Jewell Smokeless Coal Corporation

Read the official release (fmshrc.gov)

Plain-English summary

MSHA cited Jewell Smokeless Coal after a trip of two loaded and one empty railcars became detached from its restraining hook at the Coronet Jewell Preparation Plant. The cars moved out of control, collided with other cars, and injured employee Benny Shook, who suffered broken ribs. Judge George A. Koutras found that the cars were not kept under control as required by 30 C.F.R. § 77.1607(v), and that the violation was significant and substantial. He affirmed moderate negligence and a $58 civil penalty, noting that the plant had promptly abated the condition.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.1607(v)
• Outcome: The S&S citation and $58 civil penalty were affirmed.
• Key point: A railcar-control failure can be S&S when out-of-control cars create a reasonable likelihood of injury, even if the actual injury is less severe than other foreseeable outcomes.

Full text (FMSHRC public release)

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 92-82
Petitioner : A.C. No. 44-00649-03541
v. :
: Coronet Jewell Prep Plant
JEWELL SMOKELESS COAL :
CORPORATION, :
Respondent :

                           DECISION

Appearances: Tina Mullins, Esq., Glenn M. Loos, Esq., Office of
the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for the Petitioner;
Charlie R. Jessee, Esq., Jessee & Read, Abingdon,
Virginia, for the Respondent.

Before: Judge Koutras

                  Statement of the Case

 This is a civil penalty proceeding initiated by the

petitioner against the respondent pursuant to section 110(a) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
820(a). Petitioner seeks a civil penalty assessment in th
amount of $58, for an alleged violation of mandatory safety
standard 30 C.F.R. 77.1607(v). The respondent filed a timely
answer contesting the alleged violation, and a hearing was held
in Grundy, Virginia. The parties filed posthearing arguments,
and I have considered them in my adjudication of this matter.

                            Issues

 The issues presented in this proceeding are (1) whether the

respondent has violated the cited standard as alleged in the
proposal for assessment of civil penalty; (2) whether the alleged
violation was significant and substantial (S&S); and (3) the
appropriate civil penalty that should be assessed for the
violation based upon the civil penalty assessment criteria found
in section 110(i) of the Act. Additional issues raised by the
parties are identified and disposed of in the course of this
decision.

        Applicable Statutory and Regulatory Provisions

  1. The Federal Mine Safety and Health Act of 1977; Pub. L.
  95-164, 30 U.S.C.  801 et seq.

  2.   Section 110(i) of the 1977 Act, 30 U.S.C.        820(i).

  3.   30 C.F.R.   77.1607(v).

  4.   Commission Rules, 29 C.F.R.     2700.1 et seq.

            Stipulations and Admissions (Tr. 5-9).

  1. The respondent is the owner and operator of the Coronet
  Jewell Preparation Plant, and its operations at that plant
  are subject to the jurisdiction of the Mine Act.

  2. The Commission and the presiding judge have jurisdiction
  to hear and decide this matter.

  3. The inspector who issued the contested citation was
  acting in his official capacity as an authorized
  representative of the Secretary of Labor.

  4. True copies of the citation were served on the
  respondent or its agent.

  5. Assuming a violation is established, the payment of the
  proposed civil penalty assessment will not adversely affect
  the respondent's ability to continue in business.

  6. The cited condition or practice was timely and
  immediately abated by the respondent.

  7. The preparation plant annual coal production in 1991 was
  two-million tons, and the plant is a medium sized operation.

  8. The respondent's history of prior violations is shown in
  an MSHA computer print-out covering the period October 1,
  1989 through September 30, 1991 (Exhibit P-5).

                          Discussion

 Section 104(a) "S&S" Citation No. 3507478, issued on

October 17, 1991, by MSHA Inspector Robert P. Davis, cites an
alleged violation of mandatory safety standard 30 C.F.R.
77.1607(v), and the cited condition or practice states a
follows:

  Railcars were not being kept under control at the raw
  coal shakeout area on 10-1-91, when the car hoist cable
  hook slipped out of the hook eye on railcar and two

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loaded and one empty car got away (Run Away), and one
employee was injured while making an attempt to stop
the cars. The run away cars rammed loaded cars and
threw the employee against the end of the cars causing
injury to the employee's ribs.

Petitioner's Testimony and Evidence

 Gary R. Buckland, employed by the respondent as a utility

person, testified as to his training and seventeen years of
experience on the job, and he confirmed that he worked at the
shake out area of the plant. He described his duties and the
procedures for shaking and dropping the railroad cars from the
shake out area to the load out area. He stated that the cars are
dropped by hand, and one person is on the car operating the hand
brake while it is dropping down to the load out area after it has
been emptied at the shake out area. He confirmed that he was
aware of the accident of October 1, 1991, which resulted in an
injury to Mr. Benny Shook. Mr. Buckland stated that a trip of
two loaded cars and an empty car became unhooked from a cable and
hook apparatus which holds the cars in place during the shake out
and they began rolling freely towards the load out area.

 Mr. Buckland described what he was doing at the time he was

positioning the cars at the shake out area, and he stated that
while he was in the process of pulling one of the cars into
position he observed that the cable hook was still on the car,
and that "it must have rolled another foot on farther backwards
when I quit looking at it". He then proceeded to attend to
another car and that when he "turned around and looked, two loads
and an empty, I guess,, about a car length past the shake out or
farther, they came off the hook and started rolling freely
themselves" (Tr. 25).

