Maple Creek Mining, Inc.

Plain-English summary

Maple Creek Mining operated a large underground coal mine in Pennsylvania. The Secretary alleged that the mine failed to maintain a belt structure, failed to post a danger sign, and allowed combustible coal dust to accumulate. The operator stipulated to the coal-dust violation and challenged its significant-and-substantial and unwarrantable-failure findings, while the parties settled the other two orders. Judge Jerold Feldman affirmed all three orders and assessed a total civil penalty of $17,000, including $6,000, $5,000, and $6,000 for the three orders.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.1725(a), § 75.363(a), and § 75.400
• Outcome: All three orders were affirmed, and a total $17,000 civil penalty was assessed.
• Key point: Extensive coal-dust accumulations, repeated similar violations, and prior notice supported the unwarrantable-failure finding.

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



                                       June 21, 2000

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. PENN 99-132
Petitioner : A. C. No. 36-00970-04131
v. :
: Maple Creek
MAPLE CREEK MINING INC., :
Respondent :

                                        DECISION

Appearances: Mark V. Swirsky, Esq., Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for the Petitioner;
Michael O. McKown, General Counsel, Maple Creek Mining, Inc.,
Bentleyville, Pennsylvania, for the Respondent.

Before: Judge Feldman

    This proceeding concerns a petition for assessment of civil penalty filed pursuant

to section 110(a) of the Federal Mine Safety and Health Act of 1977 (the Act), 30 U.S.C.
§ 820(a), by the Secretary of Labor (the Secretary) against the respondent, Maple Creek Mining,
Inc. (Maple Creek). The petition sought to impose a $6,000 civil penalty for each
of three 104(d)(2) Orders, constituting a total civil penalty of $18,000. 104(d)(2) Order
No. 3657936 concerns Maple Creek’s alleged failure to maintain a belt structure in safe
operating condition in violation of the mandatory safety standard in 30 C.F.R. § 75.1725(a).
104(d)(2) Order No. 3657937 cited Maple Creek for its alleged failure to post a pertinent danger
sign, as required by 30 C.F.R. § 75.363(a), for the purpose of alerting miners to the hazardous
conditions cited in Order No. 3657936. Finally, 104(d)(2) Order No. 3658016 cited Maple
Creek for numerous areas of combustible coal dust accumulations allegedly prohibited by the
mandatory safety standard in 30 C.F.R. § 75.400.1

   1
       Section 75.400 provides:

   Coal 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 diesel-powered and electric equipment therein.

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Page 2

   This matter was heard on April 4, 2000, in Morgantown, West Virginia, at which time

Maple Creek stipulated that it is a mine operator subject to the jurisdiction of the Act. 2 At the
hearing, the parties proposed a settlement agreement wherein Maple Creek agreed to pay the
$6,000 civil penalty proposed by the Secretary for 104(d)(2) Order No. 3657936, and to pay a
reduced civil penalty, from $6,000 to $5,000, in satisfaction of 104(d)(2) Order No. 3657937.
The terms of the settlement agreement, including Maple Creek’s agreement to pay a total civil
penalty of $11,000 for the subject two Orders, was approved on the record. (Tr. 4-6).

    Consequently, the remaining Order for disposition is 104(d)(2) Order No. 3658016

issued on October 29, 1998, for impermissible combustible coal dust accumulations at the New
Eagle section of the Maple Creek Mine. At the hearing counsel for Maple Creek stipulated that
the cited accumulations constituted a violation of 30 C.F.R. § 75.400. However, Maple Creek
challenges both the significant and substantial (S&S) designation of the violation, and the
Secretary’s assertion that the violation was attributable to its unwarrantable failure.

   I. The Secretary’s Case

   The Maple Creek Mine is a large, underground coal mine located in western

Pennsylvania. (Tr. 199). The New Eagle Mine is a single unit mine that is directly adjacent,
although not physically connected, to the Maple Creek Mine. The New Eagle Mine produces
a low sulfur blend coal for the Maple Creek Mine. (Tr. 196). The subject section of the
New Eagle Mine is a ten entry section. (Tr. 203).

    On September 15, 1998, Mine Safety and Health Administration (MSHA) Inspector

George Rantovich inspected the Maple Creek Mine. Rantovich was accompanied by MSHA
Supervisory Inspector Robert W. Newhouse of the Ruff Creek Field Office. (Tr. 146).
Newhouse has 33 years of experience in the mining industry and he has been employed by
MSHA for almost 24 years. (Tr. 145). During the course of his inspection, Rantovich observed
loose coal, fine coal and float coal dust accumulations on the mine floor, belt structure and
crosscuts in the No. 2 Mains. The accumulations included fine coal measuring 2 inches to 24
inches in depth that was in close proximity and contacting the moving tailrollers of the 1 East
Mains conveyor belt. Based on his observations, Rantovich issued 104(d)(1) Order No.
3657357, not in issue in this proceeding, alleging a violation of 30 C.F.R. § 75.400. (Gov. Ex.
3; Joint Stip. No. 11; Tr. 147).

   2
      On May 31, 2000, the Secretary filed an unopposed request to correct 12 errors in the

hearing transcript. The Secretary’s request is granted and the transcript is hereby amended to
reflect the subject corrections.

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Page 3

   Order No. 3657357 was issued to John Parker, Maple Creek’s assistant mine foreman

and belt foreman, at 11:05 a.m. on September 15, 1998. At that time, Rantovich and Newhouse
spoke to Parker about the importance of preventing accumulations, particularly around the
moving beltline. (Tr. 149, 165-166; Gov. Ex. 3).

    Upon completing the September 15, 1998, underground inspection, Rantovich and

Newhouse proceeded to the surface to meet with Maple Creek officials. Newhouse testified that
he told Mine Foreman Tony Bertovich and Safety Director Richard Marcavitch that "the cleanup
in the [belt] area . . . was just terrible. . . . It was just unacceptable. You can’t have
accumulations of coal like that in the mine. With all the ignition sources we have in there, it’s
just unheard of." (Tr. 150, 166).

