Consolidation Coal Company

Plain-English summary

Consolidation Coal Company contested a citation involving dust sampling at its Ireland Mine and also faced a civil penalty proceeding. The case concerned whether the headgate shear operator had to wear the dust sampling device when the tailgate operator temporarily moved to the headgate for fresh air. Judge Avram Weisberger found that 30 C.F.R. § 70.207(e)(7) required the headgate operator to wear the device during that period because the operator could be working nearest the return air side and exposed to coal dust. He found the violation significant and substantial, dismissed the contest, and assessed a $112 civil penalty.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 70.207(c)(7) and 70.207(e)(7)
• Outcome: The contest was dismissed, the violation was upheld, and a $112 civil penalty was assessed.
• Key point: Dust sampling must follow the miner who is working nearest the return air side, including when the usual tailgate operator temporarily floats out and the headgate operator may perform work at the tailgate.

Full text (FMSHRC public release)

CCASE:
CONSOLIDATION COAL V. SOL (MSHA)
DDATE:
19870824
TTEXT:

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

CONSOLIDATION COAL COMPANY, CONTEST PROCEEDING
COMPLAINANT
Docket No. WEVA 86-409-R
v. Order No. 2703894; 7/14/86

SECRETARY OF LABOR, Ireland Mine
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
RESPONDENT

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH Docket No. WEVA 86-454
ADMINISTRATION (MSHA), A.C. No. 46-01438-03651
PETITIONER
v.
Ireland Mine
CONSOLIDATION COAL
COMPANY,
RESPONDENT

                               DECISION

Appearances: Michael R. Peelish, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Complainant/Respondent; David T. Bush, Esq.
and Mark Swirsky, Esq., (on the Brief),
Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for the Secretary.

Before: Judge Weisberger

Statement of the Case

 In these consolidated cases, the Operator (Respondent) seeks

to challenge a citation issued to it by the Secretary
(Petitioner) for an alleged violation of 30 C.F.R.
70.207(c)(7). The Secretary seeks a Civil Penalty for an alleged
violation by the Operator of Section 70.207(e)(7), supra.
Pursuant to notice, the cases were heard in Wheeling, West
Virginia on May 12, 1987. John Dower testified for Petitioner,
and John Russell and Steve Perkins testified for the Respondent.
Petitioner and Respondent filed proposed Findings of Fact and
Briefs on July 27, 1987 and July 29, 1987, respectively. No reply
briefs were filed.

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Regulatory Provision

    30 C.F.R.    70.207(e)(7) provides for follows:

         (7) Longwall section. On the miner who works nearest
         the return air side of the longwall working face or
         along the working face on the return side within 48
         inches of the corner.

Issues

    1. Whether Respondent violated section 70.207(e)(7), supra.

 2. If a violation of section 70.207(e)(7), supra, occurred,

was it of such a nature as could have significantly and
substantially contributed to the cause and effect of a safety
hazard.

 3. If the Respondent violated section 70.207(e)(7), what is

the proper penalty to be assessed?

                Findings of Fact and Conclusions of Law

 The essential facts herein are not in dispute. In

Respondent's Ireland Mine, in the 6D longwall section coal is
mined by a shear which is operated by two miners who are called
shear operators. There is no distinction, in terms of work
assignments or pay, between the two shear operators.

 In the extraction phase, when the shear is traveling from

the headgate to the tailgate, one miner is assigned to operate
the headgate drum of the shear and the other miner is positioned
in the tailgate end of the shear and operates the tailgate drum.
When the shear travels from the tailgate to the headgate, the two
miners operating it remain at their positions until the shear
reaches shield number 113, at that point, the miner who was
working at the tail drum "floats out," and goes to the headgate
in order to obtain fresh air, and take a break from working in
the cramped quarters in proximity to the shear. The two miners
working on the shear will alternate "floating out" to the
headgate each time the shear, on its pass from the tailgate to
the headgate, reaches shield number 113. The remaining miner will
stay at the shear operating the controls of the head drum while
the shear travels from shield number 113 to the headgate. During
this phase of the operation, most of the coal is cut, and 90 to
95 percent of the dust is generated.

 John Dower, a mining engineer for MSHA, testified on direct

examination that "routinely" after the tailgate operator has
"floated out" to the headgate, the headgate operator would have
to go to the tail drum to readjust it because of face rolls. In

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contrast, John Russell, Respondent's dust and noise supervisor of
the Eastern Region, testified that it would be "very rare" for
the headgate operator to move to the tail position after the tail
operator has "floated out." This appear to be consistent with the
testimony of Dower, on cross examination, that there is no need
for the head drum operator to go to the tail position unless
there is a "severe problem." However, Dower explained, on
redirect examination, that such severe problems could occur if
there are massive stones under the machine or if there is a
mechanical malfunction of the drum. In the same connection,
Russell indicated that if the shear comes in contract with a
shield, the shear will stop and the head shear operator would
then have to go the tailend to fix it. Based on the above, I
conclude that, as part of the normal mining process, there are
occasions when the head shear operator, after the tail operator
has "floated out," would be required to go to the tail drum
position.

