Windsor Coal Company v. Secretary of Labor ( 1998 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    WINDSOR COAL COMPANY,
    Petitioner,
    v.
    SECRETARY OF LABOR; MINE SAFETY
    AND HEALTH ADMINISTRATION;
    No. 97-2766
    FEDERAL MINE SAFETY AND HEALTH
    REVIEW COMMISSION,
    Respondents.
    NATIONAL MINING ASSOCIATION,
    Amicus Curiae.
    On Petition for Review of an Order
    of the Federal Mine Safety and Health Administration.
    (97-34-WEVA)
    Argued: June 5, 1998
    Decided: July 31, 1998
    Before NIEMEYER and LUTTIG, Circuit Judges, and
    SMITH, United States District Judge for the
    Eastern District of Virginia, sitting by designation.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    ARGUED: David Michael Cohen, Fund Supply Department, AMER-
    ICAN ELECTRIC POWER SERVICE CORPORATION, Lancaster,
    Ohio, for Petitioner. Jack Powasnik, Office of the Solicitor, UNITED
    STATES DEPARTMENT OF LABOR, Washington, D.C., for
    Respondents. ON BRIEF: Marvin Krislov, Deputy Solicitor for
    National Operations, Edward P. Clair, Associate Solicitor, W. Chris-
    tian Schumann, Counsel, Appellate Litigation, Office of the Solicitor,
    UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
    for Respondents. Harold P. Quinn, Jr., Michael F. Duffy,
    NATIONAL MINING ASSOCIATION, Washington, D.C., for
    Amicus Curiae.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Windsor Coal Company (Windsor) has petitioned for review of a
    final order of the Federal Mine Safety and Health Review Commis-
    sion (FMSHRC or the Commission). On June 21, 1996, an inspector
    of the Mine Safety and Health Administration (MSHA) issued a cita-
    tion to Windsor pursuant to section 104(d)(1) of the Federal Mine
    Safety and Health Act of 1977 (the Mine Act), 
    30 U.S.C. § 801
    (d)(1).
    Windsor contested the validity of that order before an administrative
    law judge (ALJ) and, following a hearing on the merits, the ALJ
    affirmed the citation. In addition, the ALJ increased the proposed civil
    penalty. The decision of the ALJ became that of the Commission,
    when a petition for discretionary review was denied. Pursuant to 
    30 U.S.C. § 816
    (a)(1), Windsor appealed to this court. We affirm the
    decision in all respects.
    I.
    Windsor is the operator of an underground coal mine in West Lib-
    erty, West Virginia. On June 21, 1996, an MSHA inspector (the
    Inspector) conducted an inspection of the number nine conveyor belt
    2
    in Windsor's mine. During the inspection, the Inspector was accom-
    panied by Robert Talbert, a representative of Windsor and the shift
    supervisor of all underground areas, and Tom Kacsmar, a representa-
    tive of the United Mine Workers of America.
    The number nine belt is one of several main conveyor belts at the
    Windsor mine. The series of conveyor belts are used to transport coal
    through and out of the coal mine, as the coal is mined underground.
    Coal is deposited onto the number nine belt at its tail end and is trans-
    ported to the belt head, where the coal is then deposited onto the num-
    ber eight belt. The number eight belt transports the coal out of the
    mine.
    The number nine belt measures forty-eight inches in width, and
    approximately 3,000 feet in length, running from crosscut 191 (the
    belt head) to crosscut 227 (the tail end). The belt moves by passing
    over 12,000 upper and lower rollers, and is powered by motors at the
    head drive. The number nine belt moves approximately 2,000 to
    2,500 tons of coal per minute.
    During the inspection, the Inspector and Kacsmar, observed large
    amounts of coal dust and loose coal1 underneath and alongside the
    belt from the belt head at crosscut 191 to crosscut 206 and from the
    tail scraper, located beyond crosscut 225, to the tail end. The depth
    of the accumulations varied from a few inches to as much as fifty-four
    inches. The deepest accumulation, which was located at the tail end
    of the belt, measured fifty-four inches deep, twelve and one-half feet
    long, and seventy-five inches wide. The accumulations at the tail end
    were piled higher than the belt. At another location, between crosscuts
    197 and 198, the accumulation was thirty-five feet long, twenty-seven
    inches wide, and fifteen inches deep. While the number nine belt was
    running, the Inspector, Kacsmar, and Talbert observed the belt and
    rollers touching or turning in loose coal and coal dust at various
    places along the belt. In some areas the coal was packed up around
    _________________________________________________________________
    1 Coal dust and loose coal are small particles of coal that are created
    during the mining process. Coal dust is defined as that which can pass
    through a number 20 sieve, and loose coal is defined as coal fragments
    larger than coal dust. 
