Youghiogheny & Ohio Coal Company

Plain-English summary

Youghiogheny & Ohio Coal Company operated the underground Nelms No. 2 coal mine in Ohio. MSHA inspectors found air recirculation, coal dust, and methane on two sections and cited violations of the mine ventilation standard. The ALJ found the violations significant and substantial and assessed penalties of $1,000 and $950. The Commission rejected the ALJ's use of the word default, affirmed the significant-and-substantial findings and penalties, and held that the Commission could assess penalties independently after a hearing even if MSHA's proposal process did not follow Part 100 exactly.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.302-4(a); 30 U.S.C. § 814(b); 30 U.S.C. § 814(d)(1); 30 U.S.C. § 820(i)
• Outcome: The significant-and-substantial findings and civil penalties of $1,000 and $950 were affirmed.
• Key point: After a hearing, the Commission may independently assess a penalty from the developed record, and a failure to follow MSHA's proposal regulations does not ordinarily require a new proposal.

Full text (FMSHRC public release)

CCASE:
MSHA V. YOUGHIOGHENY & OHIO COAL
DDATE:
19870430
TTEXT:

FMSHRC-WDC
April 30, 1987

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

  v.               Docket No. LAKE 84-98

YOUGHIOGHENY & OHIO COAL COMPANY

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

               DECISION

BY THE COMMISSION:

In this civil penalty proceeding arising under the Federal

Mine Safety and Health Act of 1977, 30 U.S.C. $ 801 et seq. (1982)
(the "Mine Act"), the issues are whether a Commission administrative
law judge erred in holding Youghiogheny & Ohio Coal Co. ("Y&0") in
default; whether two violations of a mandatory safety standard were
"significant and substantial" within the meaning of section 104(d)(1)
of the Mine Act, 30 U.S.C. $ 814(d)(1); and whether the procedure
followed in assessing civil penalties for the violations was proper.
For the reasons that follow, we conclude that, to the extent that the
judge characterized his disposition as a default, he erred. Further,
we affirm the judge's findings that the violations were significant
and substantial and his civil penalty assessments.

Y&O's Nelms No. 2 Mine, an underground coal mine, is located

in Harrison County, Ohio. On March 14, 1984, Robert Cerana, an
inspector/ventilation specialist of the Department of Labor's Mine
Safety and Health Administration ("MSHA"), conducted a ventilation
inspection of the 013 section of the mine. In the "C" entry the
inspector observed coal dust filtering through the man doors in the
stopping line between the "C" and "D" entries. The inspector had
detected recirculation of air on the 013 section twice during the

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two months prior to March 1984. The coal dust indicated to the
inspector that the section again might be experiencing recirculation
of air. Utilizing a smoke tube, the inspector determined that return
air in the "D" entry was recirculating into the "C" entry and was
traveling from the "C" entry to the face. The inspector believed
that the recirculation was caused by an auxiliary fan on the section.
The inspector found .1% to .2% of methane in the

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section. (The mine liberates methane at a rate of approximately
1.5 million cubic feet per minute.)

The inspector issued a citation alleging a violation of

30 C.F.R. $ 75.302-4. 1/ Although the inspector estimated that
the violation could be corrected in about one hour, he allowed
approximately two hours for abatement. During that time the section
foreman tried unsuccessfully to abate the violation. The inspector
did not extend the abatement period and issued a withdrawal order
pursuant to section 104(b) of the Mine Act. 30 U.S.C. $ 814(b).

Subsequent to the issuance of the withdrawal order, the mine

superintendent was summoned to the area. The superintendent ordered
the installation of three canvas-type baffle curtains behind the
auxiliary fan. Installation of the baffle curtains stopped the
recirculation of air.

 On April 5, 1984, the inspector conducted another inspection

at the mine. When he arrived at the 021 section he observed
three miners working and several pieces of electrical equipment in
operation, including an auxiliary fan, a roof bolting machine, and
a continuous mining machine. The inspector took a mean entry air
velocity reading at the continuous mining machine. The reading
indicated a mean entry air velocity of 30 feet a minute. 30 C.F.R.
$ 75.301-4(a) requires a minimum mean entry air velocity of 60 feet
a minute. (A citation was issued for this violation but it is not
before us). To increase the air velocity, the tail tube was removed
from the back of the auxiliary fan.

