Secretary of Labor v. Twentymile Coal Company

Plain-English summary

MSHA cited Twentymile Coal for an allegedly inadequate on-shift examination and for a communication cable that crossed power cables without added insulation. The Commission held that the judge misunderstood the shift evidence because Twentymile's own representations showed that the cited examination occurred during a coal-producing shift. It remanded the examination order for findings on whether the examination was inadequate and, if so, whether the violation was significant and substantial and an unwarrantable failure. On the cable citation, the Commission held that 30 C.F.R. § 75.516-2(c) does not require mine personnel to add insulation manually when a manufacturer has already provided sufficient insulation. Because the Secretary did not prove that the cable's insulation was below the required dielectric strength, that citation was vacated.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.362(b) and 75.516-2(c)
• Outcome: The on-shift examination order was vacated and remanded for further findings, while the cable-insulation citation was vacated outright.
• Key point: Manufactured insulation can satisfy the additional-insulation rule, but an on-shift examination remains required when the record shows coal production on that shift.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSIOM

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

August 26, 2014

SECRETARY OF LABOR,                            : 

MINE SAFETY AND HEALTH                   :                  

ADMINISTRATION (MSHA)                      :      Docket Nos.    WEST 2009-1323

:                               WEST 2010-38

v.                                                  :                            WEST 2010-578 

:

TWENTYMILE COAL COMPANY             :

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners

DECISION

BY:     Jordan, Chairman; Young, 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”), and involve an order and a citation that were

issued to Twentymile Coal Company by the Department of Labor’s Mine Safety and Health
Administration (“MSHA”). Order No. 8460435 alleges that Twentymile failed to conduct
adequate on-shift examinations as required by the mandatory safety standard in 30 C.F.R.

§ 75.362(b). Citation No. 8457448 alleges that Twentymile failed to provide additional insulation
at the point where a communication circuit contacted power cables as required by the safety
standard in 30 C.F.R. § 75.516-2(c). 

The Administrative Law Judge vacated the order alleging an inadequate on-shift
examination, concluding that the Secretary failed to offer any proof of coal production during the
shift as required by section 75.362(b). 34 FMSHRC 2138, 2171 (Aug. 2012) (ALJ). The Judge
affirmed the citation issued for inadequate insulation. Id. at 2144.

We conclude that the Judge erred in his findings of fact concerning Order No. 8460435.
He mistakenly ruled that the cited examination occurred during a non-production maintenance
shift, for which no on-shift examination is required. In addition, the Judge erred in finding that
Twentymile did not provide additional insulation to the cable as required by section 75.516-2(c).
Accordingly, we vacate the Judge’s decision with respect to the on-shift examination order
(Order No. 8460435), vacate the additional insulation citation (Citation No. 8457448), and
remand the cases for further proceedings consistent with our decision.

I.

The On-Shift Examination Order (Order No. 8460435)

A.        Factual and Procedural Background

Twentymile owns and operates the Foidel Creek mine, a large underground coal mine in
Colorado. 34 FMSHRC at 2139. On August 11, 2009, at 11:30 a.m., MSHA Inspector Randy
Gunderson arrived at the mine’s 8 Main North belt conveyor to conduct an inspection. Id. at
2167; Gov. Ex. 2. The mine was on a maintenance shift, and the conveyor belt was not running.
34 FMSHRC at 2171; Tr. 317, 347-49.

Inspector Gunderson observed coal accumulations along the belt haulageway that
measured approximately 600 feet long, 6 feet wide and 20 inches deep. 34 FMSHRC at 2168; Tr.
294-298; Gov. Ex. 2. The accumulations contacted the belt at 12 points. 34 FMSHRC at 2168;
Tr. 294; Gov. Ex. 2. Gunderson noted that rock dust was layered between the coal
accumulations, which included both loose coal as well as dry coal fines. Tr. 296-97, 301, 354.
Where the accumulations contacted the belt, however, there was no rock dust. 34 FMSHRC at
2168; Tr. 298. Based on his observations, the inspector issued a citation alleging a violation of
the safety standard in 30 C.F.R. § 75.400, which prohibits the accumulation of coal in active
workings. Gov. Ex. 2. Twentymile admitted that these cited conditions constituted a significant
and substantial violation of the safety standard in section 75.400. 34 FMSHRC at 2168 n.28
(citing Unpublished Order at 1 (Sept. 21, 2011)); Tr. 302; Gov. Ex. 2; Gov. Ex. 40.

