Valley Camp Coal Company

Plain-English summary

MSHA cited Valley Camp Coal Company after an inspection found that required permanent stoppings were missing between the intake and return air courses at the company's No. 12-A Mine. The company conceded the ventilation-plan violation, but disputed whether its conduct amounted to unwarrantable failure. Judge Avram Weisberger found aggravated conduct because mining continued without installing the required stoppings and imposed a $500 civil penalty. The order was affirmed as written.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.316
• Outcome: The ventilation-plan violation and the inspector's order were affirmed, with a $500 civil penalty.
• Key point: Continuing mining without installing required ventilation-plan stoppings supported a finding of unwarrantable failure even though the violation's gravity was low.

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 92-1075
Petitioner : A. C. No. 46-01977-03737R
v. :
: VC No. 12-A Mine
VALLEY CAMP COAL COMPANY, :
Respondent :

                           DECISION

Appearances: Pamela S. Silverman, Esq., U.S. Department of
Labor, Office of the Solicitor, Arlington,
Virginia, for Petitioner;
David J. Hardy, Esq., Jackson & Kelly, Charleston,
West Virginia, for Respondent.

Before: Judge Weisberger

 This case is before me based upon a Petition for Assessment

of Civil Penalty filed by the Secretary of Labor (Petitioner) alleging a
violation by Valley Camp Coal Company, (Respondent) of 30 C.F.R. § 75.316.
Pursuant to notice, the case was heard in Charleston, West Virginia, on
April 20, 1993. At the hearing, Sonny A. Davenport, testified for
Petitioner, and Richard Waugh, and Harold L. Proctor, testified for
Respondent.

 Subsequent to the hearing, on June 1, 1993, Petitioner filed a Brief,

and Respondent filed an Argument in Support of Findings of Fact and
Conclusions of Law. Respondent's Reply was received on June 7, 1993, and
Petitioner's Reply Brief was received on June 11, 1993.

             Findings of Fact and Discussion

              I.   Violation of 30 C.F.R. § 75.316

 On April 24, 1990, Sonny A. Davenport, an MSHA inspector, inspected

Respondent's No. 12-A Mine. He observed that in the One Right Section,
between entries 2 and 3, there were no stoppings in the first two
crosscuts outby the face. He also observed that there were only check
curtains in the 3rd and 4th crosscuts outby the face. He issued a Section
104(d)(2) order alleging a violation of 30 C.F.R. § 75.316. Section 75.316,
supra, in essence, requires a mine operator to comply with its ventilation
plan. That plan, as pertinent, provides as follows:

"Permanent stoppings shall be erected between the intake and
return air courses and shall be maintained to and including the
third connecting crosscut outby the faces of entries ... ."
(Government Exhibit No. 3, p.3) Respondent has conceded the
violation, and I find based on the testimony of Davenport, that
Respondent herein did violate Section 316, supra.

               II.   Unwarrantable Failure

 According to the uncontradicted testimony of Davenport, when he

examined the return entry at approximately 9:00 a.m. on April 24, there
were permanent stoppings only up to the 5th crosscut outby the face, and
there were no permanent stoppings in the 4th and 3rd crosscuts outby the
face, in violation of the ventilation plan. Thus, Respondent initially
had been in violation of the ventilation plan when the present 2nd
crosscut outby the face was initially cut through, as the record does not
establish that there were permanent stoppings installed in the 3rd
crosscut outby the face (the present 4th crosscut outby the face) as
required by the ventilation plan. The record does not contain the
testimony of any persons having personal knowledge as to the amount of
time that elapsed between when Respondent was first in violation of the
ventilation plan, and when the violative conditions were observed and
cited by Davenport. (Footnote 1) Nor is there any documentary evidence
on this point.

1 According to Respondent's Safety Director, Richard Waugh, it
takes approximately an hour to cut a 30 foot break or crosscut between
two entries, and it takes approximately an hour and a half to cut an
advance into the face, which is a 45 foot cut. There is no evidence in
the record as to the actual mining sequence that took place, i.e., the
number of cuts taken between the time the violative condition initially
occurred, and the state of development of the section as observed by
Davenport on April 24. According to Harold L. Proctor, who was the
foreman of the day shift at the time in question, a sequence of mining
straight across all six entries, as depicted in numerical order on
Government Exhibit No. 4, was the sequence that was used "most of the
time". (Tr.120) Considering the number of cuts in this sequence, and the
lack of coal production during the mid-night shifts, it would have taken
approximately 26 hours for mining to have progressed from the time the
crosscut creating the violative condition was cut through, until the
state of development was in place as observed by Davenport on April 24.
However, according to Proctor, Respondent also utilized other sequences
"a lot" (sic) (Tr.121) in which only three entries were advanced at a
time. Under this sequence approximately 18 1/2 hours would have elapsed
between the time the violative condition was created, and the extent of
the development of the section that was observed by Davenport.

