Consolidation Coal Company

Plain-English summary

MSHA alleged that dangerous coal-dust accumulations at Consolidation Coal's Robena Preparation Plant violated 30 C.F.R. § 77.202. Judge Jerold Feldman found extensive accumulations on conveyor-belt motors, electrical panels, beams, and around rollers, and rejected the operator's claim that a recent spill caused the condition. He found the violation significant and substantial because combustible dust was near electrical and friction ignition sources in a building occupied by employees, and found unwarrantable failure based on the extended accumulation and an inadequate cleanup policy. Order No. 3691990 was affirmed and a $1,200 civil penalty was assessed.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.202.
• Outcome: The order was affirmed and Consolidation Coal was ordered to pay a $1,200 civil penalty.
• Key point: Widespread coal dust near electrical equipment and conveyor-belt ignition sources, combined with an inadequate cleanup policy and prior safety-committee concerns, supported S&S and unwarrantable-failure findings.

Full text (FMSHRC public release)

SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. PENN 92-445
Petitioner : A.C. No. 36-04175-03560
:
v. : Robena Prep Plant
:
CONSOLIDATION COAL COMPANY, :
Respondent :

                          DECISION

Appearances: John M. Strawn, Esq., U.S. Department of Labor,
Office of the Solicitor, Arlington, Virginia
for Petitioner;
Daniel E. Rogers, Esq., Consolidation
Coal Company, Pittsburgh, Pennsylvania,
for Respondent.

Before: Judge Feldman

 This case is before me based upon a petition for assessment

of civil penalty filed by the Secretary (petitioner) alleging a
violation by the operator (respondent) of the surface mine
mandatory safety standard that prohibits dangerous accumulation
of coal dust. This matter was heard in Washington, Pennsylvania,
at which time Robert G. Santee and Robert L. Campbell testified
on behalf of the petitioner and William Geary testified for the
respondent.

 The issues for resolution are whether the respondent

permitted a dangerous accumulation of coal dust at its Robena
Preparation Plant and, if so, whether this accumulation was a
"significant and substantial" violation and/or the result of the
respondent's "unwarrantable failure". Also for consideration is
the amount of civil penalty, if any, that should be assessed.
The parties have stipulated to my jurisdiction in this matter and
to the pertinent civil penalty criteria found in Section 110(i)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801
et seq., (The Act). The parties' post-hearing briefs are of
record.

              FINDINGS OF FACT AND DISCUSSION

 At approximately 6:50 a.m., on August 22, 1991, Mine Safety

and Health Administration Inspector, Robert G. Santee arrived at
the respondent's Robena Preparation Plant facility for the
purpose of conducting an inspection. This facility consists of
several buildings, that receive, transport and process coal from
the respondent's Dilworth Mine. The coal is transported up the
Monongahela River by barge to the preparation plant where it is
processed and stored by means of a series of conveyor belts.

 Upon his arrival at the facility, Santee spoke to Mine

Superintendent, Pat Zungri who informed Santee that Company
Representative, Joe Bailey and Miner Representative, Harry Churby
would accompany him on his inspection. Santee proceeded to the
foreman's office where he inspected the foreman's log. Santee
observed that the last entry in the log occurred on the afternoon
shift of August 21, 1991, by Mine Examiner, Ed Bodkin. Bodkin's
log entry made no reference to any accumulations of coal dust in
the transfer house.

 Sometime between 7:00 a.m. and 7:35 a.m., Santee,

accompanied by Bailey and Churby, proceeded to the transfer house
to conduct an inspection. The transfer house is a building used
to transport coal by conveyor belt to and from the river from the
preparation plant. Upon arriving on the first floor of the
transfer building, Santee observed several areas of accumulation
of float dust and loose coal. He noted that the more he looked
around the transfer building, the more extensive the
accumulations appeared to be. Therefore, Santee issued 104(d)(1)
Order No. 3691990 to Joe Bailey for an alleged violation of
Section 77.202 which Santee concluded had occurred as a result of
the respondent's unwarrantable failure.(Footnote 1) The order
was based on Santee's observations of dangerous amounts of coal
dust accumulations at the following locations:

   1)   Coal dust accumulations ranging from 0 to 1/2 inch
        deep on top of the electrical motors for the No. 1
        conveyor belt.

   2)   Coal dust accumulations ranging from 0 to 1/2 inch deep
        on the electrical motors and structures for the river
        tipple conveyor belt.

