Shamrock Coal Company, Inc.

Plain-English summary

Shamrock Coal operated underground coal mines and a preparation plant. In KENT 90-75, Judge Avram Weisberger approved a settlement that reduced two citation penalties from $121 to $40. In KENT 90-60, the judge found violations involving self-contained self-rescuers, emergency materials, ventilation, and a belt sprinkler system. He found that none of the litigated violations was proven significant and substantial, assessed penalties for those violations, and ordered the respondent to pay the total civil penalty stated in the decision. The Commission later reviewed the self-rescuer issue in the KENT 90-60 portion and affirmed the non-S&S finding.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1101-23, 75.1100-2(i)(1), 75.301, and 75.1101-10
• Outcome: The KENT 90-75 settlement was approved. The KENT 90-60 violations were affirmed without S&S findings, with the penalties stated in the order.
• Key point: The judge required evidence showing a reasonable likelihood of an injury-producing event before treating these violations as significant and substantial.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. SHAMROCK COAL
DDATE:
19901017
TTEXT:

Page 2

~1944
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 90-75
PETITIONER A. C. No. 15-11417-03514

      v.                              No. 2 Prep Plant

SHAMROCK COAL COMPANY, INC., Docket No. KENT 90-60
RESPONDENT A. C. No. 15-02502-03558

                                      Shamrock No. 18 Series

                           DECISION

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor,
U. S. Department of Labor, Nashville, Tennessee,
for the Secretary;
Neville Smith, Esq., Smith & Smith, Manchester,
Kentucky, for the Respondent.

Before: Judge Weisberger

Statement of the Case

 These cases are before me based upon Petitions for Civil

Penalty filed by the Secretary (Petitioner) for alleged
violations by the Operator (Respondent) of various mandatory
safety standards set forth in Volume 30 of Code of Federal
Regulations. Pursuant to notice, Docket No. KENT 90-60 was heard
in Richmond, Kentucky, on June 7, 1990. John H. Linder testified
for Petitioner, and Gordon Couch testified for Respondent. In a
telephone conference call on August 8, 1990, counsel for both
Parties waived their right to submit a Brief and Proposed
Findings of Fact.

 On September 4, 1990, Petitioner filed a Joint Motion to

Approve Settlement concerning the Citations that are the subject
matter of Docket No. KENT 90-75.

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~1945
Stipulations

 At the hearing, the Parties stipulated as follows: "That the

proposed penalty will not affect the operations of the business
as would be appropriate, the size of the business, and that the
Operator has indicated he will comply to nullify the violations."
(sic) (Tr 6). It was also stipulated that that the mine in
question produced 768,543 tons of coal in the 24 month period
preceding the citations at issue, and that Respondent's total
operations produced approximately 22 millions tons of coal in
that period.

Findings of Fact and Discussion

                   Docket No. Kent 90-75

Citation Numbers 2999139 and 3005741

 Petitioner has filed a Joint Motion to approve a settlement

agreement in this case. A reduction in penalty from $121 to $40
is proposed. I have considered the representations and
documentation submitted in this case, and I conclude that the
proffered settlement is appropriate under the criteria set forth
in Section 110(i) of the Act. The Motion for Approval of
Settlement is GRANTED.

                    Docket No. KENT 90-60

Citation No. 3205519

 On September 20, 1989, MSHA Inspector John H. Linder, while

performing an inspection of Respondent's No. 18 Mine, observed
four miners cleaning belts and inquired of them whether they had
self-contained self-rescue devices. According to Linder, the
miners indicated that these items were located at the head-drive.
Linder then went to the area of the head-drive along with
Respondent's Inspector Hurchal Asher, and was able to locate only
one such device. Linder issued a citation, Number 3205519,
alleging a violation of 30 C.F.R. 75.1101-23 which requires
operators, in essence, to adopt an evacuation plan. The plan
provides for maximum distances between underground miners and the
location of self-contained self-rescue devices. Linder's
testimony established that there were no self-contained
self-rescue devices for each of the four miners, who were
cleaning belts, within the maximum distance specified by the
plan. (Gx 3, Pages 6-8). Respondent did not contest Linder's
testimony, and indicated that it did not contest the violation. I
thus find that Respondent herein did violate Section 75.1101-23,
supra, as alleged.