 Mr. Buckland stated that he ran after the cars and climbed

on one of the loaded cars and tried to tighten the brake.
However, the car had no brakes and he climbed down the ladder and
jumped off. The cars continued to roll as he chased after them,
and they collided with three other cars at the load out area, and
this slowed them down. As the cars proceeded under the tipple, he
climbed on one of the cars that had escaped from the shake out
area and attempted to set the brake, and Mr. Shook climbed on one
of the cars that had broken free at the load out area after the
initial collision. However, the two trips came together and
collided with other loaded cars parked on the tracks below the
tipple, and Mr. Shook was thrown off and injured his ribs,
(Tr. 20-28).

 Mr. Buckland disagreed with the respondent's contention that

no "runaway" occurred, and he did not believe that the cars that
got away drifted slowly. However, he did not know how fast the
cars were moving, and he stated that "they had to start out slow

to get fast" (Tr. 29). He stated that two people are used to
shake each car and that one person is always on the car
tightening the brakes to stop it. He confirmed that prior to the
accident, the hook that attaches to the car to hold it in place
"would come out sometimes three times a day, sometimes three
times a week", but that since a chain has been installed on the
hook, it does not slip free anymore (Tr. 29-31).

 Mr. Buckland explained the safety procedures for runaway

cars, including the use of warning sirens, oral instructions to
try and catch and stop the cars if they get away, and the use of
a safety belt while on the car (Tr. 32-33). He stated that there
were occasions when the cars had no brakes, but that this was
"very seldom" and that "you can run into that" (Tr. 34). He
stated that if a car gets away and causes some damage it is
reported to a supervisor, but if he catches up to a car and gets
it under control, and no damage has occurred, it is not reported
(Tr. 34).

 On cross-examination, Mr. Buckland stated that during his

17 years with the company there have been no other incidents such
as the one which occurred on October 1, 1991. He confirmed that
Mr. Shook had his safety belt on at the time of the accident.
He also believed that the respondent is a safety conscious
company and he confirmed that it received the corporate
president's safety award and numerous other safety commendations.
Mr. Buckland further explained how he attempted to stop the cars
which had moved away from the shake out area at the time of the
accident, and he confirmed that when he tightened the brake down
it failed. If the brake had not failed, there would have been no
accident (Tr. 40). Mr. Buckland could not recall any conver-
sations that he may have had with Inspector Davis in October,
1991 (Tr. 41). He confirmed that he has never reported a
disengaged car hook to his foreman (Tr. 38).

 Benny H. Shook, testified that he has been employed by the

respondent for approximately 15 years, and that he has worked as
a railroad car dropper for the past four years. He confirmed
that he has received safety training from the respondent and that
he has 36 years of preparation plant experience. He described
his work in the load out area and he explained how the empty cars
are dropped from the shake out area to the load out area for
loading. He explained that there is always someone on one of the
three-car trips that are dropped, and that this person operates
the brake wheel which is tightened by hand to control the cars
(Tr. 46-47).

 Mr. Shook stated that the accident happened after a trip of

two loaded and one empty railroad cars "got loose at the shake
out", but he did not see them come loose and had no first hand

knowledge as to how they got away. He described what occurred as
follows at (Tr. 48):

  A. And the three cars came down and there was a young man
  on them, Gary Buckland, trying to stop them. They hit the
  cars that we had on our load out rope. It broke that rope
  and they started running away. So, I got one car and set a
  brake. Got off of it and got on another car and set a
  brake. Now, by this time I...we had somewhere between three
  and five cars on our rope and them the three that he come
  with down, with, the empty and two loads. And by the time
  we got the brakes set on them again, they hit cars that were
  already parked out on the lower yard ready for shipment.
  When they hit, then I hit against the side of the car like
  against here, broke my ribs.

 Mr. Shook could not estimate how fast the cars were

travelling, and he confirmed that he had time to catch up to the
first car and set the brake, and then step off and get on the
next car and set that brake. He confirmed that he wore and used
a safety harness while doing this. When asked if he believed
that the cars which came down from the shake out area were "under
control", he responded "No, the boy was trying to get them under
control, but they weren't under control or he would have stopped
them" (Tr. 50). He confirmed that those cars were stopped after
the cars that he was on hit the loaded cars and threw him against
the end of a car (Tr. 50).

 Mr. Shook stated that he was treated at a hospital emergency

room where he was x-rayed and given a complete physical exami-
nation by a doctor. He was diagnosed as having broken ribs, wore
a rib cage protective device for three weeks, but returned to
work the day after he was treated, and was assigned less
strenuous work until he was able to resume his car dropping
duties a week or so later (Tr. 51-52).

 Mr. Shook was of the opinion that a "runaway" occurred and

that he cars that came from the shake out area "ran away", and he
explained as follows at (Tr. 53):

  A. Well, there is a restraining rope on those cars with a
  hook on it and the hook fell off the cars and they were
  below the shake out before Gary got on them to get them
  stopped. And he couldn't get them stopped until they hit
  the ones that we were on. So, I consider that to be a
  runaway. Yes, I do.

  Q. Is a person supposed to be on the cars before they are
  released from the cable?

  A.   Yes.

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Q. And they were not? A person was not on the cars?

  A. Well, they weren't released purposely, so there wasn't
  anyone on it.

  Q.   Would you agree that the cars drifted slowly?

  A. Probably when they first...when the hook first came off
  of them. But, then after they cleared the shake out they
  picked up speed.

 Mr. Shook confirmed that the respondent had established

procedures to be followed in the event a car gets away, and these
include the use of warning devices, safety harnesses, and
instructions not get on a runaway car (Tr. 54-55). He believed
that chains have been installed in conjunction with the use of
eye hooks to keep the hook from falling off, and he confirmed
that prior to the accident, a hook had never come off a car in
the loading area where he worked (Tr. 56). Mr. Shook explained
the car dropping procedures, and he confirmed that the loaded
cars are brought in by the N & W Railroad (Tr. 57-61).

