Secretary of Labor v. Knife River Construction

Plain-English summary

An MSHA inspector watched a fully loaded scraper fail to stop on a steep grade and continue toward a waste-dump embankment, then ordered it removed from service as an imminent danger. A Commission majority held that substantial evidence supported the Judge's finding that the inspector reasonably believed continued operation could cause death or serious harm before abatement. The majority also held that affirming the imminent-danger order was not inconsistent with the Judge's separate deletion of the citation's S&S designation because the two determinations use different evidence and standards of review. Commissioners Young and Althen dissented, finding no objectively reasonable basis for imminent danger in the full record.

Decision snapshot

• Governing provisions: 30 C.F.R. § 56.14101(a)(1); 30 U.S.C. §§ 802(j), 814(a), and 817(a)
• Outcome: The ALJ's affirmance of the section 107(a) imminent-danger order was affirmed.
• Key point: An imminent-danger order turns on whether the inspector reasonably perceived a danger requiring immediate action at issuance, while an S&S citation is adjudicated de novo on the hearing record.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA
AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004‑1710

SECRETARY OF LABOR,                             :       

MINE SAFETY AND HEALTH                 
 :                               

ADMINISTRATION (MSHA)                    
 :        Docket Nos. WEST 2013-827-RM

:                             WEST
2013-828-RM    

v.                                         :                             WEST
2013-829-RM

:                             WEST
2013-1009-M    

:   

KNIFE RIVER
CONSTRUCTION                 :

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

DECISION

BY: Jordan, Chairman; Cohen
and Nakamura, Commissioners

These
proceedings, which arise under the Federal Mine Safety and Health Act of 1977,

30 U.S.C. § 801 et seq.
(2012) (“Mine Act” or “Act”), involve an imminent danger order issued pursuant
to section 107(a) of the Act[1]
by the Secretary of Labor’s Mine Safety and Health Administration (“MSHA”) to
Knife River Construction. The order required a scraper that was in operation to
be immediately removed from service.

Knife River contested the order before a Commission
Administrative Law Judge. The Judge affirmed the order. Knife River then filed
a petition for discretionary review with the Commission, which we granted.

For the reasons that follow, we conclude that
substantial evidence supports the Judge’s decision to affirm the order because the
inspector reasonably believed that the continued operation of the scraper
represented an imminent danger to miner safety. Accordingly, we affirm the
decision of the Judge.

I.

Factual and Procedural Background

In
May 2013, MSHA inspector Bryan Chaix arrived at Knife River Construction’s
Vernalis Plant to begin a regular inspection. The Vernalis Plant is a sand and
gravel mine located in California.

Chaix
was accompanied on his inspection by two representatives of Knife River: the
foreman, George Muraoka, and the safety manager, Kevin Smudrick. Chaix observed
a scraper that was in the process of moving clay material to the waste dump.[2]
He stopped the vehicle for an inspection. Inspector Chaix asked the operator to
demonstrate that the vehicle was capable of stopping and holding on a grade
while it was carrying a load. The operator gathered a full load of material
(approximately 70,000 pounds) and began to descend a steeply graded access road
at a slow speed. Inspector Chaix and
Smudrick followed on foot.

The
scraper failed to come to a stop on the graded portion of the road. It stopped
briefly after it reached the bottom, however, and then continued to travel
toward the waste dump.

As
the scraper drove away, Chaix issued an oral order pursuant to section 107(a)
of the Mine Act that the vehicle be immediately stopped and removed from
service. The written order was issued shortly thereafter and stated in relevant
part:

[A
scraper] did not stop on a grade when tested. The equipment was in service at the
time of inspection, handling both raw feed and waste. The grade on which it was
tested measured approximately 12-14%.

Gov.
Ex. 1.

The
inspector also issued a citation pursuant to section 104(a) of the Mine Act, 30
U.S.C. § 814(a), for a violation of the mandatory safety standard at 30 C.F.R.
§ 56.14101(a)(1), which provides that “[s]elf-propelled mobile equipment shall
be equipped with a service brake system capable of stopping and holding the
equipment with its typical load on the maximum grade it travels.” The citation
stated that the violation was “significant and substantial” (“S&S”).[3]
After the issuance of the citation, a mechanic traveled out to the scraper and
fixed the brakes on site.

Knife River
contested the citation and the order before a Commission Administrative Law
Judge. The Judge affirmed the section 107(a) order, concluding that the
Secretary

demonstrated that the
inspector reasonably believed that the continued operation of the scraper
represented an imminent danger to miner safety. 36 FMSHRC 2176, 2178-79 (Aug.
2014) (ALJ). The Judge concluded that the inspector acted within his discretion
to issue the order based on the facts known and available to him at the time. Id.
The Judge also affirmed the associated citation that alleged a violation of the
mandatory safety standard at 30 C.F.R. § 56.14101(a)(1), but deleted the
citation’s S&S designation. Id. at 2180.

Knife
River petitioned for review of the Judge’s decision to affirm the section 107(a)
order, but did not seek review of the section 104(a) citation. The Commission
granted the petition.

On
review, Knife River argues that the Judge erred in finding that the Secretary
demonstrated that the inspector reasonably believed that the defective brakes
on the scraper constituted an imminent danger. Knife River also argues that the
Judge’s decision to affirm the section 107(a) order contradicts, and is
otherwise incompatible with, his conclusion that the violation of the mandatory
standard was not S&S.

II.

