FMSHRC ALJ decision Docket KENT 84-184, KENT 84-196, KENT 84-238 Decided September 25, 1985 Mixed result Judge Richard C. Steffey Transcribed from scan

Pyro Mining Company

Pyro Mining Company (FMSHRC KENT 84-184, KENT 84-196, KENT 84-238): Multiple citations modified and penalties assessed

Apply this to your situation

This order from 1985 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.

Final ALJ decision, not Commission precedent

This decision became final under the 40-day rule in 30 U.S.C. § 823(d)(1) because no later Commission review appears in the official index. It binds the parties but is not Commission precedent. The full text below is from the official FMSHRC release.

About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the agency's own release.

Transcribed from a scanned original: FMSHRC released this decision as an image-only file. The full text below is a machine transcription, proofread against the scan. Check the official release before quoting exact language.

Read the official release (fmshrc.gov)

Plain-English summary

Pyro Mining Company faced three consolidated civil-penalty dockets involving methane, electrical equipment, coal accumulations, conveyor conditions, and other mine-safety requirements at its No. 9 Slope Mine. Judge Richard C. Steffey modified several citation findings, affirmed some violations, vacated others where the safeguard did not give adequate notice, and assessed penalties in the contested dockets. He also approved a settlement for three citations in KENT 84-238. The order assessed $8,260 in the contested dockets and approved $295 in settlement penalties.

Decision snapshot

Cited standards: 30 C.F.R. §§ 75.400, 75.503, 75.308, 75.523-1, and 75.807
Outcome: The consolidated decision modified multiple citations, assessed $8,260 in contested-docket penalties, and approved a $295 settlement in KENT 84-238.
Key point: A safeguard must give clear notice of the hazard it addresses, while civil penalties are assessed citation by citation under the statutory factors.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) v. PYRO MINING
DDATE:
19850925
TTEXT:

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Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. KENT 84-184
PETITIONER A.C. No. 15-13881-03528

      v.                           Docket No. KENT 84-196
                                   A.C. No. 15-13881-03530

PYRO MINING COMPANY,
RESPONDENT Docket No. KENT 84-238
A.C. No. 15-13881-03532

                                   Pyro No. 9 Slope Mine

                            DECISION

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Petitioner;
William Craft, Manager of Safety, Pyro Mining
Company, Sturgis, Kentucky, for Respondent.

Before: Judge Steffey

Completion of the Record

 A hearing in the above-entitled proceeding was held on

February 12, 1985, in Evansville, Indiana, under section 105(d),
30 U.S.C. 815(d), of the Federal Mine Safety and Health Act of
1977, pursuant to a notice of hearing issued January 15, 1985. An
unusually heavy snowstorm occurred during the afternoon and night
preceding the hearing so that respondent's witnesses were unable
to be present at the hearing and it was very doubtful if the
roads would be clear enough for them to be present to testify on
the day following the hearing. Therefore, I agreed that the
parties could subsequently obtain a deposition of any witness who
was unable to appear at the hearing and it was agreed that the
deposition would be used as a supplement to the record for the
purpose of making findings of fact and deciding the issues in
this proceeding (Tr. 190).

 The deposition referred to in the preceding paragraph was

taken on May 23, 1985, and the typed deposition was received by
me on July 25, 1985. The parties submitted only one exhibit in
conjunction with the deposition and it was marked as Exhibit C.
The parties inadvertently overlooked the fact that I had received
in evidence at the hearing Respondent's Exhibits A through F.
Consequently, there is

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already in evidence as Exhibit C a one-page document consisting
of page No. 254 from MSHA's inspection manual. There are frequent
references to the duplicate Exhibit C in the parties' deposition.
If I were to redesignate Exhibit C accompanying the deposition as
Exhibit G so as to eliminate the duplicate marking of two
different exhibits with the letter "C", the many references in
the deposition to Exhibit C would also have to be changed. On the
other hand, page 254 of the inspector's manual, which was
designated as Exhibit C at the hearing, is referred to in the
transcript of the hearing only in the index of exhibits and on
page 80 of the transcript. Therefore, the simplest way to
eliminate the repetitious use of the letter "C" for identifying
two exhibits is to redesignate page 254 from the inspection
manual as Exhibit G and correct the index and page 80 of the
transcript to show that page 254 of the inspector's manual is
Exhibit G and to receive in evidence as Exhibit C the drawing
which was submitted with the parties' deposition.

 For the reasons given above, the excerpt from MSHA's

inspection manual having at the bottom of that excerpt a Roman
numeral "II" and the number "254" is redesignated as Exhibit G
and is received in evidence as Exhibit G. The necessary changes
will physically be made on the exhibit and on the index to the
transcript of the hearing. Page 80 of the transcript will also be
corrected to show the marking and receipt in evidence of Exhibit
G on that page instead of Exhibit C.

 The drawing of the No. 4 Unit of Pyro's No. 9 Slope Mine,

prepared by Pyro's witness Tom Hughes, is received in evidence as
Exhibit C and the parties' deposition of May 23, 1985, will be
considered as additional transcript of the witnesses who
testified in this proceeding.

 References to the transcript of the hearing will be shown as

"Tr. _" in this decision and references to the deposition
will be shown as "Dep. ___".

Issues

 The issues in a civil penalty proceeding are whether

violations of the mandatory health and safety standards occurred
and, if so, what civil penalties should be assessed based on the
six criteria listed in section 110(i) of the Act. Counsel for the
Secretary filed his posthearing brief on August 26, 1985, and
Pyro's representative filed his posthearing brief on August 28,
1985. The arguments made by the parties are hereinafter
considered.

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CONSIDERATION OF PARTIES' ARGUMENTS

DOCKET NO. KENT 84-184

 The proposal for assesment of civil penalty filed in Docket

No. KENT 84-184 seeks to have penalties assessed for alleged
violations of section 75.400 and section 75.503. Both violations
were alleged in citations written under section 104(a) (FOOTNOTE.1) of
the Act in conjunction with an order of withdrawal issued under
section 107(a) (FOOTNOTE.2) of the Act.

Findings of Fact

 1. Imminent-danger Order No. 2338837 was written after the

inspector had obtained a reading on his methane detector
indicating the presence of 2.3 percent methane at the working
face of the No. 2 entry (Tr. 34; Exh. 2). The inspector issued
Citation No. 2338839 alleging a violation of section 75.503
(FOOTNOTE.3) because a cable had been ripped out of a splice

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box on a loading machine which was sitting close to the face
where the high reading of methane had been obtained. The loading
machine also had an opening in excess of .004 of an inch between
the cover and the frame of the forward/reverse electrical
compartment (Tr. 38; Exh. 4). The inspector issued Citation No.
2338840 alleging a violation of section 75.400 (FOOTNOTE.4) because
loose coal had been allowed to accumulate along the ribs of the
Nos. 5, 6, and 7 entries up to 1 foot in depth and in several
room necks (Tr. 19; 104; Exh. 5). The inspector prepared Exhibit
6 to show where the coal existed. The coal is depicted by small
dots which appear on Exhibit 6 in two room necks on the right
side of No. 7 entry and in one room neck on the left side of No.
1 entry (Tr. 17). The room necks were from 8 to 10 feet deep and
20 feet wide and were filled with loose coal. Loose coal had also
been allowed to accumulate in large quantities in the crosscut
between Nos. 6 and 7 entries and in the No. 7 entry just inby
Spad No. 1523 as shown on Exhibit 6 (Tr. 18; 22).

 2. The inspector wrote the words "stored coal" on the right

side of Exhibit 6. He stated that he made that entry on the
exhibit because Pyro's safety manager, Tom Hughes, who
accompanied him on his inspection, stated that Pyro had
permission to store the coal along the ribs and in room necks
during the first two shifts and then the stored coal was taken
out of the mine on the third shift. The reason given by Hughes
for storing the coal was that Pyro had a raw-coal contract at
that time which required Pyro to deliver the purest coal which
could be picked up by the loader. After the loader had picked up
all the coal it could while trying to avoid getting into draw
rock or fire clay, a scoop followed and scraped up coal
containing draw rock and fire clay and stored it along the ribs
and in room necks (Tr. 16; 24; 52; 56; 89). The conveyor belt was
removed from the regular stock pile when the stored material
containing rocks and fire clay was being transported out of the
mine (Dep. 28).

 3. Although Hughes told the inspector that the stored coal

cited by the inspector as coal accumulations was 90 percent rock,
the inspector stated that it appeared to be 90 percent coal to
him (Tr. 21; 56-57). The inspector collected two samples of the
stored coal and the laboratory analyses of those samples
indicated that they were 22 and 20 percent incombustible,
respectively, whereas section 75.403 requires

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intake entries like those in which the samples were taken, to be
rockdusted so as to have an incombustible content of 65 percent
(Tr. 64; 96; Exh. 9). The inspector, however, made no attempt to
take a sample which would contain rocks and the inspector agreed
that he took the dust sample in the usual manner which involved
passing the coal dust through a sieve which would not have
permitted rocks to pass through the sieve into the coal collected
for the purpose of making a laboratory analysis (Tr. 91;
104-105). The inspector insisted that the stored material
contained entirely too much coal to be treated as rocks (Tr. 92).
Hughes testified that the stored material was processed in Pyro's
preparation plant and that the resulting coal was sold (Dep.
29-30).

 4. As indicated above, the loose coal accumulations were

among the hazards which the inspector took into consideration
when he issued imminent-danger Order No. 2338837 at the time he
obtained a methane reading of 2.3 percent at the face of the No.
2 entry. The other hazard which the inspector took into
consideration was the aforementioned violation of section 75.503
alleged in Citation No. 2338839 because the missing cable and
light on the right side of the loading machine and the opening of
more than .004 of an inch in the control panel supplied an
ignition source for the methane accumulation which the inspector
believed was approaching the explosive range of 5 percent (Tr.
39; 47; 60; 100-101).

Citation No. 2338839 3/23/84 75.503 (Exhibit 4)

 The violation of section 75.503 alleged in Citation No.

2338839 was that the loading machine had an opening in excess of
.004 of an inch between the cover and the frame of the
forward/reverse electrical compartment and there was no conduit
and cable to one light and a splice box (Finding No. 1 above).
Pyro's brief does not deny that those openings existed and the
loading machine operator testified that he was aware that the
light was not burning but that he did not know why it failed to
work (Tr. 126). Pyro's brief (pp. 6 and 7) mixes its discussion
of Citation No. 2338838, alleging a violation of section 75.503,
with its discussion of Citation No. 2338839, alleging a violation
of section 75.308. Most of that discussion pertains to the
violation of section 75.308 which is hereinafter evaluated under
Docket No. KENT 84-196. A portion of Pyro's defense to the
violation of section 75.503 is intertwined with its argument that
the loading machine involved was not situated in a "working
place" which is defined in section 75.2(g)(2) as "the area of a
coal mine inby the last open crosscut." Section 75.503 is quoted
in full in footnote 3 on page 3 above and that section requires
equipment to be permissible "which is taken into or used inby the
last open crosscut".

