Nats Creek Mining Company
Nats Creek Mining Company (FMSHRC KENT 93-974): Ten citations and two imminent-danger orders affirmed
Apply this to your situation
This order from 1995 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
Nats Creek Mining operated the Sugarloaf No. 2 underground coal mine in Kentucky. After a fatal accident involving a scoop operator, MSHA cited the mine for missing or inoperative methane monitors and an inoperative fire-suppression system on scoops. MSHA also cited an underground battery charging station that used return air and non-permissible chargers, and a conveyor system with an inoperative fire sensor, combustible accumulations, and damaged or stuck rollers. Judge William Fauver found that the 10 citations and two imminent-danger orders were supported by the evidence, rejected the operator's financial-hardship claim, and assessed $23,175 in civil penalties.
Decision snapshot
- Cited standards: 30 C.F.R. §§ 75.2, 75.340(a)(1), 75.342(a)(1), 75.400, 75.503, 75.507-1(a), 75.1100-3, 75.1103-1, and 75.1725
- Outcome: Ten citations and two imminent-danger orders were affirmed. Nats Creek was ordered to pay $23,175.
- Key point: The judge found that the cited equipment and mine conditions violated the Mine Act and applicable safety standards, and that the evidence supported the imminent-danger orders.
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
February 2, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 93-974
Petitioner : A.C. No. 15-16492-03540
:
v. : Docket No. KENT 94-51
: A.C. No. 15-16492-03541
NATS CREEK MINING COMPANY, :
Respondent : Docket No. KENT 93-877
: A.C. No. 15-16492-03537
DECISION
Appearances: Anne T. Knauff, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Petitioner;
Billy R. Shelton, Esq., Baird, Baird, Baird &
Jones, Pikeville, Kentucky, for the Respondent.
Before: Judge Fauver
These are consolidated civil penalty cases under ' 110(a) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
' 801 et seq.
Docket No. KENT 93-877 involves five ' 104(a) citations
issued on December 1, 1992, alleging significant and substantial
violations due to a moderate level of negligence. Four of the
citations allege that certain scoops were not equipped with
operative methane monitors. The fifth alleges that a fire
suppression system on a scoop was rendered inoperative by a
missing hose.
Docket No. KENT 93-974 involves two ' 104(a) citations and a
' 107(a) imminent danger withdrawal order issued on December 8,
1992. The citations allege significant and substantial
violations due to high negligence. One citation alleges that an
underground battery charging station was not housed in an
adequate fireproof structure and was in return air. The other
alleges that non-permissible battery chargers were used while the
battery charging station was ventilated with return air.
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Docket No. KENT 94-51 involves three ' 104(a) citations and
a ' 107(a) order issued on June 24, 1993. The citations allege
significant and substantial violations due to high negligence.
One citation alleges that an automatic fire sensor warning device
for four conveyer belts was inoperative. The second citation
alleges accumulations of combustible material around the conveyor
belts. The third citation alleges that there were damaged,
broken and stuck rollers on a conveyor belt and the belt came
into contact with accumulations of combustible material.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the Findings of Fact and
further findings in the Discussion below:
FINDINGS OF FACT
1. Nats Creek Mining Co., Inc., operates Sugarloaf No. 2
Mine in Floyd County, Kentucky, as a contract miner for JRC Land
and Equipment Company of Lexington, Kentucky. The mine produces
about 160,000 tons of coal per year from one production section,
operating three shifts, five or six days a week. The coal is
sold in or with substantial effect upon interstate commerce.
Scoops
2. Scoops are used to load and haul coal from the face to a
conveyor belt system.
3. The mine liberates about 17,600 cubic feet of methane
daily. At that rate of liberation, methane could accumulate to
an explosive concentration (5 to 15 percent) in about a 12-hour
period if the mine fan were off.
4. On Saturday evening, November 28, 1992, there was a fatal
accident when a scoop operator was crushed between the rib and
his vehicle.
5. Inspector Mark Bartley went to the mine on December 1,
1992, to perform a spot electrical inspection and to assist in
the investigation of the fatal accident. The investigation was
handled jointly by MSHA and the Kentucky Department of Mines and
Minerals.
6. MSHA issued a work-stoppage order to preserve the
accident site and equipment. Under the MSHA order, the equipment
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was to be kept in the same condition as it was on November 28,
1992.
7. Because the coal seam was only 34 to 38 inches high, MSHA
ordered all the scoops to be brought out of the mine so that
Inspector Bartley could examine them more thoroughly. Nine
scoops were brought out of the mine. All were found in violation
of at least one safety standard. Inspector Bartley issued 20
citations on the scoops.
