Southern Ohio Coal Company
Southern Ohio Coal Company (FMSHRC WEVA 86-8-R and related dockets): Mixed contest and penalty dispositions
What's the rule today?
This ALJ decision was superseded by the Commission's decision in the same case. Ezel starts from the controlling decision and answers your situation under current law, with citations.
Plain-English summary
Southern Ohio Coal Company challenged multiple MSHA citations and orders involving muddy haulage roads, unsupported roof, exposed electrical equipment, an unguarded fluid coupler, and an unsafe slope near a highwall. Judge William Fauver approved settlements in several matters, affirmed several violations, vacated two citation-related matters, and modified one roof-control order by deleting the unwarrantable-failure finding. The decision approved or assessed civil penalties including $25, $137, $157, $400, $500, $550, $600, and $1,000, depending on the docket and violation. The ALJ found significant and substantial conditions involving shuttle-car control, roof fall, machine guarding, and electrical safety. The official index later shows Commission review of three related dockets.
Decision snapshot
- Cited standards: 30 C.F.R. § 75.1403, § 75.200, § 75.503, § 75.1722(a), § 75.215(h), and § 77.205.
- Outcome: The consolidated matters received mixed dispositions, including settlements, affirmances, vacatur, dismissal, and modification of one unwarrantable-failure finding.
- Key point: The ALJ treated each cited condition separately, affirming serious safety violations while approving settlements and vacating or modifying matters where the record or settlement required a different result.
Full text (FMSHRC public release)
CCASE:
SOUTHERN OHIO COAL V. SOL (MSHA)
DDATE:
19861231
TTEXT:
Page 2
~1998
Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
SOUTHERN OHIO COAL COMPANY, CONTEST PROCEEDINGS
CONTESTANT
Docket No. WEVA 86-8-R
v. Citation No. 2557030; 9-10-85
SECRETARY OF LABOR, Docket No. WEVA 86-9-R
MINE SAFETY AND HEALTH Order No. 2564405; 2-10-85
ADMINISTRATION (MSHA),
RESPONDENT Docket No. WEVA 86-11-R
Order No. 2564943; 9-17-85
Docket No. WEVA 86-35-R
Order No. 2564613; 10-10-85
Docket No. WEVA 86-36-R
Citation No. 2564615; 10-10-85
Docket No. WEVA 86-37-R
Citation No. 2564821; 10-9-85
Docket No. WEVA 86-38-R
Order No. 2705721; 10-16-85
Docket No. WEVA 86-39-R
Citation No. 2705722; 10-16-85
Docket No. WEVA 86-47-R
Citation No. 2705729; 10-21-85
Docket No. WEVA 86-48-R
Order No. 2706704; 10-22-85
Docket No. WEVA 86-49-R
Citation No. 2706709; 10-22-85
Docket No. WEVA 86-154-R
Order No. 2706772; 2-5-86
Page 3
~1999
SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 86-30
PETITIONER A.C. No. 46-03805-03685
v. Docket No. WEVA 86-42
A.C. No. 46-03805-03686
SOUTHERN OHIO COAL COMPANY,
RESPONDENT Docket No. WEVA 86-51
A.C. No. 46-03805-03688
Docket No. WEVA 86-54
A.C. No. 46-03805-03687
Docket No. WEVA 86-71
A.C. No. 46-03805-03690
Docket No. WEVA 86-75
A.C. No. 46-03805-03692
Docket No. WEVA 86-102
A.C. No. 46-03805-03700
Docket No. WEVA 86-264
A.C. No. 46-03805-03722
DECISION
Appearances: David M. Cohen, Esq., and David A. Laing, Esq.,
American Electric Power Service Corporation,
Lancaster, Ohio, for Southern Ohio Coal Company;
Susan Jordan, Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania,
for the Secretary of Labor.
Before: Judge Fauver
Southern Ohio Coal Company seeks to have certain orders and
citations vacated, and the Secretary seeks to have them affirmed
and civil penalties assessed for violations charged in them,
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. |
801, et seq.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following:
Page 4
~2000
FINDINGS OF FACTS
WEVA 86-9-R and WEVA 86-30
1. Settlement proposed at the hearing was GRANTED. Order
2564405 will be AFFIRMED and a civil penalty of $600 is APPROVED.
WEVA 86-37-R and WEVA 86-42
2. Settlement proposed at the hearing was GRANTED. Citation
2564821 will be AFFIRMED and a civil penalty of $137 is APPROVED.
WEVA 86-39-R and WEVA 86-51
3. Settlement proposed at the hearing was GRANTED. Citation
2705722 is VACATED and the Petition for Civil Penalty will be
DISMISSED.
WEVA 86-11-R and WEVA 86-75
4. Settlement proposed at the hearing was GRANTED. Order
2564943 will be AFFIRMED and a civil penalty of $400 is APPROVED.
WEVA 86-38-R and WEVA 86-102
5. Settlement proposed at the hearing was GRANTED. Order
2705721 will be AFFIRMED and a civil penalty of $550 is APPROVED.
WEVA 86-36-R and WEVA 86-54
6. Citation 2564615 was issued on October 10, 1985, by MSHA
Inspector David Workman when he observed that the offtrack shuttle
car roadway in 3 Butt Section had excessive mud.