 On cross-examination, Mr. Shook confirmed that he missed no

work as the result of the accident, and he believed that the
respondent is safety conscious and has received safety awards at
its preparation plant. In the 15 years that he has been employed
by the respondent, he was not aware of any prior similar
accidents with personal injury (Tr. 62). He confirmed that the
plant and shake outs have been inspected on numerous occasions by
state and Federal inspectors with the same steel rope cable and
hook in use, and he believed that the respondent was doing what
it thought was safe by using the steel rope and hook assembly
(Tr. 64).

 MSHA Inspector Robert D. Davis, testified that he has served

as an inspector for 17 years and he confirmed that he visited the
respondent's preparation plant on October 17, 1991, as a follow-
up to an accident report filed by the respondent. He stated that
he spoke with plant superintendent Bill Lipps and plant foreman
Jessie Williams, and they basically told him what had been
written up in the accident report. He was told that "the rail
cars had runaway or broke loose from the shake out area and one
man was injured trying to stop the cars" (Tr. 69). He was also
informed that a safety or slack chain was installed in place of
the cable that was previously used and that this chain served to
keep the cable tight (Tr. 70).

 Mr. Davis stated that based on what was reported to him by

Mr. Lipps and Mr. Williams, and the company accident report, he
issued the citation in question. He confirmed that the citation
was not issued because of the accident, but that it was issued

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because the railroad cars were not under control, and it was his
opinion that this constituted a violation of section 77.1607(v)
(Tr. 70-71). He confirmed that he made a finding of "moderate"
negligence because "I felt that management should keep a
better . . . if this had happened before, then something should
have been done before" (Tr. 72). He also believed that the
violation was "significant and substantial", and he explained as
follows at (Tr. 71-72):

 A.   Well, it met the criteria of and S & S citation.

 Q.   What is that?

 A. Condition existed, if not corrected, it reason...likely
 cause an accident.

 Q.   Now, what kind of accident would occur?

 A.   And if it did occur, it would cause serious injury.

 Q. What kind of accident can you envision with the cars
 getting away?

 A. Well, get caught in the cars, throw their feet under the
 track and get their leg cut off or crushed, fatal injuries.

 Q. And those would be more serious than the accident that
 occurred in this case?

 A.   Yeah.

 Q. How likely do you think it is that an injury...that
 injuries would occur because of rail cars getting away?

 A. It would be reasonably likely that, you know, over a
 period of time this keep happening, maybe.

 Inspector Davis agreed that his citation only makes

reference to one set of cars, two loaded and one empty, when in
fact the testimony of the prior witnesses that two sets of cars
were out of control is correct. However, he did not believe that
this made any difference and that a violation still existed. He
also believed that appropriate safety procedures were not being
followed because the cars would not have gotten away if the
employees were more alert. He confirmed that there are no MSHA
safety standards covering the use of car hooks or protective
devices to prevent the hooks from coming off (Tr. 73-76).

 On cross-examination, Mr. Davis stated that he based his

"significant and substantial" finding on the fact that the cars
were not being controlled at the time of the accident. He

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confirmed that the likeliness of an occurrence is to be
considered when making such a finding, and the fact that such an
incident may have occurred in the past is part of the criteria
for an "S&S" finding (Tr. 76-77). He conceded that at the time
he made his finding he had no knowledge as to whether any
accidents of the kind in question had occurred in the past, and
stated that "anytime the railroad cars get away, there is a
chance that someone could get hurt" (Tr. 78). He further
conceded that he did not determine whether the kind of injury
suffered by Mr. Shook had ever occurred in the past, and he
disagreed that one incident or injury in the past 15 years would
constitute an unlikely event because "you just heard those two
fellows say those hooks come out often" (Tr. 81).

 Mr. Davis denied that he had the citation prepared when he

visited the plant on October 17, 1991, or that he had previously
discussed what he would write with his supervisor before going to
the mine site. He confirmed that he did not speak with Mr. Shook
or Mr. Buckland prior to issuing the citation, and although he
actually observed no violation taking place, he went to the area
where the accident occurred and took some notes (Tr. 85-87). He
further explained the basis for his "S&S" finding as follows at
(Tr. 90-91).

 Q. It's not. What parameters do you use then, to determine
 that an injury is likely?

 A. If this condition would reasonably cause...if it
 occurred, it would cause an accident and if that..if those
 rail cars are not under control, it could reasonably cause
 an accident.

 Q. But what parameters did you use to determine what
 was reasonably likely to have occurred?

 A.   To people at work?

 Q. Do you not have to...let me help you a little bit. An
 injury of illness has to be reasonably likely to occur,
 before you can write a S&S violation, does it not, sir?

 A.   Yes, yes.

 Mr. Davis confirmed that he is required to substantiate an

"S&S" violation, and that he made notes and relied on the
information given him by Mr. Lipps and Mr. Williams. Mr. Davis
conceded that he did not bother to determine whether Mr. Buckland
had applied the car brakes, where Mr. Shook was located when he
was injured, or the extent of his injuries, and that he "just
tried to determine if the cars were under control at the time of
the accident" (Tr. 94). Mr. Davis stated that an S&S violation
could be issued even if there were no injury, but that the

potential for an injury may be considered, and if an injury did
in fact occur, he may consider the seriousness of the injury as
part of his finding (Tr. 95).

