Consolidation Coal Company

Plain-English summary

Consolidation Coal agreed to settlements in several penalty proceedings, and Judge Avram Weisberger approved them after considering the Mine Act penalty criteria. In a separate group of cases, the judge found that damaged or inoperative coal-car uncoupling devices created a significant and substantial hazard because miners could go between moving cars, and assessed $200 for each violation. He found that a ventilation-plan violation involving holes in haulage doors was not significant and substantial because the record did not show that a fire was reasonably likely, but assessed a $100 penalty. He dismissed two related citations and amended another to remove its S&S designation. The decision ordered Consolidation Coal to pay $3,206 in total penalties.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1405 and 75.1707; 30 U.S.C. § 820(i)
• Outcome: Settlements were approved, uncoupling-device violations were found S&S, one ventilation-plan violation was reduced to non-S&S, two citations were dismissed, and total penalties of $3,206 were ordered.
• Key point: A defective uncoupling device can support an S&S finding when miners may go between moving cars, but a ventilation defect is not S&S without proof that the hazard-producing fire was reasonably likely.

Full text (FMSHRC public release)

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

CONSOLIDATION COAL COMPANY, CONTEST PROCEEDINGS
CONTESTANT
Docket No. WEVA 91-204-R
v. Citation No. 3315865; 2/8/91

SECRETARY OF LABOR, Docket No. WEVA 91-205-R
MINE SAFETY AND HEALTH Order No. 3315867; 2/11/91
ADMINISTRATION, (MSHA),
RESPONDENT Docket No. WEVA 91-196-R
Citation No. 3307899; 2/12/91

                                          Blacksville No. 1 Mine

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 91-1964
PETITIONER A.C. No. 46-01867-03904

      v.                                  Docket No. WEVA 91-1965
                                          A.C. No. 46-01867-03905

CONSOLIDATION COAL COMPANY, Docket No. WEVA 92-148
RESPONDENT A.C. No. 46-01968-03937

                                          Docket No. WEVA 92-187
                                          A.C. No. 46-01867-03915

                                          Blacksville No. 1 Mine

                                          Docket No. WEVA 91-1833
                                          A.C. No. 46-01452-03789

                                          Arkwright No. 1 Mine

                               DECISION

Appearances: Walter J. Scheller III, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania for Consolidation
Coal Company; Robert Wilson, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington,
Virginia for Secretary of Labor.

Before: Judge Weisberger

 These cases were consolidated for hearing, and are before me

based on petitions for assessment of civil penalties filed by the
Secretary (Petitioner) alleging various violations of mandatory
safety standards set forth in Volume 30 of the Federal Code of
Federal Regulations. Pursuant to notice the cases were heard in
Morgantown, West Virginia on May 19, 1992. At the hearing, Lynn
Arthur Workley, and Richard Gene Jones, testified for Petitioner.
Robert W. Gross, testified for the Operator (Respondent).

Docket No. WEVA 91-187, WEVA 92-148, and WEVA 91-205-R and WEVA
91-196-R

 It is ORDERED that the stay orders previously issued in

docket nos. WEVA 91-205-R and WEVA 91-196-R are hereby lifted.

 Petitioner filed a Motion to Approve a Settlement reached by

the parties concerning these cases. A reduction in penalties from
$1,350 to $856 is proposed. I have considered the representations
and documentation submitted in these cases, and conclude that the
proferred settlement is appropriate under the terms set forth in
Section 110(i) of the Act.

Docket No. WEVA 91-1833

            Citation Nos. 3306386, 3315573, 3315574,
                     3314482, and 3314483.

 Petitioner filed a motion to approve a settlement agreement

regarding citation numbers 3306386, 3315573, 3315574, 3314482,
and 3314483. A reduction in penalty from $1,009 to $774 is
proposed. I have considered the representations and documentation
submitted with the motion, and I conclude that the proffered
settlement is appropriate under the criteria set forth in Section
110(i) of the Act.

       Citation Nos. 3315576, 3315577, 3315578, 3315579,
                     3315580, and 3314481.

 The parties stipulated that citation nos. 3315576 - 3315581

involve the same issue, and that only Citation No. 3315576 would
be tried. The parties further agreed that the decision with
regard to Citation No. 3315576 is to apply to citation nos.
3315577 - 3315581.

