Lancashire Coal Company
Lancashire Coal Company (FMSHRC PENN 89-147-R, PENN 89-148-R, PENN 89-149-R, PENN 89-192-R, PENN 89-193-R, and PENN 90-10): Demolition-site citations resolved after fatal accident
What's the rule today?
This ALJ decision was superseded by the Commission's decision in the same case. Ezel starts from the controlling decision and answers your situation under current law, with citations.
Plain-English summary
A contractor employee died while dismantling a coal storage silo at Lancashire's preparation plant. The ALJ found that MSHA had jurisdiction over the site, affirmed orders and citations concerning site safety, structural maintenance, and required reporting, and rejected Lancashire's selective-enforcement arguments. One citation was vacated. The related civil penalty proceeding assessed $2,800 for the structural-maintenance violation and $20 for the reporting violation, for a total of $2,820.
Decision snapshot
- Cited standards: 30 C.F.R. § 77.200; 30 C.F.R. § 77.1712; 30 C.F.R. § 45.4(b)
- Outcome: Four orders or citations were affirmed, one citation was vacated, and $2,820 in civil penalties was assessed.
- Key point: A previously abandoned mine site remained subject to MSHA enforcement when active demolition work exposed workers to hazards.
Full text (FMSHRC public release)
Page 2
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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges
LANCASHIRE COAL COMPANY, CONTEST PROCEEDINGS
CONTESTANT
v. Docket No. PENN 89-147-R
Order No. 2888399; 3/21/89
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH Docket No. PENN 89-148-R
ADMINISTRATION (MSHA), Order No. 2888400; 3/21/89
RESPONDENT
Docket No. PENN 89-149-R
Citation No. 2891501; 3/21/89
Docket No. PENN 89-192-R
Citation No. 2891508; 4/17/89
Docket No. PENN 89-193-R
Citation No. 2891509; 4/17/89
Prep Plant
Mine ID 36-00838
CIVIL PENALTY PROCEEDING
Docket No. PENN 90-10
A.C. No. 36-00838-03537
Prep Plant
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
PETITIONER
v.
LANCASHIRE COAL COMPANY,
RESPONDENT
DECISIONS
Appearances: Steven P. Fulton, James R. Haggerty, Esqs., Reed,
Smith, Shaw & McClay, Pittsburgh, Pennsylvania, for the
Contestant/Respondent; Mark V. Swirsky, Esq., Office of the
Solicitor, U.S. Department of Labor, Philadelphia, Pennsylvania,
for the Respondent/Petitioner.
Before: Judge Koutras
Statement of the Proceedings
These consolidated proceedings concern Notices of Contests
filed by the contestant (Lancashire) pursuant to section 105(d)
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citations issued by MSHA mine inspectors. The civil penalty
proceeding concerns proposals for assessment of civil penalties
filed by MSHA seeking civil penalty assessments against
Lancashire for the alleged violations of the mandatory safety and
reporting standards which are the subject of the contested
citations. Hearings were held in Pittsburgh, Pennsylvania, and
the parties filed posthearing briefs which I have considered in
the course of my adjudication of these matters.
Issues
An initial issue in these proceedings is one of jurisdic-
tion. Lancashire contends that the mine in question does not
not fall within the statutory definition of a "mine" subject to
MSHA's jurisdiction, that the mine was placed in a "permanently
abandoned" status by MSHA in September, 1988, and was not
"reopened" or "reactivated" for purposes of coal extraction
processing or production, and that MSHA's alleged failure to
inspect or regulate other mines similarly situated constitutes
illegal "selective enforcement" against Lancashire.
Assuming that jurisdiction attaches, the next issues
presented include the following: (1) whether Lancashire violated
the cited mandatory standards; (2) whether the alleged violations
were significant and substantial (S&S); (3) whether the
conditions or practices cited in the contested section 107(a)
imminent danger order constituted an imminent danger; and (4)
whether the section 103(k) order was properly issued.
Assuming the alleged violations are established, the
question next presented is the appropriate civil penalties to be
assessed pursuant to the civil penalty assessment criteria found
in section 110(i) of the Act. Additional issues raised by the
parties are identified and disposed of in the course of the
adjudication of these cases.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 U.S.C. 301, et seq.
2. 30 C.F.R. 77.200, 77.1712, and 45.4(b).
3. Commission Rules, 29 C.F.R. 2700.1, et seq.
Stipulations
The parties stipulated to the following (Tr. 16; exhibit
ALJ-1):
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1. The subject work site, Lancashire Coal Company Preparation
Plant ("the work site") is located in Elmora, Cambria
County, Pennsylvania and is owned by the Inland Steel Company
("Inland"), which has an office in East Chicago, Indiana.
2. Inland has referred to the work site as the #15 Prepara-
tion Plant.
3. The work site is adjacent to a sealed mine facility which
is owned by Inland and which is known as the Lancashire Coal
Company No. 25 Mine ("Lancashire Mine #25").
4. No coal has been mined at Lancashire Mine #25 since
June 3, 1983.
5. Until June 3, 1983, the Lancashire Mine #25 was an
active, producing underground coal mine with surface coal
preparation facilities located adjacent to it on the site ("the
Lancashire Coal Company Preparation Plant").
6. On April 17, 1986, the underground mine shafts were
sealed by the operator. At that time, the mine operator was
Inland Steel Coal Company.
7. Since the mine shafts were sealed, the surface facilities
have been inactive with the exception of a small water treatment
facility.
8. On September 30, 1986, the MSHA classification of the
mine was changed to a surface facility as a result of the
underground openings being sealed.
9. During fiscal years 1987 and 1988, the work site was
inspected by MSHA as a surface facility. Prior to March 20, 1989,
the last MSHA safety and health inspection was April 1,
1988.
10. On September 6, 1988, the Hastings Field Office of MSHA
declared the work site permanently abandoned (Joint Exhibit 1).
11. MSHA's internal classification for the work site as of
September 6, 1988 was CG status -- one of several MSHA
classifications which are set forth and explained in the
Department of Labor Mine Safety and Health Administration Coal
Mine Safety and Health ("CMS & H") User's Guide for Coal's
Management Information System, October 1, 1986 (Exhibit R-1).
12. As a result of the action it took on September 6, 1988,
MSHA ceased inspection activity at the work site.
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13. After September 6, 1988, Lancashire took no action to
indicate that it intended to resume the extraction, production,
milling or processing of coal.
14. In late 1988, Lancashire sought bids from contractors to
perform work dismantling and removing facilities and structural
materials from the work site and reclaiming the area.
15. K & L Equipment Co., Inc. ("K & L"), owned by Kenneth
Morchesky, was selected as the contractor and commenced work the
week of February 20, 1989.
16. Purchase orders relating to the contract between
Lancashire and K & L are set forth at Joint Exhibits 2 and 3.
17. On March 20, 1989, a fatal accident occurred at the work
site. One of K & L's employees was killed during operations to
raze a silo at the site.
18. On March 21, 1989, MSHA Inspector William D. Sparvieri,
Jr. arrived at the work site to conduct an inspection. As part of
his activities at the work site on March 21, 1989, Mr. Sparvieri
issued the following citations and orders (exhibits
R-2 through R-4):
a. Section 103(k) Order No. 2888399, 3:00 p.m.
b. Section 107(a) Order No. 2888400, 3:15 p.m.
c. Section 104(a) Citation No. 2891501, 3:30 p.m.
19. Order No. 2888399 was modified on March 27, 1989 at 7:45
a.m., and it was terminated on June 29, 1989, at 9:20 a.m.
20. Order No. 2888400 was terminated on June 29, 1989, at
9:30 a.m. Citation No. 2891501 was terminated on June 29, 1989,
at 9:35 a.m.
21. Order Nos. 2888399 and 2888400, and Citation No. 2891501
were timely contested by Contestant.
22. On April 17, 1989, Inspector Sparvieri returned to the
work site and served Citation Nos. 2891508 (1:55 p.m.) and
2891509 (2:00 p.m.) (exhibits R-5 and R-6).
23. Citation No. 2891508 was modified on May 1, 1989, at
9:50 a.m., and it was terminated on May 8, 1989 at 1:10 p.m.
24. Citation No. 2891509 was terminated on May 8, 1989 at
1:15 p.m.
25. Citation Nos. 2891508 and 2991509 were timely contested
by Contestant.
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26. The above-described orders and citations were served by a
representative of the Secretary of Labor upon an agent of
Lancashire at the dates, times, and places stated therein.
27. Lancashire stipulates that at the time Citation No.
2891508 was issued, it did not maintain in writing at the work
site the information described in 30 C.F.R. 45.4(a). Lancashire
denies that it had any obligation to maintain such information.
28. Lancashire stipulates that it did not notify the Coal
Mine Health and Safety District Manager prior to commencing the
work which is at issue in this case. Lancashire denies that it
had any obligation to give such notification.
29. MSHA admits that apart from the regulations codified in
30 C.F.R. Part 77, no agent from MSHA provided any notification
to Lancashire that it must notify the Coal Mine Health and Safety
Health and Safety District Manager prior to commencing the work
which is at issue in this case.
30. Assuming the accuracy of the proposed civil penalty
assessments filed by MSHA, the parties adduce the following
information concerning the six statutory civil penalty criteria
found in Section 110(i) of the Act:
a. During the two-year period preceding the
issuance of the subject citations, Lancashire had no
violations.
b. Payment of the proposed penalties would not
affect the operator's ability to continue in business.
c. The operator demonstrated good faith
in attempting to abate the alleged violations after noti-
fication of them.
31. The parties stipulate to the authenticity and
admissibility of each other's exhibits (with the exception of
MSHA's Exhibits 7, 8, 9, 16, 25, 36, 37, and 38), but not
necessarily to the exhibits' relevance nor to the truth of the
matters asserted therein.
32. The Administrative Law Judge has jurisdiction over these
proceedings. However, Lancashire denies that its activities at
the subject work site are subject to the jurisdiction of the
Federal Mine Safety and Health Act of 1977.
Bench Rulings
The presiding Judge made the following bench rulings during
the course of the hearing in these proceedings:
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1. MSHA's objection to the admissibility of an affidavit executed
by retired MSHA Inspector Thomas J. Simmers (exhibit C-3), was
overruled and denied, and the affidavit was received as part of
the record (Tr. 19).
2. MSHA's objection to the receipt of any testimony
regarding MSHA's enforcement actions concerning the Barnes &
Tucker No. 20 Mine was overruled and denied (Tr. 9).
3. MSHA's motion to quash the subpoenas issued by
Lancashire for the appearance and testimony of MSHA Inspector
Niehenke and Brunatti (who appeared at the hearing) was overruled
and denied (Tr. 9).
4. Lancashire's objections to the admissibility of
several hearing exhibits offered by MSHA (see stipulation #31)
were overruled and denied and the documents were received as part
of the record (Tr. 24-41).
Discussion
The facts in these proceedings show that at approximately
2:15 p.m., on March 20, 1989, a fatal accident occurred at
Lancashire's preparation plant when an employee of an independent
contractor (K & L Equipment, Inc.) suffered fatal injuries while
in the process of helping to dismantle a concrete coal storage
silo. The victim, Robert Bell, had performed work cutting certain
5/8 inch steel reinforcing bands from the silo in question with a
cutting torch. After completing this work, Mr. Bell left the area
for a short time and returned to the silo area where he was next
observed with the cutting torch kneeling at the base of the silo,
where two or three of the steel reinforcing bands had been left
intact. A section of the silo approximately 15 feet high and 30
feet wide collapsed, burying Mr. Bell in the debris which was in
the silo. According to MSHA's accident investigation report, the
debris included approximately 40 tons of coal which was in the
silo.
As a result of the accident, MSHA Inspector William D.
Sparvieri, Jr., who conducted the accident investigation, issued
several citations to the contractor K & L Equipment, Inc., (which
were not contested), and he also issued the contested citations
and orders to Lancashire and served them at the mine office on
Mr. Frank Falger, a supervisor who maintained an office at the
mine site. The citations and orders in question are as follows:
Docket No. PENN 89-147-R. Section 103(k) Order No. 2888399,
March 21, 1989, states as follows (exhibit R-2):
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A fatal accident occurred on March 20, 1989, at
the surface area of the mine site. This 103(k) order
is issued to assure the safety of persons at the mine
site. This area is closed to all persons except those
needed to conduct an investigation. No persons are to
enter this area and no work shall be performed in this
area until the investigation is completed.