7. The area affected was 180 feet inby the belt feeder
including the entire four way intersection. The mud measured
approximately twelve to sixteen inches in depth. The wet and muddy
conditions made the steering of the shuttle cars difficult.
8. "A Notice to Provide Safeguards" had been issued on
September 10, 1974, requiring that off-track haulage roadways "be
maintained as free as practicable from bottom irregularities,
debris, and wet or muddy conditons." It was still in effect at the
time that the subject citation was issued.
9. The large accumulations of mud could affect the control
of equipment driven through this area.
Page 5
~2001
10. The muddy conditions could have contributed to the
cause and effect of a serious accident.
11. For abatement of the cited condition, the area was made
safe by running a scoop through and removing the accumulation of
mud.
WEVA 86-35-R and WEVA 86-102
12. On October 10, 1985, Order 2564613 was issued by MSHA
Inspector David Workman when he observed that two brows of a boom
hole in the roof of No. 4 entry of the 3 Butt section were not
supported adequately.
13. The boom hole had been cut in the entry during the
midnight shift of October 9, 1985. The area was being prepared as
a belt transfer or dumping point. The hole was about three feet
high and nineteen and one-half feet wide.
14. After the boom hole was cut, additional roof bolts were
put in the top of the cavity of the hole. No new bolts were placed
on any of the four brows of the boom hole. The bolts on the brows
were there before the roof was cut.
15. On two sides of the boom hole a row of bolts was very
close to the edge of the brows. The bolt plates were up to the
edge. These bolts provided adequate support to two sides.
16. On each of the other two sides of the boom hole inby a
row of bolts was much farther from the edge of the brow. On the
right side, the bolts were 1' 2", 2', 1' 8" and 2' 2" from the
edge. On the left side, the measurements were 2', 2' 5" and 2' 5".
Inspector Workman and David Antock, the miners' representative,
took these measurements at the time the order was issued.
17. The roof control plan for this mine does not provide
specifically for the support of boom holes. However, it is a well
established practice in the mining industry that roof support be
provided as close to the edge of a brow of a boom hole as possible.
18. The lack of roof bolts near the edge resulted in two
exposed areas of roof approximately fifteen and one half feet long
and two and a half feet wide.
Page 6
~2002
19. At the time of the order there was no imminent danger
of a roof fall. However, given the size and weight of the
unsupported areas, the type and history of the slate roof in this
mine, and the heavy vibrations the area was subject to, it could
reasonably be expected that parts or all of the exposed roof areas
would fall at some point and result in serious injuries.
20. The bolting pattern was readily observable. The section
foreman did not require the roof bolters to put additional bolts on
the brows and ensure that the area was supported properly after the
boom hole was cut. Furthermore, this area is required to be
examined during pre-shift and on-shift examinations. The section
foreman did not report that the brows were not adequately supported
during any subsequent examination of the area.
21. For abatement of the cited condition, the area was made
safe by installing bolts on the brows closer to the edge. This
took approximately one-half hour.
WEVA 86-48-R and WEVA 86-102
22. Order No. 2706704 was issued on October 22, 1985, by MSHA
Inspector David Workman when he observed a large piece of loose
roof on the B-6 longwall section supply track inby the pumping
station 150 feet.
23. The piece of loose slate roof was about 5 feet long, 30
inches wide and 4 inches thick. There was a gap between the
remaining roof and the loose rock of one half to one inch for the
entire length of the loose slate. The loose piece of roof could
have fallen at any time.
24. The condition of the loose roof was obvious and very
dangerous. The gap between the roof and rock could be observed
when approaching from either direction.
WEVA 86-49-R and WEVA 86-71
25. Citation No. 2706709 was issued on October 22, 1985, by
MSHA Inspector David Workman when he observed an unguarded opening
on a tail gate motor on the 3-5 Longwall which exposed moving parts
of the fluid coupler.
Page 7
~2003
26. The unguarded opening was 1-3/4 inches by 1-1/2 inches
and large enough that a person's fingers could fit through it. The
opening was located on the side of the coupler approximately two
feet from the ground.
27. The exposed moving parts of the coupler moved at 178 RPM.
28. There was a reasonable probability of tripping in the
area of the coupler in that the coupler was located in the walkway
along the face conveyor which contained refuse, bottom
irregularities and a number of rams that had to be stepped over.
29. There was a substantial risk that someone would
accidentally put a finger or fingers into the opening and suffer a
serious injury. To abate the condition, the opening was guarded by
fixing a piece of rubber belting over the hole.
WEVA 86-154-R and WEVA 86-264
30. On February 5, 1986, Order No. 2706772 was issued by MSHA
Inspector Harry Markley based upon his finding that a safe means of
access was not provided and maintained to the power center located
at the Grassy Run Portal.
31. The MSHA inspector and union walkaround observed wet,
muddy and rocky conditions in the pathway that was used around the
power center.
32. The walkway in front of the power center consisted of
approximately eight feet of flat area. In this area the mud was
knee deep in places and extremely slippery.
33. The pathway around the left side of the power center to
the back consisted of a two foot rocky and muddy walkway along the
power center and the dangered-off power cables for a distace of
approximately forty feet.
34. From the edge of the power center walkway toward the open
pit there was an increasing downward slope ending in a vertical
highwall. The slope was 3 degrees for about 10 feet, then there
was a slope of 22 degress for about 12 feet, followed by a slope of
27 degrees for about 16 feet, ending in a sharp highwall that
dropped vertically about 11 to 15 feet.
