Prabhu Deshetty, employed by Island Creek Coal Company

Plain-English summary

Prabhu Deshetty, the mine manager for Island Creek Coal Company's Hamilton No. 2 Mine, was charged as an agent who knowingly authorized, ordered, or carried out a violation involving coal dust accumulations. Judge Gary Melick found large accumulations along the No. 1 beltline, including a 36-inch deposit, in violation of 30 C.F.R. § 75.400. Deshetty had responsibility for mine safety, knew of numerous recent accumulation violations, and had signed belt examination reports that identified cleaning needs without confirming corrective action. The judge found the violation highly serious and Deshetty highly negligent, and assessed a $1,500 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.400
• Outcome: The knowing violation was established and a $1,500 civil penalty was assessed.
• Key point: A responsible mine manager may be liable under section 110(c) when information available to him gave him reason to know of a continuing combustible-material accumulation and he failed to act.

Full text (FMSHRC public release)

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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 92-549
Petitioner : A.C. No. 15-02706-03753-A
v. :
: Hamilton No. 2 Mine
PRABHU DESHETTY, employed by :
ISLAND CREEK COAL COMPANY, :
Respondent :

                            DECISION

Appearances: Gretchen M. Lucken, Esq., Office of the
Solicitor, U.S. Department of Labor,
Arlington, Virginia, for Petitioner;
Timothy M. Biddle, Esq. and J. Michael Klise,
Esq., Crowell and Moring, for Respondent.

Before: Judge Melick

 This case is before me upon the petition for civil

penalties filed by the Secretary of Labor pursuant to
Section 110(c) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. 801, et seq., the "Act," charging
Prabhu Deshetty as an agent of a corporate mine operator,
i.e. Island Creek Coal Company (Island Creek), with knowingly
authorizing, ordering, or carrying out a violation by that
mine operator of the mandatory standard at 30 C.F.R.
75.400 as alleged in Order No. 3549013.(Footnote 1

1 Section 110(c) provides as follows:
"Whenever a corporate operator violates a mandatory
health or safety standard or knowingly violates or fails
or refuses to comply with any order issued under this Act
or any order incorporated in a final decision issued under
this Act, except an order incorporated in a decision issued
under subsection 105(c), any director, officer, or agent of
such corporation, who knowingly authorized, ordered, or
carried out such violation, failure, or refusal shall be
subject to the same civil penalties, fines, and imprisonment
that may be imposed upon a person under subsections (a) and (b)."

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Order No. 3549013, issued at 9:30 a.m. on January 15,
1991, alleges as follows:

   Loose fine coal, coal dust and float coal dust
   was permitted to accumulate in dangrous [sic]
   amounts under and along the #1 Unit MMU 003 panel
   belt conveyor for a distance of approximately
   eight hundred feet. The fine coal and coal
   dust ranged in depth from four inches to
   thirty six inches very black in color and dry,
   three damaged or frozen belt rollers was [sic]
   flaged [sic] along the belt conveyor. The belt
   examiners record book has the conditions recorded
   from 1-7-91 to 1-14-91 no corrective actions where
   [sic] shown in record book. Rock-dust layers in
   the 36" coal dust where examined showed it had
   been rockdusted over top of coal dust at least two
   times.

 The cited standard, 30 C.F.R.   75.400, provides that

"[c]oal dust, including float coal dust deposited on rock-
dusted surfaces, loose coal, and other combustible materials
shall be cleaned up and not be permitted to accumulate in
active workings, or on electric equipment therein."

 Prabhu Deshetty, as mine manager of the Island Creek

Hamilton No. 2 Mine, does not dispute that he was an agent
of the cited corporate mine operator, but denies that there
was a violation as charged and maintains that even assuming
there was a violation, he did not knowingly authorize, order,
or carry out such a violation.