Docket No. PENN 89-148-R. Section 107(a) Imminent Danger
Order No. 2888400, March 21, 1989, states as follows (exhibit
R-3):
Structural damage has occurred in the raw coal silo and
the screen house located next to the raw coal silo. Both
structures at the present time are in an unstable condition and
are a threat to persons in the immediate area. This condition was
observed during a fatal accident investigation. To terminate this
condition both structures need to be demolished. The operator
shall submit in writing to MSHA a method describing procedures to
be used to assure the safety of persons involved in the
demolition of the two structures.
Docket No. PENN 89-149-R. Section 104(a) "S&S" Citation No.
2891501, March 21, 1988, cites an alleged violation of 30 C.F.R.
77.200, and the condition or practice cited states as follow
(exhibit R-4):
The raw coal silo and the screen house were not
maintained in good repair to prevent accident or injuries to
employees. At the raw coal silo several steel re-enforcing bands
were removed causing an unstable condition which resulted in a
fatal accident on 3-20-89. Loose materials, metal sheeting, was
hanging from the screen house.
The condition was a contributing factor in the issuance
of an imminent danger Order No. 2888400, issued 3-21-89,
therefore no abatement time was set.
Docket No. PENN 89-192-R. Section 104(a) Non-"S&S" Citation
No. 2891508, April 17, 1989, and modified on May 1, 1989, cites
an alleged violation of 30 C.F.R. 45.4(b), and the condition or
practice is stated as follows (exhibits R-5 and R-5(a):
The operator did not maintain in writing at the mine
office information required by section 45a (sic) of 30 C.F.R. for
the independent contractor K & L Equipment Inc. at this mine.
This violation was revealed during a fatal accident
investigation. The accident occurred on 3-20-89.
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Docket No. PENN 89-193-R. Section 104(a) "S&S" Citation No.
2891509, April 17, 1989, cites an alleged violation of 30 C.F.R.
77.1712, and the cited condition or practice states as follow
(exhibit R-6):
The operator did not notify the MSHA District Manager
prior to re-opening. An independent contractor, K & L Equipment
Inc., was contracted for demolition work at the Lancashire Coal
Company Preparation Plant. This violation was revealed during an
investigation of a fatal accident that occurred on 3-20-89.
MSHA's Testimony and Evidence
MSHA Inspector William D. Sparvieri, Jr., testified as to
his experience and training, and he confirmed that he conducted a
fatal accident investigation on March 21, 1989. He explained what
he found at the raw coal storage silo where the incident
occurred, and the adjacent building which he identified as the
screen house, and confirmed that some demolition work had been
done at that structure (Tr. 41-48). He stated that the smaller of
the two structures, which was the coal silo where the accident
occurred, appeared to be unstable due to the fact that a large
portion of its base was missing and the steel reinforcing bands
which were around it had been cut and were hanging down, and the
silo base did not appear to have any adequate support and was not
in a safe condition. The screen house had pieces of tin and steel
metal hanging from its sides, and since he did not know exactly
how much work had been done on that structure to weaken its
support legs, he was concerned about its safety (Tr. 50).
Mr. Sparvieri stated that after spending an hour at the
site, he and fellow Inspector John Kuzar returned to their office
so that Mr. Kuzar could make a phone call to their sub-district
manager concerning the jurisdictional question raised by the mine
supervisor who was at the site (Mr. Falger), and the contractor
owner (Mr. Morchesky-K & L), who had raised the jurisdiction
question during the investigation. Mr. Sparvieri and Mr. Kuzar
then decided to issue a 103(k) order to insure the safety of the
K & L personnel doing the demolition work around the structures
in question, and they also decided to issue a section 107(a)
imminent danger order because of the unstable condition of the
silo and the screen house and to insure the safety of the
personnel as well as other persons (Tr. 51). After receiving word
from their sub-district manager Tim Thompson, they returned to
the site and Mr. Sparvieri issued the two contested orders and a
section 104(a) citation citing a violation of section 77.200,
because he believed that the silo and screen house were no longer
maintained in such a condition as to prevent an accident or
injury to persons required to work around them. Even though the
structures were being demolished, he nonetheless believed that
they were required to be maintained in a safe condition pursuant
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to section 77.200, "so that those people performing this work
have less risk of injury" (Tr. 54). He believed that the loose
materials hanging from the screen house should have been taken
down, and that the bands which had been cut from the silo
presented a question as to whether both areas were a safe
location (Tr. 55). Since there were loose and overhanging
materials above the people that were working on the structures,
he did not believe they were being maintained in good repair to
prevent these materials from falling on the people working below
(Tr. 59).
Mr. Sparvieri confirmed that he based his "S&S" findings on
the fact that the cited conditions could reasonably be expected
to injure or kill someone if work were allowed to continue on
both structures, and that the screen house overhanging materials,
and the unstable silo, presented such hazards, particularly the
silo, which had already collapsed, further weakening the
structure (Tr. 60).
Mr. Sparvieri confirmed that he based his moderate
negligence finding on the fact that the respondent knew that the
conditions existed and should have known of the conditions by
observation (Tr. 61). He identified a series of photographs of
the structures and explained the conditions which he observed
(Tr. 61-65; exhibits R-16 through R-26).
Mr. Sparvieri confirmed that after issuing the orders and
citation on March 21, 1989, he returned to the site on March 29,
1989, after receiving a call from Mr. Falger on Sunday, March 26,
1989, informing him that the remainder of the silo had collapsed
on its own, but that no one was injured and that he had posted a
guard at the site. Mr. Sparvieri took additional photographs of
the screen house, and parts of the silo had been cleaned up and
removed from the area (Tr. 67, exhibits R-27 through R-30). He
confirmed that during his intervening visits, the orders were
modified to allow the operator and contractor to complete the
demolition work (Tr. 69). He confirmed that Mr. Falger informed
him that K & L had a contract with Inland Steel to remove the
silo, the screen house, some smaller shed-type buildings, and
some belts that led to the screen house and silo, and generally
clean up the whole area (Tr. 70). Neither Mr. Falger or Mr.
Morchesky ever told him that K & L had purchased the structures
which were to be removed (Tr. 71). Mr. Sparvieri confirmed that
he visited the site again on April 17, 1989, and after informing
Mr. Falger that MSHA had decided that it had jurisdiction at the
site, he issued two additional section 104(a) citations
(Tr. 65-66).
Mr. Sparvieri stated that when he was initially assigned to
conduct the accident investigation (exhibit R-7), Mr. Kuzar
informed him that "there could be a jurisdictional question" (Tr.
71). Mr. Sparvieri then referred to MSHA's policy manual
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(exhibit R-8) dated July 1, 1988, pgs. 6, and 9-10, which make
reference to independent contractors, and he relied on item 3
dealing with the demolition of mine facilities, and he discussed
the policy with Mr. Kuzar on March 21, 1989, when he issued the
orders and citation (Tr. 72).
On cross-examination, Mr. Sparvieri confirmed that he had
previously inspected demolition work performed by independent
contractors, and that he referred to the policy because a
jurisdictional question had been raised when he conducted the
investigation of the accident. He conceded that the policy does
not make reference to permanently abandoned mine sites, and he
did not know when the facilities at the mine site were last
inspected by MSHA. He assumed that the silo and screen house were
in the same condition as they were at the time of his
investigation, except for the silo bands which had been cut, and
the support legs which were notched on the screen house. The
materials which were hanging from the screen house appeared to
have fallen off due to the conditions of the structure, and it
did not appear that they were torn off (Tr. 75). However, he did
not know if this were in fact the case (Tr. 76).
Mr. Sparvieri did not believe that one could simply look at
the structures and come to the conclusion that they are in good
repair while demolition work is taking place. He confirmed that
the demolition work was stopped "midstream" because of the
accident, and that this work would not necessarily leave the
structures in bad repair. He conceded that the stripped pieces of
steel could have occurred during demolition, and that when he
returned on March 29, portions of the silo and other materials,
such as the steel bands, were still there (Tr. 77).
Mr. Sparvieri confirmed that he estimated the height of the
silo as approximately 65 feet, and that he did not measure the
amount of the coal in the silo before or after the accident, and
did not sample any of the debris which was in the silo (Tr. 80).
Someone else estimated that the silo would hold 500 tons of coal,
and he had no idea how much of the material in the silo was clay
(Tr. 83). He confirmed that he noticed a brown tint in the
material in the photographs, and he was told that the silo had a
steel liner and that clay was used to backfill the area between
the liner and silo block. When he returned and viewed the
collapsed silo, he observed no steel liner in the silo, but did
observe a color different from coal in some of the coal that had
rolled out of the silo (Tr. 84).
Mr. Sparvieri confirmed that during his interviews, he was
told that coal had to be removed with a front-end loader bucket
to reach the accident victim, who was covered with coal, but he
did not know how much coal had to be removed (Tr. 85). He also
confirmed that he was told by people doing the demolition work
that there was coal in the silo, and that they could see it
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through an open window (Tr. 86). He estimated that the silo was
one-third full of coal through observations through the silo
opening, and the materials which were outside of the silo (Tr.
88). Lancashire's counsel agreed that the materials in the silo
were enough to inundate the accident victim and suffocate him,
and he conceded that there is a nexus between the materials in
the silo and the death of the victim (Tr. 89).
Mr. Sparvieri confirmed that his accident report reflects
that the mine operator did not notify MSHA that the mine was to
be reactivated (Tr. 90). He also confirmed that K & L had done
some demolition work at the Barnes and Tucker No. 20 preparation
plant, and that Mr. Falger told him that this work had been done
but that MSHA did not inspect that site (Tr. 92). He confirmed
that he would inspect such a site if he were assigned to inspect
it (Tr. 92). He also confirmed that once a mine site has been
declared permanently abandoned, MSHA's duty to inspect it ceases,
and he was not familiar with Lancashire's site prior to the
accident (Tr. 94, 96).
Mr. Sparvieri confirmed that the silo and screen house were
used in coal preparation, but he did not know any of the details.
He confirmed that the actual mine opening which had been sealed
was approximately a "few hundred" feet from the accident site,
but that he did not know for certain (Tr. 98). He confirmed that
during his conversations with Mr. Falger and Mr. Morchesky, they
referred to the silo as a "coal storage silo," and that he was
under the impression from the persons he talked to during his
investigation that the silo was used at one time to store coal,
and that no one ever told him that materials other than coal were
added to the silo (Tr. 100). Lancashire's counsel stated that
"there's no dispute that there was coal stored in there at some
point" (Tr. 102).
Mr. Sparvieri confirmed that Mr. Falger informed him that K
& L had the salvage rights to the materials from the structures
which it was under contract to demolish, but did not state that K
& L had purchased the property where the structures were located
from Inland Steel (Tr. 104). He further confirmed that he was
informed of the procedures followed by K & L in doing the
demolition work by Mr. Morchesky and the people doing the work at
the site, and that the silo bands were removed to weaken the
structure as part of the plan to demolish it (Tr. 108). He was
aware of no MSHA standard requiring MSHA's approval of a
demolition plan, and he confirmed that the modified order
permitting K & L to continue its work under "controlled
conditions" was issued by another inspector (Tr. 110).
Mr. Sparvieri expressed his views on how the silo structure
should have been demolished, and he confirmed that he could
observe from a safe distance that some work had been done on the
legs of the screen house with a cutting torch, and several K & L
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employees informed him that they had notched the legs sometime
during the day of the accident to weaken them so that the
structure could be pulled down (Tr. 113-114).
Lancashire's Testimony and Evidence
Francis Falger, testified that he is employed by Inland
Steel Company, Lancashire Coal Company, and has been so employed
for 30 years. He explained that he was employed by Barnes &
Tucker since 1960, and that when the property changed ownership
from Barnes & Tucker to Inland Steel, he stayed on as an employee
of Inland Steel. He stated that Barnes & Tucker operated several
mines and cleaning plants, and the property was sold to Inland
Steel in 1970, and Barnes & Tucker continued to manage it for
Inland Steel for a fee. Inland Steel then closed the mine on
November 13, 1981, and took the management from Barnes & Tucker.
Inland reopened the mine in February, 1982, and started coal
production, but then ceased production on June 3, 1983. He is the
only employee at the site, and coal was last extracted on June 3,
1983, when the shafts were sealed sometime in 1984 (Tr. 137). He
confirmed that his title is "supervisor" and that no coal milling
or preparation takes place at the site, and that prior to the
sealing of the shafts, MSHA conducted inspections at the site.
The mine was placed in a permanently abandoned status in
September of 1988, by Mr. Kuzar, and he explained how this was
done (Tr. 138-140).