 The Preshift Mine Examiner's Report for the area in question for

April 23, 1990, indicates that an examination was made between 2:00 p.m.
and 2:30 p.m. but there is no notation that stoppings were needed. However,
the Preshift Mining Examiner's Report for April 24, 1990, for the area in
question indicates an examination between 4:00 p.m. and 4:30 p.m., and
notes as follows: "need stopping intake and return". The Preshift Miner
Examiner's Report for April 23, 1990, indicates an examination of the area
in question between 9:30 p.m. and 10:30 p.m., and contains the following
notation: "need stoppings intake and return".

 There is insufficient evidence in the record that Respondent had

taken timely action to correct the violative conditions. According to
Davenport, when he made his inspection on April 24, no one was working on
constructing the stoppings, and he did not observe any stacks of blocks or
construction materials. Richard Waugh, Respondent's Safety Director, who
was present with Davenport, did not indicate that he observed any work
being performed on the construction of stoppings. However, he indicated
that Harold Proctor, the day shift foreman, had informed him on April 24,
after Davenport issued the order in question, that when the crew had first
arrived on the section that day, he (Proctor) had assigned two men to get
blocks for the stoppings. However, Proctor testified that he did not
remember talking to Waugh, nor did he remember anything about the
construction of stoppings on the morning in question. Nor did he recall
telling two men on the crew to get blocks for stoppings.

 In essence, Respondent argues that it fully heeded all the notations

in the Preshift Mine Examiner's Report, and did all the requisite work
with the exception of the construction of the stoppings in the return
entries. However, no evidence was adduced by personnel having personal
knowledge as to why Respondent had not installed permanent stoppings as
required by the ventilation plan in a timely fashion, i.e., no evidence
was presented to mitigate its negligent action in this regard. In this
connection, I find that the record establishes that: (1) Respondent
initially violated its plan when it cut through the present second
crosscut outby the face without constructing a permanent stopping in the
third crosscut outby the face (the present 4th crosscut outby); (2)
Respondent continued mining until, when observed by Davenport on 9:00 a.m.
April 24, the face had advanced, and an additional crosscut had been cut;
and (3) when observed by Davenport, Respondent was in violation of having
no permanent stoppings at both the 3rd and 4th crosscuts outby the face.

 Within the framework of the above evidence, I conclude that the

degree of Respondent's negligence herein was more than ordinary, and
constituted aggravated conduct. (Footnote 2) (See, Emery Mining Corp., 9
FMSHRC 1997, 2004 (1987)).

                      III.     Penalty

 Although the gravity of the violation herein was low considering the

fact that there was no methane present, and the air velocity was more
than adequate, the violation resulted from Respondent's high degree of
negligence as set forth above (II, infra). Taking this factor into account,
as well as the other statutory factors set forth in Section 110(i) of the
Act, as stipulated to by the parties at the hearing, I conclude that a
penalty of $500 is appropriate for the violation found herein.

                             ORDER

 It is hereby ORDERED that the Order issued by the inspector be

affirmed as written. It is further ORDERED that Respondent shall, within
30 days of this decision, pay $500 as a civil penalty for the violation
found herein.

                               Avram Weisberger
                               Administrative Law Judge

Distribution:

Pamela S. Silverman, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington,
VA 22203 (Certified Mail)

David J. Hardy, Esq., Jackson & Kelly, P.O. Box 553, Charleston,
WV 25322 (Certified Mail)

nb

2 Davenport indicated that in his view unwarrantable failure means
"knew or should have known" (Tr.54). It thus appears that he did not use
the proper test, as set forth by the Commission in Emery, supra, in
concluding that Respondent's negligence herein constituted an
unwarrantable failure. I find however, based upon a de novo analysis of
the record, that the evidence before me establishes an unwarrantable
failure, as defined in Emery supra, on the part of Respondent.