Disposition

Section
107(a) of the Mine Act provides that if an MSHA inspector “finds that an
imminent danger exists, [the inspector] shall . . . issue an order requiring
the operator of such mine to cause all persons . . . to be withdrawn from” the
relevant area until the danger no longer exists. 30 U.S.C. § 817(a). Section
3(j) of the Act defines an “imminent danger” as a condition “which could
reasonably be expected to cause death or serious physical harm before such
condition or practice can be abated.” 30 U.S.C. § 802(j).

An
inspector’s issuance of a section 107(a) order is reviewed under an “abuse of
discretion” standard. Island Creek Coal Co., 15 FMSHRC 339, 345-46 (Mar.
1993). The order will be upheld if the Secretary proves by a preponderance of
the evidence that the inspector reasonably concluded, based on information that
was known or reasonably available to him at the time the order was issued, that
an imminent danger existed. Id. at 346. The Commission has explained
that a Judge is not required to accept an inspector’s subjective perception
that an imminent danger existed but, rather, must evaluate whether it was
objectively reasonable for the inspector to conclude that an imminent danger
existed. Id. We review the Judge’s determination of whether the
inspector abused his discretion under a substantial evidence standard. See,
e.g., Connolly-Pacific Co., 36 FMSHRC 1549, 1555 (June 2014).

While
the danger justifying an imminent danger order need not be immediate, the
danger must be such as to require the immediate withdrawal of miners because it
could reasonably be expected to cause death or serious harm before the danger
can be abated. Freeman Coal Mining Co. v. Interior Bd. of Mine Operations
Appeals, 504 F.2d 741, 743-45 (7th Cir. 1974); see also Connolly- Pacific,
36 FMSHRC at 1555 (citing Cumberland Coal Res., LP, 28 FMSHRC 545, 555
(Aug. 2006), aff’d, 515 F.3d 247 (3d Cir. 2008)); Blue Bayou Sand and
Gravel, Inc., 18 FMSHRC 853, 858 (June 1996). In addition to the withdrawal
of miners, an issuing inspector may also require that dangerous equipment be
immediately removed from service. See Utah Power and Light Co., 13
FMSHRC 1617, 1619 (Oct. 1991).

The
Mine Act’s legislative history reflects Congress’s view that “the authority
under [section 107(a)] is essential to the protection of miners and should be
construed expansively by inspectors and the Commission.” S. Rep. No. 95-181, at
38 (1977), reprinted in Senate Subcomm. On Labor, On Human Res., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 626 (1978).  

A.   
Substantial evidence
supports the Judge’s decision that the inspector acted within his discretion
when he issued the order pursuant to section 107(a).

The
Judge affirmed the section 107(a) order, specifically noting that it was issued
immediately after the inspector observed the scraper fail to stop on a steep
grade while carrying a heavy load. 36 FMSHRC at 2178. Accordingly, the Judge concluded
that the inspector did not abuse his discretion. Id. The Judge correctly
limited his analysis to whether the inspector’s belief was reasonable at the precise
time he issued the order. See Jim Walter Res., Inc., 37 FMSHRC 1968,
1971-72 (Sept. 2015); see also Wyoming Fuel Co., 14 FMSHRC 1282, 1292
(Aug. 1992) (“the appropriate focus is on whether the inspector abused his
discretion when he issued the imminent danger order.”).

We
conclude that the Judge’s decision – that the inspector reasonably believed
that the scraper operator risked serious physical harm by continuing to drive
to the waste dump – is supported by substantial evidence in the record.[4]

At
the time he issued the oral order, the inspector was aware that the scraper was
carrying a full 70,000 pound load. Tr. 146, 155. The inspector had just witnessed
that the scraper was not able to stop on a grade. Tr. 41. Despite the defective
brakes, the scraper continued to travel toward the waste dump[5],
an area of the mine with multiple grades.[6]
Tr. 43-45. In addition, the

inspector was aware that an
embankment was under construction at the waste dump. Tr. 34, 40. The inspector
testified that his primary concern was that the scraper would
depart that embankment because it was traveling to the dump site without fully functioning
brakes. Tr. 39, 41 (“Primarily my concern [was] about departing the
embankment.”).[7]
The operator’s representatives were not able to stop the driver nor communicate
the order to him as they did not have their radios at that moment. [8]
 Tr. 42, 84-86, 177.

Inspector
Chaix understood that although there were alternative methods available to abruptly
stop the vehicle, such as the emergency brake or lowering the cutting tool,
using either method would put the driver at risk for injury. Tr. 49-50. The
inspector succinctly explained why he believed this was an imminent danger,
stating “[t]hat’s a big piece of equipment and . . . some pretty big distances
and some steep grades involved. It’s the kind of thing that gets people
killed.” Tr. 44. When asked who he expected to be injured by this condition, he
responded, “[p]rimarily the equipment operator themselves, but anybody else
nearby in the traffic pattern of the scraper.” Tr. 44.

We conclude that
the testimony above supports the Judge’s conclusion that the inspector
reasonably believed that an imminent danger existed.[9]
Accordingly, we affirm the Judge’s conclusion that the inspector did not abuse
his discretion in issuing the section 107(a) order.[10]

B.    
The Judge’s conclusions
with respect to the section 107(a) order and his conclusions with respect to
the S&S designation on the section 104(a) citation are not irreconcilable.  

Knife
River also argues that the Judge’s ruling on the imminent danger order should
be

overturned because it is allegedly
inconsistent with his ruling that the related citation was not S&S. We
disagree.

The
Secretary did not petition for review of the deletion of the S&S
designation from the

citation issued pursuant to
section 104(a), and accordingly the Judge’s conclusions regarding the citation
are not before the Commission. Therefore, we take no position on the legality
of his findings regarding the S&S designation.[11]
However, we observe that the Judge’s ruling on the imminent danger order and
his ruling on the S&S designation in the citation involve different
evidentiary considerations.

