Consolidation Coal Company

Plain-English summary

Consolidation Coal operated the Blacksville No. 1 underground coal mine. The judge approved settlements for two citations, including a reduced $350 penalty for an accumulation of loose coal and float coal dust and a $276 penalty for failing to report a hazardous roof condition during a weekly examination. The remaining citation involved combustible hydraulic pump fluid mixed with coal and coal dust on a pump sled near an active travelway. The judge found that the accumulation should have been reported during the preshift examination, affirmed the citation as significant and substantial, and assessed a $400 penalty. The total penalty was $1,026.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.400, 75.305, and 75.303(a)
• Outcome: Two citation settlements were approved, one citation was affirmed, and penalties totaling $1,026 were ordered.
• Key point: A visible combustible accumulation near a 440-volt motor had to be reported in the preshift examination record because it could create a fire hazard for miners.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, Virginia 22041

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 91-27
PETITIONER A. C. No. 46-01867-03864
v.
Blacksville No. 1 Mine
CONSOLIDATION COAL COMPANY
RESPONDENT

                               DECISION

Appearances: Page H. Jackson, Esq., Office of the Solicitor,
U. S. Department of Labor, Arlington, Virginia,
for the Secretary of Labor (Secretary);
Walter J. Scheller III, Esq., Pittsburgh,
Pennsylvania, for Consolidation Coal Company
(Consol).

Before: Judge Broderick

STATEMENT OF THE CASE

 The Secretary seeks civil penalties for three alleged

violations of mandatory safety standards alleged in three
citations issued on August 31, 1990. Pursuant to notice, the case
was called for hearing in Morgantown, West Virginia, on April
17-18, 1991. At the hearing, the Secretary proposed a settlement
with respect to one of the alleged violations. After the close of
the hearing she submitted a settlement motion with respect to a
second alleged violation. With respect to the other one, Federal
Coal Mine Inspector Joseph Migaiolo testified on behalf of the
Secretary. John Morrison and Craig G. Yanak testified on behalf
of Consol. Both parties have filed Posthearing Briefs. I have
considered the entire record and the contentions of the parties
in making the following decision.

SETTLEMENT MOTION CITATION NO. 3314114

 This citation alleged a violation of 30 C.F.R. § 75.400

because an accumulation of loose coal and float coal dust had
been deposited on the P-8 longwall roof support shield and other
parts of the longwall. The violation was alleged to be
significant and substantial, and caused by Consol's moderate
negligence.

It was assessed at $500. The motion proposes a reduction to $350
on the ground that the negligence should be reduced to low
negligence. I have considered the motion in the light of the
criteria in Section 110(i) of the Act, and conclude that it
should be approved.

SETTLEMENT MOTION CITATION NO. 3314113

 On August 5, 1991, the Secretary filed a motion for approval

of a settlement whereby Consol agreed to pay the amount
originally assessed, $276. The citation alleged a violation of 30
C.F.R. 75.305 because Consol failed to conduct an adequate
weekly examination in that it failed to report a hazardous roof
condition in the intake escapeway. I have considered the motion
in the light of the criteria in Section 110(i) of the Act, and
conclude that it should be approved.

FINDINGS OF FACT

 Consol was at all pertinent times the owner and operator of

an underground coal mine in Monongalia County, West Virginia,
known as the Blacksville No. 1 Mine. Consol is a large operator.
The imposition of penalties in this case will not affect its
ability to continue in business. The subject mine has an average
history of prior violations for a mine of its size, and any
penalties imposed herein will not be increased or decreased
because of that history. The violations involved in this case
were abated timely and in good faith.

CITATION NO. 3314111

 On August 31, 1990, there was an accumulation of hydraulic

pump fluid covered with fine coal and coal dust on a hydraulic
pump sled inby the mantrip station along an active travelway in
the subject mine. The material measured from 1/8 to 1/4 inch in
depth. The extent of the accumulation was such that it would have
taken several working shifts to develop. The pump has a 440 volt
AC motor. A 104(d)(2) Order was issued for a violation of 30
C.F.R. 75.400. That Order is not before me in this proceeding,
which only involves an alleged violation of 30 C.F.R. § 75.303(a). The hydraulic fluid consists of a white emulsion
combination of oil and water. In the material on the sled, the
water had partially evaporated leaving a yellow sticky residue
which the inspector believed to be combustible. No sample of the
material was taken to test its combustibility. Craig Yanak,
Consol's Supervisor of dust, noise control, and hazardous
chemicals, testified that the hydraulic fluid was 95 percent
water and 5 percent concentrate. The concentrate is itself only 5
percent petroleum. Based on Yanak's discussion with the
manufacturer, he believed the product would not be combustible
under normal mining conditions. Consol submitted a letter from
the manufacturer

stating that once the product is mixed with water, the water
cannot evaporate sufficiently to make the residue combustible.
(Operator's Ex 1). The August 31, 1990, preshift examiner's
report did not refer to the accumulation on the pump sled.
Inspector Migaiolo issued the contested citation charging a
violation of 30 C.F.R. § 75.303(a) because he believed that the
failure to note the condition showed that an adequate preshift
examination was not performed.

