Consolidation Coal Company
Consolidation Coal Company (FMSHRC WEVA 88-139 and PENN 88-144): Coal-dust orders modified and $550 assessed
Apply this to your situation
This order from 1988 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
MSHA cited Consolidation Coal Company for coal-dust accumulations at the Blacksville No. 1 and Dilworth mines. At Blacksville, Judge Avram Weisberger found a violation but rejected the unwarrantable-failure and significant-and-substantial designations, modified the order to a section 104(a) citation, and assessed $50. At Dilworth, he found a significant-and-substantial violation, rejected unwarrantable failure, modified the order to a section 104(d)(1) citation, and assessed $500. The total civil penalty was $550.
Decision snapshot
- Cited standard: 30 C.F.R. § 75.400
- Outcome: Both orders were modified, the unwarrantable-failure findings were rejected, and $550 in total penalties was assessed.
- Key point: Coal-dust violations can remain significant and substantial even when the evidence does not establish unwarrantable failure.
Full text (FMSHRC public release)
CCASE:
SOL (MSHA) V. CONSOLIDATION COAL CO.
DDATE:
19881222
TTEXT:
Page 2
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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges
SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 88-139
PETITIONER A.C. No. 46-01867-03739
v.
Blacksville No. 1 Mine
CONSOLIDATION COAL COMPANY,
RESPONDENT Docket No. PENN 88-144
A.C. No. 36-04281-03616
Dilworth Mine
DECISION
Appearances: Covette Rooney, Esq., Office of the Solicitor,
Department of Labor, Philadelphia, Pennsylvania,
for the Secretary;
Michael R. Peelish, Esq., Consolidation Coal Company,
Pittsburgh, Pennsylvania, for the Respondent.
Before: Judge Weisberger
Statement of the Cases
In these cases the Secretary (Petitioner) seeks civil
penalties for alleged violations by the Operator (Respondent) of
30 C.F.R. 75.400. Pursuant to notice, these cases were heard in
Pittsburgh, Pennsylvania, on August 23, 1988. In Docket No. WEVA
88Ä139, James D. Underwood, Raymond Ash, and James E. Bowman
testified for Petitioner and John Weber, Robert W. Gross, and
Carl Steven Casteel testified for Respondent. In Docket No. PENN
88Ä144, James Samuel Conrad, Jr., and Edward Daniel Yankovich,
Sr. testified for Petitioner and Steven Wolfe, Walter Joseph
Malesky, and John Leo Weiss testified for Respondent.
At the hearing, on Docket No. WEVA 88Ä139 at the conclusion
of Petitioner's case Respondent made a motion to dismiss which
after argument was denied. Petitioner filed its Post Trial
Memorandum and Proposed Findings of Fact on November 14, 1988 and
Respondent filed its Post Hearing Brief on November 9, 1988. Time
was reserved for the filing of Reply Briefs but none were filed.
Page 3
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Docket No. WEVA 88Ä139
Stipulations
1. The Blacksville No. 1 Mine is owned and operated by
Respondent, Consolidation Coal Company.
2. The Blacksville No. 1 Mine is subject to the jurisdiction
of the Federal Mine Safety and Health Act of 1977.
3. This administrative law judge has jurisdiction over these
proceedings.
4. The subject Order was properly served by a duly
authorized representative of the Secretary of Labor upon an agent
of the Respondent at the dates, times, and places stated therein,
and may be admitted into evidence for the purpose of establishing
its issuance, and not for the truthfulness or relevancy of any
statements asserted therein.
5. The assessment of a civil penalty in this proceeding will
not affect Respondent's ability to continue in business.
6. The Operator's history of previous violations in total
was 478 violations over 554 inspection days; 48 of these
violations were for violations of 30 C.F.R. 75.400 (7 of which
were section 104(d)(2) Orders).
7. The Operator's size is as follows:
a. Blacksville No. 1 Mine employees approximately 241
employees.
b. Daily production of Blacksville No. 1 Mine equals
approximately between 6,500 and 7,000 tons. Annual
production equals approximately 1,500,000 tons.
c. Consolidation Coal Company operates approximately 30
mines.
d. The annual production of all Respondent's mines is
approximately 52.5 million tons.
e. The annual dollar volume of sales by the Respondent
for 1988 will not be released by the Respondent.
f. E.I. DuPont de Nemours and Company is the parent
company, Consolidation Coal Company is a wholly-owned
subsidiary.
