Western Fuels-Utah, Incorporated

Plain-English summary

MSHA cited Western Fuels-Utah after finding a broad accumulation of coal dust in an underground mine entry. Judge Avram Weisberger held that the operator had not shown an intervening clean inspection that would prevent a section 104(d)(2) order, and that the coal dust violated 30 C.F.R. § 75.400. He found the violation significant and substantial because the dust could become suspended and contribute to an explosion, and he found unwarrantable failure because mine management had been told the entry needed to be rock dusted. The order was sustained and the operator was assessed a $950 civil penalty.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.400 and 75.2(g)(4); 30 U.S.C. §§ 814(d)(1) and 814(d)(2)
• Outcome: The section 104(d)(2) order was sustained, and a $950 civil penalty was assessed.
• Key point: Repeated partial inspections did not establish an intervening clean inspection of the entire mine, and known coal dust accumulations supported an unwarrantable-failure finding.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. WESTERN FUELS-UTAH
DDATE:
19900928
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 90-108
PETITIONER A.C. No. 05-03505-03572

       v.                            Deserado Mine

WESTERN FUELS-UTAH,
INCORPORATED,
RESPONDENT

DECISION

Appearances: James B. Crawford, Esq., Office of the Solicitor,
U. S. Department of Labor, Arlington, Virginia, for
the Secretary;
Karl F. Anuta, Esq., Law Offices of Karl F. Anuta,
Bolder, Colorado, for the Respondent.
Before: Judge Weisberger

Statement of the Case

  In this case, the Secretary (Petitioner) seeks a civil

penalty for the alleged violation by the Operator (Respondent) of
30 C.F.R. 75.400. Pursuant to notice, the case was heard in
Glenwood Spring, Colorado, on June 14, 1990. Ernesto L. Montoya
and Clete R. Stephan testified for Petitioner. David Glenn Casey,
Carl O'Neal, and Robert Newell Hanson testified for Respondent.
Post hearing Proposed Findings of Fact and Brief were filed by
Respondent on July 26, 1990, and by Petitioner on August 10,
1990.

Stipulations

 1. The Administrative Law Judge does have jurisdiction to

hear this Notice of Contest and Civil Penalty Proceeding under
the Federal Mine Safety and Health Act of 1977.

 2. The penalty proposed will not affect Western Fuels-Utah's

ability to continue in business.

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3. The operation -- the mine operator of Western Fuels-Utah -- is
a medium to large-size mine operator producing approximately one
million tons of coal per year at this mine.

 4. Western Fuels-Utah showed good faith in correcting this

cited condition that is in dispute.

 5. It has been agreed that Government Exhibit No. 1 is an

authentic document, an official government record of the previous
history, the previous violation history of Western Fuels-Utah
under the Mine Act.

Findings of Fact and Discussion

                          I.

 On August 17, 1989, in connection with an AAA Inspection

(regular inspection of entire mine), MSHA Inspector Ernesto L.
Montoya issued an order, under Section 104(d)(2) of the Federal
Mine Safety and Health Act of 1977 (the Act), alleging a
violation of Section 75.400, supra. In addition to contesting the
alleged violation of 75.400, supra, Respondent argues that the
Section 104(d)(2) Order was not properly issued, as there were
intervening clean inspections between the underlying Section
104(d)(1) Withdrawal Order issued on June 5, 1989, and the
subject 104(d)(2) Order issued on August 17, 1989. Specifically,
as argued at the hearing, Respondent's position that there was an
intervening cleaning inspection of the entire mine, is predicated
upon reference to a combination of clean inspections.

 According to the uncontradicted testimony of Montoya, that I

accept, he checked the MSHA Records and did not find any evidence
of clean inspections between the date of the underlying 104(d)(1)
Order, and the date Order 104(d)(2) in question was issued. He
indicated that the last complete inspection of the subject mine,
prior to the date the 104(d)(2) Order in question was issued, was
on May 15, 1989. Montoya indicated that he spoke to another MSHA
Inspector, Ervin St. Louis, who informed him that between the
underlying 104(d)(1) Order and the Order in question, there were
only Section 103(i) Inspections. He concurred, on
cross-examination, that these inspections occurred on June 12,
22, 26, July 18, 26, and August 3, and 10. Montoya indicated that
in connection with the 103(i) Inspections that he made in the
period in question, at different times he went from both portals
to the face at the one longwall and three development sections.
He indicated that he walked through the mine in this period once
or twice and was able to observe ". . . conditions in the entry,
the roadway that we go into, . . . " (Tr. 45). He indicated that
although he did not

