Utah Power & Light Company
Utah Power & Light Company (FMSHRC WEST 89-161-R): Coal-cuttings order upheld
Apply this to your situation
This order from 1989 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
Utah Power & Light Company contested a section 104(d)(1) order alleging that coal cuttings had accumulated behind a line curtain in an active underground mine section. The judge found that roughly 500 to 800 pounds of loose coal had accumulated over more than 100 feet and that the operator's cleanup plan could not override the mandatory requirement to remove combustible accumulations. The violation was found significant and substantial and resulted from unwarrantable failure because management knew about the cleanup issue but relied on a conflicting plan. The contest was dismissed and the order was upheld.
Decision snapshot
- Cited standard: 30 C.F.R. § 75.400
- Outcome: The contest of Order No. 2876489 was dismissed and the order was upheld.
- Key point: An operator's cleanup plan cannot authorize combustible accumulations that the mandatory standard prohibits.
Full text (FMSHRC public release)
CCASE:
UTAH POWER & LIGHT V. SOL (MSHA)
DDATE:
19890424
TTEXT:
Page 2
~710
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges
UTAH POWER & LIGHT COMPANY, CONTEST PROCEEDING
CONTESTANT
Docket No. WEST 89-161-R
v. Order No. 2876489; 3/20/89
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH Cottonwood Mine
ADMINISTRATION (MSHA), Mine ID 42-01944
RESPONDENT
DECISION
Appearances: Susan E. Chetlin, Esq., Timothy M. Biddle, Esq.,
Crowell & Moring, Washington, D.C.,
for Contestant;
Robert Cohen, Esq., Office of the Solicitor
U.S. Department of Labor, Arlington, Virginia,
for Respondent.
Before: Judge Morris
This case is before me under Section 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq., (the
"Act"), to challenge the issuance by the Secretary of Labor of an
order charging Utah Power & Light Company ("UP&L"), with a
violation of the regulatory standard published at 30 C.F.R.
75.400.
After notice to the parties a hearing on the merits was held
in Denver, Colorado on April 5, 1989. The parties relied on oral
arguments, waived the filing of post-trial briefs and further
requested a decision without receiving the transcript of the
proceeding.
Summary of the Case
Order No. 2876489, issued on March 20, 1989, involved an
alleged violation of 30 C.F.R. 75.400.
The cited regulation provides as follows:
Subpart E - Combustible Materials and Rock Dusting
75.400 Accumulation of combustible materials
Page 3
~711
[Statutory Provision]
Coal dust, including float coal dust deposited on
rock-dusted surfaces, loose coal, and other combustible
materials, shall be cleaned up and not be permitted to
accumulate in active workings or on electric equipment
therein.
Order No. 2876489 states as follows:
Accumulations of coal fines (first cuttings) was
permitted to accumulate along the left rib in the #1
Bleeder entry on the 9th East working section.
The accumulations were behind the line curtain
installed on the left side and measured to be 104 feet
6 inches in total length and ranged between 1) 16
inches deep x 16 inches wide starting 40 feet outby
the face; 2) 14 inches deep x 26 inches wide 52 feet
outby the face; 3) 31 inches deep x 26 inches wide 70
feet outby the face; 4) 16 inches deep x 24 inches
wide 80 feet outby the face; 5) 14 inches deep x 20
inches wide 90 feet outby the face; 6) 20 inches deep
x 34 inches wide 100 feet outby the face; 7) starting
4 feet outby the face at the last row of permanent roof
supports and extending outby 40 feet 3 1/2 inches deep
x 12 inches wide 4 feet outby the face; 8) 9 inches
deep x 12 inches wide 20 feet outby the face; 9) 30
inches deep x 18 inches wide 35 feet outby the face.
The accumulations were damp and had "salt and pepper"
amounts of rock dust from the mouth of the entry and
extending inby 60 feet. The last 40 feet had not been
rock dusted at all on the ribs or coal fines.
