Consolidation Coal Company

Plain-English summary

Consolidation Coal was cited at its Blacksville No. 2 Mine for inadequate firehose reach and exposed high-voltage cable, and it agreed to pay a $20 settlement for a damaged trailing-cable citation. Judge Jerold Feldman found the firehose violation significant and substantial but modified the order to a section 104(a) citation because the operator's conduct was ordinary negligence. He affirmed the high-voltage-cable violation, removed its significant-and-substantial designation, but found unwarrantable failure because management knew about the downed cable and had a history of similar violations. The judge approved the $20 settlement and assessed $750 for the firehose violation and $900 for the cable violation, for a total penalty of $1,670.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.517, 75.807, and 75.1100-2(a)(1)
• Outcome: One order was modified and affirmed, one was affirmed with the S&S designation deleted, and one settlement was approved.
• Key point: The decision distinguishes ordinary negligence in an overlooked firehose configuration from unwarrantable failure where a known downed high-voltage cable remained unrepaired despite repeated examination entries and prior similar citations.

Full text (FMSHRC public release)

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 92-799
Petitioner : A.C. No. 46-01968-03982
v. :
: Docket No. WEVA 92-800
CONSOLIDATION COAL COMPANY : A.C. No. 46-01968-03983
Respondent :
: Docket No. WEVA 92-801
: A.C. No. 46-01968-03986
:
: Blacksville No. 2

                         DECISION

Appearances: Caryl Casden, Esq., U.S. Department of Labor,
Office of the Solicitor, Arlington, Virginia
for Petitioner;
Daniel Rogers, Esq., Consolidation
Coal Company, Pittsburgh, Pennsylvania,
for Respondent.

Before: Judge Feldman

 These single citation proceedings are before me as a result

of petitions for civil penalty filed by the Secretary of Labor
pursuant to Section 105(d) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq., (The Act). This matter was
heard in Morgantown, West Virginia on November 17, 1992, at which
time Richard McDorman testified on behalf of the Secretary and
Kenneth Ryan and David Lemley testified on behalf of the
respondent. At the hearing, the petitioner moved to settle
Docket No. WEVA 92-799 which involves a $20 proposed assessment
for Citation No. 3718465 for an alleged non-significant and
substantial violation of 30 C.F.R. § 75.517. This citation
alleges a damaged cable jacket on the trailing cable of a loading
machine. The proposed settlement involves the respondent's
agreement to pay the penalty as assessed. The petitioner's
motion for approval of settlement was granted at the hearing and
will be incorporated as part of this decision.

 The remaining dockets each involve 104(d)(2) orders for

violations designated as significant and substantial which
allegedly occurred as a result of the respondent's unwarrantable
failure. The parties' post-hearing briefs and their stipulations
concerning the pertinent jurisdictional issues and the relevant
civil penalty criteria found in Section 110(i) of the Act are of
record.

             PRELIMINARY FINDINGS OF FACT

Docket No. WEVA 92-800

 Richard McDorman has been a Mine Inspector for approximately

four years. He also has fifteen years experience in the mining
industry including employment as a mine foreman. His educational
background includes a Bachelor of Science Degree in Mine
Engineering from West Virginia University. (Tr. 22-23).

 On July 9, 1991, McDorman conducted a preinspection

conference at the Blacksville No. 2 Mine with the respondent's
management personnel. (Tr. 50). At this conference, the
importance of having conventional firefighting hose for each
working section was discussed. As an alternative to standard
1 1/2 inch diameter firehose, McDorman advised management that
the 1 1/4 inch diameter waterline attached to the continuous
miner could be used as a firehose. This could be accomplished if
the operator obtained a fitting adapter that would enable a 1 1/2
inch firefighting nozzle to be connected to the end of the 1 1/4
inch waterline. In accordance with McDorman's suggestion, the
respondent obtained the requisite fitting adapter and special
wrenches. (Tr. 51).

