Mountain Coal Company
Mountain Coal Company (FMSHRC WEST 92-64, et al.): Coal dust findings affirmed and withdrawal order modified
Apply this to your situation
This order from 1992 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
Mountain Coal Company contested a citation and a withdrawal order concerning combustible coal dust accumulations at the Trail Mountain Mine. Judge Michael A. Lasher, Jr. found both violations proven, with the withdrawal-order violation resulting from unwarrantable failure and high negligence. He affirmed the citation and the withdrawal order's special findings, but modified the withdrawal order's likelihood finding from highly likely to reasonably likely. He assessed total civil penalties of $4,500, consisting of $3,000 for the citation and $1,500 for the withdrawal order.
Decision snapshot
- Cited standard: 30 C.F.R. § 75.400
- Outcome: The citation was affirmed, the withdrawal order was modified in part and otherwise affirmed, and $4,500 in civil penalties was assessed.
- Key point: Extensive combustible-material accumulations, continued mining, and a poor violation history supported an unwarrantable-failure finding, but the likelihood finding was reduced from highly likely to reasonably likely.
Full text (FMSHRC public release)
CCASE:
SOL (MSHA) V. MOUNTAIN COAL
DDATE:
19920911
TTEXT:
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Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 92-64
PETITIONER A.C. No. 42-01211-03582
v. Docket No. WEST 92-317
A.C. No. 42-01211-03589
MOUNTAIN COAL COMPANY,
RESPONDENT Trail Mountain Mine
MOUNTAIN COAL COMPANY, CONTEST PROCEEDINGS
(SUCCESSOR TO BEAVER CREEK
COAL COMPANY), Docket No. WEST 91-489-R
CONTESTANT Citation No. 3582529; 6/20/91
v. Docket No. WEST 91-490-R
Withdrawal Order No.
SECRETARY OF LABOR, 3582466; 6/27/91
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Trail Mountain Mine
RESPONDENT
Mine I.D. 42-01212
DECISION
Appearances: Susan J. Eckert, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner/Respondent;
David M. Arnolds, Esq., Scott W. Anderson, Esq.,
Denver, Colorado, for Respondent/Contestant.
Before: Judge Lasher
These consolidated contest/civil penalty proceedings came on
for hearing in Salt Lake City, Utah, on March 3 and 4, 1992.
Penalty Docket WEST 92-64 involves only the Citation (No.
3582529) involved in Contest Docket WEST 91-489-R.
The Section 104(d)(1) Withdrawal Order (No. 3582466)
involved in Contest Docket WEST 91-490-R had not been the subject
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of a penalty proposal issued by MSHA's Office of Penalty
Assessments for a sufficient time before hearing to permit
creation of a penalty docket therefor (T. 4). It is the subject
of WEST 92-317 which docket was created after the hearing.
Stipulation
The parties entered on the record of hearing (T.12-14) the
following general stipulations having applicability to both the
citation and the withdrawal order (T. 289):
1. Mountain Coal Company (herein "MCC") is engaged in mining
and selling of coal in the United States, and its mining
operations affect interstate commerce.
2. MCC is the owner and operator of Trail Mountain Mine,
MSHA I.D. No. 4201211.
3. MCC is subject to the jurisdiction of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. 801, et seq., referred
to as the "Act" in the rest of the stipulations.
4. The Administrative Law Judge has jurisdiction in this
matter.
5. The subject citation and order were properly served by a
duly authorized representative of the Secretary (MSHA) upon an
agent of MCC on the date and place stated therein, and they may
be admitted into evidence for the purposes of establishing their
issuance and not for the truthfulness or relevancy of any
statements asserted therein.
6. The exhibits to be offered by MCC and MSHA are stipulated
to be authentic, but no stipulation is made as to their relevance
or the truth of the matters asserted therein.
7. The proposed penalties will not affect MCC's ability to
continue in business.
8. MCC demonstrated good faith in abating the violations.
9. MCC is a mine operator with 501,306 tons of production in
1990.(FOOTNOTE 1)
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10. The certified copy of the MSHA assessed violations history
accurately reflects the history of the mine for two years prior
to the date of the Citation and Order.(FOOTNOTE 2)
11. The penalty (proposed by MSHA) for Order No. 3582466 is
$700.00.(FOOTNOTE 3)
The Standard
Both the Citation and Order which are the subject of these
proceedings were issued pursuant to the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. 801, et seq. (herein the "Act")
and both allege an infraction of 30 C.F.R. 75.400(FOOTNOTE 4)
which provides:
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.
Section 75.400-1, containing pertinent definitions,
provides:
75.400-1 Definitions.
(a) The term "coal dust" means particles of coal that
can pass a No. 20 sieve.
(b) The term "float coal dust" means the coal dust
consisting of particles of coal that can pass a No. 200
sieve.
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(c) The term "loose coal" means coal fragments larger
in size than coal dust.
Issues and Contentions
MCC concedes the occurrence of both violations charged (T.
289-290) but as to the Citation contends that the accumulations
were not as extensive as the Inspector described therein. MCC
challenges both the "Significant and Substantial" designations on
both the Citation and Order, and also contends that neither
violation resulted from an "Unwarrantable Failure" to comply with
the infracted regulation. (T. 289-291).