Contributing factors:
1) The section foreman, Bob Wilson, stated the day
shift (his shift this day) on 3-17-89 had mined
approximately 1 1/2 cuts (60 feet).
Page 4
~712
2) The afternoon shift (swing shift) had
mined the next cuts to108 feet or 48 feet
on 3-17-89.
3) The roof bolting machine was in the #1 entry when
crew arrived on section this shift and completed
installing 4 1/2 rows of permanent roof supports.
4) After completing the bolting cycle, the roof bolt
machine left #1 entry and went to #2 entry and the
miner was observed tramming into the #1 entry.
5) There was no cleanup down prior to the miner
entering the #1 entry or while the miner was being
trammed to the face. There was no rock dusting being
performed during this time.
6) Mr. Bob Wilson, section foreman, had done an onshift
while roof bolter in #1 entry and stated "he saw the
last 40 feet needed rock dusted but didn't know the
last 60 feet outby behind the line curtain that bad."
7) The practice of cleaning first cuttings has been
discussed numerous times with management by inspection
personnel out of this office.
8) This is an obvious condition and must be cleaned and
removed from the mine.
9) First cuttings must be cleaned after each bolting
and cutting cycle.
10) There are only 2 working places (entries) at the
present time due to the cutting of "bleeder" entries
for a longwall panel being developed.
Page 5
~713
11) This was not rib sloughage due to
the fact that the ribs were straight up
and down without any fractures being
observed.
12) The miner is operated by radio remote from the left
side. The trailing cable for the miner is also on the
left side (side with accumulations) and is supplying
the miner 950VAC.
Issues
The issues were whether a violation of 30 C.F.R. 75.400
occurred; if it occurred, should the violation be designated as S
& S; further, if the violation occurred was it due to the
unwarrantable failure of the operator to comply with the
regulation.
Stipulation
The parties stipulated as follows:
1. The Commission and the Administrative Law Judge hearing
this dispute have jurisdiction to determine the issues herein.
2. Donald E. Gibson, an MSHA Inspector, was a duly
authorized representative of the Secretary at the time of the
inspection.
3. The Cottonwood Mine is a large coal mine.
4. Various exhibits can be admitted into evidence without
further authentication.
Secretary's Evidence
RANDY TATTON, chief safety engineer for respondent at the
Cottonwood mine, was familiar with the 104(d)(1) order issued in
this case. He is also familiar with this section of the mine but
did not observe the conditions involved in the order.
This area was developed in the continuous miner section for
the purpose of advancing the longwall development entries.
Page 6
~714
There was no problem with any ribs sloughing in this area.
Mr. Tatton was questioned about certain allegations in
UP&L's motion to expedite.
Mr. Tatton identified the company's cleanup plan (see
Exhibit C-3). The plan was dated November 16, 1977, and was
signed by the mine manager. It had been originally forwarded to
MSHA on March 17, 1987. The MSHA district manager returned the
plan saying it did not require his approval and he merely
indicated the company should keep it on file for any MSHA
inspectors who might inquire about it.
Company miners are expected to follow the plan and clean up
after each cut. The first cuttings must be cleaned up as part of
the mining cycle and this includes a cleanup close to the ribs.
The continuous miner itself determines how close you can approach
the ribs or clean up the cuttings. On the brattice side notches
will be cut in the rib by the continuous miner. This increased
the difficulty of a cleanup (see Exhibit C-2 showing "line
curtain" printed on the exhibit).
The company had been previously advised by Mr. William
Ponceroff, the local MSHA office supervisor, that the first
cuttings should be cleaned up as part of the mining cycle.
The law requires that the company have a cleanup plan and
they must comply with it.
Witness Tatton indicated he was familiar with a citation
issued by Inspector Jones on January 6. However, the company was
not cited for a violation of 75.400 at that time. Mr. Tatton
was not present and did not know the details of the Jones'
citation (Jones' citation No. 3296223 was issued for a violation
of 75.316, as contained in Exhibit C-4).
The operator does its initial cleanup by sweeping along the
ribs with the continuous miner.