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conduct an inspection on these occasions, he did not ignore
violations and wrote what he found. According to Montoya each
103(i) Inspection in the period in question covered the same area
and was intended to check for methane. According to Montoya, a
103(i) Inspection does not include belts, drives, belt entries,
and electrical equipment unless the inspector walks by. In
contrast, an AAA or regular inspection includes these items as
well as escapeways and equipment at the face. Also, in a regular
inspection, an inspector checks coal accumulations.

 The Commission, in United States Steel Corporation 6 FMSHRC

1908 at 1911, (August 1984), set forth the requirements for the
issuance of a Section 104(d)(2) Order as follows:

      "The plain language of section 104(d)(2) of the Mine
      Act (n. 2 supra) establishes three general
      prerequisites for the issuance of an initial section
      104(d)(2) withdrawal order: (1) a valid underlying
      section 104(d)(1) withdrawal order; (2) a violation of
      a mandatory safety or health standard "similar to [the
      violation] that resulted in the issuance of the
      withdrawal order under [section 104(d)(1)];" and (3)
      the absence of an intervening "inspection of such mine
      disclos[ing] no similar violations.""

  In Kitt Energy Corporation 6 FMSHRC 1596 (1984), the

Commission rejected the argument of the Secretary that only a
complete regular inspection is sufficient to satisfy the
requirements of Section 104(d)(2). The Commission held that
inspections other than "regular" inspections can be taken into
account under Section 104(d)(2). In this connection, the
Commission noted that it was the burden of the Secretary to
establish that an intervening cleaning inspection has not
occurred, and this burden could be met by demonstrating that when
the Section 104(d)(2) Order was issued portions of the mine
remained to be inspected. In this connection, the Commission
interpreted Section 104(d)(2), supra, as requiring the inspection
of a mine "in its entirety" (Kitt Energy Corporation, supra, at
1599.

 In U. S. Steel Corporation, supra, the Commission reiterated

its holding in Kitt, supra, at 1914, that ". . . any combination
of regular or other inspections that covers the entire mine can
constitute an intervening clean inspection."

 In the instant case, I find that the Secretary has presented

a prima facie case of the absence of an intervening clean
inspection of the entire mine. The only inspections of the
subject mine in the period in question were those made pursuant
to Section 103(i) of the Act. I find that these inspections,

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according to the testimony of the inspector, took place over one
day only, and were for all the same areas, i.e., the faces of the
longwall and development sections and the return and intake
entries. As explained by Montoya, these 103(i) Inspections do not
cover the belt drives, belt entries, or electrical equipment. ".
. . unless we happen to walk by" (Tr. 110). As such, I conclude
that the Section 103(i) inspections, in combination, did not
cover the entire mine. Therefore, I conclude that the Secretary
has established its prima facie case that there has not been a
clean inspection of the entire mine during the period in
question.1 I find that Respondent did not rebut Petitioner's
prima facie case.

                         II.

 In essence, Montoya testified that at approximately 10:30

a.m., on August 17, 1989, he observed black coal dust in the
second left entry of Third East between crosscuts 33 and 5.2

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He indicated that the coal dust was on the floor, ribs, crib
timber, rocks, and timbers. He scraped the coal at various points
with gloves, his fingers, a pen, and his ID card in order to get
to a level area. He indicated that the flow coal dust was in a
layer on top of rock dust, and was "thick as a sheet of writing
paper" (Tr. 57). He testified that he did not have any doubt as
to the color of the coal, nor did he doubt that the material he
observed was indeed coal dust. I found Montoya to be a credible
witness. Further, Respondent did not offer the testimony of any
witness to contradict, based upon their observations, the extent
of the coal dust observed by Montoya on August 17, 1989.3
Thus, I accept Montoya's testimony in this regard. Hence, I
conclude, based on Montoya's testimony with regard to the various
locations in the entry, aside from the floor, where coal dust was
observed, the fact that it was observed over 28 crosscuts,4
and due to the fact that it existed in a layer on top of the rock
dust, I conclude that Respondent herein did violate 30 C.F.R.
75.400, as alleged in the order issued by Montoya, in that coal
dust was ". . . permitted to accumulate . . . . "

                        III.