 Prior to the presentation of evidence Petitioner moved for

Summary Judgment on these citations based on collateral estoppel.
After hearing argument, the motion was denied.

                Findings of Fact and Discussion

                               I.

 On March 6, 1991, Lynn Arthur Workley, an MSHA Inspector,

inspected certain coal cars at Respondent's Arkwright No. 1 Mine
and issued six citations. In three of the citations Workley
alleged violations of 30 C.F.R. 75.1405, in that a device on a
coal car to allow uncoupling from a safe distance, was
inoperative. In three citations he alleged that on the three
other cars the lever on this device was "froze-up". Respondent
does not contest the existence of the violations of Section
75.1405, supra, as alleged, but does challenge the assertions of
Workley, as set forth in the citations, that the violations were
"significant and substantial".

                              II.

 Each of the coal cars in question is equipped with a lever

located at the end of the car, which enables a miner to uncouple
the car without going between the cars. When downward pressure is
placed on the lever, a chain attached to the lever is pulled up,
which releases a coupler, uncoupling the car. Workley explained
that on three of the cars the fulcrums were rusted preventing the
levers from being moved, and on the remaining three the chains
were broken.

 Workley opined that the violations herein were reasonably

likely to have resulted in a reasonably serious injury of a
crushing nature involving an extremity. He stated that if the
uncoupling devices are broken or inoperable, the only way for one
to uncouple the car, is to go between the cars and physically
uncouple them. He indicated, in essence, that as a result of the
violation herein, it was likely that an employee would go between
the cars. In this connection, he stated that at the day he issued
the citations in question he observed Jack Pack, an employee of
Respondent, putting his right foot and right leg between two
moving cars while attempting to uncouple them.

 According to Workley, Pack had told him that most of the

time he did not need an extension bar and referred to it as a
"sissy bar". Workley did not specifically identify the cars that
Pack had uncoupled as being those that were cited. There is no
evidence that the uncoupling device that Pack was working on was
inoperative.

 According to Robert W. Gross, a Safety Supervisor employed

by the Respondent, if a lever does not work, an extention bar,
four and a half feet long, can be attached to the lever in order
to provide more leverage to push it down, and hence uncouple the
cars. It is not necessary to stand between the cars to use the
bar which extends twenty four inches beyond the cars. Such bars
were located at the dump and tipple, the only sites where cars
are uncoupled in normal mining operations. Spare bars were kept
in the safety office. Also, other bars were located at the
loading point and tipple to enable persons to uncouple cars if
the chain on the uncoupling device is broken. Written safety work
instructions provided to Respondent's employees who perform
uncoupling of the cars require employees to use these bars.
Instructions also provide that if an uncoupler on a car is not
working properly, another car instead is to be uncoupled. In
addition, signs located on all the cars warn employees not to go
between the cars. Written notices to that effect were posted at
the tipple, dump, and on the surface.

 The Commission has set forth in Mathies Coal Company 6

FMSHRC 1(1984) the elments that must be established to prove a
violation in significant and substantial as follows:

       In order to establish that a violation of a mandatory
 safety standard is significant and substantial under
 National Gypsum the Secretary of Labor must prove: (1)
 the underlying violation of a mandatory safety
 standard; (2) a discrete safety hazard--that is, a
 measure of danger to safety--contributed to by the
 violation; (3) a reasonable likelihood that the hazard
 contributed to will result in an injury; and, (4) a
 reasonable likelihood that the injury in question will
 be of a reasonable serious nature. (6 FMSHRC, supra, at
 3-4.)

 In United States Steel Mining Company, Inc., 7 FMSHRC 1125,

1129 (August 1985), the Commission stated further as follows:

      We have explained further that the third element of the
 Mathies formula "requires that the Secretary establish
 a reasonable likelihood that the hazard contributed to
 will result in an event in which there is an injury".
 U.S. Steel Mining Co., 6 FMSHRC 1834, 1836. (August
 1984).

