Consolidation Coal Company

Plain-English summary

Consolidation Coal admitted a ventilation violation and its significant-and-substantial designation after an inspector found only 4,930 CFM of air where the mine's approved plan required 6,000 CFM. Judge Paul Merlin found that the evidence did not establish that the defective tubing or a misplaced rock-dust bag had existed long enough to support unwarrantable failure. He vacated the unwarrantable-failure finding, modified the order to a section 104(a) citation, and assessed a $750 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.316
• Outcome: The unwarrantable-failure finding was vacated, the order was modified to a 104(a) citation, and a $750 penalty was assessed.
• Key point: Unwarrantable failure requires evidence that the violative condition existed long enough to charge the operator with aggravated conduct.

Full text (FMSHRC public release)

CCASE:
MSHA V. CONSOLIDATION COAL
DDATE:
19920429
TTEXT:

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SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 91-2034
Petitioner : A. C. No. 46-01452-03795
:
v. : Arkwright No. 1 Mine
CONSOLIDATION COAL COMPANY, :
Respondent :

                            DECISION

Appearances: Charles Jackson, Esq., Office of the Solicitor,
U. S. Department of Labor, Arlington,
Virginia, for Petitioner;
Walter J. Scheller, Esq., Consolidation
Coal Company, Pittsburgh, Pennsylvania, for
Respondent.

Before: Judge Merlin

 This case is a petition for the assessment of a civil penal-

ty filed by the Secretary of Labor against Consolidation Coal
Company under section 110 of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. 820.

 Order No. 3308056 was issued pursuant to section 104(d)(2)

of the Act, 30 U.S.C. 814(d)(2), for an alleged violation of 30
C.F.R. 75.316. A hearing was held on March 10, 1992, the
transcript was received and by April 20, 1992, the parties filed
their post hearing briefs.

   30 C.F.R.   75.316, which restates section 303(o) of the
   Act, 30 U.S.C.   863(o), provides:

   A ventilation system and methane and dust control
   plan and revisions thereof suitable to the conditions
   and the mining system of the coal mine and approved by
   the Secretary shall be adopted by the operator and set
   out in printed form on or before June 28, 1970. The
   plan shall show the type and location of mechanical
   ventilation equipment installed and operated in the
   mine, such additional or improved equipment as the
   Secretary may require, the quantity and velocity of air
   reaching each working face, and such other information
   as the Secretary may require. Such plan shall be
   reviewed by the operator and the Secretary at least
   every 6 months.

   Order No. 3308056, dated October 18, 1990, and challenged
   herein, charges a violation for the following alleged condition
   or practice:

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Measurements made with a magnehelic and pitot tube
in the second tube outby the face of the left crosscut
off No. 4 entry (2 Right Section) revealed that only
4930 CFM of air was present at that location and a
slider tube is used to keep within 10 feet of the
deepest point of penetration, which results in even
less air at the end of the tube. The approved ventila-
tion methane and dust control plan requires that a
minimum of 6000 CFM of air be provided at a working
face. 16 tubes and 4 fittings were in place with
numerous leaks.

   The inspector marked the citation significant and substan-
   tial and found that it was the result of unwarrantable failure on
   the part of the operator.

   Prior to going on the record, the parties agreed to the
   following stipulations (Tr. 3-4):

   (1)    The operator is the owner and operator of the subject
          mine;

   (2)    the operator and the mine are subject to the jurisdic-
          tion of the Federal Mine Safety and Health Act of 1977;

   (3)    I have jurisdiction in this case;

   (4)    the inspector who issued the subject order was a duly
          authorized representative of the Secretary;

   (5)    a true and correct copy of the subject order was
          properly served upon the operator;

   (6)    a copy of the subject order is authentic and can be
          admitted into evidence for the purpose of establishing its
          issuance but not for the purpose of establishing the truthfulness
          or relevancy of any of the statements asserted therein;

   (7)    payment of any penalty will not affect the operator's
          ability to continue in business;

   (8)    the operator demonstrated good faith abatement;

   (9)    the operator has an average history of prior viola-
          tions for a mine operator of its size;

   (10)   the operator is large in size.

