United States Steel Mining Company, Incorporated

Plain-English summary

United States Steel Mining operated the Pinnacle Prep Plant. MSHA cited the plant under 30 C.F.R. § 77.200 after an inspector saw a deteriorated concrete floor and a damaged thermal dryer enclosure that allowed hot embers and coal dust to escape. The judge found that the enclosure was not maintained in good repair, but the evidence did not show that the leaking lining created a hazard to miners. The citation was vacated, and the proposed $46 civil penalty was denied and dismissed.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.200
• Outcome: Citation No. 2736728 was vacated, and the proposed $46 penalty was denied and dismissed.
• Key point: A disrepair violation under the cited standard still required proof that the condition presented a hazard to miners.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) v. UNITED STATES STEEL MINING
DDATE:
19910916
TTEXT:

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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 PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 91-73
PETITIONER A.C. No. 46-05868-03541
v.
Pinnacle Prep Plant
UNITED STATES STEEL MINING
COMPANY, INCORPORATED,
RESPONDENT

                               DECISION

Appearances: Javier I. Romanach, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Petitioner;
Billy M. Tennant, Esq., U.S. Steel Mining Company,
Inc., Pittsburgh, Pennsylvania, for the Respondent

Before: Judge Koutras

Statement of the Case

 This proceeding concerns a proposal for assessment of civil

penalty filed by the petitioner against the respondent pursuant
to section 110(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 820(a), seeking a civil penalty assessment of
$46 for an alleged violation of mandatory safety standard 30
C.F.R. 77.200. The respondent filed an answer contesting the
alleged violation and a hearing was held in Beckley, West
Virginia. The parties filed posthearing briefs and I have
considered their arguments in the course of my adjudication of
this matter.

                                Issues

 The issues presented in this proceeding are (1) whether the

respondent has violated the safety standard as alleged in the
proposal for assessment of civil penalty (2) whether the
violation was "significant and substantial," and (3) the
appropriate civil penalty that should be assessed based on the
civil penalty criteria found in section 110(i) of the Act.
Additional issues raised by the parties are identified and
disposed of in the course of this decision.

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Applicable Statutory and Regulatory Provisions

    1.      The Federal Mine Safety and Health Act of 1977, Pub.
            L. 95-164, 30 U.S.C.   801 et seq.

    2.      Section 110(i) of the 1977 Act, 30 U.S.C.        820(i).

    3.      30 C.F.R.   77.200.

    4.      Commission Rules, 20 C.F.R.     2700.1 et seq.

                                  Stipulations

 The parties stipulated in relevant part as follows (Exhibit

ALJ-1):
1. The presiding judge has jurisdiction to hear and
decide this matter.

    2.     The inspector who issued the contested citation was
           acting in his official capacity as a Federal coal mine
          inspector.

    3.    The citation was properly issued to the respondent's
          agents.

    4.    The cited conditions were timely abated.

    5.    Payment of the proposed civil penalty assessment of
          $46 will not adversely affect the respondent's ability
          to continue in business.

 The contested section 104(a) "S&S" Citation No. 2736728,

issued by MSHA Inspector Michael T. Dickerson on September 10,
1990, cites an alleged violation of mandatory safety standard 30
C.F.R. 77.200, and the cited condition or practice is described
as follows:

         The concrete floor at the feed end of (exterior)
         thermal dryer bed has deteriorated. Leaks at floor
         level are allowing live embers and small amounts of
         float coal dust to escape dryer bed area, and allowing
         loss of small amounts of fluidizing air current.

Petitioner's Testimony and Evidence

 MSHA Inspector Michael T. Dickerson testified that he issued

the contested citation during a regular inspection of the
responddent's preparation plant on September 10, 1990. He stated
that during his inspection of the thermal coal dryer he observed
hot

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coal embers and coal dust coming through the "fractured" concrete
floor at the feed end of the dryer bed. He believed that a loss
of drying fluidizing air current could cause coal dust to settle
and become hot and this would pose a hazard of fire or explosion.
He explained that his main concern was over the loss of air
current which could cause coal to settle on the drying bed, and
that any coal in suspension above the drying bed could be
ignited.

