San Juan Coal Company
San Juan Coal Company (FMSHRC CENT 90-110 and related dockets): Grounding citations vacated and highwall citation affirmed
Apply this to your situation
This order from 1991 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
San Juan Coal Company operated the San Juan Mine and Plant and the La Plata Mine. The parties settled 22 of 26 alleged violations, including a CENT 90-110 citation that was modified and resolved with a $147 penalty. The judge vacated three grounding citations involving two toaster ovens and a portable heater, finding that the standard was unenforceably vague as applied to those appliances and that they were not electric equipment under the standard. The judge affirmed a highwall citation as significant and substantial because unstable rock had been left above a roadway used by miners, and assessed a $600 penalty. The total penalties for the four dockets were $7,280.
Decision snapshot
- Cited standard(s): 30 C.F.R. § 77.701; 30 C.F.R. § 77.1000; 30 U.S.C. § 820(a)
- Outcome: Settled citations were modified as agreed, three grounding citations were vacated, and the highwall citation was affirmed with a $600 penalty.
- Key point: The judge found the grounding standard too vague for the listed household-type appliances, but upheld the highwall citation where unstable material exposed miners to a serious falling-rock hazard.
Full text (FMSHRC public release)
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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 90-110
PETITIONER A.C. No. 29-01168-03532
v. Docket No. CENT 90-143
A.C. No. 29-01168-03533
SAN JUAN COAL COMPANY,
RESPONDENT Docket No. CENT 90-144
A.C. No. 29-01168-03534
San Juan Mine & Plant
Docket No. CENT 90-166
A.C. No. 29-01825-03513
La Plata Mine
DECISION
Appearances: Michael H. Olvera, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas,
for Petitioner;
Donald L. Jumphreys, Esq., San Juan Coal Company,
San Francisco, California,
for Respondent.
Before: Judge Lasher
In these four proceedings the Secretary of Labor (MSHA)
seeks assessment of penalties for a total of 26 alleged
violations (described in 26 Citations) pursuant to Section 110(a)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
820(a) (1977).
After the commencement of hearing in Durango, Colorado, on
May 13, 1991, the parties concluded settlements of 22 of the 26
enforcement documents, which accord as reflected below was
approved from the bench and is here affirmed. The remaining four
Citations (three involving so-called "grounding" charges and one
"highwall" matter involving an alleged infraction of Respondent's
Ground Control Plan) were fully litigated. As result of the
settlement, the only Citation involved in Docket No. CENT 90-110
was fully disposed of.
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As to the four Citations litigated, Respondent challenges the
occurrence of violation on all and the "Significant and
Substantial" designations in two of the three "grounding"
Citations (Nos. 3414864 and 3413540) and the highwall Citation,
and as to the grounding Citations makes a serious challenge to
the standard involved on the basis that it is unconstitutionally
vague with respect to its application to the three electrical
appliances cited, pointing out that MSHA's Program Policy Manual
(Ex. P-7, II-T. 27-28, 40-42) and personnel have apparently
exempted the type of appliances involved here from coverage.
DOCKET NO. CENT 90-110
This docket contains one Citation, No. 9996512, which was
settled at the hearing. Pursuant to their agreement, the parties
concur that this Citation should be modified
(1) to change paragraph 10 A thereof to reduce the
"Gravity" of the violation from "Reasonably Likely" to
"No Likelihood";
(2) to change paragraph 10 B thereof from "Lost
Workdays or Restricted Duty" to "No Lost Workdays";
(3) to delete the "Significant and Substantial"
designation contained in paragraph 10 C thereof; and
(4) to change the "Negligence" designation in paragraph
11 A from "Moderate" to "Low."
As modified, the parties stipulated that $147 is an appropriate
penalty for this violation. Such penalty is here assessed and the
settlement reached, having been approved from the bench, such is
here AFFIRMED.
ORDER (CENT 90-110)
Citation No. 9996512 is MODIFIED as agreed to by the parties
as set forth above. Respondent, if it has not previously done so,
SHALL PAY to the Secretary of Labor within 30 days from the date
of this decision the sum of $147 as stipulated.