Mr. Falger confirmed that MSHA did not inspect the site from
the time it was permanently abandoned until the time of the
accident, and that Inland Steel and Lancashire took no actions to
resume milling or coal preparation since the time it was
abandoned other than providing security for the site, and
treating the water pursuant to the requirements of the
Pennsylvania Department of Environmental Resources (Tr. 141). He
confirmed that he negotiated the demolition contract with K & L,
and that the remaining new silo and preparation plant which were
not torn down will eventually be torn down after the mortgage
which is due in 1991 is paid (Tr. 143). He confirmed that Inland
Steel intended to reclaim the property, and that demolition of
the existing structures is one step in that direction (Tr. 143).
Mr. Falger confirmed that Mr. Morchesky represented K & L
during the demolition contract negotiations, and he explained the
scope of some of the work covered by some of the purchase
contracts (Tr. 143-145). Mr. Falger confirmed that he did not
notify MSHA when he entered into the contract with K & L "because
we're permanently abandoned, and there was no coal production"
(Tr. 149). He informed Mr. Morchesky that K & L's demolition work
"does not come under MSHA" because the mine was permanently
abandoned and that K & L's prior demolition work at the Barnes &
Tucker No. 20 Mine was "the same thing" and was "not under MSHA"
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(Tr. 150). Mr. Falger confirmed that the demolition work
performed by K & L at the time of the accident was not for the
purpose of reopening the mine or producing coal (Tr. 150).
Mr. Falger stated that prior to the accident, nothing was
stored in the silo which was being razed, that it was constructed
in the late 1950's or early 1960's, and when the new preparation
plant was built in 1971, the silo was not in use. Mr. Falger
denied ever telling Mr. Morchesky or any of his employees that
coal was stored in the silo. He stated that MSHA had not
inspected the silo or screen house for 3-years prior to last
September, and when the site was inspected no one physically
examined the structures which were located about a 5 to 10 minute
walk from the new preparation plant (Tr. 152).
Mr. Falger stated that Mr. Sparvieri and Mr. Kuzar came to
the site after the accident on the morning of March 21, 1989, and
when he informed them that he did not believe that MSHA had
jurisdiction because the mine had been permanently abandoned by
MSHA, Mr. Kuzar responded "I don't know whether we do or not, but
we're going to start our investigation anyway until we find out
what's going on" (Tr. 154). Mr. Falger confirmed that he
cooperated with the inspectors and explained the work that was
being performed.
Mr. Falger stated that he observed the debris which was in
the silo which collapsed, and he described it as having a
"yellow, brownish cast to it," and that this did not surprise him
because the bottom of the silo was lined with clay. He confirmed
that Lancashire never intended to sell anything that was in the
silo, that it had no commercial value, and he described it as
"junk." He stated that if the material were run through a
cleaning plant, "all that was there you can't come up with much"
(Tr. 155). He could not recall whether any of the inspectors
asked him about the contents of the silo (Tr. 155).
Mr. Falger stated that the closed Barnes & Tucker No. 20
Mine was located a "ten minute drive" from the accident site, and
he confirmed that demolition work had been performed by K & L at
that site within the last 3 years, and that "they had the same
set up as we did." He explained that it was an underground slope
mine and that the shafts and slope were sealed, but that he was
not there when the work was being performed, and did not know if
MSHA inspected the demolition work. However, he stated that MSHA
Inspector Leroy Niehenke told him that he was at that site when
the demolition work was taking place but did not inspect that
work, and that he was there only to "check the electrical part of
it" and was told by his boss not to go to the area where K & L
was doing the actual demolition, and that he did what he was told
(Tr. 157).
~285
On cross-examination, Mr. Falger confirmed that he agreed to sell
Mr. Morchesky all of the scrap material removed from the site
after the structures were torn down for $55 a ton (Tr. 161). He
confirmed that there was coal in the razed silo, but denied that
the coal was stored there and that "all the coal that was in was
just stuck on the bottom in clay," and that it was "whatever was
left in the silo whenever they cleaned it out" (Tr. 165). He
stated that the coal was left in the silo 20 years ago, that it
was coal which was processed at the new preparation plant which
was built in 1971, and that it was extracted and processed prior
to 1983 (Tr. 165).
Mr. Falger confirmed that at the time Mr. Kuzar called him
to inform him that the mine would be placed in a permanently
abandoned status, he did not know that the demolition work would
be done and no contract negotiations were ongoing with K & L at
that time. He did know that the entire area would have to be
reclaimed and the structures torn down, but that Inland Steel
intended to hold the property until the leasing arrangement
expired in 1991 (Tr. 176-177). Absent any buyers, he assumes that
the new preparation plant will be torn down at that time (Tr.
179).
John Emerick, President, Coal Utilities Corporation,
testified that he is a graduate of the Penn State University, and
that he is a professional engineer in the State of Pennsylvania,
and has been since 1961. He stated that he has been involved in
the coal industry for 33 years, and has done surface mining
reclamation work, including work for Inland Steel. He was
familiar with the site in question, and was involved in the
design of the silo when he worked as chief engineer for Barnes
and Tucker from 1957 to 1969. He stated that the silo was
constructed in approximately 1959, and he explained its
construction. He stated that the silo could hold 1,100 tons of
coal at full capacity, and confirmed that he visited the site as
a consultant for Inland Steel shortly after the accident. He
observed the debris which came out of the silo, and he described
it as "a mixture of clay and coal," and he was not surprised with
this mixture because all of the coal cannot be removed because of
compaction inside the silo (Tr. 186).
In response to further questions, Mr. Emerick stated that
the silo was used to store raw coal when the cleaning plan was
not operating, or when the cleaning plant was processing more
coal from the mine than it could handle (Tr. 186).
Supervisory MSHA Inspector John Kuzar confirmed that the
Barnes & Tucker No. 20 Mine was located in his enforcement
district, and that he was aware of the demolition work there in
1986 and 1987. He knew that Mr. Morchesky was doing the
reclamation work at that site, but was not aware that he owned
the K & L
~286
Company. He explained that during part of the time the demolition
work was being performed, his office was responsible for the
mine, but that another supervisor from the Ebensburg office was
responsible for it for part of the time. He stated that he had
occasion to visit the site with another inspector who was
checking the sealing of the shafts (Tr. 190-193). He confirmed
that inspectors from his office were at the site to insure that
the slope shafts were being sealed according to the sealing plan,
and that during this same time, demolition work was taking place
at the site (Tr. 194). When asked why the inspectors would not
inspect the demolition work, Mr. Kuzar responded "probably
because they weren't assigned to inspect the demolition work"
(Tr. 195).
Mr. Kuzar further explained that he knew that some
inspectors had looked at some of the Barnes & Tucker demolition
work, but were under the impression that Mr. Morchesky had
purchased the area where the demolition work was taking place for
$1. Under the circumstances, they were of the opinion that MSHA
did not have jurisdiction over that particular area (Tr. 197). He
further explained that until the day before the hearing in these
proceedings, he believed that MSHA lacked jurisdiction if the
site were being reclaimed through state grants, or if the mine
operator went out of business and sold the land (Tr. 198). His
present understanding is that ownership of the property does not
matter (Tr. 211). He now believes that MSHA was in error for not
inspecting Mr. Morchesky's demolition work at the Barnes and
Tucker No. 20 Mine (Tr. 212).
Mr. Kuzar explained the circumstances under which the orders
in question were modified to allow the demolition work to proceed
safely, and he confirmed that he was at the site to observe the
screen house when it was taken down. He further confirmed that
the silo came down "on its own accord" and that the screen house
had to be pulled down with front-end loaders (Tr. 217, 222).
On cross-examination, Mr. Kuzar confirmed that the method
used to tear down the screen house once the orders were issued
did not differ significantly from the method which K & L intended
to use prior to the accident (Tr. 227). He also confirmed that
the screen house structure was difficult to tear down and that it
"was pulled in every direction you could possibly pull it. They
couldn't get it to come down. And when it came down, it didn't
come the way they were planning on it coming down" (Tr. 227).
Even though the structure could not be readily pulled down, the
hazard presented concerned the workers who were exposed to
materials hanging above them while they were engaged in the work
of cutting the legs of the structure (Tr. 227).
MSHA Inspector Leroy Niehenke, testified that he is an
electrical inspector, but also conducts regular mine inspections,
~287
and he confirmed that Mr. Kuzar and Mr. Biesinger are his
supervisors (Tr. 232). He confirmed that once a mine has been
declared permanently abandoned, MSHA's duty to inspect it ceases.
It was his understanding that the mine operator has a duty to
reclaim and tear down the structures left at an abandoned mine.
He confirmed that he was aware that a contractor was performing
demolition work at the Barnes & Tucker No. 20 Mine during 1986
and 1987, but did not know at that time that it was Mr. Morchesky
or K & L. The contractor was tearing down the preparation plant,
and it took a year to complete the work. Although he performed at
least one inspection at that site, he did not inspect the
demolition work of the contractor because Mr. Biesinger told him
not to. Mr. Niehenke denied that Mr. Biesinger told him that MSHA
had no jurisdiction over the demolition work, and stated that Mr.
Biesinger gave him "no reason whatsoever" for not inspecting the
work (Tr. 235).
Mr. Niehenke confirmed that once a mine has been declared
permanently abandoned, MSHA would not inspect the facility unless
the operator took some action that indicated that he intended to
resume coal production and processing (Tr. 235). He confirmed
that he had issued citations at the No. 24-D Mine portal while
shaft sealing was in progress, and that the mine at that time was
"apparently" not permanently abandoned and the operator was in
the process of sealing the shafts (Tr. 236). In his experience,
he was not aware of any time that MSHA has asserted jurisdiction
at an abandoned mine solely because of demolition work taking
place at such a mine (Tr. 237). He confirmed that after the
accident in question, he went to the site and spoke with Mr.
Falger and agreed with his assertion that he had previously not
inspected the demolition work at the Barnes & Tucker No. 20 Mine.
He confirmed that he told Mr. Falger that he had not done so
"because I received instructions from my supervisor not to
inspect it" (Tr. 237).
On cross-examination, Mr. Niehenke confirmed that his prior
inspection at the No. 20 Mine was limited to an electrical
inspection, and although electrical work may have taken place
"around" the demolition area, it was not taking place "in the
immediate area" (Tr. 238). He stated that it was his
understanding that pursuant to MSHA's policy manual, if
demolition work is being done at a mine which has been
permanently abandoned, and MSHA was aware of it, the mine would
be removed from its permanently abandoned status and placed in an
active status. He confirmed that this policy was in effect even
before the accident in question (Tr. 240).
Kenneth Morchesky, confirmed that he is the owner of K & L
Construction, and that he also owns Laurel Land Development,
which is a surface mining operation, and Cambria Metals
Processing, which is a trucking business. He confirmed that he
purchased the Barnes & Tucker site to "make my money from the
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salvaging of the good items and to scrap the rest" (Tr. 247). He
confirmed that he contracted to do the work at issue in this
case, and that he was "to raze the silo in conjunction with
removing certain pieces of junk at Inland Steel," and that this
work was covered by purchase orders (joint exhibits 2 and 3). He
confirmed that he knew about MSHA and the need for an MSHA ID
number, but did not believe that he needed an ID number for the
demolition work because he had done similar work at the No. 20
Mine without a number, and Inland Steel advised him that his work
would not be covered by MSHA. Mr. Morchesky assumed that this was
the case, and that he would be covered by OSHA (Tr. 249). Mr.
Morchesky believed that MSHA was aware of his work at the No. 20
Mine because an inspector whose name he did not recall came to
the site, and after a short discussion, he left.
Mr. Morchesky confirmed that he was served with citations in
connection with his demolition work in question, and although he
initially contested them, he paid the proposed civil penalty
assessments because "it was cheaper to pay them rather than fight
them" (Tr. 254, exhibit C-2). When asked about his prior
statement in his contest letter of May 31, 1989, exhibit C-2,
that an MSHA inspector at the No. 20 Mine site in 1986 informed
him that a "scrap" job was not covered by his inspection duties,
he conceded that the inspector made no such statement, and that
he simply assumed that MSHA would not inspect his work because
the inspector left and did not inform him that he would conduct
an inspection (Tr. 257). He confirmed that the inspector did not
specifically inform him that the "scrap" job was not covered by
MSHA (Tr. 259). Mr. Morchesky denied that he told Mr. Falger
about his conversation with the inspector, but that he "probably"
did so when he was negotiating the demolition contract, and
"probably told him that I wasn't covered by an MSHA inspector out
there" (Tr. 260).
Mr. Morchesky confirmed that citations were issued to his
Laurel Land Development Company in 1986, but denied that any of
these citations were for demolition work that he was doing at the
No. 20 Mine (Tr. 262-268). He confirmed that he purchased
"certain pieces" from Barnes & Tucker, including an "old portal"
and the ground where his office was located (Tr. 268). He also
confirmed that MSHA inspected the mining work he was performing
with his Laurel Land Development Company in the area of the No.
