LJ'S Coal Corporation

Plain-English summary

An ALJ reviewed several safety citations and orders issued at LJ's Coal Corporation's No. 1 Mine. The judge dismissed one mine-rescue citation because the records did not prove that the apparatus itself had gone untested for 30 days. He affirmed violations involving high-voltage cables, an exposed electrical receptacle, coal-dust accumulations, a missing belt crossover, an inoperable emergency switch, and a locked sanitary toilet, and entered judgment on the pleadings for two other matters. The total civil penalty was $1,644.

Decision snapshot

• Cited standard(s): 30 C.F.R. §§ 49.6(b), 75.807, 75.1725, 75.400, and 75.500
• Outcome: One citation was dismissed, other violations were affirmed or resolved by judgment on the pleadings, and $1,644 in civil penalties was assessed.
• Key point: Missing inspection records alone did not prove that mine-rescue apparatus was not tested, but unguarded electrical hazards and other admitted or proven conditions supported penalties.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) v. LJ'S COAL
DDATE:
19910918
TTEXT:

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           Federal Mine Safety and Health Review Commission
                  Office of Administrative Law Judges
                         2 Skyline, 10th Floor
                          5203 Leesburg Pike
                     Falls Church, Virginia 22041

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. VA 90-47
PETITIONER A. C. No. 44-05668-03577
v.
Docket No. VA 90-60
LJ'S COAL CORPORATION, A.C. No. 44-05668-03579
RESPONDENT
Docket No. VA 90-62
A.C. No. 44-05668-03580

                                   No. 1 Mine

                               DECISION

Appearances: Ronald E. Gurka, Esq., U.S. Department of Labor,
Office of the Solicitor, Arlington, Virginia, for
Petitioner;
Carl E. McAfee, Esq., LJ's Coal Corporation,
St. Charles, Virginia for Respondent.

Before: Judge Weisberger

Statement of the Case

 These cases are before me based on three Petitions for

Assessment of a Civil Penalty filed by the Secretary of Labor
(Petitioner) alleging violations of various mandatory safety
standards. Pursuant to notice, these cases were scheduled for
hearing March 25 - 28, 1991. On March 14, 1991, Petitioner filed
a Motion to Continue Hearings. The Motion was subsequently
granted, and the cases were rescheduled for July 8, 1991. On
March 17, 1991 Petitioner filed a Motion to Reschedule, which was
not opposed by the Operator (Respondent). The hearing set for
July 8-11, 1991, was adjourned and rescheduled for July 23-25,
1991. A hearing was held on July 23, 1991 in Bristol, Virginia.
Fred L. Buck, Clarence Slone, and Ewing C. Rines testified for
Petitioner. Respondent did not call any witnesses, nor did it
offer any documents in evidence.

Finding of Fact and Discussion

I. Docket No. VA 90-47

A. Citation No. 2968870.

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Fred L. Buck, an MSHA Inspector inspected the Mine
Technology Mine Rescue Station ("Mine Technology") on April 11,
1990. According to Buck, the records of Technology Mine contain
dates of inspections performed on Mine Technology apparatus, and
indicate what was done on each inspection. Buck testified that
the records indicated that an inspection had not been performed
within the preceding 30 day period. According to Buck, MSHA
records indicate that Respondent filed with the MSHA District
Manager a "request" indicating that Mine Technology is to perform
mine rescue services at the Respondent's Mine No. 1. (Tr. 19)
Buck issued a Citation alleging a violation of 30 C.F.R.
49.6(b) in that "the mine rescue apparatus was not being tested
within the 30 day interval."

 As pertinent, Section 49.6(b) supra provides that a trained

person shall "inspect and test" mine rescue apparatus at
intervals not exceeding 30 days. At best, the evidence
establishes that the records at Mine Technology did not contain
an entry listing an inspection of rescue apparatus within a 30
day period prior to April 11, 1990. This evidence by itself is
insufficient to establish that, in fact the apparatus itself was
not tested within a 30 day interval. Accordingly, Citation No.
2968870 is to be dismissed.

    B. Citation No. 3146288

     On April 17, 1990, Clarence Slone, an MSHA Inspector,

inspected Respondent's No. 1 Mine, and observed a high voltage
cable in the No. 2 drive of the track and belt entry that was not
guarded. The cable, which carried 4,160 volts, was suspended
within 6 to 8 inches from the roof. In this area, the distance
from the floor to the ceiling was 60 inches. The cable itself was
insulated, and had a protective jacket or cover. According to
Slone, the area in question is examined daily, and that, in
general, 2 to 3 times a shift persons would work under the cable
"handling materials such as maybe a slate bar, a shovel . . . "
(Tr.37). He also indicated that if coal is produced and the belt
is in operation, it must be examined and maintained, which
requires miners to shovel. Slone issued a Citation alleging a
violation of 30 C.F.R. 75.807.

