Secretary of Labor v. Green River Coal Co., Inc.

Plain-English summary

Green River operated the No. 9 underground coal mine in Kentucky, which employed about 200 miners and produced about one million tons of coal annually. The case involved inadequate ventilation that contributed to a methane explosion in which a loader operator suffered first- and second-degree burns, three unsafe canopy conditions on electric face equipment, and four nonpermissible pumps used inby the last open crosscut. Judge James A. Broderick found all six violations established and rejected Green River's challenge to the later correction of one order's cited standard. He found the violations serious and caused by negligence, and affirmed civil penalties totaling $7,000.

Decision snapshot

• Governing provisions: 30 C.F.R. § 75.302-1, 30 C.F.R. § 75.301-1, 30 C.F.R. § 75.1710, 30 C.F.R. § 75.503, and 30 U.S.C. § 820(i)
• Outcome: Three citations and three orders were affirmed, with civil penalties totaling $7,000.
• Key point: A later correction of the cited standard did not invalidate the order where the operator knew the condition being charged and was not misled.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. KENT 89-19
PETITIONER A.C. No. 15-13469-03687

      v.                             Docket No. KENT 89-76
                                     A.C. No. 15-13469-03693

GREEN RIVER COAL CO., INC.,
RESPONDENT

                             DECISION

Appearances: Joseph B. Luckett, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Secretary of Labor (Secretary);
B. R. Paxton, Esq., Paxton & Kusch, Central City,
Kentucky for Green River Coal Co., Inc. (Green River).

Before: Judge Broderick

STATEMENT OF THE CASE

 The Secretary seeks civil penalties for six alleged

violations of mandatory safety standards contained in the above
dockets. The alleged violations involve the same mine and were
consolidated for the purposes of hearing and decision. Pursuant
to notice, the consolidated cases were heard in Owensboro,
Kentucky on June 7, 1989. Lewis Stanley, James E. Ranks, Michael
V. Moore, and Bobby Clark testified for the Secretary. Jessie W.
Campbell and Mike McGregor testified for Green River. Both
parties filed post hearing briefs limited to the legal question
whether order No. 3227686 was properly modified after its
termination. I have considered the entire record and the
contentions of the parties in making this decision.

FINDINGS OF FACT

 FINDINGS COMMON TO ALL VIOLATIONS

 1. Green River is the owner and operator of an underground

coal mine in Hopkins County, Kentucky known as the No. 9 Mine.

 2. Green River employs approximately 200 miners, and

produces approximately one million tons of coal annually.

 3. The subject mine liberates in excess of one million cubic feet

of methane in a 24 hour period.

 4. During the 24 month period from June 23, 1986 to June 22,

1988, Green River had 1,059 paid violations of mandatory
standards. Of these, 80 were violations of 30 C.F.R. 75.301, 13
were violations of 30 C.F.R. 75.302, 8 were violations of 30
C.F.R. 75.1710, and 73 were violations of 30 C.F.R. 75.503.
This is a substantial history of prior violations, and penalties
otherwise appropriate will be increased because of it.

 5. All of the violations charged in these proceedings were

abated promptly in good faith.

CITATIONS 3228886 AND 3228887

 An explosion occurred in the subject mine at about 10:30

a.m., on June 23, 1988, at the crosscut right off the No. 2 entry
in the 003 section, while coal was being loaded. The ignition was
of short duration and self-extinguishing. It resulted in first
and second degree burns to the loader operator.

 When the Federal mine inspector arrived at the scene at

about noon, he discovered that the line curtain for the crosscut
was installed 22 feet from the toe of the coal. The section
foreman was present. He testified at the hearing that a line
curtain had been installed about 7 or 8 feet from the coal face
but apparently had been removed prior to the explosion.

 The mine has a history of methane liberation and has

experienced prior ignitions or explosions at the face. Many
citations for ventilation violations had been issued to the mine.
Methane was found at the site of the explosion ranging from 1.6
to 2 percent.

 The approved ventilation plan for the subject mine requires

that in working faces there shall be a minimum of 3000 cubic feet
of air in each working face where coal is being cut, mined or
loaded.

 The inspector checked the air flow at about 12:15 p.m. on

June 23, 1989, and found only 1800 cubic feet a minute of air
reaching the end of the line curtain in cross cut right off the
No. 2 entry in 003 section.

 The inspector issued a section 107(a) imminent danger

closure order and two section 104(a) citations, charging
violations of 30 C.F.R. 75.302-1 and 75.301-1.

 The order and the citations were terminated the same day they

were issued, when a line curtain was installed to the toe of the
coal, the air increased to 3825 cubic feet a minute, and the
methane reduced to .2 percent.

CITATION 3228988 AND ORDERS 3228563 AND 3228564

 The coal seam height in the subject mine varies from 54

inches to about 60 inches. Therefore it has been required since
January 1, 1975, to have substantially constructed canopies or
cabs on all self propelled electric face equipment employed in
active workings.