 Mr. Dickerson stated that dryer explosions were not unusual

events, and he believed that it was reasonably likely that a fire
or explosion would occur as a result of the cited conditions, and
that the dryer attendant would be exposed to these hazards. He
confirmed that the violation was the result of "low negligence"
on the part of the respondent because the conditions were
difficult to see. He also confirmed that the violation was abated
by repairing the concrete floor area and welding a split in the
dryer wall. He did not know whether any work was done inside the
refractory (Tr. 133-139).

 On cross-examination, Mr. Dickerson described the thermal

dryer as "six stories high" and he stated that the cited
conditions were located at "floor level". He identified a drawing
of a "Typical Thermal Coal Dryer" (Exhibit P-6), as similar to
the cited dryer facility in question. He stated that the
deteriorated concrete floor area was exposed to the air but was
not a walkway. He stated that he was in the area for
approximately 30 minutes and observed the floor from
approximately 5 to 6 feet away and then closer as he approached
the area immediately adjacent to the dryer feed bin. He stated
that the "crumbled concrete" floor condition began a few inches
from the dryer and extended over an area approximately 8 to 10
feet long.

 Mr. Dickerson stated that he found no methane hazards

present at the cited area, but he observed hot embers and coal
dust coming from the deteriorated floor. He agreed that it was
not unusual to see deteriorated concrete floor areas around a
thermal coal dryer. He stated that there was a "constant flow" of
embers from the floor and that he could see at least 10 embers
present at any one time. Mr. Dickerson was shown two photographic
exhibits (R-1 and R-2), showing a deteriorating concrete floor
area, but he could not definitely confirm whether they were the
areas which he cited (Tr. 140-144).

 Mr. Dickerson stated that the dryer building was washed down

on a regular basis. He did not observe any accumulations of coal
embers or coal dust, and he did not believe that the presence of
hot embers presented a hazard (Tr. 145). He stated that a small
area where the coal dust was coming through the floor was
"cloudy, and he believed that it was float coal dust in
suspension. However, he did not believe that the amount of coal
dust which he observed posed any hazard (Tr. 147).

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Mr. Dickerson stated that he could "feel air" coming through the
floor and that when he lifted a small piece of broken concrete he
felt an air current. He believed that the air current would blow
away any float coal dust, but he was concerned that the loss of
fluidizing air current would allow coal dust to settle on the
dryer bed itself, and if left unattended, it could cause a fire.
He was concerned that the conditions could deteriorate further,
and for these reasons, he believed that the violation was
"significant and substantial" (Tr. 151).

 Mr. Dickerson stated that he was told that the dryer wall

was damaged and that a seam had to be sealed to correct the
conditions in question. He confirmed that if the dryer wall were
not damaged and there was no leakage, the deteriorated concrete
would not have caused a problem and the deteriorated concrete
condition was not in and of itself something that was "out of
disrepair" under the cited mandatory standard (Tr. 150).

 Mr. Dickerson confirmed that he was familiar with MSHA's

policy manual (Exhibit P-5), and he stated that section 75.200 of
the manual does not specifically address thermal dryers. He
believed that he cited the appropriate section 77.200, because
the loss of fluidizing air, coal dust, or embers, which is
addressed in section 77.305, requires tight ceiling doors to
prevent these conditions. He explained that "since I was not
addressing a door, I couldn't use that section at all and had to
go to section 77.200" (Tr. 153). He further confirmed that the
deteriorated floor played no part in the violation, and that he
only included the condition of the floor to describe what he
observed. The violation pertained to the loss of hot embers and
coal dust that floated out in the air, and this was caused by the
split in the metal lining of the dryer. The purpose of the floor
area was not to enclose the leakage from the dryer bed. The metal
which split was used for that purpose (Tr. 153).

