Shamrock Coal Company, Inc.

Plain-English summary

Shamrock Coal Company was cited for inadequate rock dust and defects in water spray and fire-warning systems at its underground coal mine. The ALJ found violations of 30 C.F.R. §§ 75.403, 75.1101-1(a), and 75.1101-10, but concluded they were not significant and substantial because the evidence did not show a reasonable likelihood of ignition or explosion. The Commission upheld the finding for the rock-dust violation, including the ALJ’s assessment of a $300 civil penalty described in the release. It also affirmed the non-S&S findings for the water spray and fire-warning violations because the Secretary’s emergency-presumption theory was raised for the first time on review. The Commission affirmed the ALJ’s decision on all three violations.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.403, 75.1101-1(a), 75.1101-10
• Outcome: All three violations were affirmed as not significant and substantial. The release describes a $300 civil penalty for the rock-dust violation.
• Key point: An S&S determination must be grounded in the specific facts of the violation, and a new emergency-presumption theory cannot be introduced for the first time on Commission review.

Full text (FMSHRC public release)

CCASE:
MSHA V. SHAMROCK COAL
DDATE:
19920828
TTEXT:
August 28, 1992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v. Docket Nos. KENT 90-137
KENT 90-142
SHAMROCK COAL COMPANY, INC.

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners
DECISION
BY THE COMMISSION:
These civil penalty proceedings, arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. • 801 et seq. (1988)(the "Mine Act" or
"Act"), involve a dispute between the Secretary of Labor and Shamrock Coal
Company, Inc. ("Shamrock") regarding whether Shamrock's violations of
30 C.F.R. • 75.403, 75.1101-1(a), and 75.1101-10 may properly be
characterized as being of a significant and substantial ("S&S")
nature.(Footnote 1)

1 30 C.F.R. • 75.403, entitled "Maintenance of incombustible content of
rock dust," provides in pertinent part:
Where rock dust is required to be applied, it
shall be distributed upon the top, floor, and sides of
all underground areas of a coal mine and maintained in
such quantities that the incombustible content of the
combined coal dust, rock dust, and other dust shall be
not less than 65 per centum, but the incombustible
content in the return aircourses shall be no less than
80 per centum....
30 C.F.R. • 75.1101-1 is entitled "Deluge-type water spray systems," and
section 75.1101-1(a) provides:
Deluge-type spray systems shall consist of open
nozzles attached to branch lines. The branch lines
~1307
Commission Administrative Law Judge Avram Weisberger concluded that the
violations were not S&S because he did not find that the hazards contributed
to by the violations were reasonably likely to occur. 12 FMSHRC 2098 (October
1990)(ALJ). The Commission granted the Secretary's petition for discretionary
review, in which she challenges the judge's findings by arguing, with respect
to the violation of section 75.403, that the judge misapplied the Commission's

Page 2

test formulated in Mathies Coal Co., 6 FMSHRC 1 (January 1984). With respect
to Shamrock's violations of sections 75.1101-1(a) and 75.1101-10, the
Secretary's challenge is based entirely on the theory that the S&S nature of
the violations should be examined in the context of the presumed occurrence of
an emergency. For the reasons discussed below, we affirm the judge's
decision.(Footnote 2)
I.
Factual Background and Procedural History
Shamrock operates the Shamrock No. 18 Series Mine, an underground coal
mine located in Leslie County, Kentucky. On January 10, 1990, MSHA Inspector
James Delp issued three citations to Shamrock pursuant to section 104(a) of
the Mine Act. Citation No. 3206452 alleges an S&S violation of section
75.403, and states, in pertinent part:
Rockdust applications in the outby area of 006 section
are not adequate in that ... the results of a survey
collected, during the period from 11-29 thru 11-30
ÄÄÄÄÄÄÄÄÄÄÄÄÄ
1 (...continued)
shall be connected to a waterline through a control
valve operated by a fire sensor. Actuation of the
control valve shall cause water to flow into the
branch lines and discharge from the nozzles.
30 C.F.R. • 75.1101-10 is entitled "Water sprinkler systems; fire
warning devices at belt drives," and provides:
Each water sprinkler system shall be equipped
with a device designed to stop the belt drive in the
event of a rise in temperature and each such warning
device shall be capable of giving both an audible and
visual warning when a fire occurs.
The S&S terminology is taken from section 104(d)(1) of the Act, 30
U.S.C. • 814(d)(1), which distinguishes as more serious in nature any
violation that "could significantly and substantially contribute to the cause
and effect of a ... mine safety or health hazard...."

