Keystone Coal Mining Corporation (ALJ decision, October 10, 1990)

Plain-English summary

MSHA cited Keystone Coal Mining for allowing float coal dust to accumulate on rock-dusted surfaces in the immediate return at the Jane Mine. The citation was originally assessed at $1,200 and was modified from a 104(d)(1) citation to a 104(a) citation because the operator's conduct did not rise to unwarrantable failure. Judge Paul Merlin approved a settlement that reduced the penalty to $800. The decision states that damp or wet conditions, uncertainty about how long the condition existed, and the operator's examinations mitigated negligence and gravity, although the violation remained serious because of the risk of fire or explosion.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.400
• Outcome: The citation was modified from 104(d)(1) to 104(a), the settlement was approved, and the operator was ordered to pay $800.
• Key point: Damp conditions and uncertainty about the duration of a float coal dust accumulation reduced negligence and gravity, but did not eliminate the safety risk.

Full text (FMSHRC public release)

.zEDERAL MENE 5AF57Y AND HEAtiH XE’J!EW CSMMlSSlON !i30 K STREET YW. 6iH FLCCR
W A S H I N G T C N , 2.C. 20306

October 10, 1990

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
:
ADMINISTRATION (MSHA), : Docket No. PENN 90-42
Petitioner : A. C. No. 36-00823-03725
:
V. .. Jane Mine
:
KEYSTO'JE COAL MINING
:
CORPORATION,
:
:
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before: Judge Merlin
The Solicitor has filed a motion to approve a settlement for the one violation involved in this case. The originally assessed penalty was $1,200 and the proposed settlement is $800. The Solicitor discusses the violation in light of the six statutory criteria set forth in section 110(i) of the Federal Mine Safety and Health Act of 1977.
Citation No. 3300116 was issued as a 104(d)(l) citation for a violation of 30 C.F.R. 5 75.400 because float coal dust was permitted to accumulate on rock dusted surfaces in the immediate return. The Solicitor represents that the reduction is warranted because negligence is not as high as originally thought. Based upon the Solicitorts representations, I believe that gravity also is somewhat less than had been thought. The Solicitor states that the operator properly conducted onshift examinations of the areas and believed that it was not necessary to rockdust the area again. Further, the operator believed that the area was slightly gray in color and noted that several parts of the area were damp or wet. so too, the inspector conceded that parts of the area were wet. According to the Solicitor, it is uncertain how long the condition exist&d. Finally, no accumulations were noted in the preshift books nor were any citations issued for failure to record the condition.
The Solicitor states that because of the foregoing cir- cumstances, the citation has been modified to a 104(a) citation. This action is clearly correct since the operator's conduct did not rise to the level of unwarrantable failure as that term has been defined by the Commission. In my opinion, the dampness

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which contributed to a lessening of the negligence factor also mitigates gravity. Nevertheless, I agree with the Solicitor that the violation was serious because there remained a risk of explosion or fire.
Based upon the foregoing, I find that the recommended settlement is appropriate.
Accordingly, it is ORDERED that the proposed settlement be APPROVED and the operator PAY $800 within 30 days of the date of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Catherine Oliver Murphy, Esq., Office of the Solicitor, U. S. Department of Labor, Room 14480-Gateway Building, 3535 Market Street, Philadelphia, PA 19104 (Certified Mail) William M. Darr, Esq., Keystone Coal Mining Corporation, 655 Church Street, Indiana, PA 15701 (Certified Mail) Robert Stropp, Esq., General Counsel, UMWA, 900 15th Street, N.W., Washington, DC 20005 (Certified Mail)
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