Consolidation Coal Company

Plain-English summary

Consolidation Coal Company operated the Blacksville No. 1 Mine. Judge Roy J. Maurer found that a slippery slurry and water mixture violated the travelway standard, that combustible hydraulic fluid had accumulated in a hoist-house drum pit, and that missing toeboards violated the preparation-plant travelway standard. The judge affirmed those three orders, found the first and third violations significant and substantial, found all three violations unwarrantable, and assessed penalties of $800, $400, and $500. He vacated the fourth order because existing beams adequately protected two openings on the third floor, resulting in a total penalty of $1,700.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.205(b), 77.1104, 77.205(e), and 77.204
• Outcome: Orders 2713945, 2713946, and 2713952 were affirmed, Order 2713953 was vacated, and a $1,700 civil penalty was assessed.
• Key point: The judge treated known, uncorrected mine hazards as unwarrantable failures, but vacated an alleged fall-protection violation where existing structural beams adequately served as barriers.

Full text (FMSHRC public release)

CCASE:
CONSOLIDATION COAL V. SOL (MSHA)
DDATE:
19861112
TTEXT:

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

CONSOLIDATION COAL COMPANY, CONTEST PROCEEDINGS
CONTESTANT
Docket No. WEVA 86-217-R
v. Order No. 2713945; 2/25/86

SECRETARY OF LABOR, Docket No. WEVA 86-218-R
MINE SAFETY AND HEALTH Order No. 2713946; 2/25/86
ADMINISTRATION (MSHA),
RESPONDENT Docket No. WEVA 86-219-R
Order No. 2713952; 2/25/86

                                      Docket No. WEVA 86-220-R
                                      Order No. 2713953; 2/26/86

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 86-277
PETITIONER A.C. No. 46-01867-03678

      v.                              Blacksville No. 1 Mine

CONSOLIDATION COAL COMPANY,
RESPONDENT

                           DECISION

Appearances: W. Henry Lawrence, Esq., Steptoe & Johnson,
Clarksburg, West Virginia, for Contestant/
Respondent; William T. Salzer, Esq., Office
of the Solicitor, U.S. Department of Labor,
for Respondent/Petitioner.

Before: Judge Maurer

                    STATEMENT OF THE CASE

 Contestant Consolidation Coal Company (Consol) has filed

notices of contest challenging the issuance of four separate
orders during February 1986 at its Blacksville No. 1 Mine. The
Secretary of Labor (Secretary) has filed petitions seeking civil
penalties for the violations charged in the contested orders. The
proceedings were consolidated for purposes of hearing and
decision.

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Pursuant to notice, the cases were heard in Morgantown, West
Virginia, on July 22 and 23, 1986.

 The general issues before me concerning each of the

individual orders and its accompanying civil penalty petition are
whether there was a violation of the cited standard, and, if so,
whether that violation was "significant and substantial" and
caused by the "unwarrantable failure" of the mine operator to
comply with that standard as well as the appropriate civil
penalty to be assessed for the violation, should any be found.

 Both parties have filed post-hearing proposed findings of

fact and conclusions of law, which I have considered along with
the entire record herein. I make the following decision.

                         STIPULATIONS

 The parties have agreed to the following stipulations, which

I accept:

 1. The Consolidation Coal Company, Inc., owns and operates

the Blacksville No. 1 Mine and is subject to the jurisdiction of
the Federal Coal Mine Safety and Health Act of 1977, Public Law
91-173, as amended by Public Law 95-164 (Act).

 2. The Administrative Law Judge has jurisdiction over this

proceeding pursuant to Section 105 of the 1977 Act.

 3. The subject orders (Nos. 2713945, 2713946, 2713952,

2713953) and terminations thereto were properly served by a duly
authorized representative of the Secretary.

 4. Copies of Order Nos. 2713945, 2713946, 2713952, 2713953

(attached to the Petition for Adjudication of Civil Penalty) are
authentic copies of the original orders.

 5. The assessment of a civil penalty in this proceeding will

not affect respondent's ability to continue in business.

