Peabody Twentymile Mining, LLC v. Secretary of Labor and Secretary of Labor v. Peabody Twentymile Mining, LLC

Plain-English summary

Peabody Twentymile miners used a long hooked rod to remove wood and metal from a feeder, a decades-old practice called “fishing.” Judge Richard W. Manning held that fishing was preventive maintenance because it kept the feeder, pick breaker, and belt efficient and avoided later shutdowns, so the equipment had to be deenergized and blocked against motion. The violation stood, but it was not S&S and involved low gravity and negligence: the conveyor moved slowly, the hook was attached with tape designed to release, the miner stood well away from the chain, and emergency stops were nearby. Peabody also held an objectively reasonable, good-faith belief that its longstanding practice complied with the law. The judge converted the section 104(d)(1) citation to section 104(a), assessed $5,000, and vacated the imminent-danger order.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1725(c)
• Outcome: The citation was modified to non-S&S section 104(a) with low gravity and negligence; the section 107(a) imminent-danger order was vacated; a $5,000 penalty was assessed.
• Key point: Removing debris to prevent equipment damage is maintenance requiring lockout, but mine-specific safeguards and an objectively reasonable compliance belief can defeat S&S, unwarrantable-failure, and imminent-danger allegations.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

Office of
Administrative Law Judges

721 19 th
Street, Suite 443

Denver, CO 80202-2536

303-844-3577        

May 3, 2018

PEABODY
TWENTYMILE MINING,      LLC,

Contestant,

v.

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Respondent

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

PEABODY
TWENTYMILE MINING,      LLC,

Respondent

CONTEST
PROCEEDINGS

Docket
No. WEST 2017-0247-R

Order
No. 9025723;02/19/2017

Docket
No. WEST 2017-0248-R

Citation
No. 9025724;02/19/2017

Foidel
Creek Mine

Mine
ID 05-03836

CIVIL
PENALTY PROCEEDING

Docket
No. WEST 2017-0553

A.C.
No. 05-03836-439555

Foidel
Creek Mine

DECISION

Appearances:               Kristi
Henes, Esq., Office of the Solicitor, U.S. Department of Labor, Denver,
Colorado for Petitioner;

Christopher G.
Peterson, Esq., and Benjamin J. Ross, Esq., Jackson Kelly PLLC, Denver,
Colorado for Respondent.

Before:                                    Judge
Manning

These cases are before
me upon notices
of contest filed by Peabody Twentymile Mining, LLC (“Twentymile”) and a
petition for assessment of civil penalty filed by the Secretary of Labor,
acting through the Mine Safety and Health Administration (“MSHA”), against Twentymile
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 filed post-hearing briefs. A section 104(d)(1) citation
and a section 107(a) order were adjudicated at the hearing. Twentymile operates
the Foidel Creek Mine, an underground coal mine in Routt County, Colorado.

The citation and
order were issued on February 19, 2017 by MSHA Inspector Rufus Taylor during a
regular inspection of the mine. Inspector Taylor was accompanied by his
supervisor Inspector Richard Eddy and by Twentymile’s Safety Compliance Officer
Jordan Gustafson. For
reasons set forth below, I modify the citation to a section 104(a) citation and
I vacate the imminent danger order. Although I have not included a detailed
summary of all evidence or each argument raised, I have fully considered all the
evidence and arguments.  

I.  DISCUSSION
WITH FINDINGS OF FACT

AND CONCLUSIONS
OF LAW

A. Background

Inspector Taylor testified that he
arrived at the mine at about 7:20 a.m. on Sunday, February 19, 2017, and began
his inspection. Tr. 15-18.  While inspecting a bolter at about 1:00 p.m., the
inspectors heard what Taylor described as a scream and then a second scream. Tr.
18-21. At that point, both inspectors turned and observed what they described
as a miner bent over the trough of a feeder, approximately 100 feet away. Id.
Taylor was concerned that the miner may have fallen into the feeder. Tr.

21. When they went over to investigate, they saw that the miner, David Lomas,
    was standing on the off-walkway side of the feeder, the feeder conveyor was
    operating, and a shuttle car was dumping material into the feeder. Tr. 25, 31. Inspector
    Taylor issued a verbal imminent danger order requiring Gustafson to remove the
    miner from the off-walkway side. Tr. 22-23. The inspectors subsequently learned
    that what the inspectors thought were screams were actually whoops of joy, as
    described below. Tr. 191.  

For as long as anyone can remember and
for at least the last 30 years, Twentymile has used a method colloquially known
as “fishing” to remove roof bolts, wood, and other extraneous material from
feeders. Tr. 135, 137-138. Fishing is more often used when an area of the mine
is being rehabilitated rather than when coal is being produced. Tr. 135-136. If
the floor needs to be graded, for example, Twentymile uses a continuous miner
to grade the floor to remove material that has heaved. Tr. 133, 178-179. The resulting
material is loaded into shuttle cars and slowly dumped into feeders that slowly
load it onto conveyor belts to remove the material from the mine. Tr. 135. This
material is mostly rock and mud but also may contain roof bolts and other
extraneous metal parts that can damage conveyor belts. Tr. 136. Pieces of wood
may also be present. Tr. 285. The feeder is equipped with a pick breaker that
can crush most of the material before it dumps on the belt but, to protect the
belts, Twentymile uses fishing to remove as many metal pieces from the feeder as
possible. [1]
Tr. 136. Metal and/or wood are capable of jamming the pick breaker. Tr. 136-137,
166.

