J B D Mining Company, Inc.

Plain-English summary

J B D Mining Company received three citations at its Harlan No. 1 Mine. The first involved travel under unsupported roof, the second involved smoking materials found underground, and the third involved missing site-specific training for a contractor employee. Judge Arthur J. Amchan found all three violations proven, but assessed lower penalties than MSHA proposed based on the circumstances and the operator’s negligence and abatement evidence. The three citations were affirmed, with total penalties of $900.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.202(b); 30 C.F.R. § 75.1702; 30 C.F.R. § 48.31(a)
• Outcome: All three citations were affirmed, with penalties of $500, $200, and $200, for a total of $900.
• Key point: The operator remained responsible for unsafe roof travel, underground smoking controls, and contractor training, but the judge reduced the proposed penalties based on the record.

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



                         March 7, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 95-451
Petitioner : A.C. No. 15-16508-03594
v. :
: Docket No. KENT 95-671
J B D MINING COMPANY, INC., : A.C. No. 15-16508-03600
Respondent :
: Docket No. KENT 95-728
: A.C. No. 15-16508-03601
:
: Mine: Harlan No. 1

                            DECISION

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee;
Tommy D. Frizzell, Conference and Litigation
Representative, Mine Safety and Health
Administration, Barbourville, Kentucky;
Ronnie R. Russell, Conference and Litigation
Representative, Mine Safety and Health
Administration, Barbourville, Kentucky, for
Petitioner;
Jefferson B. Davis, President, J B D Mining,
Pathfork, Kentucky, Pro Se, for Respondent.

Before: Judge Amchan

                   Docket No. KENT 95-451

 On November 17, 1994, MSHA representative Billy Parrott

conducted an inspection of Respondent’s No. 1 Mine in
Harlan County, Kentucky. When he arrived at the mine’s only
working section, Parrott noticed that a center line, drawn on

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the roof of a crosscut to guide the continuous mining machine,
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extended inby the last row of bolts (Tr. I: 14-16).

 This line could not have been drawn without a miner walking

under an unsupported portion of the roof (Tr. I: 23). Going into
an area in which the roof is unsupported is very dangerous and
could result in a miner being killed or seriously injured by a
roof fall. Parrott issued an imminent danger order and Citation
No. 4246900. The citation alleges a violation of MSHA regulation
30 C.F.R. §75.202(b). This regulation generally forbids work or
travel under unsupported roof.

 The citation alleges a significant and substantial (S&S)

violation due to moderate negligence on the part of the
Respondent. It also alleges that it was highly likely that an
injury resulting in permanently disabling injuries might occur
due to the violation. MSHA proposed a $2,000 penalty for the
violation.

 Respondent does not deny that the violation occurred.

It argues that the proposed penalty is much too high given
the circumstances. When proposed penalties are contested,
the Commission assesses civil penalties independently of the
proposal made by MSHA. Section 110(i) of the Act requires
that the Commission assess civil penalties after giving
consideration to six factors. These are the size of the
operator, the gravity of the violation, whether the operator
was negligent, whether the operator demonstrated good faith
in promptly abating the violation, the operator’s history of
previous violations and the effect of the penalty on the
operator’s ability to stay in business.

 Respondent is a small operator and it has not offered

evidence that payment of the proposed penalties would affect
its ability to stay in business. Respondent appears to have
been cooperative in trying to prevent recurrences of the
violation (Exh. G-2, Block 17). As to Respondent’s prior
history of violations, the Secretary’s computerized list of
citations between November 17, 1992 through November 16, 1992
(Exh G-1), reveals no reason to assess either a higher or lower
penalty. It does indicate that Respondent pays few of the
uncontested penalties proposed by MSHA. However, I do not regard
this as a basis for increasing the penalty for the instant
violations. The mechanism for addressing a failure to pay civil

1
 I will refer to the transcript for Docket No. KENT 95-451

as Tr. I, the transcript for Docket No. KENT 95-671 as Tr. II and
the transcript for Docket No. KENT 95-728 as Tr. III.

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penalties is the institution of a collection proceeding in
U.S. District Court pursuant to § 110(j) of the Act.

 The record in this case requires resolution of conflicting

evidence regarding the negligence of the operator in violating
the Act and the gravity of the violation. As to negligence,
Charles Farmer, a repairman and sometime section foreman, admits
he drew the center line in the area cited by Inspector Parrott
(Tr. I: 66). He stated that he thought he was still under
supported roof because he did not realize that the person
installing roof bolts had not finished the row of bolts closest
to the face (Tr. I: 69, 72, also see Respondent’s Answer of
May 23, 1995).