 6. The operator has been assessed 852 violations for the

two-year period prior to February 25, 1986.

 7. 1985 annual production for the Blacksville No. 1 Mine was

1,609,803 tons of coal. 1984 annual production was 1,775,322 tons
of coal.

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I. DOCKET NO. WEVA 86-217-R; ORDER NO. 2713945

 Order No. 2713945, issued pursuant to Section 104(d)(2) of

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801
et seq. (the Act) alleges a violation of the regulatory standard
at 30 C.F.R. 77.205(b) (FOOTNOTE 1) and charges as follows:

In the Slurry Pump House, located on the surface
facility of the underground mine, the travelways in the
housing were not being maintained free of slipping
hazards. Water was flowing freely from a pump on to the
floor where a sediment had built up over a long period of
time approximately 1 1/2 inches in depth. Little or
no effort was being made to maintain these work areas.
A trough to catch run off from the pumps had its end
cut off allowing this material to run onto the floor
and across the facility floor and out the door. The
work-travel areas were approximately 20' feet in
length overall. This condition was obvious and should
have been identified by management.

                       FINDINGS OF FACT

 1. The order was issued at 9:40 a.m. on February 25, 1986,

by MSHA Inspector Joseph Migaiolo during a "AAA" inspection at
the slurry pumphouse located on the surface of the Blacksville No.
1 Mine.

 2. The slurry pumphouse is a 15' long x 10' wide

building which functions as a recycling facility for coal residue
(slurry) emitted from coal cleaning operations.

 3. During this aforementioned inspection, Inspector Migaiolo

observed water approximately 1/4 inch deep, exiting the front
doorway of the pumphouse, at a rate he estimated to be five (5)
gallons per minute.

 4. Inside the pumphouse, the entire floor was covered with

slurry sediment, consisting of fine coal particles, oil shale and
water. However, the water and slurry materials were concentrated
along the back wall of the pumphouse where the depth of the
mixture near Pump No. 4 on Exhibit No. G-5 was three inches. The
mixture was one and one-half inches deep at Point "C" on Exhibit
No. G-5.

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5. There was an open-ended water trough on the floor of the
pumphouse at Point "C" on Exhibit No. G-5 at which point water
was freely flowing onto the floor, adding to the wetness of the
slurry sediment mixture as well as completely submerging two
insulation mats which were on the floor near two electrical
devices. Water was also flowing onto the floor from Pump No. 2
towards the back wall of the pumphouse due to a defective packing
around the "drive shaft".

 6. I specifically find that this slurry-water mixture

created a slipping hazard on the floor of the pumphouse.

 7. While the slurry pumphouse is not a high travel area, the

facility is inspected on each shift to ensure the proper
functioning of the pumps and to detect any existing hazards.

 8. The presence of the slurry-water mixture on the

pumphouse floor created a reasonably-likely risk of a slip and
fall type injury to any employee entering the building or
maneuvering around the equipment inside. Furthermore, the
presence of the two submerged insulating mats on the floor
created a somewhat higher risk of a slip and fall injury in the
somewhat less likely event an employee were to step on one of
them.

 9. The type of injuries that would likely be involved if

such an accident occurred would be back injuries, concussions,
and/or broken bones.

 10. Shift foreman Jack Yost observed water flow from the

pumphouse approximately sixteen inches wide and a quarter-inch
deep the day before the issuance of the instant order.

 11. The operator, through its shift foreman, Yost, had

actual knowledge of the condition of the pumphouse at least the
day before the instant order was issued and likewise knew or
should have known and appreciated the slipping hazard presented
by the aforementioned conditions on the floor of the slurry
pumphouse.

                      CONCLUSIONS OF LAW

 1. Consol is subject to the provisions of the Act in the

operation of the subject mine. I have jurisdiction over the
parties and subject matter of this proceeding. [This finding
applies to all the orders considered in this proceeding.]

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2. The evidence as set out above in the Findings of Fact
establishes a violation of 30 C.F.R. 77.205(b) due to the
existence of a slippery slurry-water mixture on the entire floor
of the slurry pumphouse including those areas where persons are
required to travel and work.