General Findings - Citation No. 3582529
MSHA Inspector Donald E. Gibson issued Section 104(d)(1)
Citation No. 3582529 on June 20, 1991, charging a violation of 30
C.F.R. 75.400 as follows:
Accumulations of loose coal, coal pieces, and
pulverized coal fine were permitted to accumulate on
the 3d left working section. The accumulations were
along the travel-road entry from the feeder breaker to
the miner in the No. 4 entry and ranged from 3-10
inches deep x 11-12 feet wide x 400 feet long. There
was accumulations in the outby entries and cross-cuts
from cross-cut 31 to 33. These accumulations ranged
when measured 3-10 inches deep x 11-12 feet wide x 700
feet long. The back entries were in the return air
course.
These accumulations ranged from damp to dry in the
travelroad and in the return entries was dry and
powdery. The accumulations in the travel-road were
being run over by diesel and electric equipment. The
accumulations in the return had been run over by mobile
equipment as cables had been installed through the
area. Also, isolation stoppings had been installed in
the return entry to isolate the 4th left section from
the 3d left section.
Numerous discussions and violations have been issued
for this condition. Management is aware of running over
rib sloughage, coal spillings, and
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clean-up of initial "first" cuttings. The section foreman
was present on the section and had made examination of the
section during this shift but failed to clean these
accumulations. Spot sample taken in the return for rock
dust content. In this condition, poses the hazard of
adding to any force or a fire should an occurrence happen.
Accompanying Inspector Gibson on his inspection of the mine
on June 20, 1991, were his immediate supervisor, William Ledford,
other MSHA officials, and several management personnel of MCC
including Maintenance Superintendent Steven D. Jewett who on the
day in question was acting mine manager (T. 26-28, 85, 112, 124,
260) and George Perla, Mine Manager. (T. 27).
The accumulations in the Third Left working Section of the
mine were in two general areas, along the travel road (roadway)
from the feeder/breaker to the continuous miner, and in the outby
entries and crosscuts from crosscuts 31 to 33. (T. 85-90, 122,
138-140, 145, 154, 250; Ex. G-4). Inspector Gibson, who had the
responsibility to issue citations for any violations detected,
and Ledford both observed accumulations of loose coal, coal
fines, etc., in these outby entries, active roadways and
travel-ways (T. 28, 36, 42, 60, 62, 87-93, 95, 113, 155; Ex.
G-4).(FOOTNOTE 5) Loose coal was being allowed to accumulate in the
haulage roads after being spilled or mined (T. 35, 151) and there
was rib sloughage (coal which has fallen off the ribs onto the
roadway) which was being run over by shuttle cars. (T. 30-31, 59,
67, 95, 189, 268). In the roadway area where accumulations were
observed (Ex. G-4; T. 34, 64), the roadway was "being run over
and pulverized by shuttle cars" in the process of hauling coal.
(Tr. 34-35, 36, 61-66, 68, 155).
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As to the extent and amount of the accumulations observed on the
travel way, there were substantial accumulations of coal, loose
coal fines, and pulverized coal. The travel way is indicated in
orange on the mine map. (Ex. G-4; T. 88, 90). At point A on the
map, near the feeder breaker, there were three to ten inches of
coal accumulations. (T. 90-91). Gibson measured the overall
dimensions of the accumulations in the travel way and determined
that they were 3 to 10 inches deep, 11 to 12 feet wide, and 700
feet long. (T. 91). The volume of these accumulations would be 38
tons (at 3-inches depth) and 127 tons (at 10-inch depth) of coal,
filling up between 3 to 10 shuttle cars of coal. (T. 94-95).
Gibson stated that this was a violation of section 75.400
because:
. . . the accumulations were excessive[;] I mean a
person with normal mining background ought to
recognize, and as many discussions as I have personally
had with the company and citations that I've written
for accumulations, this constitutes an excessive
amount. It's on an active roadway. We had electrical
equipment[;] we had diesel, mobile equipment running
over these accumulations. (T. 95).
The second general area of accumulations was crosscuts 31-32
and the five outby entries. In crosscut 32, there were
accumulations throughout the crosscut and into the No. 5 entry
down to crosscut 31. According to Inspector Gibson "[t]he
majority of the accumulations was in crosscut 31, but it was
loose coal in 32, coal fines that had been left, some rib
sloughage." (T. 113) Ledford confirmed that there were
accumulations in piles and scattered all over the entries. This
area was marked in yellow on the mine map [Government Exhibit 4].
(T. 36). The volume of the accumulations in the "yellow" area
based on Gibson's measurements was 3 to 10 inches deep, 11 feet
wide, and 400 feet long, totaling between 22 to 77 tons of coal
accumulations. (T. 122, 123). These accumulations were "dry,
powdery coal accumulations," i.e., fine, pulverized. There were
coal pieces, but for the most part it was powdery, dry, black
coal dust. (T. 124).
Significant and Substantial
Both enforcement documents (Citation and Order) were
designated as "Significant and Substantial."
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A violation is properly designated "Significant and Substantial"
if, based on the particular facts surrounding that 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:
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.
Accord, Austin Power v. Secretary of Labor, 861 F.2d 99, 103 (5th
Cir. 1988).
