Secretary of Labor v. Trapper Mining, Inc.

Plain-English summary

MSHA cited Trapper Mining for lacking insulating material at a pond's power-control switch, allowing drill dust to escape through a raised curtain, and performing work on a dragline while its bucket remained suspended. Judge Richard W. Manning affirmed all three violations. He held that the electrical standard controlled despite confusing MSHA policy guidance, visible uncontrolled dust was enough to prove ineffective dust controls without sampling, and disc brakes did not securely block the raised dragline bucket. The Judge reduced the electrical citation's negligence to none and the dust citation's negligence to low, left the dragline citation at moderate negligence, and assessed the proposed total penalty of $300.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 72.620, 77.405(a), and 77.513
• Outcome: All three citations were affirmed, two negligence findings were reduced, and penalties totaling $300 were assessed.
• Key point: Nonbinding MSHA policy can mitigate negligence, but it does not override clear mandatory standards or excuse ineffective dust controls and unsecured raised equipment.

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
15, 2015

SECRETARY OF LABOR

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),

Petitioner

v.

TRAPPER MINING, INC.,

Respondent

CIVIL PENALTY PROCEEDINGS

Docket No. WEST 2015-214

A.C. No. 05-02838-366343

Docket No. WEST 2015-317

A.C. No. 05-02838-368857

Trapper Mine

DECISION

Appearances:               Michelle A. Horn, Esq.,
Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, for
Petitioner;

Karl C. Koehler,
Safety Manager, Trapper Mining, Inc., Craig, Colorado, for Respondent.

Before:                                    Judge
Manning

These
cases are before me upon petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration
(“MSHA”), against Trapper Mining, Inc. (“Trapper”) 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 Steamboat Springs, Colorado, and presented oral argument
following the hearing. Three section 104(a) citations were adjudicated at the
hearing. Trapper operates a surface coal mine in Moffat County, Colorado.

I. DISCUSSION WITH FINDINGS OF FACT

AND CONCLUSIONS OF LAW

My findings of fact in this decision are based on the record as a whole
and my observation of the witnesses. Although I have not included a summary of
all the evidence presented at the hearing in this decision, I fully considered
all of the evidence.

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. In addition, the
Secretary is not required to prove that a violation creates a safety hazard,
unless the safety standard so provides.

The
[Mine Act] imposes no general requirement that a violation of MSHA regulations
be found to create a safety hazard in order for a

valid
citation to issue. If conditions existed which violated the regulations,
citations [are] proper.

Allied
Products, 666 F.2d 890, 892-93 (5th Cir. 1982) (footnote
omitted). 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).

A. Citation No. 8478965; WEST
2015-214

On September 20, 2014, MSHA Inspector Art C. Gore[1]
issued Citation No. 8478965 under section 104(a) of the Mine Act, alleging a
violation of section 77.513 of the Secretary’s safety standards. (Ex. G-1). The
citation alleges that there was no dry wooden platform, insulating mat, or
other electrically nonconductive material kept in place at the electrical boxes
and power-control switch for the aerator at a pond near the pit.

Inspector Gore determined that an injury was unlikely, that the violation
was not of a significant and substantial (“S&S”) nature, but that any
injury could reasonably be expected to result in lost workdays or restricted
duty. He determined that Trapper’s negligence was moderate and that one person
would be affected. Section 77.513 provides, in part, that “[d]ry wooden
platforms, insulating mats, or other electrically nonconductive material shall
be kept in place at all switchboards and power-control switches where shock
hazards exist.” (30 C.F.R.

§ 77.513). The
Secretary proposed a penalty of $100.00 for this citation.

