Consolidation Coal Company

Plain-English summary

Consolidation Coal Company faced five proposed penalties involving conditions at the Humphrey No. 7 and Osage No. 3 Mines. The parties proposed a settlement, and the Secretary agreed that the evidence did not support the inspectors' unwarrantable-failure findings. The settlement modified four section 104(d)(2) orders to section 104(a) non-S&S citations and modified one section 104(d)(2) S&S citation to a section 104(a) S&S citation, all with moderate negligence findings. The judge approved the settlement and ordered payment of the reduced amounts totaling $1,475, after which the matters would be dismissed.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.360(f); 30 C.F.R. § 75.360(g); 30 C.F.R. § 77.502
• Outcome: Five enforcement actions were modified under settlement, with penalties reduced to $220, $220, $220, $595, and $220.
• Key point: The judge approved reduced penalties and modified enforcement classifications after the Secretary reevaluated the evidence and agreed that unwarrantable failure was not supported.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. CONSOLIDATION COAL CO.
DDATE:
19941020
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 PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 94-176
Petitioner : A.C. No. 46-01453-04113
v. :
: Docket No. WEVA 94-194
CONSOLIDATION COAL COMPANY, : A.C. No. 46-01453-04114
Respondent :
: Docket No. WEVA 94-225
: A.C. No. 46-01453-04119
:
: Humphrey No. 7 Mine
:
: Docket No. WEVA 94-195
: A.C. No. 46-01455-04013
:
: Osage No. 3 Mine

                             DECISIONS

Appearances: Robert S. Wilson, Esq., Elizabeth Lopes, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for the Petitioner;
Elizabeth S. Chamberlin, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Respondent.

Before: Judge Koutras

                Statement of the Proceedings

 These proceedings concern civil penalty proposals 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(c), seeking civil penalty assessments for
five (5), alleged violations of certain mandatory safety
standards found in Parts 75 and 77, Title 30, Code of Federal
Regulations. Hearings were held in Morgantown, West Virginia,
and the parties appeared and participated fully therein. The
parties informed me that they proposed to settle these matters,
and arguments in support of their proposals were made on the
record.

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Issues

 The issues presented in these proceedings include the fact

of violation, whether one of the violations was "significant and
substantial", whether the violations were the result of the
respondent's "unwarrantable failure" to comply with the cited
safety standards, and the appropriate civil penalty to be made
for the violations.

         Applicable Statutory and Regulatory Provisions

    1.    The Federal Mine Safety and Health Act of
          1977; 30 U.S.C.   301 et seq.

    2.    Section 110(a) and 110(i) of the Act.

    3.    Commission Rules, 29 C.F.R.   2700.1 et seq.


                           Discussion

WEVA 94-176

 Section 104(d)(2) non-"S&S" Order No. 3305717, September 8,

1993, cites a violation of 30 C.F.R. 75.360(f), and the cited
condition or practice states as follows:

    There is not enough initials, date, and time in the
    6 nw construction area to show that the entire area has
    been examined. There is one set at I.D.J. at the track
    and one at the Battery Changer. All work is being done
    inby this area. The miners working in this area are
    Tim Tuttle and Dick Keryneski. The preshift
    examination was done by Frank Sloevensky between
    5:00 a.m. and 7:50 a.m. on 9-8-93.

 Section 104(d)(2) non-"S&S" Order No. 3305720, September 9,

1993, cites a violation of 30 C.F.R. 77.502, and the cited
condition or practice states as follows:

    The last examination on the outside shop and supply
    house was done on 7-12-93. All the equipment except
    the compressors and welders are still energized. The
    welders and compressors are not tagged out of service.

WEVA 94-194

 Section 104(d)(2) non-"S&S" Order No. 3305555, September 8,

1993, cites a violation of 30 C.F.R. 75.360(g), and the cited
condition or practice states as follows:

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According to the preshift examiner's book for the track
haulage a hazardous condition has existed from 0 block
to 8 east. This condition was first recorded on
8/17/93, by the day shift and is still recorded in the
preshift examiner's book on 9-8-93 and no immediate
action has been taken by the mine foreman to correct
this condition. The condition recorded in the preshift
examiner's book is spillage in the walkway.

    These records are signed daily by the mine foreman and
    certified foremen are entering the condition in the
    preshift examiner's book.

WEVA 94-195

 Section 104(d)(2) "S&S" citation No. 3118845, June 9, 1993,

cites a violation of 30 C.F.R. 77.502, and the cited condition
or practice states as follows:

    Electric equipment is not being frequently examined and
    properly maintained by a qualified person at Osage Shop
    area. Several electrical violations have been issued
    this day for hazards that have existed for some time
    and not corrected, as well as items not properly
    maintained. Citation 3118838, 6-9-93, exposed
    energized parts. Citation 3118839 frayed electrical
    card that has existed for several weeks. Citation
    No. 318839, 6-9-93, frayed electrical cord that has
    existed for several weeks. Citation Nos. 318840 and
    318841 on 6-9-93, two hot plates without frame grounds.
    Although not being used have not been inspected in
    several months. Citation No. 3118842, 6-9-93, no frame
    ground on the pressure switch for the compressor that
    has existed for several months. Citation 3118844,
    switch cover plate separated. These conditions,
    cumulatively, present hazards that constitute a
    reasonably likelihood of a lost time electrical injury.

