Mingo Logan Coal Company

Plain-English summary

Mingo Logan Coal Company operated the Mountaineer Mine and was cited after an independent contractor employee received experienced-miner training instead of new-miner training. The judge held that Mingo Logan could be cited because the contractor's employee worked near Mingo Logan miners and could expose them to hazards, even though the inspector had no proof of direct interaction. The judge found a violation of 30 C.F.R. § 48.5 and assessed a $100 civil penalty, finding Mingo Logan's negligence nil because its periodic audits of the contractor's training certificates and classes were reasonable. The Commission later reviewed the decision in the same docket.

Decision snapshot

• Cited standard(s): 30 C.F.R. §§ 48.5 and 48.6
• Outcome: The violation was affirmed and a $100 civil penalty was ordered.
• Key point: An operator may be cited for a contractor's training violation when the contractor's inadequately trained employee works near the operator's miners and creates a potential exposure to hazards.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                OFFICE OF A D M INISTRA TIV E LA W JUDGES
                         2 SK YLINE, 10 th FLOOR
                          5203 LEESBURG PIK E
                    FA LLS CHURCH, V IRGINIA 22041



                      February 15, 1995

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 93-392
Petitioner : A. C. No. 46-06958-03561
v. :
: Mountaineer Mine
MINGO LOGAN COAL COMPANY, :
Respondent :

                             DECISION

Appearances: Patrick L. DePace, Esq., Office of the Solicitor,
U. S. Department of Labor, Arlington, Virginia,
for the Secretary;
David J. Hardy, Esq., Linden R. Evans, Esq., J

Before: Judge Maurer

                     STATEMENT OF THE CASE

 In this civil penalty proceeding, brought by the Secretary

of Labor (Secretary) against the Mingo Logan Coal Company
(Mingo Logan) pursuant to Section 105(d) of the Federal Mine
Safety and Health Act of 1977 (the Act), the Secretary charges
Mingo Logan with a violation of the training requirements found
in Part 48, Title 30, Code of Federal Regulations.

 Pursuant to notice, the case was heard in Beckley,

West Virginia, on October 20, 1994. At the hearing, Inspector
Robert A. Rose testified for the Secretary. Messrs. Matthew
Murray and James Mullins testified for Mingo Logan. The parties
simultaneously filed briefs on January 17, 1995, which I have
duly considered in making the following decision.

                          STIPULATIONS

 At the hearing, the parties entered the following

stipulations into the record (Tr. 40-43):

 l. Mingo Logan is the operator of the Mountaineer Mine and

operations of the Mountaineer Mine are subject to the Mine Safety
and Health Act.

Page 2

 2. Robert A. Rose is an authorized representative of the

Secretary of Labor.

 3. The Administrative Law Judge has jurisdiction to hear

this case.

 4. True copies of Citation No. 3999455, and the January 8,

1993 modification changing the violation to a section 104(g)(1)
order, were served on the respondent.

 5. The imposition of the proposed civil penalty will not

affect the ability of Mingo Logan to continue in business.

 6. The proposed assessment data form (MSHA Form No. 1000-

179) contained in Exhibit A attached to the Secretary's Petition,
accurately sets forth the size of Mingo Logan in production tons
per year, the size of the Mountaineer Mine in production tons per
year, the total number of assessed violations for a 24-month
period preceding the citation at issue and the total number of
inspection days for a 24-month period preceding the date the
citation was issued.

 7. Timothy Sargent received newly employed experienced

miner training when he should have received newly employed
inexperienced miner training [new miner training].

          FINDINGS, CONCLUSIONS, AND DISCUSSION

 Mingo Logan operates a large underground coal mine known as

the Mountaineer Mine, located in Mingo County, West Virginia.
Beginning in the late summer of 1991, Mingo Logan contracted with
Mahon Enterprises (Mahon), an independent contractor registered
with MSHA, for the performance of various mining-rated services
at the mine. One such contract, dated March 2, 1992, was for the
performance of construction work at the mine; more specifically,
the installation of an underground 72-inch belt conveyor system.
Mahon started the job in late May or early June of 1992, and
completed the work in September of 1992.