    30 C.F.R. § 75.400-1
    .
    3
    the rollers. The Inspector and Kacsmar both testified that some of the
    accumulations touching the belt were warm.
    The accumulations were due, in large part, to a tear along the side
    of the belt. The tear was five inches wide and 500 feet long. Larry
    Moore, a worker who had been periodically assigned to clean the belt
    area, noticed the tear a few days prior to the inspection. He informed
    a belt foreman of that tear, as well as a tear down the center of the
    belt, which was approximately 150 feet in length. As of the day of the
    inspection, the center tear, but not the side tear, had been repaired.
    Because replacing the belt strip would have required at least one shift
    of four to six miners, Windsor had decided to delay the replacement
    of the torn belt until the upcoming vacation period. 2 The miners'
    scheduled vacation was to begin two shifts after the shift in which the
    inspection was conducted.
    At the time of the inspection, only one miner was assigned to clean
    the area around belt nine. Moreover, a review of the preshift and
    onshift reports led the Inspector, and ultimately the ALJ, to conclude
    that Windsor had allowed accumulations of coal to remain in areas
    along the belt for days during the week preceding the inspection.
    The Inspector also observed a total of eighteen broken or stuck
    rollers along belt nine. At crosscut 201, he touched a roller with a bad
    bearing that was hot to the touch--so hot that he could not keep his
    hands on the shaft. According to the Inspector, there was loose coal
    and coal dust under this area. The Inspector also observed open doors
    and holes in the stoppings, which are used to separate airways
    between the track entry and the number nine belt entry. The track
    entry is the escape route for the section and, under the conditions
    observed by the Inspector, the entry would become filled with smoke
    in the event of a fire.3
    _________________________________________________________________
    2 Windsor had attempted to reduce some of the spillage caused by the
    tear by splicing and centering the belt. This reduced the belt by two and
    one-half inches on each side, rather than by five inches on one side.
    3 Based on this observation, the Inspector issued a citation for a viola-
    tion of 
    30 C.F.R. § 75.333
    , which requires that permanent stoppings or
    other permanent ventilation control devices be maintained and that doors
    remain closed when not in use.
    4
    Following the inspection, the Inspector issued a Section 104(d)(1)
    citation4 for a violation of the mandatory safety standard of 
    30 C.F.R. § 75.400
    , which prohibits coal dust accumulations in the active work-
    ings of the mine.5 The Inspector further found that the violation was
    both "significant and substantial" and "unwarrantable," as defined in
    
    30 U.S.C. § 814
    (d)(1), which provides in part:
    If, upon any inspection of a coal or other mine, an autho-
    rized representative of the Secretary finds that there has
    been a violation of any mandatory health or safety standard,
    and if he also finds that, while the conditions created by
    such violation do not cause imminent danger, such violation
    is of such nature as could significantly and substantially
    contribute to the cause and effect of a coal or other mine
    safety or health hazard, and if he finds such violation to be
    caused by an unwarrantable failure of such operator to
    comply with such mandatory health or safety standards, he
    shall include such finding in any citation given to the opera-
    tor under this Act.
    (emphasis added). As a result of the citation and findings by the
    Inspector, the Secretary of Labor (the Secretary) proposed a civil pen-
    alty of $1,500.
    _________________________________________________________________
    4 The Section 104(d)(1) citation was originally issued as a section
    104(d)(1) order. The Mine Act provides for escalating enforcement sanc-
    tions under Section 104(d) of the Act, so that some of the violations
    hinge on the issuance of a prior citation. For example, before a Section
    104(d)(1) withdrawal order may be issued, there must have been a Sec-
    tion 104(d)(1) citation issued within the preceding 90 days. In this case,
    the prior Section 104(d)(1) citation had been reclassified as a Section
    104(a)(1) citation. Consequently, on August 27, 1996, the Section
    104(d)(1) order issued on June 21, 1996, was reclassified as a Section
    104(d)(1) citation.
    5 
    30 C.F.R. § 75.400
     provides:
    Coal dust, including float coal dust deposited on rock-dusted sur-
    faces, loose coal, and other combustible materials, shall be
    cleaned up and not permitted to accumulate in active workings,
    or on diesel-powered and electric equipment therein.