 With regard to the first element, there is no dispute that a

mandatory safety standard, Section 75.1405, supra, was violated.
Also, with regard to the second element set forth in Mathies,
supra, I find that the violation herein, contributed to a safety
hazard, i.e., and the danger of a miner going between 2 cars to
uncouple them, and being injured thereby. I also find that, based
on the uncontradicted testimony of Workley, should a miner go
between two moving cars to uncouple them, a serious crushing
injury could result. Hence, the fourth element has been
satisfied.

 The key issue for resolution, is whether the third element has

been established, i.e., whether there was a reasonable likelihood
that the hazard attributed to would result in an injury. For the
reasons that follow, I conclude that Petitioner has met her
burden in this regard.

 In Consolidation Coal Company 13 FMSHRC 1314 (1991) Judge

Melick, in finding that a violation by Respondent of Section
75.1405 for damaged and inoperative cut-off levers on supply cars
was significant and substantial, noted that the inspector had
previously seen a miner at that mine (Respondent's Loveridge
Mine) position himself between two supply cars in attempting to
uncouple the cars. In the instant case, Workley observed Pack
going between two moving cars in attempting to uncouple them.
According to Workley, on other occasions he had observed a miner
going between the cars to uncouple them at Respondent's Humphrey
Mine. In all these situations, it can not be said with certainty
that the miners involved went between the cars to uncouple them
because the devices were damaged or inoperative. Hence, if miners
have gone between cars to uncouple them in situations where there
is not a definite indication that the devices were inoperative,
then, a fortiori, it can be concluded that there is a reasonable
likelihood that these employees will go between cars to uncouple
cars having damaged or inoperative devices, inspite of the
training, warning signs, and bars provided by Respondent. Hence,
I conclude that the violation herein was significant and
substantial. (See, Mathies Coal Company 6 FMSHRC, 1 (1984) U.S.
Steel Mining Co., 6 FMSHRC 1834, 1836 (1984); Consolidation Coal
Company 13 FMSHRC, supra).

                              III.

 In analyzing the degree of Respondents' negligence regarding

the violations found herein, I take into account Respondent's
history of violations concerning the standard at issue.
Respondent did not contest the issuance of a citation at its
Loveridge No. 2 Mine, citing inoperative and damaged cut-off
levers on two supply cars (Consolidation Coal Company, supra).
Also, on July 10, 1990, Respondent was cited for the same
condition on six cars. Further, according to the uncontradicted
testimony of Workley, "You could tell just by looking at them"
that "about half" of the switches were broken (Tr. 55). He
explained that chains were broken or missing, eyes were broken,
and the cut-off levers were broken or bent. However, there is no
evidence how long the violative conditions existed prior to their
being cited by Workley.

 I find the degree of Respondent's negligence to be mitigated

by its policy of warning employees not to go between cars. Also
as mitigating factors are the provision of extention bars and
other bars. Should one of Respondent's employees have disregarded
its instructions and warnings and have gone between
the cars to physically uncouple one of the cars whose device was
not in operating condition, the results could have been a serious
injury, even an amputation.

 Taking all the above factors into account, as well as the

remaining factors set forth in Section 110(i) of the Act, as
stipulated to by the parties, I conclude that a penalty of $200
is appropriate for each of the violations cited herein.

Docket Nos. WEVA 91-1964, WEVA 91-1965 and WEVA 91-204-R

          Citation 3315908 (Docket Nos. WEVA 91-1965,
                      and WEVA 91-204-R).

 The Secretary filed a motion to approve partial settlement

with regard to citation No. 3315908. The Secretary indicated that
the operator has agreed to pay the full amount of the assessed
penalty of $276. Based on the the representations and
documentation set forth in the motion, I conclude that the
proferred settlement is appropriate under the terms of Section
110(i) of the Act.

          Citations 3315803 (Docket No. WEVA 91-1965),
             and 3315865 (Docket No. WEVA 91-1964).

 It was stipulated to by the parties that the issues

presented in Citation No. 3315865 are the same as those presented
in Citation No. 3315803 which is the subject matter of Docket
Nos. WEVA 91-1964 and WEVA 91-204-R. The parties stipulated that
the decision concerning Citation No. 3315803 is to apply to
Citation No. 3315865.