 Prior to May 1986, it was the policy of MSHA that a dust

sampling device be given to the tail drum operator who wore it
constantly even when he "floated out" to the headgate. In
practice, Respondent conformed to this policy. On May 13, 1986,
MSHA District Manager, Ronald L. Keaton, in response to an
inquiry from William Schlaupitz, Respondent's Regional
Manager-Safety, set forth a policy quoting from the Coal Mine
Health and Safety Inspection Manual, for underground mines dated
March 9, 1978, that "If the operator's mining procedures result
in the changing of miners from one occupation to another during a
production shift, the sampling device must remain on or at the
"high risk' occupation." On July 14, 1986, Dower observed the
tailgate shear operator wearing the dust sampling device on the
entire shift, including the time when he "floated out" to the
headgate on alternate passes.

 Russell testified that after the May 13, 1986 letter from

the District Manager was received, he talked to an MSHA employee,
Ellis Mitchell, who informed him that when the tailgate shear
operator "floated out" to the headgate, it was not to be
considered a "rotation" as no one replaced the tailgate shear
operator. Russell testified, in essence, that accordingly
Respondent did not take any action to change its procedure of
having the tailgate drum operator wear the dust testing device
throughout the shift, even when "floating out."

 The evidence is clear that the tailgate drum operator is

exposed to a certain amount of coal dust from the cutting drums,
conveyor chain, and debris falling from the ribs or roof. His
exposure to the coal dust is considerably more than that of the
headgate drum operator, as the former is nearest the return air
side, and as such is in the path of the airborne coal dust. It

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is also clear that most of the time he is the miner who works
nearest the return air side of the longwall working face.
However, on every other shift, when the tailgate operator "floats
out" to the headgate, the headgate operator then becomes the
miner working nearest the return air side. It would thus appear,
from the plain reading of the language of section 70.207(e)(7),
supra, that, accordingly, when the tailgate operator has "floated
out" the remaining headgate operator is required to wear the dust
testing device.

 It is true that requiring the tailgate operator to

continuously wear the dust sampling device would give an accurate
reading of the dust exposure to this miner who, as noted above,
is at a higher risk than the headgate shear operator. However,
the time the operator spends in the fresh air of the headgate
must be considered. This has the effect of reducing the amount of
his average exposure to coal dust. Further, by having the
tailgate shear operator wear the dust sampler, even in the
headgate, has the effect of not providing an accurate indication
of exposure of coal dust to the headgate operator who may, in the
ordinary course of the mining operation, be required to perform
some work in the tailgate position, thus enhancing his exposure
to coal dust, as being in the path of the airborne coal dust.
Hence, I hold, that section 70.207(e)(7), supra, requires that
the headgate shear operator wear the testing device when the
tailgate operator "floats out." Furthermore, I find that the
policy statement of the MSHA District Manager, of May 13, 1986,
does not contain any contrary direction. It is clearly the intent
of the District Manager to protect the person in a "high risk"
occupation by requiring him to wear the dust sampler. This policy
would clearly be thwarted in not requiring the headgate operator
to wear the dust sampler during portions of the pass when he is
alone at the shear and may be required, in the normal course of
mining operations, to go to the tail position and perform duties
where there is a "high risks" of exposure to coal dust. For all
the above reasons, I conclude that Respondent herein has violated
section 70.207(e)(7), supra.

 It was the uncontradicted testimony of Dower, in essence,

that if there is coal dust in the subject section above the
maximum permitted, and the coal dust is not being monitored
because the testing device is on the tailgate operator, who is in
the headgate area, then it is potentially likely that a miner
could be exposed to dust which could result in black lung disease
or a permanent disability of a very serious nature. Accordingly,
based on this testimony, I find that Respondent's violation of
section 77.207(e)(7), supra, was significant and substantial
(See, Consolidation Coal Company v. Federal Mine Safety and
Health Review Commission, Slip. Op., July 24, 1987 (D.C.Cir.);
Mathies Coal Co. 6 FMSHRC 1 (January 1984)).

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I have considered all the factors set forth in Section 110 of the
Act. Specifically I note that the Respondent was not negligent in
violating Section 771207(e)(7), supra. I conclude that the
proposed penalty of $112 is appropriate.

                             ORDER

 It is ORDERED that the Notice of Contest filed July 28,

1986, be DISMISSED. It is further ORDERED that Respondent pay the
sum of $112, within 30 days of the date of this decision, as a
civil penalty for the violation found herein.

                          Avram Weisberger
                          Administrative Law Judge