Secretary of Labor v. Peabody Caballo Mining, LLC

Plain-English summary

MSHA cited two conditions at Peabody Caballo's Rawhide surface coal mine and proposed $734 in penalties. Judge Richard W. Manning found that pipes behind a fixed ladder left less than the required three inches of toe clearance and created an S&S fall hazard. Because the ladder and pipes had existed for years without an earlier MSHA citation, he reduced negligence to low and assessed $500. He vacated a separate safe-access citation alleging that unguarded conveyor idlers could fall onto a travelway, finding the theory speculative given the equipment design, inspections, and maintenance. Peabody was ordered to pay $500.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.205(a) and 77.206(e)
• Outcome: The ladder citation was modified to low negligence with a $500 penalty, and the conveyor safe-access citation was vacated.
• Key point: A credible ladder fall hazard supported an S&S violation, while a remote equipment-failure theory did not prove that access below a conveyor was unsafe.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

Office of
Administrative Law Judges

721 19th
Street, Suite 443

Denver, CO 80202-2536

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

April 10, 2014

SECRETARY
OF LABOR

��MINE
SAFETY AND HEALTH���

��ADMINISTRATION
(MSHA),

����������������������� ��
Petitioner

����������������������� v.

PEABODY
CABALLO MINING, LLC,

����������������������� ��
Respondent

��
CIVIL PENALTY PROCEEDING

��
Docket No. WEST 2012-1311

��
A.C. No. 48-00993-293531

��
Rawhide Mine

�����������

DECISION

Appearances:�������������� Daniel
McIntyre, Esq., Office of the Solicitor, U.S. Department of Labor, Denver,
Colorado, for Petitioner;

����������������������������������� Meredith
A. Kapushion, Esq., Jackson Kelly, PLLC, Denver, Colorado, for Respondent.

�

Before:����������������������� Judge
Manning

����������� This
case is before me upon a petition for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration
(�MSHA�), against Peabody Caballo Mining, LLC, (�Peabody�) pursuant to Sections
105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. �� 815
and 820 (the �Act� or �Mine Act�). The parties introduced testimony and
documentary evidence at a hearing held in Gillette, Wyoming, presented closing
arguments, and submitted case summaries.

The Secretary proposed a total penalty
of $734.00 for two citations adjudicated at the hearing. Both citations were
issued at the Rawhide Mine, a surface coal mine in Campbell County, Wyoming. For
the reasons expressed below, I modify Citation No. 8475874 and vacate Citation No.
8475971.

On May 16 and 17,
2012, MSHA Inspector Wayne Johnson inspected the Rawhide Mine. Inspector
Johnson has worked as a Mine Safety and Health Inspector for more than 7 years.
(Tr. 15). He earned an Occupational Safety Degree from Marshall University and
graduated from the Mine Safety and Health Academy. Id. Inspector Johnson
testified that he has twenty-six years of experience in coal mining. He was
accompanied by Jeff Wheeler, safety representative at the mine site, during the
inspection. (Tr. 19).

I. DISCUSSION
WITH FINDINGS OF FACT

AND CONCLUSIONS
OF LAW

A.    Citation 8475874

Inspector Johnson issued Citation No.
8475874 on May 17, 2012, for an alleged violation of section 77.206(e) of the
Secretary�s safety standards. (Ex. G-1). The citation alleges that a roof
access ladder upon the MCC building did not have sufficient toe clearance at
the ninth rung. Inspector Johnson determined that an injury was reasonably
likely to occur, that such an injury could reasonably be expected to result in
lost workdays or restricted duty, and that one person would likely be affected.
Further, he determined that the violation was significant and substantial
(�S&S�) and the operator�s negligence was moderate. Section 77.206(e) of
the Secretary�s safety standards provides that �[f]ixed ladders shall be
anchored securely and installed to provide at least 3 inches of toe clearance.�
30 C.F.R. � 77.206(e). The parties agree that the fixed ladder at issued was
anchored securely. The Secretary proposed a penalty of $634.00 for this
citation.