 Mr. Davis confirmed that prior to issuing the citation he

made no determination as to whether or not mine management had
any indication of prior problems with the car hook. He explained
that he based his negligence finding on the fact that the hook
did come out, and that "if somebody wasn't negligent, the hook
wouldn't have come out. It would have been a better system"
(Tr. 97). He agreed that there was no regulatory safety standard
concerning car hooks, and he confirmed that he had inspected the
shake out area on prior occasions and has observed cars being
pulled by the hooks that were used at the time of the accident.
He was not aware of any prior violations concerning car hooks or
the shake out area (Tr. 98-99). He agreed that the use of a
hook, or a chain which is presently in use, does not in and of
itself constitute a violation. He also agreed that an accident
would not have occurred if the car brakes had worked
(Tr. 99-100).

 Mr. Davis reiterated that he issued the citation because the

cars were out of control, and not because an accident occurred.
He stated that the cars were out of control because "the hook had
come out of the eye", and that "the brake did have a bearing on
it. I don't know if he could get there in time to apply the
brake or not" (Tr. 100). Mr. Davis believed that a "reasonably
serious accident" is "one that could cause an accident if not
corrected" (Tr. 101). He did not personally know that Mr. Shook
had a broken rib at the time he wrote the citation on October 17,
1991, and he agreed that the accident would not have occurred if
Mr. Buckland, the car dropper, had been paying attention
(Tr. 105). Since the cars were not under control, a violation
had to exist, and it was the result of moderate negligence on the
part of the respondent (Tr. 105-106).

 Mr. Davis agreed that the respondent has a good safety

record, and in response to a question as to whether the
respondent "was really negligent", Mr. Davis responded "I think
they could have through training, they could have been more alert
on what's going on over there, the employees, I think". He
explained that the employees on the job should have been more
alert, and if they had been watching the eye hook, they could
have prevented it from coming out (Tr. 108). He confirmed that a
car dropper has a duty to keep an eye on the hook (Tr. 112).

Respondent's Testimony and Evidence

 Jessie Ray Williams stated that he has served as plant

foreman for the past 11 years, that the shake out area has
existed for 14 years, and that the cable hook configuration at

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the car spotter hoist has been in use during this entire time.
He confirmed that there have been no prior incidents, accidents,
or injuries involving cars drifting down to the plant because of
a car hook coming loose. He stated that the car hooks in use at
the time of the accident were especially designed to be handled
safely, and no one ever informed him that there was a hook
problem prior to that incident. He believed that the hook that
was being used at that time was "state of the art" and standard
for the industry (Tr. 117).

 Mr. Williams stated that Mr. Buckland admitted that the

accident would not have happened if he had been paying attention,
and also informed him that the cars would not have collided if
the brakes had worked. Mr. Williams confirmed that Mr. Shook
missed no work because of the accident, and that he and
Mr. Buckland were wearing safety belts. He confirmed that the
respondent is a safety conscious company, and that the plant has
recently received safety awards, including the company
president's award and an honorable mention from the State of
Virginia. He confirmed that the shake out area and hook
arrangement have been inspected may times by MSHA, that no
violations have ever been previously issued because of that
arrangement, and that no inspectors have ever suggested any
better method of hooking cars (Tr. 119).

 Mr. Williams described the yard grade from the shake out

area to the preparation plant 575 feet away as one percent, and
less in places, and he did not believe that this was a very steep
grade. He confirmed that the cars will roll freely from the
shake out area to the plant, starting at a gradual speed, and
building up speed if they are let go, and depending on whether
they are empty or loaded. He stated that some impact is
desirable in order to facilitate the closing of the car couplings
(Tr. 121).

 On cross-examination, Mr. Williams stated that he has never

observed the car hook come out of the eye, and that none of his
employees have ever informed him of such an occurrence. Although
Mr. Shook and Mr. Buckland were wearing safety belts at the time
of the accident, he did not know if they were using them, and he
did not ask them about it when he spoke with them during his
accident investigation. He confirmed that it was not uncommon
for railroad car brakes to fail as the cars travel from the shake
out area to the load out area. He stated that "you get quite a
few railroad cars with bad brakes on it", and that the Norfolk
Southern Railroad, and not the respondent, owns the cars and
maintains the brakes (Tr. 123).

 In response to further questions, Mr. Williams stated that

he was familiar with an accident and a violation at the Bedrock
Pocahontas Company, similar to the one in this case, and that no
violation was issued by MSHA (Tr. 124). He stated that the

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respondent cannot maintain the railroad cars which it does not
own, and it cannot determine whether a car brake is defective
before it comes on mine property (Tr. 126). He explained the
operation of the car hook, and confirmed that three cars are
coupled together when they are at the shake out area, and that
the hook is attached to a cable that is attached to a car hoist.
The chain which was attached after the accident has slack in it
to keep the hook in place and to prevent it from being pushed out
of the eye hole when a car is pulled back (Tr. 131-135).

                 Findings and Conclusions

Fact of Violation

 The respondent is charged with a violation of mandatory

safety standard 30 C.F.R. 77.1607(v), for failure to keep
certain railcars under control at the raw coal shake out area of
the preparation plant. A trip of three cars got away after the
car hoist cable hook slipped out of the hook eye on one of the
railcars, and the cars collided with another trip of cars
resulting in injuries to an employee who was attempting to stop
the cars. The cited standard section 77.1607(v), states as
follows:

 Railroad cars shall be kept under control at all times
 by the car dropper. Cars shall be dropped at a safe
 rate and in a manner that will insure that the car
 dropper maintains a safe position while working and
 traveling around the cars.