Page 7
~715
A line curtain keeps the air out of the area of low pressure and,
thus, the intake air is channeled directly to the working face.
(Witness Tatton marks route of air with a red marker on Exhibit
C-2; witness further marks channeling of air with a blue marker
showing, by arrows, airflow if the line curtain is not
installed.)
The company must maintain ventilation otherwise a violation
of the ventilation plan could occur and the health and safety of
the miners would be affected.
The operator has encountered burn-out areas in this section
where the coal has previously burned. Such a rib condition is the
worst possible situation as far as sloughage of the ribs is
concerned.
The company does not want its miners exposed to any fall
from the ribs.
The first cuttings occur when coal is dislodged by the
mining cycle when the initial cut is made. Sloughage occurs
sometimes thereafter due to pressure on the ribs.
Mr. Tatton and Inspector Gibson discussed Inspector Jones'
citation for the violation of 75.316, relating to approved
ventilation. Jones cited the company because the line curtain was
rolled up in order to clean behind it. On the other hand,
Inspector Gibson cited the company for not cleaning the cuttings
behind the curtain. It is apparent the company cannot do both. It
cannot roll up the curtain (which Inspector Jones complained
about) and it cannot clean the cuttings behind the curtain unless
it rolls it up. It is necessary for the company to leave the line
curtain intact to maintain ventilation at the face and the
operator cleans the area after the next crosscut is broken
through.
At the time Inspector Gibson issued his order in this case,
he also read the Jones' citation but it did not have any impact
on his order.
Jones' citation was written because there was insufficient
air movement at the face but the citation does not say anything
about rolling up the curtain.
Page 8
~716
Witness Tatton agrees that the area must be cleaned up but it is
not necessary that it be done immediately. He particularly relies
on paragraph 2 of the company's cleanup plan.(FOOTNOTE 1)
Inspector Gibson required the company to clean up all first
cuttings behind the line curtain and the company did that to the
best of the capability of the continuous miner.
The company has difficulty complying because they would be
violating its ventilation plan. There would be no air movement at
the face.
DONALD E. GIBSON, an MSHA inspector, is a person experienced
in mining as well as electrical specialist.
On March 20, 1989, Inspector Gibson was in the Cottonwood
mine continuing the inspection he started on March 14, 1989.
He entered the 9 East working section and saw the condition
that caused him to issue the 104(d) order. This condition
involved an accumulation of coal behind the ventilation line
curtain. He observed the continuous miner cutting the coal and he
was present when a shuttle car tore down a section of the line
curtain by the mouth of No. 2 entry (marked with a black X on
Exhibit C-2).
Page 9
~717
The inspector did not see any rock dust applied behind the line
curtain and in fact there was no rock dust for 40 feet outby the
face behind the curtain. From an area 40 feet outby the face to
the corner there were coal accumulations. For 40 feet outby the
accumulations of coal cuttings varied in width and depth. They
measured a distance of 104 feet 6 inches for a total length and
ranged between 16 inches deep x 16 inches wide. The greatest
accumulation was 2 feet x 34 inches. The greatest amount was at
a point 65 feet outby the face. The inspector took six different
measurements and the depths ranged from 14 inches to 31 inches.
He estimated that the total amount of coal in the area was
between 500 and 800 pounds.
When he observed the accumulations he told the company
representative that "You have a (d)(1) order." The company
representative was surprised.
The accumulations were measured and recorded in the order
issued by Inspector Gibson.(FOOTNOTE 2)
Page 10
~718
Inspector Gibson questioned the section foreman who said he had
made an on-shift inspection and he had told the crew to rock
dust. He said that the area behind the curtain was not that bad.
The area was not listed in the on-shift book.
The company had asked Inspector Gibson to do an electrical
examination on the afternoon shift and he had been in this
section on March 17. Subsequently, the company rotated the shift
and the foreman, Bob Wilson, stated that he had cut coal on the
17th on the day shift. He also indicated they would clean up on
the down shift.
