Drummond Company, Inc.

Plain-English summary

Drummond operated an underground coal mine where MSHA found deep accumulations of combustible material and float coal dust around several conveyor belts. The ALJ modified a section 104(d)(1) citation by vacating the unwarrantable-failure finding. The Commission held that Drummond had reason to know about the accumulations and that the judge had applied the wrong knowledge standard, so it vacated the no-unwarrantable-failure conclusion. The Commission remanded for the judge to reconsider unwarrantable failure and the effect of Drummond's cleanup efforts.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.400
• Outcome: The Commission vacated the ALJ's finding of no unwarrantable failure and remanded for reconsideration.
• Key point: Actual knowledge is not required for an unwarrantable-failure finding when the operator had reason to know of the violative condition.

Full text (FMSHRC public release)

CCASE:
DRUMMOND V. MSHA
DDATE:
19910920
TTEXT:

           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, D.C.
                           September 20, 1991

DRUMMOND COMPANY, INC.,

  v.                            Docket No. SE 91-10-R
                                           SE 91-11-R

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

BEFORE: Backley, Doyle, Holen, and Nelson, Commissioners

                DECISION

BY THE COMMISSION:

This contest proceeding arising under the Federal Mine Safety and

Health Act of 1977, 30 U.S.C. 801 et seq. (1988)("Mine Act" or "Act"),
concerns a dispute between Drummond Coal Company ("Drummond") and the
Secretary of Labor ("Secretary") over the issuance of a section 104(d)(1)
citation for accumulations of combustible materials in belt line conveyor
areas in violation of 30 C.F.R. 5.400. 1/ Drummond filed a notice of
contest on October 24, 1990, and moved for expedited hearing. A hearing
was held on November 14-15, 1990, before Administrative Law Judge Avram
Weisberger.

The parties filed post hearing briefs and proposed findings of

fact and conclusions of law. Judge Weisberger's decision modified
the section 104(d)(1) citation by vacating the unwarrantable failure
finding. The Commission granted the Secretary's petition for
discretionary review appealing the judge's determination that the
violation was not unwarrantable. For the reasons that follow, we
vacate the judge's conclusion that the violation was not unwarrantable
and remand the issue of unwarrantability for reconsideration.

1/ Section 75.400 entitled "Accumulation of combustible materials," is

Page 2

a statutory provision:

          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 electric equipment
 therein.

Page 3

~1363
I

       Factual Background and Procedural History

Drummond operates an underground coal mine, the Mary Lee No. 2 Mine,

in Alabama. The mine is a thin seam coal deposit varying in thickness from
approximately 34 to 52 inches. lt utilizes belt haulage to transport coal
to the surface. One section of the mine contains several interconnected
belt lines including the belt line and associated machinery at issue in
this case. 2/ MSHA Inspector Walter Deason examined this interconnected
system of belt lines during the period October 2-4, 1990. He issued
several citations for accumulations of combustible materials including
the citation and finding of unwarrantable failure at issue herein.

Inspector Deason's examinations proceeded toward the mine face.

Early in the morning of October 2, he examined the Slope Belt and found
accumulations of combustible materials, approximately thirteen inches
deep and thirty feet long, in violation of section 75.400. A section
104(a) citation was issued. ln addition to the excess accumulations at
the Slope Belt, Inspector Deason found that shift inspectors were not
placing dates or their initials in areas required to be inspected,
suggesting the possibility that no examinations were being made. The
record shows that Deason told Carl Ware, the owl shift mine foreman on
duty at the time, that inspections must be made and that the initials of
the fire bosses must be recorded to verify the inspections.

Deason returned to the mine the next afternoon and continued

examining the conveyor belts. He was accompanied by John Busby,
Drummond Safety Inspector, and Sam Hunt, Alternate UMWA Safety
Committeeman. Deason found accumulations of coal under the belt
line drive and the take-up unit of the 40 North No. 1 Conveyor Belt.
These accumulations were approximately thirty-four inches deep and
between fifty and sixty feet long. Again, a citation was issued
alleging a violation of section 75.400.

On October 4, Inspector Deason returned to the 40 North Belt Line

and related section conveyor lines with Sidney Hill, International UMWA
Representative, and Sam Hunt. Deason noted accumulations of coal
approximately twelve inches deep and thirty feet long beneath the belt
drive and a take-up unit of the 40 North No. 3 Conveyor Belt and noted
that the belt was rubbing the accumulations. A citation charging a
violation of section 75.400 was issued.