35. At least part of the two foot wide walkway between the
power center and slope would need to be used in order to access the
left back side of the power center where the power
Page 8
~2004
plugs were located. If someone came around the front of the
power center, he would have to walk along the two foot wide path
between the power center and pit to reach the power switches on the
left back side. In the event he came around the back, he would
need to walk around the power cables that were staked and wired off
and then up the two foot path along the power cables to the left
back side of the power center where the switches for the cables
were located.
36. Due to weather conditions that time of year, the walkway
around the power center was extremely wet and muddy. The slope
between the pathway and vertical highwall was also muddy and not
safe to walk on.
37. Access to the power center would be required at least
twice a shift to energize the cables at the start of the shift and
de-energize them at the end of the shift. If any problems with
equipment were encountered during a shift, personnel would be
required to travel to the power center more often to remove the
power. Whenever a piece of equipment would break down, the power
would have to be removed from the equipment to work on it.
38. The MSHA inspector and union walkaround observed two men
working on the power center during the time that they were in this
area. They were electricians who were repairing a problem with a
ground fault system.
39. The power center had been in this location and in
operation for approximately two to five days before the MSHA order
was issued.
40. This area is required to be examined daily during
on-shift examinations by certified personnel. The assistant shift
foreman, John Vevilock, was responsible for this area and had
conducted the on-shift examination that day. He was also working
in the area at the time the order was issued.
41. The wet, muddy, rocky conditions in the walkway along
side of the power center and trailing cables presented a slipping
hazard.
42. The conditions around the power center presented a
serious hazard that someone could stop or fall in the walkway and
continue slipping down the incline into the pit below. A person
falling down the slope and over the highwall could be seriously
injuried or killed.
Page 9
~2005
43. All that was required to make the area safe was a guard
rail or barrier to prevent a person from falling in the first place
and keep him from slipping down the slope over the highwall in the
event that he did slip and fall. The operator built a platform
with guard rails between the power center and slope by the next
day.
WEVA 86-8-R AND WEVA 86-75
44. On September 10, 1985, Citation 2557039 was issued by
MSHA Electrical Inspector John Paul Phillips for a violation of 30
C.F.R. 75.503 on a five horsepower Flygt pump located in the face
of the Number One heading on 1 North off 2 West Section
45. The citation stated that the pump was not maintained in
permissible condition in that an input power cable to the
controller was not entered through the entrance gland. In
addition, the citation stated that the cable had been pulled out of
the packing gland and only insulated wires were through the gland.
46. The operator does not contest that a violation of 30
C.F.R. 75.503 existed in that the input cable did not go
completely through the packing gland of the controller. The
operator does contest, however, the special findings of an
unwarrantable, significant, and substantial violation.
47. The inspector entered the area to inspect the controller
because of problems he had observed with other similar controllers
in this mine. He was accompanied by Pat Grimes, union walkaround,
and Kenney Moore, company representative. The inspector
immediately observed that the controller was hung by its two cables
which were looped on j-hooks in the roof.
48. It is recognized that the normal mining practice is to
hang these control boxes from the roof by their handles which are
on top of the boxes or by bolting brackets on the back.
49. The control box in question may or may not have had a
handle on it, but it did have bolting brackets for mounting.
50. It is not considered good mining practice to hang the
controller by its cables because strain is put on the input cables
by the weight of the box. The control box itself weighs
approximately thirty pounds.
Page 10
~2006
51. The electrical inspector asked the union walkaround,
Mr. Grimes, who is also a certifed electrician, to take the
controller down. As Mr. Grimes was about to do this, he noticed
that one of the input cables was pulled out of the box. He
specifically observed the insulated colored leads through the slot
between the straining clamp and the outside of the box. He
observed that the black cover of the cable did not go completely
through the straining clamp into the control box. Mr. Grimes
pointed out his observations to the inspector.
52. Once the controller was on the ground, the cover was
removed by Mr. Grimes. The fact that the input cable did not pass
completely through the wall of the controller, as is required, was
confirmed. In addition, the inspector observed two other
violations in the controller. These violations involved inadequate
overcurrent protection and ground monitoring system. These
violations were the conditions that the inspector was concerned
with when entering the area because of similar findings on other
controllers. The inspector issued citations for violations of 30
C.F.R. 75.518 and 75.902 for these conditions at the same time
he issued the order at bar.
53. With respect to the citation at issue, the inspector and
union walkaround observed that the input cable went to the
straining clamp on the outside of the box but did not go through
the packing gland. The packing gland consists of packing material
made of asbestos between two rings. The input cable had to extend
through the packing gland and into the controller in order to be
permissible. It is uncontested that the input cable did not go
through the packing gland.
54. The fact that the input cable itself did not extend
through the packing gland and into the box was observable without
the cover off since the colored leads of the cable could be
observed coming out of the box in the small space between the
outside of the box and the straining clamp.
55. Mr. Grimes, a certified electrician, attempted to enter
the cable back into the control box. However, the cable would not
fit through the inner ring of the packing gland. Mr. Grimes took
the whole packing gland out of the box. It was apparent to him and
the inspector that while the input cable could fit through the ring
closest to the outside, it would not fit through the ring toward
the inside of the box.
