R S & W Coal Company, Inc.

Plain-English summary

R S & W Coal Company operated a small anthracite mine with a front-end loader whose left door window was broken near the top. Judge T. Todd Hodgdon found that the broken window violated the requirement to keep cab windows in good condition. He found the violation was not significant and substantial because contact with the high break was unlikely during normal entry into the cab. The judge also reduced negligence from moderate to low and assessed a $35 penalty instead of the proposed $76.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.1605(a)
• Outcome: Citation No. 7009043 was affirmed as modified, with the S&S designation removed, negligence reduced to low, and a $35 penalty assessed.
• Key point: A broken cab window violated the maintenance standard, but its location made an injury unlikely and supported lower gravity, negligence, and penalty findings.

Full text (FMSHRC public release)

FMSRHC ALJ DECISION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500

Washington, DC 20001

January 29, 2008

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

R S & W COAL COMPANY, INC.,

Respondent

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CIVIL PENALTY PROCEEDING

Docket No. PENN 2007-163

A.C. 36-01818-110700-02

R S & W Drift

DECISION

Appearances:    Patrick M. Boylan, Conference and Litigation Representative, Mine Safety and
Health Administration, Department of Labor, Wilkes-Barre, Pennsylvania, and John M. Strawn, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner; Randy Rothermel, R S & W Coal Company, Schuylkill, Pennsylvania, Pro Se,for Respondent.

Before:              Judge Hodgdon

This case is before me on a Petition for Assessment of Civil Penalty brought by the
Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA), against
R S & W Coal Company, pursuant to section 105 of the Federal Mine Safety and Health Act of
1977, as amended, 30 U.S.C. § 815. The petition alleges a single violation of the Secretary’s
mandatory health and safety standards and seeks a penalty of $76.00. For the reasons set forth
below, I modify the citation and assess a penalty of $35.00.

Background

The R S & W Drift Mine is owned and operated by R S & W Coal Company, Inc. The company mines anthracite coal at this Schuylkill, Pennsylvania location. The mine employed
an average of 6 employees for the first three quarters of 2007. There has been no production at the
mine since the beginning of September 2007.

Ronald G. Pinchorski, Coal Mine Safety and Health Inspector, conducted a mandatory
inspection at the R S & W Drift Mine on October 17, 2006. During the inspection, he issued
Citation No. 7009043, under section 104(a) of the Act, 30 U.S.C. § 814(a), which was contested at
trial.

Findings of Fact and Conclusions of Law

The citation alleges a violation of section 77.1605 of the Secretary’s regulations, 30 C.F.R.
§ 77.1605, because: “The left side door window on the Caterpillar Model 966C, rubber tired front-end loader (Sn#76J940) was not maintained in good condition, in that the window was broken
(Section Missing). This condition caused the possibility of injuries to occur due to sharp edges.”
(Govt Ex. 1.) Section 77.1605(a), 30 C.F.R. §77.1605(a), provides that: “Cab windows shall be of
safety glass or equivalent, in good condition and shall be kept clean.”

Inspector Pinchorski testified that the window was located on the left side door. (Tr. 13.)
This is the side of the Caterpillar that the operator would mount and dismount. (Tr. 13.) Inspector
Pinchorski believed that the broken Plexiglas window contained sharp edges. (Tr. 13.) According
to him, the handle of the door was located several inches away from the broken part of the window.
(Tr. 39.) Timely abatement of the citation occurred when the window was removed. (Tr. 15.)

Randy Rothermel, owner of the company, testified that the window, which he brought with
him to the trial, was broken about an inch from the top. (Resp. Ex. A, Tr. 52.) He said that he did
not believe it was a violation because “it’s impossible to get hurt the way that window was
installed in the loader.” (Tr. 43.) He estimated that the window had been in the same condition
between three and five years. (Tr. 43.)

It is undisputed that the window was broken. However, based on an examination of the
window, I conclude that it was broken about an inch from the top and not a third of the way up as
the inspector recollected. Regardless, since the window was broken, it was not in good condition
and I conclude that the operator violated section 77.1605(a) as alleged.