                Findings of Fact and Discussion

 On March 5, 1991, Richard Gene Jones, an MSHA inspector,

inspected the P-8 Longwall section at Respondent's Blacksville No.
1 Mine. He cited Stopping No. 3 located in a crosscut between
an intake escapeway entry, and the adjoining track entry, as
having an 8 inch by 16 inch hole. He noted that air was coursing
from the track entry to the intake entry. The citation alleges a
violation of 30 C.F.R. 75.1707 which, as pertinent, provides
that the escapeway which is required to be ventilated with intake
air ". . . shall be separated from the belt and trolley haulage
entries of the mine for the entire length of such entries to the
beginning of each working section . . . ."

 Neither the pertinent regulations, nor the Federal Mine

Safety and Health Act of 1977, nor its predecessor, the Federal
Coal Mine Health and Safety Act of 1969, whose statutory
provisions has been set forth as Section 75.1707 supra, contain
any definition of either the type or degree of separation that is
required between the track (haulage) and escape entries. Nor
does the legislative history of either Act shed any light on this
issue. Hence, in interpreting legislative intent, reliance is
placed upon the common meaning of the term "separate". Webster's
Third New International Dictionary ("Webster's") (1986 Edition)
defines the word separate as "la: to set or keep apart: . . . 4:
to block off: BAR, SEGREGATE. . . ."

 The cited stopping was permanent in nature, constructed of

cement blocks, and was approximately 15 inches wide, by
approximately 6 1/2 feet high. Although it contained an 8 inch by
16 inch hole, there can be no doubt that the stopping did
separate the escape (intake) entry from the adjacent travel
entry, as it was placed in the crosscut between these two
entries. There is no requirement in either the plain language of
Section 75.1707, or the legislative history, mandating that the
air in the intake escapeway be sealed from the air in the travel
entry, or that the mandated separation, i.e., the stopping in
issue be air tight. Accordingly, I conclude that it has not been
established that Respondent herein violated Section 75.1707
supra, as alleged.

          Citation 3315802 (Docket No. WEVA 91-1964).

       I. Violation of the Ventilation Plan ("the Plan")

 On March 5th, Jones cited two haulage doors located in the

crosscut at the No. 1 Block, between the intake and the track
entries for not being maintained "reasonably air tight". Jones
indicated that the haulage door on the track side had a hole that
had extended about 12 feet, and was between 1 to 5 inches wide.
He also stated that on the door on the intake side, there were 4
locations where there were holes approximately 4 inches by 5
inches. In essence, the citation alleges a violation of the
ventilation plan ("The Plan") which provides, as pertinent, as
follows:

      "Reasonably air tight haulage doors . . . may be used
      in lieu of a permanent stopping. They are used to
      isolate the air from the intake escapeway and the belt
      entries from the track, for the purpose of crib
      building, construction work, etc., on the longwall
      retreat or development panels . . . They will provide
      the same protection as that of a permanent stopping."

 Hence, in summary, according to the Plan, the haulage doors

which are required to be "reasonably air tight", may be used in
lieu of a stopping, and are to ". . . provide the same protection
as that of a pertinent stopping." Also, according to the Plan, the
intake escapeway ". . . shall maintain a constant pressure on the
intake to the track where these doors are installed."

 As observed by Jones, although each of the doors in questions had

holes in them, air was going in the direction from the intake to
the track entry. However, a pressure door which was located in
close proximity in the intake entry, was closed. Jones opined
that if the pressure door, which is designed to maintain pressure
in the intake escapeway would be opened, then the air flow would
reverse, and air would go from the track entry to the intake
entry. He indicated that in the normal course mining the pressure
door is opened approximately 4 to 5 times a shift, in order to
allow traffic such as supplies to traverse the area. None of
these statements were impeached by Respondent. Nor did Respondent
adduce any evidence to contradict these statements. Accordingly,
I conclude that in the normal course of mining, given the holes
in the haulage doors, there would not be maintained a "constant
pressure on the intake to the track where these doors are
installed". Thus, I conclude that the ventilation plan herein was
violated by Respondent.

