Drummond Company

Plain-English summary

The Commission remanded Drummond Company's consolidated contest proceedings for reconsideration of whether an accumulation violation resulted from unwarrantable failure. The Commission directed the Judge to consider Drummond's reason to know about the accumulations, its mitigation efforts, and whether abatement could have been completed promptly. Judge Avram Weisberger found that workers cleaned under the belt but did not clean under the drive and take-up rollers, which required shutting off the belt and removing guards. He concluded that Drummond's violation resulted from unwarrantable failure.

Decision snapshot

• Cited standards: No specific Mine Act or regulatory provision is identified in the released text.
• Outcome: On remand, the Judge found that the violation resulted from Drummond's unwarrantable failure.
• Key point: The remand analysis focused on what Drummond knew or should have known, the limits of its cleanup efforts, and the time needed to complete abatement.

Full text (FMSHRC public release)

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

DRUMMOND COMPANY, CONTEST PROCEEDINGS
CONTESTANT
Docket No. SE 91-10-R
v. Citation No. 3020151; 10/4/90

SECRETARY OF LABOR, Docket No. SE 91-11-R
MINE SAFETY AND HEALTH Citation No. 3020153; 10/4/90
ADMINISTRATION (MSHA),
RESPONDENT Mine I.D. 01-00821

                  DECISION ON REMAND

Before: Judge Weisberger

 On January 14, 1991, I issued a Decision with regard to

these consolidated cases and, with regard to Docket 91-10-R,
found inter alia that the violation cited therein was not the
result of Drummond's unwarrantable failure. On September 20,
1991, the Commission vacated the finding of no unwarrantable
failure, and remanded the matter for reconsideration of the issue
of Drummond's unwarrantable failure. (Drummond Company
Incorporated, 13 FMSHRC ______, Docket Nos. SE 91-10-R and SE
91-11-R, slip op., September 21, 1991). On September 25, 1991,
arrangements were made by the undersigned to convene a telephone
conference call with counsel of both parties on October 2, 1991.
On October 2, 1991, the telephone conference call was held, and
the parties were given an opportunity to submit a brief with
regard to the issues raise by the Commission's remand. Time was
allowed until October 21, 1991, for the parties to submit their
briefs. Each party filed its submission on October 21, 1991, and
these were received by the Commission on October 24, 1991.

 In vacating the finding of no unwarrantable failure that I

made in my initial Decision, and remanding for reconsideration,
the Commission provided as follows:

      On remand, the judge, in determining whether the
      violation arose as a result of Drummond's unwarrantable
      failure, should weigh the evidence in light of
      Drummond's actions in the context that it had reason to
      know of the accumulations, not in the context of actual
      knowledge.

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On remand the judge should also consider whether Drummond's
mitigation efforts were sufficient to deal effectively with the
accumulation problems given the undisputed evidence that the belt
was actually running in contact with the accumulations and over
a portion of the metal frame where a roller was missing, and
whether the miner could have completed the necessary abatement in
an expeditious manner. He should consider these efforts in light
of his pervious findings that Drummond lacked due diligence in
inspecting for accumulations that accumulations remained during
preshift examinations. (Drummond, supra, slip op., at 8)

 In compliance with the directives of the Commission to

reconsider Drummond's actions with regard to the issue of its
unwarrantable failure, I note the Commission's finding, ". . .
that Drummond knew or had reason to know of the accumulations."
(Drummond, supra, slip op., at 7). Also, I take cognizance that
in its directive to consider the sufficiency of Drummond's
mitigation efforts to deal effectively with the accumulation
problems, the Commission placed emphasis upon ". . . the
undisputed evidence that the belt was actually running in contact
with the accumulations and over a portion of the metal frame
where a roller was missing, . . . . " (Drummond, supra at 8)
Further, the Commission directed consideration of "whether the
miner could have completed the necessary abatement in an
expeditious manner." (Drummond's supra slip op., at 8). Evidence
adduced at the hearing, summarized in my initial Decision (13
FMSHRC at 74), established that Drummond made "some efforts to
clean up the accumulation." (13 FMSHRC 74). In this connection
Capps who was present at the time, indicated that a miner who had
been assigned by Don Clark, the evening foreman, to shovel on the
beltline started to do this work at the beginning of the shift on
October 4. Capps also indicated that he (Capps) was involved in
cleaning the accumulations, and that it took approximately 20
minutes to completely remove them. However, I note that the miner
assigned to shovel cleaned areas under the belt, (Tr.234) but
there is no evidence that any cleaning was performed under the
drive and take-up rollers. In order to clean these area it is
necessary first to shut off the belt, and remove certain guards.
Neither of these actions had been taken prior to the issuance by
Deason of the citation at issue. Further, Busby testified, in
essence, that although Clark informed him that he (Clark)
assigned a miner to shovel in the area, Clark told him that he ".
. . turned him (the miner doing the shovelling) loose and let him
go off the beltline to another area." (Tr. 328) Also, Busby, who
was the evening shift safety inspector and was responsible for
making daily inspections, indicated that normally he would have
had the accumulation inside the guarded area corrected a few
hours later during the owl shift (Tr. 377-378). Hence, the
evidence indicates that it is doubtful that the miner could have
completed the necessary abatement in an "expeditious

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manner". Also, as directed by the Commission, upon
reconsideration the mitigation efforts by Drummond are
reconsidered in light of my previous findings that ". . .
Drummond lacked diligence in inspecting for accumulations and
that accumulations remained during preshift examinations".
(Drummond supra, slip op., at 8).

 Therefore for all the above reasons, upon reconsideration,

and following the directives of the Commission, I conclude that it
has been established that the violation herein resulted from
Drummond's unwarrantable failure.

                             Avram Weisberger
                             Administrative Law Judge