As a result of the inspection, Gunderson also issued Order No. 8460435, which alleged a
violation of the on-shift examination requirement in 30 C.F.R. § 75.362(b) and specifically cited
the August 10 and August 11 examiner reports as inadequate.

Gov Ex. 1. The cited examination
reports did not contain any mention of the coal accumulations in the belt haulageway. Gov Ex. 4
at 18-22. The most recent of the examinations had been conducted between 6:57 a.m. and 8:06
a.m on August 11. Id. at 22.

Twentymile contested this order at a hearing on the merits. On August 9, 2012, the Judge
issued a decision stating that while section 75.362(b) requires adequate examinations, this
particular standard only applies “during each shift that coal is produced.”

34 FMSHRC at 2171.
The Judge stated that the inspector testified that the operator’s examination was conducted on
August 11 between 6:57 a.m. and 8:06 a.m. (hereinafter referred to as “the operator’s August 11
morning examination”) during a “maintenance shift.” Id. The Judge concluded that because the
Secretary failed to offer any evidence of coal production during the shift when the order was
issued, the Secretary had failed to prove that the standard was violated. Accordingly, the Judge
vacated the order. Id at 2171-72.

On review, the Secretary argues that the Judge erred because the record demonstrates that
the operator’s August 11 morning examination actually was performed on a production shift –
the shift that occurred directly before the “maintenance shift” during which the MSHA inspection
occurred.

B.        Analysis 

1.         The operator’s August 11 morning examination was not
performed during the “maintenance shift,” but was performed
on the preceding production shift.

The threshold question in this case is whether the operator’s August 11 morning
examination occurred on a shift during which coal was produced. Specifically, we must
determine whether this examination was performed during the production shift or the subsequent
morning maintenance shift. Although the Judge found that the operator’s August 11 morning
examination was performed on the “maintenance shift” (34 FMSHRC at 2171 (citing Tr. 317)),
we conclude that this finding is not supported by substantial evidence.

The Judge relied on the testimony of Inspector Gunderson but appears to have
misunderstood the inspector’s statements. At the hearing, Inspector Gunderson testified as
follows:

Q: And was the belt running during your inspection?

A: No

Q: Why not?

A: It was a maintenance shift, is what I was told.

Tr. 317. In the cited portion of the transcript, Gunderson was referring to the production status of
the mine at the time of his inspection. Gunderson inspected the mine and issued the order at
11:35 a.m. Gov. Ex. 1. Gunderson did not testify about the production status of the mine during
the time at which the operator’s August 11 morning examination was performed (between 6:57
a.m. and 8:06 a.m.).

Although the Secretary did not introduce specific evidence of the mine’s shift schedules
or production reports, an examination of the record fully demonstrates that the cited August 11
morning examination occurred during the shift that immediately proceeded the maintenance shift.
34 FMSHRC at 2172. Twentymile repeatedly represented that its August 11 morning
examination qualified as both an on-shift examination for the shift on which it was performed
and a pre-shift examination for the shift that was about to begin. T. Post-Hearing Br. at 37
(stating “[t]here is no dispute that there was a pre-shift/on-shift examination conducted [on the
morning of] August 11, 2009"), see also id. at 39-40; Oral Arg. Tr. 141-44. Section 75.362(b)
provides that the on-shift and pre-shift exams may be conducted simultaneously, if the
examination is conducted within three hours before the start of an oncoming shift. Because the
August 11 morning examination was a “pre-shift/on-shift examination,” a shift change must have
occurred at the mine within the three hours that followed the examination. Stated another way,
the inescapable conclusion drawn from Twentymile’s own representations is that a shift change
occurred at the mine between 8:06 a.m. (the time the operator’s morning examination concluded)
and 11:06 a.m. (the end of the three hour window referred to in section 75.362(b)). Gov. Ex. 4 at
22.