Page 11
~2007
56. Given the manner in which the control box was hung from
its cables on j-hooks and the weight of the box itself, the
pressure on the cable had caused the cable to slip farther back
from the packing gland and exposed colored leads on the outside of
the box. While the straining clamp was tight, it was not so tight
as to prevent any movement of the cable. The straining clamp could
not be too tight or it would affect the conductors inside.
57. Due to the fact that the input cable could not be entered
completely through the packing gland and the existence of the other
violative conditions that were cited, the operator made a decision
to take the pump and its controller out of service and remove it to
the outside of the mine.
58. When the control box was taken outside, it was not in the
same condition as when it was first observed by the inspector,
because attempts had been made to enter the cable through the
packing gland into the box. Specifically, the colored leads could
no longer be seen on the outside of the box.
59. The purpose of the pump was to dewater the face area in
the section. It was energized at the time the inspector entered
the area.
60. The pump and its controller are required to be examined
during weekly permissibility inspections. The pump had been
examined during a permissibility inspection by a certified
electrician on September 8, 1985, two days before the citation was
written.
61. In addition, this equipment is subject to daily
examination during pre-shift examinations by the section foreman.
The violative condition was not observed during any permissibility
or pre-shift examinations.
62. The manner in which the controller was hung by its cables
was easily observable. It is not a normal mining practice because
of the strain put on the cables. The way the controller was hung
should have resulted in closer examinations during pre-shift and
particularly in permissibility inspections to make sure the cables
were not pulled out of the explosion proof box. Closer examination
would have resulted in observation of the exposed colored leads on
the outside of the box
63. Permissibility standards require that the input cable
extend completely through the packing gland into the control
Page 12
~2008
box so that no spark, fire, or explosion can escape the
explosion-proof box. Given that the cable did not go through the
packing gland and that there were other violations found in the
control box, it could reasonably be expected that a fire, explosion
or even spark would not be contained and could result in a mine
fire or explosion. Serious injuries or even fatalities would be
likely to result from burns or smoke inhalation.
DISCUSSION WITH FURTHER FINDINGS
WEVA 86-36-R AND WEVA 86-54
Citation 2564615 was issued by the inspector when he observed
excessive mud in an off-track shuttle car roadway. The area cited
was 180 feet inby the belt feeder and included a four way
intersection.
The standard cited, 30 CFR 75.1403, provides the authority
to issue and enforce special safeguards regarding transporation in
coal mines when an MSHA official determines that they are needed.
It reads:
Other safeguards adequate, in the judgment of an
authorized representative of the Secretary, to minimize
hazards with respect to transportation of men and
materials shall be provided.
Safeguards written and approved under this section have the
force and effect of a mandatory safety regulation. Following this
section are general criteria to be used in promulgating special
safeguards. Section 75.1403-10(i) contains criteria regarding
off-track haulage roadways. It specifically provides:
Off-track haulage roadways should be maintained as free
as practicable from bottom irregularities, debris, and
wet or muddy conditions that affect the control of the
equipment.
A "Notice to Provide Safeguard" was issued at this mine on
September 10, 1974, by MSHA Inspector Raymond Strand. The
Safeguard contains language identical to 75.1403-10(i). This
safeguard was in effect at the time that the citation was issued.
Page 13
~2009
I find that the off-track roadway was not maintained as free
as practicable from wet and muddy conditions that could affect the
control of the equipment. Inspector Workman issued the citation
after observing what he believed were excessive amounts of mud in
a four way intersection. He stated that he did not specifically
measure the depth of the mud or the size of the area affected, but
that he walked around the area and walked out into the mud until it
reached the top of his boots. He estimated that the mud was 12 to
16 inches deep and possibly up to 20 inches in places. He also
testified that the entire intersection was affected and measured
approximately 16 x 16 feet.
David Antock, the union representative who accompanied
Inspector Workman during his inspection, corroborated his
observations. He testified that the mud would have been over his
boots if he walked out into it.
Respondent contends that the muddy conditions were not as bad
as described by Inspector Workman and Mr. Antock. However, none of
Respondent's witnesses actually measured the accumulations. Also,
Inspector Workman was the only person who actually walked out
toward the middle of the roadway. Mr. Antock observed him do this
and saw him back out when the mud reached the top of his boots.
Both Inspector Workman and Mr. Antock testified that the muddy
conditions would affect the control of a shuttle car. Both men
have had significant experience operating shuttle cars and Mr.
Antock worked as a shuttle car operator in this mine and had driven
a shuttle car in this particular section as recently as a few days
before the citation was written.
Inspector Workman and Mr. Antock observed a shuttle car
operator in the area trying to clean out his car. The mud had come
over the deck and into the car itself. Mud was observed around the
tram handles and brakes. The mud would have to be at least six
inches deep to come over the deck. Both felt that it would be
extremely difficult to operate a shuttle car through the area
without sliding. Accumulation of mud to this extent gets
underneath and inside the car and affects the control and braking
of the vehicle.
The violation was abated by scooping the mud out of the
roadway. Mr. Antock, who was working on this section at the time
of the hearing, indicated that cleaning up one to two times per
shift is sufficient to keep the area clean and safe. He testified
that recently the area was being scooped once at
Page 14
~2010
the beginning of the shift and once at the end and that the
shuttle cars were not having problems through there. It takes
about fifteen minutes to scoop the area when done on a regular
basis.
The violation was significant and substantial. It was
reasonably likely or reasonably foreseeable that a shuttle car
traveling through the muddy conditions would slip and result in
serious injuries to the operator or others in the area.
