on
the map in the foreman’s room immediately. (Tr. 128).
On a map of the mine from April 2007, marked as Res. Ex. 1-A, Copeland marked the
alternate escapeway as being in Number 2 Entry. (Tr. 132). On a map of the mine from July
2007, marked as Res. Ex. 1-B, Copeland marked that the primary escapeway was in Number 2
Entry. (Tr. 133). There are no markers on either map showing the tailgate being used as an
escapeway for any purpose in either April or July of 2007. (Tr. 134).
Copeland testified that, based upon the maps from before and after June 2007, he
believes that the alternate escapeway was the No. 2 entry in June 2007 but has no personal
recollection from June 6, 2007. (Tr. 135). Any temporary changes, such as a change for two
days caused by a roof fall, would not be reflected on these maps. (Tr. 136).
Bouwens testified on behalf of Twentymile that in June of 2007 the tailgate entry in 19
Right was not an escapeway for the longwall. (Tr. 139). That entry would have been an
escapeway during development. Id. If the entry were used as an escapeway during
development, the lifeline would have been installed then. (Tr. 140). The lifeline would not have
been removed after the entry ceased to be used as an escapeway so that if they needed to use that
entry as an escapeway for the longwall the lifeline would already be there. (Tr. 141).
Bouwens testified that he does not know of any event in April, May, or June of 2007 that
would have caused Twentymile to use the 1 Entry of the tailgate as an escapeway. (Tr. 140).
Specifically, Bouwens testified that he does not remember there being any roof falls or water
accumulations that would have required Twentymile to use Number 1 Entry of the tailgate as an
escapeway on June 6, 2007. (Tr. 140). Bouwens conceded there probably was water in Number
1 Entry of 20 Right at some point, but could not say when. (Tr. 142). If all the entries on the
headgate were not travelable, miners exiting the mine would have to use the tailgate. (Tr. 143).
If all the headgate entries were blocked, Twentymile would designate a new escapeway. (Tr.
144).
2. Summary of the Parties’ Arguments
a. Secretary of Labor
The Secretary argues first that the entry cited (No. 1 Entry of 19 Right) by Inspector
Gibson was an escapeway due to the fact that Respondent provided no credible evidence to rebut
Inspector Gibson’s testimony and the presence of a lifeline. The maps provided by Respondent
omit information about escapeways for the month of June, and do not show any temporary
escapeways. In addition, none of Respondent’s witnesses was sure that the cited entry was not
an escapeway; indeed they conceded that if all other entries were blocked, the cited entry could
be used as an escapeway.
Furthermore, according to the Secretary’s argument, the presence of the lifeline in the
entry made it an escapeway. There can be more than the two required escapeways.
Respondent’s witnesses admitted that under certain circumstances the cited entry may be used as
an escapeway. Because the cited entry could have been used as an escapeway and it contained a
lifeline, which is a characteristic associated with escapeways, the Secretary contends that she
proved by a preponderance of the evidence that the No. 1 Entry of 19 Right was an escapeway.
Due to the broken lifeline in No. 1 Entry of 19 Right, the Secretary argues that
Respondent violated 30 C.F.R. §75.380(d)(7)(i). Respondent offers no evidence to rebut the fact
that the lifeline was broken and therefore in violation of the mandatory safety standard.
The Secretary also asserts that Citation No. 7621434 was properly designated as S&S.
Respondent violated section 75.380(d)(7)(i ), which contributed to the discrete safety hazard of
miners not being able to escape during an emergency, which is reasonably likely to contribute to
a reasonably serious injury. Therefore, Citation No. 7621434 was S&S. Finally, the Secretary
argues that Respondent’s violation of 30 C.F.R. §75.380(d)(7)(i) was due to moderate negligence
because the broken lifeline was obvious, was clearly a hazard, and Respondent had been cited for
problems with other lifelines in the past.
b. Twentymile Coal Co.
