Consolidation Coal Company

Plain-English summary

MSHA cited Consolidation Coal at the Robena preparation plant after finding inadequate or missing berms on an elevated haulage road and no recorded examination of the road for hazardous conditions. The judge affirmed the section 107 withdrawal order because the muddy, slippery road, its grade, the drop-offs, and the inadequate berms presented an imminent danger. He found the berm violation significant and substantial and assessed a $1,200 penalty. He also found a separate examination violation caused by more than ordinary negligence and assessed a $1,000 penalty. The stay was lifted, the three contest dockets were dismissed, and the operator was ordered to pay $2,200.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.1605(k) and 77.1713(a)
• Outcome: The withdrawal order and violations were upheld, the stay was lifted, the contest dockets were dismissed, and total penalties of $2,200 were assessed.
• Key point: Inadequate berms on a slippery elevated haulage road can support an imminent-danger finding, and failure to examine a known hazardous roadway can constitute unwarrantable failure.

Full text (FMSHRC public release)

      FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

CONSOLIDATION COAL COMPANY, : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. PENN 91-147-R
: Citation No. 3701661; 1/17/91
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. PENN 91-148-R
ADMINISTRATION (MSHA), : Citation No. 3701662; 1/17/91
Respondent :
: Docket No. PENN 91-149-R
: Citation No. 3701663; 1/18/91
:
: Robena Preparation Plant
:
: Mine ID 36-04175

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. PENN 91-391
Petitioner : A.C. No. 36-04175-03557
v. :
: Robena Preparation Plant
CONSOLIDATION COAL COMPANY, :
Respondent :

                          DECISION

Appearances: Daniel E. Roger, Esq., Consolidation Coal Company,
Pittsburgh, Pennsylvania for Consol;
Richard Rosenblitt, Esq., U.S. Department of Labor,
Office of the Solicitor, Philadelphia,
Pennsylvania, for the Secretary of Labor.

Before: Judge Weisberger

 At issue in these consolidated cases is the validity of a

withdrawal order issued under Section 107 of the Federal Mine
Safety and Health Act of 1977 ("the Act"). Also at issue are
citations alleging violations of 30 C.F.R. 77.1605(k), and
30 C.F.R. 77.1713(a). Subsequent to notice, the cases were
scheduled and heard in Washington, Pennsylvania, on
September 22, 1992. At the hearing, George Rantovich, Robert W.
Newhouse, and Robert L. Campbell testified for the Secretary
(Petitioner). Edward F. Bodkin, Jr., testified for the Operator
(Respondent). Also, subsequent to the hearing, Petitioner
offered in evidence Government Exhibit No. 7 which was not

objected to by Respondent. Accordingly, Government Exhibit
No. 7 is hereby admitted. Petitioner and Respondent filed post
hearing briefs on December 7, 1992 and December 16, 1992,
respectively.

             Findings of Fact of Discussions

I. Citation No. 3701662 (Violation of 30 C.F.R. 77.1605(k))

 On January 17, 1991, MSHA inspector George Rantovich issued

Citation No. 3701662 alleging a violation of 30 C.F.R.
77.1605(k) in that at various locations along both sides of the
elevated haulage road at Respondent's Robena preparation plant
("Robena")1 adequate berms were not provided.2 Section
77.1605(k) supra, provides as follows "Berms or guards shall be
provided on the outer bank of elevated roadways".

  The terrain at the Robena facility is hilly. A haulage road

traverses this terrain from the plant to a refuse dump. The
haulage road is at a 10 degree incline from the plant to a point
where the road crosses railroad tracks. From there to a "Y"
intersection the slope of the grade is 5 degrees. Terex haulage
trucks regularly travel from the plant to the refuse dump and
back.

 On January 17, 1991, George Rantovich, an MSHA inspector,

inspected Robena along with Robert Campbell, Robert W. Newhouse,
and Edward F. Bodkin, Jr. Rantovich walked on the haulage road
from the plant to the "Y" intersection. Rantovich testified that
there was a "definite drop off" on both sides of the roadway up
to 3 to 4 feet in some areas (Tr. 26).

 1Robena is a facility that cleans coal. It is not

physically connected to an underground mine, nor it is dedicated
to one. The Dilworth Mine, ("Dilworth") operated by Respondent
is located approximately eight miles away. Coal is normally
transported from Dilworth mine to Robena, by way of barges that
travel a river route. Dilworth and Robena have separate mine
identification numbers and are required to maintain separate
records.