Discussion and Analysis

1. Evidence

Inspector Gore issued the citation at a pond,
often called Trapper Lake, which is used as a source of water for water trucks.
(Tr. 10-11). Trapper uses a snow-making machine to aerate the pond to increase
the evaporation rate when the water level gets too high. (Tr. 45-46). The cited
electrical boxes were mounted on a stand with two metal poles in the ground. (Ex.
G-3). This installation provided power to a barge floating on the pond. A pump
and the aerator were mounted on the barge. There is a switch on one of the two
electrical boxes. The inspector testified that the metal stand for the boxes
was probably grounded. (Tr. 12). Nothing had been placed in front of the
electrical boxes that would insulate anyone operating the switch from the
earth. A dry wooden platform, insulating mat, or other nonconductive material
would have protected a miner from a shock hazard. (Tr. 12-13, 22). The
inspector believed that there was a chance that, if an electrical component in
one of the boxes failed, the box could become energized even though it was
grounded. (Tr. 18-19). Inspector Gore testified whether someone would receive a
shock would depend on various factors including “body resistance, the type of
shoes the person was wearing, [and] the ground moisture[.]” (Tr. 13). It does
not take much current to damage someone’s heart. (Tr. 13-14). Although the
surface of the earth appeared dry at the time of the inspection, conditions can
change and it can be wet just beneath the surface when it is dry on top. The
condition was abated by moving a wooden pallet in front of the stand. (Ex.
R-3). If this same installation had been inside a building, there would not
have been a violation. (Tr. 28).

Inspector Gore determined that it was not
reasonably likely that anyone would be injured by the violation. (Tr. 16). He
said that he reached that conclusion because it was unlikely that the
electrical components would fail and he did not believe that anyone used the
switch very often. “[I]t’s pretty much mostly automated.” Id. He
determined that Tapper’s negligence was moderate because the “mine has a very
safe history” and a “very good crew that maintains their electrical system.” (Tr.
17). The electrical “equipment is well maintained” at this mine. Id.

Chet Steele[2],
the electrical supervisor at the mine, testified that section 77.901 requires
that three-phase portable electrical equipment be held to a higher standard than
non-portable equipment. Because the equipment on the barge is portable, the
circuit employs neutral ground resistors that limit ground fault current to 15
amps. (Tr. 45). This ground phase protection will trip if there is any current
at all flowing on the ground wire. Id. It also employs a ground monitor
circuit that continuously monitors the grounding system, and it opens if there
is any failure of the grounding conductors. Id. Steele testified that
the electrical installation did not present an electric shock hazard. (Tr. 48).
A series of unlikely events would have to occur before a shock hazard would be
present. (Tr. 48-49, 58, 61).

He also testified that, whenever
the water level in the pond gets too high, the pump and aerator are activated in
order to increase the evaporation rate. Once the water level recedes, the
system is turned off. (Tr. 45-46). Someone comes to the installation about once
a week to turn the system on or off.

Trapper introduced into evidence the Secretary’s
Program Policy Manual (“PPM”) for section 77.513. The PPM states “[e]nclosed
power-control switches such as portable circuit breakers of switch houses that
are supplied power from a resistance-grounded system, as required by Section
77.802 or 77.901, are not considered to pose a shock hazard.” (Ex. R-1, V MSHA,
U.S. Dep’t of Labor, Program Policy Manual, Part 77, at 180 (2015)). Trapper
contends that the cited electrical installation fits within this exception to
the safety standard because the power-control switch was enclosed and it was
supplied power from a resistance-grounded system as required by section 77.901.
(Tr. 51, 61-62). As a consequence, it believes that the Secretary has
administratively determined that the installation did not present a shock
hazard.

The Secretary agrees that the switch in question
was a “power-control switch” and that power to the switch was supplied from a resistance-grounded
system. (Tr. 31). The factual dispute concerning the application of this
provision of the PPM concerns whether the switch was “enclosed” as that term is
used in the PPM. Steele testified that the switch for the pump was enclosed and
only the switch operator was outside the box. “The only thing that protrudes on
the outside of this box is a switch operator made of plastic.” (Tr. 49). The
electrical switch is totally enclosed and protected by the box. (Tr. 49-50). What
Steele called the “switch operator” is the plastic knob for the switch. To use
the analogy of a light switch, the electrical components of the switch are
enclosed but the plastic device used to activate the switch protrudes outside
the enclosed box. In this case the plastic device was a red knob. (Exs. G-3,
R-3). Steele testified that he has been confused about the requirements of the
safety standard his entire career and he has received conflicting advice from
MSHA inspectors. (Tr. 50-51, 55). He believes, however, that the PPM makes it
quite clear that an insulating mat or dry wooden platform was not required at
the cited electrical installation. (Tr. 51-53).