    Although Newhouse could not recall the exact date, he testified that, several days after

the September 15, 1998, inspection, he also had a conversation with Jerry Taylor, Maple Creek’s
Corporate Safety Director, "about the lack of cleanup and lack of attention paid . . ." to the
beltline areas. (Tr. 151, 166)

   On a Saturday, approximately one to two weeks after Newhouse’s September 15, 1998,

aboveground meeting with Bertovich and Marcavitch, at the request of Maple Creek’s President,
Robert Murry, a meeting was held at the Maple Creek Mine between MSHA officials and Maple
Creek officials. Participants at the meeting included Newhouse, the MSHA District Manager
and Assistant District Manager, and Murry, as well as all of Maple Creek’s department heads
and supervisory employees. (Tr. 152, 166-167).

    MSHA’s Assessed Violation History Report reflects 50 citations were issued the

previous year, from October 6, 1997, through September 15, 1998, at the Maple Creek Mine for
impermissible coal dust accumulations. (Gov. Ex. 7). At the meeting, Newhouse talked about
the large number of violations of 30 C.F.R. § 75.400 at the mine and the need for the operator to
improve cleanup around the beltlines and in the sections. (Tr. 153-154). The discussion of the
need for compliance with 30 C.F.R. § 75.400 was a major part of the meeting. (Tr. 154).

   On October 29, 1998, MSHA Inspector Victor Patterson conducted an inspection of the

New Eagle section of the Maple Creek Mine. Patterson has been employed in the mining
industry for more than 30 years, and he has been a coal mine inspector for more than eight years.
As a mine inspector, Patterson has a variety of training, including specialized training regarding
the hazards associated with coal dust accumulations. (Tr. 34-38).

   Patterson’s inspection was in response to an employee complaint alleging

accumulations of coal, and a lack of cleanup and rock dusting at the New Eagle section of
the mine. The complaint was sent by facsimile to the Ruff Creek Field Office at 10:14 a.m.
on October 28, 2000, the day before Patterson’s inspection. The complaint was filed pursuant to
Section 103(g) of the Act, 30 U.S.C. § 813(g). (Tr. 39, 161). Patterson was aware of
Rantovich’s 104(d) order that had been issued the previous month for violative coal dust
accumulations. (Tr. 49).

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Page 4

     Patterson arrived at the mine at approximately 8:00 a.m. on October 29, 1998. (Tr. 40).

Patterson proceeded to the 043 portal of the New Eagle section, arriving on the section at
9:15 a.m. (Tr. 41). Patterson was accompanied by mine foreman Bertovich and union
representative Larry Harper. (Tr. 41). Upon arriving at the section, Patterson went to the belt
tailpiece in the No. 3 entry and observed accumulations of coal consisting of fine, loose dry coal
and float coal dust, black in color, beside the belt tail on both sides. The accumulations were
under the belt tail rollers and immediately outby the belt tailpiece. (Tr. 42). With Harper’s
assistance, Patterson measured the accumulations with a tape measure and determined them to
be approximately 4 feet wide by 4 feet long and up to one foot in depth. (Tr. 45). The first
tail roller outby on the bottom (return) of the belt was in contact with the accumulations.
(Tr. 43). Patterson testified that he did not recall the presence of a feeder in line with the
tailpiece. (Tr. 126). However, his contemporaneous notes reflect accumulations in contact
with the belt tail roller as well as along both sides of the feeder.3 (Tr. 43; Gov. Ex. 5, pp. 3-4).

    The belt at the tailpiece appeared to be out of alignment because it was rubbing against

the belt structure. (Tr. 52). As a result, Patterson noted the belt structure was too hot when
touched. (Tr. 42-43, 55, 127; Gov. Ex. 5, p. 3). Patterson testified he instructed Bertovich to
shut the belt down immediately after discovering the heat produced from the belt structure.
(Tr. 51). Given the combustible accumulations in proximity to the roller, Patterson considered
the misaligned belt as an ignition source. (Tr. 42). Patterson did not issue a separate citation
for the defective belt condition because he believed the 30 C.F.R. § 75.400 violation cited in
Order No. 3658016 was sufficient to encompass all of the hazards presented at the belt. (Tr. 59-
60).

     In addition to the 4 feet by 4 feet accumulations in the immediate vicinity of the return

tail roller, there was an accumulation of fine, loose coal and float coal dust 15 feet in length,
up to four feet in height, and four feet wide on both sides of the belt feeder. (Tr. 43; Gov. Ex. 5,
p. 4).4

   The accumulations observed by Mr. Patterson at the belt line were dry, and they had not

been rock dusted.5 Based on the extent of the accumulations in the vicinity of the tailpiece,

   3
     Maple Creek safety director Richard Marcavitch’s testimony reflects Patterson’s failure

to recall if a feeder was present is not a matter of evidentiary significance. (Tr. 218-221).
Moreover, Maple Creek has stipulated to the cited accumulations in proximity to the tail roller
in the No. 3 entry. (Joint Stip. 12(b)).
4
The accumulations along the belt line in the vicinity of the feeder are identified as
Location No. 2 in the parties’ Joint Stipulation No. 12(b), as well as on the mine maps admitted
as Gov. Ex. 6 and Resp. Ex. 3.

   5
     The operator had not rock dusted any of the 12 accumulations cited by the Secretary in

this proceeding. (Tr. 81, 101).

                                            745

Page 5

Patterson concluded the accumulations existed during the prior midnight shift of October 29,
1998. (Tr. 50). At the time of Patterson’s arrival on the section, no cleanup was taking place.
(Tr. 129).

