Eastern Associated Coal Corporation

Plain-English summary

Eastern Associated Coal Corporation faced two Mine Act cases involving accumulations of hydraulic oil, grease, and oil around equipment at its underground coal mine. Judge Avram Weisberger found the violations established but concluded that the evidence did not show a reasonable likelihood of ignition or aggravated conduct amounting to unwarrantable failure. He therefore amended the orders to section 104(a) citations and removed the significant-and-substantial and unwarrantable-failure findings. The company was assessed $1,650 in civil penalties.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.400
• Outcome: Two orders were amended to section 104(a) citations without significant-and-substantial or unwarrantable-failure findings, with $1,650 in penalties assessed.
• Key point: An accumulation can violate the combustible-material standard without the evidence proving the ignition likelihood or aggravated conduct required for S&S and unwarrantable-failure findings.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. EASTERN ASSOCIATED COAL
DDATE:
19900223
TTEXT:

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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 PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 89-198
PETITIONER A. C. No. 46-01456-03826

      v.                                     Docket No. WEVA 89-199
                                             A. C. No. 46-01456-03824

EASTERN ASSOCIATED COAL CORPORATION,
RESPONDENT

                         DECISION

Appearances: Glenn Loos, Esq., Office of the Solicitor, U. S.
Department of Labor, Arlington, Virginia, for the
Secretary;
Eugene P. Schmittgens, Jr., Esq., Eastern
Associated Coal Corporation, St. Louis, Missouri,
for the Respondent.

Before: Judge Weisberger

Statement of the Case

 In these consolidated cases, the Secretary (Petitioner)

seeks civil penalties for alleged violations by the Operator
(Respondent) of 30 C.F.R. 75.400. Pursuant to notice, the cases
were heard in Clarksburg, West Virginia, on December 12, 1989.
Thomas David Doll, John Edward Palmer, Rick Milliron, Linda
Byers, and James Merchant testified for Petitioner. Gary Marvin
McHenry, William Salosky, Roger Boggess, David A. Tennant, and
John Kucish testified for Respondent. Proposed Findings of Fact
and Briefs were filed by Respondent and Petitioner on January 31
and February 1, 1990, respectively. A Reply Brief was filed by
Respondent on February 12, 1990. Petitioner did not file a Reply
Brief.

              A. Docket No. WEVA 89-198

Findings of Fact and Discussion

                         I.

 On February 8, 1989, Doll inspected the Three North Tipple

at Respondent's Federal No. 2 Mine, and observed an accumulation
of hydraulic oil under the hydraulic tub, and car spotter

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(Tipple). He also observed a trench with up to 4 inches of oil in
it. He indicated that the puddles of oil in front of the tub were
approximately 3 feet by 4 feet, and measured to be 4 inches deep.
He estimated that 20 to 25 gallons of oil had accumulated. He
issued a section 104(d)(2) Order alleging a violation of 30
C.F.R. 75.400. At the hearing, Respondent conceded the fact of
the violation. I find, based on the testimony of Doll, that
Respondent herein did violate section 75.400, supra, as alleged
in the Order.

                          II.

 Doll listed ignition sources for the accumulation of oil,

such as motors, wires, and cables. He indicated that the oil was
flammable and that some ignition sources were "real close" (Tr.
153), and that the cables for the motor on the tub and the motor
on the car spotter were "within inches" of the oil (Tr. 153). He
indicated that the cables could have arced or sparked, and
started a fire. Essentially he indicated that ignition of the oil
was "highly likely" if the "situation was not taken care of" (Tr.
153). He indicated that in the event of a fire, a serious injury
was quite likely in the nature of a possible burn or smoke
inhalation. Essentially, based upon these factors, Doll concluded
that the violation herein was significant and substantial.

 Although, based on Doll's testimony, it can be concluded

that ignition of the oil could have resulted, I find that it has
not been established that such an event was reasonably likely to
occur. Although Doll listed various ignition sources, such as a
motor, wires, and cables, there is nothing in the record to
indicate that this equipment was in such a condition as to make
sparking or arcing an event reasonably likely to occur. Further,
due to Roger Boggess' experience as a maintenance foreman, I
place some weight on his opinion that a spark would not ignite
the oil, and that a sustained fire would be needed. Further, John
Kucish, who was the production foreman in charge of the section
on February 8, indicated that the area in question was adequately
rock-dusted. Also, he and Boggess indicated that there was a fire
suppression system over the top of the power unit of the car
spotter, and that there were various items to extinguish fires in
the area. Taking all these factors into account, I conclude that
it has not been established that the violation herein was
significant and substantial, as that term was defined in Mathies
Coal Company, 6 FMSHRC 1 (1984).