Inspector Gore admitted that the language in the
PPM is confusing. (Tr. 30, 40). He testified, however, that in his opinion the
switch includes the red knob that protruded outside the box. (Tr. 39; Exs. G-3,
R-3). Thus, it is his belief that the sentence from the PPM quoted above does
not apply to the facts of this case because the switch was not an “enclosed”
power switch.

2. Violation

This alleged violation raises a
number of legal issues. This standard, unlike some other standards,
specifically requires that the Secretary prove that a hazard existed, in this
case an electric shock hazard. Without proof of an electric shock hazard, there
is no violation.

The safety standard does not limit
its application to “enclosed power-control switches.” Rather it provides that
insulating material must be provided at “all switchboards and power-control
switches where shock hazards exist.” In the PPM, the Secretary attempted to
give some definition as to when a shock hazard exists. First, the PPM makes
clear that the standard applies “only if a shock hazard exists.” (Ex. R-1). It
then lists examples of situations where a shock hazard does exist and it
provides the example cited above and states that such an installation does not
present a shock hazard.[3]

I credit the testimony of Inspector
Gore that situations could arise in which a platform or mat would be necessary
to prevent an electric shock to a person using the switch at issue here. He
determined that it was unlikely that anyone would receive an electrical shock,
but it was possible. (Tr. 16). A number of safety devices would have to fail for
a shock hazard to be present. Consequently, Inspector Gore determined that the
condition created was not S&S. Although both the inspector and Steele had
extensive experience in electrical safety issues, I credit the testimony of the
inspector that an electric shock was possible but unlikely.

The difficulty comes from the fact
that there has been confusion about the application of this standard at the
mine. Inspector Gore admitted that the PPM is confusing. (Tr. 30, 40). Inspector
Gore testified that “[s]ometimes when they say power switch [in safety
standards or the PPM] it’s not actually talking about like a light switch that
you throw. It’s talking about a disconnect that is inside this box, a line
starter or some form of disconnect that will disconnect the power.” (Tr. 40). I
find that this PPM contemplated switches that are fully enclosed, including the
knob for the switch. Otherwise, a significant number of switchboards and other
power-control switches would be exempted from the requirements of the safety
standard. The broad interpretation of the exception in the PPM suggested by
Trapper would defeat the purpose of the safety standard. The intent was to
carve out a narrow exception for fully enclosed switches.

Trapper is, in essence, raising
a fair notice defense. It is arguing that it was not able to determine when
insulating material is required at switchboards and power-control switches
under the safety standard. When evaluating a party’s fair notice argument the
judge should first look to see if the language of the standard “provides clear
and unambiguous notice of its coverage and requirements[.]” DQ Fire &
Explosion Consultants, Inc., 36 FMSHRC 3083, 3087 (Dec. 2014) (citing Bluestone
Coal. Co., 19 FMSHRC 1025, 1029 (June 1997) and Nolichuckey Sand Co.,
22 FMSHRC 1057, 1061 (Sept. 2000)). Here, the language of the standard is clear
and unambiguous. It requires that operators place dry wooden platforms,
insulating mats, or other nonconductive materials at switchboards and power
control switches where shock hazards exist. The only question is whether an
installation presents a shock hazard.

The confusion
arises because the PPM attempted to provide guidance as to the risk of a shock
hazard at different types of installations in a clumsy manner. The Commission
has explained that a PPM is not binding on either the Secretary or the
Commission. D. H. Blattner & Sons, Inc., 18 FMSHRC 1580, 1586 (Sept.
1996); King Knob Coal Co., 3 FMSHRC 1417, 1420 (June 1981). While the
PPM may provide guidance on an issue, it “lack[s] legal effect and thus cannot
be used against the Secretary as grounds to estop a finding of violation.” Consolidation
Coal Co., 22 FMSHRC 340, 364 n. 31 (Mar. 2000) (citing King Knob Coal
Co., 3 FMSHRC at 1419-1422). Moreover, where the PPM creates an exception
to the clear language of a standard, the standard controls and operators must
comply with the express language of the mandatory standard. King Knob Coal
Co., 3 FMSHRC 1417, 1420-1421 (June 1981); See Jim Walter Res., Inc.,
27 FMSHRC 757, 824 (Nov. 2005) (ALJ). In this instance, the exception in the
PPM must be narrowly construed to effectuate the objectives of the safety
standard.