 On November 6, 1991, McDorman inspected the firefighting

equipment in the No. 6 South Section of the Blacksville No. 2
Mine. McDorman was accompanied by company representative David
Lemley and Bill Keechal, the miner's representative. The No. 6
South Section is a continuous miner section with seven entries.
In this section the water supply outlet for the fire suppression
system was located at the loading point.(Footnote 1) McDorman
noted that the firehose located near the loading point, for use
in the event of fire at a working face, was 500 feet in length.
(Tr. 29,31-32). To determine if this hose length was adequate,
McDorman used the foreman's section map to determine the
distances between the water supply at the loading point and the
working faces of each entry. McDorman ascertained that the
distance from the water supply to the No. 7 working face, the
entry in which the continuous mining machine was then located,
was 486 feet and within reach of the hose. (Tr. 30,72). However,
the 500 foot hose was inadequate for the No. 1 and No. 2 working
faces which were 660 and 580 feet from the water supply line,
respectively. (Tr. 33,34). Although McDorman did not witness
the continuous mining operations in the No. 1 and No. 2 entries,
McDorman and respondent witnesses Kenneth Ryan and David Lemley
testified that

1 The loading point is the location at which coal is brought in
shuttle cars from the working face and loaded onto a conveyor
belt for transportation outby. (Tr.76).

the water supply and section loading point location had not been
moved since the No. 1 and 2 entries were mined approximately one
week before. (Tr. 97,122,135-136).

 After determining that the conventional firehose could not

reach the No. 1 and No. 2 faces when they were being mined,
McDorman inspected the waterline at the continuous miner to
determine whether it could be adapted for use as a
firehose.(Footnote 2) (Tr. 38). As noted by McDorman at the
preinspection conference, such adaptation requires a standard 1
1/2 inch nozzle and a special fitting to plumb the nozzle to the
1 1/4 inch continuous miner waterline. Although a nozzle was
present in the section, it took approximately 45 minutes to
locate the necessary fitting. McDorman testified that three mine
personnel on the section, as well as Section Foreman Kenneth
Ryan, were all unfamiliar with the procedure for plumbing the
nozzle to the waterline at the continuous miner. (Tr.
46,48).(Footnote 3)

 As a result of his inspection, McDorman issued Order No.

3716493 for an alleged significant and substantial violation of
30 C.F.R. § 75.1100-2(a)(1). This mandatory safety standard
requires, in pertinent part, that "... waterlines shall extend to
each section loading point and be equipped with enough firehose
to reach each working face ...." (Footnote 4)

FACT OF OCCURRENCE

Docket No. WEVA 92-800

 The respondent, in its brief, argues that the Secretary

should not prevail because the No. 7 entry observed by McDorman
during continuous miner operations was less than 500 feet from
the water supply at the loading point. Alternatively, the
respondent asserts that the subject order is defective because it
concerns an alleged failure to train personnel in the use of the

2 This water hose is used to supply water to the continuous
mining machine for the purpose of dust suppression and for a fire
suppression system in the event the continuous miner catches
fire. (Tr.34). This water hose is not considered adequate as a
firehose because it has no nozzle to project water. (Tr. 35-
36,39).

3 The Mine Safety and Health Administration's Program Policy
Manual allows the waterline on the continuous miner to be used as
a firefighting hose if it is equipped with a standard
firefighting nozzle. (Tr. 35-36, Ex. P2).

4 Section 75.1100-2(a)(1) provides three exceptions to the
requirement of sufficient firehose for reaching each working face
which were not present and are not relevant in this case.
(Tr. 41).

special fitting hardware for the continuous miner water supply
line rather than a substantive violation of the cited mandatory
safety standard in Section 75.1100-2(a)(1).

 The essential facts are not in dispute. The 500 foot length

of hose in the No. 6 South Section could not reach the working
faces in the No. 1 and No. 2 entries. Although these were idle
faces at the time of McDorman's November 6, 1991, inspection,
these entries were mined the previous week. It is undisputed
that this hose could not reach these working faces at that
time.(Footnote 5) The testimony also reflects that the water
supply line to the continuous miner could not be adapted for
firefighting purposes. Although the No. 1 and No. 2 entry faces
were idle at the time of McDorman's inspection, his observations,
given the fact that the water supply had not been recently moved,
provided an adequate basis for his conclusion that a violation
had occurred.(Footnote 6) Therefore, the order citing a
violation of Section 75.1100-2(a)(1) was properly issued and will
be affirmed.

Docket No. WEVA 92-801

 At the hearing, the respondent stipulated to the occurrence

of the violation cited in Order No. 3314602 of the mandatory
safety standard contained in 30 C.F.R. § 75.807. Section 75.807
requires, in pertinent part, that all underground high-voltage
transmission cables must be installed or placed so as to afford
protection against damage, and that these cables must be guarded
where miners regularly work. In addition, these cables must be
securely anchored, and properly placed to prevent contact with
trolley wires.