DOCKET NO. CENT 90-166
This docket contains one Citation, No. 5414864, a so-called
"grounding" allegation which was not settled. Discussion and
decision thereof appears below under the heading "Three Grounding
Citations."
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DOCKET NO. CENT 90-143
This docket contains 20 Citations, 18 of which were settled
at hearing. Of the remaining two Citations, No. 3413540 involves
an alleged infraction of 30 C.F.R. 77.701 and is discussed in
the subsequent section "Three Grounding Citations." The last
Citation, No. 3414683, referred to in the transcript as the
"highwall" Citation, is likewise discussed and decided
subsequently.
THE PARTIAL SETTLEMENT
As noted, 18 of the Citations were settled at the hearing.
(I-T. 98-104). Respondent agreed to pay in full MSHA's initially
proposed penalties as to 11 of these 18, 6 were modified, and as
to one, Citation No. 3413538, the "excessive history" upgrading
was waived by Petitioner and the proposed penalty reduced from
$649 to $413. The agreement reached as set forth below was
approved from the bench at hearing and that approval is here
AFFIRMED.
Citation
Number Agreed Penalty Modification
3413538 $ 413 None
3413539 350 None
3414668 350 None
3414669 350 None
3414670 350 None
3414671 350 None
3414672 350 None
3414673 350 None
3414674 264 See "Order" below
3414675 350 None
3414676 350 None
3414677 350 None
3414686 264 See "Order"
3414687 214 See "Order"
3414688 264 See "Order"
3414689 264 See "Order"
3414690 350 None
3414691 357 See "Order"
TOTAL $5,890
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Order Effectuating Partial Settlement (CENT 90-143)
Citation No. 3414674 is modified to change paragraph 11
thereof pertainng to "Negligence" from "Moderate" to "None."
Citation No. 3414686 is modified to change paragraph 11 thereof
pertaining to "Negligence" from "Moderate" to "None." Citation
No. 3414687 is modified to change paragraph 10 A thereof
pertaining to "Gravity" from "Reasonably Likely" to "Unlikely";
to change paragraph 11 thereof pertaining to "Negligence" from
"Moderate" to "None"; and to delete the "Significant and
Substantial" designation contained in paragraph 10 C thereof.
Citation No. 3414688 is modified to change paragraph 11
thereof pertaining to "Negligence" from "Moderate" to "None."
Citation No. 3414689 is modified to change paragraph 11
thereof pertaining to "Negligence" from "Moderate" to "None."
Citation No. 3414691 is modified to change paragraph 11
thereof pertaining to "Negligence" from "Moderate" to "Low."
Respondent, if it has not previously done so, within 30 days
from the date hereof, SHALL PAY to the Secretary of Labor the
total sum of $5,890.00 as and for the civil penalties above
assessed in this docket pursuant to their settlement agreement.
Penalties for the two remaining Citations in this docket, Nos.
3413540 and 3414683 will be determined separately and
subsequently herein.
DOCKET NO. CENT 90-144
This docket contains four Citations, three of which were
settled at the hearing as reflected below. The remaining
Citation, No. 3414692, involves an alleged infraction of 30
C.F.R. 77.701 and is discussed in the subsequent section
entitled "Three Grounding Citations."
The Partial Settlement
As noted, three of the four Citations in this docket were
settled at hearing. (I-T. 105). Pursuant thereto, Citation No.
3414693 and Citation No. 3414694 are both to be modified to
change paragraph 11 to show the degree of negligence involved in
the violation to be "Low" rather than "Moderate" and the penalty
for each is to be reduced from $350 to $192. As to Citation No.
3414698, there are no modifications and the penalty concurred in
by both parties is $259. This agreement was approved from the
bench and such approval is here AFFIRMED.