It
is well-established that an inspector has the discretion to issue a section
107(a) order if he reasonably believes there is an imminent danger, even if the
imminent danger at issue does not violate a mandatory safety standard. See
Utah Power & Light, 13 FMSHRC at 1622. In evaluating the issuance of
the order, a Judge necessarily considers the evidence from an objectively
reasonable inspector’s perspective at the time of issuance. The key question is
whether the inspector abused his discretion.   

In
contrast, violations of mandatory safety standards must be proven by the
Secretary by a preponderance of the evidence at a hearing before a Commission
Judge. See Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov.
1989). The Judge considers the evidence of the violation de novo; he
does not view the evidence from the inspector’s perspective. The key question
is whether the Secretary satisfied his burden of proof.

With
respect to the citation issued to Knife River for inadequate brakes, the Judge credited
the testimony of Kevin Farewell, the scraper operator, who stated that even if
the brake did not bring the scraper to a stop on the grade, he was able to rely
on the engine retarder to remain in control of the vehicle. See 36
FMSHRC at 2180; Tr. 148, 161. After considering Farewell’s testimony, the Judge
deleted the S&S designation. Even assuming arguendo that the Judge’s
action was appropriate, it would not preclude a finding that the inspector,
upon observing the driver’s inability to bring the scraper to a stop on grade,
could reasonably believe such failure amounted to an imminent danger.

Because the
Judge’s conclusions were made after appropriately using different standards of
review, we hold that his conclusions are not irreconcilable.

III.

Conclusion

For the foregoing
reasons, we conclude that the Judge’s decision is supported by substantial
evidence in the record, and, therefore, we affirm it.

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chairman

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

/s/
Patrick K. Nakamura

Patrick
K. Nakamura, Commissioner

Commissioners Young and
Althen, dissenting:

The
majority summarily affirms the decision below sustaining an imminent danger
order. However, a full and fair exposition of the record demonstrates that
substantial evidence does not support an objectively reasonable basis for the
inspector to have reasonably expected a death or serious injury before
abatement. Inspectors must act quickly when they see an imminent danger, but
the evidence in this case does not come close to providing an objectively
reasonable basis for issuance of an imminent danger order. For that reason, we
respectfully dissent.

DISCUSSION

An
imminent danger is “the existence of any condition or practice in a coal or
other mine which could reasonably be expected to cause death or serious
physical harm before such condition or practice can be abated.” 30 U.S.C. § 802(j).
Unquestionably, inspectors must have a substantial amount of authority to issue
imminent danger orders and we must uphold orders unless we conclude that
inspector abused his discretion. Old
Ben Coal Corp. v. Interior Bd. of Mine Operations Appeals, 523
F.2d 25, 31 (7th Cir. 1975); Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2164 (Nov.
1989). Here, there is also a real question of whether an abuse of discretion
may be found where an inspector issues an imminent danger order but does
nothing to prevent the continued operation of the subject machinery. This
inaction is untenable where an inspector holds a reasonable belief that death
or serious injury would reasonably result if the activity at issue did not
immediately cease.

Four factors comprise the existence of an
imminent danger. These are, (1) a condition or
practice in a mine (2) that could reasonably be expected to cause (3) death or
serious physical harm (4) before such condition or practice can be abated. The
Commission has rejected any notion that a judge or the Commission must accept
the subjective perception of an inspector. Instead, we are to review the facts
determining instead “whether it was objectively reasonable for the inspector to
conclude that an imminent danger existed.” Mill Branch Coal Corp., 37
FMSHRC 1383, 1389 (July 2015) (citing Island Creek Coal Co., 15
FMSHRC 339, 346 (Mar. 1993)). The inspector here did not even evince a subjective
belief in an imminent danger. Therefore, it is impossible for the inspector’s
belief to be found objectively reasonable if we review the Judge’s
determination looking at the objective facts presented at the hearing. See,

e.g., Connolly-Pacific Co., 36 FMSHRC 1549, 1555 (June
2014).1

In Utah Power & Light Co., 13 FMSHRC 1617,
1622 (Oct. 1991), the Commission observed that, if any hazard that has the potential to cause a serious
injury qualifies as an imminent danger, the distinction between an
imminent danger and a significant and substantial violation is lost. The outcome-determinative difference is that, for an
imminent danger, the expectation must be for serious injury or death “before
the condition or practice can be abated.”

The
objective facts presented at the hearing must provide substantial evidence in
support of the

inspector’s
determination.2

The
majority correctly but only partially defines substantial evidence in its
opinion. See slip op. at 4 n.4. Importantly, in assessing whether a
finding is supported by substantial evidence, the record as a whole must be
considered including evidence in the record that “fairly detracts” from the
finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). The record in this case, when fully reviewed, contains
overwhelming evidence detracting from the imminent danger finding. In
particular, the Judge failed to take into account his own findings that
establish a slow (two mph) rate of speed, the ability of its operator to use
other means besides the brakes to stop the scraper at any time, the absence of
any other persons who might have been injured during the event, the
impossibility of overtravel on the enclosed grade, the protective measures
shielding the operator from hazards arising from a low-speed collision, and the
inspector’s own inconsistent testimony in the face of all of these facts.

Among
the detracting evidence, the inspector eventually concedes that, with the
scraper moving at two mph, he knew, or should have known, that the scraper
operator could have stopped almost immediately at any time and at the
operator’s discretion, including during the descent down the grade. Tr. 49. Having
made that telling admission, the inspector does not provide any evidence to
support a finding that such stopping would be expected to cause serious injury or
death. Indeed, the evidence confirms that the section 104(a) citation issued
for the defective brakes would have resulted in abatement just as quickly and
as efficiently as the section 107(a) order. Moreover, these errors are only a
portion of the detracting evidence that we now review.