Approximately fifteen minutes later the inspector observed

coal dust suspended in the atmosphere in the "B" entry. The inspector
determined that air was recirculating on the section between the "A"
and "B" entries. The inspector also detected methane in the section,
.5% at the face of the "A" entry and between .2% and .3% in the
"B" entry. The inspector issued a citation alleging a violation of
section 75.302-4(a) and found that the violation was significant and
substantial.

The violation was abated when the foreman installed three

baffle curtains behind the auxiliary fan. This procedure was
suggested to the foreman by the inspector after the foreman
indicated that he did not know how to abate the violation.

1/ 30 C.F.R. $ 75.302-4(a) provides in part:

Page 4

    In the event that auxiliary fans and tubing are

used in lieu of or in conjunction with a line brattice
system to provide ventilation of the working face:

    (a) The fan shall be a of permissible type,

maintained in permissible condition, so located and
operated to avoid any recirculation of air at any time,
and inspected frequently by a certified person when in use.

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Because the inspector's supervisor believed that the
recirculation problem "reoccurs consistently" (Exh. M-5), the
supervisor recommended that MSHA specially assess both violations
under 30 C.F.R. $ 100.5. 2/ Consequently, the Secretary proposed
specially assessed civil penalties of $850 and $950 for the
violations.

 At the conclusion of an evidentiary hearing, former Commission

Administrative Law Judge Joseph B. Kennedy issued a bench decision in
which he found that the violations of section 75.302-4(a) occurred and
that they were significant and substantial. The judge assessed civil
penalties of $1,000 and $950. Later, the judge confirmed his bench
decision in writing (7 FMSHRC 1185 (August 1985)(ALJ)) but on review,
the Commission concluded that the content of the written decision
failed to conform to the requirements of Commission Procedural Rule
65(a), 29 C.F.R. $ 2700.65(a). The Commission remanded the case to
the judge for the entry of a decision in accordance with the
Commission s Rules of Procedure. 7 FMSHRC 1335-36 (September 1985).

On remand, the judge ordered both parties to file briefs

with proposed findings of fact and conclusions of law. One day
before Y&O's submission was due, it petitioned the Commission for
interlocutory review, requesting relief from the judge's order and
asserting that a submission would be futile in view of the judge's
prior rulings. The Commission denied Y&O's petition. The judge
next ordered Y&0 to show cause why it should not be deemed to be in
default for failing to make any submission. Y&0 did not respond and
the judge issued his final decision in part purporting to default
Y&0 and ordering the payment of the same penalties he had previously
assessed. 3/ 8 FMSHRC 121 (January 1986)(ALJ). In addition, the
judge set forth reasons and bases for his finding the violations
significant and substantial and for his penalty assessments. ln
response to Y&O's argument that the Secretary had not complied with
his Part 100 regulations in proposing penalties for the violations
and that therefore MSHA should reassess the penalties, the judge held
that the Commission exercises independent judgment in civil penalty
assessments, is not bound by the manner in which MSHA arrives at civil
penalty proposals, and that therefore reassessment by MSHA was
unnecessary. 8 FMSHRC at 134.

On review Y&0 argues that the judge erred in finding it in

default. Y&0 also challenges the judge's findings that the violations
were significant and substantial, as inconsistent with the
Commission's

Page 6

2/ 30 C.F.R. Part 100 sets forth the criteria and the procedures by
which the Secretary of Labor, through MSHA, proposes the assessment of
civil penalties under sections 105 and 110 of the Mine Act. 30 U.S.C.
$$ 815 and 820. Under 30 C.F.R. $ 100.5 of these procedures, MSHA may
elect to waive its regular penalty assessment formula (30 C.F.R.
$ 100.3) or single penalty assessment provision (30 C.F.R. $ 100.4)
and instead specially assess penalties for violations.

3/ Y&O's failure to respond to the judge's order was the subject of a
disciplinary referral by the judge and has been addressed previously
by the Commission. Disciplinary Proceeding, 8 FMSHRC 663 (May 1986).

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decision in Cement Division, National Gypsum Co., 3 FMSHRC 822
(April 1981). Finally, Y&0 asserts that the .judge erred in
refusing to require the Secretary to reassess his proposed penalties
under Part 100.3 or 100.4.