   3)   Coal dust accumulations ranging from 0 to 1/16 inch
        deep inside of the electrical control panel boxes on

1 30 C.F.R. 77.202 provides: "Coal dust in the air of, or in,
or on the surfaces of, structures, enclosures, or other
facilities shall not be allowed to exist or accumulate in
dangerous amounts." (Emphasis added).

         the bottom floor of the transfer building where
        electrical motors for the No. 1 conveyor belt and river
        tipple conveyor belt are located.

   4)   Coal dust accumulations ranging from 0 to 1/2 inch deep
        on the steel beam structures on the bottom floor of the
        transfer building and continuing up to the first
        landing, including the first landing platform.

   5)   Loose coal and wet coal and mud ranging from 2 to 24
        inches in depth at three different locations on the
        bottom floor of the transfer building including
        underneath the tail rollers for the No. 1 and river
        tipple conveyor belts.

   6)   Coal dust accumulations from 0 to 1/2 inch deep on top
        of the drive units and structures for the No. 1 and
        river tipple conveyor belts and on the floor of the
        platform for the secondary drive for the river tipple
        conveyor belt.

 Santee's citation noted that the No. 1 and river tipple

conveyor belts were running at the time the citation was issued
at 8:25 a.m. In addition, Santee testified that the electrical
boxes were energized at the time he observed these accumulations.
(Tr.21,25-26). Santee noted that the accumulations observed were
black in color and were not combined with any non-combustible
materials. (Tr.44,56,108). Finally, Santee stated that there
were footprints in the accumulations which led him to believe
that these accumulations should have been observed and were not
of recent origin. (Tr.28). Santee estimated these accumulations
existed for a period of several shifts to approximately one week.
(Tr. 52).

 Upon issuing the 104(d)(1) order, Santee informed Bailey to

de-energize all power from the electrical motors and boxes so as
to avoid any potential for ignition. After the top surfaces of
the drive units and structures for the No. 1 and river tipple
conveyor belts were washed off, Santee modified Order No. 3691990
to include additional coal dust accumulations he observed ranging
from 0 to 1/2 inch deep which were saturated with grease and oil
at several locations near the conveyor belt drive units. (Gov.
Ex.1). Santee attempted to continue his inspection but realized
that plant personnel were assigned to clean other areas of the
transfer building before he could inspect them. Therefore,
Santee discontinued his inspection at approximately 9:30 a.m.
Santee returned to the field office and was contacted at
approximately 4:00 p.m., by Zungri who advised Santee that the
condition had been abated. Santee returned to the preparation
facility at approximately 5:15 p.m., and reinspected the transfer
house in the presence of Zungri and Robert L. Campbell, Chairman
of the Union Safety Committee.

 Robert Campbell testified on behalf of the Secretary. He

stated that he also observed extensive amounts of float coal dust
on top of the electrical panels, inside of the panels and on the
floor. Campbell, who is employed at this facility, estimated
that the dust accumulations existing in and around these panels
were present for at least 3 weeks. (Tr. 110-111). Campbell
corroborated Santee's observations regarding an oil and grease
leak near the No. 1 conveyor belt. Campbell estimated that this
condition existed for more than one month. (Tr. 108).

 Campbell further testified that the transfer house is

considered to be a problem area in terms of coal dust
accumulations. He stated that the safety committee had raised
the issue with the respondent's management on several occasions.
(Tr.112-113). Campbell related that regular maintenance of the
transfer house is done on weekends. Consequently, he opined that
dust conditions deteriorate as the week progresses. (Tr. 110,
122-123). Thus, the nature and extent of the coal dust
accumulations observed by Santee and Campbell were consistent
with this weekend cleaning policy in that the inspection occurred
on a Thursday. (Tr.117). Campbell testified that the weekend
cleaning did not include cleaning of the electrical boxes or
motors. (Tr. 122-123). Campbell expressed concern about the
accumulations and their explosive potential as welding is
performed in the transfer house approximately two times per
month. (Tr. 120-121).

