International Anthracite Corp.

Plain-English summary

International Anthracite Corp. employed workers at its B & M Tunnel operation who had not received the required Part 48 training before performing equipment work. Judge Avram Weisberger upheld three orders for missing new-miner, annual refresher, and newly employed experienced-miner training. He found that the violations were not significant and substantial because the workers appeared experienced and the evidence did not establish a reasonable likelihood of an injury-producing event. The orders were modified to remove the S&S findings, and the total civil penalty was set at $225.

Decision snapshot

• Cited standards: 30 C.F.R. § 48.25, 30 C.F.R. § 48.28, and 30 C.F.R. § 48.26.
• Outcome: Three training orders were affirmed as modified to remove the significant and substantial findings. The total penalty was $225.
• Key point: Experience operating the equipment mitigated the gravity of the training violations and defeated the S&S designation on this record.

Full text (FMSHRC public release)

CCASE:
MSHA V. INTERNATIONAL ANTHRACITE
DDATE:
19921105
TTEXT:

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      FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. PENN 92-230
Petitioner : A.C. No. 36-01781-03549
v. :
: B & M Tunnel
INTERNATIONAL ANTHRACITE CORP.:
Respondent :

                          DECISION

Appearances: Gayle M. Green, Esq. and Linda Henry, Esq.,
U.S. Department of Labor,
Office of the Solicitor, Philadelphia,
Pennsylvania;
Mr. Ronald Lickman, International Anthracite
Corporation, Pottsville, Pennsylvania,
pro se.

Before: Judge Weisberger

 This case is before me based on a petition for assessment of

civil penalty predicated upon the issuance of 3 Section 104(g)(1)
orders alleging violations of various training requirements set
forth in Part 48, Sub-Part B, of volume 30, Code of Federal
Regulations. Pursuant to Notice, the case was scheduled and
heard in Reading, Pennsylvania on July 14, 1992. Harold Glandon
testified for the Secretary of Labor (Petitioner), and Ronald
Lickman testified for the Operator (Respondent). It was agreed
by the parties that Lickman's testimony and arguments set forth
in Harriman Coal Corporation, Docket No. PENN 92-305, heard on
the same date, are to be incorporated by reference herein.

               Findings of Fact and Discussion

I. Order No. 3080095

 On May 13, 1991, Harold Glandon, an MSHA Inspector,

inspected Respondent's B & M Tunnel operation. Respondent had
purchased that operation on April 26, 1991, and had never mined
coal there. At the date of the inspection, there was no mining
taking place at the operation and it was temporarily abandoned.
However, Respondent's representative indicated Respondent "never
abandoned the mine". (Tr.93) On the day of Glandon's inspection,

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one of Respondent's employees, David Labenski, was operating a
caterpillar bulldozer loading coal on trucks. Two other
employees, Robert Searles and Ron Lickman, Jr., were observed
operating a bulldozer and backhoe, respectively, grading and
filling in various voids.

 a. Applicability of Part 48, subpart B, supra to

Respondent's Operation

 Respondent argues in its brief, in essence, that it is not

subject to the requirements of Part 48, inasmuch as no coal was
being mined, or produced on the dates the citations herein were
issued. I reject Respondent's argument for the following
reasons.

 Essentially, Part 48 Subpart B, supra, requires certified

training for miners working at surface mines and surface areas of
underground mines. Section 3(h)(1) of the Federal Mine Safety
and Health Act of 1977 defines a mine, inter alia as "..lands,
excavations, ... used in, or to be used in, or resulting from,
the work of extracting such minerals from their natural deposits
... ." Respondent's employees were engaged in filling voids
which had resulted from the extraction of coal (Tr.10, 14, 88).
As such, the site at issue falls within the statutory definition
of a mine.

 b.   Violation of 30 C.F.R.   48.25

 According to Ronald Lickman, Respondent's President, Ron

Lickman, Jr., had been operating construction equipment for 15
years. Ron Lickman, Jr., told Glandon that he was experienced
with the 245 backhoe as he had performed construction work.
Further, Glandon indicated that he appeared to know how to
operate the backhoe, and that the equipment and the work
practices looked good. Also, Ron Lickman, Jr., had received 8
hours training at another site. However, he informed Glandon
that he was not certified as an experienced miner, and that he
had not received 16 hours training, nor had he received 8 hours
training on the site.