    The most recent electrical inspection was on 6-3-93.
    There are four violations that, according to workers,
    have existed for several weeks, and the monthly
    electrical examiner, acting as an agent of the
    operator, should have found and corrected. All of
    these violations existed in one shop area that is
    approximately 50 ft. x 50 ft, four of which, according
    to workers existed prior to 6-3-93, and therefor
    constitute an inadequate electrical examination.
    Additionally, Citation 3118847, 6-9-93, is being issued
    for electrical hazards on a welder, exposed energized
    parts not guarded, and citation 3118848, 6-9-93, is
    being issued for exposed energized parts on a cable
    where isolation had broken down due to overcurrent.

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WEVA 94-225

 Section 104(d)(2) non-"S&S" Order No. 3305766, September 21,

1993, cites a violation of 30 C.F.R. 75.360(g), and the cited
condition or practice states as follows:

 The preshift of the 7 North empty and load track
 indicates that a hazardous condition exists and action
 has not been taken in a timely manner to correct the
 condition. Starting 7-21-93, spillage was reported and
 it has been in the record book each shift, with the
 exception of 8-25-93 and 8-26-93 to date. This
 condition was dropped these two days for no reason.
 The last work recorded in this area was 8-18-93, on the
 preshift conducted between 9:00 p.m. and 11:30 p.m.
 The record book was countersigned by the mine foreman.

                Findings and Conclusions

 Petitioner's counsel presented arguments on the record in

support of the proposed settlement of the violations. Counsel
stated that the Humphrey No. 7 mine was on strike at the time
violations were issued, and due to the absence of any hazards to
any miners, all the violations noted at that mine "were not
deemed to be "significant and substantial", (S&S).

 Petitioner's counsel agreed that all of the cited conditions

were timely abated in good faith by the respondent, and that the
respondent's history of prior assessments, as reflected in the
pleadings, do not warrant additional increases in the penalty
assessments made in these cases.

 Petitioner's counsel asserted that the facts and evidence as

now known to him will not support any of the "unwarrantable
failure" determinations made by the inspectors who issued the
violations, and that the evidence does not establish that the
violations resulted from any "aggravated conduct" on the part
of the respondent. Under the circumstances, counsel stated
that MSHA has agreed to reclassify and modify all of the
section 104(d)(2) orders and citation to section 104(a)
citations. In addition, MSHA agreed to modify all of the "high"
negligence findings to "moderate" negligence.

 As a result of MSHA's reevaluation of these matters, and the

settlements agreed to by the parties, petitioner's counsel stated
that the initial proposed civil penalty assessments, which were
"specially assessed" as a result of the issuance of the
section 104(d)(2) orders and citation, have been reduced and
assessed according to MSHA's Part 100 regulations, and the newly
proposed settlement assessments reflect the modified and amended

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section 104(a) citations, with moderate negligence findings, as
well as the six statutory civil penalty criteria found in
section 110(i) of the Act. The initial assessments and proposed
settlement amounts are as follows:

Docket No. WEVA 94-176

                     30 C.F.R.

Order No. Date Section Assessment Settlement

3305717 9/8/93 75.360(f) $1,500 $220
3305720 9/9/93 77.502 $1,500 $220

Docket No. WEVA 94-194

                     30 C.F.R.

Order No. Date Section Assessment Settlement

3305555 9/8/93 75.360(g) $2,000 $220

Docket No. WEVA 94-195

                     30 C.F.R

Citation No. Date Section Assessment Settlement

3118845 6/9/93 77.502 $4,000 $595

Docket No. WEVA 94-225

                     30 C.F.R.

Order No. Date Section Assessment Settlement

3305766 9/21/93 75.360(g) $1,500 $220

 After careful review of all of the pleadings and arguments

presented by the parties in these proceedings, including the six
statutory penalty assessment criteria found in section 110(i) of
the Act, I rendered bench decisions approving the settlement
dispositions pursuant to Commission Rule 31, 29 C.F.R. 2700.31.
My bench decisions are herein reaffirmed and I conclude and find
that they are reasonable and in the public interest.

                           ORDER

 In view of the foregoing, IT IS ORDERED as follows:

 1. Section 104(d)(2) non-"S&S" Order Nos. 3305717, 3305720,
 3305555, and 3305766 ARE MODIFIED to Section 104(a) non-
 "S&S" citations, with moderate negligence findings, and as
 modified, they are affirmed.

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2. Section 104(d)(2) "S&S" Citation No. 3118845, IS
MODIFIED to a section 104(a) "S&S" citation with a moderate
negligence finding, and as modified, it is affirmed.

 The respondent IS FURTHER ORDERED to pay civil penalites in

the settlement amounts shown above in satisfaction of the
violations in question. Payment is to be made to MSHA within
thirty (30) days of the date of these decisions and order, and
upon receipt of payment, these matters are dismissed.

                               George A. Koutras
                               Administrative Law Judge

Distribution:

Robert S. Wilson, Esq., Elizabeth Lopes, Esq., Office of
the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd.,
Suite 516, Arlington, VA 22203 (Certified Mail)

Elizabeth S. Chamberlin, Esq., Consol Inc., 1800 Washington
Road, Pittsburgh, PA 15241-1421 (Certified Mail)

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