   The inspector testified that when he inspected the mine on

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the morning of October 18, 1990, he measured only 4,930 CFM of
air at the face (Tr. 26). He cited a violation of 30 C.F.R.
75.316 because the operator's ventilation plan required 6,00
CFM (Exh. R-2). The inspector also found the violation was
significant and substantial, and that it resulted from high
negligence on the part of the operator (Gov't. Exh. No. 2).
Equating high negligence with unwarrantable failure, the inspec-
tor issued an order under section 104(d)(2) of the Act.

 In a post-hearing letter dated April 7, 1992, the operator

admitted the existence of the violation and that it was signifi-
cant and substantial. The only issue remaining is whether the
operator was guilty of unwarrantable failure.

 According to the inspector, the continuous mining machine

which was in the No. 4 entry was cutting left into the crosscut
going from the No. 4 to the No. 3 entry (Tr. 12; Exh. R-1). The
mining machine was approximately 20 feet into the crosscut and
the inspector believed the turn into the crosscut had been made
late on the preceding midnight shift (Tr. 70-71). Tubing ran
along the right hand side of the miner, high against the mine
roof and over against the coal rib (Tr. 27). This tubing extend-
ed from the face outby down the No. 4 entry to the next crosscut
where it turned right into the auxiliary exhaust fan (Tr. 13).
The inby end of the tubing was approximately 10 feet from the
face (Tr. 18-19). The purpose of the tubing and the fan was to
pull dusty or gassy polluted air away from the face (Tr. 14-15).
By carrying contaminated air away from the face, fresh air coming
up the No. 4 entry was allowed to come into the working place and
go across the continuous mining machine replacing the exhausted
air (Tr. 21-22).

 On the morning in question, the inspector found that several

tubes were damaged with smashed areas or holes in them (Tr. 19).
There were a dozen holes which had up to a maximum diameter of
1 inch (Tr. 20, 61). Also the joints between the sections of
tubing were not wrapped (Tr. 24). In the inspector's view, the
damaged tubing decreased the air flow provided by the fan. The
reduced air flow from the tubes was due half to the damaged areas
(holes) and half to the joints (Tr. 61).

 The inspector believed the operator was guilty of unwarrant-

able failure because the midnight shift foreman had not tested
for air and the day shift foreman was going to begin mining
without the requisite 6,000 CFM of air (Tr. 45-46). He stated
that the condition of the tubing and the decreased air flow was
obvious (Tr. 45). He thought the continuous mining machine had
made its left turn late on the midnight shift and possibly could
have bumped the tubing at that time (Tr. 57, 69-70, 71). Howev-
er, since the damage was located all along the tubing he found it
unlikely that it all happened at the end of the midnight shift
(Tr. 71). He did not know when or how the conditions occurred

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during the midnight shift, but felt that the midnight shift had
been in compliance for at least a portion of the time (Tr. 73-
74).

  The section foreman for the day shift who was not the

regular section foreman, admitted he had the power put on the
machinery, but did not remember whether he attempted to check the
air flow (Tr. 133-134). The mine foreman said inadequate air at
the face could be felt when it hit the back of the neck and in
this way the inspector could have determined that there was
inadequate air when he came on the section (Tr. 118, 119). In
the mine foreman's opinion the person in charge on the section
should have sought out the cause of the inadequate air (Tr. 122,
123).

 It is clear from the foregoing that the acting day shift

section foreman committed a serious error in failing to realize
that the volume of air at the face was inadequate and to take
appropriate action. However, every error of judgment or omission
of duty does not constitute unwarrantable failure. The Commis-
sion has established a significant threshold for a finding of
unwarrantability. It has held that unwarrantable failure is
conduct that is not justifiable, is inexcusable and is the result
of more than inadvertence, thoughtlessness, or inattention. The
term is construed to mean aggravated conduct constituting more
than ordinary negligence. Emery Mining Corporation, 9 FMSHRC
1997 (Dec. 1987).

 In this case the facts do not support an unwarrantable

finding. The section foreman on the day in question was not the
regular section foreman but a fill-in (Tr. 113, 130). Although
this circumstance does not excuse his failure to apprehend the
situation, it indicates an absence of reckless disregard or
willful intent or other such factors which could be considered
suggestive of aggravated conduct.