8. All of the scoops were subject to being used to load coal
at the face. Nats Creek acknowledged that seven of the nine
scoops routinely were used at the face, but the company could not
tell Inspector Bartley which three or four scoops were in service
at the time of the fatal accident. No records were maintained to
showed whether a scoop was used inby or outby the last open
crosscut on any given date.
9. None of the nine scoops was tagged out of service or
listed as out of service in the company's books as of November 28
through December 1, 1992.
10. All nine scoops were operative and subject to being used
inby the last open crosscut. Inspector Bartley observed all of
the scoops come out of the mine under their own power. Nats
Creek's electrician confirmed that the scoops came out of the
mine under their own power.
11. Methane monitors on the scoops are designed to give a
warning when one percent methane appears in the atmosphere. At
two percent, the methane monitors are designed to de-energize the
machine to prevent a methane ignition.
12. Inspector Bartley tested the methane monitor on scoop
No. 105A/R11079-210. When he found that it was inoperative, he
issued ' 104(a) Citation No. 4017965. The methane monitor
display on the scoop was missing and the whole internal component
had been taken out of the monitor. The display was three inches
in diameter, so that it was easy to see that the display was
gone.
13. Inspector Bartley examined the AR-4 Elkhorn scoop and
found that there was no methane monitor on the scoop. He then
issued Citation No. 4017967. Nats Creek's electrician confirmed
that there was no methane monitor on the scoop. This is the
scoop that was involved in the fatal accident.
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14. Inspector Bartley examined scoop No. 486-1193 and found
that the read-out methane monitor display was missing and the
monitor did not work. He then issued Citation No. 4017975.
15. Inspector Bartley determined that all four of the
methane monitor violations were significant and substantial.
There was a known history of methane liberation at the mine.
There was no other automatic de-energization device on the
equipment. There was no other automatic methane detection device
on the section. The inoperative methane monitors could
significantly and substantially contribute to an explosion or an
ignition.
16. Inspector Bartley determined that a moderate level of
negligence was involved in each of the methane monitor
violations.
17. Inspector Bartley examined the AR-4 Elkhorn scoop, the
one involved in the fatal accident, and found that, in addition
to missing a methane monitor, it had an inoperative fire-
suppression system. A hose to the activator was missing.
Because of this condition, he issued Citation No. 4017968.
18. The manual activator is a pressurized cylinder. A
button on the one-time-use cylinder is designed to pop a bladder
cap on the cylinder seal to release pressure out of the cylinder.
The pressure travels through a hose to force a chemical
discharge to put out a fire. The hose is 1/4 to 1/2 inch in
diameter and about eight feet long. The system is manually
activated; that is, the operator has to hit the button on the
cylinder to cause the system to work. The button is within arm's
reach of the operator's compartment. The hose is an essential
part of the fire-suppression system. Without it, there is no way
to discharge the chemical to suppress a fire. The fire-
suppression system is an enclosed, self-contained system. The
missing hose rendered the system inoperative. Nats Creek's
superintendent and electrician told Inspector Bartley that the
scoop was subject to being used in and inby the last open
crosscut. There was no indication on the scoop that it was
restricted to use outby the last open crosscut.
19. Inspector Bartley determined that the violation was
significant and substantial. If there had been a fire on the
vehicle, there would have been no way to extinguish the fire
readily. If the scoop operator had been trapped, he could have
been burned alive. The scoop came out of the mine under its own
power. It was not tagged out of service and it was subject to
being used anywhere in the mine.
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20. Inspector Bartley determined that a moderate level of
negligence was involved in this violation. He could not tell how
long the hose had been missing, but noted that the hose
connections were dirty, indicating that the hose had been missing
for a substantial period.
Battery Charging Station
21. On December 8, 1992, Inspector Donnie R. Johnson found
that the battery charging station was ventilated with return air
and that no intake air was supplied to the station.
22. Inspector Johnson determined that the observed
conditions constituted an imminent danger. Non-permissible
equipment was in the charging station. There were open energized
circuits in the charging units. Return air was coming into the
battery charging station from the face area. A worked-out coal
panel to the right of the station could produce methane or toxic
fumes. Coal dust coming from the face could cause an ignition or
an explosion. An ignition or explosion could blow out permanent
ventilation controls. Coal dust could propagate an explosion or
fire throughout the mine. The charging station was 20 or 25
crosscuts outby the working section. Based upon the conditions
observed, Inspector Johnson issued imminent danger withdrawal
Order No. 3516672.
23. Inspector Johnson issued ' 104(a) Citation No. 3516674
on December 8, 1992, charging a violation of 30 C.F.R.