2/ This system of interconnected belts contains six belt lines and
operates in the following manner: Coal mined from the face is placed

Page 4

on the 4315 Section conveyor drive and the 4050 Section conveyor drive.
The 4315 Belt Line carries coal to the 430 line, which in turn proceeds
to the 40 North Belt. The 40 North Belt, because of its length, is
divided into three belt sections. The 430 line dumps its coal onto the
40 North Belt at the No. 2 belt, which is the middle belt of the 40 North
Belt conveyor system. The 4050 section conveyor drive deposits its coal
directly onto the 40 North Belt Line at the No. 3 belt. The 40 North Belt
transports coal to the 10 West Belt, which connects to the Slope Belt. The
Slope Belt brings the coal to the surface.

Page 5

~1364
Thereafter, he proceeded to the 40 North No. 3 Belt and found accumulations
of coal thirteen inches deep and between twenty and thirty feet long from
the end drive rollers to the discharge rollers of the 4050 Section Conveyor
Drive. The accumulations were relatively large, and consisted of small
particles of coal rather than large lumpy coal usually associated with
spills. 13 FMSHRC at 72.

 Inspector Deason then proceeded to the 4315 Section conveyor belt

and there he found float coal dust, extending a distance of nearly
500 feet. A citation was issued charging a violation of section 75.400,
which was designated significant and substantial. Inspector Deason
testified that an examination of the source of the dust disclosed that
the 4315 header was running in the coal dust and flipping it into the air.
On further examination of the area, Deason found coal dust accumulations
in the area of the header and the take-up unit as well as under the belt.
There was also a roller missing near the area of the take-up unit, which
allowed the belt to rub against the metal frame. In addition, the belt was
running in the accumulations and area guards and other guards were missing
from the side of the belt line.

Based on these findings, Inspector Deason cited Drummond, pursuant

to section 104(d)(1) 3/, for a violation of section 75.400, alleging
accumulations of combustible materials at the 4315 Section Belt Line.
The section 104(d)(1) citation stated:

  Float coal dust was allowed to accumulate beneath
  the take-up carriage on the 4315 section conveyor
  drive 19 inches deep. The take-up roller and belt
  was running in the said accumulations. Also coal
  was beneath the drive units from half way of the
  belt to the tight side end of the drives. Also
  coal was on the tight side up to 16 inches deep.

 This is the 5th conveyor belt unit written at this
 mine in the past 4 days.

3/ Section 104(d)(1) provides:

  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 if he also finds that, while the
  conditions created by such violation do not cause
  imminent danger, such violation is of such nature as
  could significantly and substantially contribute to

Page 6

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
standard, he shall include such finding in any citation
given to the operator under this Act.

30 U.S.C. Section 814(d)(1).

Page 7

~1365
The pre-shift fire boss books indicate that the headers
was [sic] OK.

In addition to indicating that the citation was significant and substantial
and that Drummond's failure to maintain clean belt lines was unwarrantable,
Deason also charged that the citation involved high negligence.

Before the judge, the Secretary argued that Drummond's actions were

unwarrantable on three grounds. First, the Secretary argued that Drummond
knew or should have known of the accumulations because inspections and
specific discussions regarding other belts in close proximity to the
4315 Belt line placed Drummond on a heightened alert for accumulations.
The Secretary also argued that Drummond made a conscious decision not to
clean up accumulations until the idle shift because it did not want to
stop production. Finally, the Secretary argued that Drummond's suggestions
that the standard permits a reasonable time lapse between accumulation and
clean up contravenes clear Commission authority to the contrary. Citing
Old Ben Coal Co., 1 FMSHRC 1954 (1979), the Secretary highlighted
Commission review of the legislative history of the Act, emphasizing
Congressional intent to prohibit accumulations.

Drummond argued that it had demonstrated good faith in cleaning

up the accumulations, that abatement effort is the most important factor
and, that based on Utah Power & Light Company v. Secretary, 12 FMSHRC 965
(May 24, 1990), such efforts can be sufficient to prevent a finding of
unwarrantable failure. Drummond noted evidence that a miner was cleaning
coal from under the belt line at the time of the inspection. 13 FMSHRC
at 76.

In discussing the evidence of unwarrantability, the judge reviewed

the history of the accumulations at the conveyor belts, the length of
time the coal was allowed to accumulate, and the visibility of the
accumulations. Although the judge did not specifically find that there
was a history of accumulations, the judge examined the three-day review by
Inspector Deason. He found that, at each step, the inspector had noted
significant accumulations. The judge emphasized the strength of this
evidence, especially evidence of accumulations at each of the belt lines
cited prior to reaching the 4315 Belt Line. Based on the testimony of
Inspector Deason and Sidney Hill, the judge found that the accumulations at
the 4315 Belt Line had gradually accumulated over a period of time prior to
the citation. 13 FMSHRC at 74. The judge noted the testimony of several
witnesses that the conditions were readily visible, or would have been, if
viewed through the screens protecting the sides of the belt line. Busby,
the operator's own safety inspector, testified that the roller areas are
susceptible to spillage and demand closer scrutiny than other areas of the

Page 8

belt. Id.

