Consolidation Coal Company

Plain-English summary

Consolidation Coal operated the Robinson Run No. 95 underground coal mine in West Virginia. MSHA found that the mine lacked the required supply of supplementary roof-support materials and issued a section 104(d)(2) order under 30 C.F.R. § 75.214. After the Commission found the violation resulted from unwarrantable failure and remanded for a new penalty, Judge Jacqueline R. Bulluck assessed the statutory penalty factors and set the penalty at $4,000. The order was affirmed as issued, and the judge treated the operator's large size, serious gravity, high negligence, and good-faith abatement in setting the penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.214
• Outcome: Order No. 4888994 was affirmed as issued, and a $4,000 penalty was assessed.
• Subsequent review: The Commission decision in weva-98-111-commission had already remanded the penalty issue for this order.
• Key point: On remand, the judge reassessed the penalty after the Commission determined that the violation involved unwarrantable failure.

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

                                        May 3, 2000

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 98-111
Petitioner : A. C. No. 46-01318-04348
v. :
: Robinson Run No. 95
CONSOLIDATION COAL COMPANY, :
Respondent : Mine:

                           DECISION ON REMAND

Before: Judge Bulluck

    This civil penalty proceeding involves a violation of 30 C.F.R. § 75.214, a mandatory

safety standard for underground coal mines, requiring that, “(a) A supply of supplementary roof
support materials and the tools and equipment necessary to install the materials shall be available
at a readily accessible location on each working section or within four crosscuts of each working
section,” and “(b) The quantity of support materials and tools and equipment maintained available
in accordance with this section shall be sufficient to support the roof if adverse roof conditions are
encountered, or in the event of an accident involving a fall.” By decision issued June 9, 1999, I
concluded that the Secretary had proven a “significant and substantial” violation, not the result of
Consolidation Coal Company’s (“Consol”) unwarrantable failure to comply with the standard,
modified the 104(d)(2) order to a 104(a) citation, and assessed a $2,000.00 penalty. 21
FMSHRC 612 (June 1999) (ALJ). The Secretary appealed my unwarrantable failure
determination.

     The Commission concluded that the violation was the result of Consol’s unwarrantable

failure, reversed my determination, and remanded the proceeding for my assessment of an
appropriate penalty. Consolidation Coal Company, 22 FMSHRC 328 (March 2000).

                           FACTUAL BACKGROUND

   In its decision, the Commission summarized the facts as follows:

          Consol owns and operates Robinson Run No. 95, an underground coal
   mine in West Virginia. On January 15, 1998, MSHA inspector Charles Thomas

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was conducting a Triple-A inspection at the mine. While in the 12-D section of the
mine to check on safety equipment, Thomas noticed the absence of any centrally
located supplementary roof support, including posts, caps, wedges, and a saw. As
a result, Thomas spoke with Consol day foreman Kevin Carter. Thomas asked
Carter about the location of the supplementary roof support and number of roof
posts. According to Carter, Thomas told him to “count your posts.” Carter told
Thomas that he would “take care of it.” As Thomas left the mine, accompanied by
miner safety representative Dave McCullough, Thomas also spoke with Consol
safety director Robert Church and told him that attention was needed to address
supplementary roof support in the 12-D section.

Subsequently, during his shift on January 15, Carter counted the posts and caps
along the supply track and found that there were only 11. Carter then spoke with
mine foreman Tom Harrison and requested additional posts and other roof support
materials. Around 3:00 or 4:00 that afternoon, Harrison ordered the posts from
the supply yard, which is located about 10 miles from the 12-D section.

     MSHA inspector Thomas returned to the mine to continue his Triple-A

inspection on January 17 during the midnight shift, 2 days and four shifts after he
left the mine on January 15. Consol foreman Frank Slovinsky was substituting for
the regular foreman of section 12-D. Thomas asked Slovinsky where the
emergency roof supports were located. Slovinsky responded that they should be in
the tool car. When the posts could not be located there, the two searched along
the supply track outby four crosscuts of the section. They eventually located 11
posts and some cap pieces and wedges, but never found a saw.

       Inspector Thomas then issued Order No. 4888994 charging Consol with

a violation of 30 C.F.R. § 75.214 for failing to maintain a supply of supplementary
roof support material at a readily accessible location within four crosscuts of the
12-D section.
*

   Consol’s roof control plan for the Robinson Run mine further specified that

“[t]he quantity of supplementary roof support material required by [section]
75.214(b) shall consist of a minimum of twenty (20) posts of proper length with
sufficient cap pieces and wedges.”

        The inspector designated the violation as significant and substantial

(S&S) and alleged that it was the result of Consol’s unwarrantable failure. The
violation was abated between 3:30 and 5:00 a.m. the following morning when
miners were able to locate additional posts along the supply and main tracks, and
stored 20 posts, along with wedges, cap pieces, and a saw, in the No. 11 crosscut.

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Id. at 328 (citations and footnote omitted).

                                   PENALTY

    In accordance with the Commission’s decision, I reassess the six penalty criteria set forth

in section 110(i) of the Act, 30 U.S.C. § 820(j), in light of the elevated degree of negligence
ascribed to Consol. Consol is a large operator, with an overall history of violations that is not an
aggravating factor in assessing an appropriate penalty, and the $5,000.00 penalty proposed by the
Secretary will not affect its ability to continue in business. The gravity of the violation is serious
since, as previously stated in the original decision, time is of the essence in providing safe passage
for rescue of miners who have been injured by unforseen adverse roof conditions. In light of the
Commissions’s conclusion that “[f]ailing to follow up on the inspector’s admonition in such a
way as to insure that the request for required roof control supplies did not get lost in the
company’s own bureaucracy is inexcusable,” I ascribe high negligence to Consol. Id. at 333. I
also take into account the Commission’s finding that “Consol officials made some effort to
address the violation,” albeit inadequate, and consider that effort to be a mitigating factor. Id. at
332.

   Accordingly, having considered Consol’s large size, insignificant history of violations,

seriousness of the violation, high degree of negligence, good faith abatement and measures that it
took for compliance as a mitigating factor, I find that a penalty of $4,000.00 is appropriate.

                                   ORDER

    Accordingly, it is ORDERED that 104(d)(2) Order No. 4888994 is AFFIRMED, as

issued, and that Consol pay a penalty of $4,000.00 within 30 days of the date of this remand
decision.

                                             Jacqueline R. Bulluck
                                             Administrative Law Judge

Distribution: (Certified Mail)

Melonie J. McCall, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd.,
Suite 516, Arlington, VA 22203

Elizabeth Chamberlin, Esq., Consolidation Coal Company, 1800 Washington Road, Pittsburgh,
PA 15241

\nt

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