    After observing the accumulations at the belt line, Patterson proceeded to ascertain

whether there were other accumulations as the complaint received by MSHA suggested the
presence of accumulations throughout the section. (Tr. 53). In addition to the beltline
accumulations, Patterson proceeded to find eleven other areas of accumulations. Ten of these
eleven other areas of accumulations were cited in 104(d) Order No. 3658016.6 The nature and
extent of these twelve areas of accumulations are not in dispute and have been stipulated to by
Maple Creek. (Joint Stip. Nos. 12(a) through 12(l)).

    The next accumulation observed by Patterson (Identified as Location No. 1 on

Gov. Ex. 6) was in the 0 entry at survey spad 2600 about 300 feet from the face. (Joint Stip.
No. 12(a); Tr. 55; Gov. Ex. 1, Gov. Ex. 6). The accumulation consisted of fine, loose coal and
float coal dust up to 24 inches deep, three feet wide, and 54 feet in length. The accumulated coal
was mostly dry, black in color, and it had not been rock dusted. If there were an ignition in the
mine, the material in this accumulation would help propagate a fire. (Tr. 57).

    Patterson opined that there had been no mining in the area for a "few days". It appeared

that the accumulation had simply been left behind when the area was mined. (Tr. 55, 58;
Gov. 5, p. 5). In fact, Marcavitch, Maple Creek’s safety director, testified that mining in the
vicinity of spad 2600 had been completed a few weeks earlier. (Tr. 215).

    The next accumulation Patterson observed was in the Number 1 entry at the intersection

with the Number 77 crosscut, 100 feet outby the face (identified as Location No. 3A on Gov.
Ex. 6). The accumulation measured 18 feet by 18 feet and up to 18 inches deep. (Tr. 64-66).
The accumulation did not result from recent mining as the continuous mining machine was
located at the other side of the section in the Number 8 entry, and the face area had already been
cleaned. (Tr. 64-65). The accumulation consisted of loose, fine coal, ground up coal, and coal
dust. It was dry, black in color, and had not been rock dusted. (Tr. 67). The subject area was
one where mining equipment would travel during normal mining operations, including the
mining machine, shuttle cars, bolting machines, and scoops. (Tr. 66). Ignition sources were
present such as electrical cables and the mining equipment itself. (Tr. 67).

    Patterson next noted an accumulation in the last open crosscut from the No. 1 to the No.

2 entry, 18 inches by 18 inches along both ribs and 36 feet in length (identified as Location No.
3B on Gov. Ex. 6). Mr. Patterson estimated this area had been mined two to three shifts earlier.
(Tr. 68). The accumulation consisted of fine, loose coal and float coal dust. It was dry, black in
color, and it was not rock dusted. The subject area was one where the continuous mining
machine, shuttle cars, bolting machines, and scoops would travel during normal mining

   6
     Order No. 3658016 was amended at the hearing to include an area of accumulations in

the No. 77 crosscut between the No. 2 and 3 entries. See fn. 6, infra.

                                           746

Page 6

operations. Ignition sources were present such as electrical cables and the mining equipment
itself. (Tr. 72).

    Patterson also found an accumulation in crosscut 77 (the last open crosscut) between the

Number 2 and 3 entries, 68 feet outby the face (identified as Location No. 3C in Gov. Ex. 6).
(Tr. 75).7 The accumulation measured 36 feet in length, 18 inches deep, and approximately
18 feet wide, along both ribs and occupying nearly the entire crosscut. (Tr. 73). In addition,
there was an additional accumulation, located along the right rib from crosscut 77 to the face, of
fine, loose dry coal and float coal dust. The material was dry, black in color, up to 18 inches
deep, 18 inches wide, and 68 feet in length. (Gov Ex. 5, p. 7, Gov. Ex. 6; Tr. 76-77.) Both of
the accumulations described in this paragraph are included within Location No. 3C. The dry
nature of the material in accumulation 3C is representative of all 12 of the accumulations cited
by Patterson with the exception of Location Nos. 4 and 6 that were wet. (Tr. 77-78).

    Patterson next encountered a lengthy accumulation in the Number 3 entry, which had not

been cleaned or scooped for a distance of about 100 feet (identified as Location No. 4 on Gov.
Ex. 6). The accumulation extended up to 20 feet outby crosscut 77, the last open crosscut, and
consisted of loose, fine coal, up to 18 inches deep from rib to rib. (Gov Ex. 1, Gov. Ex. 5, p. 8;
Tr. 78). Patterson approximated the length of this accumulation by counting roof bolts which
were put in on four foot centers. (Tr. 79; Gov Ex. 5, p.8). The subject area was one where
mining equipment would travel during normal mining operations. Ignition sources were present
such as electrical cables and the mining equipment itself. (Tr. 72, 79).

    Patterson also noted accumulations in the Number 4 entry up to 160 feet in length,

18 feet wide, and up to 12 inches in depth (identified as Location No. 5 on Gov. Ex. 6). This
accumulation was similar to the others cited by Patterson, except for the unusually long length.
(Tr. 83-84, 86). In this entry Maple Creek had scooped out the last 40 feet down the middle of
the entry (leaving material along the ribs), but had left a 160 feet long area behind the partially
cleaned area that had not been cleaned at all. (Tr. 86-89; Gov. Ex. 5, p. 9).

    Patterson next observed an accumulation in crosscut 77 between the No. 3 and No. 4

entries (identified as Location No. 6 on Gov. Ex. 6).8 The accumulation consisted of fine, loose
coal and float coal dust, black in color, up to 18 feet wide and 12 inches deep. (Gov. Ex 1, Gov.
Ex. 5, p. 9). Compared to the other eleven accumulations cited by Patterson, this accumulation
was unusually deep, up to three feet in depth along the ribs. According to Patterson, the area
"was never cleaned up whatsoever. It was just left, otherwise there wouldn’t have been that
much accumulation there." (Tr. 91-92).

   7
     Location 3C was described in Patterson’s notes and appears on the mine map in

Gov. Ex. 6. However, it was not included in the original order. The order was amended without
objection at the beginning of the hearing to include this accumulation. (Tr. 20).
8
Although Maple Creek does not challenge the nature and extent of the accumulation,
it contends the accumulation was in crosscut 77 between the No. 4 and No. 5 entries. (Tr. 89).