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~1946
In the citation, Linder indicated that the violation herein was
significant and substantial. As set forth by the Commission in
Mathies Coal Company, 6 FMSHRC 1 (January 1984), the Commission
set forth the elements of a "significant and substantial"
violation as follows:

      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: (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, supra, at
      3-4.)

 Further, as explained by the Commission in U. S. Steel

Mining Company, 6 FMSHRC 1834, 1836 (August 1984), the third
element of the above formula set out in Mathies, supra, "requires
that the Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which there is
injury." Linder, in his testimony, did not specifically explain
his conclusion in the citation that the violation herein was
significant and substantial. Linder indicated that the
self-contained self-rescue device supplies oxygen for an hour,
and thus would allow a miner using it to breathe, should there be
an explosion or liberation of methane gas. He indicated that in
contrast, the miners on the date in question had filter type
rescuers that did not provide oxygen, and which could not be used
for some poisonous gases. He indicated that belt lines, which
were present in the area in question, are a source of a fire
hazard as their rollers can lock at any time. In this connection,
he indicated that coal spilling off a belt can pile up over the
rollers causing them to heat, which would then cause a fire. He
indicated that there were additional ignition sources such as the
existence of electrical power lines along the sides of the belt
and electrical switches at different locations. With regard to
the liberation of methane, he indicated that in the seam in which
the mine in question is located, "usually" methane is potentially
present in small amounts (Tr. 21). He also indicated that in the
subject mine, he was not aware of any methane releases in the
explosive range. I find that although there were possible
ignition sources present, there is no evidence as to the specific
conditions of the sources, upon which to base a conclusion that
any ignition was reasonably likely to occur. Thus, although there
was some hazard to the miners in the section in question, as a
result of not having been provided with rescuers that could
supply oxygen in the event of a fire or an explosion, the
evidence fails to

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~1947
establish that there was any "reasonable likelihood" that the
hazard contributed to would result in an injury-producing event.
(U. S. Steel Mining Co., supra.) Accordingly, I conclude that it
has not been established that the violation herein was
significant and substantial. Gordon Couch, Respondent's safety
director, indicated that exposure to carbon monoxide at a level
of a half percent is immediately fatal. He indicated that the
self-rescuer device worn by the miners in question is designed to
protect, for up to an hour, exposure to one percent of carbon
monoxide. Essentially, according to Couch, if as a consequence of
a fire or explosion, there remained sufficient oxygen to support
life, then the device worn by the miners would allow them to
breathe, and thus be able to travel out of the mine. Essentially,
he indicated that the self-contained self-rescue units, which did
provide oxygen, were not more effective. He indicated that if a
fire or explosion would reduce the oxygen below the level needed
to sustain life, then neither the device worn by the miners nor
the self-contain self-rescue units would help, as any miner
present would not survive such an event. In contrast, he
indicated that should a fire or explosion leave sufficient oxygen
to sustain life, then either device would be adequate to allow
the miners present to escape.

 I find that Respondent has not contradicted or rebutted the

testimony of Linder that the device worn by the miners can not be
used to filter out some poisonous gases. Further, I find
persuasive the testimony of Linder that in a "big" fire the
self-contained self-rescue device, which allows one wearing it to
breathe oxygen, is "real important," and in an explosion one
would not have a chance without such a unit (Tr. 23).
Accordingly, I reject the testimony of Couch, and conclude that
the violation herein was moderately serious. There is no evidence
before me to base a conclusion that Respondent herein either knew
or should have reasonably known that there were not sufficient
rescue devices, at the appropriate sites, as mandated by its fire
evacuation plan. Accordingly, I conclude that it has not been
established that Respondent herein acted with more than a low
degree of negligence with regard to the violation herein. Taking
into account the remaining factors of Section 110(i) of the Act,
as set forth in the Parties' stipulations, I conclude that a
penalty of $100 is appropriate for the violation found herein.