8. The Operator abated the cited condition immediately. The
Order was terminated at 11:55 a.m. on October 23, 1988.
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9. Approximately seven miners were exposed to the cited
condition.
10. A comparison of the fatality and disabling injury
frequency rates for the mine and for the Operator's operation
overall with those of the industry are as follows:
a. Blacksville No. 1 Mine
1986 Rate F - Fatel
NFDL - No Fatel Days lost
0 - F 0 NDL - No Days Lost
13 - NDFL 5.16
4 - NDL 1.59
Total 17 6.75
1987 Rate
0 - F 0
41 - NFDL 15.34
3 - NDL 1.12
Total 44 16.46
1st Quarter 1988
Rate
0 - F 11.38
8 - NFDL 1.42
1 - NDL 0
Total 9 12.81
b. Consolidation Coal Company
1988 Rate
9 - F .09
309 - NFDL 3.23
142 - NDL 1.49
Total 460 4.81
1987 Rate
2 - F .02
680 - NFDL 7.20
169 - NDL 1.79
Total 851 9.01
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Ist Quarter 1988 Rate
0 - F 0
177 - NFDL 7.94
31 - NDL 1.39
Total 208 9.33
c. Nationwide
1986 Rate
84 - F .05
9,165 - NFDL 5.70
2,696 - NDL 1.68
Total 11,945 7.43
1987 Rate
58 - F .04
11,538 - NFDL 7.81
3,867 - NDL 2.62
Total 15,463 10.46
1st Quarter 1988 Rate
10 - F .03
3,102 - NFDL 8.64
983 - NDL 2.74
Total 4,095 11.40
11. The Parties stipulate that there had been on clean
intervening inspections of the entire mine between the date of
the instant violation and the previously issued order. Thus, the
mine, at that time, was on a 104(d) chain. (Sic.)
12. The Parties stipulate the authenticity of their
exhibits, but not to the truth or relevance of the matters
asserted therein.
Findings of Fact and Conclusions of Law
I.
Order No. 2943442
James D. Underwood, an inspector for MSHA, testified that in
visiting Respondent's Blacksville No. 1 Mine on the morning
October 23, 1987, in the P6 Section he observed float coal dust
Page 6
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deposited on the roof in the third entry in the areas outby the
portal bus station. He continued to walk in the area and observed
coal dust further outby in this entry and also in crosscut 25
between entries 3 and 4 and crosscut 26 between entries 3 and 2.
(The area he observed coal dust is shaded in red on Government
Exhibit C.) Underwood described the color of the dust as "dark"
and closer to black than gray. He said that the darkest area was
in the crosscut 26 between the 2nd and 3rd entries. He said that
after abatement with rock dust the areas in question became white
in color. Underwood's testimony was corroborated by James E.
Bowman an employee of Respondent, who as representative of the
miners accompanied Underwood on his inspection on October 23.
Bowman indicated that in the areas outlined in red on Government
Exhibit C, he saw coal dust that he described as "black."
In arguing that it did not allow any coal dust to accumulate
in the areas cited by Underwood, Respondent, in essence, refers
to the fact that on the day prior to Underwood's inspection, MSHA
Inspectors conducted an intensified Triple A Inspection, walked
through the area in question, and did not issued any citations
for violation for section 75.400, supra. In this connection,
Raymond Ash, a MSHA supervisor, indicated that, in essence, when
he walked though the area in question there were accumulations of
float dust, but the accumulations "weren't that bad" (Tr. 65). He
said that the whole section was rock dusted in a fashion that was
"pretty well within standards" (Tr. 65). He said, in essence, to
the best of his recollection there was nothing outstanding about
the section, and it was not either a very bad condition or a very
good condition. He further said the conditions were not bad
enough to issue a citation.
John Weber, a mine escort employed by Respondent, testified
that coal dust is black, and that when he observed the areas in
question on October 23, along with Underwood, they were not
black, but were "medium grey" in color (Tr. 102). (sic.) He
indicated that the color was essentially the same as was observed
the day before. Robert W. Gross, Respondent's safety supervisor,
indicated that when he observed the area, on October 23, before
the alleged violation was abated, the material that he observed
was between light gray to medium gray in color. He said that in
his opinion there was no accumulation of coal dust. Carl Steven
Casteel, Respondent's section foreman, was asked whether on
October 23, when he walked through the cited area if there was
float dust present. He stated that he did not see anything not
acceptable and said that the color of the material there was
gray.
