Secretary of Labor (MSHA) v. Peabody Coal Company (ALJ decision, July 25, 1980)

Plain-English summary

Peabody Coal Company contested five citations at three Kentucky mines, then proposed settlements with the Secretary. The citations concerned a roof control plan, coal and dust accumulations, belt drive fire protection, and a trailing cable exposed to mobile equipment. For the cable citation, Peabody acknowledged that a different standard addressed trailing cables more directly but agreed to pay the full proposed amount. Judge George A. Koutras found the negotiated amounts reasonable after considering the parties' explanations and abatement. He approved $4,180 in total penalties and ordered payment within 30 days, with dismissal upon payment.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.400, 75.1101-7(b), 75.200, and 77.807.
• Outcome: Settlement approved for five citations in three dockets; $4,180 ordered.
• Key point: The judge accepted the negotiated penalties after reviewing the circumstances of each citation and the parties' explanations.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION OFFICE OF ADMINISTRATIVE LAW JUDGES 2 SKYLINE, 10th FLOOR 5203 LEESBURG PIKE FALLS CHURCH, VIRGINIA 22041

25 JUL 1980

SECRETARY OF LABOR, : Civil Penalty Proceedings MINE SAFETY AND HEALTH : ADMINISTRATION (MSHA), : Docket No. KENT 80-155 Petitioner : A.O. No. 15-02709-03071V v. :
: Camp No. 1 Mine
PEABODY COAL COMPANY, :
Respondent : Docket No. KENT 80-156
: A.O. No. 15-02069-03011
:
: Sinclair Strip Mine
:
: Docket No. KENT 80-157
A.O. No. 15-05046-030588

Alston No. 3 UG Mine

DECISIONS

Appearances: George Drumming, Jr., Attorney, U.S. Department of Labor, Nashville, Tennessee, for petitioner; Thomas Gallagher, Esquire, St. Louis, Missouri, for respondent.

Before: Judge Koutras

Statement of the Proceedings
These consolidated proceedings were docketed for hearings in Evansville, Indiana, June 26, 1980, along with another proceeding involving the same par- ties. The parties made a proposal to settle these dockets without the need for an evidentiary hearing and they were afforded an opportunity to present their arguments in support of their proposed settlement on the record. These cases are civil penalty proceedings initiated by the petitioner against the respondent pursuant to section 110(a) of the Federal Mine Safety and Health Act of 1977, through the filing of civil penalty proposals for a total of five alleged violations of certain mandatory safety standards pro- mulgated pursuant to the Act. Respondent filed timely answers contesting the citations, requested hearings in Evansville, but as indicated above, the parties subsequently proposed to settle the cases. The citations, initial assessments, and the proposed settlement amounts are as follows:

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Docket No. KENT 80-155

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

0798644 7/27/79 75.400 $1,500 $ 500
0798285 7/31/79 75.1101-7(b) 1,500 500
0798291 8/14/79 75.200 1,500 1,500

Docket No. KENT 80-156

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

0799651 10/11/79 77.807 $ 180 $ 180

Docket No. KENT 80-157

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

0797795 8/9/79 75.400 $3,000 $1,500

DISCUSSION

Docket No. KENT 80-155 concerns three citations. Citation No. 0798291 concerns a violation of the mine roof-control plan and abatement was achieved within an hour after the issuance of the citation. The proposed settlement is for 100 percent of the initial proposed settlement.

Citation No. 0798644 concerns an alleged accumulation of loose coal, rock, and some float coal dust along a belt and belt idlers. Respondent argued that its records reflected that during the third shift on the day before the citation issued, eight belt shovelers were working on the belt. On the day the citation issued, four belt shovelers were working. Thus, respondent argues that it was making a good faith effort to keep the belt clean of accumulations (Tr. 8). Abatement was achieved the same day the citation issued by cleaning and rock dusting the belt and respondent exercised good faith compliance (Tr. 7).

Citation No. 0798285 concerns a water sprinkler system which provided protection for only 23 feet of a belt conveyor drive. However, respondent pointed out that section 75.1101-7(b) is intended to provide fire protection over the belt drive which normally is 35 to 40 feet in length. In this case, the belt drive being used on the day of the inspection was a portable drive approximately 18 feet long. Consequently, while the existing water spray system afforded protection for only 23 feet it did in fact extend over the 18-foot portable belt drive and afforded fire protection (Tr. 8, 11).

In addition to the foregoing, petitioner asserted that respondent is a large operator, that its prior mine history of violations is not excessive for an operation of its size, and that each citation here in question resulted from ordinary negligence. While the conditions cited were serious,

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respondent exhibited good faith abatement and the penalties agreed to will not adversely affect respondent’s ability to continue in business.

Docket No. KENT 80-156 concerns an alleged violation of section 77.807 for failure to adequately protect a drill trailing cable operating at the pit high wall from being run over by mobile equipment. Although respondent recognizes that section 77.807 deals with high voltage transmission cables, while section 77.604, which was not cited, specifically covers trailing cables, it nonetheless agreed to pay the full assessment of $180 and it did so because it believes that MSHA could establish the fact of violation, that it could amend its pleadings to cite the more appropriate section 77.604, and respondent candidly conceded that it was aware of the specific section it had violated and would not be prejudiced by any amendment to the pleadings (Tr. 15-19).

Petitioner asserted that the inspector who issued the citation was available to testify regarding the citation and that he would testify there is not very much difference in a trailing cable and a high-voltage cable (Tr. 16). Petitioner also asserted that the violation was serious, that it resulted from ordinary negligence, and was abated in good faith. Further, petitioner asserted that respondent’s mining operations are large, that the penalty will not adversely affect its ability to remain in business, and that the previous history of citations at the mine is not excessive (Tr. 14).

Docket No. KENT 80-157 concerns an alleged accumulation of loose coal in a belt entry, and float coal dust on the mine floor and belt-control box (Tr. 20). Petitioner again asserted that the mine operation is large, that the previous history of violations at the mine site in question was not excessive. The conditions cited were serious, resulted from ordinary negligence, and payment of the proposed settlement amount will not adversely affect respondent’s ability to remain in business (Tr. 20).

With regard to the circumstances surrounding the cited conditions, respondent asserted that had the case proceeded to hearing, it would present the testimony of the union belt walker who walked the area prior to the inspector and observed nothing of consequences, and particularly no imminent danger. Further, the mine manager would dispute the inspector’s measurements concerning the accumulations and would also testify that the cited coal dust was in fact dust from rock which was being transported on the belt. The area of the alleged accumulation was approximately 12 inches high and 8 feet long, and not 14 feet long as described by the inspector (Tr. 19-24).

Petitioner agreed that the conditions were abated in good faith and that the loose coal was apparently loaded out immediately (Tr. 25, 29).

CONCLUSION

After careful review and consideration of the arguments presented by the parties in support of the proposed settlement disposition of these cases, I find that they are reasonable and in the public interest and they

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are approved. The total settlement amount of $4,180 for the five contested citations is reasonable considering all of the circumstances presented in these cases.

ORDER
Respondent IS ORDERED to pay civil penalties in the amounts indicated above, totaling $4,180, within thirty (30) days of the date of these decisions. Upon receipt of payment by the petitioner, these cases are dismissed.

George A. Koutras
Administrative Law Judge

Distribution:

George Drumming, Jr., Esq., Office of the Solicitor, U.S. Department of Labor, Room 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 (Certified Mail)

Thomas R. Gallagher, Esq., P.O. Box 235, St. Louis, MO 63166 (Certified Mail)

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