Peabody Coal Company

Plain-English summary

MSHA cited Peabody Coal after finding two pools of water on a refuse pile at the Camp 9 Preparation Plant. The Secretary argued that the pools violated 30 C.F.R. § 77.215(e), which prohibits constructing refuse piles so as to impede drainage or impound water. Judge Arthur J. Amchan found that the water resulted from heavy rain and differential settling, and that Peabody reshaped the pile when it was reasonably safe to do so. He vacated the citation because the evidence did not show that the pile was constructed to impede drainage or impound water.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.215(e)
• Outcome: Citation No. 3551344 was vacated and the case was dismissed.
• Key point: Standing water alone did not establish that the refuse pile was constructed to impede drainage or impound water.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. PEABODY COAL
DDATE:
19940124
TTEXT:

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

             OFFICE OF ADMINISTRATIVE LAW JUDGES
                    2 SKYLINE, 10th FLOOR
                     5203 LEESBURG PIKE
                FALLS CHURCH, VIRGINIA 22041

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 92-1079
Petitioner : A.C. No. 15-11012-03520
v. :
: Camp 9 Preparation Plant
:
PEABODY COAL COMPANY, :
Respondent :

                           DECISION

Appearances: Brian W. Dougherty, Esq., Office of the Solicitor,
U. S. Department of Labor, Nashville, Tennessee,
for Petitioner;
David R. Joest, Esq., Henderson, Kentucky, for
Respondent.

Before: Judge Amchan

                      Statement of Facts

 On the morning of July 21, 1992, MSHA Inspector

Philip Dehart examined a refuse pile at Respondent's Camp 9
Preparation Plant (Tr. 12). This pile, which consists of debris
from washed coal, is approximately 100 feet high and bigger than
100 feet x 100 feet horizontally (Tr. 21). Mr. Dehart found 2
pools of water on the refuse pile. One was about 40 feet by 20
feet and an inch deep and the other was about 35 feet by 20 feet
and also an inch deep (Tr. 13 - 14).

 Mr. Dehart issued Respondent Citation No. 3551344, which

alleged that the refuse pile was not graded to allow for proper
drainage and that the inadequate grading violated Peabody's
approved plan for the refuse area (Exh G-1). Water on the refuse
pile creates a potential fire hazard due to spontaneous
combustion (Tr. 10 - 11). However, MSHA apparently did not
consider the water on Camp 9's refuse pile to present a hazard to
miners as of July 21, 1992 (Tr. 19 - 20).

 The citation referenced 30 C.F.R.   77.215 as the regulation

violated. However, there is no standard requiring a mine
operator to comply with an approved refuse pile design plan (See
Tr. 22 - 25).

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At trial, the Secretary argued that the facts in this case
establish a violation of 30 C.F.R. 77.215(e). This issue has
been tried with the consent of Respondent (Tr. 25).
Section 77.215(e) requires:

   Refuse piles shall not be constructed so as to
   impede drainage or impound water.

 Respondent's position on the merits is that the refuse pile

was not designed to impound water (Tr. 45). The 2 pools of water
observed by Inspector Dehart were the result of heavy rains the
previous evening and differential settling of the refuse in the
pile (Tr. 40). Peabody contends it complied with the regulation
by reshaping the refuse pile as soon as it could do so safely
(Tr. 44).

 Peabody submits that there is no way to avoid differential

settling and that to prevent a hazard developing from standing
water it reshapes the pile with rubber-tired vehicles.
Respondent argues that, to do this before the pile dries, would
be hazardous to the operators of its dump trucks, bull dozers and
scrapers.

 Moreover, Respondent contends that the pile was not

constructed to impound water. In fact, it is designed so that
water will drain off the pile and flow away from the pile (Tr. 40

• 42).
  Issues

  The issues in this case are whether the fact that there were
  standing pools of water on Respondent's refuse pile establishes
  that water was impounded and, if so, whether the evidence
  establishes that the pile was constructed so as to impede
  drainage or impound water. I conclude that the Secretary has not
  met his burden of proof on either of these issues.

  The testimony of Gordon Ingram, an engineering supervisor
  for Respondent at Camp 9, that the accumulation of water on
  July 21 was unavoidable is uncontroverted. This testimony is
  also not inconsistent with Mr. Dehart's testimony that
  dessication cracks indicated that there had been other pools of
  standing water on the pile before July 21.(Footnote 1)

  The word impounded suggests a purposeful rather than an

  ---

  1The citation alleged a violation only with regard to the 2 pools
  of water observed on July 21, 1992 (Exh. G-2). Moreover, the
  record does not establish that the dessication cracks could only
  have been present if Respondent failed to take reasonably prompt
  steps to reshape the refuse pile after a rainstorm.

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accidental accumulation of water. In some circumstances, one
could reasonably conclude that the lack of any corrective action
to remove water, which had accidently accumulated, might be an
impoundment. However, Mr. Ingram's uncontroverted testimony
establishes that the accumulation of water in this case was the
unavoidable result of differential settling of the refuse. It
also establishes that Respondent tried to remove the water as
soon as it was reasonably safe to do so.

 Moreover, even if any accumulation of water is an

impoundment, there is no evidence in this record to support a
finding that Respondent's refuse pile was constructed to impede
drainage or impound water within the meaning of
section 77.215(e). However, I agree with petitioner that, in
some circumstances, a failure to take timely corrective action to
remove water that has collected on a refuse pile may violate
section 77.215(e).

 A refuse pile is in an ongoing state of construction.

Therefore, a failure to timely reshape areas in which water has
collected may be "construction" within the meaning of the
standard. However, the record, in this case, does not establish
that the water present on the refuse pile on July 21, 1992, was
present due to any intentional act of Respondent or a failure to
take reasonably prompt abatement measures.

 In conclusion, it has not been established that the refuse

pile was constructed so as to impede drainage or impound water. I, therefore, vacate Citation No. 3551344.

                          ORDER

 Citation No. 3551344 is hereby VACATED and this case is

dismissed.
Arthur J. Amchan
Administrative Law Judge
703-756-6210
Distribution:

Brian W. Dougherty, Esq., Office of the Solicitor, U. S.
Department of Labor, 2002 Richard Jones Rd., Suite B-201,
Nashville, TN 37215-2862 (Certified Mail)

David R. Joest, Esq., 1951 Barrett Court, P. O. Box 1990,
Henderson, KY 42420-1990 (Certified Mail)

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