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The Commission long ago considered and rejected the argument that
a violation of section 75.503 may not be cited unless the
equipment involved is located inby the last open crosscut. In
Solar Fuel Co., 3 FMSHRC 1384 (1981), the Commission held that
all MSHA has to prove with respect to showing that a violation of
section 75.503 occurred is that there is an intent to take
equipment inby the last open crosscut. The Commission stated that
the emphasis is not on where the equipment is located at the time
of the inspection, but whether the equipment will be taken inby
the last open crosscut. The Commission pointed out that the
purpose of the permissibility standard is to assure that
equipment will not cause a mine explosion or fire. Therefore, the
Commission stated that section 75.503 applies not only to
equipment which has been taken inby the last open crosscut at the
time it is inspected, but also to equipment which is intended to
be or is habitually taken or used inby the last open crosscut,
even if the inspection actually occurs when the cited equipment
is outby the last open crosscut.

 In this instance, the loading-machine operator testified

that he had just loaded at least one shuttle car of coal at a
point which was 15 feet from the working face and had backed up
in position to load another shuttle car when the inspector found
the permissibility violation of section 75.503 (Tr. 128-129).
There can be no doubt but that the loading machine cited by the
inspector was intended to be used inby the last open crosscut and
that it was properly cited by the inspector for a violation of
section 75.503. Therefore, I find that a violation of section
75.503 occurred. Pyro's brief (p. 2) also makes some arguments
about the nonserious nature of the violation. Those arguments
will subsequently be considered when I discuss the criterion of
gravity in assessing a civil penalty.

Citation No. 2338840 3/23/84 75.400 (Exhibit 5)

 Citation No. 2338840 alleged a violation of section 75.400

because loose coal had been allowed to accumulate along the ribs
of Nos. 5, 6, and 7 entries up to 1 foot in depth and in several
room necks in piles 20 feet wide and 3 feet in depth (Finding No.
1 above). Pyro's brief (pp. 5 and 7) objects to the alleged
violation of section 75.400 for three reasons. First, Pyro claims
that the samples of the loose coal taken by the inspector were
not representative. Second, Pyro argues that the inspector failed
to take a band sample. Third, Pyro contends that the No. 4 Unit,
where the accumulations were found, was in the Second Main North
area of the mine rather than in the Main West area of the mine
where the inspector understood the No. 4 Unit to be located.

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In considering Pyro's objections to the violation of section
75.400 based on the claim that the inspector's dust sample was
not representative of the type of materials he found, it should
be noted that the former Board of Mine Operations Appeals held in
Kaiser Steel Corp., 3 IBMA 489 (1974), that an inspector does not
need to take a dust sample in order to prove a violation of
section 75.400. I am aware of no Commission decision which has
reversed the former Board's holding. Since Pyro does not deny
that the accumulations existed, I could find that the violation
occurred on that basis alone and consider Pyro's arguments solely
from the standpoint of gravity in assessing a civil penalty. I
shall, however, consider Pyro's arguments about the validity of
the representative samples because section 75.400 refers to coal
dust, float coal dust, loose coal and "other combustible
materials" so that an operator can hardly be said to have
violated section 75.400 if the accumulations of loose coal
described in an inspector's citation are so predominately made up
of draw rock and fire clay as to render those materials
incombustible as claimed on pages 7 and 8 of Pyro's brief.

 The inspector agreed that the two samples he took of the

cited materials were almost entirely pure coal because the rocks
in the accumulations would not pass through the sieve he used to
collect the samples which he sent to the laboratory for analysis.
The inspector also agreed that if he had been able to include
rock in the samples, the rock would have resulted in a greater
incombustible content than the results of the analysis showed,
which was in a range of from 20 to 22 percent incombustible (Tr.
105), but the inspector insisted that the materials he had cited
as loose coal accumulations consisted of too much coal to be
treated as if they were almost entirely made up of rocks (Tr.
92). Since both samples were obtained in intake entries, the
incombustible content would have had to be at least 65 percent
incombustible in order to be exempt from being cited as
combustible accumulations (Tr. 96). While the inspector did not
take a sample from the No. 1 entry, he observed loose coal in a
room neck in the No. 1 entry which is a return entry where the
incombustible content is required to be 80 percent (Tr. 96; Exh.
6; Dep. 24).

 Pyro's claim that the accumulated materials described in the

inspector's citation were composed of too much rock and fire clay
to be considered combustible is not supported by the testimony of
either of Pyro's witnesses. It is undisputed that the material
which was piled along the ribs of the Nos. 5, 6, and 7 entries
and in the room necks shown on Exhibit 6 were the materials which
were scraped up by the scoop after the loading machine had removed
the choice coal from the mine for sale without having to be passed

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through Pyro's processing plant. The inaccuracy of Pyro's
contention that the accumulations stored along the entries and in
room necks were incombustible is demonstrated beyond any doubt by
the following testimony of the loading-machine operator (Tr.
150-151):

     A Well, Pyro was wanting us to load ash-free coal, the
     best we can. In order to do that, is to keep my loader
     head from getting down in that soft fireclay and, you
     know, scooping it up.

     And that's what they mean by trying to keep my head
     up--try to stay, you know, just above it and not get as
     much--get as least amount of fireclay as you can get by
     with.

     Q So, really, what you're telling me is that you don't
     go back and drop it any lower than that.

     A I--well, I try to keep it to grade, more or less, is
     what I always try to do.

     Q But that coal is taken on out and sold.

     A Right.

     Q And so no product that's picked up by the loading
     machine is stockpiled?

     A No.

     Q The stockpiling is done solely with the scoop.

     A Right.

     Q Which deliberately picks up the fireclay and coal.

     A Well, even the scoop--they don't want the scoops to
     get the fireclay either, if they can prevent it, but
     it's just hard not to.

 The testimony of Pyro's safety manager also shows that the

coal cited by the inspector as combustible accumulations were not
primarily composed of rocks and fire clay (Dep. 29):

     Q But the material that you stored in the room neck
     that Mr. Dupree [the inspector] found, you did have to
     put through a process to separate the coal out from the
     incombustible material, is that correct?

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A Yes, sir.

     Q And were you then able to use that same coal in your
     raw coal contract or did you do something else with
     that coal?

     A No. That coal could then be marketed.

 The above testimony of Pyro's witnesses support a finding

that, while the inspector's samples may not have been
representative of all of the materials which he found along the
ribs and in the room necks, those materials were also composed
primarily of coal because they had been gathered by a scoop
operator who had been instructed to gather up as little fire clay
and rocks as possible. If the coal had been as incombustible and
full of rocks as Pyro argues it was in its brief, it would not
have been economical to run the coal through the processing
plant.

 The Commission's very recent decision in Black Diamond Coal

Mining Co., 7 FMSHRC ----, August 5, 1985, rejected an argument
almost identical to the one made by Pyro in this proceeding. In
the Black Diamond case, the operator's foreman testified that
coal accumulations cited by the inspector were 80 percent rock
and the remaining 20 percent was coal. The foreman also testified
that the accumulations were so wet that when he grabbed a handful
of it and squeezed it, the material ran through his fingers. The
Commission rejected Black Diamond's argument that the
accumulations were not combustible by stating, among other
things, as follows (p. 5):

     Even if, as Black Diamond asserts, the accumulation was
     damp or wet, it was still combustible. For example, in
     the case of a fire starting elsewhere in a mine, the
     heat may be so intense that wet coal can dry out,
     ignite and propagate the fire. Furthermore, even absent
     a fire, accumulations of damp or wet coal, if not
     cleaned up, can eventually dry out and ignite. Also,
     coal mixed with rock and fire clay can nevertheless
     burn. A construction of the standard that excludes
     loose coal that is wet or that allows accumulations of
     loose coal mixed with noncombustible materials, defeats
     Congress' intent to remove fuel sources from mines and
     permits potentially dangerous conditions to exist.
     [Emphasis supplied.]

 Since the record in this proceeding shows that the

accumulations cited by the inspector were primarily coal which
had been collected by a scoop operator who had been instructed
to pick up as little fire clay as possible, and since the

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Commission has already rejected a claim that accumulations
composed of large amounts of rock and fire clay should not be
cited under section 75.400 as combustible materials, I find that
the violation of section 75.400 alleged in Citation No. 2338840
occurred.

 Pyro's claim that the inspector's sample should have been

made up of materials taken from the mine floor, ribs, and roof is
also rejected because a band sample is required to be taken only
when the inspector is citing a violation of section 75.403
because of an operator's failure to apply rock dust "upon the
top, floor, and sides of all underground areas of a coal mine".
As I observed at the commencement of this discussion of the
violation of section 75.400 here involved, the former Board held
long ago in the Kaiser Steel case that an inspector is not
obligated to take a sample to prove a violation of section
75.400. Therefore, Pyro's objection to the sample as not having
been a band sample is rejected as being an irrelevant
consideration in the proving of a violation of section 75.400.

 The final objection made in Pyro's brief (p. 5) to the

inspector's having cited it for a violation of section 75.400 is
that the laboratory report showing the results of analysis of the
dust samples indicates that the inspector obtained the samples in
the No. 4 Unit in the Main West area of the mine, whereas the No.
4 Unit is located in "Second Main North" (Tr. 66; Exh. F). Pyro
states that the inspector claims that Pyro's safety manager told
him that the No. 4 Unit was located in Main West and that the
safety manager denies that allegation (Dep. 20). On
cross-examination, however, the safety manager testified that he
took the inspector to the No. 4 Unit and that the inspector found
the conditions described in his citations at the place where the
safety manager took him (Dep. 34).

 The operator of the loading machine testified that he works

in the No. 4 Unit where the accumulations were found and that the
No. 4 Unit is 2 miles from the bottom so that it takes 45 minutes
for him to go to the No. 4 Unit and 45 minutes for him to get
back from the No. 4 Unit (Tr. 155-156). I conclude that the No. 4
Unit was located in Second Main North, but it is immaterial, in
proving that a violation of section 75.400 occurred, whether the
No. 4 Unit is in Main West or Second Main North because the
accumulations existed in a place where Pyro was producing coal
and at a place which was 2 miles from the bottom where the miners
entered the mine to go to work. An explosion or fire occurring in
a place that far underground would present problems in
containment and rescue and make it especially important that the
inspector take prompt action in preventing accumulation of
combustible materials.

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For the above reasons, I find no merit to Pyro's objections to
the violation of section 75.400 on the ground that the No. 4 Unit
was in Second Main North instead of Main West as indicated by the
inspector when he submitted his dust samples for analysis.

Assessment of Penalties

Payment of Penalties Will Not Cause Pyro To Discontinue in
Business

 Pyro stipulated in its answer to the prehearing orders

issued in this proceeding that it is subject to the Act. It also
dealt with one of the assessment criteria by stipulating that the
payment of civil penalties will not cause it to discontinue in
business.

The Size of Pyro's Business

 The proposed assessment sheets in the official files in

Docket Nos. KENT 84-184 and KENT 84-196 show that Pyro produces
over 1,655,000 tons of coal at its No. 9 Slope William Station
and over 3,000,000 tons of coal on a company-wide basis. Those
production figures support a finding that Pyro is a large
operator so that penalties in an upper range of magnitude are
warranted under the criterion of the size of the operator's
business.

