Arch of Kentucky Incorporated

Plain-English summary

MSHA cited Arch of Kentucky after an inspector found air moving inby through a belt entry toward active workings at the Karst Mine. The judge found that the airflow violated 30 C.F.R. § 75.326, which restricts use of belt-entry air to ventilate working places. He did not find an unwarrantable failure because the record did not show how long the condition existed and the mine was using open doors and other access arrangements to support an unstable roof. He also found that the evidence did not establish a reasonable likelihood of a fire and serious injury, so the violation was not significant and substantial. The citation was amended to a section 104(a) citation and a $700 penalty was assessed.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.326
• Outcome: The violation was affirmed but reclassified as a non-S&S section 104(a) citation without an unwarrantable-failure finding, and a $700 penalty was assessed.
• Key point: A prohibited airflow condition may be a violation even when it was inadvertent, but S&S and unwarrantable-failure findings require additional proof of serious hazard likelihood and aggravated conduct.

Full text (FMSHRC public release)

       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 92-350
Petitioner : A. C. No. 15-04670-03673
v. :
: No. 37 Mine
ARCH OF KENTUCKY INCORPORATED, :
Respondent :

                             DECISION

Appearances: Mary Sue Taylor, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Petitioner;
Marco M. Rajkovich, Esq., Wyatt, Tarrant, & Combs,
Lexington, Kentucky, for Respondent.

Before: Judge Weisberger

                      Statement of the Case

 This civil penalty proceeding is before me based upon a

petition for assessment of civil penalty filed by the Secretary
of Labor (Petitioner) alleging a violation by the Operator
(Respondent) of 30 C.F.R. 75.326. Pursuant to notice the case
was scheduled and heard in Johnson City, Tennessee on October 22,
1992. James W. Poynter testified for Petitioner, and Don
Henderickson, and Benny Dixon, testified for Respondent.
Petitioner and Respondent filed post-hearing briefs on December
29 and December 28, respectively.

                 Findings of Fact and Discussion

I. Introduction

 The G-4 Longwall Panel at Respondent's Karst Mine is located

under another coal mine, and has experienced pressure from both
the roof and the mine floor. Subsequent to the opening of the
section on February 28, 1991, due to continuing roof control
problems Respondent had to have the area re-bolted with super
bolts. Additional supports in the forms of cribs, and donut
cribs with beams on top, were also installed.

 On July 15, 1991, a roof fall approximately 120 feet long,

and the full width of the 18 foot wide entry, occurred in the
belt entry between crosscuts 6 and 8. Additional cribbing was

again installed in the G-4 North Panel, and the area was
rebolted. The following day, another roof fall occurred in the
belt entry on top of the first fall, and it was decided to
abandon the area and remove all equipment. As a consequence of
the roof falls and deteriorating roof condition, stoppings were
removed in the 6 and 8 crosscuts in order to installed additional
support around the fall. The belt line was re-routed to detour
the area of the fall, and new stoppings were installed to isolate
the re-routed belt line from the intake entry. Subsequent to the
roof fall on July 15, supplies were continuously brought to the
area in question, in order to provide additional support which
was being done on an on going basis. Subsequent to the roof
fall, nothing was done to intentionally alter the ventilation as
required by Respondent's ventilation plan.

 Once supplies were brought onto the section, they had to be

hand carried either through a door in the third crosscut between
the belt and intake entry, or between the doors built into the
stoppings in crosscut No. 8 between the belt and intake entries,
and in the intake entry just inby crosscut No. 8.

 In normal operation, the doors separating the belt from the

intake entries are kept closed in order to prevent air in the
belt from going to the face. However, subsequent to the roof
falls on July 15, the doors were opened in order to allow the
transfer of material to the belt entry, as there was no other
access. None of the doors were kept open for the purpose of
having air go from the belt entry to the face.

 A few days after July 15, another roof occurred in the No. 7

crosscut to the track entry. The fall, 8 to 10 feet high,
covered the width of the entry and extended 100 feet.

II. Violation of 30 C.F.R. 75.326

 On July 31, 1991, James W. Poynter, an MSHA Inspector,

inspected the area in question. According to Poynter, at
approximately 10:30 a.m., while in the belt entry between
crosscuts 5 and 6, he felt movement of air in the beltway which
was "very perceptible" (Tr. 65). He picked up a hand full of
rock dust, tossed it in the air, and it "easily showed the
direction of the air current travel" (Tr. 65) inby. The active
working place was a little more than four crosscuts inby.
According to the ventilation plan, air in the belt entry is to
course outby to a regulator located at the intersection of the
G-4 Beltline and the return entry of the G-North Panel. Poynter
issued a section 104(d)(2) order alleging a violation of 30
C.F.R. 75.326, which, as pertinent, provides that intake
entries shall be separated from the belt entry and that air
coursing the belt entry "...shall not be used to ventilate"
active working places.