Page 7
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According to Gross when the area in question was initially mined
it was rock dusted and rock dust is white. Gross indicated that
with dampness rock dust becomes "off white," (Tr. 132) and
described the area in question as damp. However, he indicated
that he felt the material in question, but he did not describe
what it felt like. He was asked if he recalled whether the
accumulations were wet or dry, and he said "It was October,
they're not going to be what be call wet, they would be damp"
(TR. 136). Thus his statement that it was "damp," appears thus to
be based not upon his personal knowledge, but upon his opinion,
based on the time of year of the alleged violation. On the other
hand, when Underwood was asked how he would classify the area, he
described it as a dry area.
Accordingly, I cannot find that it had been established that
the area in question was damp. Thus, I cannot find that the
material in question, rock dust, was made dark by dampness.
Underwood in his testimony described the material in
question as being dark and closer to black than gray. His
testimony was corroborated by Bowman. Weber although describing
the material in question as being medium gray conceded that the
area in question although having a range of colors was not as
good as the rest of the section which was white. In the same
fashion although Gross indicated that the material in question
was between light gray to medium gray, he described the material
in the crosscut 26 between the 2nd and 3rd entries, and the
material in the area outby the power center in Entry No. 3 to be
a little darker than the rest of the area. Also Casteel described
the material in the cited area as being gray. In contrast the
material outside the cited areas was described as being a lighter
gray. Based upon all of the above, I conclude that Respondent, in
the cited area, had allowed some coal dust to accumulate and had
not cleaned it up when cited by Underwood. As such, I find that a
violation of 75.400, supra, has occurred.
II.
According to Underwood, the violation herein by Respondent
resulted from its unwarrantable failure inasmuch as the cited
area is the entry to the P6 Section and as such all supervisory
personnel would walk though the area on a daily bases to get to
the working section. As such, in essence, Underwood maintained
that these personnel should have observed the condition by making
an adequate inspection and should have cleaned it up. In this
connection it was Underwood's opinion that the coal dust in
question had accumulated when the area was originally cut, and in
his opinion had been there for a week.
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In the recent case of Emery Mining Corporation, 9 FMSHRC 1997
(December 1987), the Commission held that "unwarrantable
failure," is more than ordinary negligence and requires
"aggravated conduct." I find that Underwood did not refer to any
facts to support his opinion that the violating condition had
existed for a week. Indeed, he indicated on cross-examination, in
essence, that the condition that he observed could develop in
minutes. Also Weber was present the day prior to Underwood's
inspection, when he accompanied four MSHA Inspector, who walked
throughout the area and did not issue any violations for allowing
any coal dust to accumulate. Ash, who was present during this
examination, indicated in his opinion that the rock dusting he
had observed "pretty well" met their standards and described the
accumulation of coal dust as "not that bad." I thus find that
Respondent did not act with more than ordinary negligence when it
did not clean up a condition that was observed the day before,
and not cited, by four MSHA Inspectors. According, I cannot find
that the violation herein resulted from Respondent's
unwarrantable failure.
III.
According to Underwood the violation herein should be
considered significant and substantial, because arcing off a
energized trolley wire in the area could have ignited the coal
dust. Also a 7200 volt wire and power center were both in the
area and according to Underwood "Anything could have happened" to
them (Tr. 29), and "it could have intensified it with the float
coal dust accumulation" (Tr. 24). Underwood further maintained
that any ignition would be reasonably likely to cause serious
injuries to the crew of seven working inby in the area. However,
crosscut 26, between entries 2 and 3, described by Underwood as
the darkest area in question contained neither a trolley wire nor
a 7200 volt cable. Also, although Underwood, in essence,
testified that the presence of the coal dust was a dangerous
situation if anything would "happen" (Tr. 29) to the 7200 volt
cable, this event seems unlikely due to Underwood's having
conceded under cross-examination that the cable was very well
insulated. Also the only location of the coal dust that Underwood
testified to was on the roof whereas the cable was placed on the
left rib. Also it does not appear reasonably likely that the coal
dust in question would contribute to any hazard occasioned by a
malfunction of the power center, as the power center and its
connectors were not within the cited area, and there is no
evidence as their distance to the cited area.
