Windsor Coal Company

Plain-English summary

Windsor Coal Company operated the Windsor Mine, where MSHA found extensive combustible coal dust and coal spillage along a belt entry. On remand from the Commission, Judge Avram Weisberger found that the accumulations had existed for at least one shift, that Windsor had notice its compliance efforts needed to improve, and that the violation resulted from aggravated conduct amounting to unwarrantable failure. The judge retained the earlier findings on the penalty factors and assessed a $2,500 civil penalty for the violation of 30 C.F.R. § 75.400.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.400
• Outcome: The unwarrantable-failure finding was made on remand, and a $2,500 civil penalty was assessed.
• Key point: Extensive coal-dust accumulations, a history of 98 violations in two years, and incomplete abatement efforts supported an unwarrantable-failure finding.

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

                                     March 24, 2000

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 97-95
Petitioner : A.C. No. 46-01286-03985
v. :
: Windsor Mine
WINDSOR COAL COMPANY, :
Respondent :

                               DECISION ON REMAND

Before: Judge Weisberger

    This civil penalty proceeding is before me based upon a decision by the Commission in this

matter, 21 FMSHRC 997 (September 19, 1999), which vacated the decision of Judge George A.
Koutras1 (19 FMSHRC 1694 (October 27, 1997)) that the violation by Windsor Coal Company
(Windsor) of 30 C.F.R. § 75.400 was not the result of its unwarrantable failure, and remanded
this proceeding for further consideration.2 Subsequent to the issuance of the Commission’s
decision, the undersigned conferred with counsel for both parties in a telephone conference call
and suggested that the parties attempt to negotiate to settle the issues raised by the Commission’s
remand. The parties subsequently indicated that they were unable to reach a settlement, and
counsel were allowed until January 28, 2000 to file briefs. Pursuant to the parties' request the
time to file briefs was extended, and the parties filed their briefs on March 6, 2000.

    In its remand, the Commission, directed a reconsideration of the issue of unwarrantable

failure. Compliance with the Commission's decision requires analysis of the circumstantial
evidence regarding the duration of the cited conditions, along with an analysis of the evidence of
record regarding notice of the need for greater compliance efforts, efforts to eliminate the
violative conditions, and the danger and obviousness of the cited accumulations. (21 FMSHRC
supra, at 1004, 1006-1007).

   1. Duration

 On September 19, 1996, MSHA inspector Lyle Tipton inspected the No. 10 belt. The

Commission, 21 FMSHRC supra at 998, set forth Tipton’s observations of the violative

   1
    Judge Koutras is presently retired.
   2
    This case was subsequently assigned to me by former Chief Judge Paul Merlin.

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conditions, and the description of the violative conditions as set forth in his order as follows:

   Tipton observed an `accumulation of combustible material consisting of float coal
   dust, ... loose coal spillage, spillage of fine dry loose coal and coal dust in contact
   with the conveyor belt and bottom roller structure[.]' Id. at 1697. Tipton’s order
   states that `the total distance of this 6,000 foot entry containing float coal dust was
   3,600 feet' and that spillage of `coal and fine dry loose coal was present under the
   majority of the bottom belt and in contact with the bottom rollers.' Id. The order
   indicated that Inspector Tipton observed accumulations of float coal dust from the
   belt drive (227 crosscut) to the 260 crosscut; accumulations of loose coal beneath
   the majority of the bottom belt and in contact with the bottom rollers; spillage in
   contact with rollers and visual signs that a roller had heated up at the 254 stopping;
   an 80-foot long, 1-foot wide, and 1-foot deep spillage at the 248 stopping; a 50-
   foot long, 1-foot wide, and 1-foot deep spillage at the 268 stopping; a 20-foot
   long, 3-foot wide, and 2-foot deep spillage at the 275 stopping; and a 10-foot
   long, 3-foot wide, and 2-foot deep spillage at the 276 stopping. Ex. P-3 at 2. He
   concluded that the cited conditions `for the most part were being carried as
   reported in the mine record books and would have taken days to accumulate to the
   degree described in this action.' 19 FMSHRC at 1698.

    Generally, the testimony of miners Cox and Welch corroborated Tipton’s opinion that the

accumulations developed over a period of several shifts. On the other hand, Porter indicated that
in his preshift examination of September 18, he had not observed any hazardous conditions, and
that specifically the conditions noted in Tipton’s order were not present in his preshift
examination made on September 18. Also, there is no specific reference in Windsor's pre-shift
and on-shift reports prior to September 19, relating to the violative conditions described in
Tipton’s order at the following stoppings: 248, 254, 268 and 275.

     However, most importantly, as noted by the Commission, (21 FMSHRC supra at 1001)

the September 19 preshift report showed that the area between crosscuts 227 and 253 needed
cleaning. Also, on September 19, the midnight pre-shift report listed accumulations on both sides
of stopping 276, but the midnight on-shift report showed that only the right side of the belt was
cleaned i.e., “the left side of stopping 276 still needed cleaning by the time the day preshift report
was written” (21 FMSHRC supra at 1002) I thus find that the preponderance of the evidence
establishes that float cut accumulations from crosscut 227 to 260, and accumulations along the
left side of the belt at the 276 stopping had existed for at least one shift prior to Tipton’s
inspection.