 Montoya had indicated in the Order at issue that the

violation herein was significant and substantial.

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In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the Commission
set forth the elements of a "significant and substantial"
violation 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. (6 FMSHRC, supra, at
      3-4.)

 In essence, Montoya opined that the accumulation of coal

dust he observed contributed to the hazard of an explosion. In
this connection, he concluded that there was a great potential
for an explosion based upon the extent of the coal dust
accumulation in combination with the presence of methane in the
gob area.5 Montoya further noted that coal dust was found
only five crosscuts from the face, a distance of approximately
600 feet, and that there were various energized electrical
equipment in the face areas, such as electric motors, a shear,
and a lighting system which could short circuit, thus causing
sparks. On cross-examination it was elicited from Montoya that he
did not observe any coal dust suspended in the air, and at the
time he issued the order in question the longwall production had
been shut down, and there were no diesel equipment present.
Further, he conceded that the lighting at the face was
explosion-proof and the shear motor has to be explosion-proof.

 Montoya indicated that a roof fall could very possibly cause

sparks, and that the panel in question had a roof fall next to
the tailgate, but he did not know when this occurred relative to
the date the order was issued. In this connection, Glenn Casey
indicated that the entry did not have any history of sudden roof
falls outby the face line. However, he indicated that on the date
in question the tailgate had required additional cribbing.

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David Glenn Casey, a fire boss employed by Respondent, indicated
that when he observed the area in question on August 16, he did
not feel that the area needed rock dusting, nor was he of the
opinion that there was any hazard due to the presence of coal
dust. In this connection, he indicated that the floor was wet. It
was the testimony of Carl O'Neal, Respondent's safety trainer,
that on August 17, the full length of the Second Left entry,
alongside the coal seam, contained water that was approximately 6
to 12 inches wide and 2 to 3 inches deep. He said that
approximately a third of the floor was wet. Also, although Casey
indicated that he did not know the amount of methane present on
August 17, he also indicated that "in the days around" August 17
(Tr. 275) in the area in question, there was "very minimal
methane," which he indicated as .01, .02, and "occasionally" .03
(Tr. 276).

 Despite Montoya's admissions on cross-examination, and the

testimony of Casey and O'Neal referred to above, I conclude, for
the reasons that follow, that it has been established that the
violation herein was significant and substantial. In resolving
the issues presented herein, I place considerable weight upon the
testimony of Clete R. Stephan, a senior mining engineer employed
by MSHA, due to his expertise and the fact that his testimony was
largely unrebutted or contradicted by Respondent. Stephan
testified, and elaborated upon in Government Exhibit 9, that
without coal dust, which he termed fuel in suspension, an
explosion would not occur. Although Montoya did not observe any
coal dust in suspension, he nontheless observed coal on the ribs.
As explained by Stephan, because coal dust on the ribs is
positioned above the floor level, it is easy for it to go into
suspension when hit by a blast of air resulting from a roof fall
or occurring as a consequence of machinery being involved in an
accident. The coal dust from the ribs would also be placed in
suspension if a vehicle would knock out a rib. In addition,
Stephan noted that the coal at the subject mine is considered to
be in the high range of volatile bituminous coal, and in general,
bituminous coal is considered explosive. Further, I find, based
on the uncontradicted testimony of Montoya, that the coal dust
existed in layers on top of the rock dust.6