Nor does it appear that it was reasonably likely that the
presence of coal dust would contribute to the hazard of an
ignition occasioned by arcing in the trolley wire. The trolley
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wire did not run at all in the most inby of the two areas cited,
and ran for only a portion of the other cited area. In this
latter area although the trolley wire was between 3 to 6 inches
of the roof, there was an insulated guard between the wire and
the roof which hung over the side of the wire and which covered,
as agreed to by Underwood, the "majority" of the wire in the area
(Tr. 37). According to Underwood approximately 15 feet of the
wire was not guarded and arcing, which he agreed was a common
occurrence, could occur in that area if there were dust or other
obstructions between the arc of the vehicle and the wire.
However, he indicated that he did not see any dust on the wire.
Taking all of the above into account, I conclude that it has
not been established that there was a reasonably likelihood that
the rock dust which had been allowed to accumulate, contributed
to the hazard of an ignition or other hazard which would result
in an injury of reasonably serious nature. (See, Mathies Coal
Company, 6 FMSHRC 1 (January 1984). As such, I conclude that it
has not been established that the violation herein was
significant and substantial.
In assessing a penalty for the violation found herein, I
have taken to account the factors set forth in section 110(i) of
the Act as stipulated to by the Parties and adopt them. I also
conclude essentially for the reason set forth above, (II., infra)
that the Respondent herein acted with a low degree of negligence.
Should the accumulation of coal dust herein result in an
explosion or ignition, such would result in grave consequences of
injury to persons. However, it has not been establish that such
an event is reasonably likely to occur. As such, I find that the
violation herein to be of a low level of gravity. Taking all of
the above into account, I conclude that a penalty herein of $50
is appropriate.
Docket No. PENN 88Ä144
Stipulations
1. Consolidation Coal Company is the owner and operator of
the Dilworth Mine located in Rices Landing, Greene County,
Pennsylvania.
2. Consolidation Coal Company and Dilworth Mine are subject
to the jurisdiction of the Federal Mine Safety and Health Act of
1977.
3. The Administrative Law Judge has jurisdiction over this
case pursuant to Section 105 of the Act.
Page 10
~1742
4. In the 2 year period prior to November 25, 1987, the Dilworth
Mine had an undetermined number of violations of the standard
contested in this case, 30 C.F.R. 75.400.
5. The size of the operator is reflected by the following
data:
a. The Secretary has no knowledge and therefore cannot
stipulate as to the number of employees employed in the
Dilworth Mine.
b. The Secretary had no knowledge and therefore cannot
stipulate as to the daily production of the Dilworth
Mine. Annual production tonnage of the Dilworth Mine is
1,432,626.
c. The Secretary has no knowledge and therefore cannot
stipulate as to the number of mines operated by the
operator and the total number of miners employed by the
operator.
d. The annual production tonnage of all the operator's
mines is 41,221,321.
e. Information regarding the annual dollar volume of
sales by the operator during 1985 will not be released
by the operator.
f. DuPont E.I. De Nemours & Company is the parent
company; Consolidation Coal Company is a wholly-owned
subsidiary.
6. The violation was abated within a reasonable period of
time; the subject area was rerock dusted.
7. Any one miner would be affected or was exposed to the
hazard created by the violation.
8. The Operator's history of previous violations in total
was 405 violations over 504 inspection days. Seventy-five of
these violations were for violations of section 75.400.
9. The Parties stipulate the authenticity of their exhibits,
but not to the truth or relevance of the matters asserted
therein.
In a telephone conference call on November 30, 1988, the
Parties further stipulated that: The Dilworth Mine had not had a
clean intervening inspection since the issuance of the previous
d(2) order at this mine, and thus was on a (d)(2) chain.
Page 11
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I.
Order No. 2937915
On November 25, 1987, James Samuel Conrad, Jr., a MSHA
Inspector, performed a spot inspection of Respondent's Dilworth
Mine pursuant to a request of one of Respondent's miners. During
the course of this inspection he observed coal dust in the ribs,
floor, and belt structure of the 3ÄD section. He said that with
the cap lamp that he was wearing the coal dust appeared to be
black, with a reddish tint. He explained that it gets to have
such a tint if it is "real black" (Tr. 186). He explained that
under the coal dust he was able to see rock dust and that the
rock dust accumulated in nooks and crannies of the ribs. He said
that on the belt structures he was able to brush the dust off and
that at one point he measured the dust with a ruler and it was a
half inch deep.
Edward Daniel Yankovich, Sr., a miner who accompanied Conrad
as a walkaround, stated that the area in question was completely
covered with black coal dust, including the roof, ribs, floor,
and belt structure. He estimated the depth as 2 to 3 inches.