The company had in fact not cleaned up the first cuttings
during the idle shift.
It took about 45 minutes to remove the accumulations and
this was accomplished by using a battery-powered scoop. The
company also had two men shoveling it up. When cleaning up the
accumulation they were not disturbing the ventilation and there
was perceptible air movement.
In the inspector's opinion it is possible to clean up the
accumulations without disrupting the ventilation.
The continuous miner would back up 40 feet to 60 feet and
push the cuttings to the face; then the miner could get within 6
inches to 1 foot of the left and right ribs.
The ribs were not fractured. The line curtain was 24 to 30
inches away from the rib.
Inspector Gibson was familiar with the Cottonwood cleanup
plan although he did not see the plan before he issued his order.
After looking at the plan he concluded it conflicted with
75.400.
This particular entry is a bleeder entry which allows air to
pass behind the gob of the longwall.
In the inspector's opinion, leaving 210 feet of coal
accumulations is a violation of 75.400. The regulation requires
that accumulations be removed immediately.
The initial cleanup plan applies only to the face area and
the cleanup plan violates 75.400.
Page 11
~719
This operator had been previously cited for accumulations under
75.400.
Inspector Gibson issued a 104(d)(1) order because he thought
the operator had acted willfully in not removing the
accumulations. In June he had previously discussed the removal of
first cuttings with management and also discussed it with company
representatives, Lauriska and Baker.
The company was aware of the first cuttings problem and he
believed the (d)(1) order was proper because of the amount of
accumulations and no attempt had been made to remove them.
The continuous miner generates sparks and it uses a trailing
cable to supply its power. In the inspector's opinion, the
accumulations were of a sufficient amount that an explosion could
result.
The inspector also described a "salt-and-pepper" float dust
condition on the accumulations. Some of the accumulations were
damp, but if a fire occurs any damp coal will quickly dry out.
The condition was obvious.
Inspector Gibson's order, which consists of four pages,
states that the first cuttings must be cleaned after each bolting
and cutting cycle. The operator can do that without violating the
ventilation plan and it could be done while the roof is being
bolted.
The operator can also use vent tubing to supply air to the
face; other mines use that approach. It is also possible to move
the line curtain to the center of the entry and use a scoop to
clean the entry and then return the curtain. The ribs here are in
good shape. In other parts of the mine, however, they do have
problems concerning loose ribs.
The inspector did not agree with the company's claim that
workers were exposed to any loose ribs; however, he understands
about such conditions and he realizes any loose ribs must be
supported before the area is cleaned up.
No accidents have occurred during any cleanup effort in the
last two years in the Cottonwood mine.
Page 12
~720
The inspector considers this a serious violation which could
affect the safety and health of the entire crew. The cuttings
were generating coal dust and a 480 volt electrical roof bolter
was present in the area.
The operator must have been following some type of cleanup
plan because they had cleaned up the other entries.
Inspector Gibson was familiar with the MSHA policy manual
which addresses clean up. The exhibit is national in scope (see
page 74 and 75 of Exhibit R-3). The language of the manual
indicates the operator must have a cleanup program available for
inspection at the mine. The program does not permit accumulations
to exist. Exhibit C-3 does not deal with accumulations as
required by 75.400. The inspector has been at the Orangeville
office for two years and he has been instructed concerning
accumulations since he began working at MSHA.
He has also discussed with the operator six other mines they
inspect from the Orangeville office.
In the inspector's view, the violation was S & S because a
violation of 75.400 occurred. Further, there was a measure of
safety involved and, in addition, it was reasonably likely that
an injury could result and that such an injury would be serious.
Such an injury would involve burns or even a fatality of the
mining crew.
In cross-examination, the inspector agreed that the second
page of the order indicates that the last 40 feet had not been
rock dusted. But there is no requirement to rock dust when within
40 feet of the working face. In his order the inspector had not
relied on the failure of the operator to provide rock dust within
40 feet of the face.