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, and that the likelihood of injury must be evaluated in
terms of continued normal mining operations. U.S. Steel Mining
Co., 6 FMSHRC 1573, 1574 (July 1984). See also Monterey Coal Co.,
7 FMSHRC 996, 1001-1002 (July 1985). The operative time frame for
determining if a reasonable likelihood of injury exists includes
both the time that a violative condition existed prior to the
citation and the time that it would have existed if normal mining
operations had continued. Halfway, Inc., 8 FMSHRC 8, 12 (January
1986); U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985).
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.
Texasgulf, Inc., 10 FMSHRC 498, 500-501 (April 1988);
Youghiogheny and Ohio Coal Company, 9 FMSHRC 2007, 2011-2012
(December1987). The Commission has emphasized that 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 Co.,
6 FMSHRC 1834, 1836 (August 1984).
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With respect to the violation described in the Citation, it is
found that it was reasonably likely that if normal mining had
continued in the areas cited that the hazard posed by the
accumulations, i.e., fires or explosions, would have occurred
resulting in fatalities or serious injuries to miners since the
three elements for the propagation of such--oxygen, fuel
(ignitable coal), and ignition sources--were all present. (T.
52-53, 54, 55, 59, 61-64, 95-97, 106-109, 115-119, 120, 126-129,
138-140, 159-163, 165, 178, 183, 189, 192, 231-232, 262, 286).
The ignition sources in the cited section were numerous,
i.e, electric shuttle cars, 950-volt cables which could fault,
roof bolters, a continuous miner, auxiliary fans, and
diesel-powered equipment. (T. 53-55, 56, 64-66, 67, 73, 96, 110,
169, 178).
The electrical equipment operating on June 20 was in
permissible condition (T. 244-245) and no "permissibility"
violations were cited on that day. (T. 55, 57, 70, 265).
Nevertheless, in the perspective of there being continued mining
in the section, it was reasonably likely that an ignition or fire
could occur since failures in cables do occur even though not
planned, and all equipment is "not maintained permissible at all
times." Also, failures occur in electrical equipment. (T. 57, 58,
64-66, 102-103, 170-178, 189, 268-269).
While MCC contended there was no actual cutting of coal from
the face being carried on on the day of inspection, it conceded
that the continuous miner and shuttle cars were being operated.
Since Mr. Ledford crisply and credibly testified he personally
observed active mining going on at the face, I choose to accept
his version of the facts on this issue. (See T. 59).
In addition to the proliferation of ignition sources in the
section, the likelihood of an ignition or fire was increased by
the fact that shuttle cars were running over and pulverizing coal
(rib slough) in the roadway. (T. 64, 95, 105). Since pulverizing
the accumulation puts such into a powder form, it is made more
volatile and easier to ignite. (T. 64-66, 95-97, 103-105). There
were ignition sources in the area. (T. 104-106).
Inspector Gibson's explanation why it was likely that the
coal dust in the area where the roof bolter was operating would
ignite was highly detailed and persuasive. (T. 96-98). He pointed
out that there were various ways a fault could occur
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(T. 97) and that the area behind the roof bolter was "very dry,
powdery, pulverized, etc." (T. 98)(FOOTNOTE 6)
Likewise, he credibly explained how even the areas which
were damp or wet could dry out (T. 98-101). He considered it
"very likely" that a trailing could become damaged (T. 102) and
pointed out that there were already splices in the trailing cable
to the continuous miner. (T. 103). MCC, in many areas, was not
cleaning up the accumulations. (T. 42, 50-51, 59, 71, 91, 120,
132-133, 141-142, 150, 151, 157, 232).
Had an ignition of coal dust or a fire caused by the
accumulations occurred, it was likely that injuries would occur
to miners working on the section. (T. 53, 108). Such miners,
approximately eight in number, would be exposed to burns, smoke
inhalation injuries, possible permanently disabling injuries, and
fatal injuries. (T. 108-109, 136-137, 178, 189-191).
MCC introduced evidence that on June 19 and the morning of
June 20 it did some cleanup, that the roadway, which had a coal
bottom (T. 227), was wet and rutted, and that there were no
accumulations in the roadway (T. 207-211, 212, 250). MCC's
witness, then section foreman Brent Migliaccio, claimed that the
material cited by Inspector Gibson in the roadway was material
that had been turned up from the road itself, rather than
material which had been spilled from ram cars. (T. 213). He
conceded that the condition of the outby entries was "dry" and
that there was a lot of "floor heave," i.e., floor that has
buckled. (T. 213-214). He said the rib sloughage in the crosscuts
was no worse than normal.(FOOTNOTE 7) Based on his testimony, it is
found that MCC has no history of fires resulting from coal
accumulations. (Tr. 224). There was no methane in the section on
the day of inspection. (T. 224).
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John Perla, who was MCC's general mine foreman at pertinent
times (T. 249) testified that in his "opinion" the accumulations
observed by Inspector Gibson in the roadway was a mixture of fire
clay, shale, and coal which was pushed up from the floor of the
roadway by the tires of the ram cars traveling through, and was
not actually coal spilled from the ram cars. (T. 251). He also
stated his "opinion" that there were no first cuttings from
mining in the area 11 months previously because, in his words,
"We would clean the place." (T. 252). He felt that there were no
ignition sources in the area because the equipment was in
permissible condition and that such equipment has fire
suppression devices and fire extinguishers. (T. 255; see also T.