Twentymile developed a written procedure
for miners to follow when fishing. RX-7. In order to fish material from the
feeder, a miner takes a D-Ring, bends it into the shape of a hook and attaches
it to a piece of drill steel using electrical tape. Tr. 208, 211. The drill
steel is typically about five feet long. Tr. 219. The feeder is set to its
lowest speed. Tr. 259. The feeder in this case moved 1.42 feet per second. RX-18;
Tr. 54, 277. The miner engaged in fishing positions himself so he can see the
shuttle car as it approaches. Tr. 138. He signals the shuttle car operator to approach
the feeder and to begin slowly dumping the material into the feeder. Tr. 138. He
also signals the operator to stop dumping when the feeder is full or when he
sees metal or wood in the material. Tr. 138-139. The fishing miner then uses
his hook to remove the object. If the object the miner tries to hook weighs more
than about 10-15 pounds, the D-Ring will separate from the drill steel because
it is only attached with tape. Tr. 219-220. A railing surrounds parts of the
feeder. Tr. 73, 84. The miner who is fishing can shut off power to the feeder
conveyor and the pick breaker by using an e-stop button on the side of the
feeder or an e-stop cord that stretches across the feeder. Tr. 255-57.  He can
also lock-out and tag-out the feeder if he sees a large object that needs to be
removed or he can simply let it go through the pick breaker and onto the belt. Tr.
202-204. Pat Sollars, the general manager of Peabody’s Colorado operations, as
well as Michael Zimmerman, the mine’s compliance manager, both testified that
no miner has ever been injured while fishing material out of a feeder. Tr. 137,
285.

Davis Lomas, the miner who was fishing
on the day of the inspection, is not a mechanic and does not perform
maintenance at the mine. Tr. 180. He made a whooping sound at the time of the
inspection because he had been fishing for several 12 hour shifts and he found
something that he needed to hook. He testified that he “jokingly yelled [to
another miner] woo hoo! Yea! I got something.” Tr. 191. I credit this testimony.

B.
Citation
No. 9025724 – Fact of Violation

Inspector Taylor issued Citation No.
9025724 under section 104(d)(1) later that day. The citation states, in part,

Repairs or maintenance shall not be
performed on machinery until the power is off and the machinery is blocked
against motion, except where machinery motion is necessary to make adjustments.
When examined by this inspector the operator is failing to remove power to
company No. 237 feeder to block against motion on the 9 east longwall[.] There
is miner with a piece of Roof Bolter steel with a metal hook attached to the
end removing wood and metal from the moving feeder conveyor. The miner is on
the off walkway side of the feeder within approximately 41 inches of the moving
conveyor chain. In the event of the miner falling into the moving conveyor
chain the miner will be pulled into pick breaker causing the miner to be
fatality injured. This is obvious to the most casual observer. The operator
engaged in aggravated conduct constituting in more than ordinary negligence in
that after further review and interviewing the miner it is determined that the miner
was instructed to perform these functions.

The
inspector charged a violation of section 75.1725(c) which provides that “[r]epairs
or maintenance shall not be performed on machinery until the power is off and
the machinery is blocked against motion, except where machinery motion is
necessary to make adjustments.” 20 C.F.R. § 75.1725(c).

There is no dispute that Lomas was not
performing repairs and no adjustments were being made. Further, there is no
dispute that the feeder conveyor and pick breaker were not locked out at the time. [2] The singular
issue is whether Lomas’s action of fishing constituted “maintenance” under the
standard. I find that it did.

The Secretary argues that Lomas’s act of
fishing metal and wood out of the feeder amounted to preventive maintenance
because it kept the feeder’s pick breaker and the attached belt in good repair.
Sec’y Br. 9. Roof bolts, if not fished out, could damage the pick breaker
and/or become wrapped around the pick breaker, which would require removal via
a torch. Similarly, metal objects could damage the belts and wood could jam the
pick breaker. Sec’y Br. 8-9.

Twentymile asserts that it did not
violate section 75.1725(c) because the miner was not performing repairs or
maintenance on the feeder. A feeder can operate without fishing. Fishing does
not correct a malfunction of the feeder, nor does it affect the feeder or pick
breaker in any manner. Twentymile Br. 7. Wood and metal do not stop the feeder
from operating. Although, a roof bolt may get stuck in the pick breaker, it
cannot jam the breaker, and bolts are often too heavy to remove via fishing. If
a feeder stalls or an impediment must be removed from the pick breaker, miners
lock out and tag out the equipment. Twentymile Br. 7-8.

The Commission, relying on the ordinary
meaning of the word, has defined “maintenance” as “‘the labor of keeping
something (as buildings or equipment) in a state of repair or efficiency: care,
upkeep …’ and ‘[p]roper care, repair, and keeping in good order.’” Walker
Stone Co. , 19 FMSHRC 48, 51 (Jan. 1997) aff’d, 156 F.3d 1076 (10 th
Cir. 1998) (quoting Webster's Third New International Dictionary,
Unabridged 1362 (1986) and A Dictionary of Mining, Mineral, and Related
Terms 675 (1968)). In Walker Stone the Commission found that the
breakup and removal of rocks clogging a crusher amounted to maintenance. Id .
at 51. The Commission, in reaching its decision, focused on the purpose of the
work being done, which was to restore the crusher to a functioning condition,
and reasoned that the purpose clearly fit within the “broad phrase ‘repairs or
maintenance of machinery or equipment[.]’” Id . Further, “[t]he removal
of rock was necessary to . . . ‘keep [the crusher] in a state of repair or
efficiency.’”

The purpose of fishing was to remove
metal and wood objects that could affect equipment and/or the product shipped
to customers. [3]
The primary concern with metal objects, especially roof bolts, was that they
could seriously damage the belt used to remove this material from the mine. However,
Sollars acknowledged that metal, along with wooden objects such as cribs, could
jam the pick breaker. Tr. 136-137, 166. Sollars also testified roof bolts that
are not fished out could wrap around the pick breaker and “would stay there and
you’d go in later and cut them out” with a torch while the equipment was locked
out. [4] Tr.
136, 166-167.