Citation 3206149

 On October 3, 1989, Linder cited Respondent for a violation,

of 30 C.F.R. 75.1100-2(i)(1), alleging that certain required
fire fighting equipment was not provided for the 005 working
section, which had exceeded a depth of 2 miles from the surface.

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~1948
At the hearing, Respondent conceded the violation and that the
mine did produce more than 300 tons per shift and that the area
in question was at a depth of more than 2 miles. Inasmuch as
Respondent does not contest the violation cited by Linder, I find
Respondent violated Section 75.1100-2(i)(1), supra, as alleged.

 Linder indicated, in the citation, that the violation was

significant and substantial. He indicated, in his testimony, that
the purpose of the requirement for the provision of certain
emergency materials was to enclose an area to keep gas out in the
event of an explosion, or to conserve oxygen in the event of a
roof fall. In this connection, he described the roof conditions
as average. Also, he indicated that the belt conveyor was a
source for a fire along with equipment in the area, such as
continuous miners, scoops, motors, bolters, and high voltage
cables, all of which he termed as potential sources of fire. He
indicated that an illness or injury could result in the event of
an explosion if the necessary materials were not present.
However, he indicated that in the absence of an explosion, the
lack of such required materials in and of itself would not
reasonably likely cause an illness or injury.

 Inasmuch as Linder did not offer any facts to substantiate

his conclusion, as set forth in the Citation, that the violation
was significant and substantial, and inasmuch as the record fails
to establish that the hazards contributed to by the lack of the
emergency equipment, were not reasonably likely to occur, I
conclude that the violation herein has not been established to be
significant and substantial. (Mathies, supra.) Although some of
the required materials were available at the section, they were
being used at the face. Further, according to Couch, certain
materials were not present in the quantities mandated by Section
75.1100(a)(2)(i)(1), supra. Thus, he indicated that there was
lacking 1000 feet of lumber and five full tons of rock dust. He
indicated that he doubted that the quantity of nails required
were present, and whether there were two complete unused rolls of
brattice cloth.

 Inasmuch as the emergency materials, which were not on the

section, were to be used, as testified to by Linder and not
contradicted by Respondent, to conserve oxygen in case of a roof
fall and to keep gas away in the event of an explosion, I
conclude that the violation herein was moderately serious.

 According to the testimony of Linder, and not contradicted

by Respondent, around May or June 1990, he had spoken to Steven
Shell, Respondent's safety inspector, with regard to emergency
materials, and the latter told him that ". . . he was going to
continue to work on it trying to get the materials." (sic) (Tr.
44). Shell also told Linder that another MSHA Inspector,

Page 7

~1949
Denver Rich, also spoke to him about having emergency materials
at the 2 mile depth. Thus, I find that Respondent was aware of
the necessity of having emergency material once the work section
had reached 2 miles from the surface. Accordingly, I find
Respondent was negligent to a moderately high degree in not
having the required materials present. I conclude that a penalty
of $150 is appropriate for the violation found herein.

Citation 3206154

 On October 5, 1989, Linder, while walking in a crosscut, at

the No. 9 Section, between Entries 3 and 4, observed dust in the
air, and "there wasn't nothing moving." (sic) (Tr. 65). Linder
timed the movement of the air, by using a smoke club, at 4604
cubic feet per minute, between Entries 3 and 4 in the crosscut,
which was the last crosscut in an inby direction before the
working face. According to Linder, a roof bolter was located at
the end of Entry No. 1, a continuous miner was located at the end
of Entry No. 5, and that these two areas were the working faces
or working places. The crosscut in which Linder measured the
movement of air, ran between Entries 1 and 6, and was the last
crosscut in an inby direction prior to the working faces. At the
time of Linder's inspection, intake air entered the crosscut in
question from Entries 5 and 6, and then coursed in the direction
of Entry No. 1 where it turned outby and became return air. Air
also returned outby and down Entries 2 and 3 as curtains were
down in those entries. At the time of Linder's inspection, a line
curtain was hanging in the crosscut in question between Entries 4
and 5. At the date in question, as explained by Couch, the
Entries 5 and 6 were development entries. However, he also
indicated that as part of the normal mining cycle, the continuous
miner takes 30 foot cuts and moves from Entries 5 to 4 to 3 to 2
to 1, respectively.

