Jim Walter Resources, Inc.

Plain-English summary

Jim Walter Resources operated the No. 7 underground coal mine in Alabama. An MSHA inspector found extensive accumulations of loose coal, coal dust, and float coal dust along a 3,500-foot belt entry, including rollers submerged in dust and hot rollers and rubbing points that could ignite combustible material. Judge William Fauver found the condition significant and substantial and an unwarrantable failure to comply with 30 C.F.R. § 75.400. He affirmed Order No. 3194917 and assessed a $15,000 civil penalty based on the mine’s violation history, high negligence, and the seriousness of the condition. The later Commission decision vacated that penalty assessment and remanded for reassessment.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.400
• Outcome: Order No. 3194917 was affirmed, and the ALJ assessed a $15,000 penalty. The Commission later vacated the penalty assessment and remanded for reassessment.
• Key point: Extensive combustible accumulations, hot rollers, and repeated prior notices supported the S&S and unwarrantable-failure findings.

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 14, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. SE 95-459
Petitioner : A.C. No. 01-01401-04102
v. :
: No. 7 Mine
JIM WALTER RESOURCES, INC., :
Respondent :

                          DECISION

Appearances: William Lawson, Esq., U.S. Department of Labor,
Office of the Solicitor, Birmingham, Alabama for
Petitioner;
R. Stanley Morrow, Esq., Jim Walter Resources,
Inc., for Respondent.

Before: Judge Fauver

 This is a civil penalty case under ' 105(d) of the Federal

Mine Safety and health Act of 1977, 30 U.S.C. ' 801, et seq.

 The central issues are the validity of a ' 104(d)(2) order

and the appropriate civil penalty if a violation is found. The
order alleges accumulations of combustible materials in a 3,500
foot belt entry and charges a significant and substantial
violation of 30 C.F.R. ' 75.400 and an unwarrantable failure to
comply with the standard.

 Having considered the hearing evidence and the record as a

whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the Findings of Fact and
further findings in the Discussion below:

                     FINDINGS OF FACT

 1.   Respondent operates No. 7 mine, which produces coal for

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sales in or substantially affecting interstate commerce.

 2. On June 8, 1995, MSHA Inspector John Terpo inspected the

West A belt line of the No. 7 mine. Inspector Terpo observed
substantial accumulations of loose coal, coal dust and float coal
dust. At least 32 rollers were turning in combustible
accumulations, and 12 of them were totally submerged in coal
dust. Three other rollers were locked up and Aextremely hot to
the touch.@ Tr. 96-99. At the section=s 7th discharge point, the
accumulations averaged 2 feet deep for about 300 feet. The
bottom belt was running on top of the accumulations at this
location. Two bottom rollers were missing between the No. 26 and
No. 28 brattices, allowing the belt to run on the belt=s metal
structure, which was Aextremely hot with the [accumulations]
present.@ Tr. 96-99.

 3. Inspector Terpo observed that no one was doing cleaning

work on the belt line and the book entries for the pre-shift
examination stated that the belt line was clear for work. The
two previous pre-shift entries indicated that the area needed
cleaning and rock-dusting.

 4. Inspector Terpo issued four citations for accumulations

of combustible material on the two section belts that dumped onto
the West A belt, for failing to maintain the West A belt line in
safe operating condition, and for failing to conduct an adequate
pre-shift examination. Govt. Exhibits 1, 2, 3, and 6.

  5. The four citations are final. In a settlement, the

citations in Exhibits 1 and 3 were modified to reflect that
Afour@ persons were affected by the violative conditions.

 6. Inspector Terpo also issued Order No. 3194917, under '

104(d)(2) of the Act, charging a violation of 30 C.F.R. ' 75.400
for extensive combustible accumulations in the West A belt
entry and preventing operation of the West A belt line until the
cited violative condition was abated. Respondent assigned about
20 miners to clean up the accumulations. The abatement work was
completed in about seven hours and the order was terminated.

    DISCUSSION WITH FURTHER FINDINGS, AND CONCLUSIONS

 Respondent called no witnesses, and offered no exhibits.