 3. The violation was of such a nature as could significantly

and substantially contribute to the cause of a coal mine safety
hazard, and I accept the testimony of Inspector Migaiolo that
there was a reasonable likelihood that that hazard could have
resulted in serious injury to a person or persons. I therefore
conclude that the violation was significant and substantial and
serious. Mathies Coal Company, 6 FMSHRC 1 (1984).

 4. I further find that the violation was caused by the

"unwarrantable failure" of the operator to comply with the
standard. Based on the same evidence, I find that the mine
operator was negligent. In Zeigler Coal Company, 7 IBMA 280
(1977), the Interior Board of Mine Operations Appeals interpreted
the term "unwarrantable failure" as follows:

An inspector should find that a violation of any
mandatory standard was caused by an unwarrantable
failure to comply with such standard if he determines
that the operator has failed to abate the conditions or
practices constituting such violation, conditions or
practices the operator knew or should have known
existed or which it failed to abate because of lack of
due diligence, or because of indifference or lack of
reasonable care.

 The Commission has concurred with this definition to the

extent that an unwarrantable failure to comply may be proven by a
showing that the violative condition or practice was not
corrected or remedied prior to the issuance of a citation or
order, because of indifference, willful intent, or serious lack
of reasonable care. United States Steel Corp. v. Secretary of
Labor, 6 FMSHRC 1423 at 1437 (1984). It is not disputed that Mr.
Yost's knowledge is attributable to the operator and he knew of
the violative condition on the day before the inspector saw it.
The failure to correct these conditions reflects indifference to
them or a serious lack of reasonable care to see that they are
abated.

 5. Considering the criteria in Section 110(i) of the Act, I

conclude that a penalty of $800, as proposed, is appropriate.

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II. DOCKET NO. WEVA 86-218-R; ORDER NO. 2713946

 Order No. 2713946, issued pursuant to Section 104(d)(2) of

the Act alleges a violation of the regulatory standard at 30
C.F.R. 77.1104 (FOOTNOTE 2) and charges as follows:

In the hoist house, located on the surface facility of
the underground mine, the drum pit was saturated with a
layer of oil. Such area had this condition for a long
period of time due to a bucket placed beneath the
structure to catch the drippings (3 to 6" in depth).
However the portion not collected by the bucket had
layered on the metallic structure of the base area. In
addition the elevated break reservoir had a leak of oil
which had spread over the base structure and was being
delivered to the pit area. This condition was obvious
and had been previously identified by management as
having parts on order and that leaks from the pit
metallic oil connections were just a special connection
that leaks normally. Accumulations of combustible
materials which can start fires are not permitted.

                       FINDINGS OF FACT

 1. The order was issued at 9:20 a.m. on February 25, 1986,

by MSHA Inspector Joseph Migaiolo during a "AAA" inspection of
the hoist house facility located on the surface of the
Blacksville No. 1 Mine.

 2. Situated in the hoist house is a 20' long x 15'

wide x 7' deep concrete pit, called a "drum-pit" which houses
a drum hoist and an electric motor driving a hydraulic pump for
the hydraulic brakes which in turn control movement of the drum.

 3. A brattice-type cloth was spread over the floor of the

pit to catch dripping noncombustible graphite rope dressings.
However, due to hydraulic fluid leaks from the various hydraulic
connections existent in the pit, two-thirds of the brattice cloth
was saturated with hydraulic fluid, and the adjacent floor areas
were covered with a thin layer of hydraulic fluid.

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4. Consol was aware of the hydraulic fluid leakage, evidenced by
the fact that a five gallon bucket was on the pit floor to catch
hydraulic fluid leaks from the hydraulic hose fittings. Further,
it is undisputed that the bucket had failed to catch all the
leakage and these amounts accumulated on the brattice-type cloth.

 5. Consol's management personnel were generally familiar

with the leakage, but did not consider it a safety hazard.