 I find that the accumulation on the pump sled was

combustible regardless of the combustibility of the hydraulic
fluid itself, since it contained coal, coal dust, and float coal
dust. The accumulation was clearly visible. Therefore, it should
have been seen by the mine examiner and reported in the
examiner's book.

 The pump sled motor constituted an ignition source. If a

fire broke out it would travel directly to the longwall face
where miners were working. The citation was terminated September
6, 1990. The inspector determined that adequate preshift
examinations were being conducted as of that date.

REGULATIONS

 30 C.F.R. § 75.303(a) provides as follows:

           (a) within 3 hours immediately preceding the
      beginning of any shift, and before any miner in such
      shift enters the active workings of a coal mine,
      certified persons designated by the operator of the
      mine shall examine such workings and any other under-
      ground area of the mine designated by the Secretary or
      his authorized representative. Each such examiner
      shall examine every working section in such workings
      and shall make tests in each such working section for
      accumulations of methane with means approved by the
      Secretary for detecting methane, and shall make tests
      for oxygen deficiency with a permissible flame safety
      lamp or other means approved by the Secretary; examine
      seals and doors to determine whether they are function-
      ing properly; examine and test roof, face, and rib
      conditions in such working section; examine active
      roadways, travelways, and belt conveyors on which men
      are carried, approaches to abandoned areas, and acces-
      sible falls in such section for hazards; test by means
      of an anemometer or other device approved by the
      Secretary to determine whether the air in each split is
      traveling in its proper course and in normal volume and
      velocity; and examine for such other hazards and
      violations of the mandatory health or safety standards,
      as an authorized representative of the Secretary may
      from time to time require. Belt conveyors on which

         coal is carried shall be examined after each coal-
         producing shift has begun. Such mine examiner shall
         place his initials and the date and time at all places
         he examines. If such mine examiner finds a condition
         which constitutes a violation of a mandatory health or
         safety standard or any condition which is hazardous to
         persons who many enter or be in such area, he shall
         indicate such hazardous place by posting a "danger"
         sign conspicuously at all points which persons entering
         such hazardous place would be required to pass, and
         shall notify the operator of the mine. No person,
         other than an authorized representative of the
         Secretary or a State mine inspector or persons autho-
         rized by the operator to enter such place for the
         purpose of eliminating the hazardous condition therein,
         shall enter such place while such sign is so posted.
         Upon completing his examination, such mine examiner
         shall report the results of his examination to a
         person, designated by the operator to receive such
         reports at a designated station on the surface of the
         mine, before other persons enter the underground areas
         of such mine to work in such shift. Each such mine
         examiner shall also record the results of his examina-
         tion with ink or indelible pencil on a book approved by
         the Secretary kept for such purpose in an area on the
         surface of the mine chosen by the operator to minimize
         the danger of destruction by fire or other hazard, and
         the record shall be open for inspection by interested
         persons.

ISSUES

 1. Whether the evidence establishes that the cited

violation occurred?

    2. If so, was the violation significant and substantial?

    3. If so, what is the appropriate penalty?

CONCLUSIONS OF LAW

 Consol is subject to the provisions of the Mine Act in the

operation of the Blacksville No. 1 Mine. I have jurisdiction over
the parties and subject matter of this proceeding.

CITATION NO. 3314111

 I have found as a fact that the accumulation on the

hydraulic pump sled was combustible. It was evident and created a
hazard. Therefore, the mine examiner should have reported and
recorded it in the preshift examination book. His failure to do
so constituted a violation of 30 C.F.R. § 75.303(a). Because

there was an ignition source at the area of combustible
accumulation, the condition created a hazard and failure to note
it would permit it to go uncorrected. A fire could result and
cause injury to miners. The violation was reasonably likely to
result in such injuries and was therefore significant and
substantial. See Mathies Coal Co., 6 FMSHRC 1 (1984). It was a
serious violation, and resulted from Consol's negligence since
the condition was obvious to visual observation. Based on the
criteria in Section 110(i) of the Act, I conclude that $400 is an
appropriate penalty for the violation.

                                   ORDER

 Based on the above findings of fact and conclusions of law,

IT IS ORDERED:

 1. Citation No. 3314111, including its designation of the

violation as significant and substantial, is AFFIRMED.

 2. Citation No. 3314113, including its designation of the

violation as significant and substantial, is AFFIRMED.

 3. Consol shall, within 30 days of the date of this

Decision, pay the following civil penalties:

           CITATION       AMOUNT

           3314111         $400
           3314113         $276
           3314114         $350

                 TOTAL     $1026

                                    James A. Broderick
                                    Administrative Law Judge