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Order Effectuating Partial Settlement (CENT 90-144)
Citations numbered 3414693 and 3414694 are modified as
agreed to by the parties and reflected above, and Respondent
SHALL PAY to the Secretary of Labor within 30 days from the date
of this decision the total sum of $643.00 as and for the civil
penalties agreed to. The penalty for Citation No. 3414692 will be
assessed separately subsequently herein.
THREE "GROUNDING" CITATIONS
These three Citations, each in a different docket as noted
above, all originally involved alleged "Significant and
Substantial" infractions of the standard contained in 30 C.F.R.
77.701 pertaining to "Grounding" which provides:
Grounding metallic frames, casings, and other
enclosures of electric equipment.
Metallic frames, casings, and other enclosures of
electric equipment that can become "alive" through
failure of insulation or by contact with energized
parts shall be grounded by methods approved by an
authorized representative of the Secretary.
Evidence for these three Citations was received separately
and appears in different parts of the transcript. The parties
stipulated that the evidence introduced with respect to the
Citation in Docket No. CENT 90-166 (which was tried first),
insofar as relevant, is to be incorporated by reference into the
record for the other two Citations in dockets numbered CENT
90-143 and CENT 90-144, respectively, and vice versa. (I-T.
107-108; II-T.29).1
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Citation No. 3414864 (Docket No. CENT 90-166)
This Citation, issued by MSHA Inspector Larry W. Ramey
during an AAA (regular) inspection on May 16, 1990, charges
Respondent as follows:
A ground was not provided for the energized General
Electric Toast-Oven located in the warehouse. This
toaster was 110 AC. The outer housing of the toaster
was constructed of Metallic. There was no external
ground observed for the toaster. This toaster was
equipped with a 16/2 cable.
This appliance (I-T. 33) was located on a formica-topped
metal table sitting in an eating area in a warehouse with a
concrete floor. As charged in the Citation, it had no external
ground, had a metal housing, and was equipped with a size 16 cord
(four feet long) with two conductors. (I-T. 24-26, 33, 46).
Inspector Ramey felt that, in terms of the "hazard"
involved, the warehouse was unlike a residential dwelling since
it was constructed of steel and had concrete floors, which he
said was "a good conductor of electricity." (I-T. 28). The
Inspector believed that the toaster would have been used on every
shift, five to seven days a week, by miners wearing steel-toed
shoes. He felt that people could become the "ground" themselves,
if "something happened to the internal wiring" and the insulation
failed and a person walked up and touched it. He knew of no
specific instance where such toasters were involved in such an
occurrence. (I-T. 28-29). In his opinion, a shock injury
occurring from such event could reasonably be expected to result
in lost work days, and he pointed out that electrical shock could
cause even electrocution and heart attacks. (I-T. 29, 30). He was
of the opinion that Respondent was "moderately negligent" since
the foreman should have been aware of the toaster and because he
felt the toaster was "electrical equipment" which was subject to
a monthly "electrical equipment" check. He believed the area in
question would not have been "hosed down" for cleaning purposes,
but would have been mopped. He also speculated that the toaster
would have been used more frequently than one in the average
household." (I-T. 38).
Like the other two appliances (Proctor-Silex Toaster and
portable heater) involved in the related grounding Citations,
this G.E. toaster was U.L. approved. It was not in any way
damaged. (I-T. 45). According to Terrance D. Dinkel, an
electrical engineer with MSHA's Safety and Health Technology Center
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in Denver, Colorado, in order for a toaster to become hazardous
it would "have to develop a fault in it." (I-T. 55). He was
unable to express an opinion as to the likelihood of an accident
occurring. (I-T. 58, 61). He knew of one fatality from a miner
using a power tool, but none involving a toaster. (I-T. 64-65).
The National Electrical Code (NEC) provides that such a
toaster can be used in areas which are not damp or wet. (I-T.
54-55).
Contrary to the somewhat speculative tenor of Petitioner's
witnesses, Respondent established that only three warehousemen
used the toaster. (I-T. 70). Respondent also established that (1)
from its inquiry to Black & Decker, G.E.'s small appliance
division, there had been no instances of product liability for
toaster ovens (I-T. 70-71) and (2) it had not had, in the prior
13 years, any employee injuries from an appliance.