Good-Faith Effort To Achieve Rapid Compliance

 The inspector testified that Pyro assigned all of its miners

to abating the various violations he had cited so that Pyro
corrected all of the hazardous conditions, including cleaning up
all the loose coal, within a very short time so that he was able
to terminate the citations and order of withdrawal in about 2
hours after they were written (Tr. 45; Exhs. 4 and 5). It is my
practice to increase a civil penalty otherwise assessable under
the other criteria if I find that an operator has failed to make
a good-faith effort to achieve rapid compliance and to decrease
the penalty otherwise assignable under the other criteria only if
the operator shows an unusual effort to achieve rapid compliance.
In view of the extensive amount of loose coal which had to be
cleaned up, along with correcting the permissibility violations
on the loading machine and other hazards which are not a part of
the contested aspects of this case, I find that Pyro made a
greater than normal effort to achieve rapid compliance in this
instance and that the civil penalties assessed for the violations
which occurred on March 23, 1984, should be reduced by 20
percent.

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History of Previous Violations

 Exhibit 1 is a computer printout listing the violations of

the mandatory health and safety standards for which Pyro has been
cited between the dates of December 1, 1982, and March 22, 1984.
Exhibit 1 shows that Pyro has been cited for 38 previous
violations of section 75.400 from February 8, 1983, to and
including February 22, 1984. All of the violations were cited
under section 104(a) of the Act and the inspectors did not
consider 22 of them to be significant and substantial.(FOOTNOTE.5)
Five of the previous violations occurred in February, which was the
month preceding the violation here involved, and all five of
those violations were considered to be significant and
substantial. S.REP. NO. 95-181, 95th Cong., 1st Sess. 43 (1977),
made the following comment about using the criterion of history
of previous violations in assessing penalties:

     In evaluating the history of the operator's violations
     in assessing penalties, it is the intent of the
     Committee that repeated violations of the same
     standard, particularly within a matter of a few
     inspections, should result in the substantial increase
     in the amount of the penalty to be assessed. Seven or
     eight violations of the same standard within a period
     of only a few months should result, under the statutory
     criteria, in an assessment of a penalty several times
     greater than the penalty assessed for the first such
     violation.(FOOTNOTE.6)

 Exhibit 1 further shows that Pyro paid penalties for nine

previous violations of section 75.400 in January and February of
1984 which were the 2 months preceding the month in which the
violation of section 75.400 alleged in Citation No. 2338840
occurred. Consequently, Pyro's history of previous violations of
section 75.400 is worse than the seven or eight referred to in
the legislative history. Exhibit 1 indicates that MSHA proposed
penalties ranging from $20 to $178 for the nine previous
violations. Of course, the penalties proposed by MSHA are total
penalties based on an evaluation of all of the six criteria. I
believe that Congress

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intended for the criterion of history of previous violations to
result in a penalty "several times greater" than the amount
assessed under that criterion for the first violation. MSHA's
proposed penalties for violations cited under section 104(a) are
generally proposed under the penalty formula described in 30
C.F.R. 100.3 and that rarely results in assessment of more than
$50 under the criterion of history of previous violations. When
one considers that Pyro was assessed penalties for 38 violations
of section 75.400 at just one mine over a period of 16 months and
that nine of those violations occurred just 2 months before the
violation of section 75.400 here involved, I believe that a
substantial penalty should be assessed under the criterion of
history of previous violations.

 Pyro's brief (p. 8) tries to minimize its excessive

violations of section 75.400 by arguing that the penalties were
cited during 500 inspection days so that the "violation density
for this mine during this period was well below the National
average". MSHA's penalty formula for history of previous
violations in section 100.3(c) relies upon a ratio of total
violations to the number of inspection days, but the Commission
has ruled in many decisions that when cases are heard on a record
before one of the judges, that the judge should assess penalties
by application of the six criteria to the evidence before him,
irrespective of the amount of the penalties proposed by the
Secretary. Sellersburg Stone Co., 5 FMSHRC 287 (1983), aff'd, 736
F.2d 1147 (7th Cir.1984), and U.S. Steel Mining Co., 6 FMSHRC
1148 (1984). I believe that MSHA's formula for proposing a
penalty under the criterion of history of previous violations
fails to take into consideration an operator's repeated
violations of the same safety standard, especially if that
standard, by its very nature, exposes the miners to possible
fires and explosions, as is the case when an operator violates
section 75.400. Civil penalties were placed in the Act as a means
to deter operators from departing from safe practices. The
criterion of history of previous violations is a criterion which
especially takes into consideration the question of an operator's
efforts to avoid repeated violations of the same standard. In
view of Pyro's very unfavorable history of previous violations, I
find that a penalty of $200 should be assessed under the
criterion of history of previous violations for the violation of
section 75.400.

 Exhibit 1 shows occurrence of 12 previous violations of

section 75.503 from August 9, 1983, to and including March 22,
1984. Four of the 12 violations occurred during the months of
January, February, and March 1984. Consequently, Pyro's history
of previous violations of section 75.503 is considerably more
favorable than its history of

Page 15

~1428
previous violations of section 75.400. There is, however, still
an excessive number of previous violations of section 75.503 and
I find that that history warrants assessment of a penalty of $75
under the criterion of history of previous violations for the
violation of section 75.503 alleged in Citation No. 2338839.

Gravity

 As I noted at the commencement of my discussion of the

violations involved in Docket No. KENT 84-184, both violations
were issued by the inspector as part of imminent-danger Order No.
2338837 which was primarily based on the fact that the inspector
had detected 2.3 percent of methane near the working face in the
No. 2 entry where the loading machine had just finished loading a
shuttle car with coal before the inspector made his methane
reading (Finding Nos. 1 and 4 above). The primary reason for the
inspector's issuance of the imminent-danger order was that the
inspector feared that an explosion could have occurred at any
time if the methane concentration should continue to increase.
The inspector testified that he considered the violation of
section 75.503 to be very hazardous because the lack of a cable
on the loading machine left an opening "right straight into the
compartment, plus the openings in the panels, this
forward/reverse compartment is just always arcing and sparking,
and it was--you know, it wasn't in permissible condition" (Tr.
47).

 Pyro's brief (p. 2) seeks to minimize the hazardous nature

of the violation of section 75.503 by including as a part of its
brief some Bureau of Mine statistics for the years 1971 through
1976. From those statistics, Pyro points out that only 17 out of
298 methane ignitions, or 5.7 percent, were caused by electrical
arcs of all kinds, including trolley wires, trolley feeder wires,
trailing cables, etc. Pyro also claims that the specific gravity
of methane emanating from the coal seam in its mine has a
specific gravity which would cause the methane to be 30 inches
above the loading machine so long as it was found in a
concentration of 3 percent or less. Moreover, the writer of
Pyro's brief states on page 2 that he has never known a loading
machine to cause a methane ignition.(FOOTNOTE.7)

Page 16

~1429
Even if Pyro is correct in alleging that only 17 out of 298
methane ignitions between 1971 and 1976 were caused by electrical
arcs, Pyro's statistics show that those 17 ignitions caused five
injuries and 22 deaths. Moreover, even if no loading machine has
ever caused a methane ignition up to the present time, that is no
reason to assume that the ignition hazards observed by the
inspector on the loading machine involved in this case could not
have become the first ignition caused by a loading machine if the
inspector had not ordered all power to be cut off and had not
required action to be taken to reduce the methane concentration
to a legal and safe amount.

 As for Pyro's claim that the methane here involved would

have remained above the location of the ignition hazards observed
by the inspector on the loading machine, the loading machine's
operator testified that he thought the methane concentration was
caused by "these digging arms on the loader" stirring the coal
around and they "pushed gas out of the coal" (Tr. 137). If, as
the loading-machine operator speculated, the methane came out of
the coal on the mine floor which the machine was loading, the
methane, being lighter than air, would necessarily have had to
come in close proximity to the ignition hazards cited by the
inspector on its way to the roof of the mine where Pyro claims it
would harmlessly have remained.

 The above discussion shows that the violation of section

75.503 was extremely serious because it constituted a potential
ignition hazard which could, as the inspector testified (Tr. 47),
have caused a mine explosion or fire. Therefore, I find that a
penalty of $2,000 should be assessed under the criterion of
gravity.

Page 17

~1430
The gravity of the violation of section 75.400 was also
considered to be very serious by the inspector. While it is true,
as Pyro argues in its brief (p. 5), that the coal accumulations
were 300 feet from the loading machine where the methane and
ignition source were observed, the inspector stated that the
loose coal and coal dust accumulations contributed to the
seriousness of having an excessive quantity of methane in the
mine. The inspector testified that there was coal dust with the
loose coal and that if there is an ignition which picks up the
coal dust and places it in suspension, there is a likelihood of a
propagation which "can just rip the mine open" (Tr. 48-49). Also
the loose coal in the room neck in the No. 1 entry was much
closer to the source of the ignition hazard in the No. 2 entry
than the loose coal accumulations cited in the Nos. 5, 6, and 7
entries (Exh. 6).

 The preponderance of the evidence supports a finding that

the loose coal accumulations constituted a serious hazard in the
circumstances described by the inspector. The danger associated
with the loose coal, however, was not as great as the ignition
hazard caused by the violation of section 75.503 discussed above.
Therefore, I find that a penalty of $750 should be assessed under
the criterion of gravity for the violation of section 75.400
alleged in Citation No. 2338839.

Negligence

 The final assessment criterion to be considered is

negligence. The operator of the loading machine testified that he
knew the light on the loading machine was not working before the
inspector found that the cable which supplies power to the light
had been cut off (Tr. 126). While it is true, as noted in Pyro's
brief (p. 6), that the Commission held in Southern Ohio Coal Co.,
4 FMSHRC 1459 (1982), that negligence of a rank and file miner
should not be imputed to the operator, the failure of a light on
a loading machine to work is a malfunction which is clearly
visible to the section foreman who is supposed to make frequent
checks of the face area. Since the loading machine had already
been used to load coal out of one face area before proceeding to
the No. 2 entry where it was cited by the inspector for the
violation of section 75.503 here involved, the section foreman
had plenty of time within which to have observed the lack of a
light on the loading machine. Therefore, the section foreman was
negligent in this instance and his negligence may be imputed to
the operator.

 In such circumstances, I find that the violation of section

75.503 was associated with a high degree of negligence because
the failure of a light to work on a loading

Page 18

~1431
machine being used at the face is a deficiency which is easily
visible to a section foreman and he should have discovered the
permissibility violation and should have had it corrected before
allowing the loading machine to continue working in the face area
where methane is most likely to be released in explosive
quantities. Therefore, a penalty of $1,000 will be assessed under
the criterion of negligence.

 Pyro introduced Exhibits D and E at the hearing for the

purpose of supporting its argument that it had MSHA's permission
to store coal and rock along the ribs and room necks (Tr. 81-84).
Exhibit D is a copy of Pyro's cleanup plan submitted to MSHA.
Exhibit E is a copy of MSHA's response to the filing of the plan.
MSHA's response states that the plan has been received, but that
MSHA does not approve cleanup plans. The first paragraph of the
cleanup plan provides as follows (Exh. D):

     At the close of each production shift, coal and rock
     along each rib will be loaded by a scoop, deposited
     against a concrete stopping in a well rock-dusted
     location. It will be wet down. At the close of the last
     production shift in each 24 hour period, the coal and
     rock shall be loaded on the belt and removed from the
     mine.