Twentymile contends that no violation of the standard existed because the cited area was
not an escapeway and therefore no lifeline was necessary. The lifeline was present because the
No. 1 entry had been used as an escapeway during development mining. Although no maps exist
for that time, the mine’s witnesses testified that the escapeway would not have been in the
tailgate. There was a lifeline in that entry because it is mine policy not to remove lifelines from
entries when they cease to be escapeways. The witness testimony supports the argument that the
No. 1 Entry of 19 Right was not an escapeway and, therefore, Twentymile did not fall under
section 75.380(d). Twentymile also states that the designation of the citation as S&S as well as
the appropriateness of the penalty are at issue.
3. Analysis of the Issues
I find that the citation must be vacated. It is not at all clear that the No. 1 entry was an
escapeway in June 2007. The Secretary bears the burden of proof. The passage of time and the
lack of complete documentation make it difficult to determine whether there was a violation of
the safety standard. The testimony of Copeland tends to show that the alternate escapeway was
in the No. 2 entry at the time of the inspection. Inspector Gibson admitted that Twentymile does
not necessarily remove the lifeline when an entry no longer functions as an escapeway. I also
recognize that, in many instances, the presence of a lifeline in an entry would make that entry a
de facto escapeway because miners trying to escape the area might well travel down the entry
when attempting to leave the mine because of the presence of the lifeline. In such an instance,
the lifeline would need to be properly installed along its entire length. The evidence is too
uncertain in this instance to affirm the citation on that basis, however. I find that the evidence
concerning this citation is too vague and unreliable to affirm the violation. Consequently,
Citation No. 7621434 is VACATED.
III. SETTLED CITATIONS
A number of the citations and orders at issue in these cases previously settled. By order
dated December 6, 2010, I approved a settlement in the amount of $11,563.00 in WEST 2008-
879 for six citations and orders. By order dated September 24, 2010, I approved a settlement in
the amount of $103,496.00 in WEST 2009-081 for 13 citations and orders. I ordered
Twentymile to pay these penalties within 40 days of my orders approving partial settlement.
At the hearing, the parties agreed to settle Citation No. 7291709 in WEST 2009-081 by
deleting the S&S designation and reducing the penalty to $2,000.00. The parties also agreed to
settle Citation No. 7622549 in WEST 2009-241A by deleting the S&S designation and reducing
the penalty to $2,000.00 and to settle Citation No. 7622546 in that same docket for the original
proposed penalty of $3,405.00.
IV. APPROPRIATE CIVIL PENALTIES
Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. I have considered the Assessed Violation History Reports, which are
not disputed by Twentymile. (Ex. G-8). At all pertinent times, Twentymile was a large mine
operator. The violations were abated in good faith. The penalties assessed in this decision will
not have an adverse effect on Twentymile’s ability to continue in business. The gravity and
negligence findings are set forth above.
V. ORDER
Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:
Citation/Order No. 30 C.F.R. § Penalty
WEST 2008-879
7621434 75.380(d)(7)(i) VACATED
WEST 2009-081
7622766 75.380(d)(2) $18,000.00
7291709 (settled) 75.380(d)(7)(iii) 2,000.00
WEST 2009-241A
7291716 75.380(d)(7)(iv) 2,200.00
7622546 (settled) 75.380(d)(7)(iv) 3,405.00
7622549 (settled) 75.380(d)(7)(i) 2,000.00
TOTAL PENALTY $27,605.00
For the reasons set forth above, the citations are AFFIRMED or VACATED, as set forth
in this decision. The Twentymile Coal Company is ORDERED TO PAY the Secretary of
Labor the sum of $27,605.00 within 30 days of the date of this decision.5
/s/ Richard W. Manning
Richard W. Manning
Administrative Law Judge
5
Payment should be sent to the Mine Safety and Health Administration, U.S. Department
of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.
Distribution:
Amanda K. Slater, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 800, Denver, Colorado 80202
R. Henry Moore, Esq., Jackson Kelly, PLLC, 401 Liberty Avenue, Pittsburgh, Pennsylvania
15222
RWM
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