Secretary of Labor v. Twentymile Coal Company

Plain-English summary

The Commission reinstated an order involving an on-shift examination and sent the case back to determine whether Twentymile's examination was inadequate. Judge David F. Barbour found that extensive coal and dry coal-fines accumulations were present along the operating belt when the examination occurred but were not reported. He held the violation S&S because the accumulations contacted the belt and rollers, creating a reasonably likely fire hazard capable of causing serious or fatal injuries. The Judge also found unwarrantable failure and high negligence because the condition was obvious, the company had a history of inadequate examinations, and the examiner ignored the hazard. He assessed a $4,000 penalty for Order No. 8460435 and also directed payment of $15,262 in previously assessed penalties.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.362(b)
• Outcome: Order No. 8460435 was affirmed as S&S and unwarrantable, with a $4,000 penalty in addition to $15,262 previously assessed.
• Key point: An on-shift belt examination is inadequate when obvious, extensive combustible accumulations are present but omitted from the examination record.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue, NW, Suite 520N

WASHINGTON, DC 20004

TELEPHONE:
202-434-9953 / FAX: 202-434-9949

SECRETARY OF LABOR,                               :     CIVIL
PENALTY PROCEEDINGS:

MINE SAFETY AND HEALTH                       :

ADMINISTRATION, (MSHA)                         :     Docket
No. WEST 2009-1323

Petitioner,                                                   
:     A.C. No. 05-03836-192254                                                    

:

:     Docket
No. WEST 2010-38

v.                                                              :   A.C. No.
05-03836-195088       

:  

:   Docket No. WEST 2010-578

:   A.C. No. 05-03836-207148

:  

TWENTYMILE COAL COMPANY,          :  Mine: Foidel Creek

Respondent.                 :

:    

:

Before: Judge Barbour

DECISION ON
REMAND

On August 26, 2014, the Commission reversed in
part the court’s underlying decision

(34 FMSHRC 2138 (August 2012)). The Commission found that in
Docket No. WEST 2010-578-M, the court erred factually with regard to Order No.
8460435.[1] The Commission held that
the subject on-shift examination was conducted during a production shift. 36
FMSHRC (Aug. 2014) (slip op. 2-5). The Commission therefore reinstated the
order and remanded the matter to the court to determine whether the examination
was inadequate as alleged and, if so, whether the violation was a significant
and substantial contribution to a mine safety hazard (“S&S”) and the result
of an unwarrantable failure by Twentymile Coal Company (“Twentymile”). Slip op.
at 5.

THE
ORDER

Order No. 8460435 states:

An inadequate on-shift
examination was conducted

for the 8 Main North
belt conveyor. The latest

beltline examination was
conducted between 07:30

a.m. and 08:00 a.m. The
hazards associated with

this order were not
entered in the record books

for either 8/10/09 [or]
8/11/09. The hazards of

the coal accumulations
are in contact with

the return belt, as well as dried
coal fines on the

hardware and belt roller
clusters. The

conditions were cited in
citation # 8460434

issued on 8/11/09. The
violation resulted from

unwarrantable failure
based on the extensive

accumulations which were
obvious to anyone

concerned with safety.

Gov’t Exh. 1.

The order was issued on August 11, 2009, after
Mine Safety and Health Administration Inspector Randy Gunderson observed
accumulations of coal and coal fines along the 8 Main North Belt at Twentymile’s
Foidel Creek Mine.[2] Tr. 291-292. Gunderson’s
description of the accumulations is set forth in the court’s underlying
decision and is incorporated by reference into this remand decision. 34 FMSHRC
at 2168. Significantly, the accumulations were extensive, so much so that there
were places where black accumulations were contacting the bottom belt of the
conveyor. Id. There also were dry coal fines on the belt structure and
on the belt rollers. Id. In the inspector’s opinion, the accumulations
were “obvious.” Id. (citing Tr. 300). Further, and as explained
in the underlying decision:

Gunderson thought it likely that the

accumulations had come
into existence at

a “progressive” rate.
Tr. 300. “It could be a

week, a couple of days. It
could be a

month.” Id. He
based his belief on “[j]ust

experience.” Id.

34 FMSHRC at 2169.

Equally important, Gunderson testified that on
August 10, he cited the company for other extensive accumulations of coal on
the same section. In addition, he cited the company for extensive accumulations
of coal fines in a crosscut. 34 FMSHRC at 2169. He discussed the August 10
citations with company management officials. Id.