Significant and Substantial

The inspector found this violation to be “significant and substantial.” A “significant and
substantial” (S&S) violation is described in section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1), as
a violation “of such nature as could significantly and substantially contribute to the cause and effect
of a coal or other mine safety or health hazard.” A violation is properly designated S&S “if, based
upon 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 (Apr. 1981)

In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission enumerated four criteria
that have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d
133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988),
aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria).
Evaluation of the criteria is made in terms of “continued normal mining operations.” U.S. Steel
Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a particular
violation is S&S must be based on the particular facts surrounding the violation. Texasgulf, Inc.,
10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).

In order to prove that a violation is S&S, the Secretary must establish: (1) a violation of a
safety standard; (2) a distinct safety hazard 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 will be of a reasonably serious nature. Mathies, 6 FMSHRC at 3-4.

The inspector testified that since the loader was mounted and dismounted numerous times a
day, he felt as if an injury was reasonably likely. (Tr. 14.) He further testified that possible
injuries included slipping or falling into the broken part of the window and lacerating a wrist, hand,
or arm. (Tr. 15.) On the other hand, Rothermel did not believe it was possible to cut one’s self on
the broken part of the window. (Tr. 44.)

While it appears unlikely that the broken window would cause a laceration, it makes little
difference because it is even more unlikely that someone could inadvertently come in contact with
the break. The door is opened before the operator climbs up to enter the cab. (Tr. 38.) The handle
used to climb up into the cab is about a third of the way up the window and some 20 inches below
the break. If someone slipped while entering the cab, they would fall into the open cab. If they
grabbed for the handle and missed, they would either hit the window well below the break or stick
their hand in the open cab. If the door were shut and they slipped and grabbed for the handle they
would still be well below the break.

I find that the third Mathies criterion has not been met. There is no reasonable likelihood
that the broken window would result in an injury. Accordingly, I conclude that the violation was
not “significant and substantial” and will modify the citation accordingly.

Civil Penalty Assessment

The Secretary has proposed a penalty of $76.00 for this violation. However, it is the
judge’s independent responsibility to determine the appropriate amount of penalty in accordance
with the six penalty criteria set out in section 110(i) of the Act, 30 U.S.C. § 820(i). Sellersburg
Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc., 18 FMSHRC
481, 483-84 (Apr. 1996).

In connection with these criteria, the parties have stipulated that the Respondent
demonstrated good faith in attempting to achieve compliance after notification of the violation.
(Tr. 7.) In addition, the evidence shows that this is a small mine and that the operator has a good
history of previous violations. (Govt. Exs. 5, 6 and 7.) Further, the operator has not demonstrated
that the payment of the assessed penalty will adversely affect his ability to remain in business.

With regard to gravity, I find that this was a non-serious, technical violation of the rule in
that the broken part of the window was so high up that it posed little hazard. I further find that,
for this reason, the operator’s negligence concerning this violation was “low.” The citation will
be modified accordingly.

Taking all of these factors into consideration, I conclude that a penalty of $35.00 is
appropriate for this violation.

Order

In view of the above, Citation No. 7009043 is MODIFIED by changing the likelihood of
injury from “Reasonably Likely” to “Unlikely,” the “Significant and Substantial” designation
from “Yes” to “No” and the level of negligence from “moderate” to “low” and is AFFIRMED as
modified. R S & W Coal, Inc., is ORDERED TO PAY a civil penalty of $35.00 within 30 days

of the date of this decision.

T. Todd Hodgdon

Administrative Law Judge

Distribution:

Patrick M. Boylan, Conference & Litigation Representative, U.S. Department of Labor, MSHA,
The Stegmaier Bldg., Suite 034, 7 North Wilkes-Barre Blvd., Wilkes-Barre, PA 18702

Randy C. Rothermel, Owner, RS & W Coal Company, Inc., 207 Creek Rd., Klingerstown, PA
17941

/sr