Considering the criteria of section 110(i) for civil
penalties, the proposed penalty of $157 is found appropriate for
this violation.
WEVA 86-35-R and WEVA 86-102
Inspector David Workman issued Order 2564613 on October 10,
1985, pursuant to 104(d)(2) of the Act. He was conducting a
regular inspection of the Martinka No. 1 Mine when, while
proceeding through the No. 4 entry of the 3 Butt Section, he
observed two brows of a boom hole that, in his opinion, were not
supported adequately.
The standard cited is a broad safety regulation regarding roof
control programs and plans. The part cited by the inspector and at
issue here reads:
Each operator shall undertake to carry out on a continuing basis a
program to improve the roof control system of each coal mine and
the means and measures to accomplish such system. The roof and
ribs of all active underground roadways, travelways, and working
places shall be supported or otherwise controlled adequately to
protect persons from falls of the roof or ribs.
The Secretary maintains that the operator violated 30 CFR 75.200
in that the brows of the boom hole were not supported adequately to
protect against a roof fall.
I find that the inspector was correct in his conclusion that a
violation existed based upon his observations. Inspector Workman
observed the recently cut boom hole as he was traveling through the
crosscut. He learned that it had been cut out with a continuous
mining machine the day before and that this area was to be a belt
transfer or dumping point. The
Page 15
~2011
cavity that was cut out to make the boom hole measured
approximately three feet high by nineteen and a half feet wide.
The boom hole was cut up into the roof and out to existing bolts.
The hole was cut far enough out so that two sides had a row of
bolts within several inches of the edge. However, the other two
sides inby had bolts much farther from-the edge. The bolts on the
right side of the boom hole were 1' 2", 2', 1' 8" and 2' 2" from
the edge and the bolts on the left side were 2', 2' 5" and 2' 5"
away from the edge of the brow. The only new bolts installed were
put in the top of the cavity.
Based on his observations, as well as his knowledge of this mine
and his own experience, Inspector Workman found that the area had
not been rebolted properly after the boom hole was cut. David
Antock, the union representative who accompanied the inspector,
agreed that the roof area had not been supported adequately.
Inspector Workman has been an MSHA inspector for fifteen years with
a total of twenty three years of mining experience. He has had
special training in roof control as an MSHA inspector. He has been
conducting MSHA inspections at Martinka No. l Mine since 1977. Mr.
Antock, the miners' representative, has worked at this mine for six
years and for the last four years he has been a roof bolter in the
section involved. Their opinions are accorded substanial weight
based on their testimony, demeanor on the stand and their
background. It is a recognized and well accepted practice in the
underground coal mining industry that when a boom hole is cut out
of the roof, the brows are supported by bolting as close to the
edge as reasonably possible. Mr. Antock stated several times
during his testimony that he has been told to bolt as close to the
edge of the brow as possible by every foreman he has worked for as
a roof bolter. He stated that he "would have bolted at the end of
the brow...[f]or the reason that it keeps falling out, and that's
where we've always been told..."
In the opinions of Inspector Workman and Mr. Antock, the distances
between the bolts and the edge of the brow were too great to
provide adequate support to the immediate area. The result was two
exposed areas of unsupported roof measuring 15 1/2' x 1-1/2' on the
right and 15-1/2' x 2-1/2' on the left side. Both men agreed that
all of the bolts on the brow should have been within two feet to
provide adequate support and the closer the better.
Respondent's witnesses recognized that bolting closer to the brow
provides better roof support. Mr. Jon Merrified, the
Page 16
~2012
Respondent's Safety Director, stated that the bolts should be
near the edge of the brow and "'near'" is not ten feet. 'Near' is
not five feet. 'Near' could be somewhere in the vicinity of two
feet, in my best judgment. And that's the way I would want to see
it done, also." (June 19, 1986, Tr. 14.) He went on to comment
that on average, boom hole bolts are placed "around one foot, four
inches" from the edge of the brow and that "I would not have been
satisfied if they weren't in the two to one and a half foot range."
(June 19, 1986, Tr. 30.)
In addition to his knowledge of standard mining practice, Inspector
Workman based his opinion on observations of the area and history
of the roof of the mine. Although he did not observe any exessive
breakage or cracks that would have signified an imminent danger, he
did see several small loose pieces that he pulled down himself.
Also, he was aware that the slate roof in this mine had a history
of instability given its weight and lack of "interlocking" effect.
He felt that given the weight of the slate rock on the unsupported
brows, the roof would become loose, crack and fall. Mr. Antock
stated that the roof has "never been stable there" and that a fall
would have occurred if the roof were left in that condition without
added bolts.
It should be noted that all that was required to make the area safe
was several additional bolts on each of the two sides It took
approximately one half hour for a roof bolter to put in the new
bolts.
The regulation, 30 CFR 75.200, requires adequate roof support.
The order was issued because the inspector observed roof conditions
which required additional roof support in his view. He believed
that if additional bolts were not installed, the roof would have
fallen in. His testimony and documentation are fully supported by
the miners' representative and are sufficient to establish a
violation in this case.