Respondent's expert witness, Lynn Byers, a master
electrician, testified that the fact of U.L. approval indicates
an appliance complies with the N.E.C. (I-T. 73-77). He also
indicated, contrary to Mr. Dinkel, that there is a significant
difference between a power tool, which is motor driven and can be
overloaded, and kitchen "fixed resistance" appliances which are
not subject to overload abuse. (I-T. 77). Also, contrary to
Petitioner's witnesses, he convincingly testified concerning the
significance of any differences between residential environments
and the warehouse environment:
Q. Much was made of the differences between the
residential environment and warehouse environment in a
surface coal mine. Do you see any basis for such a
distinction?
A. I think two of them are alike in some respects and
different in others. As far as National Electric Code
is concerned, indoor locations are the same whether
they're in a coal mine or residence. They're not damp
or wet locations.
Further, I believe at the strip mine, you know, we're
talking about certified electricians under direct
supervision of management performing the different
tasks and work. We're talking about adults in the mine
rather than kids and elderly people, and maybe people
that are incapacitated using these appliances. The
people at the mine are also trained in electrical
hazards and avoidance as well. We're not--I think it's
Page 9
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unfair to compare general public with qualified trained miners
who are in good health, and so forth. (I-T. 77-78). (Emphasis
supplied).
Respondent also established that the G.E. toaster oven in
question sits on a credenza on the exterior portion of a small
office (of drywall construction) in the southeast corner of the
two 50- by 100-foot warehouse. (I-T. 69-70).
In response to an inquiry from Respondent (Ex. p-3; II-T.
405), concerning grounding of the toasters, Paul Duke, Assistant
to the Vice President, Electrical Division, Underwriters
Laboratories, Inc., gave an incisive and probative analysis of
the situation (Ex. R-5; I-T. 80-82), which is in part quoted here:
Underwriters Laboratories Listed electrical equipment
for ordinary locations has been evaluated for use in
accordance with the National Electrical Code and to
determine that the design of such equipment provides
for the reduction of the risk of injury to life and
property.
Grounding of equipment connected by cord-and-plug is
covered in Section 250-45 of the NEC and is reflected
in our Standards.
Electric toasters are not among the appliances in
residential occupancies required to be grounded by
Section 250-45(c). Additionally, in other than
residential occupancies, cord-and-plug connected
appliances not used in damp or wet locations or by
persons standing on the ground or on metal floors or
working inside metal tanks are not required to be
grounded. Please refer to Section 250-45(d), item (5).
UL considers Listed electric toasters, although not
grounded, to comply with the NEC whether used in
residential occupancy or the type of premises you
described which I understand is a dry location.
Modifications to toasters to replace the power cord
with a grounding type cord, which you indicate is
required by the inspector, can introduce risks of
electric shock or fire . . . .
* * * * *
Page 10
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All of the foregoing and possibly other concerns, depending on
the toaster construction, lead to the conclusion that risks of
fire or electric shock may be introduced when field modifications
are made to a Listed product.
UL cannot comment on MSHA regulations other than it
appears subparagraph 77.701 is intended to apply to
mining equipment, tools, and appliances used in the
mining operation and not to appliances used in an
office-type dry location. (Emphasis added).
Citation No. 3413540 (Docket No. CENT 90-143)
This Citation, issued on April 2, 1990, by Inspector Ramey,
charges the following violative condition:
The 110 AC electrical wall heater located in the Radio
Repair shop was not provided with a ground. The heater
was equipped with a 16/2 electrical cable. No external
ground was provided. This heater was energized when
this condition was observed. The outer frame was metal.
Petitioner points out with respect to this Citation2
that the fact situation and expert testimony is essentially the
same as that in Docket CENT 90-166, with the exception that this
Citation refers to a 110 A.C. electrical wall heater located in
the radio repair shop (a small room) in close proximity to one
radio repairman (I-T. 109). Petitioner's evidence indicates that
the repairman works at a metal desk and the 8 x 10 room has a
concrete floor. The ungrounded heater was about one foot by four
feet in size and the inspector thought it was mounted on a wall.
