Secretary of Labor v. Wolf Mountain Coal, Inc.

Plain-English summary

A conveyor stopped when its pull cord was activated but unexpectedly restarted as soon as the switch was reset, rather than requiring a separate restart from the control panel. Judge Richard W. Manning held that the malfunction violated the electrical-maintenance standard and was S&S because a miner crouched near the belt could be caught and seriously injured by the unexpected movement. He found no negligence, however, because Wolf Mountain tested the switches weekly, more often than required, the switch had worked during its prior test, and the employee appeared surprised by the malfunction. The Judge modified the citation from moderate negligence to none and reduced the proposed $207 penalty to $100.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.502
• Outcome: The S&S violation was affirmed, negligence was reduced to none, and a $100 penalty was assessed.
• Key point: Strict liability can support a violation and S&S finding even when frequent, adequate inspections establish that the operator was not negligent.

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

September 09, 2015

SECRETARY OF LABOR

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),

Petitioner

v.

WOLF MOUNTAIN COAL, INC.,

Respondent

CIVIL PENALTY PROCEEDING

Docket No. WEST 2014-882

A.C. No. 24-00839-354603 Q131

Decker Mine

DECISION

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

David Bettcher,
Wolf Mountain Coal Company, Sheridan, Wyoming, 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 Wolf Mountain Coal, Inc. (“Wolf Mountain”) pursuant to
sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. §§ 815 and 820 (the “Mine Act”). The parties presented testimony and documentary
evidence at a hearing held in Billings, Montana, and presented oral argument
following the hearing. One section 104(a) citation was adjudicated at the
hearing. Wolf Mountain is an independent contractor that operates a coal
processing facility near Decker, Montana.

I. DISCUSSION WITH FINDINGS OF FACT

AND CONCLUSIONS OF LAW

Citation No. 8477208

On May 19, 2014, MSHA Inspector David Maynard[1]
issued Citation No. 8477208 under section 104(a) of the Mine Act, alleging a
violation of section 77.502 of the Secretary’s safety standards. (Ex. G-2). The
citation alleges that the pull-cord switch on the Silo Gathering Conveyor
immediately restarted the conveyor when returned to the reset position. The
conveyor should have not restarted until someone restarted it at a different
location. The malfunction of

the pull-cord
system leaves miners conducting weekly and monthly examinations of the system
susceptible to entanglement-type injuries when returning the pull-cord switch
to the reset position, which would result in lacerations, fractures, and
dismemberment.

Inspector Maynard determined that an injury was reasonably likely to
occur, that the violation was of a significant and substantial (“S&S”)
nature, and that any injury could reasonably be expected to be permanently
disabling. He determined that Wolf Mountain’s negligence was moderate and that
one person would be affected. Section 77.502 provides:

Electric
equipment shall be frequently examined, tested, and properly maintained by a
qualified person to assure safe operating conditions. When a potentially
dangerous condition is found on electric equipment, such equipment shall be
removed from service until such condition is corrected. A record of such
examinations shall be kept.

30 C.F.R. §
77.502. The Secretary proposed a penalty of $207.00 for this citation.

Discussion and Analysis

1. Evidence

Wolf Mountain operates a coal processing
facility at the Decker Mine but the coal it processes comes from the Spring
Creek Mine, which is a short distance away. (Tr. 15). During his inspection on
May 19, 2014, Inspector Maynard asked the operator to pull the pull-cord on
each conveyor at the facility to check to see if it functioned properly. (Tr.
14). He also asked the operator to restart each conveyor. The inspector
testified that a conveyor is not supposed to automatically restart when the
pull-cord switch is reset. (Tr. 34-35). Instead, for safety reasons, the
operator needs to reset the pull-cord switch and then go to the control room or
another location to restart the conveyor. The pull-cord switch is inside a box
mounted on the frame of the conveyor. (Ex. R-1, p. 4). The pull-cord is
attached to a red lever on the outside of the box. When the cord is pulled, the
lever turns counter-clockwise, pops out, and locks in that position. That action
opens the electrical circuit and the conveyor stops. To reset the pull-cord
switch, the operator pushes in the red lever while turning it in a clockwise
direction.

All the pull-cord switches at Wolf
Mountain’s facility functioned properly when the pull-cords were pulled; each
conveyor immediately stopped upon a pull of its cord. Except for the Silo
Gathering Conveyor, none of the conveyors restarted when the pull-cord switch
was reset. In the case of the Silo Gathering Conveyor, however, the belt immediately
restarted when the pull-cord switch was reset. (Tr. 16). The entire length of
the belt is not visible from that position. The inspector stated that the “belt
should get re-energized from another location or from the main start-up
switch.” Id. The belt should restart once the switch is flipped at the
control panel. (Tr. 25, 28-29; Ex. R-1 p. 6).

As stated above, Inspector Maynard
testified that when he asked the Wolf Mountain employee who was accompanying
him on his inspection to pull the cord for the Silo Gathering Conveyor, the
conveyor stopped immediately. (Tr. 31). The company representative seemed
surprised when the belt started as soon as he reset the pull-cord switch. (Tr.
33). Inspector Maynard testified that “[i]t was apparent that [the employee]
knew that was not the way it was supposed to function.” Id.