                                            747

Page 7

    There was also an accumulation located in the No. 5 entry (identified as Location No. 7

on Gov. Ex. 6). The accumulation consisted of fine loose coal and float coal dust, black in
color, along both ribs. It was 18 inches deep, 18 inches wide, and up to 70 feet in length. (Gov.
Ex.. 1, Gov. Ex. 5 at p. 10, Gov. Ex. 6). There was a roof bolting machine and trailing cable in
this area that provided a potential ignition source. (Tr. 92-93). Although Patterson observed
that cleaning in this entry at survey spad 2950 had begun, the cleaning efforts were occurring
approximately two hours after Patterson’s arrival at the mine, and about forty-five minutes after
his arrival at the section. (Tr. 93-94).

    Patterson proceeded to observe an accumulation in crosscut 77 between entries 5 and 6

(identified as Location No. 8 on Gov. Ex 6). The accumulation consisted of fine, loose coal and
float coal dust, black in color. The material was along both ribs and was up to 18 inches deep,
18 inches wide, and 36 feet in length. (Gov. Ex. 1, Gov. Ex. 5, p. 10, Gov. Ex. 6).

    The next accumulation was in the Number 6 entry, inby the 77 crosscut all the way to the

face, a distance of about 100 feet (identified as Location No. 9 on Gov. Ex. 6) . The
accumulation was 12 inches deep along the ribs, and consisted of loose, fine coal, and float coal
dust, black in color. (Tr. 96-97; Gov. Ex 1, Gov. Ex. 5, p. 11, Gov. Ex. 6). There was an
accumulation of coal and coal dust up to four feet in depth along the right rib, which was the
deepest accumulation Mr. Patterson observed. (Tr. 99). An accumulation of this depth presents
a health hazard from dust inhalation as well as a fire and an explosion hazard. (Tr. 100).
Patterson also noted an accumulation along the left rib of the 7 entry (identified as Location No.
10 on Gov.
Ex. 6) . The accumulation consisted of fine, loose coal and float coal dust up to 18 inches deep
and 40 feet in length. (Tr. 97; Gov. Ex. 1, Gov. Ex. 5, p. 12, Gov. Ex. 6).

   The next accumulation observed by Patterson was in the No. 77 crosscut between the

number 7 and 8 entries (identified as Location No. 11 on Gov. Ex. 6). The accumulation
consisted of fine, loose coal and float coal dust, 12 inches deep along both ribs and up to
18 inches wide. (Tr. 98; Gov. Ex. 1, Gov. Ex. 5, p. 12, Gov. Ex. 6).

   As with many of the other accumulations, accumulations identified as Nos. 9, 10, and 11

occurred in areas where mining equipment would be used during normal mining operations.
(Tr. 101). These accumulations had the same characteristics as nearly all the other
accumulations -- black in color; fine, loose coal, and float coal dust.

    Although Maple Creek apparently did not have a written cleanup plan, as a general

proposition, under a normal mining cycle, mine operators clean to within the last 40 feet of the
last cut at the face, rock dust, and maintain the area. (Tr. 109). Although Patterson previously
had observed Maple Creek clean each entry as the face was advanced, based on his observations
on the morning of October 29, 1998, Patterson concluded Maple Creek was driving all ten
entries before coming back to perform an adequate cleanup. Patterson opined such a practice is
hazardous and unacceptable. (Tr. 137-138, 141).

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Page 8

    Patterson determined there were a total of 13 miners working on the section at the time

of the inspection who were exposed to the violative coal dust accumulations cited in 104(d)
Order No. 3658016. (Gov. Ex. 1; Tr. 101).

    Patterson testified that he made a gravity finding of "significant and substantial" based on

the following factors: the amount and extent of the accumulations, the locations, the heat source
presented at the conveyor belt, and the presence of mining equipment which would move
through the accumulation areas. In particular, Patterson considered the bit of the roofbolter
drilling into the roof as a potential source of sparking. Furthermore, Patterson concluded the
large amount of coal dust itself posed a health hazard. (Tr. 101-103, 130).

    With respect to the unwarrantable failure issue, Patterson testified that he considered the

violation attributable to an unwarrantable failure for many reasons. As a threshold matter,
Patterson concluded the cited accumulations had existed "for a considerable period of time"
based on their locations extending a considerable distance from the face.9 (Tr. 107). Patterson
believed the No. 2 through No. 7 entries had been cut during the previous three shifts during
which time travel over the accumulations occurred as the faces in each entry advanced. (Tr. 66,
69, 107).

     In addition, face boss Greg Miller’s initials were marked on the date board in the 0 entry

between the 75 and 76 crosscuts at 9:00 a.m., on October 29, 1998. There was also a date board
at the tailpiece feeder of the conveyor belt. Despite the evidence of onshift examiners in the
vicinity of prohibited examinations, no efforts were made to clean the accumulations until after
Patterson arrived on the section. (Tr. 106, 222-223). Based on Maple Creek’s admission that
some of the accumulations existed since at least the midnight shift, the accumulations should
have been noted and ordered to be cleaned by the preshift examiner. (Tr. 104-106, 130).

    Patterson considered Maple Creek’s violation history, Rantovich’s order citing a

30 C. F.R. § 75.400 only six weeks before citing similar accumulations in the vicinity of the
tailpiece, and repeated meetings with company officials that placed Maple Creek on notice that
greater cleanup efforts were required, as additional evidence that Maple Creek’s conduct was
unwarrantable. (Tr. 69, 106-107).

    As a final matter, Patterson testified, notwithstanding the eleven additional areas of

accumulations, he would have issued an unwarrantable failure order based solely on the first
accumulation observed at the tail of the conveyor belt due to the extent of the accumulation and
its proximity to the belt roller and the hot belt structure. (Tr.108).