 On August 3, 1992, MSHA Inspector Robert A. Rose, during a

regular quarterly inspection of the Mountaineer Mine, issued
Section 104(a) Citation No. 3999455 to Mingo Logan for a
violation of 30 C.F.R. ' 48.5, after an audit of the training
records for Mahon revealed that four employees of Mahon had
received newly employed experienced miner training when in fact,
according to the records provided at the time, the four employees
did not qualify as experienced miners, and therefore, should have
received newly employed inexperienced miner training [new miner
training]. On January 8, 1993, Inspector Rose modified the

Page 3

citation to a section 104(g)(1) order, and it was assessed a
civil penalty of $5500 for the violation. However, on April 28,
1993, Inspector Rose modified the then (g)(1) order back to the

original section 104(a) citation, apparently without effective
notice to Mingo Logan, and in any event, the civil penalty was
never reassessed after the last modification. Furthermore, at
hearing, the Secretary requested that the citation at bar be
further modified to delete the names of three of the four
employees identified by Inspector Rose as not having received the
proper training. This proposed modification was not objected to
and is appropriate because, although the records were not
available to Inspector Rose at the time of the original issuance
of the citation, documentation has been subsequently provided
which indicates that the three miners had in fact been properly
classified and trained as newly employed experienced miners.
Accordingly, the citation was modified to reflect that the only
individual who did not receive the proper training was Mahon
employee Timothy Sargent.

 It is undisputed that Timothy Sargent did not meet the

regulatory definition of an experienced miner, and therefore, was
improperly trained to the wrong standard. Mahon itself was also
cited and has already paid a civil penalty of $1300 for the
uncontested (by Mahon) violation.

 The Secretary alleges in this case that Mingo Logan, the

production-operator, also violated 30 C.F.R. ' 48.5 by failing to
ensure that an employee of Mahon, its independent contractor,
working at its Mountaineer Mine was properly trained. This in
accordance with his "overlapping" compliance theory which is
contained in the MSHA Program Policy Manual.1

 1
     Volume III, Part 45 of MSHA's Program Policy Manual 6




                               3

Page 4

 Timothy Sargent was hired by Mahon and given the newly

employed experienced miner training required by 30 C.F.R. ' 48.6
on May 27, 1992, based on the now known to be erroneous belief
that he was an experienced miner who had just been laid off at a
coal mine in Kentucky. Mr. Lenville Mahon had relied on verbal
representations made by Sargent and others rather than upon the
written application Sargent submitted. For some reason he failed

(07/01/88 Release III-1) states in pertinent part that:

       This "overlapping" compliance responsibility means that
 there may be circumstances in which it is appropriate to
 issue citations or orders to both the independent contractor
 and to the production-operator for a violation. Enforcement
 action against a production-operator for a violation(s)
 involving an independent contractor is normally appropriate
 in any of the following situations: . . .(3) when the
 production-operator's miners are exposed to the hazard;
 . . . . In addition, the production-operator may be required
 to assure continued compliance with standards and
 regulations applicable to an independent contractor at the
 mine.




                            4

Page 5

to review the written application Sargent submitted. It was this
same document, that when reviewed by MSHA provided the basis for
the instant citation, i.e., that Sargent did not meet the
regulatory definition of an experienced miner.

 Mingo Logan's major complaint about being cited in this

instance is that Mahon was contractually responsible for hiring,
training, and supervising its own employees, and it did so.
Mingo Logan had no authority to dictate to Mahon who to hire or
fire, nor did Mingo Logan have any control over Mahon employees
once on the job. In short, Mingo Logan objects to being held
liable for a training regulation violation committed entirely by
Mahon.

 Unfortunately for Mingo Logan, as the operator of the

Mountaineer Mine, it is within the wide discretion of MSHA to
hold them strictly liable for all violations of the Act which
occur on the mine site, whether committed by one of their own
employees or an employee of one of their contractors, in the
performance of its contractual obligations to the production
operator. This includes the discretion to cite both the
production-operator and the independent contractor for a
violation committed by a contractor's employee. See, e.g.,
Cathedral Bluffs Shale Oil Co., 6 FMSHRC 1871 (August 1984),
rev'd on other grounds, Brock v. Cathedral Bluffs Shale Oil Co.,
796 F.2d 533 (D.C. Cir 1986); Consolidation Coal Co.,
11 FMSHRC 1439 (August 1989); Bulk Transportation Services,
Inc., 13 FMSHRC 1354 (September 1991); and W-P Coal Co.,
16 FMSHRC 1407 (July 1994).

 In fact, my reading of the Commission's latest pronouncement

on this point, the W-P Coal Co. case, cited supra, indicates to
me that the Secretary has virtually unbridled discretion to cite
whomever he pleases in a multiple operator scenario, including,
as here, both operators. The Commission has reserved only a
review of the Secretary's enforcement decision for an abuse of
discretion, i.e., is it unconscionable, arbitrary or capricious.
If not, it is permissible.