Section 75.400 requires accumulations to be cleaned up
immediately, but immediately is not otherwise defined in the MSHA
policy manual.
No mention was made of bolting and cutting cycles and the
regulations are in the policy manual. But accumulations are not
defined and the degree of accumulation is a judgment call.
Page 13
~721
You anticipate you will find coal in a mine and the inspector,
when questioned closely, indicated that 30 pieces of coal lying
together would constitute an accumulation.
The inspector believed the amount of coal accumulations
involved here would fill one-third of a 14-ton shuttle car.
Exhibit R-3, page 52, discusses a cleanup program. MSHA
approval is not required for a cleanup plan.
Inspector Gibson felt there was perceptible air movement. He
did not take any air readings, nor did he take a methane reading.
It is apparent that the company followed something in the
nature of a clean up in the area.
FORREST ADDISON, JR. is a fire boss and mine examiner for
UP&L. He has been on a UMWA safety committee for three years.
On March 20, 1989, he accompanied Inspector Gibson.
Before that date he hadn't seen the company cleanup plan but
he had seen the roof control and ventilation plans.
The miners were not told about the cleanup plan.
He helped the inspector measure the area of the coal
cuttings and took notes. In Addison's opinion a violation of
75.400 existed since there was an excessive accumulation of coal.
The union also conducted inspections of the 9th East working
section on February 24. At that time they found coal
accumulations behind the curtain from the crosscut back to the
tailpiece. These accumulations were behind the line curtain (see
Exhibit R-4 for UMWA inspection on February 24.)
The committee reported these conditions to the company but
they do not know what action the company took.
First cuttings must be cleaned up before the miners leave
the area.
Page 14
~722
Mr. Addison agrees that an unwarrantable failure existed because
the company should have seen the excessive coal cuttings. The
operator generally removes accumulations from behind the curtain
during the mining cycle and it appeared to have cleaned up along
the ribs. Coal in the mining sequence is mined for 40 feet by the
continuous miner (see Exhibit C-2 for numbered mining sequence
printed on the exhibit).
WILLIAM PONCEROFF, supervisor of the Orangeville field
office, has discussed first cuttings with company officials and
particularly with upper management.
He further discussed cleaning behind the line curtain and
these discussions began in 1988 when they started the two-entry
system. Ponceroff recommended to the company that they keep the
problem under control and the accumulations behind the curtain
had virtually become nonexistent. In previous discussions the
company had not mentioned their cleanup program.
The first time Mr. Ponceroff saw the operator's cleanup plan
was when Inspector Gibson brought it to him after he issued his
order in the instant case.
In Mr. Ponceroff's view the program does not comply with
75.400. Inspector Jones had issued the previous citation (No.
3296223) and the company had been cited for a lack of air
movement at the face. Further, he had instructed the foremen that
they should clean up as they go.
Inspector Jones made it clear to the operator that it had to
comply with 75.316.
MSHA has been consistent in enforcing its policy regarding
removal of first cuttings and he agreed with Gibson's order.
Mr. Ponceroff made it clear to the company that they had
excessive accumulations although he had never given the company
anything in writing.
UP&L's Case
JAMES BEHLING, a safety specialist for UP&L, is a person
experienced in mining. He was traveling with Inspector Gibson at
the time of the inspection. They initially went to the kitchen
area then walked to the transformer in the face area.
Page 15
~723
Normally, the miner helper sets the drilling sites and that
starts the entire mining cycle.
They checked the air, rock dust, and they usually rock dust
the last 40 feet. They would then cut in the sequence printed on
Exhibit C-2. They make five cuts, then clean the left side, and
then back up and clean the right side.
On the left side there are gouges caused by the continuous
miner because it cannot mine in a straight line. The miner cable
exits on the left side of the continuous miner and, as a result,
the miner cannot get close to the left rib.
Inspector Gibson saw the coal when he walked behind the line
curtain. He said he was going to write a (d)(1) order.