 Even if one assumes for the sake of argument that Pyro was

entitled by its cleanup plan to store coal and rock along the
ribs and in room necks during two consecutive production shifts
and then clean it up and remove it on the third shift, the facts
in this case show that the coal had not been removed in
accordance with Pyro's cleanup plan because the inspector wrote
his citation at 9:45 a.m. and the loose coal had not been removed
during the last shift in the 24-hour period as required by Pyro's
cleanup plan. The inspector did not agree at the hearing that
Pyro has permission to store the coal and rock just because it
has filed a cleanup plan containing the language quoted above,
but he said that his response to Pyro's claim that it had
permission to store the coal he had cited as combustible
accumulations was why had they not removed the coal and rock
during the third shift in accordance with their cleanup plan (Tr.
90).

 Pyro's safety manager did not claim to have the right to

allow the coal to accumulate in the quantity and at the time it
was found by the inspector. In fact, he conceded on
cross-examination that the "right side of the run did need
cleaning" (Dep. 30). When he was asked why the coal had been
allowed to accumulate, he stated (Dep. 30):

Page 19

~1432
Well, it's any number of things. We could've had
scoop problems, mechanical problems with our scoop,
or our machine that cleans this coal up, poor
management, just any number of things.

Pyro's safety manager was also asked on cross-examination whether
Pyro has taken the position that it could accumulate coal over
two shifts and not be in violation of section 75.400. He replied
(Dep. 31):

     I don't know they actually made a stand on that, but we
     did get into this kind of problem with this practice,
     yes. We were in a situation where we could be cited, I
     suppose, depending on the Inspector's outlook.

The safety manager stated that Pyro does not now have a raw-coal
contract which allegedly requires it to use the practice of
accumulating coal for two shifts followed by a cleanup on the
third shift. When the safety manager was asked if he would oppose
use of that procedure if another raw-coal contract were to be
obtained, he said that he was not in a position to make that
decision. He said (Dep. 32):

     Oh, I would have my problems with it and talk to
     management about it, but I don't have in my power to
     stop management from doing it.

 The Secretary's brief (p. 10) in this case shows that Pyro

has, indeed, taken the stand that it has the right to accumulate
coal for two shifts and then remove it on the third shift. The
Secretary cites Judge Koutras' decision in Pyro Mining Co., 7
FMSHRC 13 (1985). In that case, Judge Koutras rejected Pyro's
defense claiming that it had a cleanup plan which allowed it to
accumulate coal up to the end of the 24-hour production shift for
removal during the last part of the 24-hour period. In Judge
Koutras' case, Pyro had a slightly better defense than it does in
this case, because there was apparently no testimony in Judge
Koutras' case showing that Pyro had failed to remove the
accumulations during the third shift, as there is in this
proceeding. While Judge Koutras was critical of MSHA's
regulations which require an operator to submit a cleanup plan
but provide for no MSHA oversight or review or approval of the
plan, he stated that he was "constrained to follow the
regulations [ 75.400-2] as promulgated". 7 FMSHRC at 38. Since
the accumulations had been allowed to exist during two mining
cuts for a period of 4 or 5 hours, Judge Koutras found that a
violation of section 75.400 had occurred. 7 FMSHRC at 38.

Page 20

~1433
The citation involved in Judge Koutras' Pyro decision was dated
March 6, 1984, and the one here involved is dated March 23, 1984.
It is obvious that Pyro's management not only ignored the fact
that an MSHA inspector had already cited it for violating section
75.400 under its plan of deliberately accumulating coal during
two shifts for removal on the third shift, but that management
had allowed the condition to become increasingly serious by
failing to remove the accumulations on the third shift in
accordance with its cleanup plan which had been filed with MSHA
for the purpose of supporting its contention that it had
permission to accumulate coal for two shifts and clean the coal
up on the third shift. Judge Koutras found it to be a violation
for Pyro to accumulate coal for 4 or 5 hours during a single
shift. In this case, Pyro had deliberately accumulated coal for
more than 24 hours before it was cited by the inspector as part
of an imminent-danger order.

 In such circumstances, I find that the violation of section

75.400 was associated with a very high degree of negligence and
that a penalty of $2,000 is warranted under the criterion of
negligence.

Conclusions

 I have found above that Pyro is a large operator and that

payment of penalties will not cause it to discontinue in
business. As to the violation of section 75.503, I have assessed
$75 under history of previous violations, $2,000 under gravity,
and $1,000 under negligence, for a total amount of $3,075 which
should be reduced by 20 percent to $2,460 under the criterion of
Pyro's having shown more than an average effort to achieve rapid
compliance. As to the violation of section 75.400, I have
assessed $200 under history of previous violations, $750 under
gravity, and $2,000 under negligence, for a total amount of
$2,950 which should be reduced by 20 percent to $2,360 under the
criterion of Pyro's having shown more than an average effort to
achieve rapid compliance.

DOCKET NO. KENT 84-196

 The proposal for assessment of civil penalty filed in Docket

No. KENT 84-196 seeks assessment of penalties for

Page 21

~1434
an alleged violation of section 75.308 (FOOTNOTE.8) and for another
violation of section 75.400. The inspector issued Citation No.
2338838 in conjunction with imminent-danger Order No. 2338837
which has been discussed above in Docket No. KENT 84-184. MSHA,
however, included Citation No. 2338838 among the violations
alleged in Docket No. KENT 84-196. Therefore, the violation of
section 75.308 alleged in Citation No. 2338838 is being
considered in Docket No. KENT 84-196 despite its total
interrelationship with the facts heretofore discussed in Docket
No. KENT 84-184.

Additional Findings of Fact

 5. The inspector testified that he found it necessary to

cite a violation of section 75.308 after he had entered the No. 2
entry where the loading machine was sitting. The operator of the
loader was standing near the controls on the right side of the
machine which had been loading coal near the face of the No. 2
entry. The inspector walked to the left side of the machine and
made a test for methane at a point about 2 feet from the roof and
4 feet from the rib. The reading indicated the presence of 1.3
percent methane (Tr. 32).(FOOTNOTE.9) The inspector had just had his
methane detector

Page 22

~1435
tested and charged before he left his office to make the
inspection of Pyro's mine and was confident that his reading was
correct (Tr. 29-31). The inspector then moved backward from the
front of the loading machine and took another reading with his
methane detector at a point 10 feet from the rib, 16 inches from
the roof, and about 6 feet from the loader. The second reading
indicated the presence of 2.3 percent methane (Tr. 33). The
inspector made a drawing of the loading machine at its location
in the No. 2 entry and entered the figures "1" and "2" on that
drawing to show where he obtained the methane readings (Exh. 7).

 6. Because of the loose coal accumulations and

permissibility violations described above, the inspector
considered the presence of 2.3 percent methane to be a very
dangerous condition and advised Hughes, Pyro's safety manager,
that he was issuing an imminent-danger order (Tr. 33). Hughes
stated that the methane readings were caused by exploding ammonia
nitrate to produce the coal which the loading machine had been
loading just before the inspector entered the No. 2 entry (Tr.
34). The inspector doubted that his reading was for any gas other
than methane, but took a bottle sample for laboratory analysis
and used a red pencil to make an "S" on the card accompanying the
sample. The red letter "S" was a signal for the laboratory to
take into consideration that the sample required special
attention because the inspector requested that the laboratory
provide a complete analysis of the sample which would show the
presence of anything unusual in the sample (Tr. 41; 43). Exhibit
3 shows the results of the laboratory analysis of the inspector's
bottle sample and indicates that the mine atmosphere contained
.23 percent carbon dioxide, 20.48 percent oxygen, 1.5 percent
methane, .058 percent ethane, and 77.939 percent nitrogen (Tr.
44).

 7. Although the loading machine was not being operated,

power was flowing to the machine through its trailing cable and
turning off the power at the point where the cable entered the
machine could create an arc and cause an explosion if the methane
content in the air continued to rise (Tr. 59). The inspector
asked Hughes to have the power turned off at the power center
outby the face, but Hughes took a methane reading himself and
obtained a reading a few tenths less than the inspector's reading
of 2.3 percent, but Hughes does not recall for certain the exact
percentage registered on his methane detector (Dep. 17). Hughes
then discussed his theory about the presence of ammonia nitrate
during a period lasting about 5 minutes. It was necessary for the
inspector to ask a second time for the power to be turned off at
its source before Hughes directed that the power be disconnected
(Tr. 36; 58). The operator of the loading machine then left the
face area and had the power disconnected by a mechanic (Tr. 145).

Page 23

~1436
8. The violation of section 75.400 involved in Docket No. KENT
84-196 was alleged in Citation No. 2505051 as a part of
imminent-danger Order No. 2505050 which was issued on April 18,
1984, nearly 1 month after issuance of the imminent-danger order
discussed above (Exh. 12). The imminent-danger order in this
instance was issued because the inspector encountered coal dust
and float coal dust extending for a distance of 2,100 feet along
the 2 west conveyor belt. Nine bottom rollers were turning in
coal dust and float coal dust and the dust had to be 8 inches
deep on the mine floor in order to come in contact with the
rollers (Tr. 168; 172; Exh. 13). The accumulations were
associated with an unusual occurrence in that the conveyor belt
had been rockdusted where it passed through the crosscuts, but
the conveyor belt had not been rockdusted along the intervals of
about 50 feet between crosscuts, so that when the inspector
examined the entry in which the conveyor belt was situated, he
saw a checkerboard effect of alternating black and white areas
extending down the length of the belt as far as he could see (Tr.
166). The inspector considered the accumulations to be very
dangerous because the rollers turning in coal dust might become
hot enough from friction to cause a mine fire or an explosion
(Tr. 172; 177).

Citation No. 2338838 3/23/84 75.308 (Exhibit 10)

 The violation alleged in Citation No. 2338838 is based upon

the inspector's having obtained a methane reading of 1.3 percent
on the left side of the loading machine at a point about 2 feet
from the mine's roof and 4 feet from the rib. The inspector moved
backward from the front of the loading machine and obtained a
second methane reading of 2.3 percent at a point 10 feet from the
rib, 16 inches from the roof, and about 6 feet from the loading
machine. The inspector's methane detector had just been checked
for accuracy before he left his office and he was confident that
his readings were correct (Finding No. 5 above). Because of the
loose coal accumulations and permissibility violations discussed
at great length above, the inspector considered a methane
concentration of 2.3 percent to constitute an imminent danger and
he issued the citation of section 75.308 as part of
imminent-danger Order No. 2338837 also previously discussed under
Docket No. KENT 84-184 above.

 Pyro's brief (pp. 5-7) raises quite a few arguments in

support of its contention that a violation of section 75.308 was
not proven. Pyro's brief (p. 5) first notes that the citation
refers to the taking of a bottle sample of air and contends that
the analysis of that air sample revealed only 1.5 percent
methane, instead of the volume of

Page 24

~1437
2.3 percent methane mentioned in the citation. The inspector's
testimony shows quite clearly that his reading of 2.3 percent
methane was revealed by his methane detector. His citation was
written just a short time after he obtained the reading of 2.3
percent methane, whereas the results of the analysis of the
bottle sample were not known until after the bottle sample had
been analyzed by MSHA's laboratory located in Mount Hope, West
Virginia (Tr. 43-44; Exh. 3).