The Secretary specifically categorized Lomas’s
activity as “preventive” maintenance. While the term “preventive” is not
included in the cited standard, I find that the term “maintenance” may include
actions of a “preventive” nature. “Preventive maintenance” involves a “system
that enables breakdowns to be anticipated and arrangements made to perform
necessary overhauls and replacements in good time.” Am. Geological Institute,
Dictionary of Mining, Mineral, and Related Terms 426 (2d ed. 1997). Essentially,
it is anticipatory maintenance designed to address potential problems before
they come to fruition. In that way, it fits squarely within the type of “care,”
“upkeep,” and “keeping in good order” contemplated by the Commission’s
definition of “maintenance” in Walker Stone .

I find that Lomas was engaged in
preventive maintenance. A jammed pick breaker is not a functioning pick
breaker. Lomas, by removing metal and wood objects from the feeder prior to
those objects reaching the pick breaker, was keeping the feeder and pick
breaker in a functioning condition by preventing a possible jam. Further, even
if roof bolts wrapped around the pick breaker did not affect its performance
while operating, they certainly affected its efficiency in the form of future
downtime because at some point those bolts would need to be removed. Removal of
the bolts wrapped around the pick breaker required a miner to deenergize the
equipment and block it against motion before cutting the bolts out with a
torch. Removing the bolts via fishing prior to the bolts reaching the pick
breaker prevented a shutdown and kept the pick breaker in a state of
efficiency. Further, there is no dispute that removing metal objects prevented
possible damage to the belt. [5]
I find that the purposes of fishing fit within the “broad phrase ‘repairs or
maintenance of machinery or equipment[.]’” Walker Stone at 51; see
also Sec’y of Labor v. Ohio Valley Coal Co. , 359 F.3d 531 (D.C. Cir. 2004)
(broadly interpreting the standard’s “repairs or maintenance” language to
include not just actual physical work by the miner, but also a miner’s
assessment of a piece of equipment in order to identify an apparent problem if
the miner doing the assessment is in a location where their safety might be
threatened by running machinery.)

Twentymile also argues that the
Secretary is attempting to stretch the definition of maintenance so as to
require that a mine operator lock-out and tag-out all section equipment when
maintenance is required anywhere on the section. Twentymile Br. 8-9. While the
Secretary alluded to this at hearing, he did not expressly mention it in his
brief. Nevertheless, I reject the idea that in order to comply with the
standard all equipment on the active section must be deenergized. Rather,
consistent with the D.C. Circuit’s finding in Ohio Valley Coal Co. , it
would seem that only that equipment posing a potential safety threat to a miner
in the location where they are conducting the maintenance needs to be
deenergized and blocked against motion.

Because Lomas was engaged in maintenance
on the feeder while it was operating, I find that the Secretary established a
violation of the cited standard.

1.
Fair Notice of the Requirements of Section 75.1725(c).

Twentymile
argues that the court should vacate the subject citation because it lacked fair
notice of the requirements of section 75.1725(c). Twentymile Br. 11. A
reasonably prudent person would not have fair warning of the standard’s requirement
because this mine has used fishing to remove metal and wood for thirty years
and MSHA has never suggested it violated a mandatory standard. Many people, including
numerous mine managers and apparently one current MSHA inspector have fished
materials out of the feeder while it was operating in the belief that such
activity was safe and did not violate a safety standard. Twentymile Br. 11. Indeed,
Twentymile had in place a standard work procedure spelling out how fishing
should be performed in a safe manner. RX-7 pp. 4-5.

The
Secretary argues that Twentymile was on notice that fishing violated the
mandatory standard. Notice is only inadequate where a reasonably prudent mine
operator would not have understood that a specific condition was in violation
of the standard. Sec’y Br. 9. The definition of “maintenance” in Walker
Stone has been established law for two decades and any reasonable operator
would know that working on materials being conveyed into a feeder without
deenergizing and blocking the equipment against motion was a violation of the
cited standard. Sec’y Br. 10. Twentymile had actual notice of the hazards associated
with miners working near the belt and this was the first time MSHA inspectors
had ever observed the practice of fishing during an inspection. Sec’y Br. 10.

The
Secretary must provide fair notice of the requirements of a broadly written
safety standard. The language of section 75.1725(c) is “simple and brief in
order to be broadly adaptable to myriad circumstances.” Kerr-McGee Corp.,
3 FMSHRC 2496, 2497 (Nov. 1981); Alabama By-Products Corp. , 4 FMSHRC
2128, 2130 (Dec, 1982). Such broadly written standards must afford notice of
what is required or proscribed. U.S. Steel Corp., 5 FMSHRC 3, 4 (Jan.
1983). In “order to afford adequate notice and pass constitutional muster, a
mandatory safety standard cannot be ‘so incomplete, vague, indefinite, or
uncertain that [persons] of common intelligence must necessarily guess at its
meaning and differ as to its application’” Ideal Cement Co. , 12 FMSHRC
2409, 2416 (Nov. 1990)(citation omitted). A standard must “give the person of
ordinary intelligence a reasonable opportunity to know what is prohibited, so
that he may act accordingly.” Lanham Coal Co ., 13 FMSHRC 1341, 1343
(September 1991).

When
faced with a challenge that a safety standard failed to provide adequate notice
of prohibited or required conduct, the Commission has applied an objective
standard, i.e., the reasonably prudent person test. The Commission summarized
this test as “whether a reasonably prudent person familiar with the mining
industry and the protective purposes of the standard would have recognized the
specific prohibition or requirement of the standard.”

Id . (citations
omitted). To put it another way, a safety standard cannot be construed to mean
what the Secretary intended but did not adequately express. “The Secretary as
enforcer of the Act has the responsibility to state with ascertainable
certainty what is meant by the standards he has promulgated.” Diamond
Roofing Co. v. OSHRC , 528 F.2d 645, 649 (5th Cir. 1976).