 In support of the violation, the petitioner argues that Car

Dropper Buckland's testimony clearly establishes that the
railroad cars were out of control, and that the respondent's own
accident report states that "two loaded and one empty railroad
cars had gotten away from shakeout", and that mine superintendent
Lipps and Foreman Williams acknowledged to Inspector Davis that
the railroad cars had gotten away. Further, another eyewitness,
car dropper Shook, corroborated the fact that the railroad cars
coming from the shake out area were not under control. Under all
of these circumstances, the petitioner concludes that the failure
of the car dropper to keep the railroad cars under control
constitutes a violation of section 77.1607(v), and that the cause
or reasons for the cars being out of control, and the car
dropper's inability to stop the cars, are irrelevant to the issue
of whether a violation occurred.

 The respondent argues that the cited regulatory

section 77.1607(v), does not define "under control" or "safe
rate", and is therefore void for vagueness. Respondent also
maintains that the regulation does not provide a remedy to the
mine operator should the car dropper by reason of his own

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negligence, fail to maintain proper control of the equipment to
which he is assigned.

 The respondent argues that but for the negligence of Car

Dropper Buckland, who was admittedly inattentive, the incident in
question would not have occurred. The respondent asserts that
the fact that an accident occurred does not give rise to an
inference of a violation, and it cites the testimony of foreman
Williams that in the 14 years that he worked at the plant a
similar incident had never occurred; that no railroad cars had
ever gotten loose because of the hook coming undone; that the
shakeout area had been inspected many times by MSHA and no
violations had ever been issued because of the hook arrangement;
that no inspector had ever suggested a better method for
attaching the hook; that he had never observed the hook come out
of the cable eye; that no employee had ever told him that the
hook had come out of the eye; and that the hook arrangement as it
existed at the time of the incident was the standard of the
industry.

 The respondent also relies on the testimony of plant

employees Buckland and Shook who testified that no similar
incidents had ever occurred at the plant in the past 17 to
36 years; that Mr. Shook missed no work because of his injury;
that the respondent is a safety-conscious company; and that
Mr. Shook and Mr. Buckland were wearing safety belts at the time
of the incident.

 In Harman Mining Corporation v. Secretary of Labor (MSHA),

3 FMSHRC 45, 62 (January 1981), a railroad employee suffered
fatal injuries after he was struck by a runaway trip of loaded
coal cars. The facts established that after a trip of two cars
was loaded at the preparation plant, a car dropper employed by
Harman Mining proceeded to drop the cars into position to be
coupled with another trip of parked loaded cars and hauled away
by a locomotive. The car dropper started the two cars down the
track, and after picking up speed, he applied pressure to the car
brakes. However, the brakes would not hold, and when the car
dropper was unable to control the cars, he jumped to the ground
and the cars continued on and collided with the parked cars, one
of which ran over and fatally injured the employee who was
engaged in coupling two of the cars. I affirmed a violation of
section 77.1607(v), after concluding that the failure of the car
dropper to maintain control of the cars constituted a violation.

 My decision in the Harman Mining case, supra, was affirmed

by the U.S. Fourth Circuit Court of Appeals on December 24, 1981
2 MSHC 1551. The Court rejected Harman Mining's argument that it
would have been more appropriate for MSHA to cite the railroad
company, as an independent contractor, since it supplied the
railroad cars with faulty brakes and therefore caused Harman's
car dropper to lose control of the cars. The Court held that

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even if the railroad has some degree of culpability, MSHA had
discretionary authority to cite Harman for the violation. Citing
its decision in Bituminous Coal Operators' Ass'n v. Secretary of
the Interior, 547 F.2d 240 (4th Cir. 1977), the Court ruled that
mine operators are absolutely liable for violations regardless of
who violated the Act or created the danger. Subsequent court
decisions have ruled that the Mine Act is a strict liability
statute, and the courts have upheld the mine operator's liability
for violations which resulted from unpreventable and
unforeseeable employee conduct. Western Fuels-Utah, Inc. v.
FMSHRC, 870 F.2d 711 (D.C. Cir. 1989), aff'g 10 FMSHRC 256
(March 25, 1988); Asarco, Inc.-Northwestern Mining Department v.
FMSHRC, 868 F.2d 1195 (10th Cir. 1989), aff'g 8 FMSHRC 1632
(November 10, 1986).

 The Commission has consistently rejected arguments advanced

by mine operators that they should escape liability for a
violation because of unauthorized or careless actions by a miner.
See: A.H. Smith Stone Company, 5 FMSHRC 13 (January 1983);
Southern Ohio Coal Company, 4 FMSHRC 1459, 1462-64 (August 1982);
Sewell Coal Co. v. FMSHRC, 686 F.2D 1066, 1071 (4th Cir. 1982);
Allied Products Co. v. FMSHRC, 666 F.2d 890, 893-94 (5th Cir.
1982).

 The respondent's "void for vagueness" defense IS REJECTED.

The first sentence of section 77.1607(v), requires a car dropper
to keep control of railroad cars at all times. I find nothing
vague about this requirement. I agree with the petitioner's
position with respect to the fact of violation, and I take note
of the fact that the respondent conceded that the car dropper
"allowed three (3) railroad cars to drift free from the shakeout
and roll down the grade (approximately 1%) to the preparation
plant, striking cars located at the preparation plant and causing
the same to drift away from him because of his inattentiveness"
(pags. 2,6, posthearing brief).

 On the facts and evidence presented in this case, it seems

clear to me that the railroad cars in question were out of
control and that the car dropper could not maintain control of
the cars as they drifted and travelled from the shake out area
immediately before they collided with the other cars at the load
out area, causing those cars to drift free and out of control. I
reject the respondent's arguments that it should not be held
liable for the violation because of the negligence of the car
dropper, the absence of similar incidents in the past, or the
lack of prior violations for the same cited condition. These are
matters that may be considered in mitigating the respondent's
negligence, but they may not serve as a basis for absolving the
respondent of liability for the violation. I conclude and find
that the petitioner has established a violation by a
preponderance of the credible testimony and evidence adduced in

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this case. The failure by the car dropper to maintain control of
the loaded cars in question constituted a violation of
section 77.1607(v), and the citation IS AFFIRMED.

