Cyprus Cumberland Resources

Plain-English summary

Cyprus Cumberland Resources challenged two withdrawal orders issued after an MSHA inspector found extensive coal and coal-dust accumulations and alleged that a pre-shift examination failed to record hazardous conditions. Judge Paul Merlin affirmed the order concerning the accumulations under 30 C.F.R. § 75.400 and assessed a $4,500 penalty. He vacated the order concerning the pre-shift examination because the Secretary did not prove that the same hazardous conditions existed when the examination occurred. The decision covered two contest dockets and one related civil-penalty docket.

Decision snapshot

• Cited provision(s): 30 C.F.R. § 75.400, 30 C.F.R. § 75.360(g), 30 U.S.C. § 801, 30 U.S.C. § 814(d)(2), 30 U.S.C. § 820(i)
• Outcome: Order No. 3668592 was affirmed with a $4,500 penalty. Order No. 3668593 was vacated.
• Key point: Circumstantial evidence raised suspicion about conditions during the pre-shift examination, but suspicion alone did not satisfy the Secretary's burden of proof.

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



                          July 26, 1996

CYPRUS CUMBERLAND RESOURCES, : CONTEST PROCEEDINGS
Contestant :
: Docket No. PENN 96-46-R
: Order No. 3668592; 11/15/95
v. :
: Docket No. PENN 96-47-R
SECRETARY OF LABOR, : Order No. 3668593; 11/15/95
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Cumberland Mine
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. PENN 96-144
Petitioner : A.C. No. 36-05018-04087
v. :
: Cumberland Mine
CYPRUS CUMBERLAND RESOURCES, :
Respondent :

                              DECISION

Appearances: Allison Anderson Acevedo, Esq., Office of the
Solicitor, U.S. Department of Labor, Philadelphia,
Pennsylvania for the Secretary of Labor;
R. Henry Moore, Esq., Buchanan Ingersoll
Professional Corp., Pittsburgh, Pennsylvania for
Cyprus Cumberland Resources.

Before: Judge Melick

 These consolidated cases are before me pursuant to

Section 105(d) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq., the “Act,” to challenge two
withdrawal orders issued by the Secretary of Labor to Cyprus
Cumberland Resources (Cyprus) under Section 104(d)(2) of the Act
and to challenge the civil penalties proposed for the violations
charged therein.1 The general issue before me is whether the

 1
     Section 104(d)(2) of the Act provides as follows:

 (1) If, upon any inspection of a coal or other mine, an

authorized representative of the Secretary finds that there has
been a violation of any mandatory health or safety standard, and

orders at bar should be affirmed and, if so, what is the
appropriate civil penalty to be assessed considering the criteria
under Section 110(i) of the Act.

Order No. 3668592

 This order, issued November 16, 1995, (in modification of

Citation No. 3668592 issued November 15, 1995) alleges a
“significant and substantial” violation of the standard at 30
C.F.R. § 75.400 and charges as follows:

 The clean-up program was not being complied with in
 [that] dry, black in color loose coal, coal dust, and float
 coal dust was permitted to accumulate on the active shuttle

if he also finds that, while the conditions created by such
violation do not cause imminent danger, such violation is of such
Footnote 1 continued

nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health hazard,
and if he finds such violation to be caused by an unwarrantable
failure of such operator to comply with such mandatory health or
safety standards, he shall include such finding in any citation
given to the operator under this Act. If, during the same
inspection or any subsequent inspection of such mine within 90
days after the issuance of such citation, an authorized
representative of the Secretary finds another violation of any
mandatory health or safety standard and finds such violation to
be also caused by an unwarrantable failure of such operator to so
comply, he shall forthwith issue an order requiring the operator
to cause all persons in the area affected by such violation,
except those persons referred to in subsection (c) to be
withdrawn from, and to be prohibited from entering, such area
until an authorized representative of the Secretary determines
that such violations has been abated.

 (2) If a withdrawal order with respect to any area in a

coal or other mine has been issued pursuant to paragraph (1), a
withdrawal order shall promptly be issued by an authorized
representative of the Secretary who finds upon any subsequent
inspection the existence in such mine of violations similar to
those that resulted in the issuance of the withdrawal order under
paragraph (1) until such time as an inspection of such mine
discloses no similar violations. Following an inspection of such
mine which discloses no similar violations, the provisions of
paragraph (1) shall again be applicable to that mine.