2 This decision regarding the Secretary's new theory is one of three
issued this date. The two other decisions issued today are: Beech Fork
Processing, Inc., 14 FMSHRC , Docket No. KENT 90-398 (August 1992); and
Shamrock Coal Co., Inc., 14 FMSHRC , Docket No. KENT 90-60 (August 1992).
~1308
-1989, in such area showed that 31 of 38 samples
collected had an incombustible content of from 56 to
79.2 percent, in the return air courses (80%
required)....
The citation was later modified to include the results of samples collected in
intake air courses of the 006 section of the mine showing that one of the 54

Page 3

samples had an incombustible content of 60.4%, while 65% was required.
Citation No. 3206452-01.
Citation No. 3206323 alleges an S&S violation of section 75.1101-10 and
states:
The requirement that, each deluge water system shall
be equipped with a device designed to stop the belt
drive in the event of a rise in temperature and such
warning device shall be capable of giving both a
audible and visual warning when a fire occurs, is not
being complied with at the No. 6 headdrive unit,
serving the 005 working section, in that; when tested,
the belt conveyor did not stop and no visual or
audible warning was given.
Citation No. 3206454 alleges an S&S violation of section 75.1101-1(a) and
states:
The Deluge-type water spray system provided for the
009 section headdrive unit was inoperative in that;
the waterline was not connected to the water supply.
At the evidentiary hearing, Shamrock did not contest the fact that it
violated section 75.1101-1(a), but did contest the fact of violation of
sections 75.403 and 75.1101-10. Tr. 50-51. The judge concluded that Shamrock
had violated section 75.403 because Shamrock had not rebutted laboratory
analyses indicating that required incombustible contents were not maintained
in the return and intake air courses in the 006 section. 12 FMSHRC at 2099.
The judge then determined Shamrock's violation of section 75.403 was not S&S
because the evidence failed to show that an ignition was reasonably likely to
occur. Id. The judge noted that the equipment in the area was not in a
deficient condition, "which would have rendered it reasonably likely for a
spark to have occurred," and that the mine does not liberate a large quantity
of methane. Id. The judge concluded that, although the violation "could have
contributed to the hazard of the propagation of an explosion ... the evidence
fails to establish that there was any reasonable likelihood of an ignition."
Id. The judge then found that the violation was of a moderately high degree
of gravity but that the operator acted with a low degree of negligence, and
assessed a civil penalty of $300, rather than the penalty of $434 proposed by
the Secretary. 12 FMSHRC at 2100.
The judge found that Shamrock had violated section 75.1101-1(a) but that
the violation was not S&S, because the evidence did not reveal that the hazard
of an ignition was reasonably likely to occur. He stated:
~1309
[Inspector Delp] indicated that there were various
materials which could potentially burn, such as
several gallons of oil in metal containers, and
various timbers and wooden cribs. However, he did not
indicate the distance of these materials to the head

Page 4

drive, and it is noted that the oil was contained in
metal containers. Also, although he indicated that
the area is known as one that accumulates float coal
dust, and that the belt was in operation and carrying
coal, he was unable to say whether he observed coal
dust on the belt, and did not specifically indicate
that there was any coal dust around the head drive.
Further, although he noted that there was a potential
of fire due to friction of rollers and various
components, as well as sparks from various electrical
equipment at the head drive, there was no evidence
adduced as to a specific condition of the various
equipment which would make the hazard of an ignition
reasonably likely to have occurred. I thus conclude
that it has not been established that the violation
herein was significant and substantial. (See,
Mathies, supra).
Id.
The judge also found that Shamrock had violated section 75.1101-10 based
on Inspector Delp's testimony concerning the inoperative condition of the
sprinkler system on the belt drive, which was unrebutted. 12 FMSHRC at 2103.
The judge determined that this violation also was not S&S:
Delp indicated that the hazards of a fire are
the same as those he described in his testimony with
regard to Citation No. 3206454, which involved the
deluge system. Also, on the same date, concerning the
same belt, he issued Citation No. 3206321 alleging
that there were no fire hose outlets for a distance of
approximately 900 feet along the belt. In addition,
he issued Citation No. 3206322 alleging that there was
coal dust a quarter inch to 20 inches in depth, along
the side and under the belt conveyor for a distance of
approximately 900 feet. However, Delp did not
describe the presence of any specific condition which
would make the event of ignition reasonably likely to
occur. Accordingly, I find that it has not been
established that the violation herein was significant
and substantial.
Id.
With respect to the judge's finding that Shamrock's violation of section
75.403 was not S&S, the Secretary argues on review that the judge misapplied
the Commission's S&S test formulated in Mathies, supra. She maintains that
~1310
the judge failed to apply the third element of the test, regarding the
reasonable likelihood that the hazard contributed to would result in an