    5
    Windsor contested the allegation that the violation was substantial
    and significant and due to an unwarrantable failure to comply. Wind-
    sor also objected to the proposed civil penalty. A hearing was held
    before a Commission ALJ on April 15-16, 1997. On October 20,
    1997, the ALJ issued a decision affirming the citation and assessing
    a civil penalty of $4,000, specifically finding that the violation of 
    30 C.F.R. § 75.400
     was significant and substantial and the result of
    Windsor's unwarrantable failure to comply.
    The ALJ's opinion became the final order of the Commission after
    the Commission denied discretionary review. Pursuant to 
    30 U.S.C. § 816
    (a), Windsor appealed to this court. Windsor does not challenge
    the ALJ's finding of a violation. Rather, Windsor challenges the find-
    ings that the violation was significant and substantial and due to an
    unwarrantable failure to comply. Windsor also objects to the amount
    of the assessed penalty, maintaining that the circumstances surround-
    ing the violation did not warrant the increased penalty.
    II.
    We review the ALJ's findings to determine if they are supported
    by substantial evidence in the record. 30 U.S.C.§ 816(a); see, e.g.,
    Consolidation Coal Co. v. FMSHRC, 
    795 F.2d 364
    , 368 (4th Cir.
    1986). The Supreme Court has defined "substantial evidence" as
    "such relevant evidence as a reasonable mind might accept as ade-
    quate to support a conclusion." Consolidated Edison Co. v. NLRB,
    
    305 U.S. 197
    , 229 (1938). Moreover, the "``possibility of drawing two
    inconsistent conclusions from the evidence does not prevent an
    administrative agency's finding from being supported by substantial
    evidence.'" Secretary of Labor v. Mutual Mining, Inc., 
    80 F.3d 110
    ,
    113 (4th Cir. 1996) (quoting Consolo v. Federal Maritime Comm'n,
    
    383 U.S. 607
    , 610 (1966)).
    Windsor argues that there is not substantial evidence to support the
    finding that the violation was "significant and substantial" within the
    meaning of Section 104(d)(1). To establish that a violation of a safety
    standard is "significant and substantial" the following conditions must
    be met: (1) an 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
    6
    safety hazard contributed to will result in injury; and (4) a reasonable
    likelihood that the injury in question will be of a reasonably serious
    nature. Mathies Coal Co., 6 FMSHC 1, 3-4 (1984).
    The ALJ found that the violation was significant and substantial
    due to the extensive accumulations of coal in combination with the
    stuck and broken rollers, which could then reasonably act as ignition
    sources. The ALJ also found that the ventilation problems, also
    observed on the morning of the inspection, increased the hazard from
    a belt fire; smoke from a fire would be able to travel to other sections
    of the mine. Specifically, the ALJ found "that the violation was rea-
    sonably likely to result in fire or the propagation of a fire causing
    death or serious injuries." J.A. at 433-435.
    Windsor objects to the Commission's determination that the viola-
    tion is reasonably likely to result in a fire. Windsor argues that the
    evidence as a whole supports the conclusion that there was no likeli-
    hood of a fire. In particular, the company relies on the following fac-
    tors, which it maintains was supported by the evidence: (1) the use of
    dust suppression sprays; (2) rock dusting; (3) lack of methane emis-
    sions; and (4) the lack of heat being generated by the rollers.
    Although Windsor can point to some factual support for its argument,
    there remains substantial evidence to support the ALJ's contrary con-
    clusion.
    Adequate rock dusting does render coal accumulations inert. How-
    ever, in this case the top of the accumulations consisted of fresh coal.
    In addition, there was no rock dust mixed in with the accumulations
    located at the tail piece. Moreover, despite the diminished potential
    for an explosion due to low methane levels and dust suppression
    sprays, there was sufficient evidence to find that the conditions at belt
    nine were reasonably likely to cause or propagate a fire. The coal
    accumulations were extensive and there was ample evidence to sup-
    port the finding that possible ignition sources were located along the
    belt. Eighteen of the rollers were broken, including one that was very
    hot to the touch. In addition, the belt and some rollers were touching
    or turning in coal dust, and in some places the accumulations were
    warm. See Buck Creek Coal, Inc. v. Fed. Mine Safety and Health
    Admin., 
    52 F.3d 133
    , 135 & 136 n.1 (7th Cir. 1995) (finding the
    ALJ's conclusion that the coal accumulations were likely to cause a
    7
    fire was clearly supported by substantial evidence under facts similar
    to the case at bar).