It
is uncontested that the maximum speed of the scraper throughout its descent was
approximately two miles per hour. Tr. 155, 167. As explained by the scraper operator, Mr. Farwell, the
scraper was equipped with a “retarder” that slows the transmission and engine
thereby slowing the rate of descent, to guard against a runaway. Tr. 148, 156. The
retarder automatically engages at speeds greater than two to three miles per
hour. In this case, the scraper was moving so slowly that the retarder did not
even engage. Tr. 156. The scraper
operator explained that he never was in any danger, (Tr. 155), and, had he felt
any danger, he with certainty could have stopped the scraper virtually
immediately (from its two mph speed) by lowering the cutting tool. Tr. 148. More
importantly for our review of the inspector’s order, the inspector’s testimony,
though inconsistent, shows that the inspector himself realized that the scraper
was not out of control and had come to a complete stop at the bottom of the
grade.

Prior to the inspection on the date of the
imminent danger order, the scraper operator had been working in a relatively
flat area of the mine, Tr. 153, and the scraper’s brakes were fully

operational. Tr. 154. The inspector
asked the scraper operator how the operator wanted to demonstrate the brakes
were working. The operator himself responded that he was heading to a new work
area and the inspector could watch his performance in that new area. The
inspector agreed. Tr. 34.3

The inspector testified
that no equipment or people were down the grade from where the brake test
occurred. Tr. 74. Thus, at the suggestion of the scraper operator, the
inspection occurred on the first run by the scraper, fully loaded, down a new
and steep grade. Tr. 154-55. From this point, the record demonstrates
conclusively that an imminent danger did not exist as the scraper crawled down
the slope at two mph with the operator able to stop it at any moment.4

First,
the inspector’s testimony was inconsistent in critical areas related to his
actions. On direct examination, the inspector testified he could not recall
whether he saw the scraper stop at the bottom of the grade. He testified that
it continued its loop back to the work place from which it started downhill. Tr. 38. The inspector testified that the reason he could
not recall if the scraper stopped was because he “was engaged in a discussion
with agents of the operator at that time.” Tr. 38. If this testimony were
correct, then the inspector did not watch the scraper complete its descent down
the grade.

This
questionable and unreliable testimony contrasts sharply with Knife River’s
case, wherein all of its witnesses, including the scraper operator, testified
that the scraper completely stopped at the bottom of the grade when it reached
the flat area. After that testimony, the Secretary recalled the inspector. The
inspector then testified that he had started walking toward the bottom of the
grade but turned around because the scraper was “way out ahead of me, and [it]
kept going after reaching the bottom of the grade.” Tr. 205. This testimony
varies from his earlier testimony that he was talking to Knife River’s
employees so he did not see what

happened,
but it is generally consistent with his earlier testimony that he did not see
the scraper stop.

After
the Secretary completed his case, however, the Judge asked the inspector
whether the scraper stopped at the bottom of the grade and the inspector had a
change of heart, mind, or memory and equivocally testified, “[y]ou know, I
think it might have stopped briefly.” Then, the Judge honed in and directly
asked, “[b]ut he did stop? He was able to stop on flat ground?” The inspector
finally remembered clearly and responded with a simple “yes.” Tr. 208. The
inspector actually knew the scraper had stopped completely when it reached the
bottom of the grade. This fact raises an obvious question not accounted for by
the Judge or the majority: why did the inspector not ensure that the scraper
remained at the bottom of the grade once it stopped, instead of allowing the
purported menace to continue traveling through the mine with defective brakes?

From this testimony, inconsistent and changing as it
was, we see that the inspector, though at first denying the knowledge, actually
knew that the scraper stopped promptly and properly while still carrying the
70,000 pound load that it would soon drop as it took the 2 to 3 minute trip
back to the starting point.5 It is uncontested that the scraper
returned to the top of the grade in a matter of 2 to 3 minutes, and the
inspector knew it was completing a loop and returning to the top of the ramp. This
means that the scraper could have continued carrying the 70,000 pounds for only
a very brief period in the open drop area depicted in photographs entered into
the record by MSHA before dropping the load and returning to the top of the
ramp. The majority makes no effort to explain why, during the very brief
period, the operator could not have used the same techniques that the majority
does not contest could have been used to quickly stop the scraper on the 14%
grade.

The majority does not deal with the inspector’s
inconsistent testimony and, therefore, does not account for the fact that the
inspector grudgingly and only with a judicial push admitted he had seen the
scraper come to a complete stop at the bottom of the steep grade. Further, the
evidence is clear that the scraper’s job was to move material from the top of
the grade to the flat area at the bottom and then return to the top of the
grade. The inspector himself testified that the scraper would continue its loop
upward to the top of the grade, (Tr. 38, 54), — a process that took only a
couple of minutes. Tr. 116.

Second,
uncontested facts contradict the inspector’s assertion of danger. The inspector
stated his primary concern was the safety of the scraper operator and when the
Secretary’s counsel asked the inspector about any danger to the scraper
operator, the inspector responded that he was concerned that he might “over-travel
the roadway.” Tr. 38-39. That testimony is obviously incorrect; indeed, it is
incredible. Operator witnesses and photographs of the site

demonstrate that there
were significant barriers on each side of the roadway. Mr. Farwell, the scraper
operator, testified that overtraveling the roadway was not possible:

I had a 30-foot wall on one side and about
100-foot wall on the other side. At the very bottom, I've still got the
100-foot wall, and I've got a berm that is mid-axel height on the -- on the
scraper. So I -- I had no problems.