' 75.340(a)(1). The regulation requires that underground battery
charging stations be located in noncombustible structures or
areas or be equipped with a fire-suppression system. The
equipment must be ventilated by intake air that has not been used
to ventilate working places. The battery charging station was
not housed in a fireproof structure or equipped with a fire-
suppression system. It was not ventilated with intake air. Two
brattices had been removed to allow the return air from the 001-0
section to pass through and ventilate the battery charging
station, where six energized 480-volt batteries were charging
scoop batteries.
24. The coal ribs that formed the battery charging station
were not insulated or fireproofed. The station was located
between pillar blocks of coal that were left when the entries
were mined and developed with crosscuts connecting the entries.
There was no enclosing structure. The exposed coal ribs and coal
dust on the floor were combustible. The station was littered
with empty cardboard boxes and open cans which contained
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hydraulic fluid. Inspector Johnson found about 45 empty
cardboard boxes piled up between batteries and a brattice.
25. There was no fire-suppression system or automatic fire-
fighting equipment at the charging station. Two small hand-held
five-pound fire extinguishers were in the area. There were hoses
and jugs of water in the charging station. However, Respondent's
superintendent was aware that firefighting problems would be
compounded by trying to use water to fight an electrical fire.
At least two of the battery chargers and the batteries were
against the coal ribs. Batteries being charged generate heat.
The charging unit also produces heat. Hydrogen is a by-product
of the battery charging process. It is very explosive, with an
explosive range of 4 to 74 percent. As the plates in the
batteries expand, they push up liquid. Any hydrogen on top of
the liquid in the cell is pushed out into the atmosphere.
26. Return air was used to ventilate the battery charging
station. The air passed through the last working place in the
active section before it ventilated the charging station.
Inspector Johnson observed that the battery charging station was
energized. He could hear the chargers humming, the batteries
bubbling, and he could smell the distinctive odor associated with
charging batteries. The cords for the charges and the batteries
were plugged together. Three scoops and four sets of batteries
were being charged.
27. Inspector Johnson determined that this was a significant
and substantial violation. The mine liberates methane. If
return air containing methane and coal dust from the face passed
over the energized electrical components in the charging station,
and a spark was released, the spark could have caused a fire or
an explosion. The battery chargers were not permissible
equipment. If there had been an explosion, it could have blown
out the ventilation controls between the return and intake air
courses. If the ventilation controls had been blown out, the
fresh air going to the working face could have been contaminated.
If the single mine fan had been blown out by an explosion, there
would have been no ventilation in the mine.
It was highly likely that if mining had continued, the conditions
found by the inspector would result in serious injury.
28. Inspector Johnson determined that high negligence was
associated with the violation charged in Citation No. 3516674.
The violation had existed for a substantial period, probably a
month. The mine superintendent concurred in this estimate. He
told Inspector Johnson, before they went underground, that there
was a problem with the charging station. He did not mention then
that it was being ventilated with return air, but confirmed later
that it was ventilated that way. There was no evidence of any
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efforts to fireproof the battery charging station, to ventilate
it with intake air, or to keep the return air out of it. The
conditions found by the inspector were obvious to anyone with a
reasonable knowledge of mining practices and ventilation control.
The cited conditions should have been discovered and corrected
during the routine preshift examinations, but they were not
reported in the preshift examination records.
29. The citation was terminated after abatement of the
violative conditions. The coal ribs were insulated with a
noncombustible sealer to form a fire protection barrier between
the coal ribs and the charging units. The mine floor was cleaned
up. Rock dust was applied to all the areas. The cardboard
containers, plastic containers and empty oil cans were removed
from the underground area of the mine. Double airlock doors were
installed. A brattice and regulators were installed. The
changes allowed intake air to ventilate the charging station.
After ventilating the station, the air coursed out into the
return air course. All the corrective actions were completed in
one day.
30. Inspector Johnson issued ' 104(a) Citation No. 3516675
on December 8, 1992. Originally, the citation cited a violation
of 30 C.F.R. ' 75.503. During the hearing an amendment was
allowed to conform to the proof. The cited regulation was
changed to 30 C.F.R. ' 507-1(a), which provides that electric
equipment used in return air outby the last open crosscut must be
permissible equipment. Non-permissible 480-volt battery chargers
were found at the charging station in return air.
31. For the same reasons given for his findings as to
Citation No. 3516674, Inspector Johnson determined that this was
a significant and substantial violation involving a high level of
negligence, and was highly likely to result in fatal injuries.