(I-T. 113-114). Inspector Ramey thought that electrical shock
would result in a "lost work days" type of injury. (I-T. 115).
The general conclusion of Mr. Dinkel was that if the heater was
used in an area with a "conductive" concrete floor, it was
required to be grounded. (I-T. 116, 119).
Page 11
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Respondent's evidence differed from Petitioner's--and is
credited--in that it was shown that the repairman sat at a
workbench with a formica top and that the U.L. approved heater
sat on a stool about three feet high and was not mounted on the
wall.
Merrit D. Redick, Chief Electrical Engineer for BHP-Utah
International, testifying for Respondent, gave the following
testimony which was convincing and also is credited:
Q. Mr. Redick . . . is there any reason to draw a
distinction between this portable heater and the
toaster oven . . . ?
A. I think it would be similar in the sense as long as
it was a U.L. approved appliance. There's now been a
lot of research done before it was given approval, and
I think very minimal chance of picking up a shock off
of it. We all have the same type heaters around our
kids at home.
* * * * *
A. . . . I think U.L. agrees that U.L. approved
equipment loses its approval when you tear into it and
modify it. Unless you're very careful and knowledgeable
about what you're doing, you can increase the risk of
being shocked off that piece of equipment.
Q. . . . How would you characterize the chances of
getting seriously injured by shock from . . . this . . .
portable heater . . . ?
A. It's very remote, in my opinion. Anything that's
been researched by U.L. and put out to the general
public in the United States, is really no risk at all.
(I-T. 123-124).
Citation No. 3414692 (Docket No. CENT 90-144)
Inspector Ramey issued this citation on April 16, 1990,
charging as follows:
The energized 110-volt AC Proctor-Silex toaster oven
located in the control room of the new plant was not
provided with a ground. This toaster was equipped with
a 16/2 electical cable. There was no external ground
wire provided. The outer housing of the toaster was
constructed of metallic.
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It is noted that Petitioner MSHA has modified this citation to
delete the "Significant and Substantial" designation thereon, and
also that Petitioner agrees that the fact situation and expert
testimony with respect to this Citation is essentially the same
as that in Docket No. CENT 90-166 except that a "Proctor-Silex
toaster resting on a formica table on a tiled floor" is involved
in this Citation.3
Petitioner's evidence (which is not entirely accurate) was
to the effect that this undamaged (II-T. 7) toaster oven was
sitting on a metal table in an 8- x 24-foot control room having a
concrete floor near a metal refrigerator.4 The floor,
according to Inspector Ramey, would not have been cleaned by
washing down with a hose, but rather it would have been "dry"
mopped. (II-T. 7-8, 16). The inspector again "speculated" that
the toaster oven would have been used on every shift to warm
food. (II-T. 8-9). The area the toaster oven was in was
essentially a dry environment. (II-T. 16)5
Respondent established--in some contradiction to
Petitioner's showing--that the table in question had a formica
top and that the floor of the control room was overlaid with
green asphalt commercial tile.6
DISCUSSION, ADDITIONAL FINDINGS, AND CONCLUSIONS
THREE GROUNDING CITATIONS
Respondent's fundamental position with respect to these
three Citations is found meritorious.
Page 13
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A safety standard must give a person of ordinary intelligence a
reasonable opportunity to know what is prohibited and it "cannot
be so incomplete, vague, indefinite, or uncertain that men of
common intelligence must necessarily guess at its meaning and
differ as to its application." (Emphasis added).7
30 C.F.R. 77.701, as Respondent contends, is sufficiently
indefinite and unclear in its application here as to cause
disagreement among Petitioner's own hierarchy (I-T. 82-83; Exs.