The Commission has recently restated its test for determining
whether a violation constitues an "unwarrantable failure to
comply." In affirming Ziegler Coal Company, 7 IBMA 280, FMSHRC 1518
(1977), it held:
...an unwarrantable failure to comply may be proved by a showing
that the violative condition or practice was not corrected or
Page 17
~2013
remedied, prior to the issuance of a cita-
tion or order, because of indifference,
willful intent, or a serious lack of reason-
able care.
United States Steel Corp., 3 FMSRHC 1424, 1434 (1984).
The Secretary argues that the inspector correctly issued
the order in this case because indifference or a serious lack
of due diligence or reasonable care was demonstrated by a
number of actions attributable to the operator.
The boom hole was cut the day before, at the end of the midnight
shift. After the boom hole was cut, only the top of the cavity was
rebolted. There is evidence that the reason that additional bolts
were not provided on the brows was the fact that the roof bolters
could not get the roof bolting machine around the corners of the
boom hole and under the two exposed brows. There was debris left
in the area from the cutting of the boom hole. The belts were down
at the time and the materials could not be cleared out until the
next shift. In the meantime, the bolters came in to support the
roof and could only get to the center of the boom hole. Inspector
Workman stated that statements to this effect were made to him by
Henry Paul at the time the violation was cited and by Mike Layman
at a later date. These men were section foremen at the time. Mr.
Layman stated that his crew would not have been able to get the
roof bolting machine around the corners because of material left
from the boom hole and that he may have told Inspector Workman
that.
The foremen and roof bolters knew or should have known that
additional bolts were needed closer to the edge of the brow. As
discussed earlier, the fact that this is an established mining
practice was clearly shown by the evidence. The action of the roof
bolters who came to the area to abate the violation demonstrated
that they knew that the bolts should be as close to the edge as
possible. They placed additional bolts within one foot of the
edge. When asked by Inspector Workman why they put the additional
bolts there, they stated that is where they should have been. The
foreman in charge of the crew at the time that the boom hole was
cut should have observed the work and made sure the roof was
rebolted and supported adequately. The fact that debris hampered
additional bolting did not justify leaving the job incomplete. The
failure to take further action demonstrated a serious lack of
reasonable care.
In addition, the violative condition should have been observed
during any one of the required examinations of the
Page 18
~2014
area after the boom hole was cut. This area is required to be
examined during pre-shift and on-shift examinations. The examiners
should have seen the inadequate bolting pattern and exposed areas
of roof. Roof falls are the primary cause of fatalities and
injuries and examiners should be trained to look for roof
conditions that are unsafe or potentially unsafe. The failure to
observe and take action in this case amounts to a serious lack of
reasonable care.
These facts amply support the Secretary's claim that this
violation existed due to a lack of due diligence or reasonable
care on the part of the company.
For these reasons, I find that the allegation of an unwarrantable
violation is supported by the evidence.
In order to establish a "significant and substantial" finding, it
must be shown that:
...based upon the particular facts surrounding the violation, there
exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature.
National Gypsum, 3 FMSHRC 822 at 825, 2 FMSHRC at 1203 (1981).
The safety hazard contributed to by this violation was a roof fall.
Two of the brows had unsupported areas of approximately 15-1/2' x
2-1/2'. Both of these areas presented a danger of roof fall in the
opinions of the inspector and Mr. Antock.
The inspector testified that it was his opinion that these
unsupported areas could reasonably be expected to move and fall
given the slate roof's weight and history of instability. Mr.
Antock agreed. Both of these men, as well as the company's
witnesses, were aware of roof falls and injuries at this mine Mr.
Merrified confirmed that there were at least six injuries from roof
fall accidents between July 1985 and the time of the hearing. In
addition, this particular area was travelway and was being prepared
to become a belt transfer point. This area would have become
highly traveled while it was being set up, making the likelihood of
injury greater.
In the event of a roof fall in this area, it was reasonably likely
that there would be serious injuries. Inspector Workman testified
that if either of the unsupported brows fell, there could be
fatalities and other serious injuries.
Page 19
~2015
As a general matter, roof support is of foremost concern
inasmuch as roof falls frequently result in serious injuries to
miners. In Secretary of Labor v. Consolidation Coal Company, 3
FMSHC 1187, 1190 (1984), the Commission acknowledged Congres-
sional concern with the serious and frequent injuries which
result from roof falls:
A prime motive in enactment of the 1969
Coal Act was to '[i]mprove health and
safety conditions and practices at under-
ground coal mines' in order to prevent
death and serious physical harm. One of
the problems that greatly concerned
Congress was the high fatality and injury
rate due to roof falls. The legislative
history is replete with references to roof
falls as the prime cause of the fatalities
in underground mines. [Citations and foot-
notes omitted.]
Fatality statistics reveal that during the first three months of
1986, there have been eleven roof fall fatalities in underground
coal mines in the United States. Four of those deaths have been in
West Virginia. Current Report, BNA MSHR p. 457 (April 16, 1986).
In 1982 through 1985, there were 37, 23, 34 and 18 fatalities,
respectively, due to roof and rib falls. Roof falls are the leading
cause of coal mine deaths. Current Report, BNA MSHR p. 141
(January 25, 1984); p. 316 (January 9, 1985), p. 305 (January 8,
1986). In 1981, roof falls in underground coal mines resulted in
37 fatalities, 778 nonfatal injuries involving lost workdays and
116 nonfatal injuries involving no lost workdays. Current Report,
BNA MSHR p. 111-112 (July 28, 1982). These statistics establish
that more miners die or are injured as a result of roof falls than
any other type of accident including ignitions and explosions.