 In response to further questions, Mr. Dickerson stated that

the dryer leak was significant enough to cause loss of air
current, which posed a hazard (Tr. 154). He granted the
respondent two weeks to abate the conditions because he knew that
any abatement work would involve the damaged dryer wall. Although
he indicated that the deteriorated floor would affect the air
current and any potential hazard, he also stated that the
deteriorated floor did not contribute to the hazard and that it
was "just a tattle tale sign" (Tr. 155).

 Mr. Dickerson stated that he was concerned with the loss of

fluidizing air current inside the dryer. He explained that the
fluidizing air current moves the coal across the dryer bed inside
the dryer and that the deteriorated concrete floor area was the
location where the dryer was leaking (Tr. 157). If the floor had
not deteriorated he would not have been able to see the escaping

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fluidized air current, and the concrete floor would not have
allowed the air to escape (Tr. 159).

  Mr. Dickerson confirmed that the escaping coal dust and

escaping coal embers did not pose a hazard, and if the facility
were washed down regularly, as he believed it was, any escaping
fluidizing air current would only be hazardous internally to the
dryer system, and not externally. The small amount of fluidizing
air current coming through the deteriorated concrete would only
pose a hazard if it restricted the air flow inside the dryer (Tr.
150).

 Mr. Dickerson confirmed that a split in the metal lining of

the dryer was the cause of the escaping fluidizing air current,
and that at the time he viewed the conditions he did not know
that the dryer wall was constructed solely of metal or whether
the concrete floor was part of the dryer wall. He also confirmed
that the purpose of the floor which had deteriorated was not to
enclose or encompass the fluidizing air current, and he stated as
follows at (Tr. 160-161):

A.    To clear this up, if they had fixed the wall of the
      dryer and said, "Mike, the floor had nothing to do with
      it," and I had went and looked and the floor was still
      cracked up along there, that they had fixed the metal
      and no air currents were escaping, I would have
      terminated the paper.

              *      *      *      *      *      *         *

Q.    If the floor had been properly maintained and there
      would not have been any leaks coming out from the
      floor, would there have been leaks into the atmosphere
      going from somewhere else or another source?

A. No, because that seam was against the floor. The
floor was poured against that seam.

Q. The reason that the embers and the air current leaks
were coming out into the atmosphere was because of the
deteriorated floor?

A. That was part of it, yes.

Respondent's Testimony and Evidence

 David T. Walters, shift foreman, testified that he became

aware of the cited conditions on the afternoon of the day Mr.
Dickerson issued the citation. Mr. Walters stated that he took
photographs of the area where he observed sparks being emitted
from the broken concrete floor area cited by the

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inspector, and he confirmed that there were no operational
changes from the time the inspector saw the conditions (Exhibits
R-1 and R-2; Tr. 165-167).

 Mr. Walters stated that he observed "a puff" of air, and a

"gentle constant flow" of small burning embers coming through the
floor. He stated that he observed an "ashy" colored product,
rather than float coal dust, and he described the material as
"fine pulverized coal" which had gone through the combustion
process. He stated that the material was leaking through a 3 to 4
inch crack in the stainless steel dryer wall and that the
condition was abated by welding the crack and pouring a new
concrete floor for "cosmetic purposes". Mr. Walters characterized
the effect of the three-to-four inch split in the dryer lining as
"a spit in the ocean", and he believed that it would take a large
hole to short circuit the two 400 and 1,000 horsepower fans which
were shoving from the bottom and pulling from the top. He also
confirmed that the area in question is washed down more than once
a day, and that people are there three shifts a day. (Tr.
168-171).

 Mr. Walters stated that the deteriorated concrete floor

condition extended for a distance of approximately three and
one-half feet by one-foot, and in his opinion this condition
presented no hazard of any accident or injury to anyone. He
stated that leakage has occurred in the past because the metallic
dryer joint reacts to heat and splits, and when this occurs it is
necessary to weld the joint. In order to reach the joint, the
concrete floor is broken up in order to access the joint seam,
and it is then repaired. However, if the seam splits again, the
floor must again be broken in order to make the repairs (Tr.
172-172).

