Consolidation Coal Company
Consolidation Coal Company (FMSHRC WEVA 91-49, WEVA 91-50, WEVA 91-62, WEVA 91-3, WEVA 91-51): Settlements approved and citations partly modified
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This order from 1991 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
Consolidation Coal's five related dockets involved settlements and a contested roof-support order at the Blacksville No. 1 and No. 2 Mines. Judge James A. Broderick approved the proposed settlements, vacated one overlapping citation, and affirmed the remaining settled citations. On the contested order, he found a violation involving unsupported roof near a roof fall, but held that injury was unlikely and the conduct was not unwarrantable failure, so he assessed a $200 penalty. He also modified another order to a section 104(a) citation and deleted the significant-and-substantial finding from one citation. The decision required $3,301 in total civil penalties.
Decision snapshot
- Cited standards: 30 C.F.R. §§ 75.1725(a), 75.303(a), 75.1403, 75.1003(c), 75.202(a), 75.305, 75.1704, and 75.1403-8(a)
- Outcome: Settlements were approved, one citation was vacated, two enforcement actions were modified and affirmed, and the listed penalties totaled $3,301.
- Key point: The judge treated an area as one where miners were required to travel for weekly examinations, but found no S&S violation or unwarrantable failure on the contested roof-support order.
Full text (FMSHRC public release)
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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 PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 91-49
PETITIONER A. C. No. 46-01867-03866
v.
CONSOLIDATION COAL COMPANY, Docket No. WEVA 91-50
RESPONDENT A. C. No. 46-01867-03867
Docket No. WEVA 91-62
A. C. No. 46-01867-03869
Blacksville No. 1 Mine
Docket No. WEVA 91-3
A. C. No. 46-01968-03881
Docket No. WEVA 91-51
A. C. No. 46-01968-03885
Blacksville No. 2 Mine
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
Pursuant to notice, the above cases were called for hearing
in Morgantown, West Virginia, on April 17, 1991. Counsel for the
Secretary made an oral motion on the record to approve
settlements of the violations charged in Docket Nos. PENN 91-3,
91-49, 91-51, and 91-62. He also moved to approve settlements in
three of the four citations included in Docket No. PENN 91-50.
The remaining 104(d)(2) Order in PENN 91-50 was heard on the
merits. Dale R. Dinning and Raymond L. Ash testified on behalf of
the Secretary. John M. Morrison and John M. Weber testified on
behalf of Consol. Both parties filed post hearing briefs with
respect to the contested order.
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PROPOSED SETTLEMENTS
Docket No. WEVA 91-3 includes two 104(a) citations, one
alleging a violation of 30 C.F.R. 75.1725(a), the other a
violation of 30 C.F.R. 75.303(a). They were assessed at $292
and $227 respectively, and Consol agrees to pay the assessed
amount. I have considered the motion in light of the criteria in
Section 110(i) of the Act, and conclude that it should be
approved.
Docket No. WEVA 91-49 includes four citations, two of which
charge violations of 30 C.F.R. 75.303(a). The Secretary moves
to vacate one of these, Citation No. 3314125 on the ground that
the area covered by the citation overlaps with that covered by
Citation No. 3314130. With respect to remaining three citations,
Consol agrees to pay the assessed amounts, $434 for Citation No.
3314124, $434 for Citation No. 3314129, and $276 for Citation No.
3314130. 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.
Docket No. WEVA 91-50. With respect to three of the four
citations in the docket, the Secretary moves to approve
settlements in which Consol will pay the assessed amounts, $355
for Citation No. 3314121, $355 for Citation No. 3314122 and $276
for Citation No. 3314123. I have considered the motion in light
of the criteria in Section 110(i) of the Act, and conclude that
it should be approved.
Docket No. WEVA 91-51. This docket contains a single
violation of 30 C.F.R. 75.1003(c) charged in a 104(a) citation.
It was originally assessed at $292. The violation involved an
unguarded trolley wire at a mantrip station. The motion proposes
that the citation be modified to a nonsignificant and substantial
one and the penalty be reduced to $176. The portal buses used at
the mine have a covered top and are insulated with rubber. The
only practical way in and out of the mantrip is from the wide
side of the track away from the wire. I have considered that
motion in the light of the criteria in Section 110(i) of the Act,
and conclude that it should be approved.
WEVA 91-62. This docket contains a single violation of 30
C.F.R. 75.303(a) alleged in a citation charging an inadequate
preshift examination. The motion proposes that Consol will pay
the assessed amount of $276. 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.
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FINDINGS OF FACT with respect to Order No. 2708208.