 Linder issued a citation alleging a violation of 30 C.F.R.

75.301 in that only 4604 cubic feet per minute was reaching the
last open crosscut between the No. 3 and 4 Entries. Section
75.301, supra, as pertinent, provides that the minimum quality of
air reaching the last open crosscut ". . . in any pair or set of
developing entries" shall be 9000 cubic feet per minute.

 Essentially, it is Respondent's position that it did not

violate Section 75.301, supra, as the movement of air was not
tested at the proper place. In this connection, Respondent refers
to the testimony of Couch that the air should have been tested in
the crosscut between Entries 4 and 5, as these were the
development entries. Couch also referred to the fact that the
crosscut, between Entries 4 and 5, was closed with a curtain.
Essentially, Couch also referred to Section 75.301, which set
forth its purpose in requiring a flow of 9000 cubic feet a
minute.

Page 8

~1950
The stated purpose of this requirement is to render harmless
methane when coal is being cut, mined or loaded. Accordingly,
Couch indicated that it would not be desirable to have air
flowing at 9000 cubic feet a minute to the left of Entry No. 5,
and going in the direction of Entry No. 1, as air leaving the
continuous miner in Entry No.5 would contain dust and fumes. For
the reasons that follow, I do not agree with Respondent's
arguments, and find that the areas, in which Linder tested the
volume of air, was in the last open crosscut, and the volume of
air tested was below the maximum required by Section 75.301,
supra.

 In Jim Walter Resources, Inc., 11 FMSHRC 21 (January 1989)

the Commission, in analyzing the term "last open crosscut," for
purposes of deciding whether a violation of 30 C.F.R. 75.500(d)
occurred, took cognizance of the fact that a "crosscut" ". . . is
recognized to be a passageway or opening driven between entries
for ventilation and haulage purposes." (Jim Walter, supra, at
26). Further, in Jim Walter, supra, at 26, the Commission found
that a "last open crosscut" is that open passageway connecting
entries closest to the working face. The Commission also noted
the following definition of "working face" as set forth in
Section 318(g)(1) of the Federal Mine Safety and Health Act of
1977, and 30 C.F.R. 75.2(g)(1) as follows: "any place in a coal
mine in which work of extracting coal from its natural deposit in
the earth during the mining cycle is performed . . . . " The
Commission in Jim Walter, supra, was presented with the issue,
for purposes of applying 30 C.F.R. 75.1710-1, of whether
certain equipment was "permissible." The Commission referred to
Section 318(i)(8) of the Act as defining "permissible electric
face equipment" as those electrically operated equipment taken
into or used inby the last open crosscut. With regard to the term
"last open crosscut" the Commission in Peabody Coal Company, 11
FMSHRC 4, 8 (January 1989), found as follows: "In general, the
last open crosscut thus refers to the last (most inby) open
passageway between entries in a working section of a coal mine.
The last open crosscut "is an area rather than a point of line .
. . ' Henry Clay Mining Company, 3 IBMA 360, 361 (1974)." The
Commission, in Peabody, supra, at pages 8-9, found that a
determination by the Trial Judge of the boundaries of the area of
the last open crosscut to be demarcated by, inter alia "air flow
across the developing entries of a working section . . . . ," to
comport with commonly accepted mining terminology.

 Applying the rationale of Peabody, supra, and Jim Walters,

supra, to the case at bar, I conclude that, inasmuch as during
the course of the normal mining cycle, coal will be extracted
from the face of No. 4 and No. 3 Entries, it follows that the
last crosscut before the face, between these two entries, is to
be considered the last open crosscut (See also, Consolidation
Coal Company, 3 FMSHRC 678, 685-686 (1981)) (Judge Cook). As

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~1951
such, I find that Linder took air measurement readings at the
proper location. Respondent has not refuted the testimony of
Linder that, in the last open crosscut between the 3rd and 4th
Entries on the date in question, there were only 4604 cubic feet
per minute of air. Inasmuch as 9000 cubic feet per minute is
required by Section 75.301, supra, I conclude that Respondent
herein did violate that section.