Conveyor Belt System
32. On June 24, 1993, Inspector Johnson began a quarterly
inspection of the mine. Advance mining was underway. When he
arrived at the mine, he met with the superintendent, who told him
that because a rock-picking table was being repaired the conveyor
belts were not moving. Inspector Johnson informed the
superintendent that he would start traveling the conveyor belts
that day, since they would not be operating. Inspector Johnson
entered the No. 2 belt entry portal to crawl the belts. Along
the No. 1 conveyor belt Inspector Johnson observed three
conditions that caused him to issue ' 107(a) Order No. 4027494,
finding an imminent danger: The automatic fire sensor warning
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device was inoperative. There were damaged and stuck rollers.
There were extensive accumulations of loose coal, coal dust and
float coal dust. Inspector Johnson saw no evidence of efforts to
correct these conditions. Methane was being liberated at the
rate of about 17,600 cubic feet per day. Inspector Johnson
feared that when the conveyor belts started again, the three
conditions would combine to result in a serious mine fire or a
coal dust explosion. He immediately returned to the surface to
issue a ' 107(a) order and to put a red tag on the No. 2 portal
canopy for the belt conveyor to show that it was closed by a '
107(a) order.
33. When Inspector Johnson advised the mine superintendent
that he had issued an imminent danger order, the mine
superintendent called the section by phone to have miners from
the face start to abate the cited hazards. The superintendent
did not express disagreement with the order or assert that miners
already were on their way to address the cited violations. When
the inspector had arrived at the mine and said he was going to
crawl the belts, the superintendent said, ". . . I don't think it
looks too good, probably dirty. . . ." Mine Manager Travis
Miller acknowledged the condition of the belts: "We had been
there and like Billy [Martin, the superintendent] said, well,
they're probably dirty." The superintendent testified further,
"I did go straight to the phone right then and I called inside
and I told the boss, the section foreman, to get people down
there on the number one belt. That's the reason . . . I didn't
go up the belt with him. . . . I called to get people to correct
the problem if there was anything wrong with the belt line
because, I knew he was going to check it." Tr. 356-359. It was
not until the MSHA inspectors came to the mine that the
superintendent called to have miners clean up the belts.
34. The imminent danger order was terminated the following
afternoon after the fire sensor was repaired, the accumulations
were cleaned up, and the rollers were repaired or replaced.
Fire Sensor System
35. The first condition that contributed to issuance of the
above imminent danger order was cited in ' 104(a) Citation
No. 4027495, dated June 24, 1993. The regulation cited
(30 C.F.R. ' 75.1103-1) requires that a fire sensor system be
installed on each underground belt conveyor, to give warning
automatically when a fire occurs on or near the belt and to
provide both audible and visual signals that permit rapid
location of the fire. The fire sensor system was not maintained
in an operative condition for the Nos. 1, 2, 3, and 4 conveyor
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belts. The fire sensor cable had been severed between the
automatic indicator and the alarm signal box. The cable also had
been severed at several locations along the No. 1 conveyor belt.
36. At Inspector Johnson's request, the company electrician,
George Bush, tried to activate the fire sensor system. It would
not function. As he crawled the belt, Inspector Johnson found
that the fire sensor cable had been cut or worn through in
several locations, where the cable had dropped down beside the
belt conveyor, which rubbed against the cable until it was
severed or badly worn.
37. Fire sensors are contained in the cable, spaced at
intervals of 125 feet. If a fire occurs, when the sensor is
heated to 125 degrees the circuit opens and automatically
indicates which belt conveyor is on fire. There were four belts
underground. The fire sensor would not work for any of them.
One or two miners were assigned to monitor more than a mile of
belts. Each belt was 1,400 to 2,000 feet long. The belt entries
also served as secondary escapeways.
38. The fire sensor system was needed to respond to a fire
quickly, to extinguish it or to try to keep it under control.
Without the system, a fire could be raging out of control before
being detected. In the event of fire, the ventilation system
would pull the smoke to the face where the miners were working.
The only firefighting system in place was the manually activated
water line which extended along the belt conveyors.
39. Although the belts were not running, the section was
engaged in advance mining. Miners could blast and extract coal
at the face to have it ready to load when the belts started to
run again. Inspector Johnson observed that some miners were at
the face and some were repairing the rock-picking table on the
outside.
40. Inspector Johnson determined that the fire sensor
violation was significant and substantial. Without the system,
there was no way to detect a fire on the belt conveyors until
someone encountered smoke or flames. Inspector Johnson expected
that the belts would be turned back on as soon as the repairs
were completed on the picking table. He believed that the
observed conditions were likely to result in a mine fire or
explosion if normal mining operations were resumed. There was
friction between the belt and the damaged rollers. There were
areas where the combustible accumulations touched the bottom of
the belt. If the friction resulted in a fire, there was no
system in place to warn of it or to locate it.