 Respondent has not rebutted or impeached the testimony by

Poynter with regard to the flow of air inby as observed by him in
the belt entry. As conceded by Benny Dixon, who was Respondent's
day shift supervisor on July 31, if air is going inby in the belt
entry it is "likely" that some will go across the face (Tr. 305)
It is Respondent's position that Section 75.326 supra, which
precludes air in the belt entry from being used to ventilate the
working place, is violated only when an operator has "employed
belt air for the given purpose of ventilating the working face".
I do not accept Respondent's argument. There is nothing in the
plain language of section 75.326 supra, to support the
interpretation urged by Respondent. There is no language
indicating that only a planned or intentional use by an operator
by air from the belt entry to ventilate the working face is
prohibited. Nor does the legislative history of the statutory
provision which has been repeated in section 75.326 supra, allow
for the interpretation urged by Respondent. In this connection,
I take cognizance of the Senate Report of the Committee on Labor
and Public Welfare accompanying S. 2917, regarding the purpose of
Section 204(y) whose pertinent language was continued in the
Federal Mine Safety and Health Act of 1977, "the Act," and
reiterated in Section 75.326 supra. (S. Rep. No. 91-411, 91st
Cong., 1st Sess. (1969), reprinted in Legislative History of the
Federal Coal Mine Health and Safety Act of 1969. ("Legislative
History")) The Senate Report provides as follows:

       The objective of the section is to reduce high air
  velocities in trolley and belt haulageways where the
  coal is transported because such velocities fan and
  propagate mine fires, many of which originate along the
  haulageways. Rapid intake air currents also carry
  products of the fire to the working places quickly
  before the men know of the fire and lessen their time
  for escape. If they use the return aircourses to
  escape, the air coursed through may contain these
  products and quickly overtake them. Also, the
  objective is to reduce the amount of float coal dust
  along belt and trolley haulageways. (Senate Report
  supra at 64, Legislative History, supra at 190).

 Hence, the expressed intention of Congress in enacting the

language found in Section 75.326, was to reduce the hazards of
the propagation of mine fires and the carrying of fire products
to the working places. In order to interpret Section 75.326
supra consistent with Congressional intent, i.e. to minimize the
hazards which formed the basis of Congressional concern, I
conclude that Section 75.326 supra has been violated where the
proscribed condition, i.e. air in the belt entry used to
ventilate the working place, has arisen even inadvertently and

without the expressed intent of the operator.1 To accept
Respondent's position, would be in conflict with Commission
authority holding that because the purpose of the Act is the
protection of miners, the regulatory scheme of mandatory safety
standards contemplates the strict liability of an operator. (See
Western Fuels-Utah, 10 FMSHRC 256 (1988); Asarco, Inc, FMSHRC
1632 (1986))

III. Unwarrantable Failure

 According to Poynter, when he observed the flow of air from

the belt entry inby, he went to examine the cause for the
direction of air flow. He indicated that he observed four
conditions which could have given rise to the violative change in
air flow. In the No. 3 crosscut, the double doors were partially
open, a car was parked in the opening, and a curtain had been
draped across the car but did not extend to the floor. Also, at a
point where the belt in question went over an overcast, two
doors at the inby wall of the overcast were closed. At a head
drive (headdrive C) a door was open in the stopping isolating the
belt from intake air. Lastly, at a point approximately 120 feet
outby the working face where the belt was separated from the
intake entry, a curtain was hung "very loosely". (Tr.60)
According to Poynter, these conditions were "easily observed"
(Tr.67), and the improper direction of the flow of air could have
been remedied by tightening the curtain that was loosely hung,
closing the mandoor, and properly closing off the two supply
doors. He also indicated that as soon he entered the belt entry,
"instantaneously" (Tr. 68), he could feel that the air direction
was wrong. In essence, none of this testimony by Poynter in
these regards was rebutted or impeached by Respondent. Indeed,
Benny Dixon, Respondents day shift supervisor conceded that the
four factors referred to by Poynter could possibly have caused
the air to go the wrong way. In essence, this testimony of
Poynter appears to provide the basis for the argument of
Petitioner that the violation herein was as a result of
Respondent's "unwarrantable failure".

 In order to find that a violation resulted from the

Respondent's "unwarrantable failure" it must be established that
there existed "aggravated conduct", on the part of the Respondent
i.e. more than ordinary negligence (Emery Mining Co., 9 FMSHRC
1997 (December 1987)).

 I find, based on Poynter's testimony, that the improper

direction of the air in the belt entry was obvious. Also, I
find, based on Poynter's testimony, that once a change in a

 1to the extent that American Coal Company, 1 FMSHRC 1057

(August 17, 1979, Judge Michels) relied on by Respondent, is
inconsistent with this decision, I choose not to follow it.

direction in the air flow was noted, a search for its cause
should have been made, and such a search would have revealed the
conditions observed by Poynter as, according to his testimony,
they were obvious. Also unchallenged are Poynter's assertions
with regard to the steps that should have been taken to remedy
the reversal in air flow. I thus find that Respondent herein was
negligent to a moderate degree with regard to the violation
herein.