Tr. 157.

The
inspector’s testimony that the scraper could have dangerously left the roadway
is objectively and tellingly wrong. Either the inspector did not recognize the
physical conditions at the site or, despite his testimony, he could not
actually have had concerns of overtraveling the roadway. Indeed, Mr. Farwell
graphically explained the virtual walls on the sides of the roadway, the area
to which he was heading, the speed of the scraper, and the braking mechanisms. All
this led to Mr. Farwell’s testimony that he never was in any danger and never
considered stopping the scraper although he could have at any moment. Tr.
155-60.6

Further,
the inspector did not testify from the photographs or otherwise how the scraper
operator could have overtraveled the dumpsite.7 He did not point to any
dangerous “embankment” that the operator could overtravel. Further, as noted
above, the inspector eventually acknowledged that the scraper came to a
complete stop at the bottom of the grade.

Third,
when the Secretary’s counsel asked if there was a way of stopping the scraper
other than the brake system, the inspector first testified, “I guess you could
run into something . . . .” Tr. 49. We must attribute this remarkable
statement to the inspector’s lack of any objective knowledge regarding the
operation of a scraper. Mr. Farwell, the scraper operator, testified quite
clearly that you can slow and stop a scraper without “running into something,” (Tr.
148), and eventually the inspector agreed he also knew that the scraper could
have stopped immediately. Tr. 49-50.

This acknowledgment alone should have
been fatal to any pretense of appropriate concern and discretion, especially
after the inspector’s ludicrous testimony about “running
into something.” The inspector, in fact, testified that he knew that, relying
upon the parking brake or emergency brake, the scraper operator actually could
stop the scraper immediately through means other than the brakes if danger
arose. Tr. 50. Regardless of the inspector’s overall

unfamiliarity
with a scraper, he knew the operator could stop the scraper immediately. That
recognition demolishes the need for an imminent danger order.

The
inspector’s recognition that the scraper operator could easily have stopped the
scraper in case of any perceived danger creates an insoluble and undiscussed
conundrum for the majority. If the inspector knew, or should have known, that
the scraper operator could stop the scraper virtually immediately to avoid any
danger from continuing movement, then there can be no reasonable expectation of
serious injury or death.

Despite
this, the majority endorses the inspector’s literally incredible, unreasonable
belief, without any assertion of expertise or reasoning, that stopping from two
mph could reasonably be expected to seriously injure or kill the scraper
operator, who was wearing a seatbelt inside the cab.8 Tr. 50.
Aside from the inspector’s testimony that is unsupported, non-expert, and
clearly runs counter to the human experience of equipment drivers, the
Secretary presented absolutely no evidence of how a stop from a speed of two
mph could reasonably be expected to seriously injure a driver wearing a
seatbelt.9 Without any evidence, it is impossible
for the Secretary to overcome the obvious and commonsense understanding that
seat-belted drivers are completely uninjured, let alone not seriously or
fatally injured, when stopping their vehicles traveling at two mph.

Fourth, under the
facts of this case, the inspector’s
issuance of the section 104(a) order clearly precludes any reasonable basis for
issuance of an imminent danger order. Upon observing defective brakes in
operation, it was entirely proper for the inspector to issue a section 104(a)
citation and to order immediate abatement. He took that action. Having received
such a citation, it was incumbent upon Respondent to cause the scraper to stop
and to remove it from service until completion of brake repair. In this case,
it had a duty to take that action as quickly under the 104(a) citation as under
the imminent danger order. Knife River took that action. That being so, there
is no basis to find that the brakes that slowed the scraper to two mph under
extremely high stress would be reasonably expected to cause a fatality or
serious injury before the citation could be abated. In other words, with the
issuance of the 104(a) citation, there was no basis to find an objectively
reasonable expectation of death or injury before abatement.

Fifth,
we must again note — and in fact cannot stress enough — that the inspector’s
actions belie any notion of an imminent danger. Having seen the scraper
completely stop at the bottom of the hill and then continue, there is no
evidence that the inspector took or ordered emergency action to try to get in
touch with the driver. There would be no excuse for such inaction if the
inspector actually thought the driver was in imminent danger of death or
serious injury. The inspector himself testified that the operator’s
representatives were only a few yards away from the truck where they had left
their radios. Tr. at 85. While the majority suggests we believe the inspector
should have “[tried] first to singlehandedly abate the potential danger,” slip
op. at 6 n.10, nothing in the record explains why he did not order the
operator’s representatives

to run to
retrieve their radios and order the scraper to stop immediately, if he believed
an imminent danger existed.

The
imminent danger provision in section 107(a) exists for one purpose: to prevent
serious injuries or loss of life by empowering an inspector to order immediate
withdrawal and cessation of mining activity until the danger no longer exists. An
inspector who fails to follow through under such circumstances is either
derelict or does not believe that an imminent danger truly exists, because a
reasonable person would never permit the continuation of the activity giving
rise to the danger. Whether the inspector should have single-handedly sought to
abate the violation is immaterial: it is beyond argument that the Act conferred
on him the power — and the duty — to take the steps necessary to protect miners
from the immediate risk of serious injury or death, if such danger reasonably
appeared to exist. It is also beyond argument that the inspector not only
failed to take any immediate action, he let the scraper continue its loop
through the mine.