 Section 75.308 is quoted in full in footnote 8 on page 20

above. That section refers to testing for methane and section
75.308-2 provides for such tests to be made with a methane
detector. There is no requirement in the Regulations that a
violation of section 75.308 be proven only by an inspector's
obtaining a bottle sample of the mine atmosphere and waiting
until a laboratory has analyzed the methane content in that air
sample before determining whether or not there has been a
violation of section 75.308. The inspector explained in great
detail all of the procedures which had been utilized to establish
the accuracy of his methane detector before he left the MSHA
office on March 23, 1984, the day he wrote the citation for the
violation of section 75.308 here involved (Tr. 29-30).
Consequently, there is no merit to Pyro's contention that the
reading of 2.3 percent methane obtained by the inspector with his
methane detector was incorrect just because a laboratory analysis
of a bottle sample of air indicated a methane content of only 1.5
percent. Moreover, a violation of section 75.308 may be found to
have occurred if there is a concentration of only 1.5 percent
methane. Therefore, even if one assumes that the inspector's
methane reading of 2.3 percent was in error, the violation would
still exist if Pyro failed to take immediately the steps required
by section 75.308 to reduce the methane concentration to less
than 1 percent.

 Pyro's brief (p. 5) relies on several decisions, such as a

Commission judge's decision in CF & I Steel Corp., 3 FMSHRC 2819
(1981), in which the judge held that no violation of section
75.308 was proven because the operator immediately took the steps
required by section 75.308 to reduce the methane concentration as
soon as the high concentration was found to exist. Pyro argues
that its safety manager in this case took immediate steps of
having the power turned off on all face equipment as soon as it
was determined that a dangerous quantity of methane was found by
the inspector. Consequently, Pyro argues that the inspector
improperly issued Citation No. 2338838 alleging that Pyro had
violated section 75.308.

Page 25

~1438
The inspector testified with respect to his citing Pyro for a
violation of section 75.308, that after he obtained a reading of
2.3 percent methane, he requested the safety manager to have the
power to the loading machine cut off immediately, but that the
safety manager claimed that the inspector's reading of what
appeared to be methane was caused by the ammonia nitrate used by
Pyro to blast coal from the face. The inspector replied that it
was peculiar that Pyro's mine would produce an erroneous methane
reading because that had not occurred at other mines. The
inspector said that he then took a bottle sample of the mine
atmosphere and that he marked a red letter "S" on the card
accompanying the sample to alert the laboratory personnel that
the sample was one which required special attention. The
inspector requested the laboratory to make an analysis of every
element in the bottle, while giving particular attention to
detecting the presence of any gas associated with use of ammonia
nitrate as an explosive. The inspector said that the discussion
with the safety manager took about 5 minutes and that it was then
necessary for him to ask the safety manager a second time to have
all power turned off so that there would not continue to be a
danger of an explosion from the lack of permissibility of the
loading machine which was situated only 6 feet from the place
where the inspector obtained a methane reading of 2.3 percent
(Finding No. 5 above).

 The inspector's testimony supports a finding of a violation

of section 75.308 because Pyro's safety manager did not
immediately have the power to the loading machine turned off as
soon as he was asked to do so by the inspector. Instead of
performing the steps required by section 75.308 to turn off power
and make adjustments to lower the methane concentration, the
safety manager engaged in a 5-minute argument with the inspector
about whether the inspector's methane detector was reading
methane or some residue of ammonia nitrate.

 It is true, as Pyro argues in its brief (p. 5), that the

safety manager testified in his deposition that he took immediate
steps to have the power turned off and that all that was
necessary to reduce the methane concentration in the mine
atmosphere was to have the face area in the No. 2 entry sprayed
with a water hose (Dep. 16; 24). While it is true that the safety
manager claims to have taken immediate steps to reduce the
methane concentration, his detailed testimony pertaining to the
events described by the inspector do not support his claims.

Page 26

~1439
In the first place, the safety manager, during his direct
examination, voluntarily made the very damaging admission that
after he was advised by the inspector that a dangerous quantity
of methane had been detected, the safety manager asked where the
inspector had obtained the high reading, and proceeded to take
some methane readings himself and he said that he found some
readings which were a few tenths less than the reading obtained
by the inspector, but that he could not recall the exact reading
(Dep. 17). The safety manager's action of taking additional
readings after he had been advised of the high readings by the
inspector was a violation of section 75.308 under the
Commission's decision in Mid-Continent Coal and Coke Co., 3
FMSHRC 2502 (1981). In that case, the Commission affirmed a
judge's finding of a violation of section 75.308 in the following
discussion:

       The facts are undisputed. Approaching the face of a
     crosscut, both the inspector and respondent's
     superintendent observed a continuous miner backing away
     from the face with the amber light on its methane
     monitor glowing. The glowing light indicated the
     presence of over 1 percent methane. The superintendent
     proceeded to the face and took two methane readings
     before ordering the continuous miner deenergized.

       We interpret 30 CFR 75.308 and its statutory authority,
     section 303(h)(2) of the Act, to require electric face
     equipment in a working place be deenergized immediately
     when 1 percent or more of methane is detected in such
     working place. After such methane accumulation had been
     detected by the methane monitor here, to continue an
     ignition source while rechecking the monitor's reading
     was a violation of the regulation alleged. The judge is
     affirmed.

3 FMSHRC at 2504.

 Additionally, the safety manager's denial of having debated

the inspector's finding of a high concentration of methane by
asserting a claim that the inspector's methane detector had been
rendered erroneous by Pyro's use of ammonia nitrate as an
explosive is not convincing as his answer to that question shows:

     A. You know, I really, I don't remember. I remember. I
     remember on a[n] occasion, I don't know if it was on
     this section, I do remember talking to him about
     ammonium nitrate. We were

Page 27

~1440
using this Topex Water Gel, and these spotters had been
acting up quite a bit, after, you know, go to a place
right after it shot. And they had been going crazy, acting
up, and I was trying to find out what this was, what was
causing this. I remember talking to Tom [the inspector] on
occasion about the ammonium nitrate. I don't remember, I
don't think it was right here. I wasn't stalling for time
as far as shutting the equipment down. I didn't carry on any
long conversation with him about anything. I don't remember
the ammonium nitrate conversation at this point on this section.

Deposition, p. 19. The safety manager also agreed on
cross-examination that he took no notes pertaining to the
location of equipment or incomplete mining of crosscuts on the
day the citation was issued and took no notes concerning his
conversation with the inspector (Dep. 26; 34). The inspector
would have had no reason to take a bottle sample on March 23,
1984, mark the sample with a special red letter "S", and request
the laboratory personnel to give special attention to detecting
the presence of ammonia nitrate if the safety manager had not
brought up the subject of ammonia nitrate at the time the
inspector asked the safety manager to turn off the power and make
the required adjustments to reduce the concentration of methane
(Tr. 41-44). In such circumstances, I find that the inspector's
testimony is more credible than that of the safety manager and I
find that a violation of section 75.308 occurred because of the
safety manager's having engaged in a 5-minute debate with the
inspector about the accuracy of the methane reading despite the
fact that his own methane detector had shown at least 1.5 percent
methane (Tr. 58; Dep. 17).

 Pyro's brief (p. 6) also claims that the inspector

improperly cited a violation of section 75.308 because that
section refers to "the air at any working place" and that section
75.2(e)(2) defines "working place" as "the area of a coal mine
inby the last open crosscut." I have already shown that a
violation of section 75.503 is not defeated by an argument that
the loading machine was not inby the last open crosscut at the
time it is cited for a violation of section 75.503. It is
somewhat difficult to determine whether Pyro is claiming that the
loading machine was not inby the last open crosscut because it
was sitting in the crosscut, or whether Pyro is arguing that no
violation of section 75.308 was proven because the inspector did
not personally see the loading machine being used inby the last
open crosscut. Regardless of which argument Pyro is making, it is
not a valid argument because no witness denied that

Page 28

~1441
the loading machine had just loaded at least one shuttle car with
coal before it was cited for the permissibility violation. The
loading machine had just backed up in preparation for loading
another shuttle car with coal when the inspector made his methane
readings. A loading machine cannot load coal blasted from the
working face without being in a working place. If that working
place is in the crosscut itself, then the last open crosscut is
either the crosscut in which the loading machine is sitting or it
is the next crosscut outby the place where the loading machine is
sitting (Exhs. 6 and 7).

 In this instance, Pyro is confusing the last open crosscut

with the crosscut in which the loading machine was sitting.
Pyro's safety manager testified that the inspector had correctly
depicted on Exh. 6 the state of completion of the working section
on March 23, 1984 (Dep. 22). Exhibit 6 clearly shows by use of
the letter "L" that the loading machine was sitting in a crosscut
which had not been completed because there was an incomplete
(unblasted) cut of coal remaining in the crosscut between the
Nos. 1 and 2 entries, between the Nos. 3 and 4 entries, between
the Nos. 5 and 6 entries, and between the Nos. 6 and 7 entries. A
crosscut which still has that much virgin coal in it cannot
possibly be designated as the "last open crosscut". Therefore,
the last open crosscut on March 23, 1984, was the one outby the
place where the loading machine was sitting when the inspector
cited it for a violation of section 75.308.

 Since the Commission has already held in Solar Fuel Co., 3

FMSHRC 1384 (1981), that a piece of equipment may be cited for a
violation of section 75.503 so long as it is intended to be used
inby the last open crosscut, and inasmuch as a violation of
section 75.308 does not depend upon the location of equipment so
long as the methane is detected in a working place, I find that
the evidence clearly shows that the necessary prerequisites for
citing violations of both sections 75.503 and 75.308 existed on
March 23, 1984, because a reading of 2.3 percent methane was
obtained by the inspector within 6 feet of the loading machine
which was situated within 15 feet of the face of the No. 2 entry
for the purpose of continuing the loading of a pile of coal which
had recently been blasted from the face of the No. 2 entry (Tr.
33; 129).

 Pyro's brief (p. 7) makes two additional arguments in trying

to show that no violation of section 75.308 was proven. Both
arguments are related to Pyro's contention that it was providing
adequate ventilation to the working place where the violation of
section 75.308 was cited.

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Pyro first claims that it had to do nothing to reduce the methane
concentration below 1 percent other than spray water in the area
in which the high reading had been obtained. The inspector, on
the other hand, claims that it was necessary to erect a curtain
between the Nos. 2 and 3 entries in the crosscut outby the
loading machine in order to direct enough air to the working face
of the No. 2 entry to drive the excess methane from the left side
of the loading machine. The inspector testified that Pyro's
failure to erect a curtain at that point caused most of the air
to pass from the No. 4 entry directly to the No. 1 entry which is
a return entry (Tr. 46).

