Pittsburg and Midway Coal Mining Company

Plain-English summary

Pittsburg and Midway Coal Mining Company operated the Cimarron Mine and the York Canyon surface and underground mines. Judge John J. Morris affirmed most of the citations involving ventilation plans, guarding, mobile-equipment alarms, explosives work, and related conditions. He vacated one combustible-materials citation because the Secretary did not prove an ignition source and fuel that could support a fire. He also struck the significant-and-substantial findings from a guarding citation and assessed total civil penalties of $637.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.316, 75.1722(a), 75.503, 77.1605(k), 77.410, 77.1104, 77.1303(ii), and 77.400(a)
• Outcome: Seven citations were affirmed, one was vacated, one S&S finding was stricken, and total penalties were $637.
• Key point: A combustible-materials violation requires proof that the accumulation created a fire hazard, including evidence of an ignition source and fuel capable of supporting a fire.

Full text (FMSHRC public release)

CCASE:
MSHA V.PITTSBURGE AND MIDWAY
DDATE:
19921117
TTEXT:

Page 2

~1941

           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                       1244 SPEER BOULEVARD #280
                         DENVER, CO 80204-3582
                   (303) 844-5266/FAX (303) 844-5268

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 91-196
Petitioner : A.C. No. 29-00224-03563
:
: Cimarron Mine
v. :
: Docket No. CENT 91-197
: A.C. No. 29-00845-03540
PITTSBURG AND MIDWAY COAL :
MINING COMPANY, : Docket No. CENT 91-202
Respondent : A.C. No. 29-00095-03561
:
: York Canyon-Underground Mine

                               DECISION

Appearances: William E. Everheart, Esq., Office of the Soli-
citor, U.S. Department of Labor, Dallas, Texas,
for Petitioner;
John W. Paul, Esq., THE PITTSBURG & MIDWAY COAL
MINING COMPANY, Englewood, Colorado,
for Respondent.

Before: Judge Morris

 The Secretary of Labor, on behalf of the Mine Safety and

Health Administration ("MSHA") charges Respondent Pittsburg and
Midway Coal company ("P&M") with violating safety regulations
promulgated under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. 801 et seq. (the "Act").

 A hearing on the merits was held in Alamosa, Colorado, on

April 7, 1992.

 At the commencement of the hearing the parties stipulated as

follows:

 1.    The York Canyon Surface Mine, mine I.D. No. 29-00845;

the Cimmaron Mine, mine I.D. No. 29-00224; and York Canyon Under-
ground Mine, mine I.D. No. 29-00095, are subject to the jurisdic-
tion of the Federal Mine safety and Health Act of 1977, and the
Federal Mine Safety and Health Review Commission.

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~1942
2. The Citations in CENT 91-197 numbered 3243235, 3243236,
and 324327 and Citation No. 3243346 in CENT 91-196 were all prop-
erly served by a duly authorized representative of the Secretary
of Labor upon an agent of the Pittsburgh and Midway Coal Mining
Company and may be admitted into evidence for the purpose of
establishing their issuance, and not for the truthfulness or
relevancy of the statements asserted therein.

 3.    The assessment of civil penalties in CENT 91-197, CENT

91-196, and CENT 91-202 will not affect Respondent's ability to
continue in business.

 4.    The alleged violations contained in the Citations in

CENT 91-197, CENT 91-196, and CENT 91-202, were abated in a
timely fashion and Respondent demonstrated good faith in obtain-
abatement.

 5.    The sizes of the three mines of the Pittsburg and

Midway Coal Company are as follows:

       a.    York Canyon Surface Mine, I.D. No. 29-00845 -

company size 13,587,727 production tons; mine size 482,069 in
produced tons;

       b.    Cimmaron Mine, I.D. No. 29-00224 - mine size

73,843 produced tons;

       c.    York Canyon underground Mine, I.D. No. 29-0095 -

mine size is listed, the company size 13,587,727 produced tons.

                           CENT 91-196

 Citation No. 3243318 alleges P&M violated 30 C.F.R.

75.316. At the commencement of the hearing, the Secretar
withdrew the "Significant and Substantial" classification and
reduced the proposed penalty from $157 to $20.

 Respondent admitted the violation of the Citation as

amended.

 The Citation and proposed amended penalty should be

affirmed.

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~1943
Citation No. 3243346 was modified to allege P&M violated 30
C.F.R. 75.1722(a). (Footnote 1)

 Federal coal mine inspector ANTHONY DURAN, during an AAA

inspection, observed an auxiliary floor fan was inadequately
guarded. The pulley was exposed and a person could contact mov-
ing parts. The fan withdraws float coal dust from the face and
blows it into the return. the blower fan is chest high. The
inspector would be an arm's reach from the pulley if he was dump-
ing rock dust into the hopper. (P-17, P-18).