In Alan Lee Good d/b/a Good
Construction, 23 FMSHRC 995 (Sept. 2001), Commissioner Jordan and former
Commissioner Beatty stated the following:

In applying the reasonably prudent
person standard to a notice question, the Commission has taken into account a
wide variety of factors, including the text of a regulation, its placement in
the overall enforcement scheme, its regulatory history, the consistency of the
agency's enforcement, and whether MSHA has published notices informing the
regulated community with “ascertainable certainty” of its interpretation of the
standard in question. Also relevant is the testimony of the inspector and the
operator's employees as to whether certain practices affected safety. Finally,
we have looked to accepted safety standards in the field, considerations unique
to the mining industry, and the circumstances at the operator's mine.

23
FMSHRC at 1005 (citations and footnote omitted). Although t he Commission
split as to whether the operator in that case had been provided with fair
notice, the Commission did not disagree as to how the notice issue should be
analyzed in future cases.

The
text of 75.1725, which is contained in “Subpart R- Miscellaneous,” is
instructive because it illustrates that the Secretary intended to include
preventive maintenance within the scope of subsection (c). Subsection (d) of
the safety standard states that “[m]achinery shall not be lubricated manually
while in motion, unless equipped with extended fittings or cups.” Lubrication
is clearly a type of preventive maintenance because an operator will want to
keep machinery lubricated even when it is working perfectly to ensure that it
continues to operate as designed. If the Secretary did not consider preventive
maintenance to be “maintenance” as that term is used in the safety standard,
subsection (d) would not be as necessary. [6]
This provision provides notice to mine operators that the Secretary intends
that preventive maintenance is included in the coverage of the safety standard. 

The
Secretary did not provide, and the court has been unable to find through its
own research, any MSHA documents that provide guidance on how to interpret the
standard in the context of the facts of this case. MSHA’s Program Policy
Manual, for example, does not address any issues related to the interpretation
of 75.1725(c) as relevant here. See V MSHA, U.S. Dep’t of Labor, Program
Policy Manual , Part 75, at 156-59 (2018).

Fishing
has been conducted at the mine for a long time, perhaps 30 years or longer. It
is important to note however that, until Longwall Panel 9 was developed, fishing
was not a frequent occurrence. Prior to the development of this panel, fishing
occurred once or twice a year. Because of floor heaving problems in Panel 9, however,
fishing was being conducted monthly for a period of 8-16 days each month. Tr.
52, 133, 162, 164, 224-225, 243-244. Consequently, it is not surprising that
MSHA inspectors had never observed anyone fishing at the mine until the subject
inspection. Field Office Supervisor Eddy indicated that he asked the inspectors
at the Craig, Colorado, office whether they had ever observed fishing at the
mine. He testified that each inspector told him that they had not. [7]
Tr. 128. I credit the Secretary’s evidence that no MSHA inspector had
previously observed fishing while inspecting the mine.

Twentymile
correctly argues that MSHA does not always prohibit miners from working around
moving pieces of equipment. For example, Inspector Taylor admitted that miners
are allowed to shovel coal accumulations onto belts that are moving at a high
rate of speed. Tr. 96-97, 99-100. Twentymile believes that working around a
fast-moving belt poses a greater safety hazard than fishing around a slow
moving feeder. Consequently, it argues that the Secretary is not sending a
consistent message about prohibited conduct around moving machinery.

I
agree that there is some inconsistency but, as the inspector stated, the area
around the head and tail pulleys of conveyor belts are regulated. See 30
C.F.R. § 75.1722. Head and tail pulleys are more analogous to the subject feeder
and they must be tightly guarded.

I
hold that a reasonably
prudent person familiar with the mining industry and the protective purposes of
section 75.1725 would
have recognized that the act of fishing at the feeder is a type of preventive
maintenance that is covered by the requirements of section 75.1725(c).

2.
Significant and Substantial.

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). 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). 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).

The Commission
has explained that the focus of the Mathies analysis “centers on the
interplay between the second and third steps.” ICG Illinois , 38 FMSHRC
2473, 2475 (Oct. 2016) (citing Newtown Energy Inc. , 38 FMSHRC 2033 (Aug.
2016)). The second step requires the judge to adequately define the “particular
hazard to which the violation allegedly contributes[,]” and then determine
whether “there exists a reasonable likelihood of the occurrence of the hazard
against which the mandatory safety standard is directed.” Id . at
2475-2476. This determination must be made “based on the particular facts
surrounding the violation[.]” Id . The third step then requires the judge
to assume the existence of a hazard and assess whether the hazard “was reasonably
likely to result in serious injury.” Newtown at 2038; ICG Illinois
at 2476.

The “reasonably
likely” provision 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). In addition, 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 is reasonably likely to cause an injury. Musser
Engineering, Inc. and PBS Coals Inc. , 32 FMSHRC 1257, 1280-81 (Oct. 2010)
(emphasis added); Cumberland Coal Res. , 33 FMSHRC 2357, 2365 (Oct.
2011).

The Secretary
maintains that “[g]iven the proximity of Lomas to the moving feeder conveyor,
the uneven trench in which he was standing, the pile of material collected
around him, the monorail hanging from the roof, and the generally cramped
location from which Loma was fishing, the violation contributed to the discrete
hazard of falling into the feeder and being pulled through the pick breaker.” Sec’y
Br. 11. Twentymile was aware of the hazards of working around the feeder because
it would lock and tag out the feeder when miners cleaned or shoveled around it.
Tr. 260. Fishing was usually assigned to less experienced miners and was
becoming a more regular function which increased the likelihood of an accident.
Any injury would be of a reasonably serious nature and could be fatal.