   2. Notice of the Need for Greater Compliance Efforts.

   Windsor, in asserting that it lacked notice of a greater need for compliance, argues that

annotations in the pre-shift book reflecting that coal had accumulated and some of the
accumulations remained for several shifts without abatement, does not demonstrate that Windsor
was on notice. In this connection, Windsor argues that none of the specific conditions set forth by

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the Commission 21 FMSHRC supra at 1004, were cited by Tipton, and that many of the
conditions that were recorded do not amount to violative conditions. Also, Windsor argues that
its two-year history of Section 75.400 violations fails to show that it was on notice of a greater
need for compliance. In this connection, Windsor refers to the record as establishing that only
two-violations, both issued in 1995, were viewed by the Secretary to be the result of indifference
or serious lack of reasonable care, that these violations were spread out over 14 miles of belt
haulage, that in the three month period preceding the issuance of the order at issue Windsor had
received only three section 75.400 violations, and that during the inspection at issue, the 14 mile
haulage was inspected, and only one violation was issued.

    However, the record establishes that float coal dust existed along 3,600 feet of the 6,000

foot belt in question. Further, 15 to 20 miners worked over a two-shift period to correct the
violative accumulations. Hence, I find that, when cited by Tipton, the accumulations were
extensive. Considering the extent of the accumulations as well as the history of 98 section 75.400
citations in a two-year period which the Commission considered to be a “high number of
violations during this time period” (21 FMSHRC supra at 1004, I conclude that, within the
framework of evidence in this case, Windsor was on notice that greater efforts were necessary for
compliance with Section 75.400, supra.

   3. Efforts to Eliminate the Violative Conditions.

   The Secretary argues, in essence, that Windsor’s efforts to correct the violative conditions

were incomplete and ineffective. In this connection the Secretary argues that not withstanding
Windsor’s efforts to clean up the violative conditions, it took nearly 30 employees working over a
period of two shifts to abate the violation. On the other hand, I am cognizant of the
Commission’s findings, that prior to the order's issuance, “....the record contains evidence of
Windsor’s abatement efforts on the number 10 belt and elsewhere in the mine... .” 21 FMSHRC
supra at 1005). Further, on the September 18, afternoon shift six miners were assigned to work
on the No. 10 belt. The on-shift report indicated that these miners “corrected” conditions at the
head to drive, 269 to 272, 238 to 271. The on-shift report for the midnight shift September 19,
1996 indicated that the following areas were cleaned: 282 to 260, 278 and 276. The work
assignment record for September 19, 1996 indicates the completion of the following: “cleaning
and dusting 265 to 260 crosscut, cleaning 272 to 278, changing 23 rollers, changing bad stands
262 to 263".

   4. Danger and obviousness.

     Judge Koutras, in addition to finding the existence of a section 75.400 violation, also

found that the violation was significant and substantial. He specifically found that “...the presence
of float coal dust on a running belt with potential ignitions sources such as hot defective rollers,
rollers turning in loose dry coal accumulations, and a belt dragging and/or in contact with loose
dry accumulations and/or spillage presented serious potential fire and explosive hazards” (19
FMSHRC at supra 1715). No appeal was taken regarding Judge Koutras’ finding of significant
and substantial. Accordingly his conclusion in this regard as well as the underlying facts he cited

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in support of his conclusion becomes the law of the case. However, there is no evidence in the
record that Windsor either knew or reasonably should have known of the specific defective hot
rollers, and rollers turning in loose dry coal accumulations cited by the inspector.

    Within the framework of the above discussed factors, I find that it has been established

that the violation herein was as a result of more than ordinary negligence, reached the level of
aggravated conduct, and hence constituted an unwarrantable failure (See: Emery Mining
Corporation 9 FMSHRC 1997 (Dec 1997)).

   5. Penalty

      Judge Koutras, in his decision, 19 FMSHRC supra at 1728 made findings, pursuant to

section 110(i) of the Act, regarding the size of Windsor’s business and the effect of a penalty on
its ability to continue in business, its history of its prior violations, good faith abatement, and
gravity. None of these findings have been appealed, and they become the law of the case.
Regarding negligence, as discussed above (infra 4), I find that the level of negligence was more
than ordinary and reached the level of aggravated conduct.

   Taking into account all the above factors, I find that a penalty of $2,500.00 is appropriate.

                                          ORDER

   It is ORDERED that within 30 days of this decision, Windosr shall pay a total civil

penalty of $2,500.

                                          Avram Weisberger
                                          Administrative Law Judge

Distribution: (Certified Mail)

Howard Berliner, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Room 400, Arlington, VA 22203

David A. Laing, Esq., Porter, Wright, Morris & Arthur, 41 South High Street, Columbus, OH
43215

nt

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