 In view of the respondent's stipulation, the facts

surrounding the issuance of Order No. 3314602 can be briefly
summarized. On September 16, 1991, Mine Inspector McDorman
inspected the No. 6 North supply track of the respondent's
Blacksville No. 2 Mine. At approximately 3:15 a.m., McDorman
noticed a 7,200 volt high voltage cable lying on the mine floor

5 Respondent witnesses Ryan and Lemley testified about an
additional 500 foot firehose in a barrel approximately 1,200 feet
from the loading point in the No.6 South Main Haulage Section.
(Tr. 112-115, 131). As this hose was in the Main Haulage Section
rather than the No. 6 South Section, it was not available as a
firehose for the No. 1 and No. 2 working face entries. In
addition, McDorman testified that no one told him about this
additional hose at the time of his inspection. (Tr. 137-138).

6 A citation need not be based on the issuing inspector's direct
observations if there is a basis for concluding that the cited
violation has occurred. See Emerald Mines Company v. FMSHRC, 863
F.2d 51, 63 (D.C. Cir. 1988).

for a distance of approximately 250 feet, 15 feet inby block 30.
(Tr. 146,151,230). One block further inby McDorman noticed an
additional section of high-voltage cable on the floor for a
distance of 25 feet. The cable was lying only three to
five feet from one side of the track. (Tr. 146). In another area
of the mine, near the Orndorff shaft, McDorman observed high-
voltage cable contacting the DC feeder wire. (Tr. 151). He
noticed that there were grooves in this cable where it had been
rubbed by the trolley feeder wire. (Tr. 147).

 The subject high-voltage cable was described as 2 1/2 inches

in diameter surrounded by an exterior rubber jacket insulation.
(Tr. 148,158,259). This cable is shielded with a metal sheathing
around the wires embedded inside the cable. The purpose of this
shielding is to contain a high-voltage charge inside the cable
and to trip a circuit breaker in the event that the cable is
damaged. (Tr. 192-193). The high-voltage cable is normally hung
from the mine roof with spads and wire placed approximately ten
to twenty feet apart. (Tr. 190-191).

 With regard to the fallen cable, McDorman expressed his

concern for mine personnel riding in a mantrip or jeep which
could derail and damage the cable. In such an event, the
occupants could sustain shock, electrical burn or electrocution.
McDorman also testified that the cable observed rubbing against
the trolley feeder wire was a potential ignition source if the
insulation was penetrated. (Tr. 155,178-179).

            FURTHER FINDINGS AND CONCLUSIONS

Significant and Substantial

 The next issues for determination are whether the firehose

and high-voltage cable violations cited by McDorman were properly
designated as significant and substantial. The Commission has
held that a violation is "significant and substantial" if, based
on the particular facts surrounding that violation, there exists
"a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature."
Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April
1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission further explained:

 In order to establish that a violation of a mandatory
 safety standard is significant and substantial under
 National Gypsum, the Secretary of Labor must prove: (1)
 the underlying violation of a mandatory safety
 standard; (2) a discrete safety hazard -- that is, a
 measure of danger to safety -- contributed to by the
 violation; (3) a reasonable likelihood that the hazard

   contributed to will result in an injury; and (4) a
   reasonable likelihood that the injury in question will be of
   a reasonably serious nature.

Docket No. WEVA 92-800

 Applying the Mathies test, it is clear that the first

element is satisfied as a result of the respondent's failure to
provide adequate firehose as required by Section 75.1100-2(a)(1).
The second and third elements in Mathies must be viewed in the
context of safety standards that are intended to prevent or
minimize injury in the event of an emergency. Violations of such
standards create discrete safety hazards that are fundamental
contributing causes to injuries although they may not be the
proximate cause of such injuries. For example, the failure to
have adequate escapeways in a mine would be a fundamental cause
of serious or fatal injuries should a fire occur although it may
not be considered the proximate cause. Likewise, the failure to
have an adequate length of firehose that will reach the working
face is the functional equivalent of having no firehose at all.
This creates a discrete and continuing safety hazard which
impedes mine personnel from defending against the persistent
danger of a fire in an underground mine.