                            2



 car roadway for a distance of approximately 200 feet in
 length, 0 to 12 inches in depth in an entry, 16 feet to 16.5
 feet in width. This condition was observed in the No. 2
 entry and connecting crosscut No. 2 to No. 1 entry in the
 last open crosscut of the 36 Butt developing section.
 As grounds for modifying the initial citation to an order,

the issuing inspector for the Mine Safety and Health
Administration (MSHA), Charles Pogue, noted as follows:

 Additional information was provided during a conference
 held on 11-16-95, concerning conditions observed on the
 midnight shift on 11-15-95. Statements indicated        that

the section foreman (pre-shift examiner) had inspected and
traveled through the area on Citation No. 3668592, dated 11-
15-95 and failed to comply with the Cumberland Mine clean-up
program.2

 The cited standard, 30 C.F.R. § 75.400, provides that Acoal

dust, including float coal dust deposited on rock-dusted
surfaces, loose coal, and other combustible materials, shall be
cleaned up and not be permitted to accumulate in active workings,
or on electric equipment therein.”

 On November 15, 1995 experienced MSHA coal mine inspector

Charles Pogue was continuing a six-month roof control evaluation
at the Cumberland Mine. He had performed approximately 100
previous inspections at this mine. Pogue arrived at around 8:10
a.m. and, among other things, reviewed the pre-shift examination
report. There were no notations for hazards in the 36 Butt
section.

 Accompanied by representative-of-miners Dave Chipps and

company representative Michael Konosky, Pogue proceeded to the 36
Butt section. In the face area of the No. 4 entry, he performed
methane and oxygen tests. He found no trace of methane and 20.9
percent oxygen. In the No. 2 entry Pogue found .4 percent
methane and 20.8 to 20.9 percent oxygen and in the No. 3 entry he
found .4 percent methane and 20.8 percent oxygen.

 2
   It is undisputed that there had been no intervening clean

inspection subsequent to precedential “Section 104(d)” Order
No. 3664528, issued July 12, 1995.

                            3



 In the No. 2 entry Pogue observed a pile of coal left from

the loading cycle along with large amounts of coal, loose coal
and coal dust in the crosscut. He dug into the pile with his
foot and measured it, finding it to be 12 inches deep. Upon
measuring with a 50-foot tape, assisted by miners= representative
Chipps, he found the accumulation to be 194 feet long, 16 feet to
16 2 feet in width, and 12 inches deep. According to Pogue the
accumulations extended from rib to rib and there was coal dust
from the rib to the floor at an angle of repose. Pogue also
testified that generally in the center of the entry the depth was
from .9 of one foot to 12 inches and that the depth was generally
uniform throughout the cited area. He also testified however
that along the rib the coal dust was 16 inches deep lying at an
angle of repose. Government Exhibit No. 5 purports to represent
a typical cross section of the area of cited accumulations.
Pogue also squeezed some of the cited accumulations in his hand
and concluded that there was no moisture. The material was black
in color and there was no rock dust in it. Based on his
experience, Pogue opined that the accumulations had resulted from
the loading cycle over the midnight shift.

 Pogue testified that on November 16 he modified the citation

to a “Section 104(d)(2)” order after interviewing foreman
Bernard Steve. Steve performed the pre-shift examination on the
section and had also later traveled into the crosscut between the
Nos. 1 and 2 entries where the accumulations were found. Steve
admitted to Pogue that at the time of his pre-shift exam at
around 6:01 that morning he observed loose coal, coal dust and
float coal dust in the cited area but did not consider it to be
hazardous.

 Although inconsistent regarding the precise dimensions of

the alleged accumulations, I find Pogue’s testimony generally
credible and sufficient to establish the existence of significant
violative accumulations. His expert testimony is also sufficient
to establish its combustibility. Indeed, in significant
respects, his testimony is also corroborated by that of
Michael Konosky, the Cyprus representative accompanying him on
his inspection. Konosky acknowledged at hearing that there was
an excessive amount of material in the No. 2 entry and the
crosscut. He further acknowledged that Inspector Pogue dug a
hole in the coal to show him the depth (apparently where the
depth was 12 inches) but paid no attention. Konosky further
acknowledged that he did not perform any tests on the cited
material and did not remember whether he had objected to any of
Pogue’s measurements of the cited material.