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41. Inspector Johnson determined that the violation involved
high negligence. The fire sensor system was required to be
checked weekly. The belt line was required to be checked daily,
within three hours after the beginning of a production shift.
The miners had been underground 2 hours 50 minutes when Inspector
Johnson issued the citation. The cable had been severed in
several locations. The control box for the fire sensor system
has a warning light to show any short-circuit in the system. The
severed cable should have short-circuited the system, but
Inspector Johnson found that the warning light control box was
not functioning, perhaps because of dead batteries. It did not
appear that the control box had been touched in a long time. All
that had to be done was to push an easily accessible test button
once each week to see if the system was working. There was no
mention of the non-functioning system or of the severed cable in
the preshift examination records or in the weekly examination
records. There was no evidence that the company was about to
begin repairs of the cable and the fire sensor system.
42. Citation No. 4027495 was terminated the next day, after
the automatic fire sensor system was restored.
Accumulations of Combustible Material
43. The second condition that contributed to issuance of the
imminent danger order was cited in ' 104(a) Citation No. 4027496,
on June 24, 1993. The cited regulation (30 C.F.R ' 75.400),
prohibits the accumulation of coal dust, float coal dust, loose
coal, and other combustible material in active workings or on
electric equipment in active workings. Inspector Johnson found
accumulations of loose coal, coal dust, and float coal dust
alongside and beneath the No. 1 conveyer belt and in the
connecting crosscuts. The accumulations extended about 1,440
feet, from 1 inch to 30 inches deep. In the areas where
Inspector Johnson saw one inch of float coal dust it was
scattered across the entire entry, from rib to rib. The area was
dry. The accumulations were black. The energized 4,160-volt
cable was buried in the loose coal and float coal dust alongside
the belt conveyor.
44. Inspector Johnson measured the accumulations with a
measuring tape, using his hand to rake the coal back until he
reached the mine floor. His close inspection of the
accumulations verified that it was loose coal, coal dust and
float coal dust. Large quantities of coal dust were raised into
the air as he crawled through the accumulations. Miners had
worked or traveled in the area where the combustible
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accumulations were found. The area was required by regulation to
be traveled daily during the preshift examination.
45. For the same reasons given for his findings as to
Citation No. 4027495, Inspector Johnson determined that this was
a significant and substantial violation and involved high
negligence. It was reasonably likely to result in serious
injuries to 12 miners working on the head drive and at the face.
The 4160-volt cable buried in the accumulations was energized
and was the main power cable. Roof conditions were fair, but
some loose material had fallen out from between the roof bolts.
The power cable went through the area where the roof had
sloughed. If a piece of the roof fell on the cable in the
accumulations, the cable could have been cut, resulting in a hot
flash. The hot flash could have ignited the float coal dust.
When the belt was running again, there would be friction between
the belt and the rollers that were broken or stuck. Also, there
would be friction as the belt rubbed against the metal frame of
the belt assembly. The belt runs 250 to 450 feet per minute.
There were shiny and worn places on the steel frame, indicating
that the belt had rubbed against it. Additionally, there were
rollers with shiny, smooth and worn places, indicating that the
belt was rubbing on them, rather than rolling over them.
Inspector Johnson saw no evidence of efforts to clean up the
accumulations. The accumulations were easily visible alongside
the belt, as was the 2 1/2-inch power cable where it dropped down
into the accumulations from the mine roof. Inspector Johnson
estimated that the accumulations would fill one, or possibly two,
coal trucks. There was no mention of the accumulations in the
preshift examination records.
46. The citation was terminated the next day, after the
accumulations had been cleaned up and rock dust had been applied
to the area.
Conveyor Belt Rollers
47. The third condition that contributed to the issuance of
the imminent danger order was cited in ' 104(a) Citation
No. 4027497, on June 24, 1993. The cited regulation (30 C.F.R.
' 75.1725) requires that machinery and equipment be maintained in
safe operating condition and that machinery and equipment in
unsafe condition be removed from service immediately. Inspector
Johnson found damaged, broken, or stuck rollers at several
locations along the No. 1 belt conveyor, beginning at the No. 2
mine portal and extending to the conveyor tail piece, about 1,440
feet. The damaged, broken, or stuck rollers allowed the conveyor
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belt to contact the dry accumulations of loose coal, coal dust,
and float coal dust beneath the belt.
48. There are two layers of 3-inch steel rollers. The top
rollers are five to six feet apart. The bottom rollers are 10 to
12 feet apart. The rubber conveyor belt is designed to reduce
friction by moving on rotating rollers rather than rubbing
against them.
