AMAX Coal Company

Plain-English summary

MSHA cited AMAX Coal Company after inspectors found standing water and mud in a mine haulageway, with water up to 24 inches deep and a tractor stuck in the mud. The judge found that the roadway conditions affected equipment control and that the violation was significant and substantial because vehicles could skid into equipment, miners, or a rib. The judge affirmed the violation and the related safeguard citation and ordered AMAX to pay $2,309. The decision also reconfirmed approval of a settlement reducing one order's penalty from $2,500 to $2,000.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1403-10(i)
• Outcome: Order No. 4263998 and Citation No. 4264052 were affirmed, with a total penalty of $2,309.
• Key point: Wet and muddy haulageway conditions that impaired equipment control supported an S&S finding and penalty.

Full text (FMSHRC public release)

[DOCID: f:l96-17.wais]

AMAX COAL COMPANY
May 13, 1996
LAKE 96-17

       FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

             OFFICE OF ADMINISTRATIVE LAW JUDGES
                    2 SKYLINE, 10th FLOOR
                      5203 LEESBURG PIKE
                FALLS CHURCH, VIRGINIA  22041

                         May 13, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 96-17
Petitioner : A.C. No. 11-00877-04131
:
v. :
:
AMAX COAL COMPANY, : Wabash Mine
Respondent :

                           DECISION

Appearances: Ruben R. Chapa, Esq., Office of the Solicitor, U.S.
Dept. of Labor, Chicago, Illinois for Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll P.C.,
Pittsburgh, Pennsylvania for Respondent.

Before: Judge Melick

 This case is before me upon the petition for civil penalty

filed by the Secretary of Labor pursuant to Section 105(d) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801,
et seq., the "Act," charging the Amax Coal Company (Amax) with
two violations under the Act and proposing civil penalties of
$2,809 for those violations.

                      Order No. 4263998

 At hearing petitioner filed a motion to approve a settlement

agreement as to this order. A reduction in penalty from $2,500
to $2,000 was proposed. Based on the representations and
documentation submitted I concluded that the proffered settlement
was acceptable under the criteria set forth in Section 110(i) of
the Act. That determination is here reconfirmed and an order
directing payment of the penalty is incorporated herein.

Citation No. 4263995

This citation charges as follows:

      "The 25/3W haulageway was not kept free of wet and muddy
 conditions.  At No. 29 and from 10 to 12 crosscuts
 mud and water up to 24 inches in depth affected the
 control of equipment."

 This citation was issued by MSHA Inspector Robert Stamm on

September 5, 1995, based upon Safeguard No. 3536015 issued
April 27, 1992. The safeguard had been issued pursuant to
the criteria set forth in the standard at 30 C.F.R. � 75.1403-10(i).
That standard provides that "[o]ff-track haulage roadways should
be maintained as free as practicable from bottom irregularities,
debris, and wet or muddy conditions that affect the control of
equipment."

The underlying safeguard provided as follows:

      "The haulage road in the Number 3 entry on the 1st S/1st
 W/ MWS entries was not being maintained free of wet and muddy
 conditions that affected the control of the Gettman tractor
 (oil car) from spad number 35170 to 200 feet outby.  This is
 a notice to provide safeguards requiring this roadway and
 other roadways at this mine to be maintained free as
 practical from wet or muddy conditions that affect the control
 of equipment."

 The Secretary's general authority to issue safeguards is

derived from Section 314(b) of the Act. This Commission has
held that the language of that section is broad and
"manifests a legislative purpose to guard against all
hazards attendant upon haulage and transport [ation] in coal
mining." Jim Walter Resources, Inc., 7 FMSHRC 493, 496
(April 1985). The Commission has also observed that while
other mandatory safety and health standards are adopted
through the notice-and-comment rulemaking procedures of
Section 101 of the Act, Section 314(b) extends authority to
the Secretary to create on a mine-by-mine basis what are, in
effect, mandatory standards, without the formalities of
rulemaking. Southern Ohio Coal Company, 7 FMSHRC 509, 512
(April 1985). The Commission has recognized that "this
unusually broad grant of regulatory authority must be
bounded by a rule of interpretation more restrained than
that accorded promulgated standards." Id.

 The Commission also held in BethEnergy Mines, Inc., 14

FMSHRC 17 (January 1992) that a safeguard must be based upon
the specific conditions at a mine. Further, in Southern
Ohio Coal Company, 14 FMSHRC 1 (January 1992), the
Commission held that the Secretary has the burden of proving
that the inspector evaluated the specific conditions at the
particular mine at issue and determined that a safeguard was
warranted in order to address a transportation hazard. The
safeguard notice must also identify with specificity the
nature of the hazard at which it was directed and the
conduct of the operator necessary to remedy such hazard.