Twentymile
argues that the evidence demonstrates that the hazard of a miner falling or being
pulled into the feeder while fishing was highly unlikely. Miners have been
performing this task for 30 years without incident. The fishing miner usually
stops the feeder conveyer when he finds an object that needs to be removed. If
he does not stop the feeder, the conveyor moves at a slow rate of speed, about
1.42 feet per second, and the hook would separate from the drill steel if it
snagged on something. Twentymile argues that at that slow speed, material would
travel along the feeder conveyor for about 24 seconds before reaching the pick
breaker. Twentymile Br. 14. Lomas testified that at all times he stood at a distance
from the pick breaker and he cleaned the area around him to remove tripping
hazards. Tr. 183, 186, 190. He deactivated the feeder when necessary as he
removed objects with the drill steel. Tr. 186. The conveyor chain was 35-41
inches from the edge of the feeder closest to Lomas and 19 inches from the top
of the feeder, making it unlikely that the fishing rod would snag on anything. Twentymile
Br. 14; Tr. 87, 289; RX-20. In addition there were emergency stop switches and
a stop cord in the area.

I
find that the Secretary did not establish that the violation was S&S. I
determined that Twentymile violated section 75.1725(c), above.

The
next issue is whether there was a discrete safety hazard. To resolve this issue
a judge must first determine the nature of the hazard. A hazard is the
“prospective danger the cited safety standard is intended to prevent.” Newtown Energy , 38 FMSHRC at 2038. Section
1725(c) is designed to prevent miners from being injured by becoming entangled
in moving machinery while repairs or maintenance are being conducted. The
hazard in this case was the risk of a miner being pulled into the feeder or
falling into the feeder while in the process of fishing as the feeder conveyor was
moving. Next, the judge must determine whether the violation sufficiently
contributed to this hazard. That is, was there a “reasonable likelihood of the
occurrence of the hazard against which the mandatory safety standard is directed.”
Id.

I
find that it was unlikely that the hazard that the safety standard is designed
to prevent will ever occur assuming continued mining operations. It was highly
unlikely that David Lomas or any other fishing miner would be pulled into or
fall into the moving feeder. First, Lomas testified that if he sees a piece of
metal as it is being slowly dumped into the feeder by the loader operator, he
stops the feeder conveyor and uses his fishing stick to grab it and move it to
the side. Tr. 185-86. Second, the type of fishing stick that he and other
miners use has the hook attached to the drill steel with tape. Thus, even if
the feeder is moving and the hook gets entangled in something, the hook will
come off and the miner will not be pulled in. The hook easily separates from
the drill steel. Tr. 186-87, 211, 259. The feeder conveyer is always run at the
lowest speed possible so even if the miner kept holding the pole for a second or
more after it snagged, he would not be pulled for any significant distance and
he would not be pulled so hard that there would be a chance that he would be pulled
onto the feeder conveyor. RX-7, p. 5; Tr. 259-60.

Third,
the dimensions of the feeder would make it very difficult for anyone to be
pulled into the feeder conveyor or fall into it. The deck plate for the hopper
of the feeder was about 34 inches above the ground level where Lomas was standing.
Tr. 274-75; RX-10. It is 35 inches from the top edge of this deck plate close
to the fishing miner to the other side of the flat surface of the deck plate
close to the feeder conveyor. Id. The feeder conveyor is 19 inches below
the top of the deck plate. Tr. 288-29; RX 19, 20. Thus, the distance from the
ground where a miner would be standing to the feeder conveyor would be 34
inches up to the edge of the deck plate, 35 inches across to the other side of
the deck plate, and then 19 inches down to the feeder conveyor. I credit these
measurements that were taken by Twentymile soon after the inspection party
arrived. It would take a lot of force to pull a miner into the feeder conveyor
and the tape on the fishing pole would give way if the miner kept grasping the
pole. It would also be next to impossible to fall into the conveyor. The
likelihood of falling into the feeder conveyor from where Lomas was standing
would be about the same as the chance of standing on one side of a typical
office desk and falling over to the other side of the desk while leaning over
the desk; it is possible but very unlikely.

As
a consequence, I find that the Secretary did not establish that there was a
discrete safety hazard, the second step of the Mathies S&S test. The hazard
contributed to by violation was not reasonably likely to cause an injury. [8]
The inspector’s S&S determination is vacated.

3.
Gravity

The gravity penalty criterion under section 110(i)
of the Mine Act, 30 U.S.C. § 820(i), "is often viewed in terms of the seriousness of the violation." Consolidation Coal Co. , 18 FMSHRC 1541, 1549 (Sept. 1996) (citing Sellersburg Stone Co. , 5 FMSHRC 287, 294-95 (Mar. 1983), aff’d ,
736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal
Co. , 9 FMSHRC 673, 681 (Apr. 1987)). The gravity
analysis focuses on factors such as the likelihood of injury, the
severity of an injury if it occurs,
and the number of miners potentially affected.

I
find that the gravity of this violation was not very serious. It was unlikely
that Lomas or anyone else who fished from the cited location would be injured for
the reasons discussed above. A serious injury was possible but improbable. If
an injury did occur, it was likely to be minor. For example, if Lomas tripped
while fishing, he could suffer sprains or bruises. It is highly unlikely that
he would fall into the feeder. I find the gravity to be low.

4.
Negligence

The Secretary argues that Twentymile
unwarrantably failed to comply with the cited standard because the “fishing
process presented a high degree of danger to miners, was open and obvious, and
in the aggregate, existed for significant periods of time.” Sec’y Br. 14-15. Moreover,
the act of fishing “was known to and sanctioned by” management as evidenced by
the fact that it had been made into a standard work procedure. Sec’y Br. 13-15.
Because Owens was Lomas’s supervisor, his knowledge that Lomas engaged in
fishing must be imputed to Twentymile for purposes of finding that it was
highly negligent and that it engaged in aggravated conduct. Sec’y Br. 13-16.