 I find, however, from the credible testimony of

experienced Mine Safety and Health Administration (MSHA)
Inspector Harold Gamblin alone, that the violation has been
proven as charged. I further find that Inspector Gamblin's
testimony is corroborated in significant respects by the
testimony of Respondent's witnesses. Indeed, Deshetty him-
self acknowledged that when he proceeded underground on
January 15, 1991, shortly after the order at bar was issued
and presumably during the abatement cleanup, he observed
a pile of coal dust some eight inches to twelve inches in
height as it was being cleaned behind the head drive.
Deshetty also acknowledged that he thereafter walked the
length of the beltline and observed other areas with coal
spillage up to ten inches deep. He further acknowledged that
it took 16 miners nearly two hours to clean the cited area.

 While admitting the existence of these loose coal

and coal dust deposits in the cited areas, including those
depicted in the photograph in evidence as Exhibit R-3,

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Deshetty maintained only that these did not constitute a
hazard. While not denying the existence of the cited 36-inch
pile of coal dust Deshetty denied at hearing that even this
was an illegal accumulation based on his stated belief that
only coal dust which is touching a frictional area would be
illegal.

 Stan Bealmear, a shift foreman who was training for

the Island Creek safety department at the time the order was
issued, accompanied Inspector Gamblin on the No. 1 Unit and
acknowledged that this pile of coal dust at the takeup of the
drive of the No. 1 belt was measured by Gamblin at about
twelve inches by thirty-six inches. He further acknowledged
that this thirty-six inch deposit would probably have taken
a couple of shifts to have developed. This corroborates
Gamblin's discovery of several layers of rock dust in this
coal deposit and his conclusion that this deposit had therefore
developed over an extended period of time. While Bealmear also
stated that he did not see any rollers operating in coal dust,
he acknowledged that as a result of the withdrawal order
issued in this case they replaced three defective rollers.

 Shuttle car driver James Hill, testifying on behalf of

the Respondent, also acknowledged the existence of a pile of
coal behind the header which he estimated to have been about
three feet high by three feet long. Island Creek Belt
Inspectors Henry Grisham and Garry Hatfield both testified
that even the coal dust piles along the cited belt line and
appearing in Respondent's photographs (Exhibit R-1 through R-9)
constituted accumulations that should have been cleaned up.
These photographs were taken by Island Creek after the order
had been issued and the cleanup had commenced. The photographs
admittedly did not even depict the worst deposits present along
the belt line.

 Within this framework of evidence it is clear that

significant loose coal and coal dust accumulations existed
along the No. 1 beltline in violation of the standard at
30 C.F.R. 75.400. In reaching this conclusion I have not
disregarded the testimony of Respondent's witnesses that
much of the accumulated material was wet and, in particular,
the thirty-six inch accumulation was wet from water sprays at
that location. Even assuming, arguendo, that this was true,
the Commission has observed in Black Diamond Coal Co., 7 FMSHRC
1117 (1985) that such coal dust accumulations nevertheless
present a serious hazard and are in violation of the cited
standard in light of the fact that accumulations may be quickly
dried.

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The remaining issue to be decided is whether Mr. Deshetty
"knowingly authorized, ordered or carried out" any of the
violative conditions. The Commission defined the term "know-
ingly," as used in the statutory predecessor to Section 110(c),
in Kenny Richardson v. Secretary of Labor, 3 FMSHRC 8 (1981),
aff'd 669 F.2d 632 (6th Cir. 1982), cert denied, 461 U.S. 928
(1983) as follows:

   'Knowingly,' as used in the Act, does not have
   any meaning of bad faith or evil purpose or
   criminal intent. Its meaning is rather that
   used in contract law, where it means knowing
   or having reason to know. A person has reason
   to know when he has such information as would
   lead a person exercising reasonable care to
   acquire knowledge of the fact in question or
   to infer its existence ... . We believe this
   interpretation is consistent with both the statutory
   language and the remedial intent of the Coal Act.
   If a person in a position to protect employee
   safety and health fails to act on the basis of
   information that gives him knowledge or reason to
   know of the existence of a violative condition,
   he has acted knowingly and in a manner contrary to
   the remedial nature of the statute. 3 FMSHRC 16.