The order was issued at 11:35 a.m. (Gov. Ex. 1) after the shift change occurred. The
inspector testified that the mine was on a maintenance shift at the time the order was issued.

Tr. 317. Accordingly, the operator’s August 11 early morning examination qualified as an on-shift examination for the night shift ending on the morning of August 11 (the “graveyard shift”),
and as a pre-shift examination for the subsequent maintenance shift.           

2.         Twentymile conceded that coal was produced on the
“graveyard shift.”

In its post-hearing brief, Twentymile stated that it produced coal after it conducted the
cited August 11 on-shift examination. See T. Post-Hearing Br. at 39-40 (stating that the
accumulations “could have occurred in a ‘couple of hours’ considering the amount of coal
running over the belt during the time after the pre-shift/on-shift and [the inspector] issuing his
order and citation.”); see also id. at 41 (“[The accumulations] developed within the approximate
3-hour span between when the pre-shift/on-shift examination was performed and when the
condition was observed by the MSHA inspector”).

At oral argument before the Commission, counsel for Twentymile agreed that there
would have been no reason to conduct an on-shift examination during the “graveyard shift” if the
company had not been producing coal on that shift. Oral Arg. Tr. 144 (Commissioner Young:
“[i]f you say it’s an on-shift examination, there’s no reason to do one unless you’re running coal,
right?” Counsel: “That’s correct”).

Significantly, Matt Winey, the shift foreman, testified that the mine was running two ten-hour production shifts per day in August 2009. Tr. 357-59. On a typical shift, the mine produced
about 1,500 tons of coal per hour. Tr. 359. Neither Winey nor any of Twentymile’s other
witnesses suggested that production did not occur during the shift on which the cited on-shift
examination was made.

Based on the foregoing, we conclude that Twentymile conceded that it produced coal on
the “graveyard shift,” the shift for which the cited examination was performed. Therefore,
according to the safety standard in 30 C.F.R. § 75.362(b), it was required to perform an adequate
on-shift examination.

As noted above, however, Twentymile argued that the accumulation might have occurred
after the on-shift report was prepared. Obviously, the Judge made no finding regarding that
argument. Therefore, we remand this matter to the Judge for a determination of whether the cited
examinations of August 10 and 11 were inadequate as alleged, and, if so, whether the violation
was significant and substantial and the result of an unwarrantable failure by the operator.

II.

The Inadequate Insulation Citation (Citation No. 8457448)

A.        Factual and Procedural Background

On June 23, 2009, MSHA Inspector Charles Bordea arrived at the Foidel Creek mine to
conduct a regular inspection. Gov. Ex. 41 at 1-2. He traveled underground to Load Center

No. 29, where he observed a communication cable contacting energized high voltage cables. Id.
at 3. The communication cable consisted of two twisted pair wires, a ground wire, and shielding,
all of which were wrapped in an outer jacket. Id. The power cables consisted of three power
conductors, a ground monitor cable, and at least two ground wires, all of which were wrapped in
an outer jacket. Id.

The mandatory safety standard in 30 C.F.R. § 75.516-2(c) requires that “[a]dditional
insulation shall be provided for communication circuits at points where they pass over or under
any power conductor.” Inspector Bordea issued Citation No. 8457448 to Twentymile and alleged
that its failure to install an additional wrap of insulation at the point where the communication
cable contacted the power cable constituted a non-significant and substantial violation of the
standard. Gov. Ex. 33. Inspector Bordea determined that the violation was the result of moderate
negligence on the part of the operator. Id.

Twentymile contested the citation, arguing that it did not violate the standard because it
provided a communication cable that had been insulated, shielded, and jacketed by the
manufacturer. Twentymile’s Statement at 3.