Here
again the majority stumbles over inconvenient facts. If the inspector was truly
concerned about the scraper imperiling its operator at the site of the
embankment, there can certainly be no argument whatsoever that the inspector
should have used whatever time was available — as the machinery ponderously
made its way to the dump site — to ensure the equipment was stopped and removed
from service at once so that the danger could be abated. Thus, the majority
entirely ignores the immediacy component essential to the issuance and
enforcement of imminent danger orders. 

Of course, as noted above, the
inspector actually knew the driver was returning upgrade to the top of the
slope and so waited at the top of the grade for the driver to return, i.e., he
took no action at all despite his purported belief that the scraper operator
was in mortal peril. Such action, or rather inaction, is wholly inconsistent
with a finding of an imminent danger of death or serious injury to the driver.

Finally, in an effort to support an unsustainable
decision, the majority turns to incorrectly characterizing the testimony and
imagining areas and events not supported by any evidence. The testimony could
not be clearer that the inspector decided to issue the imminent danger order
when and because he observed the scraper crawling down the ramp at two mph.10

As the testimony turned out, it became
clear that movement down the 14% grade at two mph did not present an imminent
danger. By focusing on the two or three minute trip after the scraper stopped,
the majority effectively concedes
that the condition for which the inspector issued the order, the scraper
crawling down the grade at two mph and capable of stopping at any moment, did
not constitute an imminent danger.

Rather
than vacating the unwarranted order, the majority attempts to shift the focus away
from the reason for which the inspector issued the order — the controlled
descent down the ramp. To do so, they create a rationale for which there is no
evidence. Not only does the evidence show the order was issued for the passage
down the ramp, but also there is no meaningful testimony or other evidence to
support an imminent danger when the scraper resumed travel after stopping at
the bottom of the ramp.  

Every
witness testified that the scraper came to a complete stop at the bottom of the
ramp. Indeed, the inspector, albeit after initially refusing to admit it, saw
this complete stop. Further, the inspector also testified that he knew the
scraper would then complete an upgrade “loop” to the top of the grade from
where he departed — a loop that took all of 1.5 to 3 minutes. Tr. 39, 42, 159. Thus,
the inspector knew from his personal observation both that the scraper stopped
even when it was transporting a 70,000 pound load at the bottom of the grade. He
further knew the operator would drop the load and return to the top of the
grade within a couple of minutes.

To
build its theory for an imminent danger order, the majority cites a passage in
the transcript where the inspector testified that an embankment was under
construction. Slip op. at 4 (citing Tr. 34). The majority does not take into
account the fact that the embankment was under construction.[12]1 Embankments are not built from the top to
the bottom. The scraper was transporting material to build the embankment or to
provide a base for its construction. There is no possibility that the scraper
could overtravel an embankment when it was transporting material to build the
embankment, and the inspector did not offer any such testimony. The majority
notes the inspector testified that the scraper could “depart” the embankment. It
is impossible to fathom the meaning of that statement. If the inspector simply
means the scraper would leave the area to which it was bringing material for
construction then it is nothing more than saying he knew the scraper would
continue its two-minute loop to the starting point. If it is expressing some
sort of concern about overtraveling an embankment, then it is simply a
demonstration that the inspector failed to grasp that the material was being
used to build the embankment so the scraper was not in any danger of falling
from an embankment. This error, however, is only the beginning of the fatal
flaws in the majority’s effort to save the order.12

In
one passage the inspector, while focusing on the ramp, mentions “multiple
grades.” He said, “[t]he
equipment’s in operation in that condition; the equipment’s on a grade not
stopping -- not able to stop in an area with multiple grades.” Tr. 43-44. The
majority attempts to use this passing reference for which no evidence was
presented to sustain its theory. Nowhere in the inspector’s testimony or the
exhibits is there evidence of multiple grades. Other than this passing
reference there is no testimony by any witness about multiple grades in the
area. Were any such grades actually present? The inspector focused only on the
ramp for which he did a test to measure the percent slope. There is no evidence
of grades in the drop area or any imminent danger from any grades after the
scraper left the 14% ramp because there is no evidence about any such grades.

There
are photographs in the record that show the area below the ramp and the area
where the embankment was going to be constructed. Those photographs do not
depict any discernable grades and, again, the inspector did not offer any
testimony about the drop area such as the existence, size, spacing, slope, etc.
of any grades. The inspector did not testify that he saw the drop area, knew
what it looked like, or of what it consisted. His testimony was that he stopped
watching after the scraper reached the bottom of the ramp. In any event,
neither the inspector nor anyone else suggests that there was anything even
minimally approaching the 14% grade of the ramp.13

There
is no testimony about the speed of the scraper after it reached the bottom of
the ramp.14 There is no testimony asserting that
the scraper could not have easily stopped at any place on its return to the
start area. The majority has accepted that the scraper operator could stop the
scraper immediately after descending a 14% ramp carrying 70,000 pounds, but
then fabricated a proposition that it presented an imminent danger on the
return to the top of the grade. If, as the majority essentially admits, the
failure to stop when traveling with 70,000 pounds down a 14% grade is not an
imminent danger, it defies logic to suggest that an imminent danger existed on
its return trip with the scraper empty and traveling upgrade. However, even if
such a theory might be plausible, there is not substantial evidence in the
record to support it.

In
short, there is no evidence about grades in the drop area or on the return
trip, there is no evidence about speed, there is no evidence contending that
the scraper could not stop, there is much evidence that it could quickly stop, and
there is no evidence about the effect of such a stop. Indeed, the testimony
shows that the scraper stopped by using brakes alone while still carrying the
70,000 pound load and had stopped effectively all morning in areas off the 14%
ramp. Further, as noted, there is no testimony about any grade including the
length or steepness of a grade. Finally, there is no evidence that if a grade
actually existed, why the same techniques useable on the 14% ramp would not
have worked as effectively.