The witness disagrees with the measurements taken by
Inspector Gibson. (The witness illustrates his point in Exhibit
C-5; he stated that the height and width of the first cuttings
were in fact irregular.)
The witness also felt that there was more rock dust present
than the "salt-and-pepper' description given by Inspector Gibson.
The area was also wet and there was a water hole (water hole
marked on Exhibit C-2 as "water hole') which was located outby
the last open crosscut.
In the witness' opinion there was no violation of 75.400
because the cleanup plan provides how they are to clean up the
area.
Supervisor Wilson, in charge of this section, told the
witness he cleaned up in the best fashion he could; the graveyard
shift would do the balance.
The witness asked if there was any way for the inspector to
write a citation rather than an order. Inspector Gibson replied
that he was going to write an order.
The witness' notes indicate that "I showed Don [Gibson] the
cleanup plan and he said he was going to write the order; he made
this statement as he was reviewing the plan."
Gibson wrote the order the following day at 4:00 p.m.
Page 16
~724
The witness did not agree with the S & S designation because the
coal was wet and there was no problem inasmuch as they were
following the cleanup plan. Accumulations would be removed when
the crosscut was broken through (Exhibit C-2 at the top shows a
crosscut not yet broken through and establishes its relation to the
mining face.)
In addition, the witness did not agree with the
unwarrantable failure feature. The section foreman was cleaning
the area and the crosscut had not yet been broken through.
Inspector Gibson said the coal would have to be cleaned up
before the company could proceed with its mining.
The witness asked Gibson if they could roll up the curtain
although they would need acceptable air at the face.
However, in early January the company received a citation
for doing the same thing, that is, rolling up the curtain.
The witness described the instability of burned areas; there
are such areas in 9th East section. In the witness' opinion, no
violation occurred because the company was following its cleanup
plan.
The witness did not know if the crosscut (located at the top
of Exhibit C-2) had been cut through as of the date of the
hearing. Under the company's cleanup plan such cuttings could
still be there if the succeeding crosscut had not been cut
through.
Gibson also took notes during his conference.
The line curtain was 3 feet from the rib.
DIXON PEACOCK, a safety engineer for UP&L, identified
Inspector Jones' citation of January 6, 1989, for the violation
of 75.316 (Exhibit C-4).
The company was in the process of cleaning the No. 1 entry
when Inspector Jones tested with smoke tubes. He found there was
no air moving and he stated the company had a violation.
They discussed the plan and the the violation because of a
lack of perceptible movement at the face.
Page 17
~725
The maintenance crew had to roll up the brattice to facilitate
the cleaning.
Inspector Jones felt this permitted the face area to be
unventilated. At the time of the Jones' citation the last open
crosscut had not been broken through.
The operator did not contest the Jones' citation. The last
portion of the Jones' citation states as follows: "(T)he approved
cleanup plan states that the curtain side of the entry will not be
cleaned up until the connecting crosscut has been made."
After the Jones' citation, Peacock made certain the UP&L
supervisors received a copy of the cleanup plan.
Peacock did not know how Jones had gotten a copy of the
plan. Jones did not state that the plan was inadequate,
ineffective or that it would have to be changed.
JOHN C. BOYLEN, JR. is the Mine Manager and responsible as
head of the mine.
Witness Boylen identified the present cleanup plan. It
applies throughout the mine.
Concerning paragraph 2, the company has spent $2,000,000 for
new roof bolting machines and they also use remote control
miners.
Also concerning paragraph 2, the operator uses a line
curtain to keeps miners away from the ribs. In this mine Mr.
Boylen is more concerned about the ribs than he is about the
roof.
If they shovel the area by the ribs they expose their miners
to possible sloughing ribs. As a result they try to keep the
people out of the area and then clean up with the continuous
miner.
The company does not intend to change the cleanup plan
between different sections in the mine. The ribs can become bad
depending upon which section of the mine you were working in.
The ventilation tubing is an alternative to the line
curtain.