Thus, Inspector Workman's concern that miners could be injured in
a roof fall was well-founded. The Review Commission emphasized in
National Gypsum that the inspector's "independent judgment is an
important element in making 'significant and substantial' findings
which should not be circumvented." 3 FMSHRC at 825-826. The
inspector's conclusions in this case were based on his observations
of the roof itself, the surrounding area, his knowledge of the mine
and the number of employees who would have occasion to be in the
area.
Page 20
~2016
I find that Inspector Workman made a careful assessment of the
conditions he observed and reasonably concluded that the violation
cited was "significant and substantial."
WEVA 86-48-R and WEVA 86-102
At the hearing and in prehearing exchanges, the parties
stipulated that the violation of 30 CFR 75.200 charged in Order
2706704 occurred, that it was of such a nature as could signi-
ficantly and substantially contribute to the cause and effect of
a mine safety hazard, and that it was based on an underlying
citation properly issued under 104(d)(1) of the Act. The only
remaining issue is whether the violation was caused by an "unwar-
rantable failure" to comply.
The violation was obvious and very dangerous. A large piece of
slate roof was loose, gapping down and could have fallen at any
time. The loose piece of slate roof was approximately five feet
long, thirty inches wide and four inches thick. A gap of one-half
to one inch existed between the roof and loose rock. The condition
was visible when approaching from either direction on the supply
track. In light of the size, weight and looseness of the piece of
slate, there could have been a roof fall at any time resulting in
serious or fatal injuries.
This specific area along the supply track was required to be
examined by a certified person during pre-shift and on-shift
examinations.
The Secretary contends that the violative condition was
allowed to develop into a very dangerous situation without
being reported during examinations of the area. The Secretary
submits that the fact that this obvious condition in a regularly
used travelway went unreported and uncorrected amounts to a lack
of due diligence, indifference or serious lack of reasonble care
and is sufficient grounds for a finding of unwarrantability.
The company contends that the condition occurred suddenly some-
time between the time of the last examination and Inspector Workman's
arrival in the area.
Both Inspector Workman and Mr. Antock testified that it was very
unlikely that the roof could have gotten into this condition in the
three to four hours since the last preshift examination. Based on
their mining experience and familiarity with the-top in this mine,
it was their opinion that movement of such a large and heavy piece
of rock in a short period of time would have meant a major fall
throughout the area. It was
Page 21
~2017
their opinion, based on their observations of the area that day,
that the rock had moved gradually over a period of time and did not
develop suddenly since the pre-shift examination of this area at
2:20 p.m.
In addition, both Inspector Workman and Mr. Antock stated that this
area of the supply track is frequently traveled by crew members on
their way to and from the supply truck during each shift.
Therefore, the Secretary argues that the facts amply support the
allegation that this violation existed due to a lack of due
diligence or reasonable care on the part of the operator.
Inspector Workman testified that:
Well, as I started to say a little bit
ago, our guidelines say that if there
are foremen who are in the area, then
we are required if we find a violation
like this to charge unwarrantable failure,
and reasonably believe that the foreman
should have known this condition existed
or a condition and practice that exists
throughout the area, conditions left un-
abated. [June 19 Tr., p. 2511.]
Because Section Foreman Jim Chiater and Longwall Foreman Fitzhugh
were on the section, Inspector Workman believed they "should have
known" of the cited condition. However, they testified that they
checked the preshift report, which did not indicate a roof hazard,
and did not see this area until after the order was issued.
The crew on the shift on which the order was issued did not walk
through the cited roof area, but traveled in another entry to get
to the dinner hole and later to get to the face. No one on the
crew saw the cited area before the order was issued.
The gap in the loose slate, about one-half to one inch wide,
contained no rock dust, indicating that the slate did not loosen
over a substantial period of time.
I find that there is no direct or objective evidence supporting
the allegation of an unwarrantable failure by
Page 22
~2018
Respondent. The Secretary has not met his burden of proving the
allegation of an "unwarrantable" violation by a preponderance of
the evidence.
Considering all the criteria for assessing a penalty, I find
that penalty of $25 is appropriate for this violation.
WEVA 86-49-R and WEVA 86-71
Citation 2706709 alleges a violation of 30 CFR 1722(a) for the
failure to guard exposed moving machine parts of a fluid coupler.
The regulation provides:
Gears; sprockets; chains; drive, head,
tail, and takeup pulleys, flywheels;
couplings; shafts; sawblades; fan inlets;
and similar exposed moving machine parts
which may be contacted by persons, and
which may cause injury to persons shall
be guarded.
The fluid coupler has moving parts and is subject to the
requirements of 1722(a). There was guarding around most of the
fluid coupler, but a small opening exposed moving parts.
The size of the unguarded opening, its location and the speed of
the moving parts, combined with the potential for tripping in this
area, substantiate the inspector's finding that it was reasonably
likely that someone would fall and lose fingers. I conclude that
there was a violation, and that it was significant and substantial.
Considering all the criteria for assessing a penalty, I find that
a penalty of $157 is appropriate for this violation.