 We hold that the judge's purported "default" of Y&0 was in

name only, and had no practical adverse impact on Y&0 or upon the
substance of the decision. Commission Procedural Rule 62, 29 C.F.R.
$ 2700.62, empowers a Commission judge to require the submission "of
proposed findings of fact, conclusions of law, and orders, together
with supporting briefs." 4/ Commission Procedural Rule 63(a)
authorizes a Commission judge to enter an order of default "[w]hen
a party fails to comply with an order of a judge after an issuance
of an order to show cause...." 29 C.F.R. $ 2700.63(a). However,
Commission Procedural Rule 63(b), 29 C.F.R. $ 63(b), states that in a
civil penalty proceeding the judge, after finding a party in default,
is required to "also enter a summary order assessing the [Secretary's]
proposed penalties as final...." (Emphasis added). 5/ One of the
purposes of these rules is to provide for the Commission's assessment
of civil penalties in those instances where because of a party's
default, there is an inadequate record upon which to base a judge's
independent penalty determination. Here, the judge did not assess
the Secretary's proposed penalties as final, rather he assessed the
penalties d novo, based upon the complete record developed at the
hearing before him and in accordance with the statutory penalty
criteria. In essence, therefore, the judge's disposition was on
the merits, it was not a "default."

We now address Y&O's challenge to the significant and

substantial findings and the other penalty aspects of this case.
In concluding that

4/ 29 C.F.R. $ 2700.62, titled "Proposed findings, conclusions and
orders," states:

         The Judge may require the submission of proposed
 findings of fact, conclusions of law, and orders,
 together with supporting briefs. The proposals shall
 be served upon all parties, and shall contain adequate
 references to the record and authorities relied upon.

5/ 29 C.F.R. $ 2700.63, titled "Summary disposition of proceedings,"
states:

         (a) Generally. When a party fails to comply

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with an order of a judge or these rules, an order
to show cause shall be directed to the party before
the entry of any order of default or dismissal.

    (b) Penalty proceedings. When the Judge finds

the respondent in default in a civil penalty proceeding,
the Judge shall also enter a summary order assessing
the proposed penalties as final, and directing that
such penalties be paid.

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the first violation of section 75.302-4(a) was significant and
substantial, the judge found that there existed a reasonable
likelihood that the hazard contributed to by the violation could
result in a serious or extremely serious injury. 8 FMSHRC at
131-132. 6/

We have previously held that a violation is properly designated

significant and substantial "if, based on the particular facts
surrounding that violation, there exists a reasonable likelihood that
the hazard contributed to will result in an injury or illness of a
reasonably serious nature." National Gypsum, 3 FMSHRC at 825. In
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), we explained:

          In order to establish that a violation of
 a mandatory safety standard is significant and
 substantial under National Gypsum the Secretary ...
 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.

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). (Emphasis deleted). 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. 6 FMSHRC at 1836.

Y&0 admits that air was recirculating on the 013 section. The

evidence establishes that the discrete safety hazard contributed to
by the violation was the accumulation of methane and coal dust and a
resulting danger of explosion or fire. The key issue is whether there
was a reasonable likelihood that the hazard contributed to would
result in an event in which there is an injury.

We conclude that substantial evidence supports the judge s

finding that such a reasonable likelihood existed. As the judge
properly recognized, the violation must be evaluated in terms of
continued normal

Page 10

6/ We recognize that the judge, sua sponte, made a finding that
the violation was significant and substantial, where no such charge
was alleged by the Secretary. In its petition for discretionary
review, Y&0 did not challenge the judge's authority to make such a
finding, nor did we sua sponte direct review of the issue. Thus, we
leave for another day the question of whether a Commission judge may
make findings that a violation is significant and substantial absent
a Secretarial allegation to that effect. 30 U.S.C.
$$ 823(d)(2)(A)(iii), 823(d)(2)(B); 29 C.F.R. $$ 2700.70(f), 2700.71.

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mining operations. U.S. Steel Mining Co., 6 FMSHRC 1573, 1574
(July 1984). The air on the section was recirculating and coal
was being mined. Although the concentration of methane was low at
the point in time that the violation was cited, the mine liberates
large quantities of methane and the inspector testified without
contradiction that sudden releases of methane can occur at any time.
In fact, as the judge noted, due to the amount of methane liberated
at the mine it is on the frequent inspection cycle mandated by
section 103(i) of the Act, 30 U.S.C. $ 813(i). Thus, had normal
mining operations continued, methane could have accumulated in
unsafe concentrations. See U.S. Steel Mining Co., 7 FMSHRC 1125,
1130 (August 1985). Further, several potential ignition sources were
present on the section in the form of an electrically powered ram car,
a roof bolting machine, a scoop and an auxiliary ventilation fan.