 P&M admitted it violated   75.17223(a). At issue is whether

the violation should be classified as significant and
substantial. (Tr. 8).

 A violation is properly designated as being S&S "if, based

on 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, 6 FMSHRC 822, 825 (April 1981). In
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission
explained:

             In order to establish that a violation
       of a mandatory standard is significant and
       substantial under National Gypsum the Sec-
       retary must prove: (1) the underlying vio-
       lation of a mandatory safety standard; (2) a
       discrete safety hazard--that is, a measure of
       danger to safety--contributed to by the vio-
       lation; (3) a reasonable likelihood that the
       hazard contributed to will result in an in-
       jury; and (4) a reasonable likelihood that
       the injury in ques-tion will be of a reason-
       ably serious nature.

See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-104 (5th
Cir. 1988), aff'g, 9 FMSHRC 2015, 2021 (December 1987) (approving
Mathies criteria). The question of whether any specific viola-
violation is S&S must be based on the particular facts surround-
ing the violation. Texasgulf, Inc., 10 FMSHRC 498, 500-501

1 75.1722 Mechanical equipment guards.

         (a) Gears; sprockets; chains; drive, head, tail,
       and takeup pulleys; fly-wheels; couplings, shafts;
       sawblades; fan inlets; and similar exposed moving
       machine parts which may be contacted by persons, and
       which may cause injury to persons shall be guarded.

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~1944
(April 1988); Youghiogheny and Ohio Coal Co. 9 FMSHRC 2007, 2011-2012
(December 1987).

 In connection with Citation No. 3243346, the evidence shows a violation

of the underlying guarding regulation. There was a measure of danger
contributed to by the violation. Unguarded equipment is reasonably likely to
result in an injury. Becoming entangled with unguarded parts such as shown in
P-18 will cause a reasonably serious injury. In sum, I agree with Inspector
Duran when he classified this as an S & S violation. (Tr. 51-52).

 Citation No. 3243347 alleges P&M violated 30 C.F.R.

75.503

 P&M withdrew its contest to this Citation and accepted the proposed

penalty of $20. (Tr. 8). Accordingly, the Citation and proposed penalty
should be affirmed.

                             CENT 91-197

 Citation No. 3243235 alleges P&M violated 30 C.F.R.

77.1605(k)

 MSHA Inspector Donald L. Jordan testified as to the alleged berm

violation. At the conclusion of the hearing, P&M withdrew its contest to the
Citation. (Tr. 88).

 P&M's motion was granted.    The Citation and the proposed penalty should

be affirmed.

 Citation No. 3243236 alleges P&M violated 30 C.F.R.

77.410. (Footnote 2

 MSHA Inspector DONALD JORDAN issued this Citation for an explosive truck

that had a non-functioning backup alarm. The truck is designed with large
boxes on each side. (P-9).

 Inspector Jordan opined that pickup trucks are required to have a backup

alarm if vision is not clear to the rear. He con-

2 77.410 Mobile equipment; automatic warning devices.

       Mobile equipment, such as trucks, forklifts, front-end
       loaders, tractors and graders, shall be equipped with
       an adequate automatic warning device which shall give
       an audible alarm when such equipment is put in
       reverse.

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~1945

sidered the violation to be S&S. Workers were always around the truck putting
priming explosives in holes.

 MICHAEL KOTRICK, P&M safety manager, produced photographs that show a

relatively clear view from front to rear of the explosives truck. (R-1, R-2,
R-3). In Mr. Kotrick's opinion, the wire mesh on the truck permits a greater
"see through" than does a standard pickup with an ordinary tailgate.

 In P&M's business, miners take detonators and primer cord and drop them

in holes. However, kneeling by the truck is not part of the procedure.

 The parties in this case injected an issue of "see through" visibility,

that is, if the driver of the truck could see workers to the rear no backup
alarm is required. However, the regulation does not recognize this exception
as it simply requires an audi- ble alarm on mobile equipment when the
equipment is put in reverse.

    Since P&M's truck had no alarm, the Citation should be affirmed.

 I agree with Inspector Jordan's evaluation that this vio-

lation was S&S. The S&S criteria, set forth above, is estab-
lished by the evidence. Specifically, there was a violation of the mandatory
safety standard and a measure of danger to safety was contributed to by the
violation. Further, it is uncontro-
verted that miners work in close proximity to the truck. The final criteria
is established: a truck backing into a miner would cause reasonably serious
injuries or a fatality.