Page 18
~726
Mr. Boylen worked for Consol Coal in West Virginia for 18 years
where they used vent tubing because of methane and because of
relatively narrow entries.
In Mr. Boylen's view line brattice is safer; the company
does not use tubing.
Tubing uses a fan and the entries in the Cottonwood mine are
20 feet wide, whereas the entries as the Consol mine were 13 feet
wide.
They could not use a fan because that would create
turbulence. The entries are higher here. It is possible to spade
the curtain while standing on the floor. MSHA has not discussed
ventilation tubing with him.
They have talked to the inspectors about first cuttings and
also about rock dusting the area. Mr. Boylen was familiar with
the order that was issued in this case.
A letter from MSHA District Director said the company did
not have to submit the cleanup plan. The particular plan,
identified by the witness (Exhibit C-2), was one submitted to
MSHA after the company's initial submission.
Mr. Boylen's only contact with the Jones' citation was to
the effect that the company was not following the cleanup plan.
The witness did not remember discussions of accumulations
behind the line curtain nor did he remember that they were
discussed on June 30, 1988.
Prior to the (d)(1) order issued in this case the company
was never told its cleanup plan was inadequate.
Mr. Boylen has no plans to change his cleanup plan. He did
not recall discussing the plan with Mr. Ponceroff.
The witness did not go to the section before the condition
was abated. He does not believe the company violated the
regulation.
In Mr. Boylen's opinion they could have used the curtain to
remove accumulations, but if you pull out the curtain you disrupt
ventilation. To facilitate matters you could put an entire new
curtain in the entry.
Page 19
~727
After the order was issued he talked to company supervisor Wilson
and he required the area to be cleaned up when the connecting
crosscut was put through.
The company designed its cleanup plan for a "worst case"
scenario whereas the roof control plan is a "minimum case"
scenario.
In rebuttal Inspector Gibson identified his notes. He also
conferenced the citation on the spot.
Inspector Gibson agrees with Mr. Boylen that there is a need
to be consistent in the application of the cleanup plan as it
relates to the condition of the ribs. In other words, if the ribs
are sloughing in one area, that should be taken into account in
the cleanup plan. In the inspector's view, accumulations should
not be permitted to go 300 feet in length and 6 inches wide.
The inspector's measurements were taken every 10 feet behind
the curtain.
Discussion
The initial issue centers on whether a violation of 75.400
occurred. The evidence on this point is essentially
uncontroverted. The regulation in its relative portion provides
that "loose coal shall be cleaned up and not permitted to
accumulate in active workings." It is apparent that the loose
coal involved here was of a substantial amount. The total amount
of the coal was estimated at 500 to 800 pounds. I find the
inspector's opinion credible. Permitting 210 feet of coal to
accumulate along the ribs constitutes a violation of 75.400.
See Old Ben Coal Company, 1 FMSHRC 1954 (1979).
The fact that some of the coal was damp because of water
does not cause me to reach a different conclusion. Any fire will
quickly dry out damp or wet coal. In addition, the water hole (as
shown on Exhibit C-2) is a relatively small area in relation to
the total area involved.
Throughout this case UP&L relied on its cleanup plan to
justify its action. However, it is apparent that the cleanup plan
developed pursuant to 75.400-2 cannot overrule the mandatory
duties required in 75.400.
Page 20
~728
In short, I agree with the inspector's view that the cleanup plan
is invalid to the extent it conflicts with 75.400.
The second issue is whether the violation should be
designated as significant and substantial within the meaning of
the Act.
I conclude that such a designation is warranted. The
credible evidence testified to by Inspector Gibson established
this feature of the case within the Commission's guidelines as
expressed in Mathies Coal Company, 6 FMSHRC 1 (1984) and U.S.
Steel Mining Co., 6 FMSHRC 1573-74 (1984); compare Old Ben Coal
Company, supra.
The final issue is whether the violation of the regulation
was due to the operator's unwarrantable failure to comply.
In this connection the credible evidence establishes MSHA
and the operator's upper management personnel had discussed the
practice of cleaning first cuttings. In fact, the problem had
been virtually nonexistent.