After finding and citing the extensive
accumulations on August 11, Gunderson also cited the company for violating
section 75.362(b), the standard requiring on-shift examinations for hazardous
conditions along belt conveyor haulageways. Gunderson believed the on-shift
examination on August 11 was inadequate in that the extensive accumulations
Gunderson found on August 10 and August 11 were not reported by the on-shift
examiner and recorded in the examination book. In Guderson’s opinion, the
company’s failure to adequately conduct the on-shift examination was an S&S
violation of the standard and was the result of the company’s unwarrantable
failure to comply. Gov’t Exh. 1.

THE
VIOLATION

In reversing the court, the Commission found
that Twentymile’s August 11 “early morning examination” (slip op. 4) was
conducted during the “graveyard shift,” that coal was produced during that
shift, and that the on-shift examination was required to be adequate. Slip op.

5. In considering the question on remand, the court concludes that the examination
   was in fact not adequate and that Twentymile violated section 75.362(b). The court
   reaches this conclusion because it finds logical and persuasive the testimony
   of Gunderson that the extensive accumulations came into existence at a
   “progressive” rate. Tr. 300. Gunderson could not rule out that the
   accumulations he observed along the belt on August 11 developed following the
   subject on-shift examination, however, he thought it unlikely. Id. In
   the court’s view the accumulations were so extensive, the only reasonable
   conclusion to draw from the evidence is that for the most part they were
   present when the on-shift examination was conducted during the grave yard
   shift. There is in fact nothing in the record to suggest a plausible reason for
   the extensive accumulations other than a multi-shift failure to note them and
   clean them up.

Guderson speculated that the examiner did not
report the accumulations because he “wasn’t looking hard enough. ” Tr. 316. The
accumulations were “obvious” (Tr. 300) and a less generous but more reasonable
conclusion to draw from the testimony is that the on-shift examiner, who
traveled the belt line when the accumulations were present, in fact, saw the
accumulations, but failed to report their presence. The court therefore finds
that the presence of the extensive accumulations during the examination and the
failure to mention the hazard in the on-shift examination report establishes
that the on-shift examination was indeed inadequate and that the violation
occurred as alleged.

S&S
and GRAVITY  

The court described the legal frameworks for
determining the S&S nature of a violation and the gravity of a violation in
its underlying decision and it incorporates the frameworks here. 34 FMSHRC at
2157-2158. Regarding the S&S nature of the violation, there was a violation
of section 75.362(b) thus satisfying the first Mathies criterion. The
court further finds that the other Mathies criteria have been met. The
violation contributed to a discrete safety hazard in that failure to report the
accumulations meant the hazard of a fire along the beltline was not eliminated.
Obviously, the hazard posed serious dangers to miners working or traveling both
outby and inby the accumulations -- dangers from flames if the accumulations
ignited and from smoke and fumes caused by any ignition. Moreover, the hazard
was reasonably likely to come to fruition. The court accepts Gunderson’s
testimony the accumulations included dry coal fines, which “catch fire a lot
easier than wet or damp coal fines” (Tr. 297) and that some of the
accumulations were actually in contact with potential ignition sources, the
return belt and the belt rollers. Gov’t Exh. 2; Tr. 295, 296, 298. That the
resulting injuries in the event of an ignition would likely have been
reasonably serious, indeed even fatal, is beyond dispute. Thus, the violation
was S&S.

The violation also was very serious. The failure
to report the accumulation meant that the hazard it posed continued. It easily
could have lead to one or more miners being injured or killed.

UNWARRANTABLE FAILURE AND
NEGLIGENCE

The term “unwarrantable failure” is defined as
aggravated conduct constituting more than ordinary negligence. Emery Mining
Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). It is characterized by such conduct
as “reckless disregard,” “intentional misconduct,” “indifference,” or “serious
lack of reasonable care.” Id. at 2004-04; Rochester & Pittsburgh
Coal Co., 13 FMSHRC at 193-194. Aggravating factors include the length of
time a violation has existed, the extent of the violative condition, whether
the operator was on notice that greater efforts were necessary for compliance,
the operator’s efforts in abating the violative condition, whether the
violation posed a high degree of danger and the operator’s knowledge of the
existence of the violation. See Consolidation Coal Co., 22 FMSHRC
340-353 (March 2000); Mullins & Sons Coal Co., 16 FMSHRC 192,195
(February 1994); Windsor Coal Co., 21 FMSHRC 997, 1000 (September 1999);
Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001). The
circumstances of each case must be examined to determine if an operator’s
conduct is aggravated, or whether mitigating circumstances exist. Consol,
22 FMSHRC at 353.