 It is inconceivable, given the remedial nature of the Mine

Act, particularly in this case involving a mine meeting the
criteria of section 103(i) of the Act, that Congress contemplated
that the inability to fight fire could be construed as a non-
significant and substantial hazard. Thus, I conclude that the
absence of firehose that could reach the working faces is a
violation that results in a discrete safety hazard, and, it is
reasonably likely that the continued existence of this hazard
will materially contribute to serious or fatal injuries when
viewed in the context of continued mining operations. (Footnote
7)

7 This conclusion is consistent with the Court of Appeals'
discussion of respirable dust exposure, wherein, it recognized
that a presumption that a violation is significant and
substantial is consistent with Congressional intent where the
violation exposes miners to the cumulative effects of a
fundamental hazard. See Consolidation Coal v. FMSHRC, 824 F.2d
1011, 1085-1086 (D.C. Cir. 1987). I construe the continuing
inability to fight fire, which has not been adequately rebutted
by the respondent, as a fundamental hazard constituting a
significant and substantial violation.

Therefore, the violation was properly characterized as
significant and substantial without addressing the issue of the
likelihood of fire.(Footnote 8)

Docket No. WEVA 92-801

 As noted above, a significant and substantial violation

requires a finding of a reasonable likelihood that the hazard
contributed to by the violation will result in an injury or
illness of a serious nature. In this case, the respondent has
conceded that the high-voltage cable exposed on the mine floor
next to the supply track and the cable exposed to the trolley
feeder wire constitute violations of Section 75.807. It is clear
that the exposure of this high-voltage cable to possible
derailment and to the moving trolley feeder wire creates a
discrete safety hazard associated with the possibility of
electric shock injury or fire.

 However, I am not convinced that the evidence of record

demonstrates a reasonable likelihood that this hazard will result
in serious injury. In this regard, the risk of injury is
diminished by the number of events which must occur.
Specifically, there must be (1) a derailment of a vehicle
carrying mine personnel; (2) the derailment must occur in an area
where the 275 feet of cable is exposed in this mine which
contains approximately 15 miles of track (tr.242); (3) the
vehicle must derail on the side of the track where the cable is
exposed (tr.236); (4) the derailed vehicle must come into
contact with the cable and penetrate the rubber jacket insulation;
(5) the metal shielding must fail to trip the circuit breaker and
prevent serious injury; and (6) the disconnecting devices
intended to immediately de-energize the voltage cable in the
event of damage must also fail (tr.154-156). Given this series
of events which must occur before mine personnel are exposed to
the risk of serious injury, I am unable to conclude that the
cable in proximity to the supply track created a reasonable
likelihood of such injury. With regard to the cable exposed to
the trolley feeder wire, McDorman admitted that this condition,
alone, should not be viewed as a significant and substantial
violation. (Tr. 194). Consequently, I am removing the
significant and substantial designation from Order No. 3314602.

8 While I am not specifically addressing this issue, I wish to
note that the excessive quantities of methane liberated by this
Section 103(i) mine, and, the potential ignition sources
described by McDorman, provide a basis for concluding that it is
reasonably likely that fire and resultant serious injuries could
occur. (Tr. 101-104).

Unwarrantable Failure

 The remaining issue concerns whether the subject violations

are attributable to the respondent's unwarrantable failure. The
Commission has noted that unwarrantable failure is "aggravated
conduct, constituting more than ordinary negligence, by a mine
operator in relation to a violation of the Act." Emery Mining
Corporation, 9 FMSHRC 1977 (December 1987); Youghiogheny & Ohio
Coal Company, supra; Secretary of Labor v. Rushton Mining
Company, 10 FMSHRC 249 (March 1988). The Commission has held
that "unwarrantable failure" requires conduct that is not
justifiable or behavior that is inexcusable. Such conduct is
more than ordinary negligence characterized by "inadvertence,"
"thoughtlessness" and "inattention". Emery Mining Corporation,
9 FMSHRC at 2001, 2010.

Docket No. WEVA 92-800

 McDorman's opinion that the inadequate firehose is a result

of the respondent's unwarrantable failure is undermined by
McDorman's own testimony. Significantly, in response to
McDorman's suggestion at the preinspection conference, the
respondent did obtain the fittings and the special wrench
necessary to convert the waterline on the continuous miner to a
firehose. The fact that this hardware could not be readily
located contributes to the fact of the violation. However, as
the respondent took the trouble to acquire this hardware, its
unknown whereabouts is more appropriately attributable to
ordinary negligence manifested by inadvertence rather than
aggravated conduct requiring a conscious disregard or
indifference to the risk associated with inadequate firefighting
equipment. With regard to the inadequate firehose length,
McDorman's testimony that he had to refer to a section map to
determine the distances to the working faces reflects that these
distances were not obvious and these distances were subject to
change. Therefore, distances greater than 500 feet could be
overlooked as a result of ordinary negligence. Consequently, I
am modifying McDorman's 104(d)(2) Order No. 3314602 to a Section
104(a) citation.