 P&M was negligent since it should have known the backup alarm was

inoperative. Gravity has been discussed in connection with the S&S criteria.

    Citation No. 3243236 should be affirmed.

 Citation No. 3243237 alleges P&M violated 30 C.F.R.

77.1104. (Footnote 3

 Federal Coal Mine Inspector Donald Jordan issued this Ci-

tation in the PEPCO Buildings, a Class 2, Division 2 building. In such a
building, since there are no explosion-proof motors,

3 77.1104 Accumulations of combustible materials.

            Combustible materials, grease, lubricants, paints,
          or flammable liquids shall not be allowed to
          accumulate where they can create a fire hazard.

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~1946
the operator agrees to keep the area free of combustibles such as flammable
liquids, oil, grease, coal dust, etc. (Tr. 23).

  Mr. Jordan saw an oil and float coal dust accumulation averaging 1/16th

of an inch thick. (Tr. 24). The accumulation was on a flat metal surface
surrounding a 460-volt A.C. motor. (P-11 shows the accumulation; P-14 shows
tracks on the floor from Mr. Jordan's shoes.)

 Mr. Jordan believed the float coal dust in the presence of oil created

an insulating effect that prevented the motor from adequately cooling. Under
normal circumstances, Mr. Jordan agreed that the probability of ignition or
fire was highly un- likely. However, tests reveal that 64/100 of an inch
accumula- tion on a flat surface would propagate ignition if given the proper
heat. (Tr. 27).

 In Mr. Jordan's opinion, heat would come from the motor if overheated

because of excessive coal dust in the cooling fans. In Mr. Jordan's opinion
there was a strong probability that an accident or serious injury could occur.
An explosion would be remote but he considered a fire to be a strong
possibility.

 Mr. Jordan concluded the violation was S&S.

 Under   77.1104, the Secretary must prove there were (1) combustible

materials, (2) such combustibles were allowed to accumulate and (3) they
created a fire hazard.

 In Texasgulf, Inc., 10 FMSHRC 498 (April 1988), the Com-

mission developed an analytical approach useful for determining the reasonable
likelihood of a combustion hazard resulting in an ignition or explosion. The
Commission established that there must be a "confluence of factors" to create
a likelihood of ig- nition, cf. Compare: Eastern Associated Coal Corporation,
13 FMSHRC 178 (February 1991) involving Section 75.400.

 In the instant case, I credit the testimony of P&M's safety manager

Michael Katrick who testified as to a fire triangle and described the three
legs as: oxygen, ignition source, and fuel in vaporized form. (Tr. 64, 65).

 Further, a flash point is a point where sufficient vapors are given off

a substance for it to be ignited. (Tr. 66). The lowest flash point at P&M's
site was the transmission fluid. Its flashpoint was 160 degrees Centigrade.
P&M's lab tested coal dust and the flash point was found to be in excess of
500 degrees Fahrenheit. (Tr. 69, 70).

 Mr. Kotrick concluded the minimum flash point would be 160 degrees.

(Tr. 71). The motors were tested and their highest

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~1947
temperature was 55 degrees Fahrenheit. The motors are specific- ally designed
to be used in a Class 2 Division 2 area.

 Based on his research, Mr. Kotrick concluded the accumula- tions were a

combustible mixture. (Tr. 74-75). While the mate- rials are classified as
combustible in a definitional sense, there were not present in a combustible
state. (Tr. 74). There were no open flames nor electrical sparks in the
area. (Tr. 75). The motor was not malfunctioning. In addition, there were
fire extinguishers 10 to 20 feet away.

 The Secretary's post-trial brief relies on Inspector Jordan's opinion.

(Tr. 28, 29). However, I am not persuaded. Mr. Jordan agreed he did not know
the flash point of the ma- terials he observed in accumulation nor did he have
any infor- mation regarding the heat given off the surface of the apparatus
where the dust and oil accumulated. (Tr. 34). Further, there was no short
circuit or evidence of malfunction. Mr. Jordan further agreed he had no way
of knowing if the accumulation caused excessive heat. (Tr. 35).

 The Secretary failed to establish an ignition source and fuel to support

a fire. Accordingly, Citation No. 3243237 should be vacated.

 Citation No. 3243342 alleges P&M violated 30 C.F.R.

77.1303(ii). P&M has admitted the occurrence of the violation. Th
Secretary, upon the evaluation of new evidence provided by P&M agreed to
withdraw the classification from "Significant and Substantial" and proposed a
single assessment of $20. (Tr. 7).