 In response to further questions, Mr. Walters stated that he

is concerned about "sparks being emitted everywhere" and the leak
in the dryer wall. However he did not consider the condition an
imminent danger or something that would require shutting down the
plant. (Tr. 176).

                              Discussion

 The mandatory safety standards dealing with thermal dryers

are found in Subpart D, Part 77, Title 30, Code of Federal
Regulations. Sections 77.300 through 77.315, cover the operation
and maintenance of thermal dryers, and section 77.305 requires
drying chambers and associated ductwork to be equipped with tight
sealing access doors which are required to be latched during
dryer operation to prevent the emission of coal dust and the loss
of fluidizing air. In this case, the respondent has not been
charged with a violation of any of these dryer standards, nor has
it been charged with any violations of section 77.202, which
covers accumulations of coal dust on surface structures,

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enclosures, or other facilities, or the surface travelway
requirements found in section 77.205. The respondent is charged
with an alleged violation of section 77.200, which covers surface
installations in general, and it provides as follows:

      All mine structures, enclosures, or other facilities
      (including custom coal preparation) shall be maintained
      in good repair to prevent accidents and injuries to
      employees.

 MSHA's July 1, 1988, and the most current April 1, 1991,

Program Policy Manual reference to section 77.200, (Exhibit P-5),
states as follows:

      This section does not apply to housekeeping. It is to
      be used for keeping surface facilities in good repair
      relative to safety.

      Inspections of surface facilities, structures, and
      enclosures should include an examination of all
      load-carrying members and related bracing. When such
      members or bracing are substantially warped, bent,
      deteriorated due to corrosion or weathering, or
      otherwise damaged or missing, the structure may be
      unstable or have a reduced load-carrying capacity.
      These conditions can cause or contribute to serious
      accidents and injuries, and appropriate enforcement
      action must be taken pursuant to this Section to
      require the structure, enclosure, or other facility to
      be maintained in good repair.

      The district engineering staff should be consulted to
      evaluate the condition of a surface structure where
      assistance is needed in determining whether the
      condition causes instability or reduces the
      load-carrying capacity of the structure.

 During oral arguments on the record, and in his posthearing

brief, the respondent's counsel took the position that the cited
section 77.200 requirement for maintaining surface installations
"in good repair" is intended to apply to the structural stability
of surface facilities, rather than the conditions cited by the
inspector. Counsel asserted that the "structural stability"
interpretation is specifically covered and discussed in MSHA's
policy guideline (Exhibit P-5, Tr. 177-178). Counsel also
suggested that since the inspector allowed two weeks to abate the
conditions, they did not constitute a significant and substantial
violation (Tr. 151).

 Respondent's counsel conceded that the respondent would be

concerned about a deteriorating thermal dryer wall that allowed
material to escape into the atmosphere "if there is not

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sufficient air current to continue to move that coal across the
dyer bed" (Tr. 162). Counsel asserted that it was his
understanding that the metal lining, rather than the dryer wall
itself, was cracked, and that the lining did not provide any
structural support for the dryer. Counsel agreed that the
equipment "was not designed to leak like that" (Tr. 164).

 Petitioner's counsel took the position that although there

is no specific regulation addressing the particular problem posed
by the conditions which the inspector believed were hazardous,
the inspector necessarily relied on the more general requirements
found in the cited section 77.200 (Tr. 177).

 In his posthearing brief, petitioner's counsel asserted that

since the damaged floor was causing a loss in the fluidizing air
current in the dryer chamber, a violation of section 77.200,
occurred since this scenario could potentially result in an
unplanned ignition or explosion.