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According to Stephan, an ignition at the face would cause
pressure waves which would place into suspension dust that had
accumulated. In this connection, he noted that if the coal dust
was in a layer on top of the rock dust, then most of the
suspension would be coal dust. It is significant to note, as
commented upon by Stephan, that an ignition at the face would
have to travel only 600 feet7 in order to propagate an
explosion of the coal dust located at crosscut 33, only 5
crosscuts outby the face. In such an event, according to Stephan,
a flame would continue to propagate as it pushes forward any dust
that is in suspension. Also, to be considered is the fact that,
according to Montoya and not contradicted by Respondent's
witnesses, the mine in question liberates a million cubic feet of
methane per 24 hours. In this context, Stephan provided a
foundation for Montoya's conclusion that there was a great
potential for an explosion, based on the extent of the coal dust
and the fact that methane was being liberated from the gob.
Stephan, in this connection, indicated that coal dust, even in
small amounts, has the effect of making methane explosive where
it exists in concentrations below the range normally considered
explosive. Hence, as explained by Stephan, the larger the amount
of coal dust present the greater the resultant hazard. Here, it
is noted, that the coal dust had accumulated in the entry in
question between crosscuts 5 and 33, a distance of over 3000
feet. As testified to by O'Neal, there was water on the floor of
the entry on the date in question. However, according to Stephan,
the amount of moisture must "increase to pretty significant
levels before they really affect the explosion itself" (sic) (Tr.
155). According to O'Neal, there was water on the floor of the
entry in question. He testified that the water was 2 to 3 inches
deep, 6 to 12 inches wide. (The floor was 18 feet wide.) I accept
this specific testimony from O'Neal as to the extent of the
water, rather than his general comment that a third of the floor
was wet. Inasmuch as coal dust had accumulated on the timbers and
ribs, as well as the floor, and Stephan had indicated that the
dust from the ribs could easily be placed in suspension, I
conclude that the extent of water herein in the entry was not
significant enough to effect an explosion.

 Based on all of the above, in combination, I conclude that

not only has it been established that a hazard of an explosion
was contributed to by the accumulation of dust, but that it has
been established that there was a "reasonable likelihood that the

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hazard contributed to will result in an event in which there is
an injury." (U. S. Steel Mining Company, Inc., 6 FMSHRC 1834 at
1836 (1984). Further, it was the uncontradicted testimony of
Montoya that, should an explosion occur, persons present in the
section would be expected to be hurt, some fatally. I thus
conclude that it has been established by Petitioner that the
violation herein was significant and substantial. (See, Mathies,
supra; U. S. Steel, supra).

                    IV.

 In order to sustain the Section 104(d)(2) Order, Petitioner

must establish that the violation herein was as a result of the
Respondent's unwarrantable failure, which has been defined by the
Commission as aggravated conduct, more than mere negligence.
(Emery Mining Corp. 9 FMSHRC 1997 (1987)). In this connection,
Montoya testified that the day prior to the issuance of the Order
in question, he had been to the same entry in connection with a
103(i) Inspection, and cited Respondent for having an
accumulation of black coal dust on the timbers, floor, and ribs,
between crosscuts 32 and 38. According to Montoya, on April 16,
he informed O'Neal and Robert Hanson, Respondent's safety
director, that the return entry (Two Left) had to be entirely
dusted and they both agreed. O'Neal did not specifically
contradict Montoya's version, as he indicated that sometimes he
does not hear what Montoya says. He also stated that he did not
recall if Montoya had said, on August 16, that crosscuts 5 to 33
needed dusting. Thus, his testimony is insufficient to rebut
Montoya's testimony that in fact he had told O'Neal, and O'Neal
had agreed that the entire entry had to be dusted. In the same
fashion, Hanson indicated that he did not recall any discussion
with Montoya on August 16, with regard to the Citation. Hence,
his testimony does not rebut Montoya's version. Accordingly, I
accept the version testified to by Montoya.

 Montoya also indicated that O'Neal, in his presence, had

told David Prosser, the longwall foreman, that the entire entry
had to be rock dusted. O'Neal, on the other hand, testified that
Montoya had told him that crosscuts 32 to 38 needed dusting, as
he was going to cite those areas, but that he (O'Neal) did not
tell Prosser to dust. O'Neal testified he called the section
foreman, Brad Jones, and told him the crosscuts that were cited,
i.e. 32 to 38 needed to be dusted. He also testified that he told
Prosser that the areas specified by Montoya i.e. crosscuts 38 to
32 needed to be rock dusted, but did not tell him to get it
dusted.

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Inasmuch as I have accepted Montoya's version, that O'Neal had
agreed with him that the entire second Left entry had to be rock
dusted, I thus find more credible Montoya's testimony that O'Neal
did tell Prosser to dust the entire entry. The critical point,
however, is that Montoya did tell both O'Neal and Hanson, on
August 16, that the entire Left entry had to be rock dusted.
Given that specific knowledge by O'Neal and Hanson, I conclude
that the cited violation of an accumulation, observed by Montoya
on the next day, August 17, in crosscuts 5 to 33, was as the
result of Respondent's unwarrantable failure. In this connection,
I note that according to Montoya, on August 17, Hanson was upset
and he stated that he did not understand why only a specific area
of the second Left entry was rock dusted, and the rest of the
entry was not rock dusted. Hanson's testimony that he did not
recall saying anything on August 17, when he received an order
from Montoya, is not sufficient to contradict the specific
testimony of Montoya, as to what Hanson did say.