 The respondent called Plant Foreman, William Geary as its

only witness. Geary worked the midnight shift on August 22,
1991. This shift began on August 21, at 11:00 p.m., and ended at
approximately 7:15 a.m., on August 22. Geary testified that he
inspected the transfer house at approximately 6:00 a.m., on
August 22, 1991. At that time, he reportedly noted coal dust
that needed to be removed on the walkways around the No. 1
conveyor belt. (Tr. 161). Geary testified that he went to the
foreman's office at approximately 6:30 a.m. Geary stated that he
made a notation in the inspection log at approximately 6:35 a.m.,
to 6:40 a.m. (Tr.176). The subject notation states, "Transfer
house area on both sides of river tipple belt need cleaned-up
(sic)."(Footnote 2) Geary testified that he did not know how
this coal accumulation occurred. (Tr.173). Geary stated that he
observed Santee on the preparation facility premises on August
22, 1991, prior to his departure at the end of his shift.
(Tr.203).

2 The respondent did not introduce a certified copy of this log
entry at trial. The record was kept open and it was received in
evidence as Respondent's Ex. 1 on November 16, 1992.

        FURTHER FINDINGS OF FACT AND CONCLUSIONS

Occurrence of Violation

 The respondent is cited for violation of the mandatory

safety standard in section 77.202 which specifies that coal dust
shall not be "allowed" to accumulate in "dangerous amounts" in
the air or on the surfaces of structures, enclosures, or other
facilities. As coal dust is a natural consequence of the coal
preparation process, the issue for determination is whether the
respondent "allowed" the accumulations to occur and whether such
accumulations constituted "dangerous amounts."

 Turning to the question of whether the respondent allowed

these conditions to occur, the determining factor is the period
of time in which the respondent permitted the coal dust to
accumulate. In Utah Power and Light v. Secretary of Labor, 951
F.2d 292, 295 (10th Cir. 1991), the Tenth Circuit, in applying a
similar mandatory safety standard for underground mining
contained in Section 75.400, stated that coal dust accumulations
must be ". . . cleaned with reasonable promptness, with all
convenient speed." Obviously, section 77.202 does not
contemplate citations for coal dust as it is generated as a by-
product of coal preparation. It is only the accumulation of such
coal dust, which requires a period of time to occur, which is
prohibited. (Tr.84-85). Thus, the operator must be afforded a
reasonable period of time to remove coal dust accumulations
before a citation can be properly issued.

 In its brief, referring to the testimony of Geary, the

respondent alleges, without foundation, that "[t]he major
accumulation, amounting to an estimated 50 tons of coal, and the
dust associated with the spill of that coal, occurred sometime
during the afternoon shift of August 21 or the midnight shift of
August 22. (Tr. pp. 173 and 174)." (Emphasis added).
(Respondent's Br. 1-2). However, the respondent has misquoted
Geary's testimony. There is no evidence of record of any recent
coal spill that could account for the accumulations observed by
Santee and Campbell. In fact, Geary, speaking hypothetically,
testified that, given the volume of coal on the conveyor belts it
would only take ". . . a few minutes for 50 ton[s] to get there
(spill)." (Tr.170-171). Although Geary referred to "a spill
there sometime during the night" he also testified that he did
not know how these accumulations (referred to by counsel for the
respondent as a "spill") occurred or when they occurred.
(Tr.168,173). Geary's lack of knowledge about a recent coal
spill is consistent with the testimony of Santee and Campbell
which makes no reference to any statement by Bailey, Churby or
Zungri, mine personnel who accompanied Santee on his inspection,
that a relevant coal spill had occurred. Significantly, Geary
testified that he only saw 2 to 24 inches of coal dust
accumulations around the No. 1 conveyor belt rather than a
catastrophic coal spill. (Tr.172- 173). Thus, the testimony,
when viewed in its entirety, supports the conclusion that the
subject accumulations developed over a period of time and were
not the result of a recent spill.(Footnote 3) In reaching this
conclusion, I note the testimony of Campbell concerning the
respondent's policy of cleaning the transfer house on a weekly
basis with resultant coal dust accumulations as the week
progresses. Moreover, the physical evidence consisting of coal
dust layers saturated with oil and grease, coal dust filtering
through cracks in electrical boxes, and widespread coal dust
accumulations on electrical motors, beams and around the rollers
of the conveyor belts, supports the opinions of Santee and
Campbell that these accumulations existed for a prolonged period
of time.(Footnote 4)