                         III.

 James Merchant, a tipple man who has worked for Respondent

for 21 years, testified that on and off for the last 2 to 3 years
there have been problems keeping oil in the tipple. He indicated
that he usually puts in 20 to 25 gallons of oil a shift. He
testified that approximately 6 months prior to Doll's inspection
on February 8, 1989, he attached belting to drain the oil that

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was leaking from the electrical motors. He also dug a sump hole
to muck the oil. He indicated that more than a year ago, and "a
number of times" (Tr. 202), he had told Boggess that he was out
of oil in the middle of the shift. He also indicated that he had
shown the leaking to Kucish. He indicated that when he told
Kucish of the oil coming out of the tipple, on "a number of
times" (Tr. 202), he was told by Kucish that it would be worked
on over a week end. Merchant indicated that about a week before
February 8, he reported the condition to Kucish. According to
Kucish, in November 1988, Merchant had reported leaks to him, and
he in turn called the evening and day shift people who informed
him that the tipple "was being maintained in a workman-like
manner" (Tr 245). Kucish testified that the afternoon and day
shift men were taken off their jobs 2 weeks later, and when he
observed the boom hole (tipple site) in December, it was in such
an "unworkman like" condition that he shut it down. Kucish
testified that when he was informed by Merchant of the leak on
January 31, or February 1, 1989, he called Boggess. Boggess in
turn informed a mechanic who subsequently told him that he did
not find any substantial leaks (Tr. 251). David A. Tennant, the
maintenance superintendent, indicated that on January 31, "some
maintenance" was performed (Tr. 262). When Kucish was informed of
a leak the week prior to February 8, he informed Boggess and
subsequently, on a Saturday, February 4, cylinders or jacks were
cleaned and repacked, an operation which Boggess termed to be
"routine maintenance" (Tr. 251) He indicated that he had been
told there had been a leak, and some oil was on the ground. No
leak was found. The following day Kucish went to the areas in
question, to make a visual examination, and indicated that were
no "visual leaks" (Tr. 232).

 According to Merchant, on February 6 and February 7, the

tipple was not leaking any less, and he had to put in three to
five gallon cans of oil each shift. Boggess indicated that he was
not notified of any leaks on those days, and there is no evidence
that Merchant notified Kucish of any leaks or oil accumulations
on those days. Neither was such reported in any preshift
examination on those dates.

 On February 8, the accumulation of oil, observed by Doll,

was estimated by him to be 20 to 25 gallons, and was measured by
him in areas to be 4 inches deep. After the condition was cited
by Doll, the area and equipment were cleaned, and "drips" were
found (Tr. 242, 250). Kucish and Boggess opined that the drips
were not sufficient to cause the spillage that was observed on
February 8.1 The tipple was cleaned and looked at by Boggess,
but he could not find any reason for the oil accumulation. Some
plumbing was eliminated to correct the dripping.

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At the conclusion of Petitioner's case, Respondent made a Motion
for a Directed Verdict with regard to the issue of unwarrantable
failure, and the Motion was denied. In order for it to be found
that the violation herein was the result of Respondent's
unwarrantable failure, it must be established that Respondent's
conduct herein reached a level as to be considered to be
"aggravated conduct." (Emery Mining Corp., 9 FMSHRC 1997 (1987)).
Although, as established by Merchant, the equipment in question
had been leaking off and on for 2 to 3 years, and had been
reported to Kucish on "a number of times," I accept the testimony
of Respondent's witnesses that twice within 8 days prior to
February 8, maintenance work had been performed on the equipment
in question. I accept the testimony of Kucish that when he
observed the area on the day after the work had been performed on
February 4, there were no "visual leaks". (sic). Although
Merchant indicated that on February 6-7, 1989, the equipment was
not leaking less, there is no evidence that the condition was
reported to management on these days. I thus conclude, taking the
above into account, that Respondent herein did not exhibit any
aggravated conduct, and hence the violation herein did not result
from its unwarrantable failure.