Twentymile argues that the unwarrantable
failure and high negligence designations are inappropriate because its conduct
was not aggravated. Twentymile Br. 14. There was little to no degree of danger
associated with the act of fishing. Moreover, Twentymile genuinely believed
that it was in compliance with the safety standard. Id . Fishing was an “established,
regulated practice” at the mine, was not an obvious violation, and MSHA had
never put the mine on notice that greater efforts were necessary to comply with
the cited standard. Twentymile Br. 16.

Section 110(i) of the Mine Act includes "negligence" as one of the six criteria the Commission is required to consider in assessing
a penalty. The term is not defined
in the Act, but over 30 years ago the Commission 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 the standard occurs. " A.
H . Smith Stone Company, 5 FMSHRC 13, 15 (Jan. 1983).

Commission
Judges are not bound by the Secretary’s definitions in 30 C.F.R Part 100 when
considering an operator's negligence. Brody
Mining, LLC, 37
FMSHRC 1687, 1702 (Aug. 2015); Newtown Energy, Inc., 38 FMSHRC 2033, 2048 (Aug.
2016). Rather, a Judge "may consider the totality of the circumstances
holistically." Id . The Commission has established that its judges may " evaluate negligence from the starting point of a traditional negligence analysis rather than based upon the Part 100 definitions. Under such an analysis, an operator is negligent if it fails to meet the requisite
standard of care - a standard of care that is high under the Mine Act." Brody Mining 37
FMSHRC at 1702. This evaluation 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 Resources, 36
FMSHRC 1972, 1975 (Aug. 2014). The Commission has stated
the real gravamen
of high negligence is that it " suggests
an aggravated lack of care that is more than ordinary negligence." Newtown, at 2049 ( citing Topper Coal Co.,
20 FMSHRC 344, 350 (Apr. 1998)).

I
find that the violation was a result of low negligence and that Twentymile did
not unwarrantably fail to comply with the mandatory standard. [9] Much of the Secretary’s
argument in support of the high negligence and unwarrantable failure
designations is based upon the fact that Twentymile sanctioned the practice of
fishing and its managers routinely assigned miners that task. Sec’y Br. 13-16. I
agree that Twentymile sanctioned the act of fishing and had knowledge that
miners, including Lomas, engaged in fishing. However, I find that Twentymile
permitted the act of fishing based on “an objectively reasonable and good faith
belief that the cited conduct was in compliance with applicable law.” [10] Oak Grove
Res. , LLC, 38 FMSHRC 1273, 1279 (June 2016).

The evidence establishes that Twentymile
reasonably believed that the act of fishing was not dangerous and did not constitute
“maintenance” as contemplated by the cited standard. As discussed above in the
S&S analysis, as well as in the imminent danger order analysis below, I
find that a significant hazard did not exist. Twentymile personnel, including
members of management and apparently at least one current MSHA inspector, had
engaged in the act of fishing for decades without incident. Twentymile clearly
believed that it was not engaging in violative conduct. I find that this
belief, albeit an incorrect one, was objectively reasonable under the facts of
this case. Given that the violation did not create a serious safety hazard and that
Twentymile had a reasonable good faith belief that this practice did not
violate a safety standard, I find that Twentymile’s negligence was low. [11]

C.
Imminent Danger Order No. 9025723          

Inspector
Taylor also issued Order No. 9025723, a section 107(a) order that alleges that
Lomas’s act of fishing, as described above, created an imminent danger. 30
U.S.C. § 817(a).

The Secretary argues that the imminent
danger order was validly issued when the inspector observed a miner fishing in
an energized conveyor using a piece of drill steel with a hook attached. Sec’y
Br. 4. Inspector Taylor, in response to screams, believed that a miner had been
caught and pulled into the moving feeder conveyor. Sec’y Br. 6. Although the
miner was actually unharmed, in other situations miners have been pulled into
moving conveyors and suffered fatal injuries. Sec’y Br. 6 (citing GX-8, a
collection of fatalgrams involving miners pulled into pick breakers). Here, the
miner was standing in a 13 inch wide trench with uneven ground, removing pieces
of wood and metal of various sizes and weights from the feeder. Sec’y Br. 6-7. Although
the miner testified that he could easily let go of the pole if it became
caught, the natural human reflex is to grab tighter when an item is being
pulled from one’s grasp. While the inspector did not review fatalgrams at the
time of issuance, he was generally familiar with the many deaths that have
resulted from these types of situations and had personally experienced a close
call with a conveyor belt. Sec’y Br. 7.

Twentymile argues that the inspector
abused his discretion because there was no imminent danger. The inspector based
his order on the incorrect belief that a miner was in danger when the inspector
heard shouting. Twentymile Br. 18. The two inspectors present were excited and
yelling before they reached the feeder or Lomas, who had finished fishing and
was never in the feeder. Twentymile Br. 19. Standing next to the feeder is not
dangerous and no regulations prevent it. Twentymile Br. 19. The inspector’s
investigation was not reasonable given that he took no photographs, did not
investigate the floor conditions, did not know Lomas’s location, and took
incorrect measurements. Twentymile Br. 19-20. The inspector’s statement at
hearing that “anytime you’re around moving machine parts it is an imminent
danger” is not a proper basis for an imminent danger order and ignores the fact
that miners must stand next to a feeder to access its controls. Twentymile Br.
19.