 Farmer contends that there were two bolts on the right side

of the unfinished row of bolts in the crosscut and that the red
reflective marker was on the one closest to the middle of the
crosscut (Tr. I: 67, 69; Exh. R-1). Inspector Parrott contends
that the marker, which indicates the last row of bolts, was
attached to one of the bolts in the last completed row (Tr. I:
38; Exhibit R-1). Moreover, he states that only one bolt had
been installed inby that row (Exh. G-5)2.

 I credit the testimony of Inspector Parrott and find that

the reflective marker was in the last full row of bolts and that
there was only one bolt in front of this row. I do so because
he is likely to have focused his attention much more on the
location of the bolts and marker than did Farmer, who was also

2
 Exhibit G-5 was drawn on acetate and used on an overhead

projector at hearing. It was also copied on paper. The paper
version of G-5 contains marks made by the witnesses which are not
on the acetate version.

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concerned with his production responsibilities. Moreover,
Parrott committed his recollections to paper by making a sketch
of the area within 10 or 15 minutes of his observations (Tr. I:
39, 43).

 Since I conclude that Farmer went beyond the red reflective

marker, I find his negligence to be somewhat greater than if the
marker had been on the bolts closest to the face. Nevertheless,
I accept Respondent’s claim that the violation was due to
inadvertence.

 The coal seam at this point is only 30 inches high. Miners

are not able to stand up, and it is thus more likely that Farmer
did not appreciate the fact that the row of bolts closest to the
face had not been completed. On the other hand, it is incumbent
upon Respondent to insure that all its employees are trained
sufficiently so they recognize when a row of bolts has not been
completely installed.

 I therefore conclude that this violation was due, in part,

to a moderate degree of negligence on the part of Mr. Farmer in
failing to determine whether the roof under which he traveled was
supported. Mr. Farmer’s negligence is imputed to Respondent for
liability and penalty purposes. He generally was given super-
visory responsibilities and there is nothing in the record which
indicates that Respondent had taken reasonable steps before
this incident to avoid such a violation, Nacco Mining Company,
3 FMSHRC 848, 850 (April 1981).

 I also find Respondent was negligent for creating a situ-

ation in which a miner might not realize that the row of bolts
closest to the face had not been completely installed. Nothing
in the record indicates that there was anything unprecedented in
the circumstances leading to the violation. The bolts were
apparently left out of the row closest to the face due to the
presence of cap coal (coal left on the roof by the continuous
miner). The record does not indicate that Respondent had taken
any precautions to insure that miners would not travel under a
portion of the roof where bolts had not been installed for this
reason. Thus, I conclude it was foreseeable that they might do
so.

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 MSHA considered the instant violation to be highly likely

to result in an accident, in part because the Harlan No. 1 Mine
has 2 to 12 inches of draw rock in many places and has experi-
enced a number of roof falls (Tr. I: 54-61). Mr. Farmer, on the
other hand, does not recall encountering any draw rock in the
cited area (Tr. I: 70).

 Regardless of whether this area contained draw rock, I find

that the violation was “S&S” as alleged by the Secretary. The
Commission test for "S&S," as set forth in Mathies Coal Co.,
supra, is 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.

 The Commission, in United States Steel Mining Co., Inc.,

FMSHRC 1573, 1574 (July 1984), held that S&S determinations are
not limited to conditions existing at the time of the citation,
but rather should be made in the context of continued normal
mining operations. Applying this test, I conclude the violation
was as reasonably likely to occur in an area with draw rock as
in one with no draw rock. Therefore, I conclude that a serious
accident was reasonably likely, and thus the violation was
properly characterized as “S&S.” Further, given the consider-
ations discussed herein, I conclude that a $500 civil penalty is
appropriate for this violation.

                 Docket No. KENT 95-671

 MSHA representative Roger Dingess inspected the Harlan No. 1

mine on April 19, 1995 (Tr. II: 5-7). After inspecting the face
area he walked outby four crosscuts along the belt line and found
a fresh cigarette butt. He continued walking approximately
300 feet outby to a power center where he found a second fresh
cigarette butt (Tr. II: 6-8).

 As a result of these discoveries, Dingess issued citation

No. 4478078 to Respondent alleging a violation of 30 C.F.R.
§75.1702. The cited regulation prohibits anyone from smoking
underground or carrying any smoking materials underground. It
also requires a mine operator to institute a program, approved by
the Secretary, to insure that nobody carries smoking materials

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underground.

 The citation alleges this standard was violated in that the

operator did not comply with its smoking program (Exh. G-8,
Block 8). MSHA characterizes the violation as S&S and due to the
operator’s moderate degree of negligence. A penalty of $2,500
was proposed for this violation.