49. Inspector Johnson found that 19 rollers were defective.
The conveyor belt had not been taken out of service. Some
rollers were broken. The belt had cut through the tops of some
of the rollers. Some rollers had dropped down in the middle.
Some had broken off the end of the supporting frame. Some would
not roll because there was coal jammed between the frame and a
roller. Inspector Johnson tried to turn some of the rollers with
his hands; he could not move them. In addition to the 19 stuck
and broken rollers, Inspector Johnson saw rollers with shiny,
smooth and worn places, indicating that the belt was rubbing on
them, rather than rolling over them.
50. Some of the rollers were in accumulations of coal dust.
For the same reasons given for his findings as to Citations Nos.
4027495 and 4027496, Inspector Johnson determined that this was a
significant and substantial violation and involved high
negligence.
51. The damaged rollers were obvious and clearly visible to
anyone crawling along the belts to make the belt examinations.
There were two production shifts a day. The belts and rollers
were required to be examined twice every work day. There was no
report of defective rollers in the preshift examination records.
DISCUSSION WITH FURTHER FINDINGS, CONCLUSIONS
Scoops
Four citations charge a violation of 30 C.F.R ' 342(a)(1)
for having a defective or missing methane monitor on a scoop.
Respondent contends that the four citations should be
vacated because the inspector could not testify that the cited
scoops were used to load coal while having a defective or missing
methane monitor.
Section 75.342(a)(1) provides:
MSHA approved methane monitors shall be installed on
all face cutting machines, continuous miners, longwall face
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equipment, loading machines, and other mechanized equipment
used to extract or load coal within the working place.
"Working place" is defined as "the area of a coal mine inby
the last open crosscut." 30 C.F.R. ' 75.2.
Respondent states that its evidence shows that all scoops
were checked to be sure the methane monitors were operative
before a scoop was used to haul coal and that if a scoop was not
in permissible condition it was rendered inoperative by not
hooking the necessary wiring back up to the circuit breaker. It
states that if a methane monitor became inoperative during the
production shift, the scoop was returned to the battery barn
where it was replaced with a new scoop or the methane readout or
display unit was replaced.
The Secretary contends that no records or other
identification was used to restrict any scoops from being used
inby the last open crosscut, and that when the inspector asked
the company which scoops had been used at the face it was unable
to identify them. Scoops with defective methane monitors were
not listed in the examination records, nor were they tagged out
of service or marked in any way to prevent their use inby the
last open crosscut.
The company acknowledged that seven of the nine scoops
routinely were used to load or haul coal at the face, but the
company could not tell the inspector which three or four scoops
were in service at the time of the fatal accident. No records
were maintained to show whether a scoop was used inby or outby
the last open crosscut on any given date.
On balance, I find that the inspector properly found that
the cited scoops were subject to being used to load coal at the
face at any time. The defective or missing methane monitors
therefore constituted violations of 30 C.F.R. ' 75.342(a)(1).
The evidence also supports the inspector's finding that the
violations were significant and substantial. There was a known
history of methane ignitions at this mine. There was no other
automatic de-energizing device on the equipment. There was no
other automatic methane detection device on the section. The
defective methane monitors could significantly and substantially
contribute to an explosion or ignition. It was reasonably likely
that the violations would result in serious injury. The
violations were therefore significant and substantial. Mathies
Coal Company, 6 FMSHRC 1 (1984); U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573 (1984).
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The evidence supports the inspector's finding of a moderate
degree of negligence. The operator failed to take reasonable
steps to ensure that scoops with defective or missing methane
monitors were not used to load coal inby the last open crosscut.
A fifth citation alleges that the AR-4 Elkhorn scoop, the
one involved in the fatal accident, had an inoperative fire
suppression system (in addition to missing a methane monitor), in
violation of 30 C.F.R. ' 1100-3. A hose to the activator on the
fire suppression system was missing.
The company contends that the AR-4 scoop was not used to
load coal but was used only to transport persons and supplies,
and therefore was not required to have a fire suppression system.
I find that the inspector properly determined that the scoop
was not "transportation" equipment within the meaning of the
regulations, based upon the representations of company personnel
to the inspector and the fact that a scoop is designed to haul
coal and is not designed to transport people.
Moreover, ' 75.1100-3 requires that "All firefighting
equipment shall be maintained in a usable and operative
condition." If a vehicle has a fire suppression device, it
compromises safety and violates this section if the firefighting
device does not work.