Inspector Maynard cited Wolf
Mountain for a violation of section 77.502 because the pull-cord switch, which
is electric equipment, did not function correctly when it was reset. The
operator failed to “maintain electrical equipment in safe operating condition.”
(Tr. 34). The inspector testified that the violation created a discrete safety
hazard. Someone could easily become entangled in the moving belt as he reset the
switch because he would be “in very close proximity to the conveyor” and he
would not be expecting the belt to restart. (Tr. 36). The belt would be about
eight to twelve inches from where the individual would be standing. (Tr. 50). He
could be crouching down beside the framework of the conveyor as he reset the
switch and he might be holding onto the framework for leverage or to keep his
balance. (Tr. 36-37, 53-54). Because the pull-cord switch is located at the end
of the conveyor, if someone were to be caught in the moving belt, he would be
pulled into a pulley. (Tr. 37, 63-64). The types of injuries the inspector
would expect to see are “strains, sprains, dislocations, and small digit
dismemberment.” Id.

Someone might use the pull-cord to
stop a conveyor in a number of situations, such as when cleaning up under the
belt or in an emergency situation. A rake with a long handle for cleaning up
accumulations was leaning against the frame of the conveyor system. (Tr. 46;
Ex. G-4). If someone’s clothing, such as a coat, becomes entangled between the
belt and the rollers, the pull-cord could be used to shut down the belt. It is
also possible that coal fines could start to smolder if frictional heat is
being generated and someone would use the pull-cord to shut down the belt. Finally,
an electrician is required to test the pull-cord switch on a monthly basis. At
this facility, the system is checked on a weekly basis. (Tr. 58-59). The
pull-cord switch would need to be reset to put the belt back into production
every time the cord is pulled. The inspector believed that an injury was
reasonably likely to occur assuming continued mining operations. (Tr. 46-48).[2]

2. Violation

The Commission and the courts have uniformly held that mine operators are
strictly liable for violations of safety and health standards. See, e.g.
Asarco v. FMSHRC, 868 F.2d 1195 (10th Cir. 1989). “[W]hen a
violation of a mandatory safety standard occurs in a mine, the operator is
automatically assessed a civil penalty.” Id. at 1197. The negligence of
the operator and the degree of the hazard created by the violation are taken
into consideration in assessing a civil penalty under section 110(i). 30 U.S.C.
§ 820(i).

The Commission interprets safety standards to take into consideration
“ordinary human carelessness.” Thompson Bros. Coal Co., 6 FMSHRC 2094,
2097 (Sept. 1984). “Even a skilled employee may suffer a lapse of
attentiveness, either from fatigue or environmental distractions[.]” Great
Western Electric Co., 5 FMSHRC 840, 842 (May 1983).

I find that the Secretary
established a violation of section 77.502. Although the pull-cord switch was
frequently tested by a qualified person, it was not functioning properly at the
time of MSHA’s inspection. The belt shut down immediately when the cord was
pulled. As a consequence, the greatest hazard presented by a faulty pull-cord
switch was not present. Nevertheless, the belt immediately started when the
pull-cord switch was reset. This fact creates a hazard because the person
resetting the switch would not expect the belt to start. He might be positioned
close to belt as he resets the switch and, because he would not be expecting
the belt to start, he could become entangled and injured by the moving belt.

Wolf Mountain argues that a miner
would more likely reset the pull-cord switch from a standing position away from
the belt as illustrated in its photograph. (Ex. R-1, p. 1). The miner
accompanying Inspector Maynard reset the switch from a crouched position near
the belt, however. Given that a miner would not be expecting the belt to start,
it is entirely foreseeable that a miner would not think it would be necessary to
be a safe distance from belt when resetting the switch.

3. Significant
and Substantial

I find that the Secretary
established that the violation was S&S.[3]
There was a violation of a safety standard that created a discrete safety
hazard. The hazard included the risk that someone would get caught in the
moving belt when resetting the pull-cord switch. He would not expect the belt
to move so he would not feel it necessary to be in a safe position.

Whether it was reasonably likely
that the hazard contributed to by the violation will result in an injury is a
close issue in this case. The “reasonably likely” requirement does not require
the Secretary to prove that an injury was “more probable than not.” U.S.
Steel Mining Co., 18 FMSHRC 862, 865 (June 1996). The “Secretary need not
prove a reasonable likelihood that the violation itself will cause injury” but,
rather, that the hazard contributed to by the violation will cause an injury. Musser
Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010);
Cumberland Coal Res., 33 FMSHRC 2357, 2365 (Oct. 2011). For the reasons
discussed above, I find that the hazard contributed by the violation would
reasonably be expected to result in an injury. I credit Inspector Maynard’s
testimony on this issue. An experienced MSHA inspector’s opinion that a
violation is S&S is entitled to substantial weight. Harlan Cumberland
Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998). Any injury would be of a
reasonably serious nature. I credit Inspector Maynard’s testimony that expected
injuries would include strains, sprains, dislocations, and small digit
dismemberment.