 The facts of this case demonstrate at least an arguable

basis for believing that because of the failure to provide the
required training to Sargent, Mingo Logan employees were
potentially exposed to the hazards resulting from the violation.
This is one of the grounds specifically stated in the Program
Policy Manual as justification for enforcement action against a
production-operator for a violation actually committed by an
independent contractor. And this is in fact the basis upon which
Inspector Rose cited Mingo Logan. Mahon employees worked in an

                            5

Page 6

adjoining entry no more than 80 feet from the belt line Sargent
was working on and in the same split of air as Mingo Logan

                            6

Page 7

employees. Additionally, they utilized the same buses and
haulageways and they traveled in and out of the mine through the
same entry. At times, Mingo Logan employees were required to
cross under the belt line being constructed by Mahon and their
employees were intermingled on this and other occasions
underground in the mine. Thusly, in the opinion of the
inspector, the inadequately trained Mahon employee potentially
exposed Mingo Logan employees to those hazards created by the
inadequate training. I cannot find that he abused his discretion
in citing Mingo Logan, as well as Mahon for the violation at bar
even through the inspector did not have any positive proof that
Mr. Sargent actually interacted with any Mingo Logan employees.
The assumption was that he did and I do not think it can be
absolutely ruled out in the record. At any event, the issue
before me is not whether or not Sargent mingled with Mingo Logan
employees, but rather, whether Inspector Rose abused his
discretion in citing Mingo Logan for the violation. As I have
stated before, I cannot find that he did.

 Accordingly, I find that Mingo Logan violated 30 C.F.R.

' 48.5, as alleged.

 A "significant and substantial" violation is described in

section 104(d)(1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. ' 814(d)(l). A violation is properly designated
significant and substantial "if based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 825 (April 1981).

 In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the

Commission explained its interpretation of the term "significant
and substantial" as follows:

      In order to establish that a violation of a
 mandatory safety standard is significant and
 substantial under National Gypsum the Secretary of
 Labor must prove: (1) the underlying violation of a
 mandatory safety standard; (2) a discrete safety
 hazard--that is, a measure of danger to safety--
 contributed to by the violation; (3) a reasonable
 likelihood that the hazard contributed to will result
 in an injury; and (4) a reasonable likelihood that the
 injury in question will be of a reasonably serious
 nature.

                            7

Page 8

8

Page 9

 In United States Steel Mining Company, Inc., 7 FMSHRC 1125,

1129 (August 1985), the Commission stated further as follows:

 We have explained further that the third element of the
 Mathies formula "requires that the Secretary establish
 a reasonable likelihood that the hazard contributed to
 will result in an event in which there is an injury."
 U. S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
 1984). We have emphasized that, in accordance with the
 language of section 104(d)(1), it is the contribution
 of a violation to the cause and effect of a hazard that
 must be significant and substantial. U. S. Steel
 Mining Company, Inc., 6 FMSHRC 1866, 1868 (August
 1984); U. S. Steel Mining Company, Inc., 6 FMSHRC 1573,
 1574-75 (July 1984).

 A violation of 30 C.F.R. ' 48.5 is found to have occurred.

The discrete safety hazard contributed to by the violation is
that of a miner being unprepared for the hazards he might
encounter underground, as well as the hazard, that he, the
untrained miner, might present to others he comes into contact
with in the course of his work underground.

 What is at issue in this case are the third and fourth

elements of the Mathies test.

 The Secretary's argument is that because of the difference

in the nature and length of the training which should be given to
a newly employed inexperienced miner vice a newly employed
experienced miner, Mr. Sargent was dangerously short-changed in
the training department. The regulations require a minimum of
40 hours of training for inexperienced miners, whereas there is
no minimum time requirement for training of experienced miners.
Furthermore, the training required for newly employed experienced
miners does not include instruction in the subjects of health,
cleanup, rockdusting, electrical hazards, first aid or mine
gases. And even in the subjects which are covered in both
experienced and inexperienced miner training, the training given
to an inexperienced miner is generally much more in depth than
the training provided to an experienced miner.

 In this particular case, the training which Mr. Sargent

received did, in fact, cover some of the subjects which are
specifically required for inexperienced miner training even
though not required for the experienced miner training he was
given. However, the Secretary points out that his training only
took approximately 4 to 5 hours versus the 40 hours training
that he properly should have received. He later received

                            9

Page 10

20 additional hours of training from Mahon to abate the
section 104(g)(1) order that was issued to Mahon for this
violation.

 The Secretary also points out that Mr. Sargent was involved

in an accident during his employment with Mahon as further
justification for making this citation "S&S". Sargent attempted
to lift a moving conveyor belt with his back in order to release
a co-worker whose arm had been caught between the belt and a
bottom roller. The Secretary argues that had Mr. Sargent
received the proper training, he would have been more aware of
the hazards associated with underground coal mines, including
moving belts and therefore more capable of dealing with an
emergency situation rather than reacting as he did, which
resulted in multiple lacerations and bruises to himself.