                II. Significant and Substantial

 According to Jones, the violation herein is significant and

substantial in that, in the event of a fire in the track entry,
with no-air tight separation between the intake and track
entries, smoke and carbon monoxide would enter the intake entry.
Workers inby would thus be exposed to the hazard of smoke
inhalation and carbon monoxide poisoning. He also indicated that
a decrease in visibility caused by smoke could cause lack of
orientation, which could result in contusions. Jones noted the
existence of fire sources such as a high voltage cable, the
liberation of methane which would accumulate in a roof cavity,
(FOOTNOTE 1) and the fact that the gauge of the trolley track is
incorrect which causes the trolley pole to jump off the wire, and
hit the trolley which causes arcing.

 In analyzing whether it has been established that the

violation was significant and substantial, I note my finding,
infra, of the violation by Respondent of the ventilation plan.
Further, I find that the violation contributed to the hazard of
miners in the intake entry being exposed to the dangers of smoke,
should a fire occur in the track entry. Also, the hazards of
smoke exposure could certainly result in serious injury as set
forth in Workley's uncontradicted testimony.

 The issue for resolution, is the likelihood of a fire

causing smoke to course from the track entry, through the holes
in the doors at issue, to the intake entry. (See, Bethenergy
Mines, Inc., 14 FMSHRC _____, Docket Nos. PENN 88-149-R etc.,
slip op. P.11, (August 4, 1992)). In other words, since the
holes in the door contribute to a hazard only in the event of a
fire, it must be established that the event of the fire was
reasonably likely to have occurred. (See, Bethenergy, supra).

 The mere existence of various potential fire sources can not

support a conclusion that the event of a fire was reasonably
likely to have occurred in the normal course of mining
operations. There is no evidence of the existence of any fault in
the condition of the high voltage cable. Further, on
cross-examination, Jones indcated that the portion of the track
where the gauge is not correct is not within the P8 Panel, i.e.,
the panel at issue.2 He conceded that, accordingly, a fire
started by arcing caused by the incorrect track gauge should not
affect the P8 panel in issue, unless the fire gets out of
control. There is no evidence that this would be reasonably
likely to occur. Also, contrary to Petitioner's assertion in her
brief that the mine in question has a history of mine fires, the
only evidence on this point is the testimony of Jones that there
was a fire causing fatalities in 1972. I thus conclude that,
inasmuch as the record fails to establish the likelihood of a
hazard producing event i.e., a fire, it must be concluded that
the violation herein was not significant and substantial (See,
Mathies Coal Co., 6 FMSHRC 1 (1984).

                       III. Civil Penalty

 In evaluating the negligence, if any, of the Respondent with

regard to the specific violation cited herein, not much weight is
placed on the fact that on various dates in January and February
1991, Jones issued citations to Respondent alleging violations of
Section 75.1707 supra, with regard to stoppings located at other
longwall panels. The issuance of these citations is accorded
little weight in evaluating whether Respondent knew or reasonably
should have known of the existence of the specific holes in the
doors in question.

 Jones indicated that during inspections on February 21,

1991, and February 26, 1991, he cited the same doors as
containing holes, and being in violation of the Ventilation Plan.
However, he indicated on cross-examination that the holes that
were in existence on March 5th and cited by him, were not the
same holes as were cited in February. Also, although he had cited
the same doors, in February, they were at a different location.

 Jones indicated that the holes were "very obvious" (Tr. 48)

and that the doors themselves were approximately 20 to 25 feet
from where he got off the mantrip. However, there was no
evidence as to how long these holes existed prior to the
inspection, nor is there any evidence to indicate what caused
these holes.

 I find, for the above reasons, that there is insufficient

evidence to base a conclusion that the Respondent's negligence
herein was more than a slight degree. Taking into account the
remaining factors in Section 110(i) is stipulated to by the
parties I conclude that a penalty of $100 is appropriate for the
violation cited in Citation No. 3315802.

                             ORDER

 It is ordered that, within 30 days of this decision, the

operator shall pay $3,206 as a civil penalty for the violations
found herein.

 It is further ordered that citation numbers 3315803 and

3315865 be DISMISSED.

 It is further ordered that citation number 3315802 be

amended to reflect the fact that the violation cited therein is
not significant and substantial.

                        Avram Weisberger
                        Administrative Law Judge
                        (703) 756-6215

1. The mine is classified by MSHA as one that liberates more
   than one million cubic feet of methane in a 24 hour period.

2. The parties stipulated that the site of the incorrectly
   gauged trolley track is between the P7 and P8 Panels.