In a previous Commission proceeding, Twentymile made the same argument to
Administrative Law Judge Richard Manning when it contested two citations issued for violations
of section 75.516-2(c). 33 FMSHRC 1885, 1945 (Aug. 2011) (ALJ). Judge Manning concluded
that the meaning of the language in the safety standard was clear, i.e., mine operators are required
to manually install additional insulation at the points where communication circuits pass power
conductors no matter how well insulated the circuits may be. Id. Twentymile filed a petition for
discretionary review of Judge Manning’s decision with the Commission, which we granted.

On August 9, 2012, Judge David Barbour issued his decision on Citation No. 8457448.
Judge Barbour adopted Judge Manning’s analysis, concluding that the standard clearly required
that an operator must install insulation on the cable in addition to the insulation that is provided
by the manufacturer. 34 FMSHRC at 2144. He concluded that “because Twentymile did not add
any insulation to the cited communication cable [at the point of contact] . . . the company
violated the standard.” Id. The Judge found that the violation was the result of low negligence on
the part of the operator and assessed a civil penalty of $100. Id. at 2184.

B.        Analysis

Today, in a separate decision, the Commission is reversing Judge Manning’s August
2011 decision on the requirements of section 75.516-2(c). 36 FMSHRC __, Docket Nos. WEST
2009-241 et al. (Aug. 26, 2014). In our concurrently issued decision, we conclude that the
language of the safety standard in section 75.516-2(c) is silent or ambiguous with respect to how
compliance with its requirements is to be achieved. Slip op. at 3. Specifically, we conclude that
the phrase “shall be provided” does not plainly mean that the operator itself must install the
“additional insulation.” Id. at 3-4. In fact, we note that the phrase “shall be provided” is used
elsewhere in the Secretary’s regulations to describe equipment that is commonly provided by a
manufacturer. Id. at 3 (see, e.g., 30 C.F.R. § 56.14131 (“Seat belts shall be provided and worn in
haulage trucks”)). We further conclude that the Secretary’s proffered interpretation – that the
additional insulation must be manually installed over the manufacturers’ cables regardless of the
amount of pre-existing insulation – was not reasonable and thus should not be accorded
deference.

Id. at 4-5.

The Commission holds that the safety standard in section 75.516-2(c) simply requires the
presence of “additional insulation” at the points where the communication circuits pass over or
under power conductors. Id. at 5. The insulation at those points must be greater than the
insulation requirements of section 75.516-2(b), that is, the insulation must be at least as great as
the dielectric strength of the voltage of the circuit. 30 C.F.R. §§ 75.516-2(b), 75.517-1.

The parties agree that the communication cable cited in Citation No. 8457448 is the same
communication cable that was cited by the Secretary in the case before Judge Manning.
Secretary’s Statement at 1; Twentymile’s Statement at 1. The communication cable consists of
copper conductors that were covered in a layer of insulation, surrounded by foil shielding, and
wrapped in a PVC jacket. Slip op. at 2 (citing 33 FMSHRC at 1941-43); see also Gov. Ex. 41

at 3.

The Secretary has not demonstrated that the insulation provided was less than the
dielectric strength of the voltage of the circuit. Accordingly, the Judge’s decision with respect to
Citation No. 8457448 is reversed and the citation is vacated.  

III.

Conclusion

We conclude that the Judge’s decision regarding Order No. 8460435 is not supported by
substantial evidence in the record. Therefore, the Judge’s decision is vacated and remanded for
analysis of whether the cited examinations were inadequate as alleged, and if so, whether the
violation was significant and substantial and the result of an unwarrantable failure.

We further conclude that the Judge erred in his interpretation of the safety standard in
section 75.516-2(c). Because the record lacks evidence that Twentymile violated the standard,
the Judge’s decision with respect to Citation No. 8457448 is reversed and the citation is vacated.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/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

Distribution:

R. Henry Moore, Esq.

Jackson Kelly, PLLC

Three Gateway Center, Suite 1500

401 Liberty Avenue

Pittsburgh, PA 15222

[email protected]

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Department of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

[email protected]

Jerald S. Feingold, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

[email protected]

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

[email protected]

Administrative Law Judge David F. Barbour

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004