 Pyro's brief (p. 7) also contends that the Secretary's

counsel incorrectly argues that the testimony of the operator of
the loading machine shows that no curtain had been erected
between the Nos. 2 and 3 entries. Pyro claims, on the contrary,
that the operator of the loading machine testified that the line
curtain was already up and that all he had to do to dilute the
methane concentration was to spray water in the vicinity of the
left side of the loading machine. If Pyro's representative will
read the loader operator's testimony again at pages 156 and 157
of the transcript, he will find that the loader operator's
statement to the effect that the curtain was already up refers to
the line brattice which is required by section 75.302-1 to be
within 10 feet of the working face when the loading machine is
loading coal. The loader operator clearly states on page 157 that
he was referring to the face curtain as being up, whereas the
inspector was "talking about a curtain back" and the loader
operator did not know whether that curtain was up or not before
the inspector found the high methane reading.

 Pyro's entire argument about the fact that it had already

erected a curtain between the Nos. 2 and 3 entries is based on
either a deliberate obfuscation of the facts or upon an
inadvertent misunderstanding of the facts. Even the safety
manager's Exhibit C, which he drew to support his claim that
there was a curtain directing air to the face of the No. 2 entry,
is based on a showing that there was a face curtain beside the
loading machine as required by section 75.302-1. The inspector's
Exhibits 6 and 7, on the other hand, show that a curtain was
needed in the crosscut outby the face curtain to direct air to
the face of the No. 2 entry. The inspector's exhibits and
testimony explain that having a curtain beside the loading
machine did not succeed in keeping the methane concentration
below 1 percent because there was not enough air being directed
into the No. 2 entry at the outby crosscut in order for the line
curtain beside the loading machine to have the desired effect of

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~1443
directing a proper amount of air to the working face so as to
sweep the methane out of the face area.

 Pyro's safety manager conceded on cross-examination that the

inspector had correctly shown on Exhibit 6 the existence of cuts
of coal still standing in the crosscut which the safety manager's
Exhibit C shows to be a completely open crosscut (Dep. 27). The
safety manager drew a diagram of the working section which was in
error because of his failure to take notes as the inspector had
done. Therefore, Pyro is simply arguing unproven facts in
claiming that it had already erected a curtain between the Nos. 2
and 3 entries before the inspector found the reading of 2.3
percent methane. Therefore, I reject all of Pyro's arguments to
the effect that it was fully ventilating the face of the No. 2
entry where the reading of 2.3 percent methane was found by the
inspector.

 Assuming, arguendo, that all Pyro had to do to reduce the

methane concentration to less than 1 percent was to spray water
near the face of the No. 2 entry, the Commission held in
Mid-Continent Coal and Coke Co., 3 FMSHRC 2502, 2503 (1981), that
a ventilation procedure which has to be performed repeatedly to
keep the methane content below 1 percent is not effective and
that it constitutes a violation of section 75.308 to allow
methane repeatedly to exceed 1 percent throughout the working
shift because the intent of section 75.308 is that the operator
will provide enough ventilation to keep the methane level
continuously below 1 percent.

 I have already shown in the discussion above that the safety

manager's testimony does not support Pyro's claim that it
immediately took action to reduce the methane concentration as
soon as it was brought to the safety manager's attention by the
inspector. Pyro also relies upon the testimony of the
loading-machine operator in support of its claim that it
immediately reduced the methane concentration when it was made
aware of it by the inspector. Pyro relies upon a single statement
by the loading-machine operator at transcript page 120. All the
loading-machine operator said there was that when Pyro's safety
manager told him to "knock the power on the machine", he "went
and found a mechanic and told him" that the safety manager wanted
the power knocked. The loading-machine operator's testimony in no
way disputes the inspector's testimony to the effect that a
5-minute debate with the safety manager occurred before the
safety manager finally asked the loading-machine operator to have
the power turned off.

 The lengthy discussion above shows that all of Pyro's

arguments claiming that no violation of section 75.308 occurred
must be rejected as not being supported by the

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preponderance of the evidence. I find that the Secretary proved
that a violation of section 75.308 occurred as alleged by the
inspector in Citation No. 2338838.

Assessment of Penalty

Size and Ability to Pay Penalties

 The findings heretofore made with respect to the size of

Pyro's business and Pyro's ability to pay penalties are equally
applicable for assessment of all penalties and need not be
repeated here.

Good-Faith Effort To Achieve Rapid Compliance

 The Secretary's brief (p. 14) asserts that Pyro failed to

make a good-faith effort to achieve rapid compliance with respect
to the violation of section 75.308, but the Secretary does not
state how Pyro failed to do so. It is possible that the
Secretary's counsel is mixing Pyro's failure to begin reducing
the methane concentration immediately with the question of
whether Pyro made a good-faith effort to achieve rapid compliance
after the violation was cited. If Pyro, immediately upon being
advised of the high methane reading, had taken the steps of
cutting off the power and working on ventilation, there would not
have been a violation of section 75.308 and therefore nothing to
abate. After Pyro's safety manager discontinued his debate with
the inspector as to whether a high concentration of methane had
been detected, Pyro did begin with commendable speed to abate all
of the violations cited by the inspector, including erecting the
curtain between the Nos. 2 and 3 entries so as to sweep out the
methane concentration. Therefore, I believe that Pyro's unusually
rapid effort to reduce the methane concentration applies as to
the violation of section 75.308, just as it did with the previous
violations discussed above, and that any penalty assessed under
the other criteria should be reduced by 20 percent under the
criterion of Pyro's good-faith effort to achieve rapid
compliance.

History of Previous Violations

 Exhibit 1 shows that Pyro has not previously been cited for

a violation of section 75.308. Therefore, no part of the penalty
to be assessed for the violation of section 75.308 should be
assigned under the criterion of history of previous violations.

Page 32

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Negligence

 A violation of section 75.308 can hardly occur without a

finding that an operator is negligent. It was very negligent for
Pyro's safety manager to enter into a debate with the inspector
when the inspector advised him that he was issuing an
imminent-danger order because he had just found a high reading of
methane, along with hazardous permissibility violations on the
loading machine which was situated within 6 feet of the place
where 2.3 percent methane had been detected. The loading-machine
operator was waiting for another shuttle car to appear before
continuing to load coal. Therefore, no great loss of coal
production would have occurred if the safety manager had
immediately directed the power to be turned off to all face
equipment so that efforts could be made to reduce the high
reading found by the inspector (Finding No. 7 above).

 Additionally, the preponderance of the evidence shows that

Pyro had failed to erect a curtain between the Nos. 2 and 3
entries so that an adequate amount of air could be directed to
the face of the No. 2 entry to sweep out the high concentration
of methane found by the inspector on the left side of the loading
machine (Tr. 45-46).

 There are some facts to be considered in Pyro's favor. The

loading-machine operator testified that he took a reading for
methane before he started loading and that he did not detect any
methane (Tr. 119). He said that only 2 minutes elapsed between
the time he made his check for methane and found none and the
time the inspector made his reading and found a significant
amount of methane (Tr. 124). The inspector agreed on
cross-examination that it would have been possible for the
loading-machine operator to check for methane and not find any
and thereafter use the loading machine to load a shuttle car of
coal and make another check for methane and find a significant
amount (Tr. 61).

 The loading-machine operator testified that Pyro makes a lot

of time studies to determine how long it takes to load a shuttle
car with coal and that it takes only 16 seconds (Tr. 126). There
is, of course, a methane monitor on the loading machine which is
supposed to show an amber light when the machine encounters as
much as 1 percent of methane. The monitor did not show any
methane in this instance. While the loading-machine operator did
not push the methane monitor's check button on the loader just
prior to loading coal in the No. 2 entry, he believed that the
monitor was operative because it has a white light which
indicates that it is receiving power. It is possible for the
monitor to be energized and still fail to detect methane, but the
loading-machine operator did not think it was out of operation on

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~1446
March 23, 1984, when the violation was cited, because he did push
the button to determine if the monitor was operating after the
inspector had left and it did work, so the monitor should have
detected the presence of methane before the inspector found it
(Tr. 154; Dep. 20).

 The above review of the pertinent evidence pertaining to

Pyro's negligence with respect to the violation of section 75.308
shows that the violation was associated with a relatively low
degree of negligence because Pyro's safety manager had previously
become aware of some erratic readings by methane detectors when
Topex Water Gel had been used as an explosive (Dep. 19). While
that difficulty does not justify his reluctance to accept the
inspector's statement that a 2.3 percent methane reading had been
found, it does show that the safety manager had a reason for
entering into a discussion with the inspector. In such
circumstances, I find that a penalty of $200 should be assessed
under the criterion of negligence.

Gravity

 The seriousness of the violation of section 75.308 is equal

to the hazards which I previously discussed in assessing a
penalty for the violation of section 75.503 because it was the
inspector's finding of a concentration of 2.3 percent methane
within 6 feet of a loading machine having permissibility
violations which caused the inspector to issue imminent-danger
Order No. 2338837 which has already been discussed under the
heading of Docket No. KENT 84-184. I found above that the
violation of section 75.503 was extremely hazardous and assessed
a penalty of $2,000 under the criterion of gravity. Since the
methane concentration contributed to the hazards of an explosion
or fire and since the violation of section 75.308 was issued as a
part of the imminent-danger order, I believe that an identical
finding of extreme danger is warranted for the violation of
section 75.308 and that a penalty of $2,000 should be assessed
under the criterion of gravity.

Conclusions

 Taking into consideration that Pyro is a large operator with

ability to pay penalties, that no amount should be assessed under
Pyro's history of previous violations, that $200 should be
assessed under the criterion of negligence, and that $2,000
should be assessed under the criterion of gravity, for a total
penalty of $2,200, and that the penalty should be reduced by 20
percent under the criterion of Pyro's

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good-faith effort to achieve rapid compliance, I find that a
penalty of $1,760 should be assessed for the violation of section
75.308 alleged in Citation No. 2338838.

Citation No. 2505051 4/18/84 75.400 (Exhibit 13)

 Citation No. 2505051, alleging a violation of section

75.400, was issued as a part of imminent-danger Order No.
2505050, but the factual situation was entirely unrelated to the
violations heretofore discussed in this proceeding. In this
instance, the hazard which caused the inspector to issue the
imminent-danger order was the possibility of a fire or explosion
because of the inspector's having found loose coal, coal dust,
and float coal dust along the entire 2,100-foot length of a
conveyor belt, except at places where the conveyor belt passed
through crosscuts where the belt entry had been rockdusted. The
inspector found that nine bottom belt rollers along the belt were
turning in coal dust and he stated that the coal dust had to be 8
inches deep on the mine floor in order for the dust to come into
contact with the rollers (Finding No. 8 above).

 Pyro did not present any evidence to controvert the

inspector's testimony, but in its brief (pp. 6 and 8), Pyro first
alleges that the inspector testified that he could not say that
the operator should have known about the condition and failed to
do anything about it (Tr. 182). Then Pyro refers to the
Secretary's brief (p. 9) and claims that counsel for the
Secretary there stated that the inspector's testimony does not
seem credible. Pyro's brief (p. 8) then states that the
Secretary's counsel is apparently "doubting the credibility of
his own witness".