Here,
the majority rejects the real reason the inspector issued the imminent danger
order but creates out of whole cloth an alternate theory for which the
Secretary did not present any evidence. The majority is simply unwilling to
overturn a clearly meritless order.

CONCLUSION

In closing,
we affirm that an inspector should not hesitate in issuing an imminent danger
order when he perceives a reasonable expectation of death or serious injury
before a dangerous condition can be abated. However, in this case, the imminent
danger order, without doubt, is not objectively reasonable. The Commission
should not summarily affirm such clearly erroneous orders based upon
inconsistent testimony and obvious post-hoc rationalizations. Here, a review

of the record as a whole
demonstrates there was no objectively reasonable basis for the issuance of an
imminent danger order. We respectfully dissent.

/s/
Michael G. Young

Michael G. Young, Commissioner

/s/
William I. Althen

William I. Althen, Commissioner

[1] Section 107(a)
of the Mine Act, 30 U.S.C. § 817(a), provides an MSHA inspector with the
authority to order the withdrawal of miners if he observes a condition or
practice that he reasonably believes represents an imminent danger to miner
safety or health.

[2] A “scraper” is a “digging, hauling, and grading
machine having a cutting edge, a carrying bowl, a movable front wall (apron),
and dumping or ejecting mechanism.” Am. Geological Institute, Dictionary of
Mining, Mineral, and Related Terms 485 (2d ed. 1997).

[3]
The S&S terminology is taken from section
104(d)(1) of the Act, which distinguishes as more serious any violation that
“could significantly and substantially contribute to the cause and effect of a
. . . mine safety or health hazard.” 30 U.S.C. § 814(d)(1).

[4]
“Substantial evidence is ‘such relevant evidence
as a reasonable mind might accept as adequate to support [the judge’s]
conclusion.’” Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163
(Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)).

[5]
Knife River’s safety manager Kevin Smudrick,
testified that the scraper exited the graded road, stopped on level ground, and
then “took off again.” Tr. 175-76. Smudrick also stated that the inspector
asked him where the scraper was going and that Smudrick responded: “[w]ell,
evidently, you know, he doesn’t see us walking down. He’s probably going to go
dump his load and come back up to the top.” Id.

[6]
The dissent suggests that the inspector’s
testimony that the area contained “multiple grades” is insufficient. See
slip op. at 16. Notably however, Knife River did not challenge the inspector’s
characterization of the area surrounding the dumpsite in its Post-Hearing
Brief, nor did any of its three witnesses provide alternative evidence. Accordingly,
the inspector’s testimony was not contradicted.

[7]
Our dissenting colleagues ignore the issuing
inspector’s testimony. Instead, without citing any evidence, they independently
conclude that there was no possibility that a scraper with inadequate brakes
could depart the embankment.

[8]
Our dissenting colleagues conclude that because
the scraper’s brakes were tested at a low speed and because the scraper
eventually came to a stop on level ground, the inspector could not have
reasonably believed that its driver was in any serious danger during the test. See
slip op. at 9-10. Their analysis is flawed as it entirely ignores context;
the order was issued as the scraper drove away from the inspector toward the
dumpsite after demonstrating that its brakes were defective. Hence, the
inspector’s inquiry as to whether an imminent danger existed was not confined
to the testing conditions (involving a slow-moving truck on a grade with
barricades), but also properly took into account the fact that after leaving
the grade, the truck would travel at a faster speed in locations where it would
not be protected from overtravel by barriers. Tr. 39-41.

Our colleagues also ask
(somewhat ironically): “why did the inspector not ensure that the scraper
remained at the bottom of the grade once it stopped, instead of allowing [it]
to continue traveling through the mine with defective brakes?” Slip op. at 11. Of
course, the answer is that he did do something; the inspector ordered the representatives of the operator to stop
the driver immediately, pursuant to the authority provided by section 107(a) of
the Mine Act. The representatives of the operator simply failed to halt the
driver as they did not have their radios available at the time the order was
issued.  

[9] We note that no one disputes the outcome of the imminent
danger order (that the scraper be removed from service) and that the scraper
operator, unaware of the imminent danger order, parked the scraper and removed
it from service for repairs. KR Reply Br. at 9.

[10]
We are troubled by the dissent’s contention that
“[h]ere, there is also a real question of whether an abuse of discretion may be
found where an inspector issues an imminent danger order but does nothing to
prevent the continued operation of the subject machinery.” Slip op. at 8. This
statement appears to suggest that no inspector should issue an imminent danger
order without first trying to singlehandedly abate the potential danger, and
that the Secretary must put on evidence of such efforts in order to sustain an
imminent danger order, a contention we categorically reject. The issuance of an
imminent danger order is the tool a mine inspector uses to withdraw
miners from danger.

[11] A violation is S&S if, based on the particular
facts surrounding the violation, there exists a reasonable likelihood that the
hazard contributed to by the violation will result in an injury or illness of a
reasonably serious nature. See Cement Div., Nat'l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981). In Mathies Coal Co., the Commission further
explained:

In
order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor 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 in
question will be of a reasonably serious nature.

6
FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); accord Buck Creek Coal, Inc.
v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec'y
of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).

1 The Commission requires that an inspector make a reasonable
investigation that permits the Judge and Commission to determine whether the
facts known to him, or reasonably available to him, support the issuance of the
imminent danger. Island Creek,
15 FMSHRC at 346 (citing Wyoming Fuel Co., 14 FMSHRC 1282, 1292 (Aug. 1992)).
That element does not particularly come into play in this case. This case boils
down to whether the inspector acted in an objectively reasonable manner by
issuing and maintaining an imminent danger order when he observed a scraper
creep down a grade at two miles-per-hour and come to a complete stop at the bottom
of the grade.