 6. Before a fire could result from this accumulation of

hydraulic fluid, a flame or electrical arc must first reach the
brattice cloth. The only possible ignition source was a motor
located in the front left-hand corner of the pit.

 7. A flame or an electrical arc from this motor could

possibly, although not very likely, reach the brattice cloth if
it overheated from an overcurrent condition.

 8. Most importantly, however, this electric motor was

equipped with both circuit breakers and a power suppression
system for overcurrent protection. Accordingly, I find it to be
unlikely that an ignition source existed in the drum pit. In so
holding, I specifically reject Inspector Migaiolo's suggestion
that the solenoid located in the pit could be a second potential
source of ignition.

 9. The possible employee exposure to whatever hazard

existed, if any, was very limited. A single employee would visit
the hoist house once or twice a day to spend a few minutes
inspecting the area.

                      CONCLUSIONS OF LAW

 1. On February 25, 1986, the operator violated 30 C.F.R.

77.1104 due to the accumulation of combustible hydraulic fluid in
the drum pit of the hoist house facility at the Blacksville No. 1
Mine. No matter the likelihood or unlikelihood of a fire actually
resulting from this accumulation, the hydraulic fluid was allowed
to accumulate where it could create a fire hazard. Therefore, it
is a violation of the regulatory standard.

 2. The violation was not of such a nature as could

significantly and substantially contribute to the cause of a coal
mine safety hazard. There was no reasonable likelihood that the
presence of the hydraulic fluid on the brattice cloth or the
floor of the pit generally would significantly contribute to a
fire hazard because there was no reasonably likely ignition
source. Further, there was no

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showing of a reasonable likelihood, that in the unlikely event of
a fire, there would be an injury of any type, let alone an injury
of a reasonably serious nature. Mathies Coal Company, supra.

 3. The violation was nonetheless caused by an unwarrantable

failure to comply with the standard in question. It is
uncontroverted that the operator knew the violative condition
existed. The operator's belief that the brattice cloth did not
create a fire hazard and was not a violation of the mandatory
standard cited was in error. My holding herein is that any
appreciable accumulation of hydraulic fluid on the floor of the
drum pit, regardless of the likelihood of ignition (so long as
that likelihood is not absolute zero), can create a fire hazard,
and is therefore a violation. That violation is "unwarrantable"
if the operator fails to abate a condition that he knew existed,
as here. Zeigler Coal Co., supra. In the instant case the
violative condition had existed for a long time. A bucket was
being utilized to catch some of the fluid drippings, but did not
contain all. The brattice cloth that was found saturated by
Inspector Migaiolo was purportedly routinely changed when it
became saturated. It appears to me that this was a condition
management simply had decided to live with rather than repair.
This apparent attitude reflects indifference or at least a
serious lack of reasonable care to abate. United States Steel
Corp. v. Secretary of Labor, 6 FMSHRC 1423 at 1437 (1984). For
example, the leakage from the accumulator was eliminated by simply
tightening four bolts on the side of the accumulator cylinder
subsequent to the issuance of the instant order.

 4. Considering the criteria in Section 110(i) of the Act, I

conclude that a penalty of $400 is appropriate.

III. DOCKET NO. WEVA 86-219-R; ORDER NO. 2713952

 Order No. 2713952, issued pursuant to Section 104(d)(2) of

the Act alleges a violation of the regulatory standard at 30
C.F.R. 77.205(e) (FOOTNOTE 3) and charges as follows:

On the second floor travelways, in the preparation
plant on the surface, approximately 75 feet of
toe-boards were not provided in these

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elevated walkways. In addition a railing was not properly
maintained. Such had been cut apart, hinged so as to make an
opening. However the hinged door was not bolted together at the
middle. Such could cause persons to fall to the main floor
approximately 12 feet. These conditions are obvious and should
have been identified by management. In addition two other
travelways on the same floor had segments of railing missing
approximately 36 inches in length.

                       FINDINGS OF FACT

 1. The order was issued at 12:15 p.m. on February 25, 1986,

by MSHA Inspector Joseph Migaiolo during a "AAA" inspection of
the preparation plant located on the surface of the Blacksville No.
1 Mine. During this inspection, Inspector Migaiolo inspected the
second floor travelway of the said plant.