266). He said that while there was a cable running to the
continuous miner, he had never seen a fire started by a cable and
that there was no methane in the section above 1/10th of 1
percent. (T. 254-256). He did not know all the places which had
been cleaned on the day of the inspection. (T. 256-257). In other
respects, he was unable to remember or did not know, and some of
his testimony on factual matters was qualified by the statement
that he was giving his "opinion." His testimony was not as
certain or convincing as that of the MSHA witnesses.
While MCC's witnesses all felt that some areas of the
section which were cited for accumulations were wet or damp, or
muddy, one witness indicated that there were areas which were dry
and powdery (T. 262-263) and there was evidence from MCC's own
samples of the roadway material that "many of the samples" had
combustible content above 50 percent. (T. 286).
I conclude that the testimony and description of violative
conditions of MSHA's witnesses, Inspector Gibson and Mr. Ledford,
are entitled to acceptance in this matter.
In terms of the Commission's formulae for determining
whether violations are significant and substantial, the violation
of the mandatory standard here has been conceded and also
otherwise clearly established by the evidence of record. This
violation contributed to the hazard of fire and/or explosion
described hereinabove. The primary question raised is whether
there was a reasonable likelihood that the hazard contributed
would come to fruition and cause an injury, there being no
question that if the hazard envisioned did occur that serious
injuries and even fatalities would occur. This evaluation of
"reasonable likelihood" is to be made in the perspective of the
continuance of "normal mining operations." There was strong
evidence that active mining including the cutting of coal from
the face (T. 59) was actually ongoing at the time of inspection.
See U.S. Steel Mining Co., Inc., supra.
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There are presently at least two analytical processes for
determining the "reasonable likelihood" question. The first is a
general, broad system of setting forth the conditions or
practices which might lead to the occurrence of the contemplated
hazard and then a reaching of the conclusion whether or not the
hazard is "reasonably likely" to come about. The second approach
is one which first appeared in Secretary v. Texasgulf, Inc., 9
FMSHRC 748 (April 1987) where the concept of "substantial
possibility" (9 FMSHRC at page 764) was first raised. This test
was urged as a refinement of "reasonable likelihood" for the
reasons stated in the decision, including avoidance of confusion
with the "imminent danger" concept, and also because it appeared
as a practical matter to be the test actually being used by both
tribunals, judges, and laymen involved at the various levels of
mining safety enforcement and administrative and judicial review.
Its strength is in its being less mysterious since it can be
compared to other understandable concepts such as "remote
possibility," "strong possibility," "probability," etc.
Since understanding what a law means also is consistent with
increased faith in American justice and fairplay, I adopt the
"substantial possibility" test, although the end result in the
instant matter would be the same whichever method of analysis
were used. Judge William Fauver, in his Decision in Secretary v.
Coal Mac Incorporated, 9 FMSHRC 1600 (September 25, 1991)
succinctly states the test as follows:
Analysis of the statutory language and the Commission's
decisions indicates that the test of an S&S violation
is a practical and realistic question whether, assuming
continued mining operations, the violation presents a
substantial possibility of resulting in injury or
disease, not a requirement that the Secretary of Labor
prove that it is more probable than not that injury or
disease will result. See my decision in Consolidation
Coal Company, 4 FMSHRC 748-752 (1991). The statute,
which does not use the phrase "reasonably likely to
occur" or "reasonable likelihood" in defining an S&S
violation, states that an S&S violation exists if "the
violation is of such nature that an S&S violation
exists if "the violation is of such nature as could
significantly and substantially contribute to the cause
and effect of a coal or other mine safety and health
hazard" ( 104(d)(1) of the Act; emphasis added). Also,
the statute defines an "imminent danger" as any
condition or practice . . . which could reasonably be
expected to cause death or serious physical harm before
[it] can be abated," and expressly places S&S
violations below imminent
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dangers. It follows that the Commission's use of the phrase
"reasonably likely to occur" or reasonable likelihood" does not
preclude an S&S finding where a substantial possibility of injury
or disease is shown by the evidence, even though the proof may
not show that injury or disease was more probable than not.
A remote possibility of the violation's resulting in injury
(or disease) is not sufficient. On the other hand, to meet the
"S&S" requirements, MSHA would not seem to be required to show a
"strong" possibility, a probability, or a certainty of a
resultant injury. If, for example, one of the various ignition
sources present here had been in impermissible condition, the
Inspector might well have been justified in finding an imminent
danger existed.
In relating the "substantial possibility" test to the
conditions present in the mine which constituted the violation
and aggravated the potential of harm to miners, it is clear that
the accumulations were extensive in terms of depth, distance, and
areas involved,(FOOTNOTE 8) oxygen was present, the volatile
conditions were on an active roadway as well as other places, the
accumulations (even limited to the areas conceded by MCC's
witnesses) were combustible and ignitable and there was not just
one--but numerous--potential ignition sources in the areas
involved. The contribution of the violation cited to the cause
and effect of the contemplated fire or explosion hazard was
clearly significant and substantial. Had normal mining continued
there existed a substantial possibility and reasonable likelihood
that the hazard contributed to would result in an injury or
injuries of a reasonably serious nature or fatalities. The
"Significant and Substantial" designation on the Citation is
AFFIRMED.
Unwarrantable Failure
"Unwarrantable Failure" means "aggravated conduct,
constituting more than ordinary negligence, by a mine operator in
relation to a violation of the Act." Emery Mining Corporation, 9
FMSHRC
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1997, 2004 (December 1987), Youghiogheny and Ohio Coal Company,
supra. An operator's failure to correct a hazard about which it
has knowledge, where its conduct constitutes more than ordinary
negligence, can amount to unwarrantable failure. Secretary v.