Significant and Substantial Violations

 A "significant and substantial" violation is described in

section 104(d)(1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. 814(d)(1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

 In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the

Commission explained its interpretation of the term "significant
and substantial" as follows:

      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 will result
 in an injury; and (4) a reasonable likelihood that the
 injury in question will be of a reasonably serious
 nature.

 In United States Steel Mining Company, Inc., 7 FMSHRC 1125,

1129, (August 1985) the Commission stated further 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); U.S. Steel Mining Company,
 Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

 The question of whether any particular violation is

significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine

involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987). Further, any determination of the significant
and substantial nature of a violation must be made in the context
of continued normal mining operations. National Gypsum, supra,
3 FMSHRC at 825; U.S. Steel Mining Company, 6 FMSHRC 1573, 1574
(July 1984); U.S. Steel Mining Co., Inc., 7 FMSHRC 327, 329
(March 1985). Halfway, Incorporated, 8 FMSHRC 8, (January 1986).

 Citing the applicable case law concerning significant and

substantial violations, the petitioner argues that the evidence
in this case clearly establishes the four-prong test enunciated
by the Commission in Secretary of Labor (MSHA) v. Mathies Coal
Company, supra, for determining whether a violation is
significant and substantial.

 With respect to the underlying violation, the petitioner

asserts that the uncontradicted evidence in this case establishes
that the car dropper failed to keep the railroad cars under
control on October 1, 1991, and that this establishes a violation
of section 77.1607(v). Petitioner argues that the hazard
presented by the violation is the railroad cars being out of
control and subjecting workers to serious injuries, and it cites
the inspector's testimony that he considered the violation to be
significant and substantial because it was reasonably likely that
the railroad cars would become out of control and cause a
reasonably serious injury. Petitioner also cites the testimony
of car droppers Buckland and Shook that the restraining hooks
often came out of the eye of the railroad cars allowing the cars
to come out of control. Petitioner concludes that the frequency
with which the hook slipped out of the eye increased the
likelihood that the cars would come out of control and cause a
serious injury, and it points out that a serious injury actually
occurred in this case as a result of the railroad cars being out
of control. Conceding that the inspector believed that the cars
may not have gotten away if the employees had been more alert,
the petitioner points out that the inspector did not state that
such human error could be avoided, and citing Secretary of Labor
(MSHA) v. Eagle Nest, Inc., 7 FMSHRC 1119 (July 1992), petitioner
concludes that the likelihood of an injury continues to exist
regardless of whether the miners exercise caution.

 Finally, petitioner concludes that it was reasonably likely

that a reasonably serious injury would occur if the railroad cars
were not kept under control by the car dropper. In support of
this conclusion, petitioner cites the testimony of the inspector
that railroad cars which are not kept under control can cause
serious injuries such as being caught between cars, crushing or
cutting off a foot or leg, and fatalities. Petitioner also
relies on the inspector's testimony that in issuing the citation,
he considered the seriousness of any potential injury rather than

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only the injury that actually occurred, and the inspector's
belief that fractured ribs, which is the injury sustained by
Mr. Shook, was a reasonably serious injury.

 The respondent maintains that the inspector issued the

citation without consulting the MSHA Program Policy Manual
guidelines for determining significant and substantial violations
(Exhibit R-7). Citing the applicable manual guidelines, the
respondent asserts that the inspector did not evaluate the actual
circumstances surrounding the purported violation; did not
evaluate the nature of the injury; did not include in his notes
all of the factors he relied upon to make a judgment that the
violation was significant and substantial or that the respond-
ent's negligence was moderate; and did not interview the injured
employee (Shook) or the shake out operator Buckland. Further,
the respondent asserts that the inspector did not know whether
Mr. Shook and Mr. Buckland were wearing safety belts at the time
of the incident in question, and he did not know whether any
other violations were ever written pursuant to section 77.1607(v)
in Southwest Virginia within the last 10 years. Respondent
maintains that such determinations are mandatory in considering
whether or not to label a violation "significant and
substantial", and it concludes that in light of the admitted
failure by the inspector to follow the manual guidelines, his
"S&S" finding cannot stand and should be vacated.

 Although it is true that Inspector Davis admitted that he

did not read the MSHA policy manual "just before" he wrote the
citation (Tr. 110), I cannot conclude that his failure to do so
is grounds for vacating his "S&S" finding. The Commission has
held that the MSHA Manual guidelines and instructions are not
officially promulgated regulatory rules binding on the Commission
or its Judges. Old Ben Coal Company, 2 FMSHRC 2806, 2809
(October 1980); King Knob Coal Company, Inc., 3 FMSHRC 1417, 1420
(June 1981); United States Steel Corp., 5 FMSHRC 3, 6 (January
1983).

 The respondent's suggestions that the absence of prior

accidents involving a car hook slipping out and causing a car to
get out of control, the lack of any evidence that the respondent
and other mine operators in Southwest Virginia have ever been
previously cited for violations of section 77.1607(v), and the
fact that Mr. Shook and Mr. Buckland were wearing their safety
belts, support a finding of a non-"S&S" citation ARE REJECTED.
These are matters that may or may not mitigate the respondent's
negligence and its history of prior compliance.