 In this case there is no dispute that Deshetty, as mine

manager of the Hamilton No. 2 Mine during the latter part
of 1990 through the date of the violation here at issue,
was in a position of responsibility for the safety of the
mine, including the maintenance of the No. 1 beltline free of
illegal accumulations of coal dust, float coal dust and other
combustible materials. Furthermore, Deshetty was placed on
specific notice of problems regarding combustible accumula-
tions at this mine by a particularly large number of recent
violations of the mandatory standard at issue herein (See
Government Exhibit No. 1).

 Indeed, the evidence shows that in the year preceding

the instant order, there were 45 violations of this standard
at the mine. It is therefore clear, and should have been clear
to Deshetty as mine manager, that long before, and at the time,
the Hamilton No. 2 Mine had a serious problem with repeated
violations for the accumulation of combustible materials.
Deshetty admitted that he knew of these prior violations and
had personally reviewed all of the corresponding citations
with the MSHA inspectors. Inspector Gamblin confirmed that he
had previously discussed such citations with, and had recently
warned Deshetty that his mine had been issued too many
violations for the accumulation of combustible materials.

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More particularly, Deshetty had reason to know of the
existence of coal dust accumulations along the cited belt-
line before the instant order was issued at 9:30 a.m. on
January 15, 1991, by the recent preceding reports of his
belt examiners citing the need to clean the No. 1 Unit
beltline (See Government Exhibit No. 3). Significantly,
there were insufficient corresponding entries in the reports
from which it could be determined that these conditions
had been corrected. Deshetty admittedly countersigned these
reports while conceding that he did not know whether the
conditions had been corrected and acknowledged there was no
way to ascertain from the belt examiner's reports whether
any cleaning or other corrective action had been taken.(Footnote
2)

 More particularly, however, in determining whether

Deshetty knowingly committed the cited violation, I need
focus on only one of the specific accumulations charged,
i.e. a 36-inch accumulation of fine coal and coal dust outby
the takeup at the belt drive. Inspector Gamblin observed
that this accumulation contained at least two layers of rock
dust. Based on this undisputed evidence Gamblin concluded
that this accumulation had existed for two or three weeks.
Foreman Stanley Bealmear also concluded from this evidence
that this accumulation had existed for an extended period of
time, at least two or three shifts.

 In concluding that Deshetty, at 9:30 a.m., on May 15,

1991, had reason to know of this long standing accumulation
one need only to refer to the repeated entries in preceding
belt examination reports expressing the need for cleaning
along the No. 1 Unit belt and stating that the belt was "dirty."
It is inconsequential for purposes of establishing notice that
these entries may not have specifically identified this same
36-inch deposit. It is reasonable to infer from these repeated
entries, without corresponding notations of corrective action,
that Deshetty, who countersigned the reports, had reason to
know of this accumulation which had, according to the credible
evidence, existed for up to three weeks before it was cited by
Inspector Gamblin.

 Under the circumstances I find that the Secretary has

sustained her burden of proving that Deshetty had reason to
know of the violation charged in Order No. 3540913. Inspector
Gamblin's ability to observe and his motivation are unchallenged.
I therefore accord great weight to his testimony that several
belt rollers were actually in contact with some of the coal

2 The belt examiner's reports do reflect some corrective action taken in
response to some reported hazardous conditions, but these entries are not
relevant to the accumulation at issue.

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dust accumulations. Under the circumstances the violation
was of high gravity. Based on my findings herein that
Deshetty had reason to know of the violative condition I also
find that he was highly negligent. There is no evidence that
Deshetty has any prior violations under the Act. Under the
circumstances I find that the Secretary's proposed penalty
of $1,500 is appropriate.

                          ORDER

 Prabhu Deshetty is directed to pay a civil penalty of

$1,500 within 30 days of the date of this decision.

                            Gary Melick
                            Administrative Law Judge

Distribution:

Gretchen M. Lucken, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Suite 400,
Arlington, VA 22203 (Certified Mail)

Timothy M. Biddle, Esq. and J. Michael Klise, Esq.,
Crowell and and Moring, 1001 Pennsylvania Avenue, N.W.,
Washington, D.C. 20004-2595 (Certified Mail)

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