R-1A, R-7), as well as failing to communicate that it could be
intended to apply to small toaster-ovens and a small portable
heater manufactured for use without a grounding conductor in the
cord and plug.8
MSHA's own Program Policy Manual, at Section 77.702 thereof
(Ex. R-7), appears to exempt U.L. approved cord-and-plug
appliances such as the toaster ovens and heater involved here. It
states:
Portable tools and appliances that are protected by
approved systems of double insulation9, or its
equivalent,10 need not be grounded. (Emphasis
supplied).
Page 14
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As argued by Respondent, I conclude from reliable evidence of
record that the U.L. listing is in effect a certificate that the
three listed appliances have means of shock protection equivalent
to double insulation. (I-T. 90-92, 96; II-T. 27-28, 42, 44; Ex.
R-5).
Further, MSHA's Program Policy Manual (at Section 701
thereof, Ex. R-1A) appears to give some idea of the type of
"electric equipment" 30 C.F.R. 77.701 is intended to encompass,
i.e., "Certain movable electrical equipment, e.g., rail-mounted
and pivoting coal stackers, traveling shop cranes on track rails,
small traveling hoists on I beams, etc." The types of clear-cut
mining equipment mentioned as examples by MSHA as a minimum
delivers considerable weight to Respondent's contention that the
subject standard is unenforceably vague when applied to the three
appliances in question.
Conclusions
1. The safety standard, 30 C.F.R. 77.701, in its
application to the three subject appliances, is unenforceably
vague in that a reasonably prudent person familiar with the
mining industry and the protective purposes of the standard would
not have recognized the specific prohibition or requirement of
the standard.11
2. Applying the "reasonably prudent person" test to the
subject standard, such a person would not consider the term
"electric equipment" used in 30 C.F.R. 77.701 to apply to the
three U.L. approved appliances in question and have recognized a
requirement to modify each appliance by grounding it externally.
3. The three appliances involved--the two toasters and the
portable heater--are not "electric equipment" as that term is
used in 30 C.F.R. 77.701.
ORDER
Citations numbered 3414864, 3413540, and 3414692 are
VACATED.
Page 15
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THE "HIGHWALL" CITATION (DOCKET NO. CENT 90-143;0
CITATION NO. 3414683
This Citation, issued by MSHA Inspector Larry W. Ramey at
9:10 a.m. on April 11, 1990, charges Respondent with a violation
of 30 C.F.R. 77.1000 as follows:
The operator was not complying with the approved ground
control plan. Loose hazardous material was observed,
loose and hanging over the top of the highwall. This
condition was located at North Pi%25non Marker 600 East
of Pi%25non 3. The loose overhanging material revealed
large cracks on both sides of the material. The cracks
appeared to be from 1 to 1 1/2 feet in width. The loose
overhanging mass appeared to be 20 feet in height by 18
feet in width. Void could be observed behind the
overhanging material. The roadway leading to the DRE 82
dragline was located under this overhanging material.
Tire marks showed that traffic vehicles traveled to
within 10 feet of the highwall. This overhanging
material appeared to hang out from the highwall
bank-slope approximately 4 to 6 feet thick.
The Citation (paragraphs 16, 17, and 18) indicates that the
condition was timely abated by 10:20 a.m. by the following
action: "The operator installed a 32-inch high dirt barrier in
the travel road to prevent traffic from driving through this
area."
30 C.F.R. 77.1000 pertaining to "Ground Control" provides:
Each operator shall establish and follow a ground plan
for the safe control of all highwalls, pits, and spoil
banks to be developed after June 30, 1971, which shall
be consistent with prudent engineering design and will
insure safe working conditions. The mining methods
employed by the operator shall be selected to insure
highwall and spoil bank stability.
Petitioner contends that Respondent did not comply with
paragraph 6 b of its Ground Control Plan (Ex. P-4) which requires
that "Unstable highwall and banks shall be taken down and other
recognized unsafe ground conditions shall be corrected promptly,
or such area shall be posted."