 The subject mine has a generally poor roof condition. It has

had 88 reported roof falls.

 On March 18, 1988, a Federal coal mine inspector saw a

cutting machine being operated without a canopy over the
operator. The canopy was loose--the bolts holding it were backed
off and the hudraulic mounting alignment brackets were broken
off. The machine operator stated that he did not use the canopy
because of the danger that it would fall on him. In the
inspector's judgment, the condition had existed for a
considerable period of time--certainly for more than one shift.
The roof in the area was in good condition.

  The inspector issued a section 107(a) imminent danger

closure order and a section 104(a) citation (3228988) charging a
violation of 30 C.F.R. 1710. He had issued another citation for
a cutting machine without a canopy only a short time prior to
this.

 The citation was terminated the same day when the bolts on

the canopy were tightened, the brackets were welded back on, and
the canopy positioned over the operator.

 On August 22, 1988, a Federal mine inspector observed a

loading machine being operated at or near the last open crosscut,
with its canopy swung around over the tram motor. It was not over
the operator of the loader. The pin which held it from swinging
away from the operator had been removed. No roof problems were
noted in the area at the time. The inspector issued a section
104(d)(1) order at 9:40 a.m., charging a violation of 30 C.F.R.
75.1710. The order was terminated at 10:15 a.m. the same day when
the canopy was moved back over the operator, and the pin
replaced.

 At 10:25 a.m. the same day, the same inspector noticed a

cutting machine in the No. 5 entry of the No. 5 unit, on which the canopy was swung away from the operator and positioned over
the wheel of the cutter. Order 3228563 was issued charging a
violation of 30 C.F.R. 75.1710. The order was terminated at
about 11:00 a.m. the same day when the canopy was placed over the
cutter operator and the pin put in place.

 Respondent has regular safety meetings with its employees,

and has instructed them of the requirements for maintaining
canopies on electric face equipment when operating inby the last
open crosscut.

ORDER 3227686

 On August 12, 1988, a Federal coal mine inspector was in the

No. 3 Unit of the subject mine when the power was shut off
because of a ventilation problem. He noticed four 110 volt pumps
pumping water inby the last open break. These were nonpermissible
pumps, and were pumping water to a 480 volt permissible pump.
Coal was being produced until the power was shut off. The highest
methane reading in the area was .4%. The inspector issued a
section 104(d)(1) order (3227686) charging a violation of 30
C.F.R. 75.507. A citation had been isued about two months
previously, and an order about six weeks previously for
essentially the same conditions. The order was terminated at
10:30 a.m. the same day when the pumps were removed outby the
last open crosscut.

 The order was modified on April 24, 1989, to correct the

standard allegedly violated from 75.507 to 75.503.

REGULATIONS

      30 C.F.R.     75.302-1 provides in part:

        75.302-1 Installation of line brattice and other
      devices.

      (a) Line brattice or any other approved device used to
      provide ventilation to the working face from which coal
      is being cut, mined or loaded and other working faces
      so designated by the Coal Mine Safety Manager, in the
      approved ventilation plan, shall be installed at a
      distance no greater than 10 feet from the area of
      deepest penetration to which any portion of the face
      has been advanced unless a greater distance is approved
      by the Coal Mine Safety District Manager of the area in
      which the mine is located.

      30 C.F.R.     75.301-1 provides:

          75.301-1 Quantity of air reaching working face.

    A minimum quantity of 3,000 cubic feet a minute of air
    shall reach each working face from which coal is being
    cut, mined or loaded and any other working face so
    designated by the District Manager, in the approved
    ventilation plan.

    30 C.F.R.   75.1710 provides in part:

    An authorized representative of the Secretary may
    require in any coal mine where the height of the
    coalbed permits that electric face equipment, including
    shuttle cars, be provided with substantially constructed
    canopies, or cabs, to protect the miners operating such equipment from roof falls and from rib and face rolls.

      75.1710-1 Canopies or cabs; self-propelled electric
    face equipment; installation requirements.

    (a) Except as provided in paragraph (f) of this
    section, all self-propelled electric face equipment,
    including shuttle cars, which is employed in the active
    workings of each underground coal mine on and after
    January 1, 1973, shall, in accordance with the schedule
    of time specified in paragraphs (a)(1), (2), (3), (4),
    (5), and (6) of this section, be equipped with
    substantially constructed canopies or cabs, located and
    installed in such a manner that when the operator is at
    the operating controls of such equipment he shall be
    protected from falls of roof, face, or rib, or from rib
    and face rolls. the requirements of this paragraph (a)
    shall be met as follows:

    (1) On and after January 1, 1974, in coal mines having
    mining heights of 72 inches or more;

    (2) On and after July 1, 1974, in coal mines having
    mining heights of 60 inches or more, but less than 72
    inches;

    (3) On and after January 1, 1975, in coal mines having
    mining heights of 48 inches or more, but less than 60
    inches;

    (4) On and after July 1, 1975, in coal mines having
    mining heights of 36 inhes or more, but less than 48
    inches;

    30 C.F.R.   75.507 provides in part:

    Except where permissible power connection units are
    used, all power-connection points outby the last open
    crosscut shall be in intake air.

