Super Block Coal Corporation

Plain-English summary

Super Block Coal Corporation operated the Hunley Creek mine. MSHA cited the operator because an Ingersoll-Rand T-4 highwall drill did not have a portable fire extinguisher. Judge George A. Koutras found the violation proven after the operator failed to appear or respond to the show cause order, and found the non-significant-and-substantial violation involved moderate negligence. The judge approved a $20 penalty and ordered payment within 30 days.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 77.1109(c)(1)
• Outcome: Citation No. 3038275 was affirmed as a non-S&S Section 104(a) violation, with a $20 penalty.
• Key point: Mobile mining equipment must carry the required portable fire extinguisher even when it is parked near a repair garage.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. SUPER BLOCK COAL
DDATE:
19890407
TTEXT:

Page 2

~564
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. LAKE 88-79
PETITIONER A.C. No. 12-01986-03504

      v.                              Hunley Creek

SUPER BLOCK COAL CORPORATION,
RESPONDENT

                         DECISION

Appearances: Miguel J. Carmona, Esq., Office of the
Solicitor, U.S. Department of Labor, Chicago,
Illinois, for the Petitioner.

Before: Judge Koutras

                    Statement of the Case

 This is a civil penalty proceeding initiated by the

petitioner against the respondent pursuant to section 110(a) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
820(a), seeking a civil penalty assessment in the amount of $20
for an alleged violation of mandatory safety standard 30 C.F.R.
77.1109(c)(1). The respondent filed a timely answer and contest
and a hearing was convened in Evansville, Indiana. However, the
respondent failed to appear, and the hearing proceeded in his
absence, and testimony and evidence was submitted by the
petitioner in support of the alleged violation. A show cause was
subsequently served on the respondent affording it an opportunity
to explain its failure to appear at the hearing, but no response
was received. Under the circumstances, pursuant to Commission
Rule 63, 29 C.F.R. 2700.63, the respondent is deemed to be in
default.

                           Issues

 The issues presented in this case are (1) whether the

condition or practice cited by the inspector constitutes a
violation of the cited mandatory safety standard, and (2) the
appropriate civil penalty to be assessed for the violation,

Page 3

~565
taking into account the statutory civil penalty criteria found in
section 110(i) of the Act.

    Applicable Statutory and Regulatory Provisions

 1. The Federal Mine Safety and Health Act of 1977; Pub. L.

95-164, 30 U.S.C. 801 et seq.

 2. Section 110(i) of the 1977 Act, 30 U.S.C.       820(i).

 3. Commission Rules, 29 C.F.R.    2700.1 et seq.

                      Discussion

 Section 104(a) non-"S&S" Citation No. 3038275, issued on

January 19, 1988, cites a violation of mandatory safety standard
30 C.F.R. 77.1109(c)(1), and the cited condition or practice
states as follows: "A portable fire extinguisher was not provided
for the Ingersoll-Rand T-4 highwall drill. Work area I.D. No.
900-0."

 MSHA Inspector Keith L. Stoner testified as to his

background and experience, and he confirmed that he issued the
citation in question during the course of a regular inspection
which he conducted at the mine on January 19, 1988. He stated
that the coal stripping superintendent, Danny Jasper, was present
at the mine and was aware of his inspection. Mr. Stoner confirmed
that he issued the citation after finding that a rubber-tired
drill truck was not equipped with a portable fire extinguisher as
required by the cited standard. He stated that the drill
apparatus is an integral part of the truck, and he considered it
to be a mobile piece of equipment within the meaning of the
standard.

 Mr. Stoner confirmed that the truck was parked approximately

100 feet from the repair garage, but that it was not tagged out.
Other pieces of equipment parked near the garage were equipped
with fire extinguishers, and the cited drill was the only piece
of equipment which was not provided with one. Except for the lack
of a fire extinguisher, the drill truck appeared to be in normal
and good operating condition. The truck was equipped with a
bracket which normally is used to hold an extinguisher in place.
Mr. Stoner confirmed that he spoke with Mr. Jasper about the
matter, and Mr. Jasper informed him that he did not believe that
an extinguisher was required because the drill truck was not in
use when the inspector observed it.

 Mr. Stoner stated that the violation was not significant and

substantial, and he believed that an injury was unlikely

Page 4

~566
because the drill was not in use and no one was around it at the
area where it was parked. He made a negligence finding of
"moderate" because the other equipment was provided with fire
extinguishers, and abatement was achieved within 5 minutes when a
spare extinguisher located in the repair garage was placed on the
drill truck in the bracket which was provided for this purpose.

                  Findings and Conclusions

Fact of Violation

 The respondent is charged with a violation of mandatory

safety standard 30 C.F.R. 77.1109(c)(1), for failure to provide
a portal fire extinguisher for the highwall drill in question.
Section 77.1109(c)(1) provides as follows: "Mobile equipment,
including trucks, front-end loaders, bulldozers, portable welding
units, and augers, shall be equipped with at least one portable
fire extinguisher."

 As noted earlier, the respondent failed to appear at the

hearing in this matter, and failed to respond to my show cause
order of March 14, 1989. The returned postal service certified
mail receipts of record reflect that the respondent received the
initial hearing notice, the amended hearing notice, and the show
cause order. However, it has not further responded or explained
its absence and failure to respond. Under all of these
circumstances, I conclude and find that the respondent is in
default and has waived its right to be heard further in this
matter.

 On the basis of the credible testimony of the inspector who

issued the citation, I further conclude and find that the
petitioner has established a violation of section 77.1109(c)(1),
and the citation is therefore AFFIRMED.

Size of Business and Effect of Civil Penalty Assessment on the
Respondent's Ability to Continue in Business

 The respondent appears to be a small mine operator, and

absent any information to the contrary, I conclude and find that
the $20 civil penalty assessment for the violation in question
will not adversely affect its ability to continue in business.

History of Prior Violations

 A computer printout submitted by the petitioner reflects

that for for the period March 21, 1986 to March 20, 1988, the

Page 5

~567
respondent paid civil penalty assessments in the amount of $960
for 17 section 104(a) citations, none of which include prior
violations of mandatory safety standard section 77.1109(c)(1). I
cannot conclude that the respondent's compliance history is such
as to warrant any additional increase in the civil penalty
assessment made for the violation which has been affirmed in this
case.

Good Faith Compliance

 I conclude and find that the respondent immediately abated

the violation in good faith by providing a fire extinguisher for
the cited drill in question.

Negligence

 The inspector's "moderate" negligence finding is affirmed.

Gravity

 The inspector's credible testimony establishes that the

violation was not serious, and I adopt his finding as my finding
and conclusion on this issue.

               Civil Penalty Assessment

 On the basis of the foregoing findings and conclusions, and

taking into account the requirements of section 110(i) of the
Act, I conclude and find that the petitioner's proposed civil
penalty assessment in the amount of $20 for the violation in
question is reasonable and appropriate, and IT IS APPROVED.

                         ORDER

 The respondent IS ORDERED to pay to the petitioner a civil

penalty assessment in the amount of $20 for a violation of
mandatory safety standard 30 C.F.R. 77.1109(c)(1), as stated in
section 104(a) "non-S&S" Citation No. 3038275, January 19, 1988.
Payment is to be made to the petitioner within thirty (30) days
of the date of this decision and order, and upon receipt of
payment, this case is dismissed.

                            George A. Koutras
                            Administrative Law Judge