 The motions were granted.    The Citation and amended civil penalty should

be affirmed.

                             CENT 91-202

 Citation No. 3243321 alleges P&M violated 30 C.F.R.

77.400(a) (Footnote 4) P&M admits the violation. At issue are the S&
allegations and the penalty. (Tr. 8).

 Inspector DONALD JORDAN issued this Citation. He found the west end of

the feeder slide on the walkway side and the draw-off

4 77.400 Mechanical equipment guards.

         (a) Gears; sprockets; chains; drive, head, tail, and
       takeup pulleys; flywheels; couplings; shafts;
       sawblades; fan inlets; and similar exposed moving
       machine parts which may be contacted by persons, and
       which may cause injury to persons shall be guarded.

Page 9

~1948
tunnel at the prep land where a person could be injured was not guarded. The
feeder slide is a moving machine part. (Tr. 31).

 This is an area that must be examined several times a shift. The area

must be checked for methane, coal spillage and accumulations.

 There was a handrail parallel to the feeder slide. However, the

handrail does not prevent a person from reaching into the slide.

 Inspector Jordan considered the violation to be S&S because a person

could become entangled and incur serious injuries. An injury could include
the loss of a hand or arm. (Tr. 32, 33).

 MICHAEL KOTRICK, testifying for P&M, did not contradict

Mr. Jordan. He indicated the area is isolated. The 36-inch walkway is made of
a heavy metal grating. (Tr. 77).

 The railing, approximately 40 inches high, is between a feeder and the

walkway. The hazard is 12 to 18 inches beyond the railing. (Tr. 78). The
railing could be contacted by anyone who might slip. (Tr. 79).

 In order to establish an S&S violation, the Secretary must establish

evidence to comply with the Commission mandate set forth, supra.

 Of the four elements required, I do not find there was a reasonable

likelihood that the hazard contributed to will result in an injury. If a
person were to slip on the walkway, he would most likely steady himself on the
adjacent guardrail. Further,
the unguarded feeder slide was 12 to 18 inches beyond the rail. The S&S
violations should be stricken.

 P&M was negligent in failing to guard the feeder slide. This was an open

and obvious condition.

 The gravity of this violation should be considered as low since the

unguarded equipment was 12 to 18 inches beyond the railing.

                         CIVIL PENALTIES

 P&M's negligence and the gravity of the violations have been previously

discussed. The remaining statutory criteria to assess civil penalties is
contained in Section 110(i) of the Act.

 The stipulation ( 5) indicates P&M is a large operator. Further, the

penalties are appropriate and will not affect the company's ability to
continue in business.

Page 10

~1949
P&M's previous adverse history, as evidenced by Exhibits P-1, P-2, and
P-3, is average.

 The stipulation further indicated P&M promptly abated the violative

condition. The operator is entitled to statutory good faith.

    For the foregoing reasons, I enter the following:

                                 ORDER

                              CENT 91-196

 1.       Citation No. 3243318 and the penalty of $20, as amended, are

AFFIRMED.

 2.       Citation No. 3243346 is AFFIRMED and a civil penalty of $100 is

ASSESSED.

 3.       Citation No. 3243347 is AFFIRMED and a civil penalty of $20 is

ASSESSED.

                              CENT 91-197

 4.    Citation No. 3243235 is AFFIRMED and the proposed penalty of $227

is ASSESSED.

    5.    Citation No. 3243236 is AFFIRMED and penalty of $200 is ASSESSED.

    6.    Citation No. 3243237 is VACATED.

 7.    Citation No. 3243342 is AFFIRMED and a civil penalty of $20 is

ASSESSED..

                              CENT 91-202

    8.    The S&S allegations are STRICKEN from Citation No. 3243321.

 9.    Citation No. 3243321, as amended, is AFFIRMED and a civil penalty

of $50 is ASSESSED.

                                John J. Morris
                                Administrative Law Judge

Page 11

~1950
Distribution:

William E. Everheart, Esq., Deputy Regional Solicitor, 55 Griffin Square
Building, Suite 501, Dallas, TX 75202 (Certified Mail)

John W. Paul, Esq., THE PITTSBURG & MIDWAY COAL MINING CO., 6400 South
Fiddler's Green Circle, Englewood, CO 80111-4991 (Certified Mail)

ek
William E. Everheart, Esq.
Deputy Regional Solicitor
55 Griffin Square Building #501
Dallas, TX 75202
John W. Paul, Esq.
THE PITTSBURG & MIDWAY COAL MINING CO.
6400 South fiddler's Green Circle
Englewood, CO 80111-4991