 I also reject the respondent's assertion that the subject

accumulation was noted in the foreman's log book by Geary prior
to Santee's inspection. Santee's contemporaneous notes reflect
that upon arrival at the preparation plant the last entry in the
inspection log was by Bodkin on the afternoon shift of August 21,
1991. (Gov. Ex. 2, p.1). Significantly, Superintendent Zungri,
Plant Foreman Brian Mahalovich and Plant Engineer Bailey never
informed Santee at the beginning of his inspection of the
occurrence of a recent spill that required cleanup or of a
pertinent entry in the inspection log. The first time Santee was
shown Geary's log entry was sometime after 10:15 a.m. (Tr.35).
Moreover, Geary testified that he was aware of Santee's presence
on the premises prior to ending his shift on August 22, 1991.
Thus, Geary had the opportunity to enter the cleanup notation
concerning both sides of the river tipple belt after he was aware
that Santee had begun his inspection. I conclude, therefore,
that the evidence fails to establish the existence of a log
entry concerning a cleanup of any of the subject coal dust
accumulations until after Santee's inspection and after the
7:15 a.m., day shift on August 22, 1991, had begun.
(See Tr. 35-36).

3 Respondent's Counsel and Geary have used the word spill and
accumulation interchangably throughout this proceeding. However,
I find Geary's description of his observations of accumulations
ranging from 2 to 24 inches consistent with an accumulation
rather than a significant spill.

4 As previously noted, Santee estimated that the accumulation
existed over a period of several shifts to one week. Campbell
testified that these accumulations were present from 3 weeks to
more than one month. I give greater weight to Campbell's
testimony as he is employed at and familiar with the preparation
facility.

 Finally, assuming arguendo that Geary's log entry was

timely, it did not adequately address the widespread
accumulations on such locations as in the electrical boxes, on
the electrical motors and on the beams. It is noteworthy that it
took the respondent an entire day to clean the transfer house.
There is no evidence that Geary's entry in the log book was
intended as an acknowledgement of the necessity for such an
extensive cleanup. Thus, the Secretary has established that the
respondent "allowed" this coal dust to accumulate in
contravention of Section 77.202 in that it failed to take
remedial action until Santee issued the subject 104(d)(1) order.

 The remaining issue is whether these accumulations ranging

from 1/16 inch inside the electrical boxes, 1/2 inch on the
electrical motors and conveyor belt structures and 2 to 24 inches
around the conveyor belt rollers, constitute "dangerous amounts".
The Commission, in Pittsburgh & Midway Coal Mining Company, 8
FMSHRC 4 (January 1986), has concluded that coal dust
accumulations 1/8 inch in depth inside electrical boxes, where
there is a potential ignition source, are "dangerous amounts"
within the meaning of Section 77.202. Consistent with this
Commission decision, I construe the extensive accumulations
observed by Santee in close proximity to electrical boxes, motors
and moving belts to be "dangerous" accumulations. Accordingly,
the Secretary has established a violation of Section 77.202.

SIGNIFICANT AND SUBSTANTIAL

 The Secretary asserts that the nature and extent of the coal

dust accumulations cited by Santee warrant the finding that this
was a significant and substantial violation. A violation is
deemed to be "significant and substantial" if there is "a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature." U.S.
Steel Mining Co.,Inc., 7 FMSHRC 327, 328 (1985); Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (1981); Mathies Coal Co.,
6 FMSHRC 1,3-4 (1984). This evaluation is made in terms of
"continued normal mining operations." U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574 (1984). The question of whether a
particular violation is significant and substantial must be based
on the particular facts surrounding the violation. Texasgulf,
Inc., 10 FMSHRC 498 (1988); Youghiogheny & Ohio Coal Company,
9 FMSHRC 2007 (1987).

 The respondent concedes that it is ". . . indisputable that

an accumulation of coal dust did exist in the transfer house on
the morning of August 22, 1991." (Respondent's Br.1). The issue
for determination is whether there was a reasonable likelihood
that these accumulations would result in combustion causing
serious injury. It is fundamental that float coal dust is
combustible only if 1) the float coal dust is in suspension; 2)
there is an ignition source; and 3) there is an actual ignition
or explosion. (Tr.45).

 With regard to suspension, Santee testified that although he

did not visualize any float dust in suspension, the widespread
nature of the accumulations was indicative of suspended coal
dust. (Tr.49-50). In addition, he testified that there were
several common occurrences which could place the dust in
suspension. For example, Santee stated that the starting and
stopping of conveyor belts, the movement of those belts and tail
rollers, and the opening of doors causing air circulation were
all potential causes of float dust suspension. (Tr.63-64).

 With respect to the second element of ignition, I accept the

unrebutted testimony on behalf of the Secretary concerning the
presence of potential ignition sources from arcing or sparks from
the electrical boxes or motors, from heat build up and sparks
related to friction from the conveyor belts and from occasional
welding activities. (Tr. 46-47, 121). The proximity of float
coal dust to these sources of ignition further demonstrates the
serious nature of this violation.