20 Mine, but that MSHA was "never around the stuff that was not
affiliated with mining" (Tr. 270). He stated that he told Mr.
Falger that the No. 20 Mine was not inspected and that his work
for Lancashire "should be under the same rules and regulations."
When Mr. Falger showed him the letter confirming that the site
had been permanently abandoned, Mr. Morchesky said he stated to
Mr. Falger "I wasn't inspected over there, I shouldn't be
inspected by MSHA over here" (Tr. 271). He also stated that if he
knew he would be regulated by MSHA, he would not have taken
~289
the demolition job because "I just don't want to be under MSHA's
guidelines and what have you" (Tr. 271).
Mr. Morchesky confirmed that there was coal in the area of
the silo, as well as in the silo, but he did not know how much.
He stated that he could see some coal through a crack in the
window, and that it appeared to be up to that level. He
anticipated that once the silo was weakened and started to
topple, the weight of the screen house would crush the rest of it
(Tr. 275-276).
Retired MSHA Inspector Thomas J. Simmers, who was
unavailable for the hearing because of health reasons, executed a
sworn affidavit, and it was received in evidence (exhibit C-3).
It states as follows:
1. I worked for the Mine Safety and Health
Administration (MSHA) for approximately 18 years. I
retired from MSHA in April 1987.
2. I worked as an MSHA inspector for the last
15 years of my employment with MSHA. During that
15 year span I worked out of numerous field offices
including the field offices in Hastings, PA; Johnstown,
PA; Indiana, PA; Clearfield, PA; and Ebensburg, PA.
Thus, I am familiar with MSHA inspection procedures.
3. Based on my experience, once a mine has been
declared permanently abandoned, MSHA inspections of the
facility cease. Inspections would not occur again at a
facility that had been declared permanently abandoned
unless the operator took action that indicated that it
intended to resume production or processing of coal. I
am unaware of any instances during my employment with
MSHA when a mine that had declared (sic) permanently
abandoned was inspected by MSHA when the operator did
not take such action.
4. I recently had stomach surgery and am unable
to attend a hearing in Pittsburgh, Pennsylvania, on
October 24, 1989, due to my health.
In response to certain interrogatories, MSHA confirmed that
retired Inspector Simmers and a State mine inspector had
inspected the Barnes & Tucker No. 20 Mine in 1986-1987, and knew
that Mr. Morchesky was performing work at that site, but did not
know that he was doing business as the K & L Equipment Company.
MSHA further confirmed that Mr. Simmers and the State inspector
were under the impression that Mr. Morchesky had purchased the
No. 20 preparation plant structure for $1 and was planning to
reclaim the area, and that under these circumstances, they
concluded that neither MSHA or the state had jurisdiction to
inspect
~290
Mr. Morchesky's operation. MSHA further confirmed that Inspector
Davis also had knowledge of Mr. Morchesky's work at the No. 20
Mine, but did not believe that an MSHA inspection of his
operations was appropriate because Mr. Morchesky had purchased
the entire plant facility.
In response to my question as to whether or not the purchase
of the old structures which were being demolished by Mr.
Morchesky at the time of the accident made any difference with
respect to MSHA's enforcement authority, MSHA's counsel stated
that "it apparently doesn't make any difference" (Tr. 162).
Findings and Conclusions
The Jurisdictional Question
Section 3(h)(1) of the Mine Act, 30 U.S.C. 802(h)(1),
defines "coal or other mine" as follows:
(h)(1) "[Co]al or other mine" means (A) an area of land
from which minerals are extracted in nonliquid form or, if in
liquid form, are extracted with workers underground, (B) private
ways and roads appurtenant to such area, and (C) lands,
excavations, underground passageways, shafts, slopes, tunnels and
workings, structures, facilities, equipment, machines, tools, or
other property including impoundments, retention dams, and
tailings ponds, on the surface or underground, used in, or to be
used in, or resulting from the work of extracting such minerals
from their natural deposits in nonliquid form, or if in liquid
form, with workers underground, or used in, or to be used in, the
milling of such minerals, or the work of preparing coal or other
minerals, and includes custom coal preparation facilities. . . .
(Emphasis added).
Section 3(h)(2) of the Act, 30 U.S.C. 802(h)(2), provides
the following definition of a "coal mine:"
(2) For purposes of titles II, III, and IV, "coal mine"
means an area of land and all structures, facilities, machinery,
tools, equipment, shafts, slopes, tunnels, excavations, and other
property, real or personal, placed upon, under, or above the
surface of such land by any person, used in, or to be used in, or
resulting from, the work of extracting in such area bituminous
coal, lignite, or anthracite from its natural deposits in the
earth by any means or method, and the work of preparing the coal
so extracted, and includes custom coal preparation facilities.
(Emphasis added).
~291
The definition of "coal or other mine" is further clarified
by the Legislative History of the Act. The Senate Report
No. 95-181 (May 16, 1977) provides that:
Finally, the structures on the surface to be used in or
resulting from the preparation of the extracted minerals are
included in the definition of "mine." . . . [B]ut it is the
Committee's intention that what is considered to be a mine and to
be regulated under the Act be given the broadest possibly (sic)
interpretation, and it is the intent of this Committee that
doubts be resolved in favor of inclusion of a facility within the
coverage of the Act.
S. Rep, No. 181, 95th Cong., 1st Sess. 602, reprinted in [1977]
U.S. CODE CONG. & ADMIN. NEWS 3401, 3414.
Lancashire argues that once MSHA determines that a facility
is a "coal or other mine," it is required to periodically inspect
it, and has no discretion to discontinue these inspections. Since
MSHA placed the mine in a permanently abandoned status in
September 1988, Lancashire concludes that it correctly determined
that it was no longer a mine subject to MSHA jurisdiction. By
permanently abandoning the mine, Lancashire concludes further
that MSHA made a determination that it was no longer a "coal or
other mine" which would be required to be inspected periodically
under the Mine Act.
Lancashire's argument seems to suggest that once MSHA places
a "coal or other mine" in a permanently abandoned status, it has
also permanently abandoned its enforcement authority or
jurisdiction to resume inspections at the mine at anytime. I
reject any such notion. MSHA's abandonment of the mine was based
on its determination that all active coal mining activities had
terminated, the mine shafts had been sealed, and there was no
indication that active mining would resume in the near future. In
my view, by placing the mine in a permanently abandoned status,
MSHA, in its discretion, simply made a determination that the
mine was no longer required to be inspected periodically.
MSHA's determination not to continue with its inspections at
the mine site did not in my view, remove the mine from the
statutory definition of "coal or other mine" found in the Mine
Act. At the time that the inspections in question were conducted,
and the violations were issued, the mine structures and equipment
which remained from previous mining activities, including the new
preparation plant, and the old plant silo and screen house, were
still at the site and were clearly structures, facilities,
equipment, or other property, used in, or resulting from, the
work of coal extraction and preparation. Further, the land where the
~292
mine is located was used in or resulted from the work of coal
extraction and preparation.
During oral arguments at the hearing, Lancashire's counsel
agreed that the silo and screen house structures were at one time
part of the preparation plant facilities, and he did not dispute
the fact "that the building resulted from preparation of coal"
(Tr. 129, 181). Lancashire's contention is that once the mine
operator ceased using these structures for coal preparation, MSHA
could not resume its inspection of the mine site unless active
coal production or preparation activities resumed. While it seems
clear to me that at the time of the disputed inspections, the
mine site fell clearly within the statutory definitional language
of "coal or other mine," the question of whether or not the work
activities which were taking place fell within the framework of
the cited mandatory standards and can support the contested
violations are matter to be determined by the facts on their
individual merits.
In view of the statutory definitions of "coal or other mine"
and "coal mine," i.e., "lands, structures, facilities, equipment,
and other property used in, or resulting from mineral extraction
. . . and/or the work of preparing the coal so extracted," it
would logically follow that a preparation plant, or other
supporting structures such as the silo and screen house in
question, may reasonably be considered an important part of the
coal extraction and processing scheme. When such structures are
being constructed for the purpose of actively mining coal, MSHA
has the authority to regulate such activities. Conversely, when
such structures are being demolished for the purpose of removing
them from an abandoned mine site, and there is no intent to
replace them with new structures, or to resume the active mining
of coal, one may logically conclude that these structures will no
longer be used for coal extraction or coal preparation. However,
these structures are nonetheless structures which are the result
of the prior active mining of coal, including extraction and
processing, and fall within the statutory definition of coal or
other mine.
Lancashire's posthearing arguments at page 15 through 20,
that the mine structures in question did not fall within the
statutory definition of "coal or other mine" are rejected.
Lancashire's reliance on former Judge Jon D. Boltz's April 21,
1981, decision in Kaiser Steel Corp., 3 FMSHRC 1052 (April 1981),
in support of its statutory definitional analysis and conclusion
that the mine structures in this case bear no rational
relationship to "coal preparation" is likewise rejected. The
Kaiser Steel Case, which was not appealed to the Commission, and
does not reflect a binding Commission decision on me, concerned
an impoundment dam located near a mine site, and whether or not
the water from the dam "is used or to be used" in the "work of
preparing the coal."
~293
Although it is true that the old Lancashire silo and screen house
preparation plant facilities which were being demolished at the
time of the inspections in question were not currently being used
in connection with any coal preparation work, and had not been
used for years, the fact is that the silo was at one time used to
store coal processed by the plant, and the screen house was used
as well as part of coal preparation and processing. Under the
circumstances, it seems clear to me that these old structures
were in fact the result of coal preparation and processing, as
those terms are normally understood. Indeed, since the coal from
the previously active underground mine was processed through the
old plant facilities, one may reasonably assume that a nexus
existed between the coal being extracted from the underground
mine, and the coal being prepared and processed through the
surface preparation facilities and structures. The fact that the
old silo and screen house had not been used since 1971, as
testified to by Mr. Falger (Tr. 168-170), is immaterial. The
applicable statutory definition of "coal or other mine" under
which jurisdiction attaches in this case is not related to any
time factor, and its application has consistently been given its
broadest possible interpretation by the courts as well as the
Commission.
In a case under the 1969 Coal Act, Jones and Laughlin Steel
Corporation v. MESA, Docket No. PITT 76 x 198, former Chief
Administrative Law Judge Luoma of the Department of the Interior
decided on February 22, 1977, that a refuse pile on the mine
operator's land was part of a coal mine and subject to the Act.
The refuse pile consisted of material taken directly from the
mine, such as waste from roof falls, construction material, etc.
It apparently was largely slate but contained some coal. The
refuse pile was approximately 50 years old and had not been used
since 1967. Judge Luoma concluded that the refuse pile was a
surface area of the mine, since it was "composed of material
which resulted from, the work of extracting coal." (Emphasis
added).
Alexander Brothers, Inc., 4 FMSHRC 541 (1982), another case
arising under the 1969 Coal Act, involved the reclamation of coal
from a refuse pile created during the operation of a mine which
was closed in 1967 after being operated from the 1930's. The pile
contained coal, rock dust, garbage, timber, wood, steel, dirt,
tin cans, bottles, metal and general debris. Alexander Brothers
removed and screened the materials to market approximately 20 to
25 percent of the coal which was in the pile and sold it to
various brokers. The Commission determined that Alexander
Brothers was engaged in the work of preparing coal and that the
fact that it had nothing to do with the extraction of coal, and
that the work in removing the debris from the coal differed from
the ordinary preparation plant did not remove it from the
jurisdiction of the Act.
~294
Westwood Energy Properties, PENN 88-42-R, etc., decided in part
by the Commission on December 20, 1989, involved a culm bank or
refuse pile created as the refuse product of an underground coal
mine and its preparation plant which operated from 1913 to 1947,
and the preparation plant was destroyed and its remains became
part of the refuse pile which was located on land owned by
Westwood. After the underground mine was closed, another company
operated a "fine" coal plant, separating fine coal from the waste
material and selling it, and this operation was inspected by MSHA
or its predecessor agency. Westwood constructed an electrical
generating facility on the land in 1986, and it became
operational in 1988. Westwood engaged a contractor to remove
wood, metal, and other waste materials from the bank, and the
coal materials from the bank were further processed and burned to
produce steam which generated electricity by steam driven
turbines, and the electric power which was produced was sold by
Westwood to a power company.