Page 5

injury, in terms of normal mining practices. S. Br. at 7-8. The Secretary
asserts that the judge essentially would require electrical equipment to
actually be producing sparks before finding the violation to be S&S and that
he improperly equated conditions that present an imminent danger with those
that are S&S. S. Br. at 8-9. The Secretary emphasizes that an S&S violation
is less than an imminent danger, and that the Commission "has consistently
determined that S&S findings are not dependent on a high probability of
occurrence or on the present existence of all factors necessary for an injury
causing event." S. Br. at 9.
With respect to the violations of sections 75.1101-1(a) and 75.1101-10,
the Secretary argues that the "judge's failure to analyze the significant and
substantial nature of Shamrock's violations of ... sections 75.1101-1(a) and
75.1101-10 in the context of an emergency was erroneous." S. Br. at 12. The
Secretary maintains that, when considering the S&S nature of a violation
involving a safety standard that is designed to take effect only in an
emergency situation, such an emergency should be presumed. S. Br. at 12-14.
The Secretary argues that the relevant question regarding whether Shamrock's
violation of section 75.1101-1(a) is S&S under the Commission's test in
Mathies, therefore, is not whether a fire or explosion is reasonably likely to
occur but, instead, is "given the presence of a fire at the belt head drive,
whether the failure to have a deluge water spray system is reasonably likely
to result in serious injuries or deaths that would not otherwise occur if such
system was properly functioning as required by the standard." S. Br. at 14.
Similarly, with respect to section 75.1101-10, the Secretary argues that the
relevant question is "given the presence of a fire, whether the failure to
stop the coal-conveying belt and the failure to visually and audibly warn
miners of the fire, are reasonably likely to cause serious injuries or deaths
that would not otherwise occur if such alarms had been given and the belt
stopped as required." S. Br. at 15-16. The Secretary does not argue in the
alternative that the judge's determinations that a fire or ignition was not
reasonably likely to occur is without substantial evidence.
II.
Disposition of Issues
A. Violation of section 75.403
We conclude that substantial evidence supports the judge's finding that
Shamrock's violation of section 75.403 was not S&S. A violation is properly
designated as being S&S "if, based on the particular facts surrounding that
violation, there exists a reasonable likelihood that the hazard contributed to
will result in an injury or an illness of a reasonably serious nature."
Cement Division, National Gypsum, 3 FMSHRC 822, 825 (April 1981). In
Mathies,
the Commission explained:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum, the Secretary of Labor must prove:

Page 6

~1311
(1) the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard -- that is, a
measure of danger to safety -- contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
6 FMSHRC at 3-4. See also Austin Power Co. v. Secretary, 861 F.2d 99, 104-05
(5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987)(approving
Mathies
criteria). The Commission has held that the third element of the Mathies
formula "requires that the Secretary establish a reasonable likelihood that
the hazard contributed to will result in an event in which there is an
injury." U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984).
Here, there is no dispute as to the fact of violation or that the
discrete safety hazard contributed to by the violation is the hazard of
ignition or explosion. The issue on review is the third element, whether
there was a "reasonable likelihood that the hazard contributed to will result
in an injury."
We reject the Secretary's contention that the judge improperly equated
the reasonable likelihood element with the presence of an "imminent danger."
As in Eastern Associated Coal Corp., 13 FMSHRC 178 (February 1991), we do
not
find any indication in the judge's decision that he misapplied the Mathies
test by requiring that the injurious event be imminent. The judge did not
expressly require that the injurious event be imminent but, rather, properly
stated that it must be reasonably likely to occur. 12 FMSHRC at 2099. Nor
did the judge rely solely on the fact that the equipment was permissible at
the time of the inspection. Rather, the judge found that an ignition was not
reasonably likely to occur because the mine did not liberate a large quantity
of methane. Id. The Commission has previously recognized that, when
examining whether an explosion or ignition is reasonably likely to occur, it
is appropriate to consider whether a "confluence of factors" exists that could
result in an ignition or explosion. Texasgulf, Inc., 10 FMSHRC 498, 501
(April 1988). The judge properly followed Commission precedent by reviewing
the evidence regarding such a confluence of factors.
Substantial evidence supports the judge's conclusion that the record
lacks evidence establishing that an ignition was reasonably likely to occur.
Inspector Delp testified that section 75.403 is directed at "hold[ing] down
the combustible material" by requiring that limestone dust be applied to
highly flammable and explosive coal dust. Tr. 22-23. He stated that if the
incombustible content is not maintained at the appropriate level, a mine
"could have the possibility of [a] dust ignition." Tr. 23. Inspector Delp
explained that if "by chance methane or some other source of ignition were to