1. 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.
2. The imposition of civil penalties in this proceeding
would not affect Consol's ability to continue in business.
3. Consol is a large operator.
4. Between July 31, 1988 and July 30, 1990, there were 686
paid violations of mandatory standards at the subject mine (this
history, of course, extends beyond the date of the violation
involved in this proceeding). Included in this number are 32
violations of 30 C.F.R. 75.202 prior to the violation contested
here. This history is average for a mine of this size. It is not
such that a penalty should be increased because of it.
5. The violation involved in this proceeding was promptly
abated in good faith.
6. The subject mine has a history of roof falls; it has the
worst roof conditions of any mine in the Morgantown, West
Virginia area.
7. The subject mine liberates approximately 3 million cubic
feet of methane in a 24 hour period.
8. A roof fall occurred in the 4 South Left Return entry
prior to March 1, 1990. The roof was 12 feet to 14 feet high and
the fall caused a cavity 20 feet long, 14 feet wide, and about 6
feet high. The area was "dangered off" with a rope and a danger
sign on both sides of the fall.
9. In early March 1990, the 4 South belt regulator was moved
to the 4 South Left return aircourse. The air passed through the
regulator and crossed an overcast to the return entry. Consol
explained that it moved the regulator because of the large number
of citations for float coal dust on the regulator at its former
location.
10. The air velocity in the area of the roof fall was
approximately 50,000 cubic feet per minute.
11. The entry was about 16 feet wide. The distance between
the danger signs was between 70 and 80 feet.
12. There is no evidence that any miners travelled past the
danger sign on either side of the roof fall. Consol's evidence
establishes that it is highly unlikely that a Consol miner would
travel into a dangered-off area.
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-
The mine weekly examination record indicates that an examiner
had been in the vicinity of the 4 South belt regulator on April
25, 1990. There is no evidence that the examiner traveled past
the danger sign.-
Methane is lighter than air and tends to migrate to the
higher places in a mine, and specifically to roof fall cavities. -
MSHA Program Policy Manual relating to 30 C.F.R.
75.305, issued 7-1-88 (GX 3), requires weekly examinations of air
courses. It provides that modification of this requirement where
a roof fall has occurred, or where an area is unsafe for travel
can be achieved only by a petition for modification under Section
101(c) of the Act. It does not specifically require that the air
course be traveled in its entirety, contrary to MSHA's argument
in this case. -
Federal Mine Inspector Dinning issued a 104(d)(2) Order
on April 30, 1990, charging a violation of 30 C.F.R. 75.202(a).
The order found that additional roof support was needed at the
No. 16 crosscut where the 4 South belt regulator crosses over the
equalizing overcast to the 4 South Left return. The roof fall
exposed the roof bolts so that they were hanging 3 to 4 feet from
the roof. The order found that the area could not be traveled
safely. -
The order originally found that the violation was
significant and substantial and was reasonably likely to cause an
injury. The MSHA conference officer modified the order deleting
the significant and substantial finding and indicating that an
injury was unlikely to result. -
Because of the height of the roof fall cavity and its
distance from the danger signs it was not possible to adequately
examine the area in question for the presence of methane on April
25, 1990. -
Because of the distance of the roof fall from the danger
signs, and the necessity of examining the edges of the roof fall
for further deterioration by a sound and vibration test, it was
not possible to adequately examine the roof conditions of the
area in question on April 25, 1990.
-
DISCUSSION
My findings of fact 18 and 19 are based largely on the
testimony of Raymond Ash, supervisor coal mine health and safety
inspector. The contrary testimony of Consol Safety Supervisor
John Morrison and John Weber, I find less persuasive. Morrison
admitted that he "could not see the entire top of this cavity . .
. " (Tr. 58). I do not accept Weber's conclusion that a methane
check of the cavity could be performed with a probe.
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Despite the presence of cribs, further deterioration of the roof
could occur and not be visible to an examiner standing at either
of the danger signs. Whether such further deterioration took
place could only be adequately determined by a sound and
vibration test.
20. Should a further roof fall occur, it could damage an
overcast and disrupt the mine ventilation.
21. The violation was abated and the order terminated on
April 3, 1990, on the grounds that the 4 South belt regulator was
removed from the No. 16 crosscut, and therefore the area of bad
roof would not have to be traveled through by a mine examiner.
REGULATIONS
30 C.F.R. 75.202(a) provides:
(a) The roof, face and ribs of areas where persons work
or travel shall be supported or otherwise controlled to
protect persons from hazards related to falls of the
roof, face or ribs and coal or rock burst.