Commission Judge James Broderick rejected Westwood's
argument that its facility is outside the coverage of the Mine
Act because it is a power plant burning fuel rather than an
operation engaged in the production of a marketable mineral,
Westwood Energy Properties, 11 FMSHRC 105 (January 1989). Judge
Broderick found that "the culm bank clearly resulted from the
working of extracting coal . . . and that a literal construction
of the statutory language" defining a "mine" under section
3(h)(1) of the Act covered Westwood's culm bank. 11 FMSHRC 110.
Judge Broderick stated in part as follows at 11 FMSHRC 115:
I am persuaded that the sweeping definition of a
coal or other mine in the Act, and the admonition in
the Legislative History that the term be given the
broadest possible interpretation brings Westwood's
facility within its terms. Any doubt that the culm
bank is or includes "lands . . . , structures, faci-
lities, . . . or other property including impoundments,
. . . on the surface or underground, used in, . . . or
resulting from the work of extracting such minerals
from their natural deposits . . . " must be resolved in
favor of coverage.
The Commission concluded that Westwood's activities fell
within the appropriate Mine Act definitions and were therefore
within the Secretary of Labor's statutory authority, and it
stated as follows at page 6 of its slip opinion:
The parties agree that Westwood's culm bank is
comprised of materials resulting from Westwood Colliery's
extraction of anthracite coal from its underground coal mine.
Accordingly, the culm bank literally falls within the statutory
definition of
~295
"mine" since "it result[s] from the work of extracting . . .
minerals from their natural deposits . . . . " 30 U.S.C.
802(h)(1). See Consolidation Coal Co. v. FMSHRC, 3 BNA MSHC 2135
(4th Cir. 1986) (coal refuse pile is a "mine").
In view of the foregoing findings and conclusions, and after
careful consideration of all of the arguments advanced by the
parties, I conclude and find that the mine site where the
reclamation or demolition work in question was taking place in
this case is a "mine" within the definitional language found in
sections 3(h)(1) and 3(h)(2) of the Act, and that at the time of
the inspections in question MSHA had enforcement jurisdiction and
authority over that mine facility. Lancashire's arguments to the
contrary ARE REJECTED. Section 104(a) "S&S"Citation No. 2891509,
April 17, 1989, (Docket No. PENN 89-193-R Fact of Violation, 30
C.F.R. 77.1712
Lancashire is charged with an alleged violation of mandatory
standard 30 C.F.R. 77.1712, for failing to notify MSHA's
district office prior to reopening the mine. Section 77.1712,
provides as follows:
Prior to reopening any surface coal mine after it has
been abandoned or declared inactive by the operator,
the operator shall notify the Coal Mine Health and
Safety District Manager for the district in which the
mine is located, and an inspection of the entire mine
shall be completed by an authorized representative of
the Secretary before any mining operations in such mine
are instituted. (Emphasis added).
Lancashire takes the position that section 77.1712, is
inapplicable to its decision to hire a contractor to demolish the
surface structures in question. In support of its position,
Lancashire argues that the language of the standard is intended
to apply to situations where a mine is "reopened" for the purpose
of resuming "mining operations." Lancashire's interpretation of
the language "reopened for mining operations" is that the mine is
being reopened for active extraction or preparation of coal, and
it cites the Dictionary definition of "reopen" as follows: "To
open or take up again. To start over; resume," Lancashire asserts
that the reclamation work at issue in this case had nothing
whatsoever to do with the reopening of the mine for active coal
extraction or coal preparation, and that the work being performed
by the contractor simply entailed the removal of surface
structures, and confirmed the appropriateness of MSHA's decision
to permanently abandon the mine. Lancashire concludes that MSHA
has failed to prove by any competent evidence that the
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mine was being "reopened" or that Lancashire intended to resume
active "mining operations." Under these circumstances, Lancashire
further concludes that it had no duty to notify MSHA prior to the
performance of the reclamation work in question, and that a
violation has not been established.
During the course of the hearing in response to my bench
question concerning any MSHA policy guidelines which may be
applicable to the facts concerning this issue, MSHA's counsel
stated that the facts in this case are unique, and while MSHA's
program policy manual discusses jurisdiction, counsel stated that
"it's probably correct" that the precise factual situation in
question is not specifically addressed in MSHA's policy manual
(Tr. 132).
In its posthearing brief, MSHA argues that through its Part
45 Independent Contractor Program Policy Manual (exhibit R-8), it
has explicitly stated its policy of inspecting demolition
activities by independent contractors, and that the citation
issued by the inspector is consistent with this policy. MSHA
asserts that its policy manual interprets the word "reopening" in
section 77.1712, "quite differently" than Lancashire. MSHA
asserts that Part 45.3 of the manual lists the types of
activities by independent contractors which require contractors
to obtain MSHA identification numbers, and that certain of these
activities, i.e., demolition of mine facilities, reconstruction
of mine facilities, and earthmoving activities would typically be
done after active coal production or processing has ceased.
Further, MSHA cites a policy manual provision which states that
"mine operators have compliance responsibility for all activities
at the mine, regardless of whether or not the independent
contractor in question has an MSHA identification number," and it
concludes that the phrase "all activities" included the
demolition work performed by K & L at the Lancashire site.
MSHA's reliance on its Part 45 manual policy in support of
its conclusion that the phrases "reopening" and "any mining
operations" clearly include, or are intended to include,
demolition work in connection with a previously abandoned mine
site within the meaning of section 77.1712, is rejected. The
issue with respect to the application of section 77.1712, in this
case lies not in whether or not an independent contractor has an
MSHA identification number, but rather, whether the standard may
be reasonably interpreted to apply in a factual situation where
it seems clear to me that a previously permanently abandoned mine
site is not being reopened for the purpose of resuming the active
mining or preparation of coal.
MSHA's Part 45 independent contractor regulations are
intended to facilitate MSHA's enforcement policy of holding
contractors responsible for violations committed by them or their
employees. Contractors performing "services or construction" at
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a mine are not required to obtain an identification number by the
regulations, but if they are engaged in the kinds of activities
listed in MSHA's policy manual, they are required to obtain a
number. However, pursuant to MSHA's policy found at page 10, of
the manual in question, independent contractors are still
responsible for compliance with MSHA's mandatory health and
safety standards, regardless of whether or not they have an MSHA
number. In my view, the policy list in question simply refers to
examples of the kinds of "services or construction" activities
which require a contractor to obtain an MSHA identification
number. The list is obviously intended to assist MSHA and its
inspectors to track the activities of a contractor at a mine site
to insure compliance with any mandatory standards. If MSHA is
concerned about a contractor performing such services at a
previously abandoned mine site without its knowledge, I see no
reason why it cannot include its policy guidelines as part of its
Part 45 regulations, or otherwise require a contractor to obtain
an identification number or to inform MSHA of these activities
before beginning any work.
In my view, the fact that MSHA's Part 45 policy requires a
contractor performing demolition work to obtain an MSHA
identification number, and the fact that such work in connection
with the mine structures which are the result of past coal
extraction and preparation, support a conclusion that the situs
of the work fits the statutory definition of "coal or other mine"
for purposes of Mine Act and MSHA jurisdiction, does not ipso
facto establish that the demolition work falls within the ambit
of section 77.1712.
Neither party in these proceedings has made reference to
MSHA's policy statements regarding section 77.1712. MSHA's
current policy regarding this section is found in Volume V, Part
77 of its Program Policy Manual, pgs. 204-205, July 1, 1988, and
it states as follows:
77.1712 Reopening Mines; Notification; Inspection
Prior to Mining
Failure of the operator to notify MSHA of the reopening
of the mine before operations begin is a violation of
this Section. Failure to have all the plans, programs
and systems submitted during this inspection is not
necessarily a violation. During a reopening inspection
required by Section 77.1712, the inspector should
ascertain that the operator is fully informed and aware
of the applicable plans, programs, and systems required
by Part 77.
MSHA's prior policy manual, chapter III, pgs. III-352-353,
March 9, 1978, with respect to section 77.1712, included a
listing of the "plans, programs, and systems" required by Part 77,
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and they include the mandatory regulatory requirements for
training programs, refuse piles, impoundment structures, ground
control plans, mine maps, emergency communications, emergency
medical assistance and transportation arrangements, and slope and
shaft sinking plans. The past and present policy statements
contain absolutely no references with respect to the meaning of
the terms "reopening" and "mining operations," and they do not
mention demolition or construction work.
MSHA's definition of a "permanently abandoned mine," which
is found in its computerized coding system for tracking the
status of a mine, category GC, defines such a mine as follows:
"The work of all miners has been terminated and production
activity has ceased and it is not anticipated that activity will
resume in the near future" (emphasis added). In the course of
pre-trial discovery, MSHA produced a list of 12 mine sites in
District No. 2, which had at one time been placed in a
permanently abandoned status after active coal mining ceased
(Exhibit R-9). The information furnished by MSHA reflects that
these mines were subsequently reactivated, but there is no
information as to the nature of the activities which took place
after the reactivations. During the course of the hearing, and in
response to my inquiries as to the nature of the activities which
were taking place at the time the mines were reactivated, MSHA's
counsel stated he had not provided this information because "I
wasn't asked that in discovery" (Tr. 21, 29). Counsel indicated
that a witness was available to supply this information and that
testimony would be adduced to further explain the activities
which took place at these previously abandoned and reactivated
mines (Tr. 21).
Inspector Niehenke testified that a mine operator has a duty
to reclaim and tear down structures that are left at an abandoned
mine, but that once a mine has been declared permanently
abandoned, MSHA's duty to inspect it ceases. He further stated
that pursuant to MSHA's policy manual, if demolition work is
being done at a mine which had been permanently abandoned, and
MSHA is aware of it, the mine would be removed from its
permanently abandoned status and placed in an active status. In
the case of the Barnes & Tucker No. 20 Mine, where demolition
work was performed by Mr. Morchesky in 1986 and 1987, Mr.
Niehenke confirmed that he conducted an electrical inspection at
the site, but did not inspect the demolition work because his
supervisor instructed him not to and offered no explanation as to
why he should not inspect the demolition work.
Mr. Niehenke also alluded to an inspection and citations
which he issued at the No. 24-D Mine Portal, and confirmed that
shaft sealing work was being conducted at that time and that he
was instructed to go to that site to inspect it. He further
confirmed that the shaft sealing work was still in progress and
had not been completed at the time of his inspection, and that
~299
the mine had not "apparently" been placed in an abandoned status
at the time of his inspection.
Mr. Niehenke confirmed that once a mine has been placed in a
permanently abandoned status, MSHA would not inspect the facility
unless the mine operator took some action that indicated that he
intended to resume coal production and processing. He further
confirmed that in all of his experience as a mine inspector he
was not aware of any time that MSHA has asserted enforcement
jurisdiction at an abandoned mine site solely because of any
demolition work taking place at such a mine. The affidavit of
retired MSHA Inspector Thomas J. Simmers also reflects his
understanding that inspections would not resume at mine sites
which had been permanently abandoned unless there some indication
that the mine operator intended to resume the production and
processing of coal. Inspector Sparvieri confirmed that MSHA's
Part 45 policy manual does not address demolition work performed
at a previously abandoned mine (Tr. 74-75).
No further testimony, evidence, or other information was
forthcoming from MSHA with respect to the activities which were
taking place at the previously abandoned and reactivated mines in
question, and counsel does not address the matter in his
posthearing brief. Lancashire's counsel concludes that the
obvious inference from this lack of testimony and evidence is
that none of the listed facilities involved an attempt by MSHA to
exercise enforcement jurisdiction over any activity even remotely
similar to demolition work being performed at a permanently
abandoned facility as part of the reclamation of that facility
and merely enforces the conclusion that MSHA's position in this
case is novel.
In connection with the jurisdictional question raised by
Lancashire, the record includes an exchange of memorandums
between MSHA's District No. 2 and MSHA's Arlington, Virginia
headquarters and Associate Solicitor for Mine Safety and Health,
Edward P. Clair (Tr. 31-40; exhibits R-36 through R-38). The
jurisdictional inquiry was initiated by the district manager
after the fatal accident and the jurisdictional question raised
by Lancashire at the time of MSHA's accident investigation and
inspections which followed (Tr. 33-35).
In his memorandum of May 2, 1989, (exhibit R-37), Mr. Clair
states in part as follows:
It has been asserted by Lancashire Coal and K & L that
since the mine site was placed in CG status by
MSHA on September 6, 1988, the Agency no longer has
jurisdiction over the site. However, in our view, the
cessation or abandonment of mining activity at a site
does not necessarily preclude MSHA from reasserting
jurisdiction in the future. Should new work begin or
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similar activity recommence at the site at a later
time, MSHA would need to evaluate the activity being
performed. If that work came within the definition of
a "mine," MSHA's responsibility would be to inspect and
regulate the site under the Mine Act. (Emphasis added).
