Patch Coal Company

Read the official release (fmshrc.gov)

Plain-English summary

Patch Coal Company operated the Welch Mine and was cited after five newly employed experienced miners had not received required training. Judge George A. Koutras found that the training violations were serious but not significant and substantial, and that the company's negligence was moderate. The violations were timely abated after the miners were withdrawn and trained by an MSHA-approved instructor. The judge ordered five $75 penalties, for a total of $375.

Decision snapshot

• Cited standard: 30 C.F.R. § 48.26(a)
• Outcome: The five training violations were affirmed, with total civil penalties of $375.
• Key point: Prompt abatement and a good compliance record supported the penalty assessment, but did not eliminate the underlying training violations.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. PATCH COAL
DDATE:
19880624
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. CENT 88-2
PETITIONER A.C. No. 34-01353-03509
v.
Welch Mine
PATCH COAL COMPANY,
RESPONDENT

                               DECISION

Appearances: Michael Olvera, Esq., Office of the Solicitor, U.S.
Department of Labor, Dallas, Texas, for the Petitioner;
Marcus A. Wiley, Mining Engineer, Wiley Engineering, Inc.,
Broken Arrow, Oklahoma, for the Respondent.

Before: Judge Koutras

                        Statement of the Case

 This proceeding concerns proposals for assessment of civil

penalties filed by the petitioner against the respondent pursuant
to section 110(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 820(a), seeking civil penalty assessments in
the amount of $1,050, for five alleged violations of mandatory
training standard 30 C.F.R. 48.26(a). The respondent filed an
answer denying the violations, and a hearing was held in Tulsa,
Oklahoma. Although the parties waived the filing of posthearing
briefs, I have considered their oral arguments made on the record
during the hearing in my adjudication of this matter.

                                Issues

 The issues presented in this case include the following: (1)

whether the respondent violated the cited mandatory training
standard; (2) whether the violations resulted from an
unwarrantable failure by Patch Coal Company to comply with the
requirements of the cited standard; and (3) whether or not the

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violations were significant and substantial. Assuming the
violations are affirmed, the question next presented is the
appropriate civil penalties to be assessed pursuant to the
penalty criteria found in section 110(i) of the Act.

           Applicable Statutory and Regulatory Provisions

 1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C.

301, et seq

 2. Sections 110(a), 110(i), 104(d), and 105(d), of the Act.

 3. Commission Rules, 29 C.F.R.     2700.1, et seq.

Stipulations

 The parties stipulated to the following (Tr. 3Ä4):

      1. The respondent's history of prior violations
      consists of two (2) citations issued during the
      twenty-four (24) months prior to the violations in this
      case, over a period of twenty-two (22) inspection days.

      2. The respondent's annual 1986 coal production was
      28,000 tons, with first-quarter 1987 production of
      12,000 tons.

      3. The respondent admits to "technical violations" of
      the training requirements of 30 C.F.R.   48.26(a), but
      contests the inspector's gravity and negligence
      findings.

                             Discussion

 The contested section 104(d)(1) citation and orders were

issued by MSHA Inspector Johnny M. Newport in the course of an
inspection which he conducted at the mine on April 13, 1987, and
they are as follows:

 Section 104(d)(1) Citation No. 2839121, issued on April 13,

1987, at 8:30 a.m., cites an alleged violation of 30 C.F.R.
48.26(a), and the condition or practice is described as follows:

      Mr. Gary Layton determined to be a newly employed
      experienced miner operating a 988ÄB front-end loader at
      pit 004Ä0 load rear dump trucks. A discussion with Mr.
      Layton revealed

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he had received no newly employed experienced miner training.
Mr. Layton had been working at this mine for approximately
three weeks.

 The inspector made gravity findings of "reasonably likely"

resulting in "fatal" injuries, and he concluded that the
violation was "significant and substantial." He also made a
negligence finding of "reckless disregard," and included all of
these findings on the face of the violation form by marking the
appropriate places under Section II, "Inspector's Evaluation."

 At 8:45 a.m., on April 13, 1987, the inspector issued

section 104(d)(1) Order No. 2839123, which states as follows:

      Mr. Scott Bullard determined to be a newly experienced
      (employed) miner operating a caterpillar 769B rear dump
      truck at pit 004Ä0 had not received newly employed
      experienced miner training. Mr. Bullard had been
      working at this mine for approximately two weeks.

 At 9:15 a.m., on April 13, 1987, the inspector issued

section 104(d)(1) Order No. 2839125, which states as follows:

      Mr. Gaylin Rogers determined to be a newly employed
      experienced miner operating a caterpillar 769ÄB rear
      dump truck at pit 004Ä0 had not received newly employed
      experienced miner training. Mr. Rogers has been working
      at this mine for approximately three weeks.