 Glandon issued an Order pursuant to Section 104(g)(i) of the

Federal Mine Safety and Health Act of 1977, which, provides as
follows:

      If, upon any inspection or investigation pursuant
 to section 103 of this Act, the Secretary or an
 authorized representative shall find employed at a coal
 or other mine a miner who has not received the
 requisite safety training as determined under section
 115 of this Act, the Secretary or an authorized
 representative shall issue an order under this section
 which declares such miner to be a hazard to himself and

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to others, and requiring that such miner be immediately
withdrawn from the coal or other mine, and be prohibited
from entering such mine until an authorized representative
of the Secretary determines that such miner has received the
training required by section 115 of this Act.

    30 C.F.R.   48.25 provides as follows:

         (a) Each new miner shall receive no less than 24
    hours of training as prescribed in this section.
    Except as otherwise provided in this paragraph, new
    miners shall receive this training before they are
    assigned to work duties. At the discretion of the
    District Manager, new miners may receive a portion of
    this training after assignment to work duties:
    Provided, that no less than 8 hours of training shall
    in all cases be given to new miners before they are
    assigned to work duties. (Emphasis added)

 30 C.F.R.   48.22(c) defines a "new miner" as a miner who is

not an experience miner. Section 48.22(b) supra defines an
"experienced miner" as either a miner who was employed as a miner
on the effective date of the regulations i.e. October 13, 1978,
or one who has received training from an appropriate state agency
within the preceding 11 months, or one who has had a least 12
months experience working in a surface mine or surface of an
underground mine during the preceding 3 years, or one who has
received the training for a new miner within the proceeding 12
months.

 Section 48.22(a)(1) defines a "miner", inter alia as a

person working in a surface mine or surface areas of an
underground mine and "regularly exposed to mine hazards."

 Inasmuch as Ron Lickman, Jr., was engaged in operating heavy

equipment, he clearly was exposed to the hazard of operating this
equipment at the mine site in question. Accordingly he is to be
considered a "miner" within the purview of Section 48.22 supra.
Although he indicated to Glandon that had received 8 hours
training at another site, there is no evidence that he had either
received training acceptable to MSHA from an appropriate state
agency within the preceding of 12 months, or had received
training for a new miner within the preceding 12 months. Also,
there is no evidence that he was employed as a miner as of the
date the regulation was made effective i.e. October 13, 1978.
Further, although he had experience operating heavy equipment,
there is no evidence that he had at least 12 months experienced
working in a surface mine or surface area of an underground mine
during the preceding three years. Hence, I conclude that he was
not an experienced miner within the purview of Section 48.22(b),
and accordingly must be considered a new miner.

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Section 48.25 supra, unequivocally provides that a new miner
shall be given "no less than eight hours of training... before
they are assigned to work duties." Ron Lickman, Jr., did not
receive 8 hours of training before he was assigned to work duties
at the subject mine. Hence, he was not given the training
provided for in Section 48.25 supra. Accordingly, I conclude
that Order No. 3080095 was properly issued.

    c.   Significant and Substantial

 According to Glandon, an accident was highly likely to have

occurred as a consequence of Lickman not having been provided
with new miner training pursuant to Section 48.25 supra, and that
in the event of a accident there could be a serious injury. He
thus concluded that the violation was "significant and
substantial". In this connection he noted that slope of the area
in question was approximately 20 degrees, there was loose earth
from the grading operation, and the earth was unstable. He
opined that if the earth would shift, the equipment being
operated could roll down the void.

 However, Lickman was experienced operating the 245 backhoe

in question, and according to Glandon, appeared to know how to
operate that equipment. Also, Lickman and had experience at
operating heavy equipment at construction sites. Based on these
factors, I conclude that it has not been established that there
was a reasonable likelihood that the hazard contributed to by the
lack Section 48 training would have resulted in an event in which
there is an injury. (See U.S. Steel Mining Company, 6 FMSHRC
1834, 1836 (August 1984).