                            4



 In reaching my conclusions herein I also note the testimony

of Cyprus= area manager, Robert Kimutis, who acknowledged that
the continuous miner had made a mess that night as it backed out
of the No. 2 entry because the regular operator was not at the
controls. I also note that section foreman John Perry also
recognized that the crosscut between entries 2 to 1 Alooked bad”
although he attributed this to what he believed was the dragging
of coal back through the crosscut and the fact that it had been
Atorn up” presumably by the continuous miner backing out of the
crosscut.

 Inspector Pogue also concluded that the violation was

“significant and substantial”. A violation is properly
designated as “significant and substantial” if, based on the
particular facts surrounding that 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:

      In order to establish that a violation of a
 mandatory standard is significant and substantial
 under National Gypsum the Secretary 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. See also Austin Power
 Co. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’g
 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies
 criteria).

      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), and also that the likelihood of injury be
 evaluated in terms of continued normal mining operations.
 U.S. Steel Mining Co., Inc., 6 FMSHRC 1473, 1574
 (June 1984); see also Halfway, Inc., 8 FMSHRC 8, 12
 (January 1986) and Southern Oil Coal Co., 13 FMSHRC 912,
 916-17 (June 1991).




                            5



 In this regard Pogue noted that a fire or explosion were

likely since all the necessary factors were present.3 He noted
the presence of oxygen, of combustible coal and coal dust, and
ignition sources from the energized electrical face equipment and
power cables. He also noted that methane was being liberated
from the face and that coal dust was being placed in suspension
both during the mining cycle and from mine traffic. He further
noted that methane was liberated from the cited section at the
rate of 600,000 cubic feet per minute over 24 hours. Other
ignition sources were also likely from drilling holes for roof
bolts. Drill bits may become hot enough to cause ignition, or
strike rock. Friction heat may also result from the roof bolt
rubbing on a face plate. Pogue further noted that the continuous
miner itself can cause an ignition. Six workers in the area
during the mining cycle could be burned or inhale toxic smoke and
gases as a result of an explosion or fire.
Inspector Pogue’s conclusion regarding the Asignificant and
substantial” nature of the instant violation was fully
corroborated by the expert testimony of Clete Stephan, a graduate
engineer with a professional engineering license in mining
engineering. Stephan is also the principal mining engineer at
the MSHA Tech Support Center and an experienced fire and
explosion investigator. Stephan confirmed that the cited
accumulation presented a serious hazard. He noted that all the
necessary ingredients were present for a fire or explosion.
Stephans also noted that the coal at the Cumberland Mine is
within the Pittsburgh Seam which contains coal at the higher end
of the explosivity scale. In particular Stephans testified as
follows with respect to the likelihood of an explosion on
November 15 in the 36 Butt section:

 A.   Well, it would by my opinion that based on the
 accumulation of such a considerable length of hazardous
 materials, that an explosion -- that a propagating
 explosion, not just an explosion that would stay in the face
 area, but one that would propagate even to other areas
 of the mine would result.
 Q.   [By Ms. Acevedo] Can you explain why?
 A.   Well, with even the ignition of a body of methane that
 had a slight amount of coal dust in it, there would be

 3
   The Respondent’s contention in its brief that Pogue only

testified that a fire or explosion Acould” occur is incorrect.
See, e.g., Tr.64.

                            6



 enough of a shock wave generated at that point to suspend
 the coal dust that would be throughout this length of
 accumulation.

In the context of this as well as the totality of his testimony,
it is clear that Stephan fully supports the Asignificant and
substantial” findings of the Secretary.

 The Secretary also alleges that the violation was the result

of the Respondent’s “unwarrantable failure”. Unwarrantable
failure is defined as aggravated conduct constituting more than
ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997
(December 1987). Unwarrantable failure is characterized by such
conduct as Areckless disregard,” Aintentional misconduct,”
Aindifference” or a Alack of reasonable care.” Id. At 2003-04;
Rochester and Pittsburgh Coal Company, 13 FMSHRC 189, 194-194
(February 1991). Relevant issues therefore include such factors
as the extent of a violative condition, the length of time that
it existed, whether an operator has been placed on notice that
greater efforts are necessary for compliance, and the operator’s
efforts in abating the violative condition. Mullins and Sons
Coal Company, 16 FMSHRC 192, 195 (February 1994).