 The term "significant and substantial", in the context of a

violation within the meaning of section 104(d)(1) of the Act, has
been interpreted by the Commission in the principal cases
enumerated earlier in this decision. In the instant case, the
critical question presented is whether or not the evidence

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presented by MSHA in support of the inspector's "S&S" finding,
which is essentially the same information that he had at his
disposal and considered at the time he issued the citation and
made that finding on October 17, 1991, meets the "S&S" criteria
enunciated by the Commission.

 The evidence in this case reflects that the citation was

issued more than two weeks after the October 1, 1991, accident.
The inspector went to the mine on October 17, 1991, as a follow-
up to the accident report that was filed by the respondent. The
inspector's credible and unrebutted testimony reflects that he
spoke with the plant superintendent and plant foreman (Williams
and Lipps), who corroborated the information supplied by the
respondent in the accident reports (Secretary's Exhibits 2 and
3), did not contradict that information. In fact, they confirmed
and agreed that the cars in question had gotten away.
Mr. Williams did not dispute the inspector's testimony, and
Mr. Lipps did not testify in this matter. Under these circum-
stances, it seems clear to me that the inspector relied on the
information supplied by the respondent's accident reports, made
some notes, and considered the information from the
superintendent and foreman to support his finding that a
violation had occurred and that it was significant and
substantial.

 On the facts and evidence adduced in this case, it seems

clear to me that the failure of the car dropper to keep the cars
under control, a condition which I have found constituted a
violation of section 77.1607(v), contributed to the cause and
effect of a discreet safety hazard, namely the real potential of
a car drifting or travelling out of control and striking other
cars or miners working the area. Once a car is out of control,
particularly in a situation where the car has bad brakes that are
subject to failure, I believe that one can reasonably conclude
that miners working in the area would be exposed to the hazard.
In this case, not only was there a reasonable likelihood that the
hazard contributed to would result in an injury, the hazard came
to fruition when the cars got away and caused or contributed to
the accident that resulted in an injury to Mr. Shook's ribs. The
fact that Mr. Shook did not suffer more serious injuries and lost
no time from work is not determinative, Secretary v. Ozark-
Mahoning Company, 8 FMSHRC 190 (February 1986). I take note of
the fact that Mr. Shook's unrebutted testimony reflects that he
was assigned to less strenuous duties, had to wear a rib cage
protective device for three weeks, and did not resume his normal
car dropper's duties until a week or so after returning to work a
day after the accident.

 After careful review and consideration of all of the

evidence in this case, including the arguments advanced by the
parties in support of their respective positions, I conclude and
find that the petitioner has the better part of the argument and

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that it has established by a preponderance of the evidence that
the cited violative conditions in question constituted a
significant and substantial violation of mandatory safety
section 77.1607(v). Accordingly, the inspector's "S&S" finding
IS AFFIRMED.

Negligence

 Inspector Davis testified that he based his moderate

negligence finding on what he was told by Mr. Lipps and
Mr. Williams with respect to how the accident occurred.
Mr. Davis conceded that prior to issuing the citation he made no
determination as to whether or not mine management had any
indication that the car hook had been a problem, and he stated
that "if somebody wasn't negligent, the hook wouldn't have come
out. I would have a better system" (Tr. 96-96).

 In support of the inspector's moderate negligence finding,

the petitioner relies on the testimony of car dropper Buckland
who estimated that prior to the accident, the hook came out of
the railroad cars between three times a day and three times a
week, that co-workers had reported this problem to their
supervisor, and that since the respondent installed a slack
chain, the hook no longer slips out of the car. Conceding the
fact that there is no statutory or regulatory requirement
regarding the type of cable system used, the petitioner concludes
that the cable system in use at the time of the accident left
room for improvement, and that the installation of the slack
chain was not a difficult or time-consuming procedure. Under all
of these circumstances, the petitioner further concludes that the
respondent was moderately negligent by failing to ensure that the
railroad cars did not become out of control.

 In reply to the respondent's assertion that it was not

negligent because MSHA had inspected the shake out area may times
before but had never issued a citation for using the cable hoist
system without a slack chain, the petitioner points out that the
inspector explained that the hoist system itself did not
constitute a violation, and the violation occurred when the hook
slopped out of the eye of the railroad car allowing the cars to
become out of control. Since MSHA had never observed the cars
out of control, and had not otherwise been informed that they had
become out of control, petitioner maintains that no basis existed
for issuing prior citations for such an occurrence.

 Regarding the respondent's contention that the cable hoist

system in use at the time of the accident was "state of the art",
and the "industry standard", petitioner suggests that even if
this were true, the industry standard is unsafe and subject to
failure, and the fact that the respondent quickly and easily
installed a slack chain shortly after the accident to prevent the
hook from slipping out of the eye of the cars shows that the

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system in use allowed room for improvement. Further, since the
cars often got away, petitioner concludes that the respondent
should have taken corrective action sooner to prevent an accident
from occurring. The petitioner further concludes that the fact
that no prior accidents had occurred due to the hook slipping out
of the eye does not excuse the respondent's failure to take
corrective action sooner, particularly in light of the evidence
that the hook often slipped out of the eye and caused the cars to
get away, and that this condition previously had been reported to
the supervisor. Petitioner believes that the fact that the
respondent has been lucky and has avoided prior accidents by
stopping the cars quickly does not support a reduction in the
degree of negligence.

 In reply to the respondent's suggestion that the accident

would not have occurred if the railroad car brakes had worked,
petitioner concedes that the inspector acknowledged that properly
functioning brakes may have prevented the accident, but it cites
the inspector's testimony that the cars were out of control
before the car dropper ever applied the brakes. Consequently,
regardless of whether the brakes functioned properly, and in
light of foreman Williams' testimony that the respondent was
aware of the bad brake problem and received quite a few railroad
cars with bad brakes, petitioner concludes that the respondent's
knowledge of the brake problem also supports a finding of
moderate negligence.