30 C.F.R. 75.305 provides:
In addition to the preshift and daily examinations
required by this Subpart D, examinations for hazardous
conditions, including tests for methane, and for
compliance with the mandatory health or safety
standards, shall be made at least once each week by a
certified person designated by the operator in the
return of each split of air where it enters the main
return, on pillar falls, at seals, in the main return,
at least one entry of each intake and return aircourse
in its entirety, idle workings, and insofar as safety
considerations permit, abandoned areas. Such weekly
examinations need not be made during any week in which
the mine is idle for the entire week, except that such
examination shall be made before any other miner
returns to the mine. The person making such
examinations and tests shall place his initials and the
date and time at the places examined, and if any
hazardous condition is found, such condition shall be
reported to the operator promptly. Any hazardous
condition shall be corrected immediately. If such
condition creates an imminent danger, the operator
shall withdraw all persons from the area affected by
such condition to a safe area, except those persons
referred to in section 104(d) of the Act, until such
danger is abated. A record of these examinations,
tests, and actions taken shall be recorded in ink or
indelible pencil in a book approved by the Secretary
kept for such purpose in
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an area on the surface of the mine chosen by the mine 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 area cited was one where persons work or
travel?
2. If a violation of 30 C.F.R. 75.202 is established,
whether it resulted from Consol's unwarrantable failure to comply
with the standard?
3. If a violation of 30 C.F.R. 75.202 is established, what
is the appropriate penalty therefor?
CONCLUSIONS OF LAW
1. Consol is subject to the provisions of the Mine Act in
the operation of the Blacksville No. 1 Mine, and I have
jurisdiction over parties and subject matter of this proceeding.
2. In the case of Cypress Empire, 12 FMSHRC 911 (1990), the
Commission implied that the phrase in 75.202(a), "where persons
work or travel" includes not only areas where persons actually
work or travel, but also areas where persons are required to
travel. 12 FMSHRC 917.
3. 30 C.F.R. 75.305 provides that return aircourses must
be examined in their entirely at least once each week. Findings
of Fact 18 and 19 establish that such examinations in the subject
maine would require the examiners to travel under unsupported
roof to adequately examine the area for hazardous conditions.
4. Therefore, since persons are required to travel the cited
area, a violation of 30 C.F.R. 75.202(a) is shown, even though
there is no evidence that in fact anyone did travel the area
after the danger signs were in place.
5. Because there is no evidence that persons did travel the
area, and because the evidence shows that it was highly unlikely
that anyone would travel the area, the violation (of 75.202(a);
the question whether 75.305 was violated is not before me) was
unlikely to result in injury to miners. I conclude that it was
not a serious violation.
6. In Emery Mining Corp., 9 FMSHRC 1997 (1987) the
Commission held that unwarrantable failure means "aggravated
conduct, constituting more than ordinary negligence in relation
to a violation of the Act." I conclude that the evidence in this
record shows that Consol in good faith believed that dangering
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off the area of the roof fall constituted compliance with the
standard. This was erroneous, but was not aggravated conduct. I
conclude that the violation did not result from unwarrantable
failure to comply with the standard.
7. Considering the evidence in the light of the criteria in
Section 110(i) of the Act, I conclude that a penalty of $200 is
appropriate for the violation.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1. Citation Nos. 3314013 and 3314014 (Docket No. WEVA 91-3)
are AFFIRMED.
2. Citation Nos. 3314124, 3314129, and 3314130 are AFFIRMED.
Citation No. 3314125 is VACATED (Docket No. WEVA 91-49).
3. Citation Nos. 3314121, 3314122, and 3314123 are AFFIRMED.
Order No. 2708208 is MODIFIED to a 104(a) Citation and, as
modified is AFFIRMED. (Docket No. WEVA 91-50).
4. Citation No. 3314272 is MODIFIED to delete the
significant and substantial finding and, as modified is AFFIRMED.
(Docket No. WEVA 91-51).
5. Citation No. 3314138 is AFFIRMED. (Docket No. WEVA
91-62).
6. Consol shall within 30 days of the date of this Decision
pay the following civil penalties:
CITATION/ORDER 30 C.F.R. AMOUNT
3314013 75.1725(a) $ 292
3314014 75.303(a) 227
3314124 75.1403-8(a) 434
3314129 75.202(a) 434
3314130 75.303(a) 276
3314121 75.1704 355
3314122 75.1704 355
2708208 75.202(a) 200
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3314123 75.305 276
3314272 75.1003 176
3314138 75.303(a) 276
TOTAL $3301
James A. Broderick
Administrative Law Judge
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