 Inasmuch as Petitioner has not established that the

condition of any equipment in the area was such as to have made
it likely for the accumulation to have been ignited, I conclude
that the gravity of the violation herein is to be considered
moderate. Further, taking into account Merchant's testimony, that
I accept, that the leak had existed on and off for 2 to 3 years,
and was reported by him to Kucish on numerous times, and taking
into account the large quantity of oil that was observed on
February 8, I conclude that Respondent was highly negligent in
not having taken steps to ensure that an accumulation would no
longer occur. Although maintenance work was performed on February
4, and examined one day later by Kucish, and observed not to have
any visible leaks, there is no evidence that Respondent examined
the area on February 6-7, to ensure that its work on February 4
was successful, and there was no longer any accumulation of oil.
For these reasons, I conclude that Respondent was highly
negligent herein. I conclude that a penalty of $900 is proper for
the violation found herein.

              B. Docket No. WEVA 89-199

Findings of Fact and Discussion

                          I.

 Thomas David Doll, an MSHA Inspector, inspected Respondent's

Federal No. 2 Mine on February 1, 1989. He indicated that he
observed oil running down the side of a shuttle car on the 17
Right 3 South Section, and that oil was leaking behind the

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wheel unit of the shuttle car. He indicated that the grease from
the wheel unit was "in spots" up to a-half inch thick (Tr. 24),
and that there was a grease build-up in the cable reel which was
probably a quarter to a-half inch in thickness. Doll indicated
that the oil and grease was mixed with some coal dust, and that
the oil is combustible when the water in it separates. He
indicated that the wheel was saturated, and throwing grease
against the shuttle car. He indicated that grease is combustible,
and opined that the material that had accumulated was
combustible. John Edward Palmer, who was the representative of
the Mine Worker's Union, and accompanied Doll on the inspection,
corroborated the latter's testimony by indicating that there was
a "lot" of coal, grease, and oil around the cable reel
components. Rick Milliron, who was the shuttle car operator on
February 1, 1989, indicated that in general he does not clean
behind the wheels of the unit. He indicated that, when Doll
inspected the unit, there was grease and oil on the whole unit.

 Gary Marvin McHenry, Respondent's safety supervisor, who

accompanied Doll on the inspection, indicated that the only
"accumulations" he found were behind the wheel unit (Tr. 85). He
said there were "small amounts" of oil mixed with rock dust and
dirt (Tr. 86). William Salosky, who was the section foreman on
February 1, indicated that when he observed the shuttle car after
the Order was issued, the only accumulations were behind the
wheel. He described the condition as being "A small amount of
grease, and mostly mud from the shuttle car road" (Tr. 110).
Roger Boggess, Respondent's maintenance foreman, opined that the
oil in question does not burn easily, and that a spark hitting it
would not cause it to ignite. He termed the event of a fire
occurring as being very unlikely, and indicated that to get the
oil to burn, a person would have to hold a flame to it. However,
he indicated on cross-examination that gear box oil is not fire
resistant. David A. Tennant, Respondent's maintenance
superintendent, indicated that the oil in question is flammable
in a pure state, but that if it is mixed with water, mud or coal
dust, its flash point is higher. He indicated that the oil in
question had rock dust in it, and thus was not easy to ignite.

 I reject Respondent's argument that an impermissible

accumulation is limited to those accumulations that are extensive
and significant, and that the latter term includes only
accumulations that can lead to fires or explosions. I find that
Respondent has not rebutted or contradicted Doll's testimony
that, in essence, in some areas the grease was 1/2 inch thick.
Accordingly, I conclude, based upon the above testimony of
witnesses who observed the shuttle car on February 1, that there
was an accumulation of oil and grease as set forth in the section
104(d)(2) Order issued by Doll on February 1. This Order alleges
Respondent violated 30 C.F.R. 75.400. In essence, as pertinent,
section 75.400,

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supra, prohibits the accumulation inter alia of "combustible
materials." The word "combustible," is defined in Webster's Third
New International Dictionary, 1986 edition (Webster's), as "1.
capable of undergoing combustion or of burning - used esp. of
materials that catch fire and burn when subjected to fire. . . "

 I accept the opinion of Doll that oil and grease are

materials that are capable of burning. The testimony of Boggess
that the oil in question does not burn easily, does not
contradict Doll's opinion. Further, the balance of Respondent's
witnesses, in essence, testified that the accumulations of oil
and grease herein contained mud and rock dust, which raise its
flash point, and makes it difficult to ignite. Hence, the
testimony of Respondent's witnesses is not sufficient to
predicate a finding that the materials in question were not
capable of burning at some point. Inasmuch as the materials were
nontheless capable of burning or catching fire when subjected to
fire, I conclude that the accumulations of the materials in
question were combustible as that term is defined in Webster's.
Accordingly, I find that Respondent herein did violate section
75.400, supra.

