Price River Coal Company, Successor to Braztah Corporation (ALJ decision, March 16, 1982)

Plain-English summary

MSHA cited Price River Coal's predecessor for combustible material along a surface belt at the Braztah No. 5 Mine. Coal dust had accumulated under the conveyor, and coal, weeds, paper, and oil cans were nearby. Judge John J. Morris rejected the company's argument that the citation was too vague because it identified the condition and the company began to correct it. He found the violation grave, credited the company's abatement, and affirmed Citation 789593 with a $395 penalty.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 77.1104.
• Outcome: Citation 789593 affirmed; $395 penalty assessed.
• Key point: The citation described the combustible accumulations with enough detail to permit abatement.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. PRICE COAL
DDATE:
19820316
TTEXT:
~493

Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR,
CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
DOCKET NO. WEST 79-366
PETITIONER
v. A/C No. 42-01202-03019

PRICE RIVER COAL COMPANY,
MINE: Braztah No. 5
SUCCESSOR TO
BRAZTAH CORPORATION,
RESPONDENT

Appearances:

Phyllis K. Caldwell Esq.
Office of Henry C. Mahlman, Regional Solicitor United States Department of Labor Denver, Colorado, For the Petitioner

Stanley V. Litizzette Esq.
Price River Coal Company
Helper, Utah,
For the Respondent

Before: Judge John J. Morris

DECISION

The Secretary of Labor, on behalf of the Federal Mine Safety and Health Administration, (MSHA), charges respondent Price River Coal Company, successor in interest to Braztah Corporation, with violating a safety regulation (FOOTNOTE 1) adopted under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq. Respondent denies the violation occurred.
~494
After notice to the parties a hearing on the merits was held on March 19, 1981 in Salt Lake City, Utah. The parties waived the filing of post trial briefs.

ISSUES

The issues are whether the citation was vague, whether Price violated the regulation and, if so, what penalty, is appropriate.

SUMMARY OF THE EVIDENCE

On June 12, 1979, MSHA's duly authorized representative Blake Hanna and Braztah safety manager John Tatton, inspected the mine (Tr. 11, 13, 82, 83).

Over a period of time coal dust, the consistency of sand, had accumulated two to six inches deep along the full 1200 foot length of the #4 belt conveyor. The 42 inch wide conveyor was touching the pile for about 12 feet (Tr. 13, 14, 19-23, 28, P1, P2).

A pile of coal dust, estimated to weigh 10 tons, was located 33 to 60 feet from the mine fan (Tr. 45, 58, P1, P2).

Dry tumble weeds, brush and small pieces of paper were under a nearby bridge (Tr. 27, P2).

Oil cans, weeds, and grease cartridges littered the area (Tr. 18, 19, 41, P1, P2).

Ignition sources included possible spontaneous combustion from the accumulated coal dust, a nearby battery charging station, a welder, and electrical boxes (Tr. 17, 22-23, 28-29, 42, P1).

DISCUSSION

Respondent contends that the citation is vague (Tr. 10, 107). The citation issued on the day on the inspection recites that Section 77.1104 was violated and it further reads as follows:

The operating number 4 surface belt had accumulations of fine dry coal dust and other combustible materials, from the number 4 portal to the tailpiece (amended to headpiece, Tr. 7), a distance of about 1200 feet.

The fine dry coal dust was from 2" to 6" deep under the belt. A pile of loose coal (about 10 tons) was stored within 60 feet of the mine fan. Dry weeds, wood, paper, and empty oil cans were scattered throughout most of the area surrounding the belt.

Section 104(a) of the Act requires, in part, that a citation be in writing and "shall describe with particularity the nature of the violation." In this case the company safety inspector had no difficulty in starting to abate the violative conditions. In fact, the next morning when a closure order was issued Tatton told the inspector he didn't know why the ~495 work wasn't finished (Tr. 88). I find no merit to respondent's argument. Cf Jim Walter Resources, Inc., 1 FMSHRC 1827 (November, 1979).

CIVIL PENALTY

Section 110(i) of the Act [30 U.S.C. 820(i)] provides as follows:

The Commission shall have authority to assess all civil penalties provided in this Act. In assessing civil monetary penalties, the Commission shall consider the operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation.

The parties stipulated that Price employes 870 miners and this particular mine produces 2400 tons of coal a day (Tr. 5).

The gravity is severe. I consider the negligence of respondent to be relatively high although in its favor is the fact that it did abate the violative conditions.

Considering the statutory criteria I am unwilling to disturb the proposed civil penalty of $395.

Based on the foregoing findings of fact and conclusions of law I enter the following

ORDER

Citation 789593 and the proposed civil penalty therefor are AFFIRMED.

John J. Morris
Administrative Law Judge

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~FOOTNOTE_ONE
1 The cited regulation, 30 C.F.R. 77.1104 provides as follows:

77.1104 Accumulations of combustible materials.

Combustible materials, grease, lubricants, paints, or flammable liquids shall not be allowed to accumulate where they can create a fire hazard.