 At 9:15 a.m., on April 13, 1987, the inspector issued

section 104(d)(1) Order No. 2839127, which states as follows:

      Mr. Rick Nash determined to be a newly employed
      experienced miner operating a Caterpillar 9ÄL bulldozer
      at pit 004Ä0 had not received newly employed
      experienced miner training. Mr. Nash has been working
      at this mine for approximately three weeks.

 At 9:45 a.m., on April 13, 1987, the inspector issued

section 104(d)(1) Order No. 2839129, which states as follows:

      Mr. Larry Pitts, determined to be a newly employed
      experienced miner operating a Caterpillar 9ÄL bulldozer
      at pit 004Ä0 had not received newly employed
      experienced miner

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training. Mr. Pitts has been working at this mine for
approximately three weeks.

 The inspector made gravity and negligence findings with

respect to the aforementioned four orders identical to those made
in connection with the initial section 104(d)(1) Citation No.
2839121.

Petitioner's Testimony and Evidence

 MSHA Inspector Johnny M. Newport testified as to his

experience and background, and he confirmed that he issued the
citation and orders in question during his inspection of the
respondent's mining operation on April 13, 1987. Mr. Newport
described the respondent's mining operation as a surface pit coal
mine utilizing a drag line, front-end loaders, and rear dump
trucks. At the time of his inspection, the cited employees were
removing overburden with bulldozers, and were operating
endloaders and rear dump trucks. During the inspection of the
equipment he asked each of the five cited miners whether they had
received newly employed experienced miner training, and they
replied that they had received no such training from the
respondent (Tr. 8Ä11).

 In response to a question as to why he concluded that the

lack of the required training would "reasonably likely" result in
injuries, Mr. Newport responded as follows (Tr. 11Ä12):

      A. It would be reasonably likely that an accident would
      occur, based on their experience, the hazards involved
      with moving overburden, leaving the high wall, plus the
      general aspects of just the coal mine industry; it's a
      hazardous business.

      Q. You've found, I guess in your experience, that as
      the amount of training of an employee goes down, the
      chance of accidents go up?

      A. That's true; yes, sir.

 In response to a question as to why he concluded that any

injuries resulting from the lack of training could reasonably
result in fatalities, Mr. Newport responded as follows (Tr. 12):

      A. Basically, because of the hazards involved in the
      coal mining industry. If a person is not trained to
      notice certain aspects of high

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walls, the patterns of equipment movement, where they dump, what
method is being mined, there's a reasonable likelihood that it
would result in a fatality.

      Q. Was there anything in particular with the types of
      machines that they were using at this present time that
      would lead you to believe that a fatality could occur?

      A. It's large equipment that's being used in the mining
      industry.

      Q. Could you say that if the injury did occur, it would
      probably be of a reasonably serious nature?

      A. Yes, sir, in my opinion, it would.

 Mr. Newport stated that his negligence finding of "reckless

disregard" was based on the fact that during the respondent's
operation of a prior pit with a drag line, he discussed training
with mine superintendent Doug Cook, and it was his understanding
that depending on their experience, Mr. Cook knew the types of
training required of miners. Mr. Newport stated that Mr. Cook has
a copy of the "C.F.R." and the mine training plan. Mr. Newport
confirmed that the respondent was cooperative during his
inspection (Tr. 13).

 On cross-examination, Mr. Newport stated that at the time he

asked the employees whether they had received training, he had
reviewed the respondent's training plan and asked about the
location of the first aid station and first aid supplies, and no
one could answer his questions in this regard. He also asked
about communications, general mine policies, and accident
reporting, and the only safety items that the employees were
aware of were the need to wear hard hats and safety shoes. Mr.
Newport identified copies of two training certificates for cited
employees Gary Layton and Gaylin Rogers, and he confirmed that at
the time of his inspection the employees could not produce copies
of the certificates, and Mr. Newport confirmed that he could not
find them among the mine records he reviewed (Tr. 13Ä16; exhibits
RÄ1, RÄ2).

 Mr. Newport confirmed that all of the cited employees were

experienced miners, but were newly employed by the respondent for
1 to 3 weeks prior to his inspection. When asked to explain the
basis for his conclusions that the lack of the required training
pursuant to the respondent's approved plan

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would expose each of the cited miners to "serious injuries" or
that it was reasonably likely that each miner would likely be
involved in an accident of a reasonably serious nature, Mr.
Newport responded as follows (Tr. 19Ä21):

      THE WITNESS: At the time that I made the inspection, it
      did have a high wall. The gentlemen working next to the
      high wall, or the spoil banks, comes, not in contact,
      but in that general area. Per se, just on a flat, as
      this floor, it's reasonably likely it could be less
      than that.

      Going and coming from this pit, though, there's hills.
      You could have a flat tire, steering, blowing the
      hydraulic hose is a common occurrence in the coal mines
      with heavy equipment.