    Windsor also contends that substantial evidence does not support
    the ALJ's finding of an "unwarrantable failure." An MSHA inspector
    is to determine whether a violation is caused "by an unwarrantable
    failure of . . . [an] operator to comply with . . . mandatory safety or
    health standards. . . ." Section 104(d)(1) of the Mine Act, 
    30 U.S.C. § 814
    (d)(1). An "unwarrantable failure" is conduct that is "not justifi-
    able" or is "inexcusable." Secretary of Labor v. S & H Mining, Inc.,
    
    15 FMSHRC 2387
    , 2390 (1993). It has also been defined as "aggra-
    vated conduct, constituting more than ordinary negligence, by a mine
    operator in relation to a violation of the Act." Jim Walter Resources
    v. Secretary of Labor, Mine Safety and Health Admin. , 
    103 F.3d 1020
    ,
    1025 (D.C. Cir. 1997) (citing Emery Mining Corp. v. Secretary of
    Labor, 
    9 FMSHRC 1997
    , 2004 (1987)).
    In affirming the Inspector's citation, the ALJ found that the viola-
    tion was due to aggravated conduct beyond ordinary negligence. The
    ALJ found that the accumulations were obvious and extensive and
    that the violative accumulations had existed for a substantial period
    of time prior to the issuance of the citation. He further found that,
    although Windsor knew of the problems with the conveyor belt, the
    company failed to take adequate measures to clean up and prevent the
    extensive and widespread accumulation of combustible materials.
    This finding was based on Windsor's decision to delay necessary
    repairs to the belt and to continue production until the miners' vaca-
    tion period. It was also based, inter alia, on the fact that only one
    miner was assigned to clean the belt nine area on the night of the
    inspection.
    Windsor argues that the ALJ should have given more weight to the
    corrective measures it did take, such as replacing the faulty tail roller,
    repairing the center belt split, and adjusting the belt alignment to
    reduce spillage caused by the 500 foot tear. Although these efforts do
    indicate that Windsor took some action to limit the amount of accu-
    mulations, we cannot say that the ALJ erred in its finding of an
    unwarrantable failure. There clearly is substantial evidence in the
    record to support the ALJ's conclusion that Windsor deliberately
    8
    failed to take adequate measures to comply with a mandatory safety
    standard.
    III.
    Windsor also argues that the civil penalty imposed for the violation
    is excessive. Following a hearing, the ALJ is authorized to determine
    de novo the amount of the civil penalties that should be imposed pur-
    suant to the factors set forth in 
    30 U.S.C. § 820
    (I).6 In assessing the
    penalty, the ALJ found the Secretary's proposed penalty of $1,200
    inadequate to effectuate the intent and purpose of the Act. The ALJ,
    thus, increased the civil penalty to $4,000.7 We review civil penalties
    only for abuse of discretion. See, e.g., B.L. Anderson, Inc. v.
    FMSHRC, 
    668 F.2d 442
    , 444 (8th Cir. 1982).
    Windsor contests the ALJ's findings and conclusions concerning
    its history of violations, its negligence, and the gravity of the viola-
    tions. However, we cannot find that the ALJ erred in his application
    of the statutory criteria to the facts of this case. Windsor had commit-
    ted over one hundred violations of Section 75.400 during the two-year
    period preceding the inspection on June 21, 1996. Furthermore, all
    eleven of the most recent Section 75.400 violations were for accumu-
    lations along belt lines, two of them along the number nine belt. Thus,
    the ALJ did not err in finding that Windsor's history of Section
    75.400 violation was poor. In light of this court's decision regarding
    _________________________________________________________________
    6 The following factors must be considered in assessing penalties:
    (1) the operator's history of previous violations; (2) the appropri-
    ateness of such penalty to the size of the business of the operator
    charged; (3) whether the operator was negligent; (4) the effect on
    the operator's ability to continue in business; (5) the gravity of
    the violation; and (6) the demonstrated good faith of the person
    charged in attempting to achieve rapid compliance after notifica-
    tion of a violation.
    
    30 U.S.C. § 820
    (I).
    7 Although the fine is greater than that recommended by the Secretary,
    it is considerably less than the maximum permitted under the statute. The
    maximum penalty that could have been imposed for the violation is
    $50,000. 
    30 U.S.C. § 820
    (a).
    9
    the nature of the violation, we cannot say the ALJ erred in finding that
    the violation was serious or that it was due to a high degree of negli-
    gence. Accordingly, we find that the penalty imposed was not an
    abuse of discretion.
    IV.
    Considering the record as a whole, there is substantial evidence to
    support the ALJ's findings of fact. In addition, upon the facts of the
    present case, the imposed penalty was not excessive or an abuse of
    discretion. For the foregoing reasons, the Order of the Commission is
    affirmed.
    AFFIRMED
    10