 2The citation issued by Rantovich alleges that adequate

beams were not provided on the haulage road from the preparation
plant, "..to the slate dump". Newhouse and Rantovich conceded
that they walked on the haulage road only as far as the "Y"
intersection and did not reach the slate dump. I find that the
error in the citation with regard to the extent of the area cited
is not fatal, inasmuch as Bodkin indicated that Newhouse had
pointed out to him the area of inadequate berms, and Respondent
does not allege any prejudice as a result of the error in the
citation.

 Newhouse, an MSHA supervisory inspector testified that he

measured a 32 degree drop off on the left side of the roadway. He
indicated that there was a zero to 20 degree drop off on the
right side from the roadway to a ditch which ran alongside the
roadway from the plant area up to the intersection with the
railroad track. He said that from the railroad track to the "Y"
intersection, the bed of the roadway was raised up to 20 to 25
feet above the natural terrain. Respondent did not impeach or
rebut the testimony of Newhouse and Rantovich in these regards.
Hence I conclude that the roadway was elevated.

  Newhouse estimated that 50 percent of the berms on both

sides of the road between the plant and the Y intersection were
inadequate as they were only 25 to 26 inches high. In essence,
Rantovich and Newhouse both indicated that the road was muddy and
slippery, and that berms less than 42 inches high, the height of
the axles of the terex vehicles in question, are not adequate to
stop these vehicles from going over the embankment. Newhouse
said that Bodkin, Robena plant foreman, agreed that there was an
inadequate berm. Bodkin did not contradict the testimony of
Rantovich and Newhouse with regard to the existence of areas
where the berms were less than the axle height of 42 inches. Nor
did Bodkin impeach or contradict the testimony of Newhouse that
he (Bodkin) said that the berm was inadequate. Also, Respondent
did not impeach or contradict the testimony of Petitioner's
witnesses that the road was elevated in relation to the adjacent
land.

 Pursuant to Section 77.1605(k), supra berms must be provided

on the outer bank of elevated roadways. A "berm" is defined in
30 C.F.R. 70.2(d), as ..."a pile or mound of material capable
of restraining a vehicle;"

 In Secretary v. U.S. Steel Corp., 5 FMSHRC 3 (1983), the

Commission addressed what is meant by "restraining a vehicle".

  Restraining a vehicle does not mean . . . absolute
  prevention of over travel by all vehicles under all
  circumstances. Given the heavy weights and large sizes
  of many mine vehicles, that would probably be an
  unattainable regulatory goal. Rather, the standard
  requires reasonable control and guidance of vehicular
  motion.

  The Commission in U.S. Steel, supra, at 5 held as follows:

  We hold that the adequacy of a berm or guard under
  section 77.1605(k) is to be measured against the
  standard of whether the berm or guard is one a
  reasonably prudent person familiar with all the facts,
  including those peculiar to the mining industry, would
  have constructed to provide the protection intended by

  the standard.

 Newhouse testified, in essence, that the protection intended

by Section 77.1605(k) supra requires berms to be at least the
height of the axle of the largest vehicle normally using the road
in question. Rantovich measured a terex's axle height and noted
it was 42 inches. MSHA has in the past notified operators of
this height requirement.

 Robert L. Campbell, Chairman of the Union's Health and

Safety Committee, and an employee of the operator, testified
that, for the last six years, during monthly inspections the
union and the operator measure the berms to determine whether
they are at least 42" high. According to Campbell, if a section
of the berm is less than 42", the operator immediately builds the
berm to at least the 42" level. This testimony was not inspected
or contradicted by Respondent.

 I conclude, considering all the above, that the berms less

than 42" high were not adequate under Section 77.1605(k), supra,
as they were not capable of restraining the vehicles in question.

 Also, according to Rantovich, at 3 to 4 locations on both

sides of the haulage road for distances between 15 to 20 feet,
there were no berms at all. He indicated that in all these areas
the roadway was elevated. He indicated that near the railroad
track crossing and for approximately 15 feet there were no berms,
there was an immediate drop off of 2 to 3 feet which tapered off
towards the ditch. Newhouse estimated that 10 percent of the
roadway did not have any berms.

 Bodkin indicated that, for purposes of drainage, a bulldozer

had cut through and eliminated approximately 12 to 15 feet of the
berms on the right side of the roadway approximately 20 to 30
feet from the intersection with the railroad track in the
direction the "Y" intersection.

 Although the testimony of Bodkin is not congruent with that

of Rantovich's testimony with regard to the area where there were
no berms, his testimony does not contradict that of Rantovich and
Newhouse with regard to the existence of at least one elevated
area where there were no berms.