 However, there is no evidence as to when the change in air

flow first became perceptible. Nor is there any evidence as to
how long the conditions observed by Poynter, which could have
caused the reversal in air flow had been in existence. Neither
the pre-shift examination report of July 31, nor the report of
two other examinations made on July 30 and July 31 (Exhibits R-1
and R-2), note any abnormality in the direction of air flow in the
beltline. According to Poynter, he spoke with Ben Rhymer, the
foreman of the shift that had begun at 8:00 a.m., and asked
him if he "made the belt", and Rhymer indicated that he did, but
he did not recall the direction of the air. Further, a finding
of a degree of negligence more than ordinary i.e. aggravated
conduct, is mitigated by the fact that, as indicated by Dixon,
the doors were left open, as they were the only means of access
for equipment to brought to the area in question. The equipment
was being brought to the area in question on a continuous basis
in order to provide critical support to an unstable roof that had
already fallen three times, and had experienced numerous bumps.
It also is noted that the doors were normally closed, and
employees were instructed at weekly meetings with regard to the
closing of doors. Further, although a car had been parked in the
doorway which apparently resulted in a curtain being draped over
it which did not reach the floor, according to the uncontradicted
testimony of Dixon there was no other area for the car to be
stored. He indicated that such storage was necessary in order to
allow other equipment to go inby to facilitate the supporting of
the roof. For these reasons, and taking into account the
priority placed by Respondent on working on a continuous basis to
support the hazardous roof, I find that it has not been
established that the violation herein was as the result of
Respondent's unwarrantable failure. (See, Emery, supra).

IV. Significant and Substantial

 Petitioner also takes the position that the violation herein

has set forth by Poynter is significant and substantial. A
"significant and substantial" violation is described in section
104(d)(1) of the Mine Act as a violation "of such nature as could
significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard."
30 C.F.R. 814(d)(1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood

that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

 In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the

Commission explained its interpretation of the term "significant
and substantial" 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.

 In United States Steel Mining Company, Inc., 7 FMSHRC 1125,

1129, the Commission stated further as follows:

       We have explained further 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., 6 FMSHRC 1834,
  1836 (August 1984). We have emphasized that, in
  accordance with the language of section 104(d)(1), it
  is the contribution of a violation to the cause and
  effect of a hazard that must be significant and
  substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
  1866, 1868 (August 1984); U.S. Steel Mining Company,
  Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

 The question of whether any particular violation is

significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).

 As discussed above infra, II, the record establishes a

violation of a mandatory standard i.e. Section 75.326 supra. I
also find that the flow of air from the beltline toward the
working place clearly contributed to the hazard of an injury to
miners working inby as a consequence of a fire. Hence, the first
two elements of Mathies have been met. The key issue herein is
the existence of the third element of Mathies. In order for this
element to be met, Petitioner must establish a reasonable
likelihood of the existence of an injury producing event i.e.,

herein, a fire. In this connection, Poynter testified that the
drives contained electrical installations and drive motors which
are known to cause fires. Further, in the event of a fire the
hazards are exacerbated by the fact that the deluge system is not
present at the drives of the belts. However, Poynter did not
indicate the existence of any defects in any of the electrical
equipment. Also, he indicated on crosss-examination, that from
the new belt drives to the section it was very wet. According to
the uncontradicted testimony of Dixon, the belt was 5 1/2 feet
off the bottom of the floor, and hence there were no friction
points. Also, according to the uncontradicted testimony of
Dixon, although the deluge system was not present, the CO Censor
was in operation, there were four fire extinguishers at the head
drives, as well as a 2,000 foot fire hose at a power center in the
area, as well as 4 inch water lines. Also mitigating against
likelihood of a fire is the fact that no methane was indicated to
be present.

 Therefore, for all these reasons I conclude that there was

not a reasonable likelihood of an injury producing event, i.e. a
fire, contributed to by the violation herein. Thus, I find that
it has not been established that the violation was significant
and substantial (See Mathies and U.S. Steel).

 Considering all the statutory factors set forth in Section

110(i) of the Act, I find a penalty of $700 to be appropriate.

                          ORDER

 It is ORDERED that Citation No. 3834380 be amended to

reflect the fact that the violation therein was not significant
and substantial and was not the result of the Operator's
unwarrantable failure. It is further ORDERED that the citation
herein be amended to a Section 104(a) citation. It is further
ORDERED that within 30 days of this decision Respondent pay a
civil penalty of $700 for the violation found herein.

                            Avram Weisberger
                            Administrative Law Judge

Distribution:

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)

Marco M. Rajkovich, Jr., Esq., Wyatt, Tarrant & Combs, Lexington
Financial Center, 250 West Main Street, Lexington, KY 40507
(Certified Mail)

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