Ohio County Coal Company (ALJ decision, March 17, 2009)

Plain-English summary

The consolidated cases involved contests and civil penalties arising from 79 alleged violations at Ohio County Coal's underground Freedom Mine. After extended negotiations, the parties resolved the remaining citation, significant and substantial, penalty, and contest issues. Ohio County also agreed to train all three shifts on combustible-material cleanup and to revise its cleanup plan with written pre-operational checks for roof bolters, ram cars, and diesel mantrips. The judge found the settlement reasonable and in the public interest. He approved a total penalty of $14,424 and ordered the company to implement the additional safety measures within 30 days, after which the proceedings would be dismissed.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.202(a), 75.362(b), 75.400, 75.400-2, 75.503, 75.606, 75.1106-3(a)(3), and 75.1107-16
• Outcome: The settlement was approved with a $14,424 total penalty and required equipment-cleaning and inspection measures.
• Key point: The settlement combined adjusted citation terms and penalties with mine-wide training and documented pre-operational checks for mobile equipment.

Full text (FMSHRC public release)

FMSHRC ALJ Decision

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, NW, Suite 9500

Washington, D.C. 20001

March 17, 2009

OHIO COUNTY COAL COMPANY,          :          CONTEST PROCEEDINGS

Contestant                   :

:Docket No. KENT 2006-308-R

v.                                             :          Order No. 6689096; 05/09/2006

: 

:          Docket No. KENT 2006-309-R

SECRETARY OF LABOR,                           :          Order No. 6689097; 05/09/2006

MINE SAFETY AND HEALTH                 :

ADMINISTRATION (MSHA),                   :          Freedom Mine

Respondent                 :          Mine ID 15-17587

:

:

SECRETARY OF LABOR,                           :          CIVIL PENALTY PROCEEDINGS

MINE SAFETY AND HEALTH                  : 

ADMINISTRATION, (MSHA),                  :          Docket No. KENT 2006-369

Petitioner                    :          A.C. No. 15-17587-88177

:

:          Docket No. KENT 2007-46

:          A.C. No. 15-17587-98358-01

:

:          Docket No. KENT 2007-49

v.                                             :          A.C. No. 15-17587-98358-02

:

:          Docket No. KENT 2007-77

:          A.C. No. 15-17587-100975

:

:          Docket No. KENT 2007-82

:          A.C. No. 15-17587-100975

:

OHIO COUNTY COAL COMPANY,          :          Freedom Mine

Respondent                 :  

DECISION

Appearances:  Mary Sue Taylor, Esq., U.S. Department of Labor, Nashville, Tennessee,

on behalf of the Secretary

R. Henry Moore, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania,

on behalf of the Company

Before:            Judge Barbour

These consolidated cases concern contest and civil penalty proceedings arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et seq. In the contest proceedings Ohio County Coal Company (Ohio County or the company) challenges the validity of a citation and order issued at its Freedom Mine, an underground bituminous coal mine located in Henderson County, Kentucky. In the civil penalty proceedings the Secretary of Labor, on behalf of her Mine Safety and Health Administration, seeks the assessment of various proposed civil penalties for 79 alleged violations.

The matters were the subject of extensive negotiations, and the parties were able to settle many, but not all, of the issues dividing them. When it became apparent the parties could not settle their remaining differences, the cases were scheduled to be heard in Washington, D.C. The trial was to begin at 8:30 a.m., on August 25, 2008, but shortly before the appointed time, I met with counsels to explore whether further negotiations were warranted. Counsels consulted their clients and advised me they wished to postpone the start of the hearing. The Commission made its offices available, and at approximately 10:20 a.m. counsels advised me they agreed on a framework to settle the remaining issues.

The hearing was convened so that counsels could state the outlines of the proposed settlement on the record. As counsel for the company described the proposed settlement, it involved the Secretary agreeing to delete inspectors’ findings that several of the alleged violations were of a significant and substantial nature (S&S) and the company agreeing to accept the S&S findings on other of the citations. Additionally, as counsel for Ohio County explained, the parties agreed:

A training class will be conducted at the mine

by mine personnel that may be monitored by MSHA

[and] that will address the importance of compliance

with [30 C.F.R.§] 75.400, [(the mandatory safety

standard prohibiting accumulations of loose coal,

coal dust and other combustible materials)] . . . .

In addition, the mine’s clean-up plan will be revised

to spell out a written procedure for per-operational

checks with respect to three types of equipment

. . . the diesel man trips, the roof bol[t]ers and

the ram cars. . . . [A]s part of the program there

will be training given on pre-operational checks

and there will be a pre-operational checklist

developed that will address the issue of keeping

the types of [referenced] equipment . . . free

from hazardous accumulations of coal and other

combustible materials.

[The] plan [also] will include a card that will be

placed on equipment to indicate the scope of . . .

[the pre-operational] checks. . . . [The] card will

also include a direction that [when] a deficiency is

noted in a pre-operational check, it shall be reported

to a foreman. In addition, there will be a provision

with respect periodic monitoring [to ensure] . . . [the]

checks are being done.

Tr. 6-7.

Three months prior to the hearing, counsels had submitted a motion requesting approval of a settlement of issues related to several of the alleged violations.

At the hearing, counsels
stated they hoped to submit a motion for the approval of all other issues by September 9, 2008. Tr. 8. However, as counsel for Ohio County noted, “the devil is in the details”, an observation that proved prescient.

Although on September 8, counsels submitted another motion to approve a partial settlement.

Only in mid-February 2009, and after continuing discussions and the exchange of several draft settlement motions, did counsels finally agree concerning all of the remaining issues. A joint motion to approve the last parts of the settlement was filed on February 19, 2009.