Because the PPM
could be construed as granting an exemption to the requirements of 77.513 at
the cited electrical installation, I find that Trapper was not negligent with
respect to this violation. Inspector Gore admitted that the Secretary’s
interpretation of the safety standard is confusing. Trapper relied on the
language of the PPM when it determined that it was not required to place an
insulating mat at the cited location. In King Knob Coal Co., the
Commission explained that, while an operator’s reliance on an exception set
forth in MSHA’s policy guidance will not prevent the finding of a violation of
a mandatory standard, the judge may properly address that reliance in his
negligence findings. 3 FMSHRC at 1421-1422.

The gravity of
the violation was low and Trapper was not negligent. A penalty of $100.00 is
appropriate for this violation.

B. Citation No. 8479045; WEST
2015-317

On October 7, 2014, MSHA Inspector James E. Ellenberger[4]
issued Citation No. 8479045 under section 104(a) of the Mine Act, alleging a
violation of section 77.1007(a) of the Secretary’s safety standards. (Ex. G-4).
The citation was subsequently modified to allege a violation of section 72.620.
The citation alleges that a drill being used at the L-Dip Pit was not
effectively controlling the drilling dust being generated. The citation notes
that a surveyor was observed on the ground at the same drill pattern and a
corner of the front dust curtain had been tied in an up position with a rope.

Inspector Ellenberger determined that an injury was unlikely, that the
violation was not S&S, but that any illness or injury would reasonably be
expected to be permanently disabling. He determined that Trapper’s negligence
was moderate and that one person would be affected. Section 72.620 provides, in
part, that “[h]oles shall be collared and drilled wet, or other effective dust
control measures shall be used, when drilling non-water-soluble material.” (30 C.F.R.

§ 72.620). The
Secretary proposed a penalty of $127.00 for this citation.

Discussion and Analysis

1. Evidence

Inspector Ellenberger testified that he was at the top of the L-Dip Pit
observing the drill pattern when he saw that the drill was “putting out a lot
of drill dust as it was drilling.” (Tr. 67). The drill is a large piece of
mobile equipment on caterpillar tracks. (Ex. G-5). The operator of the drill sits
in an enclosed cab. Rubber skirting material was mounted on the underside of
the framework of the drill to contain dust. It was drilling on “sandy clay-type
overlay material” with solid rock underneath. (Tr. 67). The material being
drilled was not water soluble. “[C]ompressed air blows the drill cuttings out
of the hole and they inject water into that system so it goes into the hole and
suppresses the dust.” (Tr. 67-68). The inspector observed dust escaping from
under the drilling machine because a corner of the rubber skirting had been
tied so that it was lifted off the ground. (Tr. 69; Ex. G-5).

Inspector
Ellenberger observed someone walking on the drill pattern. This person was a
surveyor and he was within 120 feet of the drill and downwind from the dust. (Tr.
70). The inspector asked the drill operator why he had the dust skirt tied up and
was told that he encountered wet conditions as he was drilling so he turned the
water sprays down and lifted a corner of the dust curtain. (Tr. 71).

Justin Fedinec[5],
a safety engineer at the mine, is a certified dust sampler. (Tr. 83). He was
with the inspector when this citation was issued. He said that the surveyor was
at a lower elevation at the time the citation was issued. (Tr. 85). He
testified that the drill operator said that muddy conditions were making
drilling difficult so he turned the water down. He pulled back part of the dust
curtain so he could look down from the cab and see whether he had hit the coal
seam by looking at the cuttings. (Tr. 86-87, 91-92). The drill operator is
protected because he works in an environmental cab with seals around the door
and windows and the air entering the cab is filtered. (Tr. 92).