�

Inspector Johnson testified that the
ninth rung was approximately 8 feet above the ground and there was 1 to 1 1/2
inches of toe clearance behind the rung. (Tr. 22-23). Inspector Johnson
testified that Wheeler agreed that the measurements were accurate. (Tr. 24-25).
Inspector Johnson testified that two horizontal insulated pipes, which ran
perpendicular to the ladder, contacted the ladder at the same level as the
ninth rung, thus interfering with the toe clearance on that rung. (Tr. 26-27). Inspector
Johnson further testified that the insulation of the piping showed signs that
miners� feet contacted the pipes while using the ladder. (Tr. 27-28).

Inspector Johnson chose to cite the
ladder after learning that miners used it to maintain the heating and air
conditioning system (�HVAC�) upon the roof of the building. (Tr. 23-24). Adding
to the danger posed by this allegedly hazardous condition, Inspector Johnson
testified that miners carried large HVAC filters up the ladder every month. (Tr.
30, 68, 80-82). Because miners climbing the ladder could fall approximately 8
feet onto the hard ground below, Inspector Johnson testified that the injury
could be permanently disabling. (Tr. 29). He marked the gravity as �lost
workdays or restricted duty� in the citation. (Ex. G-1; Tr. 75-76).

Duane Myers, the Safety Manager for the
Mine, testified that he had 35 years of experience in coal mining. (Tr. 114). He
testified that miners could maintain three points of contact while ascending
the ladder. (Tr. 129). He did not believe that miners climbed the ladder
holding a HVAC filter; instead, they dropped a rope to raise the filter after
climbing the ladder. (Tr. 153). He also disputed the measurement of space
between the ladder rung and the insulated pipe, testifying that 3 inches of toe
clearance existed if the measurement was taken at a slight angle. (Tr.
136-137). Myers admitted that if he were consulted when the ladder was
installed, he would advise that it be placed where the pipes would not
interfere with any of the rungs. (Tr. 141).

For the reasons set forth below, I
uphold Citation No. 8475874 but reduce the level of negligence.

Parties�
Arguments

The Secretary argues that the cited
condition reflects a clear violation of the toe clearance requirement. The
standard requires at least 3 inches, yet the inspector testified that the
interfering pipes allowed no more than 1 1/2 inches. (Tr. 11). The Secretary
argues that an injury was likely due, in part, to the severe weather that
occurs in Wyoming. (Tr. 11, 30-31). The inspector believes that miners who
climb the ladder are frequently carrying HVAC filters or tools. (Tr. 24, 30).

Peabody argues that there was
insufficient evidence to support the violation. (Tr. 186). Peabody maintains
that indentations upon the lower pipe insulation at the ninth rung prove that
miners had sufficient toe clearance. It argues that these indentations
establish that there was plenty of toe clearance when standing on the ninth
rung of the ladder. (Tr. 186). There was no showing that miners were unable to
maintain three points of contact at all times.�

Peabody also disputed how much clearance
between the rung and the pipe actually existed. (Tr. 109). Peabody noted that
Inspector Johnson was the only person who climbed the ladder and took the
measurement. (Tr. 64). Peabody also argues that a backguard surrounded the
ladder, which prevented anyone from falling backwards. Peabody contends that
the Secretary did not establish that miners carry HVAC filters, supplies, or
tools as they ascend or descend the ladder. (Tr. 67). Further, Peabody noted
the lack of evidence that the ladder is used during hazardous weather. (Tr.
70).

Discussion and
Analysis

I find that the Secretary established a
violation because the ladder did not provide the 3 inches of clearance that
section 77.206(e) requires. I credit the testimony of Inspector Johnson that he
accurately determined that the distance between the ninth rung and the pipes
was between 1 and 1 1/2 inches.[1]
His photographs corroborate his testimony. (Exs. G-3, G-5, G-8). �I also find
that the violation created a hazardous condition, even in ideal weather
conditions when miners are not carrying tools or supplies up the ladder.

����������� I find that the violation
was S&S.[2]
The Commission and courts have observed that an experienced MSHA inspector�s
opinion that a violation is significant and substantial is entitled to
substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79
(Dec. 1998). I credit Inspector Johnson�s testimony concerning the condition
and find that the cited condition was reasonably likely to contribute to an
injury. The Secretary established that the violation created a discrete safety
hazard and satisfied the first two elements of the Mathies test. The
commission has held:

The test under the third [S&S]
element is whether there is a reasonable likelihood that the hazard contributed
to by the violation . . . will cause injury. The Secretary need not prove a
reasonable likelihood that the violation itself will cause injury . . . .