 The only evidence of fault on Respondent’s part is Inspector

Dingess’ testimony that Charles Farmer, Respondent’s foreman, was
working only 100 feet inby from the location of the first ciga-
rette butt found and therefore should have immediately detected
the smoke from this cigarette (Tr. II: 13-14). However, there is
no direct evidence that Farmer knew anyone was smoking in the
mine, and insufficient evidence to infer such a fact.

 The airflow along the belt line is of relatively low

velocity, but it would have carried cigarette smoke outby and
away from Farmer, rather than towards him (Tr. II: 17-18).
Moreover, it is not certain that the cigarettes were smoked at
the locations at which they were found (Tr. II: 18).

 There is also no evidence that Respondent’s smoking program

was defective or improperly implemented (Tr. II: 13,17,21).
Negligence on the part of J B D management cannot be inferred
simply from the fact that smoking materials were found
underground. Further, the negligence of non-supervisory
personnel in bringing smoking materials into the mine cannot be
imputed to the Respondent for purposes of assessing a civil
penalty, Southern Ohio Coal Co., 4 FMSHRC 1459 (August 1982).

 Despite the fact that Inspector Dingess has never detected

methane at the No. 1 mine, I conclude that the instant violation
is S&S. Congress would not have specifically prohibited the
presence of such materials and provided for penalties for
individual miners unless it considered that such materials are
reasonably likely to result in serious injury.

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 Nevertheless, in spite of the high gravity of the violation,

I assess only a $200 civil penalty. Paramount in this decision
is the absence of evidence of Respondent’s negligence and its
good faith abatement of the violation. Respondent took steps to
prevent a recurrence of the violation by discharging the miner
who most likely brought the smoking materials into its mine
(Tr. II: 22-24).

                 Docket No. KENT 95-728

 On April 20, 1995, while inspecting the surface area of the

Harlan No. 1 mine, Mr. Dingess observed Bobby Taylor get out of
his haul truck and load coal into it with a front end loader
(Tr. III: 5-7, 12). Inspector Dingess asked Taylor for
documentation regarding his hazard training at this mine. While
Taylor had training slips for other mines he had worked at, he
did not have any for Respondent’s mine (Tr. III: 7, 10).

 Taylor was employed by Kincaid Coal Co., a contractor

operating on Respondent’s property (Tr. III: 7, Answer).
Nevertheless, since MSHA deems it the operator’s responsibility
to insure that all contractor employees have the requisite site-
specific training, Dingess issued Citation No. 4478079 to
Respondent.

 The citation alleges an S&S violation of 30 C.F.R.

§48.31(a). MSHA has proposed a $2,000 penalty. It contends that
the violation was highly likely to result in a fatal injury
(Citation, block 10). This conclusion is predicated on the fact
that the No. 1 mine is located on the side of a mountain and that
coal is dumped into a chute that sits on a 200 foot embankment
(Tr. III: 11-13).

 The area in which Mr. Taylor was observed loading his truck

is located next to the bottom of the chute. Inspector Dingess
believes miners in the area could be injured by objects coming
through the windshield of their vehicles (Tr. III: 13).

 Respondent argues that this is simply a paper violation.

Taylor has worked at this site intermittently for four years
(Tr. III: 23). Moreover, he had received training from two
other operators (Tr. III: 17). Finally, Respondent contends that
it abated the violation in 15 minutes merely by reviewing
information of which Taylor was already aware and completing the
MSHA form 5000-23.

 I conclude that the Secretary has not established an S&S

violation with regard to this citation. Given Mr. Taylor’s
familiarity with the worksite and recent training by other
operators it would be unlikely that his lack of training would
result in an injury. For the same reasons, I deem the gravity

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of the violation to be relatively low.

 However, I find Respondent negligent in not complying with

the training requirements for Mr. Taylor. In conjunction with
the other penalty criteria in section 110(i), I conclude that a
civil penalty of $200 is appropriate.

                         ORDER

 Docket KENT 95-451: Citation No. 4246900 is affirmed and a

$500 civil penalty is assessed.

 Docket KENT 95-671: Citation No. 4478078 is affirmed and a

$200 civil penalty is assessed.

 Docket Kent 95-728: Citation No. 4478079 is affirmed and a

$200 civil penalty is assessed.

 The total civil penalties of $900 shall be paid within

thirty (30) days of this decision.

                         Arthur J. Amchan
                         Administrative Law Judge

Distribution:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215-2862 (Certified Mail)

Jefferson B. Davis, President, J B D Mining Co., Inc.,
5978 E. Hwy. 72, Pathfork, KY 40863 (Certified Mail)

/lh

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