 The Secretary first argues in this regard that the cited

condition was Aobvious” because of the large amounts of loose
coal, coal dust and float coal dust. Indeed Pogue found these to
have been Athe largest amount of accumulations that I have
observed of loose coal, coal dust and float coal dust at a
distance of 194 feet.” The credible evidence establishes that
the violative accumulations were extensive. From this evidence
alone it is also apparent that the accumulations had built up
over a rather long period of time and that the operator’s
abatement efforts were inadequate.

 The Secretary also notes in his brief that in the six months

before this order was issued, MSHA had cited this mine ten times
for violations of the same standard, including one issued only
two weeks prior to the order at bar. When all of the above
factors are considered it is clear that the violation herein was
indeed the result of gross negligence and unwarrantable failure.
The order is accordingly affirmed.

Order No. 3668593

 This “Section 104(d)(2)” order alleges a Asignificant and

substantial” violation of the standard at 30 C.F.R. § 75.360(g)
and charges as follows:

                            7



 An adequate pre-shift examination was not conducted in that
 dry, black in color loose coal, coal dust, and float coal
 dust was accumulated on the active shuttle car roadways.
 The loose coal, coal dust and float coal dust was measured
 to be approximately 200 feet in length and 0 - 12 inches in
 depth and not observed and noted as a hazardous condition in
 the pre-shifter’s examination book located on the surface.
 This condition was observed in the No. 2 entry and No. 2 to
 1 crosscut between No. 2 and No. 1 entries in the 36 Butt
 section.

 The cited standard, 30 C.F.R. § 75.360(g), provides in

relevant part that Aa record of hazardous conditions and their
locations found by the examiner during each examination . . .
shall be made in a book provided for that purpose on the surface
before any persons other than certified persons conducting
examinations required by this subpart enter any underground area
of the mine.” It is undisputed in this case that no entry was
made in the pre-shift examination books for the pre-shift
examination performed for the day shift on November 15, 1996,
i.e., during the three hours preceding the commencement of that
shift, regarding the accumulations noted in the order at bar.

 In order for there to be a violation as charged herein the

Secretary must prove that the cited hazardous and violative
conditions existed when foreman Bernie Steve’s pre-shift
examination was conducted around 6:01 on the morning of
November 15. Inspector Pogue acknowledged that he was not
present at that time and did not know what accumulations in fact
then existed. Foreman Steve provided the only direct evidence on
this issue and he testified that at the time of his pre-shift
exam that morning he did not see any hazardous accumulations of
coal.

 Given the absence of direct evidence of a violative

accumulation at the time of the pre-shift exam the Secretary must
resort to secondary or circumstantial evidence. In this regard
the large amount of accumulations found in this case and the
evidence there was little production after the 6:01 a.m. pre-
shift exam certainly raises suspicions that hazardous conditions
may have also existed at the time of the pre-shift exam, however
suspicions are not enough. I find therefore that I cannot
reasonably infer that the same hazardous conditions in fact also
existed some five hours before they were discovered by Inspector
Pogue. The use of circumstantial evidence in this regard is
particularly difficult because the conditions at the time of the
pre-shift exam, to be considered hazardous, must be evaluated in
terms of whether a reasonably prudent person familiar with the

                            8

purposes of the regulation would have recognized the conditions
as hazardous. See Utah Power and Light Company, 12 FMSHRC 965,
968 (May 1990). Since Inspector Pogue acknowledged that he did
not know the extent of the accumulations at the time of the pre-
shift exam it is difficult for this evaluation to be based on
anything but speculation.

                                             ORDER

 Order No. 3668592 is hereby affirmed and Cyprus Cumberland

Resources Corporation is hereby directed to pay a civil penalty
of $4,500 for the violation charged therein within 30 days of the
date of this decision. Order No. 3668593 is hereby vacated.

                                             Gary Melick
                                             Administrative Law Judge

D istribu tion:

A llison A nderson A cevedo, Esq., Office of the Solicitor, U.S. D ept. of La bor, G a tew a y Bld g .,
Room 14480, 3535 M a rk et Street, Phila delphia , PA 19104

R. Henry M oore, Esq., Bu cha na n Ing ersoll Professiona l Corp., One Oxford Centre, 301 Gra nt
Street, 2 0 th Floor, Pittsbu rg h, PA 15219
\ jf

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