Musser Eng�g, Inc., 32 FMSHRC
1257, 1281 (Oct. 2010). The hazard contributed to by a violation of section 77.206(e)
is the risk of falling. The location of the insulated pipe and the lack of
clearance made it likely that a miner would not have a good foothold. The two
insulated pipes abutted each other. It appears that miners placed the toes of
their boots between the two pipes because the lack of clearance forced them to
search for a better foothold. A miner is more likely to lose his balance and
fall due to the poor foothold in the event of inattention, wind, or a variety
of factors, which contributes to the risk of injury as a result of the 8 foot
fall onto the hard ground below. While miners may maintain three points of
contact much of the time, if they unexpectedly slip upon the ninth rung as a
result of the poor foothold, they could fall and would likely sustain a serious
injury.

����������� I
reject Peabody�s argument that the backguard required by 30 CFR � 77.206(c)
eliminated the severity of this violation. �It is clear that the backguard
would prevent a miner from falling further away from the ladder. (Tr. 67). The
guard, however, would not prevent a miner from falling 8 feet to the ground or
from becoming entangled in lower rungs of the ladder. A miner can easily be
injured by a short fall from a ladder. �

����������� The
evidence establishes that the most likely injuries would result in lost
workdays or restricted duty, not a permanent disability. The gravity was
serious. I also find that Peabody�s negligence was low. The pipes and fixed
ladder were present for many years without MSHA issuing a citation or
commenting upon the situation.

Citation No. 8475874 is MODIFIED
to reduce the negligence to low. A penalty of $500.00 is appropriate for this
violation.

B.    
Citation
8475971

Inspector
Johnson issued Citation 8475971 on May 16, 2012, alleging a violation of
section 77.205(a). (Ex. G-10; Tr. 33). The cited standard states that a �[s]afe
means of access shall be provided and maintained to all working places.� 30
C.F.R. � 77.205(a). The citation alleged that a travelway crossed below an
elevated conveyor belt which brought coal from the crusher area into the silo. Inspector
Johnson observed that there was no guarding under the conveyor belt�s idlers. (Tr.
12, 36). Inspector Johnson testified that if the bearings for an idler roller
failed, the roller could fall onto a miner using the travelway. (Tr. 36). One
miner walked under the conveyor at least once per shift. (Tr. 37). Inspector
Johnson determined that an injury was unlikely to occur but that if a miner
were injured it would likely be permanently disabling. Further, he determined
that the violation was not S&S and the operator�s negligence was low. The
Secretary proposed a fine of $100.00 for the citation. �

Duane Myers testified
that if an idler roller wears out it would not fail completely without obvious
signs lasting for hours, such as smoke, worn belts, and noise. (Tr. 124-25). Even
when they fail, Myers testified that the rollers used by Peabody at that
location do not fall. Id.

Benjamin Ortiz,
the maintenance planner for the mine, testified that he had never seen the type
of idler roller used at the mine drop away from the belt in his 37 years of
mining experience. (Tr. 157, 169). He told the court that miners inspect the
idlers and pulleys at least once per shift and that more significant
maintenance upon the system is performed quarterly. (Tr. 159). Further, he
testified that the cited idlers are �the finest quality you can buy� because
they utilize heavy-duty shafting, cans, and bearings. (Tr. 160). Therefore, he
testified that idler failure is �not a very frequent occurrence� and that when
they do fail, �it�s a very slow failure� taking days or weeks. (Tr. 162-64, 175).
Peabody would replace failing idler before it would fall.

Summary of the Parties� Arguments

The Secretary
argues that the cited condition violates the safe access requirement enumerated
in section 77.205(a). He argues that the idlers, which are mounted above the
travelway, could fall to the floor because they were unguarded. (Tr. 12). The
Secretary produced a picture from another mine, demonstrating how malfunctioning
idlers present a falling hazard. (GX-20; Tr. 48). The Secretary also notes that
idlers are guarded at other locations at the mine. (Tr. 47).