      JUDGE KOUTRAS: I understand all that, but how would
      training this fellow keep those events from happening?
      You could have the best-trained miner in the world
      operating a front-end loader and all of a sudden, his
      hydraulic goes out because maybe the front-end loader
      is defective or it wasn't inspected for brakes or it
      had a broken hose or something like that. I suppose
      that's what Mr. Wiley is asking you.

      THE WITNESS: In the portion of the training with
      trucks, front-end loaders, there's a mining method.
      It's either a left-hand method or a right-hand method.
      If a certain person has been trained in a right-hand
      method and this company is doing the opposite, if he's
      not properly trained to his aspect, they could run into
      each other.

      The size of the equipment could play a big importance
      on that gentleman getting hurt or hurt seriously, so it
      does play a big importance.

      Some of the other coal companies, for example, that one
      truck -- you're sitting here, and it's anywhere from zero
      to maybe 15 feet.

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We have some people that pass like on the highway, which is
called the "left-hand method," whereas other people, for safety
purposes -- they do that for --

      JUDGE KOUTRAS: In this case, did you make those
      determinations individually for all these people or did
      you just assume that since they weren't trained, they
      would be exposed to all of these things that generally
      could happen at any operation?

      THE WITNESS: Yes, it could generally happen.

      JUDGE KOUTRAS: You didn't, for example, take each of
      these people and determine what their jobs were and all
      that business, whether it was left-hand or right-hand
      and all that business; did you?

      THE WITNESS: Each is supposed to be incorporated in the
      Training Plan to go about it, sir.

 Referring to his inspection report of April 13, 1987, Mr.

Newport confirmed that he issued a citation for the lack of a
front horn on a motor grader and inadequate brakes on mobile
equipment. The citations were issued at a different pit than
those where the untrained miners were working, and Mr. Newport
conceded that no citations were issued for the work environment
in which these miners were working. However, Mr. Newport took the
position that the cited equipment travelled to the pit where the
employees were working (Tr. 23Ä26).

 In response to further questions concerning his gravity and

negligence findings, Mr. Newport stated as follows at (Tr.
31Ä32):

      JUDGE KOUTRAS: Did you, Mr. Newport, find any
      conditions at that mine when these fellows were working
      that would lead to any unusual circumstances in the
      form of hazards?

      THE WITNESS: Not at that time, sir, but as far as the
      conditions during this inspection, it was during the
      winter and with the high walls, when the sun dries them
      out and then we have the rains, there's a possibility
      rocks could

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fall from the high wall. There's people on foot cleaning coal.

      JUDGE KOUTRAS: This would be true in any surface mining
      environment; wouldn't it?

      THE WITNESS: Yes, sir.

      JUDGE KOUTRAS: So you would come to the same conclusion
      if you'd gone to the next one down the road? You would
      come to all these conclusions?

      THE WITNESS: Even at the ones to the next mine, we
      asked them on their training. Once the initial time
      period that a person starts at a mine -- Some mines give
      training on a monthly basis for these same aspects. By
      law, they're required eight hours of annual refresher
      training to go over these things.

And, at (Tr. 39Ä40):

      As far as I was concerned, Mr. Cook did know; he's an
      experienced mining engineer. He's been in the business
      for at least -- better than 20 years; he's familiar with
      this.

      Unless him and this gentleman have some agreement, as
      far as I am concerned, yes, sir, it's just total
      disregard.

 Mr. Newport confirmed that he did not have the mine training

plan with him at the time he interviewed the employees by their
equipment, and that he did not review the plan with them
item-for-item to insure that they had received training in each
of the subjects listed on the plan. He assumed that they were
aware of these items, and aside from their knowledge of the
requirements for safety shoes and hard hats, the employees told
him that they had not received all of the training required by
the plan (Tr. 42).

 Mr. Newport confirmed that MSHA's training requirements

require different degrees of training, depending on the
experience of the miner. Pursuant to the respondent's training
plan, newly employed experienced miners are required to receive 3
hours of training, and new miners with no experience are required
to receive 40 hours of training. He confirmed that the type of
training required of the cited miners in this

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case appears at page 5 of the training plan (exhibit PÄ1, Tr.
42). He also believed that the "hazard training" indicated on the
training certificates for Mr. Layton and Mr. Rogers is the type
of hazard training given to mine visitors, rather than to newly
hired experienced miners (Tr. 43).

 Mr. Newport confirmed that all of the cited miners were

withdrawn from the mine, and that the citations were timely
abated after the miners received the requisite training from an
individual who is on retainer with the respondent (Tr. 45). He
also confirmed that the cited miners had worked at least 2 years
at other mines (Tr. 51).