   9
      The Commission has determined the duration of accumulations may be established

through circumstantial evidence, and that an inspector need not possess actual knowledge of the
length of time the accumulations existed. Windsor Coal Company, 21 FMSHRC 997, 1002-1003
(September 1999).

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Page 9

    Clete R. Stephan was called by the Secretary as an expert witness. (Tr. 173-174).

Stephan has been employed as a mine engineer by MSHA for 23 years. (Tr. 173; Gov. Ex. 8).
Stephan is one of only two certified mine fire and explosion investigators in the United States.
(Tr. 173). He has conducted 52 investigations of mine fires and explosions. (Tr. 173; Gov.
Ex. 8). He also has written 29 reports on fires and explosions, and he has conducted extensive
training classes on fire and explosion hazards before government and industry groups. (Gov.
Ex. 8).

    Stephan testified there are three prerequisites for a fire -- fuel, heat, and oxygen. These

three elements are known as the "fire triangle." (Tr. 175-176). Stephan testified that the oxygen
required for a fire or explosion is always present in a mine. (Tr. 177-178). Fuel is also an ever
present hazard in the form of coal accumulations. (Tr. 178, 180). Ignition sources in an
underground mine include heat from hot belt rollers and arcing from electrical cables on mining
equipment. (Tr. 178, 185-186).

    Stephan opined there was an enhanced danger of fire in the cited areas because of the

accumulations which increased the exposure of fuel to potential ignition sources. (Tr. 179).
Where there is an accumulation of coal, air can flow through the loose material more easily,
thereby bringing additional oxygen to a fire and feeding a flame. (Tr. 186). In a fire, any size
particle of coal can become involved. (Tr. 185). A hot roller on a beltline, and movement of
equipment through a mining section, present ignition sources that accentuate the hazard.
(Tr. 185-186).

    In addition to the three elements for a fire, Stephan testified two additional elements are

necessary for an explosion -- suspension of the fuel and confinement. These five elements - -
fuel, heat, oxygen, suspension and confinement - - are known as the "explosion pentagon".
(Tr. 175-176). Stephan explained that, by its very nature, the underground mine environment
provided the containment necessary for an underground explosion. (Tr. 187).

     With respect to the remaining element of suspension, Stephan stated that the "relatively

extensive" cited accumulations "would make explosion propagation so much easier because the
fuel is readily available and can easily be suspended and ignited." (Tr. 189). In this regard,
Stephan calculated that it would take approximately ten cubic feet of coal dust to engulf the
entire New Eagle section inby the last open crosscut in the flame of an explosion. Stephan
calculated that, by considering only the top half-inch of the accumulations cited by Patterson as
material capable of suspension, there was a potential for 350 cubic feet of coal dust that could be
put in suspension. (Tr. 181-184).

   Finally, Stephan testified, in the event of a fire or explosion at the mine, fatal injuries

would result to people in the explosion zone. He stated that anywhere the explosion flame
would travel, fatalities would likely result because the explosion consumes all available oxygen.
Even if people did not succumb to the heat of the flame or the force of the explosion, they would
die from lack of oxygen and inhalation of the toxic products of combustion. (Tr. 189). In
Stephan’s expert opinion, the three elements necessary for a fire, and the five elements necessary

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Page 10

for an explosion, were present under the conditions described in Patterson’s 104(d) order. (Tr.
175-178, 190).

   II. Maple Creek’s Case

   As previously noted, Maple Creek has stipulated that the subject twelve areas of

accumulations constitute a violation of the mandatory safety standard in 30 C.F.R. § 75.400.
However, Maple Creek contests the "significant and substantial" designation, as well as the
Secretary’s assertion that the violation is attributable to its unwarrantable failure. (Tr. 194).

   Maple Creek called safety director Richard Marcavitch and section foreman (face boss)

Gregg Miller to testify on its behalf. Marcavitch did not arrive at the New Eagle section until
approximately 10:00 a.m. on October 29, 1998, about one hour after Patterson’s inspection
began. (Tr. 201). Marcavitch arrived on the section after Patterson had instructed mine
foreman Tony Bertovich to de-energize the tailpiece because it was in close proximity to coal
dust accumulations around the tail roller. (Tr. 202).

    Marcavitch also did not have direct knowledge about when cleanup of the cited

accumulations would have occurred if Patterson had not inspected the section. (Tr. 235). The
priority given to removing accumulations was determined by Bertovich or Miller. Bertovich
did not testify, and Miller did not testify concerning any cleanup activities other than at the
conveyor belt. (Tr. 237, 279).
.
Upon arriving on the section Marcavitch did travel to the tailpiece because cleanup had
already begun in that area. (Tr. 202, 214). Rather, Marcavitch proceeded to observe
accumulations already seen by Patterson in the zero entry, in the No. 1 entry, in the two to one
cut-through, and in the No. 2 entry. After observing the No. 2 entry, Marcavitch joined
Patterson and Bertovich who were walking through the section together. (Tr. 202).
The New Eagle section is a ten entry section. Equipment on the section consists of a Joy
scrubber remote continuous miner, two Fletcher twin boom roofbolters, three shuttle cars, and
three scoop tractors. One scoop is dedicated to hauling supplies from the surface to the mine.
The remaining two scoops are kept on the section for cleanup, with one in use and one on
charge. (Tr. 204).

     The mine cutting sequence is from the zero entry to the No. 9 entry. The length of cuts

in each entry varies from zero to as long as 40 feet. (Tr. 205). Marcavitch testified that the New
Eagle section has a 25 feet long Stamler feeder attached to the tailpiece. (Tr. 208). Marcavitch
approximated the last inby set of rollers was four to five feet from the end of the tailpiece
structure. (Tr. 212). Marcavitch stated that coal accumulations typically occur at the end of the
tailpiece where spillage occurs when coal is transferred from the feeder to the somewhat lower
conveyor belt. (Tr.210, 212-213). Marcavitch stated ". . . based on my experience . . . when
you have a problem with a feeder being on [the tailpiece] your accumulations will show up
first directly underneath the tailpiece in contact with the tailroller." (Tr. 220). Marcavitch
conceded a malfunctioning roller could be a source of heat. (Tr. 220). However, he stated that

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his ". . . understanding was, what was warm was what Mr. Patterson was saying was the
structure [of the tailpiece]" rather than the rollers. (Tr. 213).