Walter Joseph Malesky, Respondent's belt foreman, who
examined the area in question on November 25, 1987, in a preshift
examination, at approximately 6:45 a.m., indicated that in the
front-end of the belt there was an area that was starting to get
dark in color. He described the color as dark gray to light black
and provided his opinion that it should have been rock dusted in
the next shift. Steven Wolfe, Respondent's construction boss,
testified that the floor of the area in question was darker than
the ribs and contained rock and coal dust which was the normal
condition at the mine. He indicated that in general the color was
dark gray. He also opined that when he arrived in the section on
November 25, it needed rock dusting. John Leo Weiss, Respondent's
assistant foreman, stated that when he walked the length of the
area in question at 9:15 a.m. on November 25, he observed coal
dust on the belt and material on the bottom that was dark in
color. He described the ribs as having some float dust that was
gray in color. He also indicated he believed the area needed to
be rock dusted. Wolfe indicated that the coal dust was thin
coated and not "thick" and Weiss indicated that the depth of the
coal dust was between a quarter of inch to a half inch, but in
most areas there was a light coating. He provided his opinion
that the areas in question needed to be rock dusted. He said that
the ribs were gray and not dark, the bottom was dark gray, with
small spots of black on the bottom of the left rib and indicated
that wetness turns the material dark.
Page 12
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Based upon the above, I find that at the time in question
Respondent had not cleaned up coal dust in the area in question
and had allowed it to accumulate. In this connection I accorded
more weight to the testimony of Conrad as to the depth of the
coal dust inasmuch as he measured it with a ruler. As such I find
that the citation was properly issued and Respondent herein did
violate 30 C.F.R. 75.400 as alleged in the citation.
II.
According to Conrad the belt line in question has a history
of coal dust. According to Wolfe it probably took a shift for
this dust to develop. At approximately 6:45 a.m. on November 25,
Walter Joseph Malesky, Respondent's belt foreman, in a preshift
examination of the belt in question noticed that the area was
starting to get dark in color and opined that it should be rock
dusted in the next shift. He noted this condition in writing in
the examiner's report of daily inspection for that date. Malesky
indicated that he observed the coal dust as being dark gray to
light black, and when asked what the depth of the material was
indicated that he did not think that it was "any inches" (Tr.
274). He said that some of the material was part dry and some of
it was damp, and that he made a ball of the mud which assisted
him in determining that in his opinion it was not dangerous. He
indicated upon cross-examination that he had the authority to
stop the belt and assign men to abate the condition. He did
neither, but in addition to the entry of the condition in the
daily inspection report at 7:50 a.m., he informed Robert Burgh,
Ken Dudics, the belt coordinator, and the Assistant Foreman Mark
Watkins of the need to rock dust. Wolfe testified that he was
informed at about 8:00 a.m. by Mark Watkins that the belt in
question needed dusting. He indicated that he went to the bore
hole to obtain the rock duster, but that this equipment had a
hose that was plugged up and that it took between 25 and 30
minutes to change the equipment. The rock duster was then filled
up with 12 tons of dust which took about 30 minutes and was then
transported to the area in question, but that on the way it was
derailed. He indicated that it took another 15 to 20 minutes from
the derailing to transport the rock duster to the section.
It appears to be Petitioner's position, as articulated by
Conrad, that Respondent herein was negligent to a high degree in
that it was aware of the fact that the area in question needed
rock dusting, but did not assign anyone to immediately correct
the condition. According to Conrad, Respondent should not have
relied on its abatement by using a bulk duster as this equipment
Page 13
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could fail, and instead should have either assigned men to
distribute dust manually or to drag the area. He indicated that
it could have taken two men to perform this work in approximately
10 to 15 minutes. Conrad indicated that dragging or hand dusting
might have been more "expedient" than using a duster (Tr. 229). I
note that according to Wolfe, bag or hand dusting is used in
areas of approximately 100 feet whereas on November 25, the day
of the citation he was informed that area to be dusted was
approximately 300 feet. I thus find that there was not aggravated
conduct in Respondent's condition to eliminate the hazard of rock
dust with the use of a rock duster as opposed to assigning men to
hand dust or drag. It appears that a decision as to the method to
be used was a matter of judgment. As such any delays in cleaning
the coal dust occasioned by the breakdown and derailment of the
rock duster is clearly not evidence of aggravated conduct. Also
although Malesky did not either shut off the belt or assign men
to rock dust the area in question, and did not notify other
management officials of the existence of this condition until
approximately 1 hour after he observed it, I find that any
maleficence in this regard to have been a matter of negligence
rather than "aggravated conduct," or serious lack of reasonable
care (Emery Mining Co., supra, c.f. U.S. Steel Corp., 6 FMSHRC
1423 (June 1984)), inasmuch as it was based solely upon an error
of judgment. In this connection, I note that Malesky, in
supporting his not shutting off the belt or ordering the men to
hand dust, indicated that he did not believe that the condition
was dangerous. In this connection he noted that part of the
material was dry, but that some of it was damp. The fact that he
made a ball of the material assisted him in determining that it
was not dangerous. He also had indicated that when asked with
regard to the depth of the material that he did not think that it
was "any inches" (Tr. 274). Thus, I find that Respondent's
conduct herein was not aggravated conduct, did not rise above
near negligence, and thus the violation herein cannot be
characterized as resulting from Respondent unwarrantable failure
(see Emery Mining, supra). (Footnote 1)
Page 14
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III.