 Mr. Newport stated that his prior conversation with Mr. Cook

concerning training took place while he was on a spot inspection
of another mine. Mr. Newport explained that this mine was along
the same haulage road used by the respondent, and Mr. Cook
advised him at that time that the respondent was considering
opening up a new pit. During a conversation in the mine office,
Mr. Newport stated that he advised Mr. Cook that "you need to
remember the training," and Mr. Cook responded that "it would be
taken care of." Since Mr. Cook was responsible for the entire
mine, Mr. Newport believed that he was adequately informed about
the training requirements (Tr. 53Ä54). Mr. Newport confirmed that
he had no knowledge that Mr. Callahan had done any training.
Assuming that he did, since he was not an MSHA certified trainer
with a "blue card," Mr. Newport would still have issued the
citations for improper training (Tr. 56Ä57).

Respondent's Testimony and Evidence

 Marcus A. Wiley, Professional Engineer and President, Wiley

Engineering Company, stated that he was designated by the
respondent's mine superintendent, Doug Cook, to represent the
respondent in this matter because his firm in on retainer by the
respondent as a consulting firm. Mr. Wiley asserted that the
respondent has an excellent compliance record and is concerned
for the safety of its employees. He confirmed that the
respondent's principal reason for contesting the violations was
based on its desire to challenge the inspector's finding that the
respondent exhibited a "reckless disregard" for MSHA's training
requirements. He conceded that the complete training required by
section 48.26(a), was not given to the five newly hired
experienced miners cited by Inspector Newport. Mr. Wiley
maintained that the employees did receive some "hazard
recognition" training from one of his contractor employees, John
Callahan, and he submitted copies of training certificates issued
to two of the cited miners (Gary Layton

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and Gaylin Rogers) which indicate that they received this
training on March 30, 1987 (Exhibits RÄ1 and RÄ2; Tr. 6Ä8).

 Mr. Wiley explained that Mr. Callahan was one of three

employees of his firm who are certified by the State of Oklahoma
as mine training supervisors, and that Mr. Callahan was a
certified mine foreman assigned as the pit supervisor at the
respondent's mine. Conceding that Mr. Callahan was not an MSHA
"approved" training instructor, Mr. Wiley nonetheless maintained
that the training given to the cited miners by Mr. Callahan
concerned hazard recognition and avoidance, emergency and
evacuation procedures, and health and safety standards, and that
some of this training overlapped MSHA's training requirements for
newly employed experienced miners.

 Mr. Newport stated that he has never met Mr. Callahan and

was not aware of his supervisory responsibilities. Mr. Wiley
explained that this was not unusual since Mr. Cook was the
individual identified under MSHA's mine ID number as the
responsible person at the mine. Mr. Wiley assumed that Mr.
Newport would have contacted Mr. Cook in regard to the citations
which he issued and would not necessarily speak with Mr.
Callahan. Mr. Newport confirmed that during his inspection he did
not speak with Mr. Cook or Mr. Callahan, and he explained that
Mr. Cook's name appears on the citation forms as the person to
whom he served the citations because Mr. Cook had previously
instructed him to put his name on all citations issued at the
mine (Tr. 26Ä30).

 Mr. Wiley pointed out that the respondent did have an MSHA

approved training plan in effect at the time of the inspection
conducted by Inspector Newport, and that after the withdrawal of
the affected miners, they received immediate training in order to
abate the violations, and that the respondent's training plan was
amended to include mine superintendent Cook as one of three
individuals certified by MSHA as approved training instructors.
Prior to the inspection, Mr. Cook was not an approved trainer.
Inspector Newport agreed that this was the case, and he stated
that the citations could have been avoided if the respondent had
upgraded its training plan to include Mr. Cook and Mr. Callahan
as MSHA certified and approved training instructors (Tr. 26Ä27;
48Ä50).

 Mr. Wiley candidly conceded that while the complete and

proper MSHA training may not have been provided by the respondent
in this case, he feels personally responsible for this, but
believes that the severity of the inspector's conclusion that the
violations were the result of the respondent's

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"unwarrantable failure" to comply with MSHA's training
requirements is not justified (Tr. 34Ä35).

                    Findings and Conclusions

Fact of Violations - 30 C.F.R. 48.26(a)

 The respondent is charged with five alleged violations of

mandatory training standard 30 C.F.R. 48.26(a), which mandates
certain training for newly employed experienced miners. The
standard requires that such miners complete a program of
instruction in seven topical categories which are as follows:

      1. Introduction to work environment.

      2. Mandatory health and training standards.

      3. Authority and responsibility of supervisor's and
      miners' representatives.

      4. Transportation controls and communication systems.

      5. Escape and emergency evacuation plans; firewarning
      and firefighting.

      6. Ground controls; working in areas of highwalls,
      water hazards, pits, and spoil banks; illumination and
      night work.