   Marcavitch , referring to the numerical designations on the mine map admitted into

evidence as Gov. Ex. 6, testified about when each area where cited accumulations were located
was mined. Marcavitch stated Location No. 1 was mined "a couple of weeks before;" Location
Nos. 3, 3c, 4, 7, 9, and 10 on the midnight shift; Location No. 5 half-mined on the midnight shift
and half-mined on the previous afternoon shift. (215-217).

    Marcavitch did not dispute that the accumulations cited by Patterson existed at the time

Miller performed his onshift examination at 9:00 a.m. on October 29, 1998. (Tr. 222-223).
Miller also performed the preshift examination earlier that morning at 5:00 a.m. (Tr. 215). It is
apparent that at least some of the accumulations noted by Patterson existed at the time of
Miller’s preshift examination. There is no evidence of any preshift or onshift examination
notations alerting personnel that cleanup efforts were required on the section.

    Maple Creek’s description of its mining-cleanup cycle was equivocal. Counsel for

Maple Creek stated its cleanup cycle began after all the entries inby the last open crosscut had
been mined and roof bolted. (Tr. 228). Marcavitch indicated that when areas of the section
were cleaned was "kind of a floating thing." (Tr. 235). He testified, "[we clean up] as soon as
[we] could get to it. It may be two or three entries . . . Depending on what was going on with
the section." (Tr. 235).

    Marcavitch stated the section would have been cleaned sooner if Maple Creek’s scoops

had not broken down. One scoop reportedly developed electrical problems on the afternoon
shift of October 28, 1998. The second scoop reportedly was taken out of service during the
midnight shift due to a broken bucket. The remaining scoop normally used to haul materials
into the mine was reportedly taken out of service during the day shift of October 29, 1998,
because of a battery problem. (Tr. 237-243). However, the thrust of Marcavitch’s testimony
was that at all times during the several shifts preceding Patterson’s inspection at least one scoop
(the haulage scoop) was available for cleanup.

    In fact, Marcavitch conceded the reported scoop problems were not the main reason for

the lack of cleanup. Marcavitch testified:

   The Court:      Okay. So what I’m trying to distinguish is whether
                   or not the [cited accumulations] weren’t cleaned up
                   . . . because scoops weren’t available, assuming
                   that’s a defense, or whether or not they weren’t
                   cleaned up because Maple Creek hadn’t gotten to it
                   yet? It seems to me you’re saying essentially they
                   hadn’t been cleaned up because Maple Creek just
                   hadn’t gotten to it yet; is that correct?.




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   Marcavitch:     I would say that would probably be a correct
                   statement.

(Tr. 244).

    Marcavitch went on to explain that Maple Creek does not place any priority on cleaning

an entry once it has been mined and roof bolted and the equipment has been removed from the
face in that entry until equipment returns to take an additional cut. (Tr. 257-260).

     Greg Miller testified that the spillage at the tailpiece occurred after the feeder had been

knocked off the tailpiece by a shuttle car during the midnight shift. (Tr. 265). Miller testified
that, prior to Patterson’s arrival on the section, the belt had been turned on and off to remove the
spillage. Miller testified he could not recall Patterson instructing Bertovich to shut the belt
down. (Tr. 279). Miller also testified he did not see Patterson touch the belt structure to
determine if it was hot. (Tr. 276). As previously noted, Maple Creek did not call upon
Bertovich to testify.

   III. Further Findings and Conclusions

   Maple Creek has stipulated to the fact of occurrence of the violation of 30 C.F.R.

§ 75.400 cited in 104(d)(1) Order No. 3657357. The remaining issues of whether the violation
was properly characterized as S&S, and whether it was unwarrantable will be discussed in turn.

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           A. Significant and Substantial

    A violation is properly designated as S&S in nature if, based on the particular facts

surrounding that violation, there exists a reasonable likelihood that the hazard contributed to by
the violation will result in an injury or an illness of a reasonably serious nature. Cement
Division, National Gypsum, 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co.,
6 FMSHRC 1 (January 1984), the Commission explained:

   In order to establish that a violation of a mandatory safety standard is significant
   and substantial under National Gypsum, the Secretary of Labor 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 [by the violation] will
   result in an injury; and (4) a reasonable likelihood that the injury in question will
   be of a reasonably serious nature. 6 FMSHRC at 3-4.

See also Austin Power Co. v. Secretary, 861 F.2d 99, 104-05 (5th Cir. 1988), aff'g 9 FMSHRC
2015, 2021 (December 1987) (approving Mathies criteria).

 In United States Steel Mining, Inc., 7 FMSHRC 1125, 1129, (August 1985), the

Commission explained its Mathies criteria as follows:

   We have explained further that 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). We have emphasized that, in accordance
   with the language of section 104(d)(1), it is the contribution of a violation to the
   cause and effect of a hazard that must be significant and substantial. U.S. Steel
   Mining Company, Inc., 6 FMSHRC 1866, 1868 (August 1984).

    The Commission subsequently reasserted its prior determinations that as part of any

"S&S" finding, the Secretary must prove the reasonable likelihood of an injury occurring as a
result of the hazard contributed to by the cited violative condition or practice. Peabody Coal
Company, 17 FMSHRC 508 (April 1995); Jim Walter Resources, Inc., 18 FMSHRC 508
(April 1996).

    Resolution of whether a particular violation of a mandatory safety standard is S&S

in nature must be made assuming continued normal mining operations. U.S. Steel Mining,
7 FMSHRC 1125, 1130 (August 1985). Thus, consideration must be given to both the time
frame that a violative condition existed prior to the issuance of citation, and the time that it
would have existed if normal mining operations had continued. Bellefonte Lime Co.,
20 FMSHRC 1250 (November 1998); Halfway, Inc, 8 FMSHRC 8, 12 (January 1986).