 The initial question presented in this case, therefore, is

whether the instant safeguard was validly issued. I find,
upon the credible testimony of the issuing inspector, that
it was.

 According to the undisputed testimony of the issuing

inspector, Wilbur Deuel, he observed on April 27, 1992, a
Gettman diesel tractor which was unable to climb a hill in
the mine because of "slick" conditions, described in his
safeguard as wet and muddy. Deuel was concerned that the
Gettman could lose control on the slick incline, which he
noted was one of the steepest in the mine. This evidence
adequately establishes that the inspector evaluated specific
conditions at the mine in determining that this safeguard
was warranted.

  The identification of the nature of the cited hazard was

also made in the notice to provide safeguard with the
requisite specificity. It is not material to this issue
that the wet and slippery conditions may have been found in
a different location in the mine or on an incline. Although
the wet and slippery conditions may have been aggravated by
the incline, the underlying hazard was wet and slippery
conditions on a haulageway. The criteria for a valid
issuance of the safeguard have, therefore, been met.

 The issue then, is whether Amax violated the safeguard in

this case. The evidence is overwhelming that it did.
According to MSHA Inspector Robert Stamm, on September 5,
1995, during the course of his inspection, he discovered
standing water and mud at two locations. At crosscut No. 29
there was 30 feet of water along the 15-foot-wide entry and
at the No. 15 to 20 crosscuts the body of water was 150 feet
long, 15 feet wide and up to 24 inches deep. At the time he
issued the citation a Gettman tractor was also stuck in the
mud. Stamm noted that the hazard was from the mud itself
and he observed that the Gettman tractor had been sliding
toward the rib. This was evident from its tire tracks.
According to Stamm, the condition should have been known to
the operator as the section foreman must travel this area
each day. He also observed that pumps had been installed in
the area but they were not then operating. Amax
representative Ray Evans told Stamm that in any event it
would be difficult to pump mud with these pumps.

 Stamm believed that the violation was "significant and

substantial" and of high gravity because of the possibility
of running into a rib and passengers being thrown around.
He also observed that material falling into the water, such
as cement blocks and roof bolts, could be hit by vehicles,
thereby causing accidents.

 Mine examiner and United Mine Workers of America (UMWA)

safety committee chairman, Joe Hoover, testified that he saw
these conditions on September 5, 1995, and noted that the
water extended from rib to rib. The Gettman tractor was
also "hung up" with the oil and fuel cars it was pulling.
Hoover noted that pickup trucks also traveled through the
cited area and that he had seen such trucks drive up to 30
miles per hour. He noted that it was not uncommon for wet
conditions to exist at the face areas and in the returns and
primary intakes. He further observed that the cited area
was a secondary escapeway and that employees passed through
this area to get to the working section.
Within this framework of evidence, it is clear that the
violation has been proven as charged, that the violation was
"significant and substantial" and the violation was the
result of negligence. A violation is properly designated
as "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. Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (1981). In
Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984), the Commission
explained:

 In order to establish that a violation of a mandatory

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.

 See also Austin Power Co. v. Secretary, 861, F.2d 99,

103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (1987)
(approving Mathies criteria.

 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 (1984),
and also that the likelihood of injury be evaluated in terms
of continued normal mining operations. U.S. Steel Mining
Co., Inc., 6 FMSHRC 1473, 1574 (1984); see also Halfway,
Inc., 8 FMSHRC 8, 12 (1986) and Southern Oil Coal Co., 13
FMSHRC 912, 916-17 (1991). It may reasonably be inferred
from the record herein that large vehicles such as diesel
tractors and pickup trucks driving through muddy, wet and
slick conditions would likely skid into other equipment or
vehicles, a miner or a rib thereby causing serious injuries.
The operator's negligence may also be inferred from the
evidence that the cited area was traveled by foremen each
shift who would thereby necessarily have observed the cited
violative conditions.

 Under the circumstances and considering the criteria under

Section 110(i) of the Act, I find that the penalty proposed
by the Secretary is reasonable.

                            ORDER

 Order No. 4263998 and Citation No. 4264052 are affirmed.

Amax Coal Company is directed to pay a civil penalty of $2,309.00
within 30 days of the date of this decision.

                             Gary Melick
                             Administrative Law Judge

Distribution:

Ruben R. Chapa, Esq., Christine M. Kassak, Esq., Office of the
Solicitor, U.S. Dept. of Labor, 230 S. Dearborn Street, 8th Floor,
Chicago, IL 60604 (Certified Mail)

R. Henry Moore, Esq., Buchanan Ingersoll, 301 Grant Street, 20th
Floor, Pittsburgh, PA 15219-1410 (Certified Mail)

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