      7. Hazard recognition.

 Inspector Newport confirmed that he issued the violations

during the course of an inspection and after interviewing the
five miner equipment operators while they were engaged in work
involving the removal of overburden at the surface pit mine in
question. The miners confirmed to the inspector that while they
were aware of the requirements for wearing hard hats and safety
shoes, they had not received any newly employed experienced miner
training as required by the respondent's approved training plan.
The inspector also confirmed that the cited employees could not
produce copies of any training certificates indicating that they
had received the required training, and he could not find any
copies of any such certificates during his review of the
appropriate mine records.

 The record establishes that while the cited equipment

operators were experienced miners trained in the operation of

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the equipment they were operating at the time of the inspection,
they were newly employed miners at the respondent's mine and had
worked there for several weeks prior to the inspection. Further,
the respondent has stipulated and admitted that the employees in
question had not received the required training specified in
section 48.26(a), as well as its own MSHA approved mine training
plan. Under all of these circumstances, I conclude and find that
the failure by the respondent to provide the required newly
employed miner training for the five cited employees in question
constituted violations of the requirements of mandatory training
standard 30 C.F.R. 48.26(a), and the violations ARE AFFIRMED.

The Unwarrantable Failure Issue

 The governing definition of unwarrantable failure was

explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided
under the 1969 Act, and it held in pertinent part as follows at
295Ä96:

      In light of the foregoing, we hold that an inspector
      should find that a violation of any mandatory standard
      was caused by an unwarrantable failure to comply with
      such standard if he determines that the operator
      involved has failed to abate the conditions or
      practices constituting such violation, conditions or
      practices the operator knew or should have known
      existed or which it failed to abate because of a lack
      of due diligence, or because of indifference or lack of
      reasonable care.

 In several recent decisions concerning the interpretation

and application of the term "unwarrantable failure," the
Commission further refined and explained this term, and concluded
that it means "aggravated conduct, constituting more than
ordinary negligence, by a mine operator in relation to a
violation of the Act." Emery Mining Corporation, 9 FMSHRC 1997
(December 1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987); Secretary of Labor v. Rushton Mining Company, 10
FMSHRC 249 (March 1988). Referring to its prior holding in the
Emery Mining case, the Commission stated as follows in
Youghiogheny & Ohio, at 9 FMSHRC 2010:

      We stated that whereas negligence is conduct that is
      "inadvertent," "thoughtless" or "inattentive,"
      unwarrantable conduct is conduct that is described as
      "not justifiable" or

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"inexcusable." Only by construing unwarrantable failure by a mine
operator as aggravated conduct constituting more that ordinary
negligence, do unwarrantable failure sanctions assume their
intended distinct place in the Act's enforcement scheme.

 In Emery Mining, the Commission explained the meaning of the

phrase "unwarrantable failure" as follows at 9 FMSHRC 2001:

      We first determine the ordinary meaning of the phrase
      "unwarrantable failure." "Unwarrantable" is defined as
      "not justifiable" or "inexcusable." "Failure" is
      defined as "neglect of an assigned, expected, or
      appropriate action." Webster's Third New International
      Dictionary (Unabridged) 2514, 814 (1971) ("Webster's").
      Comparatively, negligence is the failure to use such
      care as a reasonably prudent and careful person would
      use and is characterized by "inadvertence,"
      "thoughtlessness," and "inattention." Black's Law
      Dictionary 930Ä31 (5th ed. 1979). Conduct that is not
      justifiable and inexcusable is the result of more than
      inadvertence, thoughtlessness, or inattention. * * *

 I take note of the fact that in this case the petitioner's

proposed civil penalty assessments for the violations in question
were processed by MSHA's regular assessment procedures, taking
into account the six statutory civil penalty assessment criteria
found in section 110(i) of the Act. Although MSHA had discretion
to waive the regular assessment formula in determining the amount
of the proposed civil penalty assessments for the violations in
question and to apply a more stringent "special assessment"
procedure pursuant to 30 C.F.R. 100.5, it did not do so in this
case. Two of the categories listed among the guidelines for
determining whether or not a "special assessment" is appropriate
are found in section 100.5(b) and (h), and they are as follows:

      (b) Unwarrantable failure to comply with mandatory
      health and safety standards;

      *     *     *     *     *     *     *     *     *       *

      (h) Violations involving an extraordinary high degree
      of negligence or gravity or other unique aggravating
      circumstances.

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Notwithstanding the inspector's "unwarrantable failure" and
"reckless disregard" negligence findings, MSHA opted not to levy
"special assessments" for the violations in question, and its
trial counsel could offer no explanation as to why MSHA did not
choose to waive the regular assessment formula in connection with
the violations in question.