The settlement, as stated in the parties’ motion as amended, is as follows:

KENT 2006-369

Citation/

Order No.      Date                30 C.F.R.                   Assessment                Settlement

6689120[

]       3/1/06           75.400                        $614                            $614

6689123          3/1/06             75.400                   $614                            $614

6689129          3/6/06           75.400                   $614                            $614

6689145          5/15/06           75.1106-3(a)(3)       $963                            $500

KENT 2007-46

Citation/

Order No.      Date                30 C.F.R.                   Assessment                Settlement

6689109[

]       2/24/06           75.362(b)                    $4,500                         $3,000

6689468[

]       5/16/06           75.400                         $963                            $963

6689430          5/22/06           75.503                         $440                            $440

6689431          5/22/06           75.400                         $440                            $440

6689432          5/22/06           75.400                         $440                            $440

6689433          5/22/06           75.400                         $440                            $440

6689472          5/23/06           75.202(a)                    $838                            $376

6689473          5/22/06           75.400                         $963                            $963

6689451          6/1/06           75.400                         $440                            $440

KENT 2007-49

Citation/

Order No.      Date                30 C.F.R.                   Assessment                Settlement

6689460[

]       6/2/06           75. 400                        $440                            $440

6689542          6/2/06           75.400                         $440                            $440

KENT 2007-82

Citation/

Order No.      Date                30 C.F.R.                   Assessment          Settlement

6689096 [

]      5/9/06             75.1107-16                 $3,700                         $3,700

In support of the proposed settlement of the allegations relating to the alleged violations, Section 110(I) of the Act (30 U.S.C. § 820(i), including information regarding Ohio County’s size, ability to continue in business and history of previous violations.

KENT 2006-308-R

(104(d)(1) Citation 6689096, 5/9/06, 30 C.F.R. § 75.1107-16)

KENT 2006-309-R

(104(d)(1) Order 6689097. 5/9/06, 30 C.F.R. § 75.606)

Resolution of the penalty issues with regard to Citation No. 6689096 (Docket No. KENT 2007-82) and Order No. 6689097 (Docket No. KENT 2007-82) has resolved the issues raised in contest proceedings KENT 2006-308-R and KENT 2006-309-R, and the parties agree the contests may be dismissed.

OTHER AGREEMENTS

In addition to the Secretary agreeing to accept payment as specified for the alleged violations and Ohio County agreeing to pay, the parties further agreed regarding the teaching of a class relating to cleaning combustible materials on mobile equipment, the external operating temperatures of specific types of mobile equipment and the implementation of a list for the pre-operational checks of such equipment. Their agreement states:

a. Within 30 days of the approval of this settlement
. . . Ohio County shall conduct on all three shifts a
class lasting a minimum of 30 minutes that shall
address the importance of the cleaning of combustible
materials from mobile mining equipment and the
potential hazards to accumulations of combustible
materials on mining equipment. MSHA may monitor
such class and Ohio County will provide two day
notice to MSHA of the conduct of such classes.

b. MSHA agrees that the normal operating external
operating temperatures of the components of
roofbolting machines, including but not limited to
motors, valve banks, etc., is 168° F or less.

c. MSHA agrees that the normal operating external
operating temperatures of the components of ramcars,
including, but not limited to, motors, hydraulic tanks,
etc., is 168° F or less.

d. MSHA agrees that the normal operating external
operating temperatures of the components of diesel
mantrips, including motors, is 195° F or less. The
external surface temperature of the exhaust is greater
than 195° F but less than 302°F, MSHA’s limit on
such temperatures.

e. Ohio county has proposed revisions to the cleanup
plan adopted under 30 C.F.R. § 75.400-2 . . . . Such
revised plan shall include the requirement that a
written check list for the pre-operational checks of
roofbolters, diesel mantrips and ramcars, be
developed and affixed to the mobile equipment
specified herein. Such checklist shall include
requirements that the equipment operator

perform a pre-operational check of the exterior
surfaces of such equipment for hazardous
accumulations of combustibles[,] including coal, coal
fines, float coal dust, hydraulic oil, grease and diesel
fuel. Such checklist shall be provided on roofbolters,
ramcars and diesel mantrips. Upon notification of the
absence of such a list on equipment, it shall be
replaced by the next shift. Such pre-operational
checklist shall include a requirement that the operator
report to his supervisor any deficiency in the
equipment so that appropriate action may be taken if
necessary.

Joint Stipulations and Motion for Approval of Pretrial Settlement (February 19, 2009) at 5-6.

After consideration of the settlement motions, I find the proposed settlement is reasonable and in the public interest. The motion IS GRANTED and the settlement IS APPROVED.

ORDER

Ohio County IS ORDERED to pay a total civil penalty of $14,424 in satisfaction of the violations in question. Payment is to be made to MSHA within 30 days of the date of this decision. In addition, within the same time period Ohio County IS ORDERED to implement the agreements

as specified in the “Other Agreements” section of this decision and as stated in the February 19, 2009 motion. Upon receipt of full payment and implementation of the specified agreements, all of the captioned proceedings ARE DISMISSED.

David F. Barbour

Administrative Law Judge

Distribution:   (Certified Mail)

Mary Sue Taylor, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, Suite 230, Nashville, TN 37219-2456

Julia K. Shreve, Esq., Melissa M. Robinson, Esq., Jackson Kelly, PLC, 1600 Laidley Tower, P.O. Box 553, Charleston, WV 25322

R. Henry Moore, Esq., Jackson Kelly, PLLC, 3 Gateway Center, Suite 1340, 401 Liberty Avenue, Pittsburgh, PA 15222

/ej