Relying on the definitional language of "mine" found in
section 3(h)(1) of the Mine Act, and MSHA's Part 45 Program
Policy Manual, Mr. Clair concluded as follows:
Applying this language to the facts outlined
above, it is our view that the activities being con-
ducted by K & L at the Lancashire Coal Company site are
mining activities within the meaning of the 1977 Act.
The demolition and dismantling being performed involves
structures, facilities and equipment which were "used
in" and, hence, are now "resulting from" the work of
extracting and preparing coal at the site. Just as the
wording "to be used in" reflects Congress's intent that
construction of structures and facilities involved in
extraction and preparation of coal is subject to MSHA
jurisdiction, the language "resulting from" similarly
reflects coverage of activities involving the demoli-
tion or dismantling of those same facilities and struc-
tures. This view is consistent with longstanding MSHA
policy requiring independent contractors performing
demolition of mine facilities to obtain an MSHA identi-
fication number.
The record also includes an additional memorandum issued by
Mr. Clair on May 24, 1989, in connection with a question concern-
ing MSHA's jurisdiction over a reclamation project identified as
the "Huntsville Gob" (Tr. 201-205; copy furnished by MSHA's
counsel and submitted by Lancashire's counsel by letter
of November 2, 1989, Tr. 277).
Based on the facts presented in the memorandum, it would
appear that the Huntsville Gob reclamation project concerned a
contractor who hauled gob materials from the site to a power
plant in order to reduce the amount of gob which was to be
reclaimed at the site. The contractor was required to "dry
screen" the gob prior to loading and hauling it from the site in
order to eliminate the waste materials from the coal fines which
were apparently hauled away and used by the power plant which
paid a percentage of the haulage costs. This money went directly
to the State's abandoned mine land fund. In concluding that MSHA
did not have jurisdiction over the gob project in question, Mr.
Clair's memorandum states in relevant part as follows:
Under Section 3(h)(1) of the Federal Mine Safety and
Health Act of 1977 (Mine Act), the term "mine" includes
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not only land from which minerals are currently
extracted, but also land "resulting from" the work of
extracting minerals. On the basis of this language,
MSHA has jurisdiction over certain reclamation activi-
ties, such as surface work performed by the mine opera-
tor immediately following mining to restore mined land
to its original contour. However, other activities
more remote from mining, such as reclamation work
occurring on previously mined abandoned lands are not
subject to the Mine Act.
The factors considered when determining MSHA's author-
ity in such cases include (1) the nature of the activi-
ties, particularly in relation to activities normally
associated with mining; (2) the relationship in time
and the geographic proximity of the activities in
question to active mining operations; (3) the nature of
the land at the time of the activities; and (4) the
operational relationship of the activities to active
mining operations, including the control and direction
of the workforce and the degree to which equipment or
facilities are shared with active mining operations.
Applying these criteria to the Huntsville Gob, it is
our conclusion that MSHA does not have jurisdiction
over the reclamation activities in question primarily
because of the nature of the activities, and the amount
of time which has elapsed since mining took place on
the site. These activities involve coal handling which
is incidental to the reclamation process. The Federal
Mine Safety and Health Review Commission (Commission)
has held that "inherent in determining whether a prepa-
ration operation is a mine is an inquiry not only into
whether the operator performs one or more of the listed
work activities, but also into the nature of the opera-
tion." Secretary v. Elam, 4 FMSHRC 5 (1982). In the
case at hand, coal screening and coal removal from the
reclamation site is incidental to the reclamation
process. There is no exchange of money for the coal
fines, and the screening and transportation serve
primarily to remove and dispose of the product from the
reclamation site. (Emphasis Added).
I have difficulty finding any meaningful factual or legal
distinctions which formed the basis for Mr. Clair's
advisory memorandums concerning Lancashire's demolition or reclamation
work and the reclamation work of the Huntsville Gob contractor
who was engaged in activities normally associated with active
coal mining. The contractor screened, loaded, and transported
from the site coal fines which I assume resulted from coal
extraction activities which had at some time in the past taken
place at the site. Mr. Clair concluded that these activities
~302
were primarily for the purpose of removing and disposing of the
product from the site. In the instant proceedings, Lancashire was
simply removing some old structures from the site as an initial
step to the ultimate reclamation of the site, and its activities
in this regard were primarily for the purpose of removing and
disposing of these "products" from the site. In my view, these
activities were no less "incidental" to the reclamation process,
and indeed were further removed from any "coal handling" than the
work performed by the Huntsville Gob contractor.
Although I am not bound by inconsistent and contradictory
MSHA memorandums, I do find the rationale and criteria advanced
by Mr. Clair in making his determinations to be relevant with
respect to the kinds of activities encompassed by section
77.1712. For example, the Lancashire memorandum suggests the need
to evaluate any "new work" or "similar activity" which may
recommence after a site has been abandoned. The Huntsville Gob
memorandum enumerates certain criteria to be followed with
respect to any activities at a previously abandoned mine site,
and they include (1) the nature of the activities in relation to
activities normally associated with mining; (2) the relationship
in time of the activities to active mining operations; (3) the
nature of the land at the time of the activities; and (4) the
operational relationship of the activities to active mining
operations, including the control and direction of the workforce
and the degree to which the equipment or facilities are shared
with active mining operations.
On the basis of the facts and evidence adduced in these
proceedings, I cannot conclude that the demolition and removal of
the structures in question from the abandoned mine site in
question were closely associated with activities normally
associated with active coal mining. It is undisputed that active
coal mining had not taken place at the site for at least 6-years
prior to the demolition activities in question, and the
underground shafts were permanently sealed in 1986, and MSHA
declared the mine permanently abandoned in 1988. Mr. Falger's
unrebutted credible testimony suggests that the structures which
were being demolished and removed from the site had not been used
in any mining activity for at least 18-years prior to their
demolition. There is no evidence that Lancashire ever intended to
resume any active coal mining activities at the time the
demolition work was taking place. The site was dormant, and there
is no evidence that Lancashire had taken any action to resume the
extraction or processing of any coal after the site was declared
permanently abandoned. Further, the demolition work was being
done by K & L, and there is no evidence that any Lancashire
employees were performing any of this work.
The regulatory language found in section 77.1712, requires a
mine operator to inform MSHA before reopening an abandoned mine
~303
and MSHA is required to inspect the mine before any mining
operations are instituted. No reference is made to any activities
such as demolition work. As noted earlier, MSHA's policy
statements concerning the application of section 77.1712, do not
mention demolition work, and there is no MSHA regulatory standard
requiring the filing of any demolition plan with MSHA prior to
that kind of work. The "plans, programs, and systems" alluded to
in the policy statements concerning section 77.1712, are matters
normally associated with active coal extraction and production.
MSHA's reliance on its Part 45 policy statements in connection
with its "longstanding policy" requiring independent contractors
performing demolition work to obtain mine identification numbers,
does not bear any rational or reasonable relationship to the
obligations and duties which may be imposed on a mine operator
pursuant to section 77.1712. Further, the testimony of the MSHA's
inspectors in this case indicates to me that they were either
confused or ignorant of any clearly defined policies concerning
the inspections of demolition work at a previously abandoned mine
site, and that such inspections have not been routinely or
otherwise made. MSHA's failure to produce any further information
concerning the 12 previously abandoned mine sites which were
subsequently reactivated, raises a strong inference that the
activities which resumed at those sites were activities normally
associated with active coal production rather than demolition or
reclamation activities.
Although I have concluded that the abandoned mine site in
question constitutes a "mine" as that term is defined in the Mine
Act, and that MSHA has enforcement jurisdiction, I cannot
conclude that MSHA has established a violation of section 77.1712
by a preponderance of the evidence. I conclude and find that in
order to establish a violation of section 77.1712, there must be
some indicia of active coal mining operations, or at least some
evidence that a mine operator intended to resume the active
mining of coal. On the facts and evidence adduced in this case, I
cannot conclude that Lancashire reopened the previously abandoned
mine for the purpose or intent of resuming any active coal
extraction, production, processing, or preparation, activities
which I believe are usually and normally associated with active
mining operations. To the contrary, I conclude and find that the
demolition activities by K & L were activities normally
associated with the dismantling of a mine and removing the
salvaged structures from the site in order to reclaim it, rather
than activities incident to the resumption of any active coal
mining. Under the circumstances, I further conclude and find that
the demolition work performed by K & L was not within the scope
or intent of section 77.1712.
In view of the foregoing findings and conclusions, I
conclude and find that MSHA has failed to establish a violation
of section 77.1712. Accordingly, the contested citation IS VACATED.
~304
Section 103(k) Order No. 2888399, March 21, 1989, (Docket No.
PENN 89-147-R)
Section 103(k) of the Act authorizes a mine inspector, in
the event of an accident which occurs in a coal or other mine to
"issue such orders as he deems appropriate to insure the safety
of any persons in the coal or other mine, . . . . " In this case,
Mr. Sparvieri confirmed that he issued the order to insure the
safety of all mine personnel around the silo and screen house
structures. The order, on its face, further states that it was
issued to close the area to all persons except those needed to
conduct and complete the accident investigation. Orders of this
kind are typically issued by MSHA to secure the scenes of
accidents, to insure the continued safety of mine personnel, to
preserve evidence, and to facilitate MSHA's statutory authority
to investigate accidents. See: Miller Mining Company, Inc. v.
FMSHRC and Secretary of Labor, 3 MSHC 1017 (9th Cir. 1983). I
find nothing unusual or unreasonable in the inspector's action in
issuing the order in this case, and IT IS AFFIRMED. Section
107(a) Imminent Danger Order No. 2888400, March 21, 1989, (Docket
No. PENN 89-148-R
Section 3(j) of the Mine Act, 30 U.S.C. 802(j), defines an
"imminent danger" as "the existence of any condition or practice
in a coal or other mine which could reasonable be expected to
cause death or serious physical harm before such condition or
practice can be abated."
In Rochester & Pittsburgh Coal Company v. Secretary of
Labor, 11 FMSHRC 2159, 2163 (November 1989), the Commission
adopted the position of the Fourth and Seventh Circuits in
Eastern Associated Coal Corporation v. Interior Board of Mine
Operation Appeals, 491 F.2d 277, 278 (4th Cir. 1974), and Old Ben
Coal Corp. v. Interior Board of Mine Operation Appeals, 523 F.2d
25, 33 (7th Cir. 1975), holding that "an imminent danger exists
when the condition or practice observed could reasonably be
expected to cause death or serious physical harm if normal mining
operations were permitted to proceed in the area before the
dangerous condition is eliminated." In the Old Ben Corp. case,
the court stated as follows at 523 F.2d at 31:
Clearly, the inspector is in a precarious position. He
is entrusted with the safety of miners'
lives, and he must ensure that the statute is enforced
for the protection of these lives. His total concern
is the safety of life and limb . . . . We must support
the findings and the decisions of the inspector unless
there is evidence that he has abused his discretion or
authority. (Emphasis added).
~305
The evidence in this case establishes that at the time of the
issuance of the order, Inspectors Sparvieri and Kuzar had both
personally observed the condition of the silo and the screen
house. Mr. Sparvieri's credible testimony establishes that a
large portion of the silo base was missing, and that several of
the steel reinforcing bands which had been around the structure
had been cut and were hanging down. The employee who was killed
had returned to the base of the silo where he had previously
performed work cutting some of the bands to resume the cutting of
additional bands with a torch, and as he prepared to do so the
base of the structure collapsed and inundated him with the
materials which came out of the silo. Having viewed the silo
structure after the accident, Mr. Sparvieri concluded that it was
in a weakened and unsafe condition, inadequately supported, and
posed a hazard and danger to employees or others on the property
who might venture near it. Indeed, the structure collapsed on its
own several days later after the order was issued. Mr.
Sparvieri's conclusions regarding the condition of the silo, as
he viewed it, were based on his observations of the missing
portion of the base of the structure, and the supporting bands
which had been cut and hanging down. While it is true that the
bands were deliberately cut in order to weaken the structure to
facilitate its collapse and ultimate removal from the mine site,
the fact remains that after the accident, the silo was in fact in
a weakened and dangerous condition, subject to collapse at any
time, particularly if work were allowed to continue.
With regard to the screen house structure, Mr. Sparvieri
believed that it too was in a weakened and hazardous condition.