Quinland Coals, Inc., 10 FMSHRC 705 (June 1988). While negligence
is conduct that is "thoughtless," "inadvertent," or
"inattentive," conduct constituting an unwarrantable failure is
"not justifiable" or is "inexcusable."
MSHA Supervisor Ledford said that MCC's conduct amounted to
more than ordinary negligence and was aggravated conduct,
stating:
A. What I seen was large amounts of accumulation with
no effort to clean it up.
Q. How do you know there was no effort being made?
A. I seen that. I was looking.
Q. So there was none being made at the time?
A. There was none being made at the time, and they
continued to mine coal at the face.
Q. Do you know that they were mining coal at the face?
A. Yes, sir. I watched them mine coal.
Q. They weren't cleaning up at the face?
A. No, sir. (T. 59).
As noted in prior findings, MCC had failed to clean up the
accumulations. This was a repeated failure. Thus, Inspector
Gibson testified:
A. Numerous occasions I've spoken to the president of
the company, Richard Pick. At one time the mine manager
was Dan Manners. On one particular occasion, I had the
safety director, Dan Lucy, brought to the section . . .
to let him see firsthand what I was talking about as
far as accumulation. I've spoken to section foreman
Doug Cox, who at one time worked at the mine. Section
foreman, Mr. Peacock . . . I talked to John Perla. I've
talked to Gary Curtis who was the maintenance foreman.
Q. What did you talk to them about in relation . . .
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A. Cleanup, running over of rib slough. We've discussed that
numerous, numerous times. And I had just recently conducted an
electrical inspection at the mine and issued violations for this
same condition, running over rib sloughage. (T. 132-133).
Mr. Ledford testified that he "observed from the breaker
itself all the way up to the face areas," and saw no evidence of
any cleaning being done. (T. 71)(FOOTNOTE 9)
There is no credible basis to conclude that any of the
accumulations--which were observed and cited by Inspector
Gibson--were being cleaned up by MCC. (T. 42, 54, 59, 61, 95,
149-151).
Neither Gibson nor Ledford saw any cleanup during the hour
to hour and a half that they were present. (T. 42, 54, 59, 61-62,
71, 95, 132-133, 149, 151, 179-180).
The amount of the accumulations in the general areas cited
demonstrates that they existed a considerable period of time, and
constituted an obvious violation of which MCC's management should
have been aware. (See T. 95). Inspector Gibson on the day of
inspection did not see a scoop (used for cleanup) or shovels on
the section. (T. 150-151, 180).
MCC should have known, indeed must have known, of the
existence of the accumulations and failed to clean them up. In
view of the obvious nature of this problem, the repeated warnings
and effort of MSHA to bring about compliance in the past, and the
tendency of MCC's responsible management to persist in allowing
such conditions to exist, I find such conduct inexcusable,
aggravated, and sufficient to justify the Inspector's conclusion
that it constituted an unwarrantable failure to comply with the
pertinent standard.
Withdrawal Order No. 3582466
MSHA Inspector John R. Turner issued Section 104(d)(1)
Withdrawal Order No. 3582466 (originally issued on June 27, 1991
as a 104(a) Citation) alleging an infraction of 30 C.F.R. 75.400,
to wit:
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Accumulation of float coal dust and loose coal and coal
fine were found to exist on and around all of the
electical compartments of the continuous mining machine
in the 1st South working Section. There was coal arched
in back of the tram motors and around other electrical
compartments up to eight inches deep.
On June 28, 1991, Inspector Turner issued the modification
changing the Citation to a Withdrawal Order basing it on
underlying 104(d)(1) Citation No. 3582529, and showing that the
Order affected the Continuous Mining Machine in the 1st South
Working Section. This modification from Citation to Order was
issued at 10 a.m. and was terminated at 3 p.m. on the same day,
June 28, 1991. (T. 293).
As above noted, MCC concedes the occurrence of the
violation, but contests the "Significant and Substantial"
designation on the basis that the condition was neither
"reasonably nor highly likely to cause injury," and also contends
that the violation was not the result of an "unwarrantable
failure" because the violative condition did not result from a
high degree of negligence.
On June 20, 1991 (seven days prior to the issuance of this
Withdrawal Order and on the inspection previously discussed in
connection with the Citation), Mr. Ledford examined the mine's
new continuous haulage system. The subject continuous miner was
not in operation at the time, but Ledford observed that it was
"quite dirty" (T. 297, 315) explaining that:
. . . there was accumulations on the machine. Some of
the plates that have small holes, you can see excessive
accumulations of float coal dust, coal fines, some
grease and oil that need to be cleaned from the
machine. (T. 297-298).
Mr. Ledford advised Mr. Jacobs, MCC's maintenance foreman,
that "the machine should be cleaned up prior to putting it back
into operation, any production." (T. 298). He also advised acting
mine manager Steve Jewett later the same day that the machinery
should be cleaned. (T. 310). After the Withdrawal Order was
issued by Inspector Turner seven days later, Mr. Ledford felt
that MCC had not complied with his instructions to clean the
continuous miner. (T. 300-301, 335-336). Mr. Ledford indicated
that some of the accumulations he observed on the miner on June
20 were both "on the exterior" and "under some compartments" (T.