 The evidence in this case establishes that the respondent

was aware of MSHA's training requirements for newly employed
experienced miners, and had adopted an approved training plan
pursuant to the appropriate MSHA regulations. The evidence also
establishes that at least two of the affected miners received
some hazard recognition training, and I have no reason not to
believe Mr. Wiley's assertions that all of the miners received at
least a minimum of training regarding hazard recognition. Mr.
Wiley impressed me as a credible individual who readily accepted
responsibility for the failure by the miners to receive the full
3Ähour training required by MSHA's regulation. The evidence also
establishes that the miners in question, who no longer are
employed at the mine, were experienced equipment operators who
knew how to operate their equipment, and were instructed to wear
safety shoes and hard hats.

 Inspector Newport confirmed that the respondent had always

previously been in compliance with the required training
regulations and had received no prior citations for violating
MSHA's training standards. As a matter of fact, Mr. Newport
stated that when he went to the mine for his inspection he was
under the assumption that all of the miners had been trained
because he had never experienced any prior training problems with
the respondent, and as an example, he cited the fact that John
Hare, an individual in the employ of the contractor, and who was
listed in the approved training plan as an MSHA qualified
training instructor, had always conducted the proper training
pursuant to the respondent's plan (Tr. 51, 59).

 Although the respondent's mine superintendent Doug Cook did

not appear or testify at the hearing, I take note of, and find
credible, the answer that he filed in this case. In his answer to
the penalty assessment proposal filed by the petitioner, Mr. Cook
conceded that he was aware of MSHA's training requirements, and
has always made a sincere effort to comply with those
requirements. This statement is supported by the inspector's
testimony that the respondent has always been in compliance with
the subject training requirements. Conceding the fact that Mr.
Callahan, a contract employee of Wiley Engineering, was not
listed as an MSHA approved training instructor in its approved
training plan, Mr. Cook maintained

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that this was an "oversight." This contention is supported in
part by the fact that during the abatement process, the
respondent's training plan was subsequently modified to include
Mr. Cook as an MSHA certified training instructor, and Inspector
Newport confirmed that had Mr. Cook or Mr. Callahan been included
in the plan as qualified training instructors, the violations
could have been avoided.

 I also take note of the fact that in his answer, Mr. Cook

asserted that all of the affected miners were familiar with the
equipment they were operating at the time of the inspection, and
that they had received "orientation (walk-around) training" from
Mr. Callahan prior to starting work at the mine. Mr. Cook
apparently believed that since Mr. Callahan was an experienced
surface miner certified by the State of Oklahoma as a mine
foreman, qualified to train miners, he also met MSHA's
requirements as an individual qualified to train the respondent's
miners pursuant to the contract with Wiley Engineering. This
position by Mr. Cook was corroborated by Mr. Wiley who believed
that Mr. Cook thought he was acting properly, and Mr. Wiley, in
hindsight, candidly conceded that he should have insured that all
of the training topics listed in MSHA's regulation were covered
during the training of the miners in question (Tr. 61Ä62).

  Inspector Newport testified that he based his negligence

finding of "reckless disregard" on the fact that on a prior brief
visit to another pit operated by the respondent, he reminded Mr.
Cook about the need for training in the event the respondent were
to open a new pit, and that Mr. Cook had the training plan and a
copy of the "C.F.R." available for reference. Mr. Newport
conceded that at the time of his inspection, he did not have the
training plan with him, nor did he review it with the miner's who
informed him that they had not received all of the required
training, but had been instructed to wear safety shoes and hard
hats.

 In further explanation of his "reckless disregard"

negligence finding, and in particular Mr. Cook's knowledge of the
training requirements, Mr. Newport stated that "it was my
understanding that he knew that depending on a person's
experience on what type of training had to be given." Mr. Newport
also commented that "I thought I covered it pretty good. Maybe I
didn't; I'll say maybe there's something I left out" (Tr. 13). At
another point during the hearing, Mr. Newport stated "As far as I
was concerned, Mr. Cook did know; he's an experienced mining
engineer. He's been in the business for at least -- better than 20
years; he's familiar with this" (Tr. 39Ä40).

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Page 17

~797
On the facts of this case, and after careful review and
consideration of the record, I find no credible support for the
inspector's "reckless disregard" negligence finding. Nor can I
find any credible evidence to support an "unwarrantable failure"
finding. To the contrary, I conclude and find that at most, the
inspector's rationale for making the disputed finding supports a
negligence finding ranging from "ordinary" to "moderate," rather
than one supporting any conclusion that the respondent's conduct
was inexcusable, or egregious, or that it exhibited the absence
of the slightest degree of care. In short, I find no evidentiary
support for any conclusion that the respondent's failure to
insure that the cited newly employed experienced miners received
all of the required training was the result of any aggravated
conduct of the kind described by the Commission in its recent
holdings on this question. Accordingly, the inspector's
unwarrantable failure findings for each of the violations ARE
VACATED.