 Finally, in the event of actual combustion, it must be

established that a fire or explosion is reasonably likely to
cause serious injury or death. Santee's citation noted that one
person was affected by this hazardous condition. Apparently, one
employee on each shift is assigned to the transfer house where he
is responsible for cleaning up the belt areas and hosing down the
chute. (Tr.118). The foreman on each shift also travels through
the transfer house to inspect the condition of the facility.
(Tr. 177). Santee and Campbell also testified that personnel
enter the transfer building for maintenance and repair.
(Tr.51,121). The potential for explosion and/or fire engulfing
the entire building would subject anyone inside to the
substantial risk of serious injury or death. Admittedly, while
the discrete hazard in this instance, i.e., combustion and
resultant injury, requires the coincidence of several events, I
find that the Secretary has established a significant and
substantial violation by virtue of the extensive nature of the
accumulations, their proximity to ignition sources and the
likelihood of suspension given the accumulations' exposure to
moving conveyor belts.

Unwarrantable Failure

 The remaining issue concerns whether the respondent's

failure to timely remove the subject accumulations constitutes an
unwarrantable failure. The Commission has noted that
unwarrantable failure is "aggravated conduct, constituting more
than ordinary negligence, by a mine operator in relation to a
violation of the Act. Emery Mining Corporation, 9 FMSHRC 1997
(December 1987); Youghiogheny & Ohio Coal Company, supra;
Secretary of Labor v. Rushton Mining Company, 10 FMSHRC 249
(March 1988). Referring to its prior holding in the Emery Mining
case, the Commission stated as follows in Youghiogheny & Ohio, at
9 FMSHRC 2010:

         We stated that whereas negligence is
      conduct that is "inadvertent," "thoughtless",
      or "inattentive, "unwarrantable conduct is
      conduct that is described as "not
      justifiable" or "inexcusable." Only by
      construing unwarrantable failure by a mine
      operator as aggravated conduct constituting
      more than ordinary negligence, do
      unwarrantable failure sanctions assume their
      intended distinct place in the Act's
      enforcement scheme.

 In Emery Mining, the Commission elaborated on the meaning of

the phrase "unwarrantable failure as follows:"

      "Unwarrantable" is defined as "not
      justifiable" or "inexcusable." "Failure" is
      defined as "neglect of an assigned, expected,
      or appropriate action." Webster's Third New
      International Dictionary (unabridged) 2514,
      814 (1971) ("Webster's"). Comparatively,
      negligence is the failure to use such care as
      a reasonably prudent and careful person would
      use and is characterized by "inadvertence,"
      "thoughtlessness," and "inattention."
      Black's Law Dictionary 930-31 (5th ed. 1979).
      Conduct that is not justifiable and
      inexcusable is the result of more than
      inadvertence, thoughtlessness, or
      inattention. 9 FMSHRC at 2001.

 The evidence in this case reflects widespread coal dust

accumulations, including those located on electrical motors and
inside electrical boxes, which were permitted to accumulate over
an extended period of time. These conditions were indicative of
an inadequate cleanup policy which involved periodic cleanup
rather than effective cleanup on an as needed basis. The
existence of these accumulations in proximity to ignition sources
manifests a reckless disregard of this serious risk of explosion
which goes beyond mere inattentiveness or thoughtlessness.
Moreover, the presence of these accumulations despite previous
meetings with the Safety Committee concerning this problem in the
transfer house provides an additional basis for concluding that
the respondent's inaction constituted more than ordinary
negligence. As such, this violation is attributable to the
respondent's unwarrantable failure.

                       Conclusions

 In view of the above, I conclude that the gravity associated

with the respondent's violation of Section 77.202 was serious
given the risk of life threatening injury and that the underlying
degree of negligence exhibited by the respondent was high. I
therefore concur with the $1,200 assessment proposed by the
Secretary in this matter as it is consistent with the evidence of
record and the criteria in Section 110(i) of the Act.

                          ORDER

Accordingly, Order No. 3691990 IS AFFIRMED and the respondent IS
ORDERED TO PAY a civil penalty of $1,200 in satisfaction of the
violation in issue. Payment is to be made within thirty (30)
days of the date of this decision, and upon receipt of payment,
this matter IS DISMISSED.

                          Jerold Feldman
                          Administrative Law Judge

Distribution:

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

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

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