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There is no dispute of the violative accumulations of combustible
materials at the cited locations in the West A belt line entry.
The case turns on the sufficiency of the government=s evidence to
prove that the accumulations constituted a Asignificant and
substantial@ violation and an Aunwarrantable@ failure to comply
with ' 75.400 within the meaning of ' 104(d) of the Act.

 The safety standard involved, 30 C.F.R. ' 75.400, is a

reprint of a statutory standard, which 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 electric equipment
 therein.

 As the Commission has recognized, this standard was enacted

to prevent the well-recognized hazards of accumulations of
combustible materials in coal mines:

      ***The goal of reducing the hazard of fire or
 explosions in a mine by eliminating fuel sources is
 effected by prohibiting the accumulation of materials
 that could be the originating sources of explosions or
 fires and by also prohibiting the accumulation of those
 materials that could feed a fire originating elsewhere
 in the mine.

Black Diamond Coal Co., 7 FMSHRC 1117, 1120 (1985) (citing Old
Ben Coal Co., 1 FMSHRC 1954, 1957 (1979); and Old Ben Coal Co.,,
2 FMSHRC 2806, 2808 (1980)). The hazards associated with mine
fires and explosions are well documented and actually
precipitated the enactment of the Mine Act. See H.R. Rep. No.
95-312, 95th Cong., 1st Sess. 6 (1977), reprinted in Legislative
History at 361362; and S.Rep. No. 95-181, 95th cong., 1st Sess.
(1977), reprinted in Legislative History at 592.

         A Significant and Substantial Violation

 The Commission has held that a Asignificant and substantial

violation,@ as used ' 104(d) of the Act, is a violation that
presents a Areasonable likelihood that the hazard contributed to
will result in an injury of a reasonably serious nature.@

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Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (1981);
Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984).

 Respondent contends that, since there is no evidence of an

injury resulting from a belt fire at this mine, the violation was
not Asignificant and substantial.@ However, the Secretary is not
required to prove an actual injury. AReasonable likelihood@ of
injury is sufficient, and this is satisfied by the Acommon sense
conclusion that a fire burning in an underground coal mine would
present a serious risk of smoke and gas inhalation to miners who
are present.@ Buck Creek Coal, Inc. v. Secretary of Labor, 52
F.3d 133, 135 (7th Cir. 1995). The Secretary is not required
to show that a mine fire was probable, but need only show
that the violation provided substantial fuel to propagate a mine
fire or explosion should one occur and that such propagation
would be Areasonably likely@ to result in injury. The
uncontested evidence shows substantial combustible accumulations
that could propagate a mine fire or explosion and cause death or
serious injury. In addition, the evidence of ignition sources,
such as hot rollers and hot rubbing points against a steel
structure, shows that if the violative conditions continued
unabated they were reasonably likely to result in a fire and
injury. For both reasons, I find that the accumulations
constituted a Asignificant and substantial@ violation.

               An Unwarrantable Violation

 The Commission has held that an Aunwarrantable@ violation,

as used in ' 104(d) of the Act, is a violation due to Aaggravated
conduct constituting more than ordinary negligence.@ Emery
Mining Corp., 9 FMSHRC 1977 (1987). Relevant issues include such
factors as Athe extent of a violative condition, or 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.@ Peabody
Coal Company, 14 FMSHRC 1258, 1261 (1992).

 Inspector Terpo identified in the order and in his notes the

numerous areas in which he observed combustible accumulations
along the 3,500 foot belt line. At one location, the
accumulations averaged about 2 feet deep for 300 feet, with 32
rollers turning in coal dust and 12 of those rollers being
totally submerged in coal dust. The bottom belt was rubbing on

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the top of the accumulations and the bottom rollers were running
totally submerged in coal dust. The accumulations cited can
only be described as extensive, and obvious to anyone concerned
with safety.

 Inspector Terpo and UMWA Safety Committee Chairman Phylar

testified that the accumulations were so extensive that they
probably existed for at least several shifts. Respondent offered
no evidence disputing their testimony, which is supported by the
extent of work needed to abate the violation, i.e., about 20
miners doing clean up work for 7 hours.

 The abatement work was prompt, but this must be considered

in relation to the withdrawal order, which stopped the belt line
until the accumulations were removed. There was no evidence of
clean up work at the time the order was issued.