By regulation, Nats Creek was required to adopt a program
for the instruction of all miners in the location and use of
firefighting equipment, including operation of fire suppression
equipment available in the mine. Presuming Nats Creek's
compliance with the training regulations, drivers of the cited
scoop would have been trained in the operation of the fire
suppression system on the equipment. The scoop was not equipped
with any other firefighting equipment. It is likely that a scoop
driver would have relied on the fire suppression system available
within arm's reach. A scoop driver's reliance on the inoperative
fire suppression system could have significantly and
substantially contributed to a serious fire hazard, resulting in
serious injury. The violation was reasonably likely to result in
serious injury and therefore was significant and substantial.
Battery Charging Station
Two citations were issued in conjunction with a ' 107(a)
imminent danger order on December 8, 1992.
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Citation No. 3516674 charges a violation of 30 C.F.R.
' 75.340(a)(1), which requires that underground battery charging
stations be located in noncombustible structures or areas or be
equipped with a fire suppression system. Additionally, the
regulation requires that battery charging stations be ventilated
by intake air. The citation was issued for several reasons. The
inspector found 45 combustible cardboard boxes piled between
batteries and a brattice in one area of the station. The battery
charging station was littered with empty oil cans. The coal ribs
which formed the battery charging station were not adequately
insulated or fireproofed. The station was located between pillar
blocks of coal; there was no enclosing structure. The exposed
coal ribs and coal dust on the floor were combustible. At least
two of the battery chargers and the batteries were against the
coal ribs.
No fire suppression system was in place. There was no
automatic firefighting equipment. Two small hand-held 5-pound
fire extinguishers were in the area. There were hoses and jugs
of water in the charging station, but using water on an
electrical fire would only compound the problem. The batteries
and the charging units generate heat. Hydrogen, which can
quickly reach an explosive level, is a by-product of the battery
charging process.
Return air, with potentially high quantities of coal dust,
float coal dust, toxic or explosive fumes, methane, and carbon
monoxide, was ventilating the battery charging station. The air
came from the last working place on the active section.
Citation No. 3516675, as amended, charges a violation of
30 C.F.R. ' 75.507-1(a), which requires that electric equipment
used in return air outby the last open crosscut be permissible.
The citation was issued because non-permissible 480-volt battery
chargers were being used in the battery charging station.
The company contends that the two citations are duplicative
in that they involve only one violation, i.e., ventilating the
battery charging station with return air. It states that both
citations were terminated through one action taken by the
operator, i.e., changing the ventilation of the battery station
to intake air.
However, the battery charging station was not housed in a
fireproof structure, it was ventilated with return air, and non-
permissible equipment was being used in it while it was
ventilated with return air. These are distinct, separate
violations. Despite the fact that the violations arose out of a
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single mining activity (battery charging) there were separate
violations of two separate regulations. Separate proof was
offered for each violation. See: Southern Ohio Coal Company,
4 FMSHRC 1459, 1462 (1982). Thus, to abate the violation of
' 75.340(a)(1), substantial separate actions were required
besides changing the ventilation to intake air. The coal ribs
housing the station were insulated with a noncombustible sealer
to form a fire protection barrier between the coal ribs and the
charging units. The mine floor was cleaned. Rock dust was
applied to all the areas. The cardboard containers, plastic
containers and empty oil cans were removed from the underground
area of the mine.
The company also contends that the two violations were not
due to high negligence because there were mitigating
circumstances. It states that the battery charging station was
being ventilated pursuant to directions given by a prior MSHA
inspector and had been ventilated that way for a substantial
period before the citations.
Three or four days before the citation was served, the Mine
Superintendent, Billy Martin, told Inspector Johnson that he had
a ventilation problem concerning the battery charging station,
and showed him a small drawing or map to indicate the problem.
The problem he described did not indicate that station was in
return air. The inspector was leaving and stated that when he
returned (several days later) he "would try to help him on the
ventilation" problem. Tr. 234. When the inspector returned, on
December 8, 1992, he examined the battery charging station and
found that it was in return air. The inspector testified that
Martin had not told him, several days earlier, that the station
was in return air.
In looking back at the situation, the inspector testified
that "when I issued the imminent danger [order] [it] was my
understanding that Mr. Martin didn't know that he could use this
neutral air to dump into this charging station ...." Tr. 232.
Travis Miller, the Mine Manager, testified that the battery
station "was ventilated pursuant to the direction of [Inspector]
Sloan and to his satisfaction." Tr. 273. However, Mr. Miller had
no firsthand knowledge of the condition of the battery station
prior to December 8, 1992. I do not find that the prior
inspector, Marcus Sloan, approved the ventilation pattern for the
battery station that was later found by Inspector Johnson on
December 8, 1992.
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However, I find that Mr. Martin's effort to get advice from
Inspector Johnson concerning the ventilation of the battery
station several days before December 8, 1992, is a mitigating
factor that serves to reduce the operator's negligence from high
to moderate as to the violations involving ventilating the
battery station in return air. This factor does not mitigate the
high negligence involved in the failure to maintain the battery
station in a noncombustible structure or area, which is an
important part of the violation of ' 75.340(a)(1).