                          II.

 According to Doll, in essence, he concluded that the

violation herein was significant and substantial due to the
presence of friction or cables as ignition sources, which led him
to conclude that it was highly likely that a fire would occur if
the violative condition was not corrected. He indicated that in
the event of a fire, an injury would be highly likely due to
smoke inhalation occasioned by the burning of grease, coal, and
other toxic smokes from the burning of cable covers. He indicated
that anyone in the face area, including the shuttle car operator,
loader operator, miner operator, and bolters would be subject to
the path of smoke from the resulting fire. In this connection, I
note that Salosky conceded on cross-examination that grease and
oil in the wheel compartment could become a fire hazard "at some
point." (Tr. 113).

 Although there certainly were potential ignition sources in

the areas as testified to by Doll, there is insufficient evidence
that the condition and location of these sources was such as to
indicate that there was a reasonable likelihood of an ignition
occurring. Further, I accept the reasoning of Respondent's
witnesses that mud and coal dust present in the accumulation of
grease and oil would decrease the combustibility of the
accumulations. Thus I find that although the accumulations herein
did contribute to a hazard of a fire, it has not been established
that there was a reasonable likelihood of a fire occurring. I
thus conclude that it has not been established that the violation
herein was significant and substantial (See, Mathies Coal
Company, supra).

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III.

 Doll indicated that he considered the violation herein to be

the result of Respondent's unwarrantable failure, as it either
knew or should have known that the violation existed. He
indicated that the area in question is fire bossed daily on each
of the three shifts, and in addition, persons are constantly in
the area. He thus opined that inasmuch as the accumulated
material was visible, it should have been observed and cleaned
up. In addition, he indicated that on January 18, he issued two
citations alleging violations of section 75.400, supra,
concerning equipment on the section. He indicated that when he
issued the citations, he discussed with Bill Lenley, the
assistant foreman, that something had to be done to keep the
section equipment cleaner. Thus, he concluded that Respondent was
aware that it had a problem with cleaning various equipment.

 Palmer corroborated Doll's testimony by indicating that the

accumulation of grease and oil could have been seen "plain as
day." (Tr. 64). Milliron indicated that on February 1, he sprayed
the shuttle car in question with a cleaning substance, and washed
it off. He indicated that he did not clean behind the wheels, and
did not use any wedge, which he usually would use to scrape off
material that is visible.

 I find that Doll did not use the correct standard in

concluding that the violation herein was the result of
Respondent's unwarrantable failure. The proper standard has been
set forth by the Commission in Emery Mining Corp., supra at 2004,
as requiring the establishment of the existence of "aggravated
conduct." Applying this test to the facts as set forth above, I
conclude that it has not been established that there was any
aggravated conduct on the part of Respondent. The fact that Doll
had, 2 weeks prior to the date in question, issued a violation of
section 75.400, supra, for equipment on the section, and told the
foreman that something had to be done to keep the section
cleaner, does not per se establish that there was aggravated
conduct with regard to the specific violative condition herein. I
find that Milliron's failure to clean behind the wheel was
negligence, but not aggravated conduct. Accordingly, I conclude
that the violation herein was not the result of Respondent's
unwarrantable failure. Accordingly, Respondent's Motion for
Directed Vardict, with regard to the issue of unwarrantable
failure, which was made at the conclusion of Petitioner's case,
is hereby GRANTED.

 Taking into account the fact that it has not been

established that there were ignition sources present in such a
condition as to make it likely that the oil and grease would have
been ignited, I conclude that the gravity herein of the violation
was moderate. I accept the testimony of Petitioner's witnesses
that the accumulations herein of oil and grease were readily
visible. I conclude that Respondent should have known of the
accumulations, and as such

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was negligent herein to a significant degree. Considering the
criteria of section 110(i) of the Act, I conclude that a penalty
of $750 is appropriate for the violation found herein.

                           ORDER

 It is ORDERED that Order Nos. 3100463 and 31004677 be

AMENDED to section 104(a) Citations, and to reflect the fact that
the violations therein were not significant and substantial, and
were not the result of Respondent's unwarrantable failure. It is
further ORDERED that Respondent herein shall pay $1,650, within
30 days of this Decision, as a civil penalty for the violations
found herein.

                                Avram Weisberger
                                Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE

 1. Tennant indicated that no cracks were found leaking oil,

but there was a leak on one of the fittings that was part of the
plumbing of the hydraulic system. He indicated that the leak was
not sufficient to account for the oil accumulation.