 Based on the statutory factors set forth in 110(i) of the

Act, and considering the degree of Respondent's negligence, for
the reason essentially set forth above, (infra, IV), and
considering the high gravity of the violation herein, based on
the extent and location of the coal dust, and the fact that it
was layered on top of the rock dust, I conclude that a penalty
herein of $950 is proper.

                          ORDER

 Respondent shall, within 30 days of this Decision, pay $950

as civil penalty for the violation found herein.

                            Avram Weisberger
                            Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE

 1. (c.f., C F & I Steel Corporation, 2 FMSHRC 3459 (1980),

(The Commission affirmed the finding of the trial judge that an
intervening clean inspection of the entire mine had not been
established by the Secretary where the record indicated, inter
alia, that 30 inspection days, which were part of two regular
inspections, took place in the period between the underline order
and the Section 104(2)(d) Order.); c.f. U. S. Steel, supra, (The
Commission found that testimony of the inspector, inter alia,
that in the intervening period "I have covered the entire
facility, yes. . . . the entire ID Number 820, yes," and "well,
that's possible I went through there.", did not afford
substantial evidentiary support to the finding of the trial judge
that there was an absence of an intervening clean inspection.)
(U. S. Steel, supra, at 1914).

 2. In essence, Respondent in its Brief argues that

Petitioner has not established that the cited area, i.e, the
Second Left entry Third East is within the purview of Section
75.400, supra. I do not find merit to Respondent's position.
Section 75.400 is violated if there is an accumulation of coal in

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"active workings." 30 C.F.R. 75.2(g)(4) defines this term as ".
. . any place in a coal mine where miners are normally required
to work or travel." It appears from the map of the subject mine
(Operator's Exhibit 1) that, aside from the belt entry, the First
Left or Second Left entries are the only pathways for miners to
travel from the portals to work at the longwall face. I note in
this connection that David Glenn Casey, a fire-boss employed by
Respondent, testified that on August 14, 1989, he walked up the
First Left and Second Left entries.

 3. I find that the opinion of O'Neal that, based on his

observations, the entry in question did not have to be rock
dusted on August 14, 1989, is not sufficient to rebut the
testimony of Montoya, as to his observations 3 days later on
August 17. Further, due to the expertise and experience of Clete
R. Stephan, I place considerable weight upon his testimony that,
in evaluating the hazard of coal dust, its color is not
important, but rather the critical criteria is whether there is
dust on the surface. In this connection, he testified that dust
in a layer as thin as a piece of paper does present an explosion
hazard. As such, I conclude that a determination of the color of
the accumulation is not critical to a disposition of this case.
Accordingly, I do not place much weight on the testimony of Carl
O'Neil (Respondent's safety trainer, who was with Montoya during
the inspection) that the dust in question was grey, and not
black, as testified to by Montoya.

 4. Inasmuch as the distance between the center of each

crosscut was approximately 120 feet, the coal dust thus extended
over a distance of more than 3000 feet.

 5. In this connection, I accept the uncontradicted testimony

of Montoya that the mine in question was found to be liberating
more than a million cubic feet of methane per 24 hours, and as
such is subject to special inspections for methane pursuant to
Section 103(i) of the Act).

  6. Casey testified that the material in question in the area

cited by Montoya was grey. He indicated that in general, rock
dust is darker if wet, and that the stak rock above the seam in
question is gray. He also indicated that Montoya had said that
the material in crosscuts 1 to 27 was getting darker and was grey
at crosscut 27. I find this testimony inadequate to rebut
Montoya's testimony, based upon his personal observation, that
the specific material in question consisted of coal dust in a
layer on top of the rock dust. I observed the witness' demeanor
and I conclude that Montoya was more credible in his testimony
that he had no doubts that the material in question was coal
dust.

 7. It is significant that Stephan indicated that 600 feet is

only a very short distance for an explosion to be propagated, as
an explosion travels at a rate of 1,000 feet per second.