 Accordingly I conclude that it has not been established that

the violation herein is significant and substantial (Mathies Coal
Company, 6 FMSHRC 1 (January 1984).

    d.   Penalty

 Respondent's management should have been aware that it had

the responsibility of providing Lickman with 8 hours training
prior to his being assigned work duties. However, the gravity of
the violation herein is mitigated by Lickman's experience in
operating the equipment in question at construction sites. I
find that a penalty of $100 is appropriate for this violation.

II. Order No. 3080096

 On May 13, 1991, Glandon observed David Labenski operating a

caterpillar front end loader loading trucks with coal. According
to Glandon, he "talked to Mr. Labenski and his certification his
annual refresher training, had expired five months previously"
(Tr.24) (sic). Glandon issued an Order pursuant to Section

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104(g)(1) supra, citing a violation of 30 C.F.R. 48.28.

 Section 48.28(a) supra, provides, as pertinent, that "each

miner shall receive a minimum of 8 hours of annual refresher
training". Inasmuch as Labenski had not received this annual
training, Glandon's order was properly issued.

 Labenski was observed operating the loader in question on

level terrain. According to Glandon, if the loader turned over
with the bucket in a raised position, Labenski could have become
injured, even though the loader had roll-over protection.
However, according to Lickman, Labenski had worked on this site
several years and was quite proficient with the loader. Based on
Labenski's experience, I conclude that it has not been
established that there was a reasonable likelihood of an injury
producing event contributed to by Labenski's lack of annual
refresher training. I thus conclude that it has not been
established that the violation was "significant and substantial"
(See U.S. Steel, supra.).

 Considering the terrain on which the vehicle in question was

being operated by Labenski, and experience on the site, I find
that the gravity of the violation herein to be considerably
mitigated. I find that a penalty of $50 is appropriate for this
violation.

III. Order No. 3080097

 On May 14, 1991, Glandon observed Roberts Searles operating

a Caterpillar bulldozer. Glandon asked him if he had received
newly employed experience miner training, and he indicated that
he had not. Searles, who appeared to Glandon to know what he was
doing and was operating the dozer safely, informed Glandon that
he had worked at another of Lickman's job sites where he had
received training and a certificate.

 Glandon issued Order No. 3080097 alleging a violation 30

C.F.R. 48.26. Section 48.26 supra requires a newly employed
experienced miner to receive training, "...before such miner is
assigned to work duties." This training includes, inter alia, an
introduction to the work environment which includes "...a visit
and tour of "the mine", as well as instruction concerning the
ground control plans "at the mine", and procedures for working
safety in areas of pits and spoil banks. (Emphasis added). It is
clear that Section 48.26 supra, requires instruction regarding
conditions at the mine where the experienced miner is "newly"
employed, and currently working. Inasmuch, as Searles was not
provided with such training before he was assigned to his work
duties at the subject site, Respondent herein did violate
Section\

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48.26 supra.(Footnote 1)

 Since Searles appeared to know what he was doing, was

operating safely, and had received training at another Lickman's
jobs sites, I conclude that the violation herein was not
"significant and substantial". I find that a penalty of $75 is
appropriate for this violation.

                          ORDER

 It is ORDERED that Order Nos. 3080095, 3080096 and 3080097,

be amended to reflect the fact that the violations cited therein
are not "significant and substantial". It is further ORDERED
that Respondent pay a civil penalty of $225 for the violations
found herein, and that such penalty be paid within 30 days of
this decision.

                          Avram Weisberger
                          Administrative Law Judge

Distribution:

Gayle M. Green, Esq., and Linda Henry, Esq., Office of the
Solicitor, U.S. Department of Labor, 3535 Market Street, 14480
Gateway Building, Philadelphia, PA 19104 (Certified Mail)

Mr. Ronald Lickman, President, International Anthracite
Corporation, 101 N. Center Street, Suite 309, Pottsville, PA
17901 (Certified Mail)

nb

1In light of this decision, I deny Respondent's Motion, made at
the hearing, to dismiss the order issued for Searle's lack of
training. Since he had not been provided with the proper
training before he was assigned to his work duties, as required
of Section 48.26 supra, Glandon properly withdrew Searles.