With this background the operator nevertheless permitted
substantial coal accumulations to exist along the ribs in this
active workings.
In short, the operator chose to ignore 75.400 and to rely
on its cleanup plan. It did not clean the accumulations, nor did
it intend to clean them until the next connecting crosscut had
been broken through.
It is obvious that a cleanup plan cannot overrule a
mandatory regulation.
In its defense to the issue of unwarrantability, the
operator relies on the Jones' citation and states that it is
faced with the choice of (1) rolling up the line curtain and
cleaning behind it and then receiving a Jones' citation for
inadequate ventilation at the face; or, (2) receive a Gibson
order for having accumulations behind the curtain.
Page 21
~729
The operator's defense is neither credible nor substantial. For
one thing, the operator could rehang the line curtain at a point
further out from the rib. In addition, the operator must have
successfully met this problem before. This was the only section
involved. Other sections had been cleaned. In these other areas
coal accumulations were not a problem. As MSHA's witness
Ponceroff indicated the problem of accumulations behind the
curtain had become virtually nonexistent.
Under the operator's scenario once it started to mine the
entry it would begin to accumulate coal. The accumulation would
not be removed until the next open crosscut was broken through.
In Exhibit C-2 the measured distance between crosscuts is
104 feet. Under these circumstances in excess of 208 feet of
loose coal would accumulate on both sides of the return entry.
(The excess would be generated by the mining sequence of the
continuous miner.) This would be an accumulation prohibited by
75.400.
On the other hand if the circumstances are such that only
the area in the return entry behind the line curtain contained
loose coal then accumulations in excess of 104 feet would exist.
(The excess again would be generated by the mining sequence of
the continuous miner.) This amount would likewise be an
accumulation prohibited by 75.400.
The operator's decision to mine in this manner presented
here constitutes an unwarrantable failure to comply with
75.400. Further, such a failure to comply is aggravated conduct
constituting more than ordinary negligence. Accordingly, the
Commission doctrine expressed in Emery Mining Corporation, 9
FMSHRC 1997, 2004 (1987) is not applicable.
For the foregoing reasons I enter the following:
ORDER
The contest of Order No. 2876489 is dismissed.
John J. Morris
Administrative Law Judge
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE
~FOOTNOTE_ONE
1. Paragraph 2 of the operator's cleanup plan provides as
follows:
After the day and afternoon production mining cycles,
section roadways that have been broken through will be pushed to
the faces (cabs of equipment used to clean will not advance past
last row of bolts). Faces that have not been broken through will
be cleaned on the off curtain side. The curtain side will be
cleaned after the connecting crosscut is broken through to
prevent the short circuiting of the face ventilation. All
cleaning of section roadways and faces other than initial cleanup
with continuous miner will be done on graveyard or idle shifts.
(Exhibit C-3)
~FOOTNOTE_TWO
2. The order contains the following detail:
The accumulations were behind the line curtain
installed on the left side and measured to be 104 feet 6 inches
in total length and ranged between 1) 16 inches deep x 16
inches wide starting 40 feet outby the face; 2) 14 inches deep
x 26 inches wide 52 feet outby the face; 3) 31 inches deep x
26 inches wide 70 feet outby the face; 4) 16 inches deep x 24
inches wide 80 feet outby the face; 5) 14 inches deep x 20
inches wide 90 feet outby the face; 6) 20 inches deep x 34
inches wide 100 feet outby the face; 7) starting 4 feet outby the
face at the last row of permanent roof supports and extending
outby 40 feet 3 1/2 inches deep x 12 inches wide 4 feet outby
the face; 8) 9 inches deep x 12 inches wide 20 feet outby the
face; 9) 30 inches deep x 18 inches wide 35 feet outby the
face.
Get today's answer for your situation
You just read what one judge decided for one employer in 1989, and it binds only those parties. Ezel checks the current MSHA standards and Commission precedent and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the authority it relies on.