Page 16
~1702
In his testimony, after confirming the description of the
violative conditions contained in the Citation, Inspector Ramey
described such as "overhanging rock" (II-T. 51) "rock that was
leaning out" (II-T. 49) and "outcropping" (II-T. 53) separated
from the highwall by a void (II-T. 49). He said there were large
cracks around this rock, which he estimated to be 20 feet in
height and 18 feet in width (II-T. 52-53, 61). He also described
the instability thereof:
. . . when you look at the other section, the highwall,
then it's stable. It's all bonded together. This one
section here has pulled loose from the main highwall
and my opinion of it, it was ready to fall. (II-T. 54).
The loose overhanging material, i.e., rock outcropping, was
created after blasting a month before the Citation was issued.
(II-T. 66-67, 68). The area was not posted. Below the loose rock
material was a bench approximately 120 feet wide. Tire marks on
the roadway below the unstable outcropping indicated that
vehicles had been traveling in the exposed area and several
miners were exposed to the hazard that the rock would fall.
(II-T. 54-55). The tire marks were within 10 feet of the
highwall. (II-T. 54). The outcropping (depicted in Exs. P-5 and
P-6) was approximately 50 feet high (II-T. 55) and it was vividly
described by the Inspector as having "pulled loose from the main
highwall" and as being "a large chunk of rock . . . that is
cracked on both sides, behind even the bottom." (II-T. 58-59).
Respondent's stripping foreman, George Francis, was of the
opinion that the condition was not a hazard since (a) it had been
there a month and had not fallen or crumbled, (b) the material
was "laid back"--not at a vertical angle--and (c) it was sitting
on solid rock. (II-T. 67, 68, 69-71). However, there had
previously been a failure at a San Juan mine of a highwall which
Respondent also considered stable. (II-T. 72, 75-76).
The Inspector's description of the violative condition, and
his opinion that the outcropping was unstable and ready to fall
because of the cracks and void, are corroborated by photographic
evidence submitted by Petitioner in Exhibits P-5 and P-6. There
is no reason to discount his testimony and opinion in this
matter. It is concluded that the infraction of Respondent's
ground control plan did occur in that an unstable area of
highwall did exist and had not been taken down for one month and
the area was not posted. Infraction of such a plan is enforceable
as a safety standard. Jim Walters Resources, Inc., 9 FMSHRC 903
(May 1987).
Page 17
~1703
Since the violative condition existed for a month in an area
where the foreman would have traveled and been aware of such
(II-T. 55), it is concluded that the violation resulted from
Respondent's negligence.
The issuing inspector's opinion that this was a "Significant
and Substantial" violation is borne out by the reliable evidence
of record. A violation is properly designated "Significant and
Substantial" ("S&S") "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 (1984), the Commission
listed four elements of proof for S&S violations:
In order to establish that a violation of a mandatory
standard is significant and substantial under Nationl
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.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129 (1985), the Commission expounded thereon 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 1573, 1574-1575 (July 1984).
Page 18
~1704
It has been previously found that a violation occurred. On the
basis of prior findings, I also conclude that a measure of danger
to safety was contributed to by the violation and there existed a
reasonable likelihood that the hazard contributed to would result
in a serious injury or fatality. Thus, not only was the
Inspector's opinion as to the "significant and substantial"
nature of the violation (T. 54-55) left largely unrebutted, but
the evidence demonstrates that there was exposure of several
miners to the hazardous conditions present which would have
resulted in serious injury. (II-T. 54-55).
Thus, the Inspector testified:
I felt if the rock did fall that there's definitely
going to be an injury because of that mass of rock
falling on a vehicle. And if you--in the body of the
Citation, now, I estimate the rock to be 20 feet in
length, so if it's driving within ten foot of the
highwall. If the rock fell, it's going to come in
contact with the vehicle, and/or person, or persons,
that could be working in the highwall area. (II-T.
55).12
The Inspector's opinion that the relatively large rock
out-cropping could fall "at any time" (II-T. 62); coupled with
the visible cracks and looseness of the rock and the height it
would fall are all factors which confirm that the element of
reasonable likelihood of such events occurring was established by
MSHA. This combined with the exposure of miners (not denied by
Respondent) and the seriousness of injuries which reasonably
would ensue from such occurrence is sufficient to establish
Petitioner's burden of proof as to the four prerequisite elements
of the Mathies formula, supra. Consequently, it is concluded that
the violation in question was "significant and substantial," as
well as otherwise serious in nature. Citation No. 3414683 is
AFFIRMED in all respects.