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    With regard to the first element of Mathies, Maple Creek has stipulated that the

numerous and extensive accumulations that are cited in 104(d)(1) Order No. 3657357 constitute
impermissible combustible accumulations prohibited by the mandatory safety standard in
30 C.F.R. § 75.400. Because coal dust accumulations are combustible, if combustion were to
occur, i.e., fire or explosion, there is a reasonable likelihood that miners would sustain serious
injury. Moreover, Stephan’s testimony concerning the propagation effects of widespread
accumulations clearly satisfies the second and fourth elements of the Mathies test regarding a
discrete safety hazard and the potential for serious injury.

    The remaining criterion, a reasonable likelihood that the combustion hazard caused by

the violation will result in serious injury, requires examining whether there was a "confluence of
factors" present based on the particular facts surrounding the violation that would make a fire,
ignition or explosion reasonably likely. Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1988).
Some of these factors include the extent of the accumulations, possible ignition sources, the
presence of methane, and the type of equipment in the area. Enlow Fork Mining Co., 19
FMSHRC 5, 9 (January 1997) citing Utah Power & Light Co., 12 FMSHRC 965, 970-71 (May
1990); Texasgulf Inc., 10 FMSHRC at 500-03.

     Stephan’s testimony, as well as common sense, supports the conclusion that there is a

positive correlation between the likelihood of injury resulting from the presence of combustible
accumulations in an underground mine and the extensiveness of the accumulations. In this
regard, Stephan’s professional opinion that the "relatively extensive" cited accumulations
"would make explosion propagation so much easier because the fuel is readily available and can
easily be suspended and ignited" is compelling. (Tr. 189). Likewise, Stephan’s calculations that
the top half-inch of the accumulations cited by Patterson provided a potential for 350 cubic feet
of coal dust that could be put in suspension, while only ten cubic feet of coal dust was necessary
to engulf the entire New Eagle section inby the last open crosscut in the flame of an explosion,
illustrates the magnitude of the danger posed by the cited extensive accumulations. (Tr. 181-
184). Although there was no evidence of significant levels of methane in the New Eagle section,
the extensive accumulations provided the fuel for fire, or, for propagation of an explosion that
had originated in another area of the mine.

    Ignition sources in the form of malfunctioning electrical mobile equipment, defective

electrical cables, misaligned belts and defective rollers, and heat generated by the continuous
miner bits during mining, are ever present hazards in an underground mine. While these sources
of ignition are frequently unforeseen, safety dictates that reasonable efforts must be made to
minimize sources of fuel. Disregarding, for the moment, the accumulations around the hot belt
structure, Maple Creek’s failure to minimize fuel sources by leaving accumulations in six entries
and several crosscuts exponentially added to the likelihood of injury in this case.

     With regard to the tailpiece area in the No. 3 entry, I credit Patterson’s testimony,

supported by his contemporaneous notes, that the belt structure at the tailpiece was hot, and that
this structure and its rollers were in close proximity to combustible accumulations. Moreover, as
previously noted, Maple Creek has stipulated to the cited accumulations in the vicinity of the
tailpiece. Patterson’s inability at trial to recall whether there was a feeder in front of the

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tailpiece has no material impact on his credibility, or, on the considerable weight that should be
accorded to his testimony.

   In sum, when viewed in the context of continuing mining operations, especially in view

of Maple Creek’s demonstrated lack of commitment to promptly remove accumulations, the
evidence amply reflects that there was a reasonable likelihood that the fire and propagation
hazard contributed to by the extensive accumulations in this case will result in an event (a fire
and/or explosion) causing serious or fatal injury. AMAX Coal Company, 19 FMSHRC 846, 449
(May 1997) (a belt running in coal is a "dangerous condition that poses the threat of fire).
Consequently, the S&S nature of the subject section 75.400 violation shall be affirmed.

           B. Unwarrantable Failure

   The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C.

§ 814(d), and refers to more serious conduct by an operator in connection with a violation.
In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at
2001. Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. At 2003-04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving the Commission’s unwarrantable failure
test).

    The Commission has identified various factors in determining whether a violation is

unwarrantable, including the extent of the violative condition, the length of time that it has
existed, whether the violation is obvious, whether the operator has been placed on notice that
greater efforts are necessary for compliance, and the operator’s efforts in abating the violative
condition. Windsor Coal Company, 21 FMSHRC at 1000; Mullins & Sons Coal Co., 16
FMSHRC 192, 195 (February 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (August
1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC
1596 1603 (July 1984). The Commission also considers whether "the violative condition is
obvious, or poses a high degree of danger." Windsor Coal Company, 21 FMSHRC at 1000;
BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (August 1992).

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    Repeated similar violations may be relevant to an unwarrantable failure determination to

the extent that they serve to put an operator on notice that greater efforts are necessary for
compliance with a standard. Peabody, 14 FMSHRC at 1263-64. Finally, warnings and directives
given at prior meetings between MSHA and mine management also place the operator on notice
that greater efforts at compliance are necessary. Amax Coal Co.,
19 FMSHRC at 851; Jim Walter Resources, 19 FMSHRC 480, 485-486 March 1997);
Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1232 (June 1994); Enlow Fork Mining,
19 FMSHRC 9, 16, (January 1997); Doss Fork Coal Co, 18 FMSHRC 122, 125 (February
1996).

    At the outset, I note that Maple Creek had a frequent history of similar section 75.400

violations. Moreover, Maple Creek’s meetings with MSHA personnel, attended by assistant mine
foreman and belt foreman John Parker, mine foreman Tony Bertovich, safety director Richard
Marcavitch, corporate safety director Jerry Taylor, and Robert Murry, Maple Creek’s President,
should have been a stark reminder that greater efforts were required to fulfill Maple Creek’s
obligation under section 75.400 to not permit combustible accumulations to accumulate in
working sections.