 Respondent had received repeated notices that greater

efforts were necessary to comply with ' 75.400. In numerous
contacts with Respondent, MSHA had discussed the continuing
problem of its failure to comply with ' 75.400. Many of those
discussions had occurred in the same quarter in which the subject
order was issued. The UMWA, as well, brought the continuing
problem of accumulations to management=s attention. The repeated
prior notices of violations of '75.400 are also shown by
Respondent=s compliance history, which shows that in the two
years preceding the subject order Respondent was issued 291
citations and orders charging violations of ' 75.400. As of
March 27, 1996, nearly all of the citations and orders had become
final (by payment of the penalties or by becoming uncontested,
final penalty orders).

 The facts fully sustain the inspector=s finding of an

Aunwarrantable failure@ to comply with ' 75.400.

                      Civil Penalty

 Section 110(i) of the Act provides the following six

criteria for assessing civil penalties:

 (1) Operator=s history of previous violations

      The No. 7 mine has a very poor record of violations of




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'75.400. Its two year history prior to the subject order
indicates that violations of ' 75.400 actually increased. From
June 8, 1993, through June 7, 1994, Respondent was issued 123
citations and orders charging violations of ' 75.400. The number
of charges increased to 168 for the subsequent year. In nearly
all of the cases, the charging citations and order have become
final.

 Respondent=s repeated violations of ' 75.400 is consistent

with its overall compliance history under the Mine Act, which is
very poor.

 (2) Whether the operator was negligent

 Respondent=s repeated violations of ' 75.400, the numerous

complaints and bi-monthly reports made by the UMWA to management
regarding the belt lines, the frequent discussions MSHA had with
mine management prior to issuing the subject order, and the on-
going litigation resulting from violations on the belt lines
Ashould have engendered in the operator a heightened awareness of
a continuing accumulation problem.@ Mid-Continent Resources,
Inc., 16 FMSHRC 1226, 1232 (1994). Instead, Respondent showed no
improvement.

  The accumulations in the instant case were obvious,

extensive, and dangerous and no one was working on the violative
conditions at the time the inspector examined the area. I find
that Respondent=s negligence was high, and demonstrates a serious
disregard for the safety of its miners.

  (3)   The gravity of the violation

  The seriousness of the violation is underscored by the

fact that 32 rollers were turning in coal dust accumulations up
to two feet deep. Twelve of the 12 rollers were totally
submerged in the accumulations. Three rollers were locked up
creating friction sources, and in places the conveyor belt was
rubbing against the steel belt structure. The stuck rollers and
rubbing points on the structure were Aextremely hot@ to the
touch. I find that the gravity of the violation was high.

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                  Assessment of a Penalty

 Respondent=s prior history and the instant violation

demonstrate a serious disregard for the safety requirement to
prevent combustible accumulations in an underground coal mine.
Respondent=s repeated violations of ' 75.400 indicate that there
has been no deterrent effect from prior civil penalties.

 Considering Respondent=s very poor compliance history, the

need for an effective deterrent, and the six statutory criteria
as a whole, I find that a civil penalty significantly greater
than the $7,000 proposed by the Secretary should be assessed.
Accordingly, I find that a civil penalty of $15,000 is
appropriate for the violation proved in this case.

                    CONCLUSIONS OF LAW

 1.   Respondent=s No. 7 mine is subject to the Act.

 2. Respondent violated 30 C.F.R. ' 75.400 as charged in

Order No. 3194917.
ORDER

 1.    Order No. 3194917 is AFFIRMED.

 2.   Respondent shall pay a civil penalty of $15,000 within

30 days of this Decision.

                           William Fauver
                           Administrative Law Judge

Distribution:

William Lawson, Esq., U.S. Department of Labor, Office of the
Solicitor, Suite 150, Chambers Building, High Point Office
Center, 100 Centerview Drive, Birmingham, AL 35216 (Certified
Mail)

R. Stanley Morrow, Esq., Jim Walter Resources, Inc., Mining
Division, P.O. Box 830079, Birmingham, AL 35283-0079 (Certified
Mail)

nt

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