 Aside from the respondent's liability for the violation, the

conduct of an employee may mitigate the degree of negligence, if
any, of the mine operator for the violation. A.H. Smith Stone
Company, 5 FMSHRC 13, 15 (January 1983). In cases of this kind,
the judge may consider the foreseeability of the miner's conduct,
the risks involved, and the operator's supervising, training, and
disciplining of its employees to prevent a violation. Southern
Ohio Coal Co., 4 FMSHRC 1459, 1463-64 (August 1982); Nacco Mining
Co., 3 FMSHRC 848, 850-51 (April 1981), Western Fuels-Utah, Inc.,
10 FMSHRC 256, 259-60 (March 1988).

 Mr. Shook testified that prior to the accident, he was not

aware of a hook ever coming off a car in the area where he
worked, and there is no evidence that the ever reported such an
incident to mine management. Although Mr. Buckland testified
that the hook came out rather often, he admitted that he had
never reported this to management, and while he also testified
that "other men" had reported it to their supervisor, none of
these unidentified individuals were called to testify, and I have
given Mr. Buckland's hearsay testimony in this regard no weight.
Plant Foreman Williams' testimony that no one had ever previously
reported a hook slipping out of the car stands unrebutted, and I
find no credible evidence to support any conclusion that the
respondent was previously aware of the problem.

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Mr. Buckland and Mr. Shook confirmed that the respondent had
safety procedures in effect to deal with runaway cars, that they
were wearing safety belts at the time of the incident, and there
is no evidence that they were not adequately trained by the
respondent to perform their respective job tasks. However, I
take note of Mr. Shook's testimony that the respondent's safety
procedures include instructions prohibiting anyone from getting
on a runaway car, and Mr. Buckland's contradictory testimony
concerning "oral instructions" that he is to attempt to "catch
and stop the cars if they get away", and that "get away" cars are
not reported to management unless some damage has occurred
(Tr. 34, 54-55). The respondent may wish to reexamine its safety
procedures in light of this testimony.

 I find no evidence to support any reasonable conclusion that

the respondent could have foreseen the lack of attention on the
part of Mr. Buckland which initially resulted in the first trip
of cars drifting away from the shake out area and rolling freely
towards the load out area. However, on the facts of this case,
one of the contributing factors to the accident was the failure
of the brakes on the trip of railroad cars that got away from
Mr. Buckland. If the brakes had not failed, I believe that it is
reasonable to conclude that Mr. Buckland could have brought the
cars under control and the initial collision with the other cars
may have been avoided. However, the brakes did fail, and foreman
Williams candidly admitted that the respondent accepted railroad
cars with bad brakes for use at the plant, and that it was not
uncommon for car brakes to fail as the cars travelled from the
shake out area to the load out area. Under the circumstances,
and notwithstanding the lack of knowledge by the respondent that
car hooks have come loose in the past, I conclude and find that
the respondent should have foreseen that the acceptance and use
of railroad cars with faulty brakes at its preparation plant
property posed a potential accident hazard. Under the
circumstances, the moderate negligence finding by the inspector
IS AFFIRMED.

 Size of Business and Effect of Civil Penalty Assessment on

the Respondent's Ability to Continue in Business

 The parties have stipulated that the Coronet Jewell

Preparation Plant is a medium-sized operation, and the unrebutted
information found in an MSHA computerized "Proposed Assessment
Data Sheet" (Exhibit P-6), reflects that the respondent's overall
corporate mine production was in excess of twenty-three (23)
million tons in 1990. This same production information is also
reflected in the Proposed Assessment (Exhibit A), which is part
of the initial civil penalty assessment pleading served by the
Secretary on the respondent. I conclude and find that the
respondent is a large mine operator, and the parties have
stipulated that the payment of the proposed civil penalty

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assessment for the violation in question will not adversely
affect the respondent's ability to continue in business.

History of Prior Violations

 An MSHA computer print-out (Exhibit P-5), reflects that for

the period October 1, 1989, to September 30, 1991, the respondent
paid civil penalty assessments for twenty-two (22) violations
issued at the plant. None of these prior violations involved the
same safety standard in issue in this case, and the petitioner
believes that the respondent has a low history of violations. I
agree with the petitioner in this regard, and for an operation of
its size, I conclude and find tht the respondent has a good
compliance record, and I have taken this into consideration in
assessing the civil penalty for the violation which has been
affirmed.

Good Faith Compliance

 The parties stipulated that the respondent timely and

immediately abated the violation, and I adopt this as my finding
on this issue and have taken it into consideration in this case.

Gravity

 Based on all of the evidence adduced in this case, including

my "S&S" findings, I believe that Mr. Shook was fortunate in
avoiding more serious injuries, and I conclude and find that the
violation was serious.
Civil Penalty Assessment

 Taking into consideration all of the civil penalty

assessment criteria found in section 110(i) of the Act, I
conclude and find that the petitioner's proposed civil penalty
assessment of $58, for the violation in question is reasonable,
and IT IS AFFIRMED.
ORDER

 The respondent IS ORDERED to pay a civil penalty assessment

of $58, for the section 104(a) "S&S" Citation No. 3507478,
October 17, 1991, 30 C.F.R. 77.1607(v). Payment is to be made
to MSHA within thirty (30) days of this decision and Order, and
upon receipt of payment, this matter is dismissed.
George A. Koutras
Administrative Law Judge

Distribution:

Tina Mullins, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203
(Certified Mail)

Charlie R. Jessee, Esq., Jessee & Read, P.C., 200 W. Valley
Street, Abingdon, VA 24210 (Certified Mail)

/ml