The judge concluded that the weight of evidence established that

Drummond "did not use due diligence in inspecting for accumulations in the
area in question." Id. Again, the judge concluded that the weight of
evidence "specifically" established that, if careful inspection had been
made, the accumulations would have been noticed and that "[d]ue to the
extent and depth of the accumulations ... it is highly likely that they
existed at least 4 hours

Page 9

~1366
earlier when the preshift examination was made." 4/ 13 FMSHRC at 75.

The judge found, however, that the record did not support a

conclusion of unwarrantable failure. He rejected the Secretary's
assertion that the operator had actual knowledge of the conditions at
the 4315 conveyor, finding that "the record fails to establish such
knowledge on the part of Contestant of the specific accumulations at the
specific locations in issue, i.e., the 4315 conveyer belt." (Emphasis in
the original). Id. In reaching this conclusion, he found that Inspector
Deason had not discussed the problem of accumulations at the belt lines
prior to citation.

The judge also relied on Drummond's efforts to clean up the

accumulations. The judge credited testimony that a miner was shoveling
coal at a distance 200 to 250 feet inby the cited area and that shoveling
had occurred at the header and 25 to 30 feet inby on the tight side of the
belt.

After reviewing the history of the accumulations, the length of

time coal had been allowed to accumulate and the visibility of the
accumulations, the judge focused on whether the operator actually knew
of the violations and the efforts made by the operator to clean up the
accumulations. Based on those considerations, he found the record
insufficient to support a conclusion of unwarrantable failure.

                    II.

              Disposition of Issues

On review, the Secretary challenges the judge's finding that

the violation was not the result of Drummond's unwarrantable failure.
She asserts that the judge failed to apply correctly the Emery test
of unwarrantability and erred by expressly limiting the scope of
aggravated conduct to actual knowledge of the specific violative
conditions. She asserts that proper application of Emery and its
progeny demands recognition that the required knowledge can also be
established by a showing that the operator should have known, or
had reason to know, of the violative conduct and that the evidence
establishes that Drummond had every reason to know of the conditions
and chose to do nothing about them.

The Commission has held 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 Corp., 9 FMSHRC 1997,
2004 (December 987); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010

Page 10

(December 1987). This determination was derived, in part, from the
ordinary meaning of the term "unwarrantable failure" ("not justifiable"or
"inexcusable"), "failure"("neglect of an assigned, expected or appropriate
action"), and "negligence" ("the failure to use such care as a reasonably
prudent and careful person would use, characterized by "inadvertence,"
"thoughtlessness," and "inattention"). Emery, supra, 9 FMSHRC at 2001.
This determination was also based on the purpose of

4/ In this case the judge found that Drummond's failure to conduct
adequate pre-shift examinations was unwarrantable with respect to this
very same belt line.

Page 11

~1367
unwarrantable failure sanctions in the Mine Act, the Act's legislative
history, and on judicial precedent. Id.

The judge, in rejecting the Secretary's assertion that Drummond

knew of the violation, found that Drummond did not know "of the specific
accumulations at the specific locations in issue, i.e., the 4315 section
conveyor belt." 13 FMSHRC at 75. The Secretary argues that the judge was
incorrect in requiring advance notice to Drummond of the accumulations
before issuance of a citation. The Secretary cites the following language
from the decision as indication that the judge imposed such a requirement:

  There is insufficient evidence that Deason had any
  discussion with any of Respondent's personnel prior to
  the issuance of the Citation in issue, with regard to
  problems with accumulations at the belt lines... . A
  plain reading of this testimony reveals that it does
  not establish that Deason informed Busby of the need
  either to take care of accumulations in general on belt
  lines, or to be aware of such problems in the area in
  question.

  There is no evidence that respondent was informed by
  Deason of the need to make a thorough inspection of
  the area in question. Thus, the fact that Deason found
  accumulations after he spoke to Ware and Busby does
  not, per se establish aggravated conduct.

13 FMSHRC at 75.

We agree that the Secretary is not required to give advance notice

to operators of violative conditions before issuance of a section 104(d)
citation. Such rationale would contravene fundamental notions of miner
safety and operator responsibility upon which the Mine Act rests, see
S. Rep. No. 181, 95th Cong., 1st Sess. 17-18 (1977), reprinted for the
Senate Subcommittee on Labor, Committee on Human Resources, Legislative
History of the Federal Mine Safety and Health Act of 1977, 95th Cong.
2d Sess., 605-06 (1978). It would also severely weaken the unwarrantable
failure provisions of section 104(d) by establishing a standard that would
allow an operator to avoid sanction by claiming that MSHA had not provided
advance notice that certain violative conduct would result in section
104(d) enforcement action.