Inspector
Ellenberger testified that an injury or illness was unlikely and that the
violation was not S&S. (Tr. 71). The surveyor was not close to the drilling
machine, the drill operator was in an enclosed booth and was not exposed, and
not all of the dust was escaping into the atmosphere. (Tr. 72). Inspector
Ellenberger marked the citation as “permanently disabling” because silicosis is
a serious disease. (Tr. 77-78, 101). He marked the negligence as moderate
because there was no supervisor around and when he showed the drill operator
the photo he took of the escaping dust, the operator responded that he did not
know that he “was making that much dust.” (Tr. 73). The inspector did not take
a dust sample.

Fedinec
testified that the conditions he observed did not create a health risk for
anyone and that other activities at the mine were producing dust as well, such
as a dozer clearing off brush and top soil at a different location. (Tr.
87-88). A dust sample is necessary to determine whether a health hazard has
been created. (Tr. 88). When Trapper takes its own dust samples, the results
are typically ten times below MSHA’s requirement for silica dust. (Tr. 89-90). The
surveyor would not have spent more than 20 minutes on the drill pattern that
day so he was not exposed in any meaningful way.

2. Violation

I find that the Secretary
established a violation. The safety standard does not require the inspector
take a dust sample or the Secretary to establish that the dust observed exceed
the threshold limit value for coal or silica dust. The Secretary established
that Trapper had elevated one of the dust curtains around the drill, which
allowed dust to escape. As a consequence “effective dust control measures” were
not being “used” at the time the citation was issued. 30 C.F.R. § 72.620. See
Hobet Mining Inc., 20 FMSHRC 889, 898 (Aug. 1998) (ALJ). In this instance,
raising the corner of the dust curtain rendered a dust control device
ineffective and it was permissible for the inspector to make this determination
by visual examination alone.[6]

The Secretary is not contending
that the violative condition was reasonably likely to result in an injury or
illness. The violation was serious because overexposures to silica or coal dust
can, over time, have a significant negative effect on the lungs of miners. The exposure
was minimal in this instance because the only affected miner, the surveyor, was
a considerable distance away and he was only in the area for a short time.[7]

I find that the evidence
establishes that Trapper’s negligence was low in this instance.[8]
Management was not aware of the condition and the drill operator did not
realize that he was producing so much dust. A penalty of $100 is appropriate
for this violation.

C. Citation No. 8479046; WEST
2015-317

On October 7, 2014, MSHA Inspector Ellenberger issued Citation No.
8479046 under section 104(a) of the Mine Act, alleging a violation of section
77.405(a) of the Secretary’s safety standards. (Ex. G-6). The citation alleges
that several miners were observed working on or from the Queen Ann dragline,
located at the K-Strike Pit, with the bucket suspended in the air as they
rerouted the trailing cable and then reconnected it at the pothead on the
dragline’s tub, under the drag rope fairleads.

Inspector Ellenberger determined that an injury was unlikely, that the
violation was not S&S, but that any injury would reasonably be expected to result
in lost workdays or restricted duty. He determined that Trapper’s negligence
was moderate and that one person would be affected. Section 77.405(a) provides:

Men
shall not work on or from a piece of mobile equipment in a raised position
until it has been blocked in place securely. This

does
not preclude the use of equipment specifically designed as elevated mobile work
platforms.

(30 C.F.R. §
77.405(a)). The Secretary proposed a penalty of $100.00 for this citation.

Discussion and Analysis

1. Evidence

Inspector Ellenberger testified
that he was at the K-Strike Pit when he saw people working around the large
dragline known as the Queen Ann and the bucket was suspended in the air. (Tr.
104). The bucket is very large and heavy but it did not have any material in it.
The inspector saw electricians in the area. The miners had disconnected the
trailing cable from the dragline. He understood that the electricians had
inserted another section of trailing cable and they were about to reconnect the
trailing cable to the dragline. There were also mechanics present. (Tr. 107). Nobody
was working on the bucket or using the bucket as a work platform. (Tr. 124). Everyone
was on the ground near the dragline. (Tr. 128). The power was off at this time.
The inspector testified that when the power is off, the bucket should be on the
ground. (Tr. 106, 112). He saw them working in the fairleads area.[9]
He was “astounded” when he saw that the bucket was in a raised position because
he had “never seen that before.” (Tr. 107). He did not observe anyone walking
under the bucket. Id.