The court finds that the violation was the
result of Twentymile’s unwarrantable failure to comply with section 75.362(b)
and that in failing to comply, Twentymile was highly negligent.

The record establishes that Twentymile was on notice it had
a problem with inadequate examinations. I accept Gunderson’s unrefuted
testimony that Twentymile was cited four times in the previous 15 months for
inadequate on-shift examinations and 16 times for inadequate pre-shift
examinations. Tr. 332, 344. Gunderson stated that in his opinion the examiners
were not “doing a very good job.” Tr. 323. In the case of the subject
violation, he understated their lack of care. The accumulations were, as
Gunderson testified, obvious and extensive. Tr. 300, 324. They were virtually
staring the examiner in the face. Yet, he ignored them. The result was that his
fellow miners faced a high degree of danger. In failing to comply with section
75.362(b), the court finds the examiner and hence the company exhibited the
degree of indifference and the serous lack of reasonable care that is the mark
of unwarrantable failure. Moreover, the examiner’s lack of reasonable care
equates to a high degree of negligence on the company’s part.

CIVIL
PENALTY CRITERIA

The court set forth its findings with regard to
the criteria of history of previous violations, size of the operator, ability
to continue in business and good faith abatement in its underlying decision,
and it incorporates those findings herein. 34 FMSHRC at 2184.

CIVIL
PENALTY ASSESSMENT

ORDER NO.  
DATE           30 CFR §        PROPOSED
PENLTY        ASSESSMEMT

8460435       8/11/09    75.362(b)    $4,000                                         $4,000

The violation was very serious and the company’s
negligence was high. These findings and the criteria referenced above warrant
the assessment of the penalty proposed by the Secretary.

ORDER

If it has not already paid the civil penalties
previously assessed (34 FMSHRC at 2187), within 30 days of the date of this
decision on remand, Twentymile IS ORDERED to pay such civil penalties in
the amount of $15,262. Within the same 30 days, Twentymile IS ORDERED to
pay the civil penalty of $4,000 assessed above.

Further, if he has not already done so, within
30 days of the date of this decision on remand, the Secretary IS ORDERED
to modify and vacate the citations referenced for modification and vacation in
the court’s initial decision.  

Upon payment of the civil penalties and upon
modification and vacation of the citations, this proceeding is DISMISSED.

/s/
David F Barbour

David
F. Barbour

Administrative
Law Judge

Distribution: (Certified Mail)

Melanie
Garris, U.S. Department of Labor, Office of
Civil Penalty Compliance, MSHA, 1100 Wilson Blvd., 25th Floor, Arlington, VA  22209-3939

W.
Christian Schumann, Esq.; Jerald Feingold,
Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson Blvd., Room
2220, Arlington, VA  22209-2296

Amanda Slater, Esq.; U.S. Department of Labor, Office of the Solicitor, MSHA
Backlog, 1244 Speer Blvd., Suite 216, Denver, CO  80204

Christopher G. Peterson, Esq.; Page Jackson, Esq., Jackson Kelly,
PLLC, 1099 18th Street, Suite 2150, Denver, CO  80202

R.
Henry Moore, Esq., Jackson Kelly, PLLC, Three
Gateway Center, 401 Liberty Ave, Suite 1500, Pittsburgh, PA 15222

/db

[1]
The court had vacated the order based on its conclusion that the Secretary
failed to prove coal was produced during the shift for which the on-shift
examination was conducted. 34 FMSHRC at 2171-72.

[2]
The accumulations found by Gunderson are described in Citation No. 8460434,
August 11, 2009. The citation states:

Coal accumulations have
been allowed to exist

along the 8 North Main
belt conveyor, from the

tail piece to the
take-up. The accumulations of

coal have piled high
enough to come in contact

with the return belt and
rollers, ranging in depth

to 1' 8", 6' wide
and 600 feet in length. Dry coal

fines have accumulated
on the belt structure, and

around the roller
clusters. This belt was in

operation just prior to
this inspection. All coal

accumulations, both on
the hardware and under

the belt, shall be
cleaned, in their entirety, and

the area rock dusted.

Gov’t Exh. 2.