It is well settled under Commission precedent that actual knowledge

of a violative condition is not a necessary element to establish aggravated
conduct for an unwarrantable failure finding. Eastern Associated Coal

Page 12

Corn., 13 FMSHRC 178, 187 (February 1991). In Eastern, the Commission
reviewed unwarrantable behavior based on an operator's constructive
knowledge of a continuing hydraulic oil leak problem at a hoist tipple.
The Commission rejected the necessity of actual knowledge on the part of
the operator and the notion that nonfeasance on the part of mine personnel
might insulate the operator from imputed knowledge. The Commission stated:

Page 13

~1368
A lack of actual knowledge by Eastern's management
of the apparently continuing leak does not necessarily
bar an unwarrantable failure finding. In Pocahontas
Fuel Co., 8 IBMA 136, 148-49 (1977), aff'd sub nom
Pocahontas Fuel Co. v. Andrus, 590 F.2d 95 (4th Cir.
1979), failure of a rank-and-file preshift examiner
to detect a violation was found to be imputable to
the operator for unwarrantable failure purposes.
Even assuming that Eastern's preshift and onshift
examiners did not record any continuing problem,
that consideration does not necessarily preclude an
unwarrantable failure finding. Emery makes clear
that unwarrantable failure may stem from what an
operator "had reason to know" or "should have known."
9 FMSHRC at 2003. Eastern Associated Coal Corporation,
13 FMSHRC at 187.

The record indicates that Drummond had reason to know of the

conditions at the 4315 Belt Line. The evidence is uncontested that
during the period of October 2-4, Inspector Deason conducted a systematic,
step-by-step, inspection of the conveyor belt system, proceeding toward
the 4315 Belt Line. Indeed, findings of fact with regard to the extent
and course of the inspections and the accumulations found in those areas
prior to the citation at issue here demonstrate that Drummond was on
notice that accumulations were, in fact, being found at each step along
the way toward the 4315 Belt Line. As a result Drummond should have been
on heightened alert, see Youghiogheny & Ohio Coal Co., supra, and Eastern
Associated Coal Corporation, supra., for accumulations of combustible
materials, which the judge found had been there since at least the
preshift examination. 13 FMSHRC at 74.

 Also Drummond's own safety inspector testified at trial, and

the judge so found, that the belts in the subject section required
closer scrutiny. 13 FMSHRC at 74. The evidence establishes that the
accumulations in question would have been noticed upon a careful
inspection. 13 FMSHRC 74, 75. Drummond's own witness, John Busby,
testified that the area in question under the take-up unit at the
4315 Belt Line was not clean and that he would have seen the
accumulations if he had looked through the screens. 13 FMSHRC at 74.
Inspector Deason testified that the accumulations would have been
visible to a person walking by them. Id.

In addition, Drummond was warned on the first day of the inspections

that no initials or dates appeared at the Slope Belt, suggesting that no
preshift inspections had taken place. Inspector Deason reminded Carl Ware,

Page 14

mine foreman, that inspections had to be made. Moreover, the judge's
recognition of the fact that "some" cleanup effort had been made suggests
that the judge believed that Drummond knew of the accumulations. We
conclude that Drummond knew or had reason to know of the accumulations.

 We next address whether Drummond's conduct was unwarrantable, i.e.,

aggravated conduct, constituting more than ordinary negligence. The judge,
in finding that the operator's conduct was not unwarrantable, rejected the
Secretary's assertion that Drummond had made a conscious decision to delay

Page 15

~1369
cleanup until the owl shift. He relied on Drummond's mitigation efforts
and found that the operator had "made some efforts to clean up the
accumulations." 13 FMSHRC at 74. The Secretary argues that Drummond's
abatement efforts were not sufficient to mitigate unwarrantability and
furthermore that the judge's decision is inconsistent in the following
respects: first, the significant accumulations problems together with the
unwarrantable failure to conduct an adequate inspection is inconsistent
with good faith mitigation; second, vacation of the unwarrantability
finding with respect to this violation is inconsistent with the finding of
unwarrantability in the preshift examination violation; and, third, the
judge's conclusion that the operator unwarrantably failed to inspect is
inconsistent with his finding that the operator had no reason to know of
the accumulations. We agree that there are inconsistencies in the judge's
opinion.

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.

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 previous findings that Drummond
lacked due diligence in inspecting for accumulations and that accumulations
remained during preshift examinations.

                  III.

Accordingly, we vacate the judge's finding of no unwarrantable

failure and remand this matter to him for reconsideration of Drummond's
actions in light of the legal standards enunciated herein.