 Based on all the above, I find that on elevated portions of

the roadway, there were areas without berms, and other areas
where the berms were not adequate. Therefore, it has been
established that Respondent violated Section 77.1605(k) supra.

II. Order No. 3701661 (imminent danger withdrawal order)

 Rantovich indicated that when he walked the haulage road at

approximately 11:00 p.m., on January 17, 1991, it was slippery

and some of the mud on the road was ankle high. Rantovich
stopped a terex driver who was coming down the haulage road
toward the plant, and asked him if he had any problems.
Rantovich said that the driver told him that he had problems
controlling the vehicle as it was fish tailing. Rantovich had
the terex driver turn around and head back up the roadway so that
the roadway could be closed. According to Rantovich as the terex
went back up the hill, its traction was "a little slippery but he
(the driver) turned around and got started up once he got started
up he was alright" (Tr. 41)

 Bodkin indicated that he had been on the premises since

approximately 2:30 p.m., and had not received any complaints with
regards of the condition in the road. He indicated that,
specifically, neither of the terex operators who were on duty
during the night shift had complained of any problems with the
roadway. I do not find this testimony sufficient to rebut the
testimony of Rantovich as to what was told to him by one of the
terex operators. Further, Bodkin did not specifically rebut the
testimony of Rantovich as to his having observed that the
traction of the terex vehicle was "slippery". According to
Newhouse, if a vehicle would leave the road due to not being
stopped by a berm, it could travel 20 to 25 feet on the right
side before it hit something. In contrast, Bodkin testified that
if a truck fell over the hill in the area where there was a cut
in the berm it would only go 5 to 8 feet. He also said that
vehicles travel on the left side of any 5 to 10 m.p.h., and that
any danger is further minimized by the fact that the "bowl" of
the terex can be dropped and "that would be like a brake"
(Tr.154).

 Rantovich took into account the muddy, slippery condition of

the road as well as the inadequate berms, and issued a section
107 withdrawal order.

 The Commission, in Rochester & Pittsburgh Coal Co., 11

FMSHRC 2159 (November 1989), the Commission, at 2164 noted the
recognition the seventh circuit accorded to the importance of the
inspector's judgment as follows:

 Clearly, the inspector is in a precarious position. He
 is entrusted with the safety of miners' lives,and he
 must ensure that the statue 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) Old Ben Coal Corp. v.
 Interior Bd of Mine, Op. App., 523 F.2d 25, at 31 (7th
 Cir. 1975)

 Recently, the Commission in Utah Power and Light Company,

13 FMSHRC 1617 at 1627 affirmed its holding in Rochester and
Pittsburgh supra. that "...an inspector must have considerable
discretion in determining whether an imminent danger exist." In
its analysis of whether an inspector's discretion has been
abused, the Commission, in Utah Power and Light Company, supra,
at 1622 set forth as follows: "To support a finding of imminent
danger, the inspector must find that the hazardous condition has
a reasonable potential to cause death or serious injury within a
short period of time".

 Taking into account the slippery condition of the road, its

grade, the degree of drop off at either side, the lack of
adequate berms for significant distances, and the fact that the
road had two curves, I conclude that Rantovich did not abuse his
discretion in finding an imminent danger herein, and that his
conclusion in this regard is affirmed.

III. Citation No. 3701662

  A.   Significant and Substantial

 I find that the record establishes that, as alleged by

Rantovich in the Citation that he issued, the violation was
significant and substantial. Clearly, the lack of adequate berms
contributed to the hazard of a truck leaving the slippery
roadway, and sliding off the road. For the reasons set forth
above in the discussion of the issue of imminent danger, II,
infra, I conclude that there was reasonable likelihood that the
hazard contributed to by the lack of adequate berms would result
in a injury. Respondent did not impeach or contradict the
testimony of Petitioner's witnesses that, in essence, there was a
reasonable likelihood that the resulting injury will be of a
reasonably serious nature. Thus I accept their testimony in this
regard. For these reasons I conclude that the violation herein
was significant and substantial (See Mathies Coal Company, 6
FMSHRC 1, 3-4 (January 1984).