 Section 75.807 supra provides, as pertinent, that a high

voltage cable ". . . shall be covered, buried or placed so as to
afford protection against damage, guarded where men regularly
work or pass under them unless they are 6 1/2 feet or more above
the floor or rail, securely anchored, properly insulated, and
guarded at ends and covered, insulated, or placed to prevent
contact with trolley wires and other low-voltage circuits." The
testimony of Slone established that the cable in question carried
high voltage, was unguarded, and was suspended in an area where
men regularly work or pass under. Also Slone's testimony has
established that the cable was less then 6 1/2 feet above the

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floor. Hence, I find that the Respondent herein did violate
Section 75.807 as alleged.

 Slone further indicated that air containing oxygen

ventilates the surface of the roof in the area in question. He
said that in the normal course of mining, the air flow would
cause the roof consisting of firm shade to become soft and fall
off. Since the cable in question was not protected by a guarding,
a roof fall could damage the cable. If a cable is thus damaged,
voltage could leak out causing a person in proximity to the cable
to be electrocuted even without contact. Although the cable in
issue did not have any observable defects and was protected with
a jacket or cover, I find, based on the testimony of Slone, that
the lack of a guarding contributed to a hazard of a miner
suffering an electrical shock. Thus, given the further fact that
the mine was wet as testified to by Slone, and considering the
condition of the roof as testified to by Slone, I conclude that
an injury of a reasonably serious nature was reasonably likely to
have occurred, given continued mining in the absence of a
guarding. Hence, it has been established that the violation
herein was significant and substantial (See Mathies Coal Co. 6
FMSHRC 1 (1984)).

 The violation herein could have led to a miner being

electrocuted, and hence was of a high level of gravity. On direct
examination, Slone was asked whether the violative condition was
one that "appeared" to him "to have existed there for some time"
(Tr.43). Slone answered "that's correct" (Tr. 43). This testimony
is the only evidence adduced with regard to Respondent's
negligence. I conclude that it has not been established that the
degree of Respondent's negligence herein was more than a low
level. I conclude that a penalty of $100 is proper for this
violation.

 C. Citation No. 3146289

     On April 17, 1990, when Slone inspected the subject

mine, he examined the No. 3 belt transformer. An AC receptacle
approximately 6 x 8 inches, is located on the side of the
transformer, approximately a foot to 18 inches off the floor. The
receptacle contains fingers or prongs that are exposed, and stick
out approximately a half inch beyond the surface. The fingers
receive cable plugs in order beyond supply power outby to belt
drives, pumps and other equipment. When Slone observed the
receptacle, a protective cover, which is designed to snap in
place, was not in place, and the fingers were exposed. According
to Slone, the breaker for this equipment was tested and was found
to be not working. He indicated that the fingers were energized,
and accordingly, if a miner were to plug in or unplug equipment
and come in contact with the energized receptacle, he could be
injured. He also indicated that it is easy to come in contact
with the receptacle if one is next to the power center. He said

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that contact with the energized receptacle would at least produce
an electrical shock, and at the most would lead to a fatality.
Slone issued a Citation alleging a violation of 30 C.F.R.
75.1725.

 Section 75.1725 supra provides, in essence, that machinery

and equipment ". . . shall be maintained in safe operating
condition and the machinery or equipment in unsafe condition
shall be removed from service immediately." Webster's Third New
International Dictionary, (1986 edition) ("Webster's") defines
"safe" as "2. Secure from threat of, danger, harm or loss:",
Webster's defines "free from" as "(a) lacking: without." "Danger"
is defined in Webster's as "3. liability to injury, pain, or
loss: PERIL, RISK. . . . " I find that the exposed energized
prongs of the receptacle exposed miners to the risk of injury by
way of electrical shock. As such, applying the common usage of
the term "safe" as defined in Webster's, infra, I conclude that
the receptacle was not safe, and as such, I find that Respondent
herein did violate Section 75.1725, supra.

 According to Slone, equipment must be plugged into the

receptacle in question at least once a shift. In addition, if the
belt requires repair work, it must be unplugged from the
receptacle in question in order to stop the belt. Hence,
considering the location of the receptacle, being only a foot to
18 inches off the floor, and the fact that, as testified to by
Slone, the area was wet, and the fact that the breaker did not
operate, I conclude that it was reasonably likely that the
violation herein would have resulted in contact with the exposed
energized prongs, and that it was reasonably likely that such
contact would have led to a reasonably serious injury. As such I
find that the violation herein was significant and substantial.