 Inspector Dickerson confirmed that he was familiar with

MSHA's policy guidelines concerning the application and
interpretation of section 77.200, and the sections dealing with
thermal dryers. He still believed that he cited the proper
standard, and he explained that although the loss of fluidizing
air or coal dust and embers is addressed in section 77.305, that
section requires tight ceiling doors to prevent the conditions.
Since he was not addressing a door, he believed that he could not
rely on section 77.305, and had to rely on section 77.200. (Tr.
152-153). The inspector also confirmed that if he had seen only
the ruptured lining and the two-inch opening exposed above the
level of the floor he would still cite a violation of section
77.200 (Tr. 177).

                       Findings and Conclusions

 Although I agree with the respondent's contention that the

primary purpose and intent of section 77.200, as explained by
MSHA's policy manual, is to assure the physical and structural
integrity of surface coal preparation structures such a thermal
dryer, I believe the language of the standard is broad enough to
cover a damaged and unrepaired dryer bed enclosure lining which
allows dangerous levels of coal dust or float coal dust to escape
and remain on equipment structures where it could be ignited by
escaping hot embers and sparks flowing from the damaged
enclosure. The standard requires that such structures be
maintained in good repair to prevent accidents and injuries to
employees.

 I conclude and find that the dryer bed enclosure was not

maintained in good repair. While it may be true that the metal
lining, rather than the dryer wall itself was cracked, the fact
remains that the cracked or ruptured lining, which I find was an

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integral part of the enclosure, allowed materials to escape or
leak out of the enclosure. The respondent has not rebutted the
fact that the damaged lining was in fact causing the leakage, and
it conceded that the enclosure was not designed to leak and that
it would be concerned about a deteriorating dryer wall that
allowed material to escape.

 Although I have found that the dryer bed enclosure was not

maintained in good repair, I conclude that given the language "to
prevent accidents and injuries to employees" found in the
standard, in order to establish a violation it must be
established that the disrepair, or condition of the cited
equipment presented a hazard to miners. Based on the evidence
adduced in this case, I cannot conclude that the petitioner has
established that the leaking dryer bed enclosure lining presented
a hazard to miners.

 Inspector Dickerson conceded that the escaping coal dust and

coal embers did not pose a hazard, and he detected no hazards
from any methane. Although he expressed concern that coal dust
could settle on the drying bed and that coal dust in suspension
could be ignited, he confirmed that the air current would blow
away any float coal dust, and he did not believe that the amount
of coal dust which he observed posed any hazard. The inspector
also conceded that the deteriorated floor condition described in
the citation did not contribute to any hazard, and he did not
believe that the floor area in question was a walkway. As noted
earlier, no citations were issued for accumulations of coal dust
on surface structures or enclosures, or for any unsafe surface
travelways, and the inspector confirmed that he found no
accumulations of coal dust or embers.

 The inspector's testimony reflects that he was primarily

concerned about the loss of a fluidizing air current inside the
dryer, and his concern that any loss of air current could cause
coal dust to settle on the drying bed itself and pose a potential
ignition or fire hazard. However, he conceded that if the
facility were washed down regularly, as he believed it was, any
hazard resulting from any escaping fluidizing air current would
be limited to the inside of the dryer and not the outside. Given
the small amount of fluidizing air current coming through the
cracked dryer lining, the inspector further conceded that it
would only pose a hazard if it restricted the air flow inside the
dryer. However, there is no evidence that this was the case.
Under all of these circumstances, I conclude and find that the
petitioner has failed to establish a violation. Under the
circumstances, the contested citation IS VACATED.

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ORDER

 On the basis of the foregoing findings and conclusions, IT

IS ORDERED THAT:

    1.   Section 104(a) "S&S" Citation No. 2736728, September
         10, 1990, citing an alleged violation of 30 C.F.R.
         77.200, IS VACATED.

    2.   The petitioner's proposed civil penalty assessment
         for the vacated citation IS DENIED AND DISMISSED.

                                     George A. Koutras
                                     Administrative Law Judge