The evidence sustains the inspector's finding of significant
and substantial violations as to the battery charging station.
Belt Conveyors
Three ' 104(a) citations were issued in conjunction with a
' 107(a) imminent danger order on June 24, 1993.
The imminent danger order was issued based upon the
inspector's finding that a combination of hazards constituted an
imminent danger: the automatic fire sensor system for four
conveyor belts was inoperative; extensive accumulations of loose
coal, coal dust and float coal dust were present; and there were
damaged, broken, and stuck rollers.
The imminent danger order was terminated the following
afternoon, after the fire sensor system was repaired, the
accumulations were cleaned up, and the rollers were repaired or
replaced.
The company contends that the imminent danger order was
improper because the conveyor belts were not running and were in
the process of being cleaned and repaired at the time of the
inspection.
However, when Inspector Johnson arrived at the mine on
June 24, 1993, advance mining was underway in the active
workings. He met the mine superintendent, who told him the belt
conveyors were not running because a rock-picking table was
being repaired. Inspector Johnson crawled the belts. Even
though the shift had begun three hours earlier, he saw no
evidence of any effort to repair the fire sensor system, the
rollers, or to clean up the extensive accumulations of loose
coal, coal dust, and float coal dust.
The evidence sustains the imminent danger order and the
three ' 104(a) citations. The violations were significant and
substantial, as they were reasonably likely to cause serious
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injury. The violations were obvious and demonstrated high
negligence.
Claim of Financial Hardship
Travis Miller, the mine manager, testified concerning Nats
Creek's ability to pay the penalties proposed by the Secretary.
In general, he stated that the price of coal was low and the cost
of mining it was high. These are common complaints in the mining
industry. He testified that the Sugarloaf No. 2 Mine was losing
money, but he had no information about assets, liabilities,
owners' salaries, business structure, or any other financial
data. To support his testimony, he offered a one-page unaudited
and unsigned consolidated income statement for the five months
ending May 31, 1994 (Respondent's Exhibit 2). The preparer of
the statement was not identified. No company records or tax
returns were offered to support the figures in the statement.
At the close of the hearing the judge gave Nats Creek
15 days from the date of the hearing to submit an audited
financial statement. No such statement was submitted.
The burden is on a mine operator to establish that payment
of the assessed civil penalties will adversely affect its ability
to continue in business. Absent proof that the imposition of
civil penalties would adversely affect a mine operator's ability
to continue in business, it is presumed that no such adverse
affect would occur. Sellersburg Stone Co., 5 FMSHRC 287 (1987),
aff'd. 736 F.2d 1147 (7th Cir. 1984).
Mr. Miller's testimony and the one-page unaudited income
statement do not meet Nats Creek's burden of proof that payment
of the penalties assessed would affect the operator's ability to
continue in business.
Civil Penalties
Respondent produces about 160,000 tons of coal a year.
From June 30, 1990, to June 30, 1994, Respondent had 135
violations of mine safety and health standards, for which it paid
$17,320 in civil penalties, and was cited with 48 other
violations with proposed civil penalties of $86,290 which are in
litigation.
As to each of the violations in the cases at bar, Respondent
made a good faith effort to achieve rapid compliance after being
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notified of the violation. The factors of negligence and gravity
are discussed above.
Considering all of the criteria for assessing civil
penalties in ' 110(i) of the Act, I find that the following civil
penalties are appropriate:
Citation No. Date Civil Penalty
4017965 12/1/92 $ 235
4017967 12/1/92 $ 235
4017975 12/1/92 $ 235
4017980 12/1/92 $ 235
4017968 12/1/92 $ 235
3516674 12/8/92 $6,500
3516675 12/8/92 $4,500
4027495 6/24/83 $2,000
4027496 6/24/83 $5,000
4027497 6/24/83 $4,000
CONCLUSIONS OF LAW
1. The judge has jurisdiction.
2. Respondent violated the mine safety standards as alleged
in each of the 10 citations involved in these cases.
3. The evidence sustains the two ' 107(a) orders involved in
these cases.
ORDER
1. The 10 citations and the two ' 107(a) orders involved in
these cases are AFFIRMED.
2. Respondent shall pay civil penalties of $23,175 within 30
days of this Decision.
William Fauver
Administrative Law Judge
Distribution:
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Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville,
TN 37215-2862 (Certified Mail)
Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, 415 Second
St., P.O. Box 351, Pikeville, KY 41502 (Certified Mail)
/lt
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