Page 7

take place in the face area or anywhere in the return, if you had enough
concussion or pressure to raise the float dust into suspension in the air,
where the particles would ignite, then you would have what is known as a dust
explosion." Tr. 24.
~1312
Inspector Delp also testified that when the samples were taken, 12 men
working in the face of the section were operating a continuous mining machine,
two shuttle cars, two roof bolting machines and a scoop, and that if such
equipment malfunctioned, it could be a source of sparks. Tr. 24. Although
Inspector Delp testified that there was electrical equipment in use at the
face, and that such equipment could be a source of sparks if the equipment
malfunctioned, the record does not reveal that such equipment was
impermissible. Tr. 24, 29. In addition, the record does not reveal that the
mine had experienced methane ignitions in the past, or that it liberated
excessive quantities of methane. Inspector Delp testified that the mine
liberated "some" methane, although "not a great amount," and that he had
measured 16,000 cubic feet of methane in a 24-hour period. Tr. 26, 32. There
is no evidence in the record of the amount or extent of coal dust or loose
coal present, other than that there was "always the amount of coal dust, loose
coal" at the face, that would be a by-product of mining. Tr. 25.
The judge's finding that Shamrock's violation was not S&S is also
supported by the lack of specific evidence to establish the fourth Mathies
factor, that is, that the injuries sustained would be of a reasonably serious
nature. Inspector Delp testified that, if an ignition occurred, miners other
than those at the face could possibly be affected, but he did not specify in
what manner. Tr. 26.
This lack of specificity results in a vague and general record more
suited to speculation than in clear evidence of the S&S nature of the
violation sufficient to overturn the judge's finding that it was not. Cf.
Utah Power & Light Co., 12 FMSHRC 965, 971 (May 1990). We do not suggest
that
the Secretary could not have proven the S&S nature of the violation in this
case. Rather, we conclude only that she did not do so here. Thus, we
conclude that substantial evidence supports the judge's conclusion that
Shamrock's violation of section 75.403 was not S&S.
B. Violations of sections 75.1101-1(a) and 75.1101-10
As in our companion decisions issued this date in Beech Fork Processing,
Inc., 14 FMSHRC , Docket No. KENT 90-398 ("Beech Fork"), and Shamrock
Coal
Co., 14 FMSHRC , Docket No. KENT 90-60, the Secretary presents a new theory
in this case, i.e., that the S&S nature of violations involving safety
standards that provide protection only in the event of an emergency should be
examined in the context of the presumed occurrence of that emergency. The
Secretary, however, failed to present this theory below for consideration by
the judge and, therefore, has not preserved it for the Commission's review.

Page 8

Explicit limits to Commission review are provided in section 113(d) of
the Mine Act, 30 U.S.C. • 823(d). Section 113(d)(2)(A)(iii) of the Act, 30
U.S.C. • 823(d)(2)(A)(iii), provides, in pertinent part, that "[e]xcept for
good cause shown, no assignment of error by any party shall rely on any
question of fact or law upon which the administrative law judge had not been
afforded an opportunity to pass." See also Commission Procedural Rule 70(d),
29 C.F.R. • 2700.70(d). The key Senate Report on the bill that was enacted as
the Mine Act explains this provision as follows:
~1313
The Committee believes that the provision of
section 114(d)(2) [section 113(d)(2)] that matters not
raised before an Administrative Law Judge may not be
raised before the Commission (except for good cause
shown) and the provision of section 107(a) [section
106(a)] that objections not raised before the
Commission cannot be raised before a reviewing court
are consistent with sound procedure and do not deny
essential due process. The Committee notes that
fairness is also protected by provisions which would
permit remanding of cases for further factfinding
where warranted. It is the Committee's intention that
the Commission and Administrative Law Judges permit
parties every reasonable opportunity to adequately
develop the record within these constraints and
consistent with its duty to resolve matters under
dispute in an expeditious manner.
S. Rep. No. 181, 95th Cong., 1st Sess. 38 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2nd Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977 at 637
(1978).
The explicit statutory limitation on the scope of Commission review set
forth in section 113(d)(2) may be raised as an issue by an objecting party or,
sua sponte, by the Commission itself, at any appropriate time during the
Commission review process. See Midwest Minerals, Inc., 12 FMSHRC 1375,
1378
(July 1990); Ozark-Mahoning Co., 12 FMSHRC 376, 379 (March 1992); Union
Oil of
California, 11 FMSHRC 289, 301 (March 1989) ("Unocal"). This limitation on
review is an important feature of the administrative trial and appeal
structure established by the Act.
Here, the Secretary presented testimony at trial as to the existence of
factors that would cause an ignition or fire to be reasonably likely to occur,
in an attempt to demonstrate that it was reasonably likely that injuries would
occur as a result of the violations. See, e.g., Tr. 56, 58-59, 127-29. In
other words, the Secretary proceeded along established Mathies lines. N.3