Modification of Citations and Orders

 In view of my unwarrantable failure findings, the contested

section 104(d)(1) citation and orders are modified to section
104(a) citations. See: Old Ben Coal Company, 2 FMSHRC 1187 (June
1980); Consolidation Coal Company, 3 FMSHRC 2207 (September
1981); Youngstown Mines Corporation, 3 FMSHRC 1793 (July 1981).

The Significant and Substantial Violations Issue

 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)(1). 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 822, 825 (April 1981).

 In Mathies Coal Co., 6 FMSHRC 1, 3Ä4 (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

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Page 18

~798
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.

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

1129, 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, 1574Ä75
      (July 1984).

 Although I agree that any mining operation, whether it be a

surface pit mine such as the one operated by the respondent in
this case, or an underground mine, generally involves a working
environment exposing miners to potential hazards and dangers, the
question of whether any particular violation is significant and
substantial must be based on the particular facts surrounding the
violation, including the nature of the mine involved, Secretary
of Labor v. Texasgulf, Inc., Docket Nos. WEST 85Ä148ÄM and WEST
86Ä83ÄM, decided by the Commission on April 20, 1988; Cement
Division, National Gypsum Co., supra; Youghigheny & Ohio Coal
Company, supra.

 With regard to the training requirements found in section

48.26(a), I agree that such training promotes mine safety by
making miners aware of the hazards associated with their
particular jobs tasks, and I have affirmed an inspector's "S & S"
findings where the facts and circumstances clearly established
that the lack of training presented a reasonable likelihood of
serious injuries associated with such a violation, Secretary of
Labor v. Highwire, Incorporated, 10 FMSHRC 22, 67Ä68 (January
1988).

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Page 19

~799
On the facts of the case now before me for adjudication, the
record establishes that the cited miners who lacked the training
required for newly employed experienced miners were experienced
equipment operators who were trained in the operation of the
particular equipment they were operating at the time of the
inspection. The facts also establish that at least two of the
miners, as well as the others, received some minimum type of
"orientation" and hazard recognition training, and were aware of
the fact that they should wear hard hats and safety shoes. The
respondent has conceded that all of the affected miners had not
received the complete 3Ähour training mandated by the
respondent's training plan and the cited training standard, and
the violations have been affirmed. The issue is whether or not
these violations were significant and substantial, and whether
the facts and evidence adduced by MSHA in support of the
inspector's "S & S" findings support those findings.

 In the instant case, Inspector Newport confirmed that he

issued no citations for any other safety infractions for the work
environment where the miners in question were working at the time
of his inspection. He also conceded that the equipment operators
were experienced and trained in the operation of their equipment,
and he found no unusual mine conditions or hazardous
circumstances present in the areas where the miners were working.
Although he alluded to citations which he issued at the time of
his inspection for the lack of a front horn on a motor grader and
inadequate brakes on some mobile equipment, he conceded that
these violations were found at a different pit location from that
in which the untrained miners in question were working, and there
is no evidence that any of the equipment being operated by the
miners in question was unsafe or otherwise defective. The
inspector also confirmed that he found no violations associated
with the high wall or spoil bank located in the general area
where the miners were working, and he confirmed that the miners
would not be "in contact" with those areas (Tr. 19Ä21; 25).

 Although Mr. Newport indicated that his inspection was

"during the winter" and that there was a possibility that rocks
could fall from the highwall when it dries out after a rain and
that people would be on foot cleaning coal, (Tr. 31), the fact is
that the citations were issued in April, and there is no evidence
to establish that it had rained or that any of the miners in
question were exposed to any rock fall hazards.

 Inspector Newport alluded to the fact that the equipment

which lacked a front horn or adequate brakes travelled to the

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Page 20

~800
pit where the miners in question were working, and he took the
position that "it's all one mine." However, there is no probative
evidence that this equipment was in fact operated at the pit
where the miners in question were working. Under the
circumstances, I give little weight to this testimony and find it
too remote and general to establish that the miners were in fact
exposed to these equipment hazards, or that their lack of
training would have contributed to any hazards associated with
those violations.

 In support of his conclusion that the lack of training would

reasonably likely result in injuries to the experienced miners in
question, Inspector Newport relied on the general hazards
associated with moving overburden and the hazardous nature of the
coal mining industry as a whole. In support of his conclusion
that it was reasonably likely that any injury associated with the
lack of training would result in a fatality, Mr. Newport relied
on the fact that the miners were operating "large equipment," and
"because of the hazards involved in the coal mining industry"
(Tr. 12). He also believed that an individual who was not trained
to recognize certain aspects of high walls, equipment movement
and dumping patterns, and the method of mining being followed
would reasonably likely to be exposed to fatal injuries. He
further alluded to the fact that the operation of front-end
loaders and trucks entails right-handed and left-handed mining
methods and vehicle passing patterns, and that if equipment
operators are not trained in these methods they could run into
each other.