 The Citation issued by Linder denotes the violation as being

significant and substantial. Linder did not testify at all with
regard to the facts upon which he based this conclusion. Nor did
his testimony at all refer to the characterization of the
violation as significant and substantial. I thus conclude that it
has not been established by Petitioner that the violation herein
was significant and substantial. (See Mathies, supra.)

 According the the uncontradicted testimony of Linder, when

he observed that there was nothing moving in the air in the last
open crosscut between the 3rd and 4th Entries, he told this to
the foreman Terry Couch. The latter indicated that a curtain had
been torn down by a scoop, and that he would replace those
curtains that have been denoted on Gx 9 with a red circle as
having been torn. The record does not indicate when the tearing
of the various curtains had occurred. I conclude that it has not
been established that Respondent acted with more than moderate
negligence in connection with the violation.

 As set forth in Section 75.301, supra, the purpose of

sufficient ventilation is to ". . . dilute, render harmless and
to carry away, flammable, explosive, noxious, harmful gases,
dust, smoke, and explosive fumes." Thus, inasmuch as the measured
air of 4604 cubic feet per minute was significantly below the
requirement in Section 75.301, supra, of 9000 cubic cubic feet
per minute, I conclude that the violation herein was of a
moderately high level of gravity. I conclude that Respondent
shall pay a penalty of $175 for the violation found herein.

Citation 3206155

 On October 12, 1989, Linder issued a citation alleging a

violation of 30 C.F.R. 75.1101-10 in that the water sprinkler
system at the 005 working section head-drive did not stop the
belt conveyor or give an audible or visible alarm when tested. In
his testimony he explained that it was not hooked up to the power
source, and as such could not either stop the belt in the event
of a fire, or provide an audible or visible alarm. Respondent did
not contradict Linder's testimony, and indicated that it conceded
the violation. Accordingly, based upon this concession as well as
the evidence before me, I conclude that Respondent herein did
violate Section 75.110-10, supra, as alleged.

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~1952
In the Citation issued by Linder, it was indicated that the
violation was significant and substantial. Linder did not make
any reference in his testimony to his conclusion that the
violation was significant and substantial. Nor did Linder adduce
any facts in his testimony which would tend to support such a
conclusion.

 Linder indicated that at the time the violation was cited,

the belt was in operation, and in the event of a fire, the
sprinkler system, being unplugged, would not have been able to
stop the belt and prevent the fire from spreading. He agreed that
coal dust is a hazard, and that belt rollers tend to stick and
heat up, and that if coal dust piles up around the rollers, a
fire could result. He indicated that in such an event, fire could
spread to the belt drive, and "it could be carried around" (Tr.
103). I find this evidence insufficient to establish that there
was a reasonable likelihood of a fire occurring.

 I thus conclude that it has not been established by

Petitioner that the violation herein was significant and
substantial. (See, Mathies, supra; U. S. Steel Mining Co.).

 There is no evidence before me to indicate how long, prior

to Linder's inspection, the water sprinkler system was unhooked.
Nor is there any evidence to establish that Respondent either
knew, or should have been aware, of this condition. Hence, I
conclude that Respondent's negligence, in connection with this
violation, was only low. The sprinkler system extended only 50
feet along the head of the belt. However, in addition, there was
a fire sensor line all along the belt which would give a warning
siren in the event of a fire. Although this device would not shut
off the belt, it could be shut off at the head-drive by a switch,
or could be shut off from the outside. I thus find that the
gravity of the violation was only moderate. I conclude that a
penalty of $100 is appropriate for this violation.

                             ORDER

 It is ORDERED that Respondent shall, within 30 days of this

Decision, pay $8831 as a Civil Penalty for the violations
found herein.

                                Avram Weisberger
                                Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE

 1. Included in this figure is a penalty of $318 for the

violations alleged in Citation Nos. 3206153 and 3206157 which
were not contested by Respondent in its Answer.