 2. The travelway on the second floor of the preparation

plant lacked fifty-seven (57) feet of toeboard.

 3. Numerous activities taking place on the ground floor of

the preparation plant place individuals, at times, underneath the
second floor travelways. At any one time, at least two workers
may be found on the ground floor.

 4. Two storage rooms are located on the second floor and

materials and supplies are transported on the second floor
travelway. In addition to these storage areas, the company
maintains the superintendent's and the shift boss's offices on
the second floor.

 5. Toeboards are necessary on the second floor travelway

because an object being carried or otherwise transported could
fall onto the travelway, roll off and strike a worker directly
underneath on the ground floor.

 6. The operator was aware of the absence of toeboards on the

second floor travelway and should have known of the potential
danger to its employees working below on the ground floor.
Curiously, toeboards were installed on every other floor of the
preparation plant except the second floor.

 7. The two-door loading gate located on the second floor

travelway was satisfactorily constructed. I am satisfied that
this gate would open inward, as designed, but would not open
outward because of the sturdy construction of the hinges on the
gates. In this regard, I specifically credit the testimony of Mr.
Gross over that of Inspector Migaiolo.

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8. The inspector also cited two 3-foot sections of walkway on
the second floor where the operator had not installed handrails. I
find that the missing railing located in these areas was situated
where crossbeams and vertical I-beams served in place of
handrails and adequately served to satisfy the regulatory
standard.

                      CONCLUSIONS OF LAW

 1. On February 25, 1986, the operator violated 30 C.F.R.

77.205(e) by its failure to provide toeboards on fifty-seven (57)
feet of travelway on the second floor of the preparation plant at
the Blacksville No. 1 Mine.

 2. This violation was of such a nature as could

significantly and substantially contribute to the cause and
effect of a coal mine safety hazard. When the storage room "D"
was moved to the second floor, there was a concomitant increase
in the amount of foot traffic on the second floor travelway and
increased movement of tools and supplies along this travelway in
addition to that transported via the elevator. It is therefore, I
find, reasonably likely that during the course of this
transportation objects can and will be dropped onto the travelway
from whence it is likewise reasonably likely that they could have
rolled off the travelway in those areas which were unprotected by
toeboards. If an item, such as a ballbearing, weighing up to
twenty-five pounds, were to fall off the travelway onto the
ground floor below, there is the distinct possibility that a
worker would be struck. Obviously, such an occurrence could
result in a serious injury.

 3. The operator knew of the violative condition, i.e., the

lack of toeboards, and by serious lack of reasonable care failed
to abate that condition. I therefore find that the aforementioned
violation constituted an unwarrantable failure to comply with the
standard.

 4. Those portions of Order No. 2713952 that allege similar

violations of the mandatory standard concerning the loading gate
and the handrails are vacated for the reasons enumerated above in
Findings of Fact Nos. 7 and 8. These conditions, as described in
the record, do not constitute a violation of the mandatory
standard at 30 C.F.R. 77.205(e), or considering the
alternative, 30 C.F.R. 77.204 either.

 5. Considering the criteria in Section 110(i) of the Act, I

conclude that a penalty of $500 is appropriate for the remaining
portion of the order for which I have found a violation.

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IV. DOCKET NO. WEVA 86-220-R; ORDER NO. 2713953

 Order No. 2713953, issued pursuant to Section 104(d)(2) of

the Act, alleges a violation of the regulatory standard at 30
C.F.R. 77.205 and charges as follows:

On the third floor of the preparation plant, adequate
barriers or handrails were not present to prevent
persons who may accidently fall through. An opening
divided into two sections by a set of conduit pipes
existed: the first opening adjacent to the other was
approximately 65 to 56 inches in height, 22 inches in
width and 16 inches in depth, the second was 56 inches
in height, 50 inches in width and 16 inches in depth.
This was a very obvious hazard and should have been
detected by management. Similar violations of this type
had been cited the previous day on the floor below. No
apparent record of this opening was available by
management. Persons falling through such opening could
fall approximately 12 feet to the floor below.