Docket No. WEVA 92-801

 The record supports an unwarrantable failure finding with

respect to the respondent's violation of Section 75.807. As a
threshold matter, the 275 feet of fallen high-voltage cable was
clearly visible from the jeeps and mantrips traversing the 6
North supply track. (Tr. 183-184,266). Moreover, this condition
was well known to management in that it was repeatedly noted in
the preshift examination book prior to the afternoon shift
starting at 4:00 p.m., on September 15, 1991, and prior to the
midnight shift on September 16, 1991. In fact, David Lemley, the
respondent's safety escort, testified that the shift foreman told

him at the beginning of the midnight shift that he had sent
wiremen to rehang the cable. (Tr. 243-244). However, the cable
was not reinstalled at 3:15 a.m. when McDorman issued Order No.
3314602 to Lemley. Thus, the condition was not corrected even
though it had been noted in the preshift examination book
approximately 12 hours before.(Footnote 9) Finally, at the
hearing the respondent stipulated to the fact that it received
seven previous citations for violation of the same mandatory
safety standard pertaining to high-voltage cable during the
proceeding 24 month period. (Tr. 171,184,185).

 The failure of the respondent to correct the condition

despite its repeated reference in the preshift examination book,
particularly when viewed in the context of its history of similar
violations, evidences a conscious disregard of the risk
associated with the downed cable. Although I have concluded that
this violation was not significant and substantial in nature, the
condition posed a risk of serious electric shock injury or
electrocution which warranted the respondent's immediate
attention. Thus, I conclude that the petitioner has met its
burden of establishing an unwarrantable failure on the part of
the respondent.

                  ULTIMATE CONCLUSIONS

 As noted above, I am removing the unwarrantable failure

component of Order No. 3716493 in Docket No. WEVA 92-800.
Consequently, this order is modified to a 104(a) citation. The
gravity of this violation is serious and the underlying
negligence associated with this violation is moderate. In view
of my findings and the statutory civil penalty criteria contained
in Section 110(i) of the Act, I am assessing a penalty of $750.

 With respect to Order No. 3314602 in Docket No. WEVA 92-801,

I also consider the gravity associated with this violation to be
serious given the risk of electrocution. However, I have removed
the significant and substantial designation. I find that the
failure to correct the condition, despite its repeated entry in
the examination log and the history of similar violations,
dictate against a substantial reduction in the proposed penalty.
Considering the criteria in Section 110(i) of the Act, I am
imposing a penalty of $900 for this violation.

9 At trial, the respondent claimed that it was prevented from
rehanging the high-voltage cable because it was required to abate
another violation cited by McDorman for an unguarded trolley
switch. I find Lemley's testimony in this regard to be lacking
in credibility. (Tr. 250-256). Moreover, this testimony was
rebutted by McDorman. (Tr. 203-206).

 Finally, I am incorporating the $20 settlement for Citation

No. 3718465 in Docket No. WEVA 92-799. My decision in this
regard is consistent with the statutory criteria and is supported
by the Secretary's presentation in support of the settlement
motion at trial.

                        ORDER

 Based upon the above findings of fact and conclusions of

law, it IS ORDERED that:

   (1)   Order No. 3716493 is modified to a citation issued
         under Section 104(a) of the Act and IS AFFIRMED as
         modified.

   (2)   Order No. 3314602 IS AFFIRMED and the
         significant and substantial designation for
         the underlying violation IS DELETED.

   (3)   The proposed settlement agreement concerning
         Citation No. 3718465 IS APPROVED.

   (4)   The respondent SHALL PAY a total civil
         penalty of $1,670 within 30 days of the date
         of this decision. Upon receipt of payment,
         these matters ARE DISMISSED.

                               Jerold Feldman
                               Administrative Law Judge

Distribution:
Caryl L. Casden, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, Virginia
22203 (Certified Mail)

Daniel E. Rogers, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)

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