    Despite being on notice, Maple Creek’s has proffered unconvincing and contradictory

explanations for the conditions observed by Patterson on October 29, 1998. Although Maple
Creek has attempted to attribute the conditions observed by Patterson in its New Eagle section to
an unavailability of scoops, Marcavitch’s testimony reflects that at all times prior to Patterson’s
inspection at least one scoop (the haulage scoop), and sometimes two scoops, were available for
cleaning. Moreover, the Commission has held that the unavailability of a scoop does not relieve
an operator of its obligation to shovel impermissible combustible accumulations. Mullins & Sons,
16 FMSHRC at 195. In this regard, Newhouse testified that he previously had informed
Bertovich that Maple Creek was responsible for shoveling accumulations in the event of
inoperable scoops. (Tr. 165).

    In addition, Maple Creek initially asserted that the accumulations had not been cleaned

because the mining cycle had not been completed. This explanation is equally unavailing.
Generally speaking, a mining cycle is completed after an entry has been driven approximately
40 feet by the continuous miner and roof bolted, at which time the equipment is withdrawn from
the entry so that the entry can be cleaned by scoop and rock dusted. (Tr. 109, 137, 140-141, 216,
259). See also Jim Walter Resources, 11 FMSHRC 21, 26 (January 1989). However, when it
became clear that the accumulations, ranging up to 160 feet in length, located in the full length of
the No. 2 through No. 7 entries inby the last open crosscut, had existed for more than one shift,
Maple Creek’s definition of a mining cycle changed. Maple Creek’s latest version of its cleanup
cycle is that it does not clean an entry that has been mined and roof-bolted until equipment
returns to that entry to take an additional cut. (Tr. 257-260). However, this assertion does not
explain accumulations varying from 70 to 160 feet in the No. 3, No. 4, No. 5 and No. 6 entries.
(Tr. 140-141; Gov. Exs. 1, 6). Rather, in the final analysis, Maple Creek’s cleanup policy
appears to be as safety director Marcavitch described it at trial - - that entries are left uncleaned
until Maple Creek "can get to it," and that there is no time period "set in stone" for cleaning

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accumulations. (Tr. 235, 257-258). Such a lack of discipline is indicative of an indifference
that alone warrants a finding of an unwarrantable failure.

    In short, Maple Creek’s history of fifty section 75.400 violations in the year preceding

the subject Order; Maple Creek management’s awareness, through its meetings with MSHA
officials, that greater compliance efforts were necessary; the extensive and obviousness nature of
the accumulations; despite being on notice, the fact that the accumulations were not removed
during the normal mining cycle but were allowed to exist for several shifts; and the danger posed
by combustible accumulations in proximity to a hot belt structure; when viewed together,
warrant the conclusion that Maple Creek’s conduct evidenced an unwarrantable failure.

   IV. Civil Penalty

    Section 110(i) of the Mine Act provides the statutory criteria for determining the

appropriate civil penalty to be assessed. Section 110(i) provides, in pertinent part, in assessing
civil penalties:

   the Commission shall consider the operator’s history of previous violations, the
   appropriateness of such penalty to the size of the business of the operator
   charged, whether the operator was negligent, the effect on the operator’s ability to
   continue in business, the gravity of the violation, and the demonstrated good faith
   of the person charged in attempting to achieve rapid compliance after notification
   of a violation.

    The parties have stipulated that Maple Creek is a large operator with annual production

in excess of two million tons of coal at the time of the proposed assessment. (Joint Stip. No. 8;
Tr. 12). The parties have also agreed that payment of the $6,000 civil penalty proposed by the
Secretary will not affect Maple Creek’s ability to continue in business. (Joint Stip. No. 7).
Maple Creek has provided no evidence of significant mitigating circumstances that would
warrant a reduction in penalty. As discussed above, the violation is serious in gravity given the
reasonable likelihood of serious injury. Moreover, Maple Creek’s conduct was unwarrantable
when viewed in the context of its history of similar violations, and prior notice that greater
efforts to achieve compliance with section 75.400 were required. Maple Creek’s efforts to
achieve abatement by assigning ten employees to remove the cited accumulations for five hours,
only after mining operations were halted as a consequence of the 104(d) order, does not provide
a basis for a reduction in penalty. Accordingly, consistent with the statutory penalty criteria,
the $6,000 civil penalty initially proposed by the Secretary shall be assessed for 104(d)(2)
Order No. 3658016.

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                                          ORDER

    In view of the above, IT IS ORDERED that 104(d)(2) Order No. 3658016

IS AFFIRMED, and Maple Creek Mining, Inc., shall pay a $6,000 civil penalty in
satisfaction of said order.

    IT IS FURTHER ORDERED, consistent with the parties’ settlement agreement, that

104(d)(2) Order Nos. 3657936 and 3657937 ARE AFFIRMED, and Maple Creek Mining, Inc.,
shall pay a $6,000 civil penalty in satisfaction of 104(d)(2) Order No. 3657936, and a $5,000
civil penalty in satisfaction of 104(d)(2) Order No. 3657937.

    ACCORDINGLY, IT IS FURTHER ORDERED that Maple Creek Mining, Inc.,

shall pay a total civil penalty of $17,000 in satisfaction of the three 104(d)(2) orders that are the
subjects of this proceeding. Payment shall be made within 40 days of the date of this decision.
Upon timely payment of the entire $17,000 civil penalty, IT IS ORDERED that this matter
IS DISMISSED.

                                           Jerold Feldman
                                           Administrative Law Judge

Distribution:

Mark V. Swirsky, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630 East,
The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106-3306
(Certified Mail)

Michael O. McKown, General Counsel, Maple Creek Mining, Inc., 29525 Chagrin Blvd.,
Suite 111, Pepper Pike, OH 44122 (Certified Mail)

/mh

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