302-304, 307),
Page 17
~1587
contrary to MCC's allegations. (See MCC's Post-hearing Brief, p.
31). Mr. Ledford did not believe that the extent of accumulations
found on June 27 could have reoccurred during the seven-day
interim from the time he observed such had the miner been cleaned
as he had instructed. (T. 304-306, 307, 308, 310, 311). He had
advised Mr. Jacobs that coal fines were "under the covers" (T.
308). When the accumulations get "into the cracks and crevices
and around the electrical compartments and motors and areas that
just gather up loose coal and float coal dust and coal fines" it
can cause the motors to overheat and if there is a failure in the
electrical components, a "very serious fire hazard" is created.
(T. 311, 312, 313, 315-316, 345).
Inspector Turner issued the Withdrawal Order (then a
Citation) while on a regular inspection on June 27, 1991. He was
accompanied on this inspection by LaVon L. Turpin, a safety
adviser for MCC. (T. 320). He issued a Citation for a
permissibility violation on the subject continuous miner during
this same inspection. (T. 323-324; Ex. G-1). He also issued a
Citation (No. 3582464) for a violation involving the same
continuous miner for not having proper fire-fighting equipment,
to wit:
The fire-fighting equipment was not being maintained in
a usable and operable condition on the continuous
mining machine on the first south working section. The
fire suppression water outlet above the left flange
motor for the machine was inoperable. (Ex. G-2; T.
325-326).
Inspector Turner described the situation as follows:
. . . The top of the machine was pretty much clean. As
I get into the other components of the machine, the
machine was very, very filthy. I could not get to the
back side of the tram motors, the control motors and
other areas with my feeler gauge and tools that I work
in my trade, because it was too dirty. So I informed
Mr. Turpin that he had an S&S Citation, definitely that
the machine was filthy, and he agreed, and we would
have to agree on a time to abate. (T. 327).
Inspector Turner specifically described numerous electrical
compartments on the miner, including in the operator's cab, on
the main control box on the framework of the miner, the auxiliary
lighting systems and light boxes, the tram motors on the sides of
the miner and the pump motors. He said that numerous electrical
Page 18
~1588
components had coal packed around them. (T. 327-328). The extent
of such accumulations was up to "eight to ten inches of loose
coal, float coal dust, coal fines and coal particles" which were
packed around and on top of the compartments. (T. 328, 330).
He discussed the matter with Mr. Turpin who said it would
take a significant amount of time to remove the accumulations
because it would be necessary to pull off the covers and to "get
somebody in here to clean it off." (T. 328-329). The
accumulations were dry and were visible without removing the
covers. (T. 329, 342-344).
While the continuous miner was not being operated at the
time it was observed by Inspector Turner, it had been in
operation earlier on the day of inspection. (T. 322).
Numerous sources of ignition were present (T. 331, 332, 333,
345, 346-347) including overheated motors, "blown up cable,"
"bits off of the machine," and from "rock spars or cutting of the
coal" (T. 345) and sparks off a cutting head. (T. 346). The
existence of so much potential ignition increased the likelihood
that a fire would be started or that an ignition would occur. (T.
346-347).
After being cited for the violation, it took MCC over four
hours to clean the continuous miner. (T. 329, 339).
The hazards posed by this violation, taking into
consideration the background factors in which they occurred
(including the fire suppression system inadequacy and the
impermissibility violations) were fire and a coal dust ignition.
(T. 331-334). Inspector Turner's analysis and rationale
concerning the existence of these hazards, the reasonable
likelihood that such would occur in the context of continued
mining, and the serious injuries which would likely ensue had the
hazards come to fruition were well-stated, credible, and
convincing. (T. 331, 332, 332-334).
After pointing out that MCC's practice was not to remove the
accumulations (T. 331) he said:
Left in this state, the hazard involved there would be
the heating scenario from the motors which are pulling
950 volts from this particular machine, which is the
highest voltage that we have on any piece of equipment
therein, and the amperage there and the current flow
that can get out of those electrical motors, for
example, the auxiliary lighting box, and if we
Page 19
~1589
were to ignite the float coal dust and the amounts that
we had there, and with the little effect that the fire
suppression would have had over that particular tram
motor, that thing would have went rapidly.
Q. Why wouldn't the fire suppression system have any
effect on the motor?
A. The fire suppression couldn't have no effect over
that one tram motor because it was inoperable. There
was no water coming out of it when we activated it.
Q. Was there any connection between the gap that you
found for the permissibility violation and the
accumulations?
A. Just the fact that they were within four inches of
one another. The permissibility violation that I found
on the one auxiliary box was on top of the machine.
This is the only permissibility that I completed on
this machine because I could not get to the other
compartments, they were too filthy. (Tr. 331).
Inspector Turner considered it highly likely that serious
injuries (T. 334) would occur from the fire hazard:
The contributing factor would have been the amount of
accumulations that we had on the tram motors and things
that existed at the time of my observation. The
permissibility gap that we could expose an arc to the
outside atmosphere and these accumulations, and the
fact that the fire suppression system would not help
you, in fact, if those things were to happen, and
normal cutting procedures in there. We have rock bars
in that mine, and all tied together, it would have made
it very highly likely that it would occur. (T. 332).