 I find the violation herein to be of a high level of a

gravity inasmuch it could have resulted in a fatality. Also, I
find support for Slone's testimony that the lack of a protective
cover being in place should have been noticed, taking into
account the size of the receptacle, its location, and, the fact
that the cover was at the side of the power center within arms
reach of the receptacle. I conclude that a penalty of $100 is
appropriate for this violation.

 D. Citation No. 3146290

   According to Slone, when observed by him on April 17, 1990,

the No. 3 Belt Drive breaker box contained an accumulation of dry
float coal and dust at a depth of a quarter of an inch throughout
the floor of the box. Slone issued a Citation alleging a
violation of 30 C.F.R. 75.400, which, as pertinent, provides
that coal dust including float coal dust shall be cleaned-up and
not be permitted to accumulate in active workings or on
electrical equipment therein. Based on Slone's

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uncontradicted testimony, I find that there was an accumulation
of coal dust especially considering its depth, and therefore
section 75.400 supra was violated.

 Although Slone indicated on cross examination that generally

the mine is wet, it is significant that there was no
contradiction to his testimony that the accumulation in question
was dry. There also was no contradiction to his testimony that
float dust is most volatile. There also was no contradiction to
Slone's testimony that the belt in question is stopped and
started 2 to 3 times a shift, and that these actions cause an arc
in the circuit box which could cause an explosion, given the
presence of the accumulation at issue. According to Slone, should
such an explosion occur, the box would be blown apart. Since the
box is located 10 feet from the belt drive, in the event of an
explosion at the box, there would be a reasonable likelihood of
injuries to miners who frequently come to the area to clean and
inspect the belt drive. Hence, I find that the violation herein
to be significant and substantial.

 Inasmuch as the violation herein could have resulted in an

ignition and hence injury to miners, I conclude that the gravity
of the violation is moderately high. Slone's opinion that it took
approximately 2 to 3 shifts for the accumulation herein to have
occurred was not contradicted. I find a reasonable basis for this
opinion taking into account the depth and extent of the
accumulation inside the box. Hence I find that the violative
conditions should have been noted on a preshift examination and
should have been cleaned-up. Hence Respondent's negligence herein
is of a moderately high degree. I conclude that a penalty of $100
is appropriate for this violation.

 E. Citation No. 3146292.

    On April 18, 1990, Slone observed wet float coal dust on

previously dusted surfaces beginning at the No. 2 belt drive,
extending inby 180 feet, and extending into the crosscuts. The
float coal dust which was black in color, was located on the
floor, and both ribs. Since Slone's testimony was not
contradicted, I find that the Citation he issued, alleging a
violation of Section 75.400 supra was properly issued, and that
Respondent herein did violate section 75.400 supra. Inasmuch as
the accumulations herein were approximity 5,000 feet from the
face and were wet, I conclude that the violation was of a low
level of gravity. Slone opined that it took 2 to 3 shifts for the
accumulations to have occurred. Due to the extent of the
accumulations, I find a basis for his conclusion. Hence,
Respondent's negligence herein was of a moderate level. I
conclude that a penalty of $50 is appropriate for this violation.

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F. Citation No. 3146293

       Slone testified that on April 19, 1990, he observed an

accumulation of wet, loose, coal dust of a depth of 2 to 8 inches
commencing at the portal, and extending inby approximately 800
feet under the No. 1 conveyor belt. He said that, in the area in
question, the accumulation was under all of the belt's idlers,
and extended for the width of the belt. Inasmuch as Slone's
testimony was not contradicted, I find that Respondent herein did
violate section 75.400 supra as alleged in the Citation that he
issued.

 Although the accumulation was wet, according to Slone, over

a period of time it will dry out and the idlers could roll in the
coal. Should these idlers then become hot there is a possibility
of a fire. Hence, the violation was a moderate level of gravity.
According to Slone, the area in question is subject to daily
examinations, and the cited accumulation was "obvious" (Tr. 169).
This opinion has not been contradicted, and hence I find that
Respondent was moderately negligent in not having cleaned up the
accumulation. I find that a penalty $50 is appropriate for this
violation.

    G. Citation No. 3146294

     Slone testified, in essence, that on April 19, 1990, he

issued Citation No. 3146294 alleging a violation of Safeguard No.
2969259 dated May 6, 1987, which requires, as pertinent, as
follows: ". . . crossover facilities be provided on all belt
conveyors in the mine hereafter where men are required to
crossover them to do work." [sic]. According to Slone, belts 1,
2, and 4 were provided with crossovers. However, belt No. 5,
located more than 1,000 feet from the face, did not have any
crossover facilities to allow persons to cross the belt. When
Slone made his observations the belt was in operation, and he
estimated that the closest crossover to belt No. 5, was
approximately 3,000 feet away. According to Slone, persons are
required to cross the belt to clean it, and to maintain the
rollers and remove dust. He said that crossing the belt while it
is in motion without the use of a crossover facility is a hazard.