In order to establish the significant and substantial

nature of the violation, the Secretary need not prove that the
hazard contributed to actually will result in an injury causing
event. The Commission has consistently held that proof that the
injury-causing event is reasonably likely to occur is what is
required. See, e.g., U.S. Steel Mining Co., 7 FMSHRC at 1125;
U.S. Steel Mining Co., 7 FMSHRC 327, 329 (March 1985).

Y&O's challenge to the judge's significant and substantial

designation of the second violation of section 75.302-4(a) must
also be rejected in light of the substantial evidence supporting
the judge's decision.

 Here, the inspector testified that at the time of the

violation he found .5% methane at the face. He further testified
that a sudden release or outburst of methane had occurred recently
at the mine, which resulted in a concentration of 1.8%. (As noted
above the mine is on a section 103(i) inspection cycle.) The presence
of the electrically powered continuous mining machine constituted a
possible ignition source. Accordingly, the judge's findings of
significant and substantial violations must be affirmed.

Finally, we turn to the penalty aspects of this case, and to

Y&0's assertion that the judge erred in failing to require the
Secretary to redetermine his proposed penalties under the Secretary's
regular penalty assessment procedure of section 100.3 or his single
penalty procedure of section 100.4.

At the outset, we acknowledge that the argument raised by
Y&0 here differs somewhat from that presented in other cases

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addressing the separate roles of the Secretary and the Commission
under the Mine Act:s bifurcated penalty assessment scheme. In the
prior cases cited by the parties the central issue has concerned
whether in assessing penalties in contested cases the Commission and
its judges are bound by the penalty assessment regulations adopted by
the Secretary in Part 100. We have consistently rejected assertions
that, in serving our separate and distinct function of assessing
appropriate penalties based on a record developed in adjudicatory
proceedings before the Commission, we are bound by the Secretary's
regulations, which are intended to assist him in proposing appropriate
penalties. See, e.g., Sellersburg Stone Co., 5

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FMSHRC 287 (March 1983), aff'd, 737 F.2d 1147 (7th Cir. 1984);
Black Diamond Coal Mining Co., 7 FMSHRC 1117 (August 1986);
U.S. Steel Mining Co., 6 FMSHRC 1148 (May 1984).

In the present case, however, Y&0 makes it clear that it

is not arguing that the Commission is required to adhere to the
Secretary's penalty regulations. Rather, it argues that when the
Secretary fails to conform to his own regulations in proposing
penalties, the Commission must require the Secretary to re-propose
a penalty in a manner consistent with his regulations. We have
carefully considered Y&O's argument. For the reasons that follow,
we conclude that the Commission's independent penalty assessment
authority under the Mine Act's bifurcated penalty assessment scheme
serves to provide the necessary and appropriate relief in the vast
majority of instances where the Secretary fails to follow his penalty
assessment regulations in proposing penalties. We further hold,
however, that in certain limited circumstances the Commission may
require the Secretary to re-propose his penalties in a manner
consistent with his regulations.

As has been stated, "[i]t is axiomatic that an agency must

adhere to its own regulations." Brock v. Cathedral Bluffs Shale Oil
Co., 796 F.2d 533 (D.C. Cir. 1986)(Scalia, J.), citing Accardi v.
Shaughnessy, 347 U.S. 260, 265.67 (1954). The Secretary's Part 100
penalty regulations were formally promulgated and are published in
the Federal Register. Therefore, if the regulations were to be
considered in isolation they would appear to fall within the purview
of the referenced axiom and fidelity by the Secretary to his
regulations would be essential to assessment of an appropriate
penalty. Id. Viewing the Secretary's regulations in their proper
context in the Mine Act's overall penalty assessment scheme, however,
we conclude that it generally is neither required nor desirable to
require the Secretary to re-propose a penalty. The Commission
possesses explicit, statutory authority to independently assess an
appropriate penalty based on the record evidence pertaining to the
statutory criteria specified in section 110(i), 30 U.S.C. $ 820(i),
developed before it. The record developed in an adversarial
proceeding concerning the statutory penalty criteria invariably will
be more complete, current and fairly balanced than the information
that is normally available to the Secretary at the pre-hearing stage
when he must unilaterally determine and propose a penalty. Further,
because the Commission is itself bound by proper consideration of the
statutory criteria and its penalty assessments are themselves subject
to judicial review under an abuse of discretion standard, no
compelling legal or practical purpose would be served by requiring the

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Secretary to undertake again to propose a penalty where a preferable
record already has been developed before the Commission. Therefore,
we hold that, once a hearing has been held, a determination by the
Commission or one of its judges that the Secretary failed to comply
with Part 100 in proposing a penalty does not require affording the
Secretary a further opportunity to propose a penalty. Rather, in
such circumstances the appropriate course is for the Commission or
its judges to assess an appropriate penalty based on the record.