WEVA 86-154 and WEVA 86-264
The operator contends that the degree of slope between the edge of
the power center and high wall was no greater than an acceptable
slope for refuse piles, and was actually purposely constructed to
meet the guidelines for the construction of refuse piles in 30
C.F.R. 77.215(h). However, refuse piles that miners are
permitted to walk on do not end in a sharp highwall dropping
vertically into an open pit. The slope in this case was muddy,
slippery and not safe to walk on. The danger of slipping and
continuing to slide to and over the highwall required a guard rail
or barrier under 30 C.F.R. 77.205
Page 23
~2019
The violation constituted an unwarrantable failure to comply with
the requirements of 30 C.F.R. 77.205 in that the failure to
provide a safe walkway around the power center at the time it was
set up demonstrates a serious lack of care. In addition, the fact
that this area had been examined during each shift every day that
the power center had been in this location and that the foreman was
working in this immediate area amounts to indifference or a serious
lack of reasonable case. United States Steel Corp., 3 MSHA 1424,
1434 (1984).
The violation was of such a nature as could significantly and
substantially contribute to the cause and effect of a slipping
accident.
WEVA 86-8-R and WEVA 86-75
The operator violated 30 C.F.R. 75.503 by its failure to maintain
the five horsepower Flygt pump in permissible condition. The
operator concedes that the power input cable did not extend
completely through the packing gland into the control box and
therefore the pump was not in permissible condition
The violation constituted an unwarrantable failure to comply with
the requirements of 30 C.F.R. 75.503 in that the failure to
install and hang the box properly demonstrates indifference or a
serious lack of care. The manner in which the box was hung was
unusual and put strain on the cable which caused it to pull farther
out of the packing gland.
Furthemore, the failure to observe that the cable was pulled out
of the box during at least the weekly permissibility examination
demonstrates a serious lack of care. The manner in which the box
was hung and the exposed colored leads should have been observed
during examinations of the area.
The violation was of such a nature as could significantly and
substantially contribute to the cause and effect of a mine fire or
explosion.
Considering all the criteria for assessing a penalty, I find that
a penalty of $500 is appropriate for this violation.
GENERAL FACTORS
Southern Ohio Coal Company is a large operator with a history of a
substantial number of violations within the
Page 24
~2020
24-month period before the first inspection involved in these
proceedings. It made a timely and good faith effort to abate each
violation found herein, after the violation was cited by the
inspector.
CONCLUSIONS OF LAW
1. The Commission has jurisdiction in these proceedings.
2. Respondent violated the safety standard as alleged in each of
the following citations and orders: Citation 2564615; Citation
2706709; Citation 2705729; Citation 2557039; Order 2564943: Order
2705721; Order 2564613; and Order 2706772.
3. With the exception of the allegation of "unwarrantable,"
Respondent violated the safety standard as alleged in Order
2706704.
ORDER
WHEREFORE IT IS ORDERED that:
1. In WEVA 86-30, Respondent shall pay the approved civil penalty
of $600 (settlement).
2. In WEVA 86-42, Respondent shall pay the approved civil penalty
of $157 (settlement).
3. Based upon the approved settlement to vacate the citation in
WEVA 86-51, that proceeding is DISMISSED.
4. In WEVA 86-11-R and WEVA 86-75, Respondent shall pay the
approved civil penalty of $400 (settlement).
5. In WEVA 86-38-R and WEVA 86-102, Respondent shall pay the
approved civil penalty of $550 (settlement).
6. In WEVA 86-36-R and its related penalty case, WEVA 86-54,
Citation 2564615 is AFFIRMED and Respondent shall pay the ASSESSED
penalty of $157.
7. In WEVA 86-49-R and the related penalty case, WEVA 86-71,
Citation 2706709 is AFFIRMED and the Respondent shall pay the
ASSESSED penalty of $157.
Page 25
~2021
8. In WEVA 86-47-R and the related penalty case, WEVA 86-71, based
upon the bench decision at the hearing, Citation 2705729 is VACATED
and the Petition for Civil Penalty is DISMISSED.
9. In WEVA 86-49-R and WEVA 86-11-R and their related penalty case,
WEVA 86-75, Order 2557039 is AFFIRMED and Respondent shall pay the
ASSESSED civil penalty of $500; Order 2564943 is AFFIRMED and
Respondent shall pay the ASSESSED civil penalty of $400.
10. In WEVA 86-38-R and WEVA 86-48-R and their related penalty
case, WEVA 86-102, Order 2705721 is AFFIRMED and Respondent shall
pay the ASSESSED penalty of $550; Order 2706704 is MODIFIED to
delete "unwarrantable" and as modified is AFFIRMED and Respondent
shall pay the ASSESSED civil penalty of $25; Order 2564613 is
AFFIRMED and Respondent shall pay the ASSESSED civil penalty of
$1,000.
12. In WEVA 86-8-R and its related penalty case, WEVA 86-75,
Citation 2557039 is AFFIRMED, and Respondent shall pay the assessed
civil penalty of $500.
13. In WEVA 154-R and its related civil penalty case, WEVA 86-264,
Order 2706772 is AFFIRMED and Respondent shall pay the ASSESSED
civil penalty of $500.
12. All payments of the civil penalties ordered above shall be made
within 30 days of this Order.
William Fauver
Administrative Law Judge
Distribution:
David M. Cohen, Esq., American Electric Power Service Corporation,
161 West Main Street, Lancaster, Ohio 43130 (Certified Mail)
Susan M. Jordan, Esq., Office of the Solicitor, U.S. Department of
Labor, Room 14480, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail)
kg
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