The inspector believed that the
only thing holding up the bucket were the brakes on the hoisting mechanism. Id.
The Queen Ann was equipped with a disc braking system. The disc brakes clamp a
rotor by way of mechanical components. (Tr. 108). All of these parts are
subject to wear and tear. (Tr. 108, 119). The bucket is suspended from cables
that go up through the boom. (Tr. 109). Inspector Ellenberger’s primary concern
was that the dragline operator no longer had any control over the bucket because
the power was off. (Tr. 110-11). The entire hoist system was under load. (Tr. 132-33;
Ex. G-9). The inspector saw “energy that [was] not controlled.” (Tr. 110). If
this energy was released and the bucket fell, it would be “catastrophic.” (Tr.
111). Parts and wire rope would be flying around and someone could be injured. (Tr.
111, 120-23).

He determined that failure of any
of the numerous components helping to hold up the bucket was unlikely, however.
(Tr. 111, 131-32). He also did not observe anyone in the machine house or
underneath the suspended bucket. (Tr. 112). If someone were to be injured as a
result of this violation, he would suffer lost workdays or restricted duty at
the very least. (Tr. 112-13). He determined that the violation was a result of
the Trapper’s moderate negligence because management personnel were not present.
Id.

Brian Smith,[10]
a maintenance manager for Trapper, testified that he disagreed with the
inspector’s characterization of the disc brakes on the dragline as a “service
brake” because in normal operations the disc brakes are not used. (Tr. 138). The
bucket load is controlled by the dynamic braking system using the direct
current motors on the dragline. Id. The disc brakes are rarely used and
are not subject to much wear. They are only used in an emergency. Id. Given
the testing that Trapper performed on the disc braking system on draglines, he
believes that the disc brakes were capable of safely holding the bucket in the
air for a lengthy period of time. (Tr. 140-41, 145-46). Whenever the power is
off, including during an unexpected power failure, the disc brakes
automatically set. (Tr. 148).

Trapper regularly completes
preventative maintenance on its draglines, including the Queen Ann, after about
168 hours of operation. (Tr. 142). The disc brakes are carefully examined for
wear during these examinations. The rigging for the boom and bucket are also
examined and replaced, as necessary. Smith has never seen rigging fail in a
static condition. (Tr. 143). If the bucket had fallen while the miners were
working on the drag line, it would have fallen straight down and the drag ropes
would not have snapped back towards the machine. (Tr. 144). Because the miners
were working at the base of the dragline, they were not located in the zone of
danger. (Tr. 149). They were about 100 feet away. Id.

2. Violation

I find that the Secretary
established a violation. The safety standard states that “men shall not work on
. . . a piece of mobile equipment in a raised position until it has been
blocked in place securely.” As stated above, the Secretary is not required to
establish that a violation of a safety standard created a significant safety
hazard. If conditions exist which violate a standard, a citation is proper. There
is no allegation that miners were working from the bucket, but they were
performing work on the dragline while the bucket was in a raised position. Although
they were not working directly under the bucket, they were working on the same
side of the dragline as the boom and bucket. I find that it was unlikely that
anyone would have walked directly under the bucket while it was in a raised
position, but I credit the inspector’s testimony that, if there was any sort of
mechanical failure that caused the bucket to fall, it could be catastrophic. The
cables could snap about and strike someone working in the vicinity of the boom.
The photograph introduced by Trapper shows the general position of the miners
when the citation was issued. (Ex. R-5). Although the miners were about 100
feet from the bucket, there was a chance that something could go terribly wrong
and one of the men could have been injured in the event of a catastrophic
failure.

Trapper relies, in part, on the
language in the Secretary’s PPM. The PPM states with respect to section 77.405
that “[m]echanical means that are manufactured as an integral part of the
machine for the purpose of securing a portion of the machine in a raised
position are acceptable as meeting the requirements of this section.” (Ex. R-4,
PPM, Part 77, at 173). It is quite obvious that this provision is not
contemplating braking systems. As stated by Inspector Ellenberger, this
provision is directed to mechanical locks or other devices that block the
raised component from movement. (Tr. 114-15). I credit his testimony in this
regard. Allowing miners to work on or about raised equipment that is kept in
place only by means of a mechanical brake would defeat the purpose of the
safety standard.