 There is no evidence in this case that the experienced

equipment operators who had worked at the mine for 2 or 3 weeks
prior to Inspector's Newport's inspection were oblivious to the
mining methods and equipment passing procedures alluded to by the
inspector as part of the basis for his "S & S" findings. Although
it is true that the miners may not have been formally trained in
these matters pursuant to general topical subject of
"Transportation controls and communication systems" which is part
of the respondent's training program, Mr. Newport conceded that
he did not review the training plan with the miners with whom he
spoke to determine their knowledge of these matters, nor did he
make any determinations as to the mining method being utilized at
the time of his inspection, or the specific equipment passing
procedures being utilized by these operators.

 Inspector Newport admitted that the miners told him that

they were aware of the itemized training subjects listed in the
training plan, but had not received all of the training listed
herein (Tr. 42). Given the fact that at least two of them
received some kind of hazard recognition training, and

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Page 21

~801
that all of them knew about the wearing of hard hats and safety
shoes and were experienced equipment operators who had worked at
the mine for weeks before the inspection without any apparent
difficulty or accident or injury incidents, I find it difficult
to believe that they were totally ignorant of the appropriate
work procedures associated with the operation of their equipment.
Further, Mr. Newport conceded that he simply assumed that the
lack of training exposed the miners to injuries and fatalities
generally associated with any mining operation (Tr. 19Ä21).

 On the facts of this case, and after careful review and

consideration of Inspector Newport's testimony in support of his
"S & S" findings as to each of the violations, I conclude and
find that these findings were based on general and speculative
assumptions that a lack of training would expose miners to
injuries and fatalities generally associated with any mining
operation, rather than on any specific prevailing mining
conditions from which one could conclude that the miners in
question were in fact exposed to mine hazards likely to result in
injuries of a reasonably serious nature. In short, I conclude and
find that the petitioner has failed to establish by a
preponderance of the credible and probative evidence adduced in
this case that the violations were significant and substantial.
Accordingly, the inspector's findings in this regard are rejected
and they ARE VACATED.

Size of Business and Effect of Civil Penalty Assessments on the
Respondent's Ability to Continue in Business

 Respondent's representative stated that the Welch Mine

employs a minimum of 15 miners, and a maximum of 30. He confirmed
that at the time the violations were issued, the mine employed 15
miners, and currently employs less than five. Petitioner's
counsel agreed that the respondent is a small surface coal mine
operator. Under these circumstances, and taking into account the
respondent's coal production as stipulated to by the parties, I
conclude and find that the respondent is a small mine operator.
Further, absent and information to the contrary, I also conclude
and find that the civil penalties assessed for the violations
which have been affirmed will not adversely affect the
respondent's ability to continue in business.

History of Prior Violations

 The parties stipulated to the respondent's history of prior

violations. Based on that stipulation, I conclude and find that
the respondent has a good compliance record, and

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Page 22

~802
there is no evidence that it has been previously cited for any
violations of MSHA's training standards.

Negligence

  I conclude and find that the respondent knew or should have

known about the training requirements found in section 48.26(a),
and that its failure to exercise reasonable care to insure that
this training was given to the newly employed experienced miners
in question constitutes a moderate degree of negligence on its
part.

Gravity

 Although I have found that on the facts of this case the

violations in question were not significant and substantial, I
nonetheless conclude and find that the failure to adequately
train the newly employed experienced miners in question
constituted a serious violation of the training requirements of
section 48.28(a). The failure to adequately train a miner could
under certain conditions and circumstances, result in exposing a
miner to potential and possible mine hazards.

Good Faith Compliance

 Inspector Newport confirmed that the respondent exhibited

good faith in timely abating the violations. He confirmed that
after the miners were withdrawn from the mine, they received
immediate training administered by a contractor who was an MSHA
approved training instructor, and the orders were terminated.
Under the circumstances, I conclude and find that the respondent
exercised good faith compliance in abating the violations.

                      Civil Penalty Assessments

 On the basis of the foregoing findings and conclusions, and

taking into account the civil penalty assessments criteria found
in section 110(i) of the Act, I conclude that the following civil
penalty assessments for the violations which have been affirmed
are reasonable and appropriate:

                               30 C.F.R.
 Citation No.         Date     Section     Assessment

      2839121       04/13/87   48.26(a)      $75
      2839123       04/13/87   48.26(a)      $75
      2839125       04/13/87   48.26(a)      $75
      2839127       04/13/87   48.26(a)      $75
      2839129       04/13/87   48.26(a)      $75

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Page 23

~803
ORDER

 The respondent IS ORDERED to pay civil penalty assessments

in the amounts shown above within thirty (30) days of the date of
this decision. Upon receipt of payment by the petitioner, this
matter is dismissed.

                              George A. Koutras
                              Administrative Law Judge