 The above allegations in Pyro's brief are based on a

question asked during Pyro's cross-examination of the inspector.
Before one can understand the significance of Pyro's question and
the inspector's answer to the question, it is necessary to
provide some explanatory information. Inspectors write citations
and orders on MSHA Form 7000-3. That form has a "Section III" at
the bottom and in that portion of the form, inspectors check
"blocks" to indicate their evaluation of the six assessment
criteria for the purpose of assisting MSHA in proposing civil
penalties. The portion of the Act providing for issuance of
imminent-danger orders is section 107(a) and that section also
provides that an inspector may issue a citation under section
104(a) for a violation of a mandatory safety standard if he
believes that a violation is associated with the imminent danger
which he is describing in his order. Since the order is not, by
itself, alleging a violation, the inspector is not required to
fill in the blocks in Section III of a Form

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7000-3 used for issuing an imminent-danger order because no civil
penalty has to be proposed for the issuance of an imminent-danger
order by itself, but a civil penalty does have to be proposed for
any violation alleged in a citation which is issued in
conjunction with the imminent-danger order.

 In this instance, the inspector had started to fill in the

blocks in Section III of his imminent-danger order and had
checked the first item under Section III which pertains to
negligence. In doing so, he checked the "D" block to indicate
that he thought "high" negligence was involved, but then the
inspector recalled that he did not need to fill out Section III
on a Form 7000-3 which is being used to issue an imminent-danger
order and the inspector did not check any more of the blocks
under Section III on the imminent-danger order, but he filled out
all pertinent blocks under Section III on the citation issued in
conjunction with the order because he knew that a civil penalty
would have to be proposed with respect to the violation of
section 75.400 alleged in the citation. When the inspector filled
out Section III of the citation, however, he checked the "C"
block under negligence to indicate "moderate" negligence, as
opposed to the "high" negligence which he had checked under
Section III of the order.

 When Pyro's representative asked the inspector on

cross-examination why he had rated Pyro's negligence on the
citation as being less than he had rated negligence on the order,
the following colloquy occurred (Tr. 182):

     A Well, I've got to follow directions, or instructions,
     and when you mark "high", then it can't be a 104(a),
     it's got to be a 104(d). That means you knew, or should
     have known, and didn't care nothing about it.

     Q Well, in the coal mines--

     A And I couldn't say that.

     Q Sir?

     A I couldn't say that.

 I believe that Pyro has misinterpreted the inspector's

statement that he "couldn't say that". The inspector did not mean
that the evidence would not support the findings which are
required to be made before an inspector can issue an
unwarrantable-failure citation under section 104(d) of the Act,
but that he could not designate the violation as unwarrantable
failure and still issue it in conjunction with an imminent-danger
order because an inspector cannot issue an

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unwarrantable-failure citation under section 104(d) of the Act
unless he first finds that the violation did not cause an
imminent danger. Since the inspector had already concluded that
the nine bottom rollers turning in loose coal dust accumulations
constituted an imminent danger, he was required to issue a
citation under section 104(a) to allege a violation of section
75.400 and he had been instructed by MSHA that if he checked
"high" negligence in Section III of a citation, he would be
required to issue the citation under the unwarrantable-failure
provisions of section 104(d), and that could not be done at the
same time he was issuing an imminent-danger order.

 Pyro is also misinterpreting the Secretary's brief in

claiming that the brief indicates that the Secretary's counsel is
"doubting the credibility of his own witness". The Secretary's
brief (p. 9) referred to the answer filed by Pyro to the
Secretary's proposal for assessment of civil penalty. In that
answer filed in Docket No. KENT 84-196, Pyro stated that the belt
examiner did not report any accumulations of loose coal and coal
dust on the day the citation was issued. Therefore, when counsel
for the Secretary stated in his brief (p. 9) that Pyro's answer
(denying the existence of accumulations because its belt examiner
did not report those accumulations) "does not seem credible", he
was doubting the credibility of Pyro's belt examiner, rather than
the credibility of the inspector. Pyro did not present its belt
examiner as a witness in this proceeding. Consequently, I have no
way to evaluate the credibility of his failure to report the
accumulations cited by the inspector on April 18, 1984.

 The inspector's testimony, as summarized in Finding No. 8

above, supports a finding, and I so find, that a violation of
section 75.400 occurred.

Assessment of a Penalty

Good-Faith Effort To Achieve Rapid Compliance

 The inspector testified that after he issued the

imminent-danger order and citation for the violation of section
75.400 here involved, that the superintendent of Pyro's mine
personally ordered everyone on the section to work on cleaning up
the belt entry and that there was so much coal dust and loose
coal along the belt that the belt had to be advanced periodically
to make room on the belt for depositing the coal resulting from
shoveling along the belt. The inspector had planned to leave the
mine after he wrote the order and return the next day to
terminate the order after the coal had been cleaned up, but the
miners cleaned up the coal very rapidly and then began applying
rock dust in the conveyor-belt entry

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by using two rock dusters, beginning simultaneously from each end
of the belt, so as to apply rock dust as fast as possible. The
inspector said that they did such a good job, that he stayed at
the mine so that he could terminate the order as soon as they had
finished cleaning up and rockdusting (Tr. 171; 176-177).

 In view of the outstanding effort made by Pyro to achieve

rapid compliance, I find that a reduction of 30 percent of the
penalty assessed under the other criteria should be made for the
violation of section 75.400.

History of Previous Violations

 Exhibit 11 shows that Pyro has a history of 40 previous

violations of section 75.400 from February 8, 1983, to and
including March 27, 1984. Eleven of those 40 violations occurred
during the 3 months preceding the month in which the violation of
section 75.400 here under consideration occurred. In view of that
very adverse history of previous violations of section 75.400, I
find that an amount of $400 should be assigned under the
criterion of history of previous violations for the violation of
section 75.400 alleged in Citation No. 2505051.

Negligence

 I have already rejected the claim in Pyro's brief (p. 8) to

the effect that the inspector could not say that the operator was
aware of the loose coal and coal dust accumulations in the belt
entry. Section 75.303 requires that belt conveyors on which coal
is carried be examined after each coal-producing shift has begun.
Therefore, Pyro's section foreman should have been aware of the
loose coal and coal dust accumulations which extended for the
entire length of the conveyor belt for a distance of 2,100 feet.
The section foreman's negligence in failing to do anything about
the accumulations until they were found by the inspector may be
imputed to the operator. Assuming, arguendo, as Pyro alleges,
that its belt examiner failed to report the existence of coal
accumulations on the day Citation No. 2505051 was issued, the
former Board of Mine Operations Appeals held in The Valley Camp
Coal Co., 3 IBMA 463 (1974), that a coal company may not rely
upon a preshift examiner's report to exculpate itself from the
high degree of care imposed upon it by the Act.

 The section foreman should have been able to see that the

conveyor-belt entry had not been rock dusted or cleaned, except
at crosscuts, just as the inspector did when he looked down the
belt entry. I find that the violation of section 75.400 was
associated with a high degree of negligence and that a penalty of
$500 should be assessed under the criterion of negligence.

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Gravity

 The inspector considered the loose coal, coal dust, and

float coal dust along the entire length of the belt conveyor to
be hazardous enough to warrant issuance of an imminent-danger
order because he believed that the friction of nine bottom
rollers turning in float coal dust might cause a mine fire (Tr.
173). He said that there was "just black float dust all the way
down the belt" except at the crosscuts where rock dust had been
applied (Tr. 172; 177).

 I assessed a penalty of $750 under the criterion of gravity

for the violation of section 75.400 previously considered under
Docket No. KENT 84-184 above. In that instance, most of the loose
coal and coal dust accumulations were located about 300 feet from
the ignition hazard. In this instance, the rollers turning in
float coal dust were located at intervals along the conveyor belt
and therefore constituted a more immediate threat to causing a
fire than the violation previously considered. Therefore, I
believe that the instant violation of section 75.400 constituted
a greater hazard than the previous violation of section 75.400.
Consequently, I find that a penalty of $1,500 should be assessed
under the criterion of gravity.

Conclusions

 In view of the fact that Pyro is a large operator with

ability to pay penalties, that a penalty of $400 should be
assessed under the criterion of history of previous violations,
that $500 should be assessed under the criterion of negligence,
that $1,500 should be assessed under the criterion of gravity,
for a total penalty of $2,400, and that the penalty should be
reduced by 30 percent under the criterion of Pyro's outstanding
effort to achieve rapid compliance, I find that a penalty of
$1,680 should be assessed for the violation of section 75.400
alleged in Citation No. 2505051.

SETTLEMENT PROPOSED IN DOCKET NO. KENT 84-238

 The proposal for assessment of civil penalty in Docket No.

KENT 84-238 seeks to have penalties assessed for violations of
sections 75.523-1, 75.400, and 75.807. All of the citations
involved were written in June 1984 under section 104(a) of the
Act and do not involve hazardous circumstances such as those
heretofore considered in the other two contested cases involved
in this consolidated proceeding. After the parties had presented
evidence with respect to the issues raised in Docket Nos. KENT
84-184 and KENT 84-196, they requested that I approve a
settlement agreement under which respondent would pay reduced
penalties totaling $295 instead of penalties totaling $344
proposed by MSHA.

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It has been made clear in the preceding portion of this decision
that civil penalties have to be assessed pursuant to the six
criteria listed in section 110(i) of the Act. The parties'
settlement agreement shows that they agree with MSHA's evaluation
of three of the assessment criteria, namely, that payment of
civil penalties will not cause Pyro to discontinue in business,
that Pyro is a large operator, and that Pyro demonstrated a
good-faith effort to achieve rapid compliance after the
violations were cited. A brief discussion of the remaining three
criteria of negligence, gravity, and history of previous
violations is required in order to determine whether the parties'
settlement proposal should be approved.

 The aforementioned violation of section 75.523-1 was alleged

in Citation No. 2505113 which states that the deenergization bar
on a roof-bolting machine would not operate when tested by
striking the lever. Section 75.523-1 requires that self-propelled
electric face equipment be provided with a device that will
quickly deenergize the tramming motor of the equipment in the
event of an emergency. MSHA generally proposes civil penalties
pursuant to the assessment formula described in 30 C.F.R.
100.3. The usual procedures were followed in Docket No. KENT
84-238 and all of the civil penalties proposed by MSHA were
derived by utilizing the civil penalty formula described in
section 100.3. An appropriate amount was allocated under the
criteria of the size of Pyro's business and Pyro's having made a
good-faith effort to achieve compliance after the violations were
cited. There was no need to reduce the penalties under the
criterion of whether payment of penalties would cause Pyro to
discontinue in business because Pyro has stipulated that payment
of penalties will not adversely affect its ability to continue in
business.

 MSHA did not assess any portion of the penalties proposed in

this docket under the criterion of history of previous violations
because application of the principles described in section
100.3(c) of MSHA's assessment formula did not require assignment
of any penalty points under that criterion. Normally, when a
judge is considering a settlement proposal, he does not have the
computer printout listing previous violations which is available
in this consolidated proceeding. Consequently, the judge is
generally limited to an examination of MSHA's penalty formula to
determine whether it has been accurately applied in a given case.
In this proceeding, counsel for MSHA has provided me with
Exhibits 1 and 11 which list previous violations and show that
Pyro has been assessed a penalty for a single previous violation
of section 75.523-1. That violation occurred over a year prior to
the violation alleged in Citation No. 2505113. Consequently, I I
find that application of section 100.3(c) of MSHA's formula

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~1453
appropriately resulted in assignment of zero penalty points for
the violation of section 75.523-1 under the criterion of history
of previous violations.