According to Conrad, and not contested by Respondent's
witnesses, coal dust is a major contributor to explosion and to
the severity of fires. He described coal dust as being very
volatile. At the time of the citation the belt was running and
according to Conrad a running belt could be knocked out of line
by a falling rock causing the belt line to rub against various
structures causing heat. He also indicated that the belt rollers
could malfunction and generate heat, and that the electrical
motors were of an open type and could blow up or short out. He
said that all these events are potentially ignition sources which
would be enhanced by the coal dust in the area. In this
connection, Conrad indicated that all the dust that he touched
was dry. Areas of the floor were described as having either
puddles or being damp. However, according to Conrad the coal that
lies on top of the water was dry. In this connection, it is noted
that Wiess indicated on cross-examination that coal dust on top
of water can still ignite. I note also that Yankovich indicated
that he stirred the coal dust with his finger and described it as
dry. In contrast Wolfe testified that there was real moist muck
on the bottom of the area which contained rock and coal dust, and
this condition is normal at the mine. Malesky who indicated that
he made a ball of the mud described some of the area as wet, some
damp, and "part of it was dry" (Tr. 273).
Based on the testimony of Conrad and Yankovich that the dust
they touched was dry, I find that the area in question contained
coal dust that was dry. I find, based on Conrad's measurements,
that the dust was at least 1/2 inches deep in some places. In
addition, I note Conrad's testimony that on the day of the
citation the area in question in the belt line had two tenth of
one percent of methane. Taking all these factors into account, I
conclude that the coal dust in question contributed to the hazard
of an ignition. According to Conrad should such an ignition or
explosion occur it would be reasonably likely to result in an
injury of a reasonably serious nature. In this connection he
indicated that those fighting the fire, or persons working inby
the section, would likely be burned or injured by having inhaled
carbon monoxide. Accordingly, based upon all these factors, I
conclude that the violation herein was significant and
substantial. (Mathies Coal Company, supra.)
IV.
I conclude that the Respondent herein was negligent to a
moderately high degree, in that Malesky did not inform any of
Respondent's managers of the condition in question until
approximately 1 hour after it was observed by him. I further
find, as
Page 15
~1747
outlined above (III., infra), that the gravity of the violation
herein was relatively high. Taking these factors into account as
well as the remaining statutory factors in section 110(i) of the
Act, I conclude that a penalty herein of $500 is appropriate.
ORDER
It is ORDERED that Order No. 2943442 be modified to a
section 104(a) Citation to reflect the fact that the violation
therein was not significant and substantial.
It is further ORDERED that Order No. 2937915 be modified to
a section 104(d)(1) Citation to reflect the fact that the
violation therein was not the result of Respondent's
unwarrantable failure.
It is further ORDERED that Respondent herein shall pay $550,
within 30 days of this decision, as a civil penalty for the
violations found herein.
Avram Weisberger
Administrative Law Judge
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
Footnote starts here:-
~Footnote_one
1 I have considered Kitt Energy Corp. 6 FMSHRC 289 (May
1984) which is relied on by Petitioner, but do not find it
appropriate to the issues herein. In Kitt, Judge Merlin found
that failure of the Operator to assign sufficient men to clear up
coal dust over a period of 2 weeks constituted unwarrantable
failure. In the case at bar, in contrast, approximately 1 hour
after knowledge of the violation, the Operator took action to
completely clean up the accumulation.
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