We further conclude, however, that it would not be inappropriate

for a mine operator prior to a hearing to raise and, if appropriate,
be

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given an opportunity to establish that in proposing a penalty the
Secretary failed to comply with his Part 100 penalty regulations.
If the manner of the Secretary's proceeding under Part 100 is a
legitimate concern to a mine operator, and the Secretary's departure
from his regulations can be proven by the operator, then intercession
by the Commission at an early stage of the litigation could seek to
secure Secretarial fidelity to his regulations and possible avoidance
of full adversarial proceedings. However, given that the Secretary
need only defend on the ground that he did not arbitrarily proceed
under a particular provision of his penalty regulations, and given the
Commission's independent penalty assessment authority, the scope of
the inquiry into the Secretary's actions at this juncture necessarily
would be limited.

 We recognize that in the present case Y&0 did attempt to

raise this issue at an early stage of the proceedings, but was
rebuffed by the judge who failed to distinguish Y&O's argument from
those that had been previously considered by the Commission. On
this record, however, the judge's error was harmless. Y&0 has not
established that the special penalty assessments proposed by the
Secretary were arbitrarily made. 30 C.F.R. $ 100.5 provides that
"MSHA may elect to waive the regular assessment formula ($ 100.5) or
the single assessment provisions ($ 100.4) if the Agency determines
that conditions surrounding the violation warrant special assessment."
It further states, "[S]ome types of violations may be of such a
nature or seriousness that it is not possible to determine an
appropriate penalty [by using the regular or the single penalty
assessment provisions]." The regulation provides that "[a]ccordingly,
the following categories [of violations] will be individually reviewed
to determine whether a special assessment is appropriate:

       *           *           *

  (h) Violations involving an extraordinarily high
  degree of negligence or gravity or other unique
  aggravating circumstances."

30 C.F.R. $ 100.5(h). MSHA's supervisory mining engineer who
reviewed the citations at issue and recommended that they be specially
assessed testified that he made the recommendations, among other
reasons, because recirculation was a continuing problem at the mine,
because he believed Y&0 exhibited a high degree of negligence in
permitting the violations to exist, and because of the seriousness of
the hazard posed by the violations. These considerations all fall
within the purview of section 100.5(h) as a basis for a special

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assessment, and we cannot conclude that in proposing the special
assessments under section 100.5 the Secretary acted arbitrarily.
Therefore, it was proper for the judge to assess penalties based on
the record developed at the hearing.

Although Y&0 further challenges the judge's penalty assessments

as they relate to the negligence and gravity criteria, we hold that
substantial evidence supports the judge:s negligence and gravity
findings regarding both violations. It is not disputed that
recirculation previously occurred at the mine. Approximately one
month

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before the first violation was cited the mine superintendent
discussed the mine's recirculation problems with MSHA district
personnel. During these discussions the superintendent was told
that the use of baffle curtains offered a possible solution. When
the second recirculation violation here was cited, three weeks after
the first, the section foreman apparently still was not aware that
the use of baffle curtains could prevent the recirculation problem
encountered. Regarding the gravity of the violations, the mine
liberates large amounts of methane, some methane was present in the
sections at the time each violation was cited, and ignition sources
were also present. In view of these factors, the judge properly
evaluated the gravity of the violations as being serious. We further
find that the amount of the penalties assessed by the judge are
supported by the record, are consistent with the statutory penalty
criteria, and will not be disturbed. Shamrock Coal Co., 1 FMSHRC 469
(June 1979).

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Accordingly, the decision of the administrative law judge is
affirmed insofar as it is consistent with this decision.

               Ford B. Ford, Chairman

               Richard V. Backley, Commissioner

               Joyce A. Doyle, Commissioner

               James A. Lastowka, Commissioner

               L. Clair Nelson, Commissioner

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Distribution

Gerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Robert C. Kota, Esq.
Youghiogheny & Ohio Coal Company
P.0. Box 1000
St. Clairsville, Ohio 43950

Gerald P. Duff, Esq.
Hanlon, Duff, Paleudis Co., LPA
46770 National Road West
St. Clairsville, Ohio 43950