Peabody argues
that the citation was issued upon a purely speculative theory that is unlikely
to occur. (Tr. 190). Peabody notes that an idler would not drop unless both
bearings suffered a catastrophic failure that was undiscovered for a long
period of time. (Tr. 190). The roller would have to �heat to such a degree and
for such a prolonged period of time that it would melt the medal rod that runs
through the center of the roller. . . .� (Tr. 190). Even if such a failure
occurred, Peabody argues that the resulting sights, sounds, smells, and vibrations
would be obvious and it would remedy the condition before an idler could fall. (Tr.
190). Citing Ortiz�s testimony, Peabody asserts that the high quality idlers
used at this mine can operate for decades without the type of bearing failure that
could present a falling hazard. (Tr. 191-92).

Discussion and Analysis

I find that the
Secretary failed to fulfill his burden to show that Respondent violated section
77.205 and therefore I vacate Citation 8475971. At least one miner walks under
the conveyor belt to a working place during most shifts, but the Secretary did
not establish that safe access was not provided and maintained by Peabody. I
credit the testimony of Ortiz and Myers with respect to this citation. In their
72 years of combined experience, they never observed a return idler that fell at
the mine. The theory proposed by the Secretary is too speculative to establish
a failure to provide safe access.

I find that a reasonably prudent person would
conclude that safe access was provided. The Commission has held that in
interpreting a broadly worded standard �it is appropriate to evaluate the
evidence in light of what a �reasonably prudent person, familiar with the
mining industry and the protective purpose of the standard, would have provided
in order to meet the protection intended by the standard.� � Ideal Cement
Co., 12 FMSHRC 2409, 2415 (Nov. 1990) (citations omitted).�

In Big Sky Coal Co., Commission Judge
Barbour noted that proof that an accident �could� occur �falls short of
establishing [that] a reasonable person would have expected it. . . .� 20
FMSHRC 582, 587 (Jun. 1998) (ALJ) (emphasis in original). Similarly here,
though I recognize that it is remotely possible that one of the three return
idlers could fail and then fall, I hold that a reasonably prudent person would
conclude that it was unlikely and that Peabody provided the safe access to the
working place on the top of the silo.

The Secretary did not show that a return
idler was likely to fail and fall onto the walkway. I find that the evidence
establishes that such an event was virtually impossible due to the roller
design and Peabody�s examination and maintenance protocol. The photographs
taken by the inspector demonstrate that the rollers were of substantial
construction, properly installed, and in excellent condition. (Exs. G-12 � G-19).
I find that Peabody provided safe access to the working places in the cited
area.[3]
I therefore VACATE Citation No. 8475971.

II. 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 Peabody�s history of previous violations as presented in the Assessed
Violation History Report. (Ex. G-24). At all pertinent times, Peabody Caballo
Mining, LLC, was a large mine operator and its parent company, Peabody Energy
Corporation, was also large. The violations were abated in good faith. The
penalty assessed in this decision will not have an adverse effect upon the
ability of Peabody Caballo Mining, LLC, to continue in business. The gravity
and negligence findings are set forth above.

III. ORDER

�

For the reasons set forth above, I VACATE
Citation No. 8475971 and I MODIFY Citation No. 8475874. Peabody
Caballo Mining, LLC, is ORDERED TO PAY the Secretary of Labor the sum of
$500.00 within 30 days of the date of this decision.[4]

����������������������������������������������������������������������� ����������������������������������������������� /s/
Richard W. Manning�� �

����������������������������������������������������������������������� ����������������������������������������������� Richard
W. Manning

����������������������������������������������������������������������� ����������������������������������������������� Administrative
Law Judge

Distribution:

Daniel
McIntyre, Esq., Office of the Solicitor, U.S. Department of Labor, 1999
Broadway, Suite 800, Denver, CO 80202-5708. (Certified Mail)

�����������������������

Meredith
A. Kapushion, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite
2150, Denver, CO 80202-1958. (Certified Mail)

[1]
Inspector
Johnson could not remember if he measured the distance between the rung and the
outer edge of the ladder�s support structure that pressed against the pipes at
the ninth rung or at a lower rung. I find that either measurement would
accurately reflect the distance at issue. There is no dispute that he climbed the
ladder to examine the conditions at the ninth rung.

[2] 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.3d 133, 135 (7th
Cir. 1995); Austin Power Co., Inc., 861 F.2d 99, 103 (5th Cir. 1988)
(approving Mathies criteria).

[3] The citation did not allege that
miners could be injured by material falling from the belt because the belt
transported clean coal that has been processed into �very fine coal.� (Tr. 56).

[4] 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.