2 Here, the Judge determined the violation was not
significant and substantial.

3 During his testimony, the inspector seemed to
emphasize that the scraper operator had not tested the brakes on that specific
grade before the inspector observed him. However, the inspector acknowledged
that the scraper operator had told him that the operator had tested the brakes
at the start of his shift and they were working fine where he was then
operating the scraper. Tr. 48, 154. The inspector also testified that: (1) the
scraper operator told him that he was going to start working a new area; (2)
the scraper operator himself suggested that grade as the appropriate place for
a test; and (3) the appropriate method of testing is for a fully loaded scraper
to travel the grade and attempt to stop. Tr. 33-34. Because this was the first
run of the day on that area, the absence of a prior “test” of the brakes in
that area with a full load before the inspector watched is a meaningless
distraction.

4
The inspector’s
testimony demonstrates that he had little understanding of how a scraper
operates. The inspector did not know about, or at least did not identify, the
important safety assistance provided by the equipment’s “retarder.” The
retarder slows the transmission and engine. Tr. 148. The retarder works
automatically if the scraper exceeds three mph. In this case, the retarder did
not come into play because the scraper never reached a speed at which it would
automatically operate. The inspector either did not know or, at least, did not
testify that he was aware that the retarder works as an auxiliary braking
system on the scraper.

5 The majority asserts the ground was level when the
scraper stopped; no testimony supports that assertion. However, if the ground
was level, or if the grade had diminished only minimally but the scraper was
able to stop, as the record establishes it did, there is no reasonable
explanation for the inspector’s failure to have the scraper remain at its
stopping point in the face of what he asserts was an imminent danger arising
from its continued operation.

6 Of course, a miner may not perceive the danger. In
this case, however, the inspector testified that the scraper operator was his
primary concern. Tr. 44-45. Therefore, the scraper operator’s testimony is
important because he identifies many objective reasons that were, or should
have been, known by the inspector, thus showing any alleged concern for the
operator was wholly and objectively misplaced.

7 A scraper drops its load by opening doors underneath
the scraper so the loaded material falls directly below it. Tr. 146. The
equipment does not lift a bed to dump material.

8 The inspector testified that he knew the driver was
wearing a seatbelt. Tr. 76.

9 It should be noted
that the scraper, a fairly-long piece of equipment, was in an enclosed roadbed
and thus could not logically have even encountered the walls containing its
travel head-on. It seems even less likely that any serious consequences could
fall upon the driver from an oblique low-speed collision.  

10          Q. Inspector,
I'd like to start with the order numbered 8699159 behind GX1 [imminent danger
order]. Why did you issue this order?

A. I issued this order when I observed a scraper unable to stop
on a grade.

Tr. 30.

Q. When the service brakes didn't stop the scraper on the ramp,
what did you do?

A. I turned to the agents of the operator and explained that if
I was seeing what I thought I was seeing -- in other words, a scraper not
stopping on a grade -- that was clearly an eminent [sic] danger-type
situation and that they needed to get that piece of equipment stopped
immediately and remove it from service so that the condition could be corrected
to protect people.

Tr. 41.

11 An
embankment is

A linear structure, usually of earth or gravel, constructed so
as to extend above the natural ground surface and designed to hold back water
from overflowing a level tract of land, to retain water in a reservoir,
tailings in a pond, or a stream in its channel, or to carry a roadway or
railroad; e.g. a dike, seawall, or fill.

Am.
Geological Institute, Dictionary of Mining, Mineral, and Related Terms
186 (2d ed. 1997). The drop area is the place where the scraper deposits
material for the floor of the impoundment or for use in constructing the
embankment

12  The inspector did testify to a fear that the scraper
might depart the drop site. However, he did not provide any testimony about
what that meant. Obviously, the scraper had to leave the drop site to return to
the top of the ramp. That does not support an imminent danger. The inspector
does not say how a scraper can overtravel a wide open area from which an
embankment is being constructed. The majority uses scraps of testimony to
support an unsustainable conclusion. Even assuming for argument’s sake that
this was the inspector’s primary concern, he obviously had more time available
for intervention between the issuance of the order and the scraper’s arrival at
the embankment site. While the inspector’s testimony about what happened in that
time is somewhat cloudy, it is clear that he did not use the time to order the
operator to intercept the scraper on its way to the embankment site.

13 The majority complains that operator witnesses did
not testify about the drop area. That is unsurprising. As noted at the outset
of our dissent, the testimony demonstrates that the inspector based his order
on the transit down the ramp. The majority’s reliance upon a passing and unsupported
reference to unknown “grades” in the drop area is simply part of its effort to
reassign the issuance of the order to an area of land that clearly played no
role in the inspector’s decision to issue the order while the scraper was on
the ramp.

14 The majority asserts the scraper would travel at
faster speeds. Slip op. at 5 n.8. Although it is logical to think the speed
would increase, the Secretary presented no evidence of the speed at which the
scraper drops its load or that the brakes would not work at such unknown speed
for the brief period until it dropped its load. Nor does it explain why the
same measures that could have slowed or stopped the scraper on the ramp would
not work in the drop area. They also assert the scraper would not be protected
by overtravel barriers. Perhaps, this comes from their misperception of how an
embankment is constructed. In fact, there is no evidence about the drop area
(its dimensions, topography, total size, perimeter, etc.) or how it could be
“overtraveled.” As elsewhere in its opinion, the majority does its own
construction — it constructs theories for which there is no evidence.