Although he did not know how much work had been done on the
support legs to weaken them, he nonetheless expressed his concern
about the safety of the structure. His principal concern focused
on the pieces of steel and tin siding materials which he observed
hanging from the top and sides of the structure as shown in the
photographs which he took of the structure while it was still
erect. Mr. Sparvieri believed that these overhanging materials
resulted from the condition of the structure, and that they were
not deliberately torn of or stripped away while the structure was
being dismantled. However, he conceded that he did not know that
this was in fact the case, and agreed that if the steel siding
were being stripped away, the partially stripped materials would
remain in place if the job were interrupted (Tr. 77).
None of the employees who were working at the site at the
time of the accident were called for testimony in this case.
There is no testimony of record from either Mr. Falger or Mr.
Morchesky with respect to the overhanging siding materials which
concerned Mr. Sparvieri. Nor is there any testimony as to when
these materials may have been stripped away from the structure
and left in the condition noted by the inspector. Since they were
in place shortly after the accident, one may reasonable conclude
that they were in this condition when employees were
~306
working at the base of the structure notching the legs and
performing other work. Mr. Sparvieri believed that the materials
posed a hazard to these employees working beneath them, and
several employees informed him that they had notched the legs
sometime during the day of the accident.
In describing the work performed by his employees on the
morning of the accident, Mr. Morchesky confirmed that both the
silo and the screen house were being weakened so that they could
ultimately be collapsed. The notches were cut in the screen house
to facilitate the installation of cables which would have been
used to collapse the structure. He conceded that the work was
dangerous, and that his crew worked in "two man" teams while one
man worked and the other man stood by "with his hand on
somebody's shoulder to pull him free and clear of anything, if
something was going to happen" (Tr. 251). He conceded that the
silo "was not weakened exactly as it was supposed to" (Tr. 251),
and Inspector Kuzar, who was present when the screen house was
finally taken down, confirmed that while it took some effort to
take it down, "it didn't come the way they were planning on it
coming down" (Tr. 227). Mr. Kuzar also expressed his concern
about the presence of workers under the overhanging siding
materials while they were engaged in the notching of the screen
house legs (Tr. 227).
After careful review of all of the testimony and evidence
with respect to the conditions of the silo and screen house
structures at the time the contested order was issued, I conclude
and find that the conditions, as described by Inspector
Sparvieri, and as corroborated by Inspector Kuzar, could
reasonably be expected to cause death and serious physical harm
to the employees who were working under and around these
structures if the normal work operations were permitted to
proceed in those areas before the dangerous conditions were
eliminated. Under the circumstances, I conclude and find that
Inspector Sparvieri acted reasonably and that his decision to
issue the order was justified. Accordingly, the contested
imminent danger order IS AFFIRMED.
Section 104(a) non-"S&S" Citation No. 2891508, April 17, 1989,
(Docket No. PENN 89-192-R
Fact of Violation, 30 C.F.R. 45.4(b)
Lancashire is charged with a violation of 30 C.F.R.
45.4(b), which provides as follows:
(b) Each production-operator shall maintain in
writing at the mine the information required by para-
graph (a) of this section for each independent contrac-
tor at the mine. The production-operator shall make
~307
this information available to any authorized represen-
tative of the Secretary upon request.
Lancashire does not dispute the fact that it failed to
maintain the information required by section 45.4(b), and indeed
stipulated that the information was not maintained in writing at
the work site. Under the circumstances, I conclude and find that
a violation has been established, and the citation IS AFFIRMED.
Section 104(a) "S&S" Citation No. 2891501, March 21, 1988,
(Docket No. PENN 89-149-R)
Fact of Violation, 30 C.F.R. 77.200
Lancashire is charged with a violation of 30 C.F.R.
77.200, which provides as follows: "All mine structures,
enclosures, or other facilities (including custom coal
preparation) shall be maintained in good repair to prevent
accidents and injuries to employees."
The inspector issued the citation after observing that
several reinforcing bands had been cut from around the base of
the silo, weakening the structure (Photographic Exhibits R-16,
R-17, R-18). He believed that the removal of the bands affected
the stability of the structure, and that part of it had
collapsed, further weakening it. Under these circumstances, the
inspector concluded that the silo was not maintained in good
repair to prevent accidents or injuries to employees as required
by the cited standard. He also believed that the standard applied
to demolition work, and the fact that the structure was being
torn down still required it to be maintained in a safe condition
so that the employees working to dismantle it were not exposed to
a risk of injury.
With regard to the screen house structure, the inspector did
not believe that it was maintained in good repair because he
observed loose sheet metal siding materials hanging from the
sides of the structure (photographic exhibits R-15, R-20, R-21,
R-25). He believed that these materials posed a hazard and risk
of injury to the employees who were working on the ground in and
around the structure and under the materials. Under these
circumstances, the inspector concluded that the structure was not
maintained in good repair as required by the standard.
The inspector determined the condition of the screen house
through observation only, and he did not know to what extent the
siding materials were secured to the structure (Tr. 64). He did
not know for a fact that the materials had been stripped away
from the structure during the demolition work, and stated that
"its possible that stuff had fallen off and not been stripped
off," and that due to the condition of the structure as he viewed
it, it appeared that the loose overhanging materials had fallen
~308
off (Tr. 63, 75). He did not know when the site was last
inspected by MSHA, and except for the bands which had been cut
away from the silo, and the notches which had been made in the
support legs of the screen house, he assumed that both structures
were in the same condition as he found them at the time the
demolition work began (Tr. 75). The inspector believed that a
structure which is being taken down could still be maintained in
good repair, and he agreed that one cannot conclude by simply
looking at a structure while it is being demolished that it is
not in good repair pursuant to section 77.200 (Tr. 76).
Lancashire argues that the "disrepair" associated with the
silo was the result of the demolition work, and that with respect
to the screen house, the inspector had no evidentiary support for
his belief that the materials which were hanging from the side of
the structure may have been in that condition prior to the
beginning of the demolition work. Since there is no evidence that
any of the MSHA inspectors who had performed periodic inspections
at the work site prior to 1988, had cited Lancashire for
permitting loose metal to hang from its screen house, Lancashire
concludes that it was maintained in good repair prior to the
beginning of the demolition work in 1989.
Lancashire asserts that at the time of the accident, all
demolition work stopped "mid-course" after the contractor
purposely weakened the two structures in accordance with its
demolition plan, and that when the inspector initially viewed the
structures during his accident investigation, the structures were
viewed in their partial state of demolition. Lancashire argues
that it is obvious that any time demolition work is being
performed and is stopped mid-course, a structure could be found
not to be in "good repair." Lancashire points out that after MSHA
took control of the demolition work, the screen house was
demolished using the same plan devised by the contractor.
Assuming that Inspector Sparvieri had stopped this
MSHA-supervised demolition work at any given point after it had
begun, but before it had been completed, Lancashire suggests that
the inspector would have found the screen house to not be
maintained in a state of "good repair." Under the circumstances,
Lancashire concludes that regardless of who it is supervising or
performing the demolition work, it could virtually always be
cited for not maintaining a structure in "good repair" if the
demolition work is stopped mid-course. Lancashire concludes that
the evidence of record establishes that this is not a case where
it failed to maintain the cited structures in good repair.
Rather, Lancashire maintains that it simply hired a contractor
who intentionally placed the structures in "bad repair" as part
of its plan to demolish them, and that it makes no sense to cite
Lancashire for not keeping them in good repair.
MSHA agrees that once a structure is demolished, it is
clearly no longer in good repair and that it would be ludicrous
~309
to require it to be maintained in good repair per se at all
times. However, MSHA takes the position that the structures must
be maintained in a condition to prevent injury to employees, and
that throughout any demolition process the structures must be
maintained in such a condition as to prevent injuries or hazard
exposure to employees doing the work. MSHA concludes that the
condition of the silo and the screen house were not maintained in
a safe condition, and posed an injury risk to the employees
working in those areas.
After careful consideration of all of the evidence in this
case, I agree with MSHA's position with respect to the
application of section 77.200, to the work which was being
performed at the time of the accident. In my view, the fact that
demolition work was taking place did not absolve Lancashire from
its duty to insure that the structures were maintained in "good
repair" to prevent accidents and injuries to those employees who
were doing the work. Although the work was under the supervision
of the contractor, Lancashire had a supervisory employee (Falger)
at the work site after the shafts were sealed and the mine was
abandoned. Part of Mr. Falger's duties involved security at the
site, and he acknowledged that during his demolition negotiations
with Mr. Morchesky, they visited the work area where Mr. Falger
pointed out the structures to Mr. Morchesky and explained the
work that was to be done (Tr. 144). At that point in time, I
believe it is reasonable to conclude that Mr. Falger and Mr.
Morchesky knew or should have known about the conditions of the
two structures, and in particular the loose and overhanging
materials at the top and side of the screen house.
Lancashire's arguments and suggestions that the silo and
screen house were rendered in "disrepair" as a result of the
demolition work which was interrupted mid-course by the accident
and the MSHA orders which followed are rejected. While it is true
that demolition work may result in the further deterioration of
the structures being razed, the issue here is whether or not the
conditions of the structures, as reflected in the unrebutted
testimony of the inspectors, support a reasonable conclusion that
they existed at the time the work was taking place, and whether
they posed a hazard to the employees performing the work.
Lancashire has advanced no credible testimony or evidence to
support any conclusion that the loose overhanging materials at
the top and sides of the screen house were conditions which
resulted from any demolition work which may have been interrupted
mid-course, and posed no hazard to those performing the work.
There is no testimony from Mr. Falger or Mr. Morchesky with
respect to whether or not the siding materials in question were
stripped away from the structure during the demolition work. Even
if they were, I believe that Lancashire nonetheless had a duty to
insure that these materials did not pose a hazard to the
employees working in the areas below the materials.
~310
Mr. Morchesky confirmed that on the day of the accident, his
workers were working at the screen house notching the inside
support beams and legs so that cables could be attached to pull
the structure down (Tr. 251-252). The work orders for the screen
house and silo (Joint Exhibits 1 and 2), simply reflect that K &
L was to raze the structures and "dismantle and reclaim the
scrap," and the documents include no details as to how this work
was to be performed. Since the removal of each and every piece of
sheet metal siding is costly and labor intensive, I believe that
one may reasonably conclude that K & L intended to reclaim the
scrap materials and haul it away after the structure was pulled
down, rather than dismantling the structure piece-by-piece.
Although Inspector Sparvieri was uncertain as to whether or
not the screen house conditions which he observed resulted from
the demolition work taking place, he believed that the conditions
were the result of the general condition of the structure and
that the loose and overhanging materials should have been taken
down in order to remove the potential for an accident or injury
to the employees working below them. Given the fact that the
structure had not been in use for many years, I believe that one
may reasonably conclude that as a surface structure, it would be
subjected to deterioration and corrosion through exposure to the
elements over a long period of time, and that it is just as
likely as not that the structure was simply left unattended over
a period of time prior to the onset of the demolition work.
With regard to the silo structure, the accident report
reflects that the employee who suffered fatal injuries had
completed his work of cutting some of the steel support bands
around the base of the silo approximately 15 minutes prior to the
accident, and that he had returned to the base area with a
cutting torch in his hand, and was observed in a kneeling
position by another employee when the base gave way freeing the
coal materials inside the silo and inundating him. Mr. Morchesky
confirmed that while it was known that the silo was constructed
of cement block, the work being performed by the victim was
accomplished in order to weaken the structure so that once it
started to topple, the weight of the topped screen house falling
on it would crush the rest of the silo (Tr. 276). When asked
whether anyone made any determination as to what was in the silo
before this work began, and why any work to weaken it would be
performed before anyone knew what was in it, Mr. Morchesky
explained that one could observe the coal in the silo, at least
up to the window level, but he could offer no explanation as to
why so many of the bands had been cut, or why the accident victim
returned with the base of the silo with his cutting torch. It
seems reasonably obvious to me that no hazard assessment was made
by Lancashire or K & L with respect to the stability of the
structure in its weakened state after the initial cutting away of
the support
~311
bands, which one may also reasonably conclude caused it to give
way.
In view of the foregoing findings and conclusions, I
conclude and find that MSHA has established by a preponderance of
the evidence that the silo and screen house structures were not
maintained in good repair to prevent accidents or injuries to the
employees performing work as required by section 77.200, and the
citation IS AFFIRMED.
Significant and Substantial Violations
A "significant and substantial" violation is described in
section 104(d)(1) of the Mine Act 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." 30
C.F.R. 814(d)(1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the 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 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" 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.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
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). We have emphasized that, in accor-
dance with the language of section 104(d)(1), it is the
~312
contribution of a violation to the cause and effect of
a hazard that must be significant and substantial.