4. Negligence

Wolf Mountain was represented at
the hearing by David Bettcher, who is a plant foreman. He argued that the
violation was not S&S. In closing arguments he stated:

I just feel that this shouldn't have
been an S&S, it should have been written up as a non-S&S. I mean, we
could have tested it the day before, and it worked great. We could have, which
we did several days prior to that, and everything worked fine.

(Tr. 73). I conclude that this argument relates to the
negligence of Wolf Mountain rather than to the issues of S&S and gravity. Given
that Wolf Mountain was not represented by counsel and that I must enter
negligence findings based on the evidence introduced at the hearing, I have
considered all the evidence presented when applying the negligence criterion to
the facts of this case. The Secretary does not dispute that Wolf Mountain
checked its pull-cord switches weekly and that the most recent test was
performed on May 12, 2014. (Tr. 58-59; Ex. G-2). There is no evidence that the
switch malfunctioned when tested on that date. The fact that all the other
pull-cord switches worked properly when tested during MSHA’s inspection, and
that Wolf Mountain’s employee acted surprised because the belt restarted when
he reset the pull-cord switch during the inspection, supports a finding that
the malfunction occurred sometime since the previous test.

The Commission has recognized that “[e]ach
mandatory standard . . . carries with it an accompanying duty of care to avoid
violations of the standard, and an operator’s failure to meet the appropriate
duty can lead to a finding of negligence if a violation of that standard
occurs.” A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In
determining whether an operator has met its duty of care, the Commission considers
“what actions would have been taken under the same circumstances by a
reasonably prudent person familiar with the mining industry, the relevant
facts, and the protective purpose of the regulation.” Jim Walter Res. Inc.,
36 FMSHRC 1972, 1975 (Aug. 2014) (footnote omitted).

I find that Wolf Mountain was not
negligent with respect to this violation. It fully met its duty of care. It
frequently examined and tested the cited pill-cord switch. It performed these
examinations weekly rather than monthly as required by safety standard. 30
C.F.R. § 77.502-2. There is no evidence that it did not properly maintain its electric
pull-cord switches; indeed the evidence clearly shows that it did all that it
could to maintain its pull-cord system. A potentially dangerous condition had
not been discovered during Wolf Mountain’s previous test of the pull-cord
switch. A reasonably prudent person familiar with the mining industry, the salient
facts, and the protective purpose of the safety standard would agree that Wolf
Mountain met its duty of care with respect to compliance with the safety
standard.

I MODIFY Citation No. 8477208 to indicate that the violation of
was not the result of Wolf Mountain’s negligence. In all other respects the
citation is affirmed. Although I am not bound by the penalty point system
developed by MSHA, I note that if the penalty is recalculated using MSHA’s
system taking into consideration my no negligence finding, the penalty would be
about $100.00 with the reduction for good faith abatement. 30 C.F.R. § 100.3. I
find that a penalty of $100.00 is appropriate for this violation. I considered
all of the penalty criteria in assessing this penalty.

II. APPROPRIATE CIVIL PENALTIES

Section
110(i) of the Mine Act sets forth the criteria to be considered in determining
an appropriate civil penalty. The parties stipulated that Wolf Mountain has a
history of three violations during the previous 15 months, only one of which
was designated as S&S. (Ex. G-1). Respondent is a small to medium-sized independent
contractor. The violation was abated in good faith. The penalty assessed in
this decision will not have an adverse effect upon its ability to continue in
business. The gravity and negligence findings are set forth above.

III. ORDER

Citation
No. 8477208 is MODIFIED to show that Wolf Mountain was not negligent
with respect to the cited violation. Wolf Mountain Coal, Inc. is ORDERED TO PAY
the Secretary of Labor the sum of $100.00 within 30 days of the date of this
decision.[4]

/s/ Richard W.
Manning

Richard
W. Manning

Administrative
Law Judge

Distribution:

Daniel R McIntyre, Esq., Office of the Solicitor, U.S.
Department of Labor, 1244 Speer Blvd., Suite 216, Denver, CO 80204-3518
(Certified Mail)

Wolf Mountain Coal, Attention: David
Bettcher, P.O. Box 6206, Sheridan, WY 82801 (Certified Mail)

RWM

[1]
Maynard has been a coal mine inspector with MSHA
for about four years. (Tr. 6). Prior to his employment with MSHA, he earned a
Bachelor of Science degree in civil engineering. Upon graduation, he worked for
several engineering companies doing structural design for industrial
facilities, including a coal processing facility. (Tr. 6-9). 

[2]
Wolf Mountain did not present any testimony at
the hearing except in response to questions posed by the judge. (Tr. 62-65) The
Secretary introduced two of Wolf Mountain’s exhibits, which were admitted into
evidence. (Ex. R-1 pgs. 1-6; Video Exhibit).

[3]
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). 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).

[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.