Section
107(a) of the Act states that if an 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 subject area until the
inspector “determines that such imminent danger and the conditions or practices
which caused such imminent danger no longer exist.” 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); See also Wyoming
Fuel Co. , 14 FMSHRC 1282, 1291 (Aug 1992). While the danger justifying the
issuance of the order need not be immediate, an inspector must find that the
hazardous condition or practice “has a reasonable potential to cause death or
serious injury within a short period of time.” Cumberland Coal Resources, LP ,
28 FMSHRC 545, 555 (Aug. 2006)(citation omitted).

In reviewing a 107(a) imminent danger
order, the judge must determine if the inspector, who must make a quick
decision at the time of issuance, “abuse[d] his discretion[.]” Utah, Power
& Light Co. , 13 FMSHRC 1617, 1622-23 (Oct. 1991).  In order to
establish an imminent danger order the Secretary must prove “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.” Knife River Constr. , 38 FMSHRC 1289,
1291 (June 2016) (citing Island Creek Coal Co. , 15 FMSHRC 339, 346 (Mar.
1993)). “[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 (emphasis added). “[I]n making such a
determination, a judge ‘should make factual findings as to whether the inspector
made a reasonable investigation of the facts, under the circumstances, and
whether the facts known to him, or reasonably available to him, supported
issuance of the imminent danger order.’” Island Creek Coal Co. , 15
FMSHRC 339, 346 (Mar. 1993) (citing Wyoming Fuel Co. , 14 FMSHRC 1282,
1292 (Aug. 1992)).

I find that the imminent danger order
was invalidly issued. Inspector Taylor issued the verbal imminent danger order
while he and others were walking towards, but before the group arrived at, the
feeder. See Sec’y Br. 3 (citing Tr. 22-23). The only information
available to Inspectors Taylor and Eddy was that they had heard someone
“scream” and it appeared to them that a miner was in the feeder.  Upon further
review, Inspector Taylor discovered that Lomas had shouted in joy, not
screamed, and that his shouts were unrelated to any danger. Lomas had been
standing next to the feeder but was never in the feeder. The information
Inspectors Taylor and Eddy relied upon to issue the verbal imminent danger
order was inaccurate.

Moreover, the information that the
inspectors subsequently gathered does not support the issuance of the imminent
danger order, for the reasons discussed above. The deck of the feeder was about
34 inches above the ground. Tr. 33, 83, 86, 275.  The feeder’s metal deck was
about 35 inches wide, which separated the area where Lomas was standing from
the feeder conveyor. Tr. 83, 86, 275. The conveyor was moving a slow speed of
about 1.42 feet per second. Tr. 54, 136, 198, 260, 277. E-stop buttons/cords
were present on both sides of the feeder, with the closest being about two feet
from where Lomas was standing. Tr. 198. In addition, a third e-stop was strung
across the feeder conveyor in front of the pick breaker. Tr. 76, 255-257. Finally,
the hook at the end of Lomas’s pole was only secured with tape and Owens
credibly testified that the tape would fail and the hook would come off if heavier
items were snagged. Tr. 220. Given the distance Lomas was from the conveyor,
the low speed of the conveyor, the fact that the hook would be pulled off when
subjected to even limited stress, and the presence of multiple methods to stop
the conveyor in the event of an emergency, I find that the Secretary did not
establish that the conditions at the feeder had a reasonable potential to cause
death or serious injury within a short period of time. An imminent danger was
not present. [12]

For these reasons, Imminent Danger Order
No. 9025723 is VACATED .

II.  APPROPRIATE
CIVIL PENALTY

Section 110(i)
of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. 30 U.S.C. § 820(i). Twentymile had a history of 280
violations during the 15 months preceding the issuance of the subject
citations, 31 of which were S&S. GX-1. Twentymile is a large operator and
its parent company is also a very large operator. The parties were unable to
stipulate as to good faith abatement. The Secretary stated that there is
confusion as to whether Twentymile is still using some type of fishing to
remove extraneous material and, if it is being used, where it is taking place. Sec’y
Br. 20-21. Nevertheless, Inspector Taylor terminated the citation when
Twentymile removed Lomas from the feeder. Tr. 69. Thus, Twentymile immediately
abated the conditions that caused Inspector Taylor to issue the citation. The
proposed penalty will not have an adverse effect upon Twentymile’s ability to
continue in business. [13]

III.
 ORDER

For the reasons
set forth above, Citation No. 9025724 is MODIFIED to a non-significant
and substantial section 104(a) citation with low gravity and negligence. Order
No. 9025723 is VACATED . Based on the penalty criteria, I assess a total
civil penalty of $5,000.00 for the violation. Peabody Twentymile Mining, LLC is
ORDERED TO PAY the Secretary of Labor the sum of $5,000.00 within 40
days of the date of this decision. [14]
 Docket Nos. WEST 2017-247-R and WEST 2017-248-R are DISMISSED .

/s/
Richard W. Manning

Richard
W. Manning

Administrative
Law Judge

Distribution:

Christopher
G. Peterson, Esq. and Benjamin J. Ross, Esq. Jackson Kelly PLLC, 1099 18th
Street, Suite 2150, Denver, CO 80202 (Certified Mail)

Kristi
Henes, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer
Blvd., Suite 515, Denver, CO 80204 (Certified Mail)

[1]
The feeder unit consists of a hopper, conveyor and pick breaker. Material is slowly
dumped into the hopper located on the inby end of the feeder unit. The material
is moved along the feeder by a chain conveyor from the hopper to the pick
breaker at the outby end of the feeder. Material is then dumped onto a conveyor
belt and sent out of the mine. Throughout this decision the phrase “feeder
conveyor” refers to this chain conveyor on the feeder.