It is noted that Inspector Turner on June 28, 1991, modified
the Order to change the likelihood from "Reasonably Likely" to
Page 20
~1590
"Highly Likely." At hearing he appeared to back off this
modification (T. 351) and there is not sufficient explanation
therefor to justify the "Highly Likely" determination. There is
more than adequate support for a determination of "Reasonably
Likely," however, and the Withdrawal Order will be subsequently
modified to reflect this.
I conclude that it was reasonably likely that injuries such
as severe burns, smoke inhalation, and possibly fatalities would
have occurred had the contemplated hazard happened. (T. 334,
338).
There was also a reasonable likelihood of a coal dust
ignition had mining continued. (T. 331, 334, 336-337, 345-347).
As the Inspector explained:
The coal dust ignition could occur from the normal
mining cycle of the machine. The machine generates coal
dust which it extracts from the coal from the faces. We
have the water sprays, but if the other dust that is
suppressed around the machine and the amount of float
coal dust and stuff that was on the machine, if an arc
were to come out of that control panel and ignite the
coal dust, then it would ignite the whole area wherever
the coal dust was to exist. (T. 334).
The violation occurred as a result of MCC's high degree of
negligence and unwarrantable failure to comply with the infracted
safety standard. (T. 336, 337, 339, 340). MCC's history of
previous violations indicates a persistent pattern of violations
of this standard. Inspector Turner pointed out that on June 20,
Mr. Ledford had told MCC "that the machine needed cleaning" and
that it was "obvious that all they did was sprayed off the top of
the machine; they did not spray off the motors or get any
integral components of the machine and make any effort to clean
it." (T. 336). He also persuasively indicated that:
From my mining experience, I know that the amount of
accumulations that were on that machine, cannot
accumulate in a day or two or three days. That amount
of accumulations has
Page 21
~1591
to occur over several shifts, days, possibly a week or
better. (T. 336).(FOOTNOTE 10)
Inspector Turner's basis for determining "unwarrantable
failure" was because of the negligence involved, and "because of
what the coal company has been made aware of in the past and six
days prior by my supervisor, and on many occasions on
pre-inspection and post-inspection on accumulations, and our
concern for the accummulations on the working section and the
equipment is the number one priority . . . ." (T. 339).
Respondent's Evidence
Steven D. Jewett, MCC's maintenance superintendent,
indicated that he accompanied Mr. Ledford on June 20 and that
there aren't "openings" on the miner that one could see through
to determine if there were accumulations under the covers. (T.
359). He said he was "not aware" that Mr. Ledford moved any of
the hoses or peered down to look closely so as to be able to see
holes and determine if there were accumulations. (T. 358-359). He
denied that Ledford mentioned accumulations, other than some "oil
spillage" (T. 358, 361). He indicated that the machine would be
cleaned on the outside after each entry was cut, but that it
would be cleaned under the covers on a weekly basis. (T. 361,
362, 372). Mr. Jewett's testimony was for the most part brief and
general and it in no way approached the detail and specificity of
MSHA's witnesses. He was not present on June 27 when Inspector
Turner issued the withdrawal order. (T. 368). He did not know
about the permissibility citation and the "fire suppression"
citation "until this started" (T. 371), nor did he know when the
last time the covers on the miner were removed for cleaning or if
such were cleaned during the period from June 20 to June 27. (T.
372).(FOOTNOTE 11)
Page 22
~1592
MCC's second witness, safety adviser LaVon Turpin, testified that
the accumulations violation was discovered when he and Inspector
Turner pulled one of the covers on the machine to see if a hose
to the fire suppression system was broken. (T. 374). He felt it
would be "very difficult" for a person to look through the
"holes" and see the accumulations four to eight inches deep under
the covers. (T. 381). He said the accumulations were "somewhat a
damp compact condition" (T. 375) under the first cover pulled (T.
383) but did not know the condition of the accumulations under
the covers subsequently pulled. (T. 383).
As with Mr. Jewett, Mr. Turpin's testimony was brief and not
of a sufficiently probative nature to rebut the more positive,
reliable testimony of MSHA's witnesses, whose accounts and
opinions I credit in determining the issues of reasonable
likelihood ("Significant and Substantial") and "Unwarrantable
Failure."
In conclusion, the extent of the accumulations and the
amount of time it took to achieve abatement (cleanup) are strong
evidence in support of the expert opinions of MSHA's witnesses
that they existed a considerable length of time and had not been
cleaned up during the interim between June 20, 1991, and June 27,
1991. The lack of knowledge and generality of MCC's witnesses on
this point certainly in no way weakened the prima facie
presentation of MSHA that MCC's failure to clean up constituted
inexcusable, aggravated conduct, particularly in view of its less
than commendable history of violations of this standard, and the
frequent (and proximate) warning it had received concerning such,
and the fact that these accumulations were present in dangerous
amounts for a long period of time with obvious ignition sources
extant.
It is therefore concluded that MSHA has established that the
violation resulted from MCC's unwarrantable failure to comply
with the standard and from a high degree of negligence on the
part of MCC.
The violation was both proven and conceded and, in addition,
MSHA established that it contributed a measure of danger of
safety by the hazards it posed and contributed to. It has
previously been determined at some length that there was a
reasonable likelihood and a substantial possibility that the
envisioned hazards would occur in the event of continued mining
and that such would, upon occurrence, result in serious injuries
or fatalities. The contribution of the violation to the hazards
of fire and or ignition was significant and substantial. The
Commission's four prerequisites to the existence of a
"Significant and Substantial" violation are found to have been
established by MSHA and these special findings are here AFFIRMED.