 The petitioner subsequently moved to amend Order No. 2713953

to allege a violation in the alternative of 30 C.F.R. 77.204
(FOOTNOTE 4) or 77.205(e). I granted this motion on the record
at the hearing of this case and therefore will consider herein
whether the record establishes a violation of either of the above
standards.

                       FINDINGS OF FACT

 1. The order was issued at 10:00 a.m. on February 26, 1986,

by MSHA Inspector Joseph Migaiolo during a "AAA" inspection of
the third floor of the preparation plant at the Blacksville No. 1
Mine.

 2. During this inspection, Inspector Migaiolo noted two

areas on the third floor of the preparation plant which lacked
handrailing. One of the areas was approximately 22 inches wide
between four steel conduits and a vertical I-beam. For an
individual to fall the 12 feet through to the floor below, he
would have to first negotiate his way through that 22 inch
opening and then through a 16 inch wide opening to the floor. The
other area was similar. It was 50 inches wide and 16 inches deep
in to the coal chute.

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3. I find both of these aforementioned areas were adequately
protected by a crossbeam which acted as a barrier across the
lower portion of the openings and a second crossbeam which acted
as an adequate barrier across the upper portion of the openings.
This pre-abatement arrangement of I-beams satisfactorily served
as railing. I specifically find that no safety hazard existed at
either of these openings. My impression after carefully reviewing
the record concerning this alleged violation, particularly the
photographic evidence submitted, is that it would fairly take an
acrobat to fall through either one of these openings.

                       CONCLUSIONS OF LAW

 1. The cited absence of handrails in Order No. 2713953 is

not a violation of either 30 C.F.R. 77.204 or 77.205(e).
Accordingly, Order No. 2713953 will be vacated.

                             ORDER

 Based on the above findings of fact and conclusions of law,

IT IS ORDERED:

 1. Order No. 2713945, contested in Docket No. WEVA 86-217-R,

properly charged a violation of 30 C.F.R. 77.205(b) and
properly found that the violation was significant and substantial
and resulted from Consol's unwarrantable failure to comply with
the standard involved. Accordingly, Order No. 2713945 IS
AFFIRMED.

 2. Order No. 2713946, contested in Docket No. WEVA 86-218-R,

IS AFFIRMED as a non-S & S violation of 30 C.F.R. 77.1104.
Further, the order properly concluded that the said violation
resulted from Consol's unwarrantable failure to comply with the
standard involved,

 3. Order No. 2713952, contested in Docket No. WEVA 86-219-R,

properly charged a violation of 30 C.F.R. 77.205(e) and
properly found that the violation was significant and substantial
and resulted from Consol's unwarrantable failure to comply with
the standard involved. Accordingly, Order No. 2713952 IS
AFFIRMED.

 4. Order No. 2713953, contested in Docket No. WEVA 86-220-R,

IS VACATED.

 5. The Consolidation Coal Company is hereby ORDERED TO PAY a

civil penalty of $1,700 within 30 days of the date of this
decision.

                          Roy J. Maurer
                          Administrative Law Judge

FOOTNOTES START HERE-

1 30 C.F.R 77.205(b) provides as follows:

Page 14

      Travelways and platforms or other means of access to
areas where persons are required to travel or work, shall be kept
clear of all extraneous material and other stumbling or slipping
hazards.

2 30 C.F.R. 77.1104 provides as follows:
Combustible materials, grease, lubricants, paints, or
flammable liquids shall not be allowed to accumulate where they
can create a fire hazard.

3 30 C.F.R. 77.205(e) provides as follows:
Crossovers, elevated walkways, elevated ramps, and
stairways shall be of substantial construction, provided with
handrails, and maintained in good condition. Where necessary
toeboards shall be provided.

4 30 C.F.R. 77.204 provides as follows:
Openings in surface installations through which men or
material may fall shall be protected by railings, barriers,
covers or other protective devices.