 Mingo Logan, on the other hand, argues that a fair reading

of the evidence would demonstrate that Sargent's accident
resulted from a lack of common sense, rather than any lack of
appropriate training. I agree. And so does Inspector Rose for
that matter. He testified that he could not "foresee why an
individual would do that for any reason. . . . I do not think I
would ever try anything like that. I am sure I would not."
(Tr. 68-71). Matt Murray, the Safety Technician for Mingo Logan,
characterized Sargent's action in putting his body against a
running belt as "stupid" (Tr. 144) and stated that additional
training would not have prevented this accident.

 As to the Secretary's more general theory for making this an

"S&S" violation, it is too general. There are no specific facts
in the record to show the chance of an injury resulting from this
training violation is more than remote or speculative. For
example, Inspector Rose, the Secretary's only witness, testified
that he did not know anything about what kind of work Sargent
performed in the mine, what equipment he used, if any, or even
where he was assigned to work. I find therefore, that the
inspector's opinion that an injury to someone was "reasonably
likely" is purely conclusory and does not satisfy the Secretary's
burden of establishing that there was a reasonable likelihood of
an injury producing event as a result of this training violation.
I thus conclude that the violation herein was not significant
and substantial.

 The remaining critical issue in this case concerns the

negligence of Mingo Logan. The Secretary seeks a finding of
"low" negligence with regard to Mingo Logan's failure to monitor
more closely the training provided to Mahon's employees.

                           10

Page 11

 Mingo Logan's Matt Murray (Safety Technician) acknowledges

that Mingo Logan does have a responsibility to ensure that Mahon
has complied with the training regulations vis-a-vis Mahon's
employees. In fact, Mingo Logan regularly reviewed Mahon's
training records for compliance. The disagreement between the
parties arises as to whether those reviews were sufficient to
ensure compliance. The crux of the matter is that Mingo Logan
relied on the training certificate itself to determine

compliance. In this case, the training certificate stated on its
face that Tim Sargent had received newly employed experienced
miner training. Mingo Logan relied on that fact and did not
investigate further. Apparently, the violation was set in motion
when Mahon took Sargent's word that he was an experienced miner.
Mahon therefore trained him as an experienced miner. Mingo
Logan's check of the training records thusly only established
that he had been trained and had a proper certificate on file.

 The Secretary seems to be saying that you cannot rely on a

training certificate, that you must look behind that certificate.
Perhaps conduct background investigations on the contractor's
employees. It occurs to me that a production-operator, as a
separate corporate entity, could very quickly involve itself in
privacy-related liability while conducting investigations into
the past lives of employees of another corporation.

 Both Mahon and its employees retain privacy interests in the

medical and other records contained in Mahon's personnel files,
since the files contain records not required to be kept under the
Act. Murray testified that he refrains from delving into Mahon's
personnel files and looks only at the training certificates
during his periodic audits, because he has been instructed by his
superiors not to invade Mahon's personnel files, because of
privacy considerations.

 Accordingly, I find that a reasonably prudent production

operator could not have anticipated that MSHA would require a
production-operator to ensure compliance with the training
regulations in this instance by violating the privacy rights of
persons employed by its independent contractor.

 Moreover, I decline to impute the negligence of Mahon to

Mingo Logan under some sort of agency theory because Mahon was
separately cited for the identical violation and was assessed a
penalty and has paid a substantial civil penalty based on,
amongst other criteria, its own negligence, which was in fact
causative of this violation. Rather, I have evaluated the
negligence factor applicable to Mingo Logan in this case in its
own right, and I find, for the above reasons that respondent's

                           11

Page 12

negligence herein was nil. Any reasonably prudent operator in
Mingo Logan's position would have reasonably believed that its
duty of due care in monitoring Mahon's training program was
fulfilled by the periodic audits of the contractor's training
certificates and training classes.

 Abatement was accomplished entirely by Mahon.   Mingo Logan

was not involved in abatement.

                           12

Page 13

 Taking into account the remaining factors contained in

section 110(i) of the Act, as stipulated to by the parties, I
conclude that a penalty of $100 is appropriate for the violation
cited in Citation No. 3999455.

                          ORDER

 It is ORDERED that, within 30 days of this decision,

respondent shall pay $100 as a civil penalty for the violation
found herein.

                            Roy J. Maurer
                            Administrative Law Judge

Distribution:

Patrick L. DePace, Esq., Office of the Solicitor,
U. S. Department of Labor, 4015 Wilson Boulevard, Room 516,
Arlington, VA 22203 (Certified Mail)

David J. Hardy, Esq., Jackson & Kelly, 1600 Laidley Tower,
P. O. Box 553, Charleston, WV 25322 (Certified Mail)

dcp

                           13