 Slone's testimony was not contradicted, and accordingly I

find that the No. 5 belt was not provided with a crossover in
violation of Safeguard No. 3146294.

 Inasmuch as persons desiring to cross the belt to clean it

could either wait until the belt is turned off, or walk to the
closest crossover, I find that the violation herein to be only a
moderate level of gravity. No facts were adduced with regard to
Respondent's negligence, and hence that I cannot find that it was
more than a low level. I conclude that a penalty of $30 is
appropriate for this violation.

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G. Citation No. 3146300

 On May 3, 1990, Respondent utilized a miner and two bridge

carriers hooked to one another, to remove coal. The bridge
carriers are moved in tandem with the miner and operated from the
side of the bridge carrier. (Footnote 1) The location of the panel
containing the controls for the operation of the bridge carrier
requires the miner operating it to crawl alongside the carrier.
The operator of the miner is not able to see either the bridge
carriers or their operators. Hence, the bridge carriers are
provided with a switch which allows the operator of the carrier
to de-energize the miner, so as to prevent it, in an emergency,
from running into the carrier and possibly crushing its operator.
The miner itself does not contain an automatic shut off in the
case an emergency.

 On May 3, 1990, when the system was observed by Slone, the

switch at the bridge carrier to stop the miner in the event of an
emergency did not operate, although the switch to stop the
carrier itself did function. Slone issued a Citation alleging a
violation of Section 75.1725 supra. Slone's testimony that the
emergency switch did not operate was not contradicted. Due to the
failure of the switch, there was a danger of the miner running
into the carriers and thus injuring their operators. I thus
conclude that the haulage system at question was not in a safe
condition, and hence Section 75.1725 was violated.

 Slone testified that in 1977 a fatality had occurred when an

operator of a bridge carrier was crushed against the rib by a
miner. Slone testified that in backing up the miner, its operator
could not see the bridge carriers or their operators. This
testimony was not contradicted. Hence, since the emergency switch
of the bridge carrier herein did not function, I find that there
was a reasonable likelihood of a reasonably serious injury to the
operator of the carrier. I thus conclude that the violation was
significant and substantial.

 Inasmuch the violation herein could have resulted in a

fatality it is of a high level of gravity. According to Slone's
uncontradicted testimony, Gary Williams, Respondent's
superintendent, informed him when he discussed the violation with
him that he knew that the switch was out. There were no facts
presented at the hearing to mitigate Respondent's negligence. I
find that the degree of Respondent's negligence was of a high
level. I conclude that a penalty of $300 is appropriate for this
violation.

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II. Docket No. KENT 90-60

 A. Order No. 3146287

 In essence Slone testified that when observed by him on

April 16, 1990, a portable sanitary toilet located on the surface
of Respondent's mine was locked with a padlock. He said that
inside the shop a key was hanging on a nail 12 feet above the
floor, and a sign indicated that it was a toilet key. Slone
issued an Order alleging a violation of 30 C.F.R. 75.500.

 Respondent did not contradict Slone's testimony. Hence, I

find that Respondent herein did violate Section 75.500 supra
which requires the provision of a sanitary toilet.

 I find that the level gravity of this violation was low.

According to Slone, Williams did not give him any reason why the
toilet was locked. There were no facts adduced to mitigate
Respondent's negligence. I find that the violation herein
resulted from Respondent's intentional act. I find that a penalty
of $500 accordingly is appropriate.

B. Citation No. 3146291

 At the hearing, Respondent moved to withdraw its Answer with

regard to this citation. Accordingly, judgment is entered in
favor of the Secretary based on the pleadings. Respondent shall
pay a civil penalty of $50, the amount sought in the Secretary's
Petition.

III. Docket No. VA 90-62

 At the hearing, the Respondent moved to withdraw its

pleading in regard to this docket number. The motion was granted,
and accordingly judgment is entered on the pleadings in favor of
the Secretary. Respondent shall pay a civil penalty of $364, the
amount sought in the Secretary's Petition.

                                 ORDER

 It is ORDERED that Citation No. 2968870 be DISMISSED. It is

further ORDERED that Judgment be entered in favor of the
Petitioner with regard to Citation No. 3146291, and regard to
Docket VA 90-62. It is further ORDERED that Respondent pay,
within 30 days of this Decision, $1,644 as a civil penalty.

                                     Avram Weisberger
                                     Administrative Law Judge

Footnote starts here:

 1. Each carrier has its own operator.