Mathies Coal Company, supra.
Page 23
~1593
Penalty Assessment
Based on the parties' stipulations and information of record
it is found that MCC is a medium-sized coal mine operator (T. 20)
which proceeded in good faith to promptly achieve compliance with
the standard in question after notification of the two
violations. The penalties assessed will not affect MCC's ability
to continue in business. During the pertinent two-year periods
preceding the issuance of the Citation and Order, MCC had a
history of 110 and 92 violations, respectively. (T. 17-19). MCC
had committed numerous violations of the pertinent safety
standard involved in this matter during the two-year period in
question. Its history of violations is not commendable. The
violations involved in both the Citation and the Order resulted
from a high degree of negligence on MCC's part, were inexcusable
and since aggravated conduct was involved were also found to have
resulted from MCC's unwarrantable failure to comply with the
standard. Further, both violations were very serious in nature,
both in terms of the gravity of the hazards they created and
contributed to and the likelihood of such hazards occurring and
causing serious injuries or fatalities.
In Black Diamond Coal Company, 7 FMSHRC 1117, 1120 (August
1985), the Commission stated as follows:
We have previously noted Congress's recognition that
ignitions and explosions are major causes of death and
injury to miners: "Congress included in the Act
mandatory standards aimed at eliminating ignition and
fuel sources for explosions and fires. [Section 75.400]
is one of those standards.' Old Ben Coal Co., 1 FMSHRC
1954, 1957 (December 1979). We have further stated [i]
t is clear that those masses of combustible materials
which could cause or propagate a fire or explosion are
what Congress intended to proscribe." Old Ben Coal Co.,
2 FMSHRC 2806, 2808 (October 1980). The goal of
reducing the hazard of fire or explosions in a mine by
eliminating fuel sources is effected by prohibiting the
accumulation of materials that could be the originating
sources of explosions or fires and by also prohibiting
the accumulation of those materials that could feed
explosions or fires originating elsewhere in a mine.
Page 24
~1594
Substantial penalties are warranted. Accordingly, a penalty of
$3,000.00 is assessed for Citation No. 3582529 and penalty of
$1,500.00 is assessed for Withdrawal Order No. 3582466.
ORDER
1. Withdrawal Order No. 3582466 is MODIFIED to change
paragraph 10 A thereof from "Highly Likely" (as shown in
Inspector Turner's modification thereof dated June 28, 1991) to
"Reasonably Likely" and this Withdrawal Order including the
special findings theron is otherwise AFFIRMED.
2. Citation No. 3582529 (Docket No. WEST 91-489-R and WEST
92-64) including the special findings thereon is AFFIRMED.
3. Contestant/Respondent MCC, within 40 days from the date
of this decision SHALL PAY to the Secretary of Labor the total
sum of $4,500.00 as and for the civil penalties assessed herein.
Michael A. Lasher, Jr.
Administrative Law Judge
FOOTNOTES START HERE-
1. MCC is found to be a medium-sized coal mine operator. (T.
20).
2. Based on this information, it is concluded that MCC had a
history of 18 prior violations in the pertinent two-year period
prior to issuance of the Citation and 92 prior violations in the
two-year period preceding issuance of the Withdrawal Order. (T.
17-20).
3. MSHA's proposed penalty for the Citation was $2,000.00.
(T. 4-5).
4. Section 75.400 entitled "Accumulation of combustible
materials" is contained in Subpart E entitled "Combustible
Materials and Rock Dusting."
5. Ledford did not personally observe all the areas cited by
Gibson. (T. 37). In the area where he personally observed
accumulations being run over by shuttle cars, he testified that
it was "dry". (T. 36, 37). He indicated the travel road was
"damp" in other areas. (T. 49).
Ledford felt Gibson's "evaluation" was correct in view
of the amount of accumulations, the areas that were involved, the
fact that mining was continuing and that "there was no evidence
of any work being done to clean up the section." (T. 42).
6. See also, Testimony of MCC's acting mine manager, Steven
D. Jewett, at T.262-263.
7. On direct examination, it appears that this witness's
Page 25
testimony resulted from leading questions in some important
areas. (T. 209, 210, 211, 213). This witness's testimony was not
particularly persuasive in the areas contradictory to
Petitioner's MSHA's witnesses (see T. 231-231, 241, 242, 247) and
it is not credited as to the presence, nature, and extent of the
accumulations observed and reliably described by Petitioner's
witnesses.
8. These accumulations are found to be dangerous. The
greater the concentration, the more likely it is to be put into
suspension or propagate an explosion. See, Pittsburg and Midway
Coal Mining Co., 6 FMSHRC 1347, 1349 (1984); Mettiki Coal
Corporation, 11 FMSHRC 331, 343 (1989).
9. See also Transcript at pages 42, 54, 142-143, 149, 151,
179).
10. See also T. 337, where the Inspector testified the
negligence was high because. . . "Mr. Ledford's notifying six
days before. They had a weekend there. So you're talking a
minimum of three days or four days where there must not have
(been) no effort to clean the machine. They cleaned the top of
the machine."
11. As to whose responsibility this was, there was some
ambiguity in his testimony. (T. 369-370).
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