      75.507-1 Electric equipment other than
    power-connection points; outby the last open crosscut;
    return air; permissibility requirements.

         (a) All electric equipment, other than power-connection
         points, used in return air outby the last open crosscut
         in any coal mine shall be permissible except as
         provided in paragraphs (b) and (c) of this section.

         30 C.F.R.   75.503 provides:

           75.503 Permissible electric face equipment;
         maintenance.

                        [STATUTORY PROVISIONS]

         The 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.

CONCLUSIONS OF LAW

     JURISDICTION

  Respondent Green River is subject to the provisions of the

Federal Mine Safety and Health Act of 1977 (the Act) in the
operation of the No. 9 Mine. I have jurisdiction over the parties
and subject matter of this proceeding.

    VENTILATION VIOLATIONS

 Green River does not seriously contest the violations

charged as a result of the investigation of the explosion on June
23, 1988. It suggested that the line curtain might have come down
as a result of the explosion, but its own witness, the section
foreman, did not support this suggestion. The evidence clearly
establishes that the line curtain was not hung to within 10 feet
of the face, and that the airflow at the end of the line curtain
was substantially less than required. Violations of 30 C.F.R.
75.302-1 and 75.301-1 were clearly established. Because the
mine liberates more than one million cubic feet of methane in a
24-hour period, and has a history of face ignitions, the
violations were extremely serious. In fact, they resulted in an
explosion and an injury to a miner. Both conditions should have
been ascertained by management, especially given the mine's
history. I conclude that they resulted from Green River's
negligence. Considering the criteria in section 110(i) of the
Act, the proposed penalties of $1400 for each violation are
appropriate.

 CANOPY VIOLATIONS

 The roof in the subject mine is unstable. Eighty eight roof

falls have been reported to MSHA. The canopy requirement has
applied to the subject mine since 1975. The three alleged
violations were clearly established: the equipment involved, all
items of electric face equipment, were used inby the last open
crosscut. The violations were all very serious: that involving the
cutting machine (Citation 3228988) was especially aggravated,
since the operator was in jeopardy if he used the canopy or if he
did not use the canopy. All of the violations were known or
should have been known to mine management. They resulted from
Green River's negligence. Considering the criteria in section
110(i) of the Act, $1,000 for the violation cited in citation
3228988 and $800 for each of the violations cited in orders
3228563 and 3228564 are appropriate penalties.

 PERMISSIBILITY VIOLATION

 Respondent does not contest the facts that on August 12,

1988, there were four 110 volt nonpermissible pumps pumping water
inby the last open crosscut. Neither does it deny that these
facts establish a violation of 30 C.F.R. 75.503. Rather, it
argues the modification of the citation on April 24, 1989, was
improper and that it does not comport with the mandate of the
statute that a copy of the order be given promptly to the mine
operator.

 There was no question at the time the order 3227686 was

issued that Green River was being charged with operating
nonpermissible electric face equipment in and inby the last open
crosscuts (a violation of 30 C.F.R. 75.503). It was not
charged, nor did it offer evidence to indicate that it believed
it was charged with operating nonpermissible electric face
equipment in return aircourses (a violation of 30 C.F.R.
75.507-1). The violation was abated by removing the pumps outby
the last open crosscut. Respondent was not misled. See Secretary
v. U.S. Steel Mining Co., Inc., 6 FMSHRC 722 (1984) (ALJ). I
conclude that a violation has been established, and the
modification of the order does not vitiate it.

 The violation was serious. Green River No. 9 is a gassy

mine, and an arc from one of the pumps could cause an ignition or
explosion if it contacted a methane buildup. The violation was
obvious and Green River was aware or should have been aware of
it. I conclude that it resulted from Green River's negligence.

Considering the criteria in section 110(i) of the Act, $1500 is
an appropriate penalty for the violation.

                             ORDER

 Based on the above findings of fact and conclusions of law,

IT IS ORDERED:

 1. Citations 3228886, 3228887 and 3228988 are AFFIRMED.

 2. Orders 3228563, 3228564 and 3227686 are AFFIRMED.

 3. Respondent shall within 30 days of the date of this

decision pay the following civil penalties for the violations
found:

 CITATION OR ORDER                   PENALTY

 3228886                             $1400
 3228887                              1400
 3228988                              1000
 3228563                               800
 3228564                               800
 3227686                              1600

                           TOTAL     $7000

                           James A. Broderick
                           Administrative Law Judge