Page 9

supra. Neither party filed a post-hearing brief. The Secretary's theory on
review that the occurrence of a fire or ignition should be presumed is a
departure from her trial position. Thus, on review, the Secretary relies on a
theory upon which the judge "had not been afforded an opportunity to pass."
Nor has the Secretary demonstrated any cause for her failure to present her
theory to the judge.
As we observed in Beech Fork, supra, the "Commission's practice has been
to resolve these opportunity to pass' questions on a case-by-case basis." 14 FMSHRC at , slip op. at 5 (citations omitted). We noted that "a matter must have been presented below in such a manner as to obtain a ruling in order to be considered on review." Id. (citation omitted). In addition, we stated that the "matter must be raised withsufficient specificity and clarity [so]
that the [judge] is aware that [he] must decide the issue.'" 14 FMSHRC at ,
slip op. at 5-6, quoting Wallace v. Dept. of the Air Force, 879 F.2d 829, 832
~1314
(Fed. Cir. 1989). We recognized that "a matter urged on review may have been
implicitly raised below or is so intertwined with something tried before the
judge that it may properly be considered on appeal." 14 FMSHRC at , slip
op. at 6 (citation omitted). Here, however, none of the foregoing criteria is
satisfied. The Secretary argued below only the theory that factors existed
making a fire reasonably likely to occur. Thus, the judge was most likely
unaware of the Secretary's theory that the S&S nature of the violations should
be evaluated in the context of the presumed occurrence of an emergency.
In Beech Fork, we recognized that the Mine Act "establishes an orderly,
two-tiered litigation system consisting of trial before a Commission judge and
appellate review by the Commission." Id. We explained that the "rationale
for requiring lower tribunals to first pass upon questions is that subsequent
review is not hindered by the lack of necessary factual findings and the lack
of application of the lower court's expertise or discretion." Id. (citations
omitted). The Secretary's actions here conflict with this basic principle,
that parties in Mine Act cases must first present their evidence and advance
their legal theories before the judge, and not for the first time on appeal.
In addition, in Beech Fork we noted that the essence of Mathies analysis
is a careful examination surrounding a specific violation, and that use of the
presumption advanced by the Secretary would represent a departure from that
analysis. Id. As in Beech Fork, we conclude that it "is incumbent upon the
Secretary to develop a trial record demonstrating why the presumption that she
wishes the Commission to accept is legally supportable." Id.
In sum, in the instant proceeding, the Secretary has asserted on review
a theory as to Shamrock's violations of sections 75.1101-1(a) and 75.1101-10,
upon which the judge was not afforded an opportunity to pass. She also has
asserted no reason for her failure to present this theory to the judge. The
language of section 113 of the Mine Act and Commission precedent bar us from
considering the Secretary's theory in this case. See, e.g., Ozark-Mahoning,
12 FMSHRC at 379; Unocal, 11 FMSHRC at 297-98, 300-301. Because the

Page 10

Secretary
did not proceed on alternative grounds with respect to Shamrock's violations
of sections 75.1101-1(a) and 75.1101-10, no other basis for review is
presented. Accordingly, we affirm the judge's decision that Shamrock's
violations of sections 75.1101-1(a) and 75.1101-10 were not S&S.
~1315
III.
Conclusion
For the reasons set forth above, we affirm the judge's decision that
Shamrock's violations of sections 75.403, 75.1101-1(a) and 75.1101-10 were not
S&S.
Ford B. Ford, Chairman
Richard V. Backley, Commissioner
Joyce A. Doyle, Commissioner
Arlene Holen, Commissioner
L. Clair Nelson, Commissioner