Page 19
~1705
Penalty Assessment for Citation No. 3414683
Respondent San Juan Coal Company is a Delaware corporation
and is the owner-operator of the San Juan Mine and Pit (60
employees) and the La Plata mine (18 employees) which
respectively mine 2 million tons and between 1.1 million and 2
million tons annually. (I-T. 5). The controlling entity produces
over 10 million tons of coal annually and is found to be a large
mine operator. During the 24-month period preceding the
occurrence of the violation, 68 prior violations occurred at the
San Juan Mine and Pit and 20 occurred at the La Plata mine. (See
I-T. 5-6; Exs. P-1 and P-2).13 Assessment of penalties will
not adversely affect Respondent's ability to continue in
business. Upon notification of the violation, Respondent
proceeded in good faith to achieve rapid compliance with the
standards cited. The remaining statutory penalty assessment
criteria of negligence and gravity have been previously
determined. A penalty of $600 is found appropriate and is here
ASSESSED.
ORDER (Citation No. 3414683)
Respondent SHALL PAY to the Secretary of Labor the sum of
$600 within 30 days from the date of this decision.
FINAL ORDER
The modifications of various Citations are reflected in the
separate sections for each docket herein. In the section of this
decision entitled "Three Grounding Citations," Citations numbered
3414864, 3413540, and 3414692 have been VACATED. Citation No.
3414683 has been AFFIRMED.
Page 20
~1706
Likewise, all penalties assessed for Citations involved in the
four subject dockets are directed for payment at the end of each
of the various sections. The total amount for all penalties in
these four dockets is $7,280.00, and Respondent should make
payment as indicated.
Michael A. Lasher, Jr.
Administrative Law Judge
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE
1. The hearing was held on two days, May 13 and May 14,
-
For each of the two days of hearing there is a separate
transcript beginning with page 1. Accordingly, transcript
citations will be prefaced with "I" and "II" for May 13 and 14,
respectively.-
Petitioner's Brief, page 3.
-
Petitioner's Brief, page 3.
-
According to MSHA's expert, Mr. Dinkel, the presence of
the refrigerator would "probably" not add to the situation. There
was no sink, and attendant water, in the area. (II-T. 8). -
MSHA did not establish that any of the three areas
involved in the three Citations were "damp" or "wet." -
At this juncture in evidence-taking, Petitioner modified
the Citation on the record to delete the "Significant and
Substantial" designation. (II-T. 22-23). -
Alabama By-Products Corporation, 4 FMSHRC 2128 (December
1982). -
Petitioner did not establish that the toaster-ovens and
the heater were used for any mining-related purpose, or for any
purpose other than what one might expect them to be used for in
the domestic market and, as noted elsewhere in this decision,
while showing the three appliances were in areas with concrete
floors, Petitioner did not establish that such areas were damp or
wet or that there was really much of a difference between these
areas and places in homes where such appliances would be used to
prepare food or to heat a room. -
Although a portion of the record (II-T. 27-29, 39-41) was
devoted to discussion of this subject, Respondent does not
contend that any of the three subject appliances are covered by
this "double insulation" exemption. (II-T. 41). -
Respondent does however contend and I conclude that U.L.
approval is tantamount to "equivalent" protection. (II-T. 41-42). -
See Canon Coal Co., 9 FMSHRC 667, 668 (April 1987);
Lanham Coal Company, Inc., 13 FMSHRC ____ (September 3, 1991).
-
Page 21
12. See also II-T. 62-63.
13. The transcript incorrectly shows the figures for number
of employees as being the number of previous violations. The
"employee" numbers indicated were taken from my notes taken at
hearing. The figures for history of previous violations were
taken from Exhibits P-1 and P-2. The figures for the two
categories are similar and the changes have no bearing on penalty
assessment.
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