U.S. Steel Mining Company, Inc., 6 FMSHRC 1866, 1868
(August 1984); U.S. Steel Mining Company, Inc.,
6 FMSHRC 1573, 1574-75 (July 1984).
The question of whether any particular violation is
significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).
I conclude and find that the condition of the silo and
screen house structures, as observed and described by the
inspector, including the failure by Lancashire to insure that
these structures were maintained in good repair, exposed the
workers who had performed work in those areas both before and at
the time of the accident to hazardous conditions. The worker
exposed to the weakened condition of the silo suffered fatal
injuries. The workers doing the work in and around the ground
areas of the screen house were exposed to a falling materials
hazard, and in the event they were struck by any of these
materials, I believe that it was reasonably likely that they
would sustain injuries of a reasonably serious nature.
Accordingly, the inspector's significant and substantial (S&S)
finding IS AFFIRMED.
Estoppel and Selective Enforcement Issues
As part of its pre-trial pleadings, and during the course of
oral argument during the hearing in connection with its
jurisdictional arguments, Lancashire contended that since MSHA
failed to inspect similar prior demolition work performed by the
same contractor at another mine site (Barnes & Tucker No. 20
Mine), MSHA was estopped from inspecting Lancashire's mine site,
and that its attempts to do so in these proceedings constitutes
arbitrary and capricious selective enforcement. Lancashire's
posthearing brief does not address these issues.
Citing the applicable case law with respect to the doctrine
of estoppel, MSHA argues that Lancashire has not met its burden
of establishing any misrepresentations or misconduct on the part
of MSHA with respect to its actions or inactions at the Barnes
and Tucker mine site, and has not established that it has been
prejudiced, or has suffered any detriment, by virtue of MSHA's
refraining from inspecting its mine site until March 21, 1989.
MSHA cites the testimony of the contractor (Morchesky) that his
employees welcomed the presence of MSHA's inspectors at the site
after the accident because "the more people around with opinions,
everybody just felt better" (Tr. 253). MSHA concludes that the
inspectors sought to regulate the mine site to protect the
affected employees and others who may have been there.
~313
With regard to the selective enforcement issue, MSHA cites the
applicable case law, and concludes that Lancashire cannot meet
its burden of proof establishing that it "was singled out for
prosecution among others similarly situated and that the decision
to prosecute was improperly motivated." MSHA points out that it
has produced evidence that other mines in MSHA's Johnstown
Subdistrict office which were placed in an abandoned status and
then subsequently reactivated were inspected. During the course
of the hearing, MSHA's counsel pointed out that immediately
following the accident, the inspectors sought further advice with
respect to the jurisdictional question raised by Lancashire, and
subsequently returned to continue with their inspections after
they were informed they were authorized to do so (Tr. 33). MSHA
concludes that there is not a shred of evidence to suggest that
MSHA was "improperly motivated" in seeking to regulate
Lancashire's mine site, and that it did so to protect the safety
of the employees who were working there.
In Secretary of Labor v. Superior Sand and Gravel, Inc., and
Patrick K. Thornton, 2 FMSHRC 1308 (June 1980), Judge Broderick
rejected a mine operator's defense that it was singled out for
enforcement by MSHA because other operators were not being
inspected and fined, and he cited Thompson v. Spear, 91 F.2d 430,
433-34 (5th Cir. 1937), cert. denied, 302 U.S. 762 (1938), where
the court held as follows:
[The agency's] mere inability does not render such
enforcement as it accomplished wrongful. The fact that
others violated the law with impunity is no defense.
It is only when the enforcement agency is vested with a
discretionary power and exercises its discretion
arbitrarily or unjustly that enforcement of a valid
regulation [violates the law].
In Secretary of Labor v. King Knob Coal Company, Inc.,
3 FMSHRC 1417 (June 1980), the Commission rejected the doctrine of
equitable estoppel with respect to a mine operator's liability
for a violation. However, the Commission viewed the erroneous
action of the Secretary (mistaken interpretation of the law
leading to prior non-enforcement) as a factor which may be
considered in mitigation of the civil penalty. Further,
Commission Judges have consistently rejected an operator's
reliance on prior inspections and the lack of citations, and have
held that the lack of prior inspections and the lack of prior
citations does not estop an inspector from issuing citations
during subsequent inspections. See: Midwest Minerals Coal
Company, Inc., 3 FMSHRC 1417 (January 1981); Missouri Gravel Co.,
3 FMSHRC 1465 (June 1981); Servtex Materials Company, 5 FMSHRC
1359 (July 1983). In Emery Mining Corporation v. Secretary of
Labor, 3 MSHC 1585, the Court of Appeals for the Tenth Circuit,
in affirming the
~314
Commission's decision at 5 FMSHRC 1400 (August 1983), stated as
follows at 3 MSHC 1588:
As this court has observed, "courts invoke the
doctrine of estoppel against the government with great
reluctance" . . . . Application of the doctrine is
justified only where "it does not interfere with under-
lying government policies or unduly undermine the
correct enforcement of a particular law or regulation"
. . . . Equitable estoppel "may not be used to con-
tradict a clear Congressional mandate," . . . as
undoubtedly would be the case were we to apply it
here . . . .
Although the record reflects some confusion sur-
rounding MSHA's approval of Emery's training plan, as a
general rule "those who deal with the Government are
expected to know the law and may not rely on the con-
duct of government agents contrary to law" . . . .
After careful review of the record in these proceedings, and
the arguments advanced by the parties, I agree with the position
taken by MSHA, and I conclude and find that Lancashire has not
established by a preponderance of any credible evidence that MSHA
has acted arbitrarily or capriciously by exercising its
enforcement and inspection authority at the mine site in
question. I also reject Lancashire's selective enforcement
argument, and I cannot conclude that MSHA was improperly
motivated in initiating the enforcement actions in question
against Lancashire. In my view, any inconsistencies or
contradictions with respect to MSHA's enforcement policies and
practices concerning demolition work at previously abandoned mine
sites does not rise to the level of prejudicial arbitrary action
against Lancashire.
History of Prior Violations
The parties have stipulated that for the 2-year period
preceding the issuance of the contested violations, Lancashire
had no assessed violations. I adopt this stipulation as my
finding, and have taken this into consideration with respect to
the civil penalties which I have assessed for the violations
which have been affirmed.
Good Faith Compliance
The parties have stipulated that Lancashire demonstrated
good faith in attempting to abate the alleged violations, and I
adopt this as my finding and have taken it into consideration.
~315
Gravity
In view of my "S&S" findings with respect to section 104(a)
Citation No. 2891501, concerning a violation of 30 C.F.R.
77.200, I conclude and find that it was a serious violation. With
regard to Citation No. 2891508, concerning Lancashire's failure
to maintain the information required by section 45.4(b), I
conclude and find that the violation was non-serious.
Negligence
I agree with the inspector's moderate negligence findings
with respect to the two citations which have been affirmed, and I
conclude and find that the violations resulted from Lancashire's
failure to exercise reasonable care.
Size of Business and Effect of Civil Penalty Assessments on the
Respondent's Ability to Continue in Business
The record reflects that at the time the citations were
issued, Lancashire had one employee at the mine. The parties
stipulated that payment of the assessed civil penalties will not
adversely affect the respondent's ability to continue in
business. I adopt this stipulation as my finding on this issue,
and have considered these matters in the civil penalty
assessments which have been assessed by me for the violations
which have been affirmed.
Civil Penalty Assessments
With respect to Citation No. 2891501, for the violation of
section 77.200, Lancashire takes issue with the basis for the
"special assessment" of $3,000, as articulated by the "Narrative
Findings" of MSHA's Office of Assessments. Specifically,
Lancashire takes issue with the statement that "the cause of the
accident was management's failure to provide an adequate plan for
the safe demolition of the coal site." Lancashire asserts that it
had no reason to believe that K & L's demolition plan was
inadequate, and that it is inappropriate and highly unfair to
charge it with not maintaining the structures in good repair
while they were in the process of being demolished.
Inspector Sparvieri conceded that there are no MSHA
mandatory regulations requiring a contractor or mine operator to
file a demolition plan with MSHA prior to commencing the work
(Tr. 109). Although the imminent danger order required K & L to
submit a written demolition plan before continuing with its work,
no written plan was submitted. However, Inspector Kuzar obviously
accepted the verbal description of the demolition procedures as
communicated to him by K & L while he was present when this work
was taking place as adequate to insure the safety of the
personnel doing the work. If this were not the case, I
~316
would assume that Mr. Kuzar would not have allowed the work to
continue in the absence of a written plan. Although the silo had
already fallen down when Mr. Kuzar returned to the site, he
confirmed that the procedures used by K & L to take down the
screen house after the orders were issued and modified were
essentially the same procedures followed by K & L prior to the
accident. Under the circumstances, one may reasonably concluded
from this that the lack of a demolition plan per se may not
necessarily establish that the procedures followed by K & L were
inadequate, or that the lack of a plan caused the accident.
It is clear that I am not bound by MSHA's "special
assessment" for the violation in question, and that I may
consider any appropriate mitigating circumstances, particularly
with respect to Lancashire's negligence, in the assessment of a
civil penalty for the violation in question. See: Allied Products
Company v. FMSHRC, 666 F.2d 890, 896 (5th Cir. 1982); Nacco
Mining Co., 3 FMSHRC 848, 850 (April 1981); Marshfield Sand &
Gravel, Inc., 2 FMSHRC 1391 (June 1980); Old Dominion Power Co.,
6 FMSHRC 1886 (August 1981); Secretary of Labor v. Marion County
Limestone Company, LTD., 10 FMSHRC 1683 (December 1982).
Although I have considered Lancashire's argument with
respect to the asserted lack of a safe written demolition plan,
and have considered the fact that it may have reasonably believed
that it was not required to maintain the structures in good
repair after MSHA permanently abandoned the mine and advised it
that it would no longer inspect the facility, the fact is that
the silo which collapsed and resulted in the death of the
employee in question was not maintained in a safe condition as
the work progressed and it was in a weakened condition at the
time that the employee was working on it. In my view, closer
supervision of the employee, inspection of the work which he had
already performed, and at least some hazard assessment by K & L
and Lancashire before the work began may have prevented the
accident. Under these circumstances, although I have taken into
consideration Lancashire's arguments in mitigation of the special
assessment proposed by MSHA for the violation, and have affirmed
the inspector's moderate negligence finding, I find no reasonable
basis for any substantial decrease or increase in the civil
penalty assessment proposed by MSHA.
In view of the foregoing findings and conclusions made by me
in these proceedings, and taking into account the requirements of
section 110(i) of the Act, I conclude and find that the civil
penalty assessments which I have made for the two violations
which have been affirmed in these proceedings are reasonable and
appropriate in the circumstances.
~317
ORDER
On the basis of the foregoing findings and conclusions, IT
IS ORDERED AS FOLLOWS:
1. Docket No. PENN 89-147-R. Section 103(k) Order No.
2888399, IS AFFIRMED, and Lancashire's contest IS DENIED.
2. Docket No. PENN 89-148-R. Section 107(a) Imminent Danger
Order No. 2888400, March 21, 1989, IS AFFIRMED, and Lancashire's
contest IS DENIED.
3. Docket No. PENN 89-149-R. Section 104(a) "S&S" Citation
No. 2891501, March 21, 1989, IS AFFIRMED, and Lancashire's
contest IS DENIED.
4. Docket No. PENN 89-192-R. Section 104(a) non-"S&S"
Citation No. 2891508, april 17, 1989, IS AFFIRMED, and
Lancashire's contest IS DENIED.
5. Docket No. PENN 89-193-R. Section 104(a) "S&S" Citation
No. 2891509, April 17, 1989, IS VACATED, and Lancashire's contest
IS GRANTED.
6. Civil Penalty Docket No. PENN 90-10. Lancashire is
assessed a civil penalty assessment in the amount of $2,800, for
a violation of 30 C.F.R. 77.200, as noted in the section 104(a)
"S&S" Citation No. 2891501, issued on March 21, 1989. Lancashire
is also assessed a civil penalty assessment in the amount of $20,
for a violation of 30 C.F.R. 45.4(b), as noted in the section
104(a) non-"S&S" Citation No. 2891508, issued on April 17, 1989.
Payment of the civil penalty assessments shall be made by
Lancashire to MSHA within thirty (30) days of the date of these
decisions and Order, and upon receipt by MSHA, the civil penalty
proceeding is dismissed.
George A. Koutras
Administrative Law Judge
Distribution:
James R. Haggerty and Steven P. Fulton, Esqa., Reed, Smith, Shaw
& McClay, Mellon Square, 435 Sixth Avenue, Pittsburg, PA
15219-2009 (Certified Mail)
Mark A. Swirsky, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
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