 The length of time a violative condition exists before

issuance of a citation or order is relevant in determining
whether there is unwarrantable failure. Emergy Mining Corpora-
tion, supra; Quinland Coals Inc., 10 FMSHRC 705 (June 1988).
Here, by the inspector's own estimate, the operator had fallen
out of compliance with respect to the tubing sometime during the
prior shift. This relatively short period does not support a
finding of unwarrantability. We do not have here a situation
where the operator conducted normal operations shift after shift
despite inadequate air.

 In addition, facts which existed before the order was

issued, but came to light only after it was abated, further
demonstrate there was no unwarrantable failure. Upon arriving at
the scene after the order had been issued, the mine foreman
immediately ordered the loading machine operator and his partner

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to take apart the auxiliary exhaust fan to find out what was
causing the lack of air (Tr. 80, 111, 127). Because the fan was
new and powerful the mine foreman believed the inadequate air was
caused by more than just the damaged tubing (Tr. 80, 127, 128).
When the fan was examined, a rock dust bag was found up against
its screen and blower (Tr. 81, 112). The loading machine opera-
tor and the mine foreman expressed the opinion that instead of
properly disposing of the bag, a miner who was rock dusting at
the inby end of the tubing could have thrown the bag into the
tubing where it was sucked up against the fan (Tr. 82, 112). The
bag greatly affected the operation of the fan and when it was
removed the change in ventilation was significant and there was
an enormous current of air at the face (Tr. 82, 88). Obviously,
the rock dust bag was a contributing, if not the major, cause of
the inadequate air which the inspector found. The force of the
fan which was the most powerful one the loading machine operator
had ever seen, was such that the operator had never had to wrap
the holes in the tubing in order to establish sufficient air at
the face (Tr. 80, 88).

 The existence of the rock dust bag casts no adverse reflec-

tion upon the inspector's finding of a violation. He found
inadequate air and properly cited it. However, the operator is
entitled to have the charge of unwarrantability evaluated in
light of the entire situation as it actually existed. For
purposes of determining the existence of unwarrantability it is
relevant to note that neither the loading machine operator nor
the mine foreman, nor anyone else for that matter, could say for
sure how the bag got into the fan (Tr. 81, 112). There is no
evidence that the bag had been against the fan for any apprecia-
ble period of time. Indeed, the great force of the fan when it
was operating properly, militates against such a conclusion.

 In sum therefore, the evidence fails to establish that

either the defective tubing or the misplaced rock dust bag had
existed for a length of time sufficient to charge the operator
with aggravated conduct. The operator committed only ordinary
negligence. Accordingly, the finding of unwarrantability must be
vacated and the 104(d)(2) order modified to a 104(a) citation.

 One final note. Running through this case is an undercur-

rent of dissatisfaction by MSHA with how the operator checks for
adequate air velocity at the face. If the operator is violating
a mandatory standard by how and when it checks such air velocity,
MSHA should so charge the operator and if necessary, have the
matter adjudicated before this Commission. If, on the other
hand, the mandatory standards are not clear or do not require
what MSHA wants, the standards should be amended through rule-
making. Otherwise MSHA should desist. What cannot be counte-
nanced is an attempt by MSHA to raise the issue in an oblique
manner by citing the operator under a different standard and
charging it with unwarrantable failure.

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As stated previously, the operator admitted that the viola-
tion was significant and substantial. The remaining criteria
with respect to the amount of the civil penalty to be assessed
have been stipulated to by the parties. Accordingly, I find that
a penalty of $750 is appropriate.

 The post-hearing briefs filed by the parties have been

reviewed. To the extent the briefs are inconsistent with this
decision, they are rejected.

                          ORDER

 It is ORDERED that the finding of unwarrantable failure for

Order No. 3308056 be VACATED.

 It is further ORDERED that Order No. 3308056 be MODIFIED to

a 104(a) citation.

 It is further ORDERED that a penalty of $750 be ASSESSED and

that the OPERATOR PAY $750 within 30 days of the date of this
decision.

                       Paul Merlin
                       Chief Administrative Law Judge

Distribution:

Charles M. Jackson, Esq., Office of the Solicitor, U. S. Depart-
ment of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA
22203 (Certified Mail)

Walter J. Scheller, Esq., Consol Inc., Consol Plaza, 1800 Wash-
ington Road, Pittsburgh, PA 15241-1421 (Certified Mail)

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