The inspector determined that it
was unlikely that anyone would be injured as a result of the violation. He
reached this conclusion because he determined that it was unlikely that the
disc brakes or any other component on the dragline would fail. I credit the
testimony of Smith concerning the strength of the disc brakes and their use in
day-to-day operations. I find that the violation did not significantly contribute
to the risk of an injury. I affirm the inspector’s gravity determinations.

I also affirm Inspector
Ellenberger’s negligence determination. Trapper’s negligence was moderate with
respect to this violation because a reasonably prudent person familiar with the
mining industry, the relevant facts, and the protective purpose of the safety
standard would have recognized that the bucket should have been lowered to the
ground before any work was performed on the bucket side of the dragline. The
Secretary’s proposed penalty of $100 is appropriate for this violation.

II. APPROPRIATE CIVIL PENALTIES

Section
110(i) of the Mine Act sets forth the criteria to be considered in determining
an appropriate civil penalty. Trapper had a history of 30 violations during the
15 months preceding the issuance of subject citations but only six were designated
as S&S. (Ex. G-8). Respondent is a large coal mine operator. The violations were 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. 8478965 is MODIFIED to show that Trapper was not negligent with
respect to the cited violation. Citation No. 8479045 is MODIFIED to show
that Trapper’s negligence was low with respect to the cited violation. In all
other respects the citations are AFFIRMED. Trapper Mining, Inc. is
ORDERED TO PAY the Secretary of Labor the sum of $300.00 within 30 days
of the date of this decision.[11]

/s/ Richard W.
Manning

Richard
W. Manning

Administrative
Law Judge

Distribution:

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

Karl C. Koehler, Safety Manager, Trapper
Mining, Inc., PO. Box 187, Craig, CO 81626-0187 (Certified Mail)

RWM

[1]
Inspector Gore is currently the supervisor of MSHA’s
Craig, Colorado, Field Office. He has been an inspector since 1992. (Tr. 9). He
previously held numerous positions in the coal mining industry including as a
mechanic, electrician, and electrical supervisor. He is an electrical
specialist with MSHA. (Tr. 9-10). 

[2]
Steele has worked in the coal mining industry
since 1980. (Tr. 42). He has been an MSHA qualified electrician since 1981. (Tr.
43). He has extensive experience working with MSHA’s electrical standards to
make sure that the mine is in compliance with these standards.

[3]
It appears that Inspector Gore does not agree with the PPM. He believes that
there are situations where a shock hazard can be present even if an enclosed
electrical switch is powered from a resistance-grounded system. (Tr. 32).

[4]
Inspector Ellenberger has been a coal mine inspector with MSHA since January
2008. (Tr. 64). He has worked in the mining industry since 1970 in a wide
verity of positions. (Tr. 64-66). He is a certified dust sampler. (Tr. 100).

[5]
Fedinec has about 15 years’ experience in the
mining industry with Peabody Twentymile and Trapper. (Tr. 82).

[6]
The preamble to the heath standard provides: “Under
the final rule, MSHA will cite a mine operator when a dust control is missing,
defective, or obviously ineffective by visual inspection.” 59 Fed. Reg. 8318, 8324
(Feb. 18, 1994).

[7]
Because he was in a climate-controlled cab, the
drill operator was not affected. In this regard, the Secretary stated in the
preamble to the health standard: “MSHA agrees that positive pressure cabs are
effective in controlling exposures to dust for persons located within the cabs.
However, other miners may be working in the area. Because cabs do not control
drill dust at the source of generation, they are not adequate to protect the
health of miners located outside the cabs who are exposed to the drill dust.” 59
Fed. Reg. at 8324

[8]
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).

[9]
A “fairlead” is a “device that lines up cable so
that it will wind smoothly onto a drum.” Am. Geological Institute, Dictionary
of Mining, Mineral, and Related Terms 199 (2d ed. 1997). This term applies
to “the swivel pulley on the drag rope of a dragline[.]” Id.

[10]
Smith has been working in the maintenance
department at Trapper since 1984. (Tr. 137).  He has a bachelor’s degree in
mechanical engineering and he holds a professional engineering certificate from
the State of Colorado. Id.

[11]
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.