[2]
Following the submission of briefs the Secretary submitted a letter that was
essentially a reply brief in which he argued that Lomas’s testimony that he
deactivated the feeder and pick breaker should not be seriously considered due
to the presence of more reliable evidence, including testimony from Twentymile
witnesses, that the feeder conveyor was running and the chain was in motion
when the inspection party arrived. Sec’y Reply 1. Twentymile filed a response
to the Secretary’s reply arguing that Lomas was in the best position to know
what the feeder was doing when he was fishing and that the feeder likely
restarted after Lomas fished. Twentymile Response 1. Although the parties
dispute whether the feeder and pick breaker were moving the entire time Lomas
was fishing, it is clear that the equipment was not locked out, i.e., blocked
against motion. In addition, the feeder was operating when the loader was
dumping material into the hopper while Lomas was looking to see if anything
needed to be removed.

[3]
Zimmerman testified that wood fed through the pick breaker and dumped onto the
belts would not be separated from coal in the mine’s wash plant, since both
wood and coal float, and could potentially be sent to Twentymile’s customers. Tr.
285.

[4]
Although Twentymile, in its brief, attempted to qualify Sollar’s testimony by citing
Owens testimony that roof bolts were too heavy to remove via fishing, it is
quite clear that nothing prevented miners from attempting to remove bolts via
fishing. Twentymile Br. 7. Owens himself testified that he had attempted to do
just that, but that the tape holding the hook to the drill steel failed and the
hook was pulled off. Tr. 220.  

[5]
Twentymile argues that because the conveyor belt and feeder are distinct pieces
of equipment, maintenance can be conducted on each piece of equipment without
blocking the other. Specifically, it argues that because fishing is aimed at
protecting the belt, the act of fishing does not constitute maintenance of the
feeder and, in turn, does not require the feeder to be locked out and tagged
out. Twentymile Br. 10. However, the belt and feeder are linked because the
feeder would never be operated without the presence of the belt to remove the
material from the mine. 

[6]
The
regulatory history of section 75.1725(c) is scant, at best. The proposed rule
prohibited lubrication of operating machinery “where a hazard exists” unless
equipped with extended fittings or cups. 37 Fed. Reg. 11777, 11779 (June 14,
1972). The final rule was changed to reflect the fact that machinery is often
self-lubricating. 38 Fed. Reg. 4974, 4975 (Feb. 23, 1973). There was no
discussion of subsection (c) in the regulatory history.

[7]
I
recognize that Inspector Eddy’s testimony is hearsay, but it is consistent with
the testimony of Twentymile’s witnesses that the mine did not start engaging in
fishing on a frequent basis until floor heave problems developed in Longwall
Panel 9. Twentymile presented hearsay evidence that another MSHA inspector, who
once worked at the Foidel Creek Mine, called Sollars to tell him that he had
fished while working at the mine and he did not believe that it created a hazard.
RX-6; Tr. 127, 183. Twentymile attempted to call this inspector as a witness
but, by order dated January 24, 2018, I quashed the subpoena. 40 FMSHRC 242.

[8]
If I assume that the Secretary established that there was a discrete safety
hazard, that is that the violation sufficiently contributed to the hazard that
the safety standard was intended to prevent, I would be required to assume such
occurrence and determine whether the occurrence of that hazard would reasonably
be likely to result in an injury. Newtown , 38 FMSHRC 2038. An injury
would be reasonably likely in such instance which could range between sprains
and bruises to serious or fatal injuries.  

[9]
The
Commission has held that “[t]he statutory language of section 104(d)(1)
expressly makes a significant and substantial finding a prerequisite for the
issuance of a section 104(d)(1) citation.” Youghiogheny & Ohio Coal Co. ,
10 FMSHRC 603, 608 (May 1998). Given that I have found that the violation was
not S&S, Citation No. 9025724, by operation of law, is modified from a
104(d)(1) citation to a 104(a) citation and the unwarrantable failure
designation is vacated. My finding that Twentymile’s negligence was low is also
inconsistent with an unwarrantable failure finding.

[10]
Consideration of an operator’s objectively reasonable and good faith belief
that the cited conduct was in compliance with applicable law is appropriate in
the analysis of unwarrantable failure and the degree of negligence. Lehigh
Anthracite Coal, LLC et al. , 40 FMSHRC __, slip op. at 9, No. PENN 2014-109
(April 10, 2018).

[11]
Earlier in
this decision, I determined that that a reasonably prudent person familiar with
the mining industry and the protective purposes of section 75.1725 would have
recognized that the act of fishing at the feeder is a type of preventive
maintenance that is covered by the requirements of section 75.1725(c). That
determination is not inconsistent with my finding here that Twentymile had a
reasonable good faith belief that it was in compliance with MSHA safety
standards. I am holding that Twentymile was negligent in permitting the
violation but the degree of its negligence should be lowered given the
circumstances discussed above.

[12]
Although
Taylor testified that the feeder conveyor was running when the inspection party
arrived at the feeder, it is unclear whether the conveyor was running at the
time Lomas actually fished material out. Tr. 25. Lomas testified that he always
pulls the e-stop cord to stop the conveyor before removing anything from the
feeder with the fishing pole. Tr. 96, 201. As discussed above, it is clear that
the feeder conveyor was moving as material is dumped into the feeder’s hopper. For
purposes of this decision I assume that Lomas did not always stop the conveyor
when he removed objects from the feeder conveyor while fishing.

[13]
The Secretary specially assessed the proposed penalty. 30 C.F.R. § 100.5. MSHA’s
Special Assessment Narrative Form indicates that the proposed penalty would
have been $25,445 had it not been specially assessed. The Commission is not
bound by the Secretary’s special assessment procedure or the assessment formula
used in 30 C.F.R. Part 100. I find that a penalty of $5,000 is appropriate in
this case taking into consideration the penalty criteria set forth in section
110 the Mine Act. Although I determined that the violation was not serious and
Twentymile’s negligence was low, Peabody Twentymile Mining LLC and Peabody
Energy, Inc. are large operators, so a further reduction of the penalty is not
warranted.

[14]
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.