B. Penalty

 Considering all the factors discussed in the analysis of the

imminent danger issue infra, II, I conclude that the violation
herein was of a high level of gravity. According to Bodkin he
had been at the site since approximately 2:30 in the afternoon
and no one had complained to him about the conditions of the
berms. Also he indicated that the two terex operators on the
night shift indicated that they were not having any problems
traveling the roadway. On the other hand, Newhouse testified
that on January 17, at approximately 9:30 p.m., he received a
telephone call from a miner at the mine alleging a possible
imminent danger in the haulage road. He then called Respondent's
plant foreman and advised him of the same. Bodkin testified
Newhouse called and advised him that a 103(g) inspection was

going to be made on the haulage way. According to Bodkin,
Newhouse told him that the area in issue was "where the Terexes
start up the hill" (Tr.140). Bodkin indicated that he was aware
of the problem in that area, and had assigned persons to clean it
up. Taking into account the phone call from Newhouse alerting
Bodkin to possible problems in the haulage road, as well as the
slippery conditions of the road, Bodkin was clearly moderately
negligent in not inspecting the roadway at that point for
adequate berms. Such an inspection would have revealed
inadequate berms as per the testimony of Petitioner's witnesses
and not rebutted by Bodkin.

 Taking all the above into account, and considering the

statutory factors set forth in Section 110(i) of the Act as
stipulated to by the parties, I conclude that a penalty of $1,200
is appropriate for the violation cited in Citation No. 3701662.

IV. Citation No. 3701663

 On January 18, 1991, Rantovich issued Citation No. 3701663

alleging a violation of 30 C.F.R. 77.1713 in that an
examination during the last shift was not conducted on the
haulage road for hazardous conditions.

 On the night of January 17, 1991, the muddy nature of the

road, and lack of adequate berms road, and created a hazardous
condition as discussed above, infra, II. According to Rantovich,
he asked Bodkin to provide him the record book wherein the
examinations are noted. Rantovich testified that the record book
did not indicate any inspection of the haulage road on
January 17. Rantovich then looked at the records for the
preceding "couple of weeks or months" (Tr.47), and there was no
indication of an inspection of the haulage road. Rantovich said
that no one explained to him why there was no indication in the
record book of any inspection. Rantovich said that he asked
Bodkin if an inspection was made of the roadway that day, and he
said that he did not make one and that he was not aware of one.

 Based on the above, I conclude that there was no indication

in the Respondent's record book that the haulage road at issue
had been inspected for hazardous conditions on or about January
17, 1991. I thus find that Petitioner has established a prima
facie case of a violation (See L.J.'s Corporation, 14 FMSHRC 1278
(August 26, 1992)). I also find that Respondent has not
established that indeed the roadway had been inspected on or
about January 17, 1991. I thus find that Section 77.1713 was
violated by Respondent.

 Bodkin testified, as noted above, that, in essence, on

January 17, Newhouse had advised him of a possible imminent
danger in the area where the terex trucks start their trip up the
haulage road, and that he was actively engaged in cleaning up the
slippery road at that point. He also testified that no employee
including the two terex operators on the evening shift had told
him of any problem with the road condition. However, taking into
account the muddy slippery conditions of the roadway, the fact
that Bodkin had been advised as of 9:30 p.m., of a possible
hazardous condition with regard to the roadway, I conclude that
Respondent's negligence herein was more than ordinary negligence
and constituted unwarrantable failure.3 (See, Emery Mining
Corporation, 9 FMSHRC 1997 (1987).

 I conclude that a penalty of $1,000 is appropriate for the

violation cited in this order.

                          ORDER

 It is ORDERED that: (1) the Stay Order previously issued in

Docket No. PENN 91-147-R is hereby lifted; (2) Respondent shall,
within 30 days of this decision pay $2,200 as a civil penalty for
the violations found herein; (3) Order No. 3701661 be affirmed;
and (4) Docket Nos. PENN 91-147-R, PENN 91-148-R, and
PENN 91-149-R, be DISMISSED.
Avram Weisberger
Administrative Law Judge
Distribution:

Daniel E. Rogers, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)

Richard Rosenblitt, Esq., Office of the Solicitor, U. S.
Department of Labor, Room 14480 Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)

nb

 3It appears to the Respondent's position, as set forth in

its brief, that the management of Robena did not consider that 30
C.F.R. Part 77 was applicable to the facility. Respondent's
position appears to be based on its assertions in its brief, that
there is "confusion" in the Act concerning MSHA Jurisdiction over
preparation plants not located at mine sites and the "confusing"
lack of a definition in Part 77 regarding the applicability of
that Part. As such, Respondent argues that its failure to
inspect does not justify a findings of "unwarrantable failure".
I do not accept this argument. Respondent has not proffered any
evidence that its agents were "confused" as to the applicability
of Part 77. I do not assign any probative weight in this regard
to the arguments of counsel, as such are not evidence.