 MSHA considered that the violation of section 75.523-1 was

associated with a low degree of negligence and that the gravity
of the violation was moderate because any injury resulting from
the failure of the panic bar to operate would probably have
resulted in lost workdays for a single person. Under the parties'
settlement agreement, Pyro has agreed to pay the full penalty of
$68 proposed by MSHA. I find that the penalty was reasonably
determined under MSHA's assessment formula and that Pyro's
agreement to pay the penalty in full should be approved.

 The aforementioned violation of section 75.400 was alleged

in Citation No. 2505114 and stated that loose coal and coal dust
and float coal dust had been permitted to accumulate around the
power center and in all cuts across the unit and in some room
necks, but the citation does not state how deep the coal
accumulations were or attempt to give an estimate in feet as to
the extent of the accumulations. While absence of those
measurements does not defeat a finding that the violation
occurred (Old Ben Coal Co., 2 FMSHRC 2806 (1980)), measurements
do assist in evaluating both negligence and gravity. MSHA
considered the violation to be associated with moderate
negligence and to be somewhat serious because any injury
resulting from the violation would be likely to cause lost
workdays for up to 12 miners. MSHA proposed a penalty of $178 for
the violation which Pyro has agreed to pay in full.

 As was noted above in discussing the violation of section

75.523-1, application of section 100.3(c) of MSHA's penalty
formula in this proceeding results in assignment of zero penalty
points for the violation of section 75.400 under the criterion of
history of previous violations. The penalties which I have
previously assessed under the criterion of history of previous
violations for the contested violations involved in this
consolidated proceeding resulted in assignment of up to $400
because of Pyro's unfavorable history of previous violations of
section 75.400. I have noted in approving other settlement
proposals that section 100.3(c) of MSHA's penalty formula does
not, in some cases, give adequate consideration of the criterion
of history of previous violations because it is based on a
formula which merely provides for calculating a factor of
seriousness based on the total number of violations which are
cited by inspectors depending upon the number of days they have
made inspections at a given operator's mine.

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If this had not been a consolidated proceeding, I would not have
had in the record a computer printout, like Exhibit 1 in this
proceeding, to provide the facts showing that Pyro has a history
of an excessive number of violations of section 75.400. Since I
have emphasized Pyro's unfavorable history of previous violations
in this proceeding by having assessed some substantial amounts
under the criterion of history of previous violations, I believe
that it is possible to approve the parties' settlement under
which Pyro has agreed to pay the full penalty of $178 proposed by
MSHA for this violation of section 75.400 because the other two
penalties assessed for violations of section 75.400 should have
the deterrent effect of impressing upon Pyro's management the
importance of increasing its efforts to avoid further repetitious
violations of section 75.400.

 The last violation to be considered is the aforementioned

violation of section 75.807 alleged in Citation No. 2338419 which
states that a high-voltage cable was not guarded at a substation
where miners are required to travel under the cable to get to the
breakers on the substation. MSHA considered the violation to have
been associated with moderate negligence and gravity because any
injury which might have occurred would have been likely to cause
lost workdays for one person and proposed a penalty of $98. Pyro
has agreed to pay a reduced penalty in this instance of $49.

 Exhibit 11 shows that Pyro has been assessed penalties for

four previous violations of section 75.807, but three of those,
including the most recent one, were not considered to be serious
enough to be designated as significant and substantial by the
inspector who wrote the citations. I would be inclined to assess
at least $20 under the criterion of history of previous
violations in this instance if it were not for the fact that the
parties' settlement agreement is based on some extenuating
circumstances which indicate that some doubt exists as to whether
the violation actually occurred.

 Section 75.807 provides, in pertinent part, that underground

high-voltage cables shall be "guarded where men regularly work or
pass under them." The parties agreed to the reduction because the
citation is based on a miner's statement to an inspector, rather
than on an observation made by the inspector himself. Pyro
contends that the violation was cited at a place where miners do
not regularly travel or pass. Counsel for MSHA stated that there
appears to be merit to Pyro's contention and that a reduction in
the proposed penalty is warranted in such mitigating
circumstances (Tr. 189). I find that the parties have given a
satisfactory reason for reducing the proposed penalty in this
instance to $49.

Page 42

~1455
For the aforesaid reasons, the parties' request for approval of
their settlement agreement should be granted as hereinafter
ordered.

WHEREFORE, it is ordered:

 (A) The motion filed on September 3, 1985, by counsel for

the Secretary of Labor to strike portions of Pyro Mining
Company's brief is denied for the reasons hereinbefore given.

 (B) The parties' motion for approval of settlement with

respect to the penalties proposed by MSHA in Docket No. KENT
84-238 is granted and the settlement agreement is approved.

 (C) Pursuant to the parties' settlement agreement, Pyro

Mining Company shall, within 30 days from the date of this
decision, pay civil penalties totaling $295.00 which are
allocated to the respective alleged violations as follows:

Citation No. 2505113   6/1/84 75.523-1         $ 68.00
Citation No. 2505114   6/1/84 75.400            178.00
Citation No. 2338419   6/26/84 75.807            49.00

Total Settlement Penalties in Docket No.
        KENT 84-238                             $295.00

 (D) Pyro Mining Company shall, within 30 days from the date

of this decision, pay civil penalties totaling $8,260.00 for the
violations cited by the inspector in Docket Nos. KENT 84-184 and
KENT 84-196 which are allocated to the respective violations as
follows:

                     Docket No. KENT 84-184

 Citation No. 2338839 3/23/84   75.503        $2,460.00
 Citation No. 2338840 3/23/84   75.400         2,360.00

 Total Penalties in Docket No.KENT 84-184     $4,820.00

                     Docket No. KENT 84-196

 Citation No. 2338838 3/23/84   75.308        $1,760.00
 Citation No. 2505051 4/18/84   75.400         1,680.00

 Total Penalties in Docket No. KENT 84-196    $3,440.00
 Total Penalties in Contested Dockets in
                         This Proceeding      $8,260.00



                                Richard C. Steffey
                                Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE:-

Page 43

~Footnote_one

1 Section 104(a) provides in pertinent part:

      If, upon inspection or investigation, the Secretary or

his authorized representative believes that an operator of a coal
or other mine subject to this Act has violated this Act, or any
mandatory health or safety standard, rule, order, or regulation
promulgated pursuant to this Act, he shall, with reasonable
promptness, issue a citation to the operator. * * *

~Footnote_two

2 Section 107(a) provides:

      If, upon any inspection or investigation of a coal or

other mine which is subject to this Act, an authorized
representative of the Secretary finds that an imminent danger
exists, such representative shall determine the extent of the
area of such mine throughout which the danger exists, and issue
an order requiring the operator of such mine to cause all
persons, except those referred to in section 104(c), to be
withdrawn from, and to be prohibited from entering, such area
until an authorized representative of the Secretary determines
that such imminent danger and the conditions or practices which
caused such imminent danger no longer exists. The issuance of an
order under this subsection shall not preclude the issuance of a
citation under section 104 or the proposing of a penalty under
section 110.

~Footnote_three

 3 Section 75.503 provides that "[t]he operator of each coal

mine shall maintain in permissible condition all electric face
equipment required by 75.500, 75.501, 75.504 to be permissible
which is taken into or used inby the last open crosscut of any
such mine."

~Footnote_four

 4 Section 75.400 provides "[c]oal dust, including float coal

dust deposited on rock-dusted surfaces, loose coal, and other
combustible materials, shall be cleaned up and not be permitted
to accumulate in active workings, or on electric equipment
therein."

~Footnote_five

 5 In Consolidation Coal Co., 6 FMSHRC 189 (1984), the

Commission held that an inspector may properly designate a
violation cited pursuant to section 104(a) of the Act as being
"significant and substantial" as that term is used in section
104(d)(1) of the Act, that is, that the violation is of such
nature that it could significantly and substantially contribute
to the cause and effect of a mine safety or health hazard.

~Footnote_six

Page 44

 6 Reprinted in LESISLATIVE HISTORY OF THE FEDERAL MINE

SAFETY AND HEALTH ACT OF 1977, at 631 (1978).

~Footnote_seven

 7 Pyro's representative in this proceeding is not a lawyer,

but he has participated in numerous hearings before the
Commission's judges. He should be reminded that the purpose of a
hearing is to allow the parties to present evidence which can be
the subject of cross-examination or presentation of rebuttal
evidence by the opposing party. It is especially objectionable
for him to testify in his brief as to facts which the Secretary's
counsel is precluded from the right of cross-examination and
concerning which the judge has no way to seek clarification. I
could, of course, strike the portions of Pyro's brief which are
based on facts and exhibits which were not introduced or even
discussed at the hearing. I am not doing so because they are not
sufficiently meritorious, when considered, to affect the outcome
of this case. After I had drafted this portion of the decision,
the Secretary's counsel filed on September 3, 1985, a motion to
strike the materials discussed above. The motion to strike is
hereinafter denied for the reason stated above.

~Footnote_eight

8 Section 75.308 provides:

      If at any time the air at any working place, when

tested at a point not less than 12 inches from the roof, face, or
rib, contains 1.0 volume per centum or more of methane, changes
or adjustments shall be made at once in the ventilation in such
mine so that such air shall contain less than 1.0 volume per
centum of methane. While such changes or adjustments are underway
and until they have been achieved, power to electric face
equipment located in such place shall be cut off, no other work
shall be permitted in such place, and due precautions shall be
carried out under the direction of the operator or his agent so
as not to endanger other areas of the mine. If at any time such
air contains 1.5 volume per centum or more of methane, all
persons, except those referred to in section 104(d) of the Act,
shall be withdrawn from the area of the mine endangered thereby
to a safe area, and all electric power shall be cut off from the
endangered area of the mine, until the air in such working place
shall contain less than 1.0 volume per centum of methane.

~Footnote_nine

 9 Section 75.308 provides for methane tests to be made no

closer to the roof than 1 foot. Pyro's brief (p. 2) incorrectly
alleges that the inspector violated section 75.308 by taking the
methane reading "as close to the roof as he could." The inspector
was asked if he took the reading as close to the roof as he
could, but his answer was that he "got as close" to the "last row
of bolts" as he could. The inspector had already stated that he
took the reading 2 feet from the roof (Tr. 32).

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On this page

Decision type

ALJ decision

Dockets

KENT 84-184, KENT 84-196, KENT 84-238

Decided

September 25, 1985

Presiding judge

Richard C. Steffey

Outcome

Mixed result

Precedential status

Final order, not precedent

Checked against source

2026-08-27

Cited standards

30 C.F.R. § 75.400 30 C.F.R. § 75.503 30 C.F.R. § 75.308 30 C.F.R. § 75.523-1 30 C.F.R. § 75.807 30 C.F.R. § 75.2(g)(2) 30 C.F.R. § 100.3 30 U.S.C. § 814(a) 30 U.S.C. § 814(d)(1) 30 U.S.C. § 817(a) 30 U.S.C. § 820(i)

Official source

Read the official release (fmshrc.gov)

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