Hope Mining, Inc.

Plain-English summary

Hiope Mining operated an underground coal mine in West Virginia. MSHA cited the mine after finding coal and float coal dust accumulations from one to fourteen inches deep in active workings, including conditions that had been cited two days earlier. Judge Michael E. Zielinski found the violation significant and substantial and concluded that the operator’s failure to clean the mine after the earlier citation was unwarrantable. He affirmed the citation and assessed the proposed $1,500 penalty.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.400; 30 U.S.C. § 814(d)(1)
• Outcome: Citation 7183561 was affirmed as significant and substantial and the $1,500 civil penalty was assessed.
• Key point: Repeated coal-dust accumulations after a recent citation supported an unwarrantable-failure finding.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                       OFFICE OF ADMINISTRATIVE LAW JUDGES
                                2 SKYLINE, Suite 1000
                                5203 LEESBURG PIKE
                           FALLS CHURCH, VIRGINIA 22041


                                      June 22, 2000

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 99-156
Petitioner : A. C. No. 46-08707-03507
v. :
: Hiope No. 8
HIOPE MINING, INC., :
Respondent :

                                       DECISION

Appearances: Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for the Petitioner,
Daniel R. Bieger, Esq., Copeland, Molinary & Bieger, P.C., Abingdon, Virginia,
for the Respondent.

Before Judge Zielinski

    This case is before me on a Petition for Assessment of Civil Penalty filed by the

Secretary of Labor against Hiope Mining, Inc. pursuant to section 105 of the Federal Mine
Safety and Health Act of 1977 (the "Act"), 30 U.S.C. § 815. The petition alleges a significant
and substantial violation of the Secretary’s mandatory health and safety standards attributable to
Respondent’s unwarrantable failure and proposes a civil penalty of $1,500.00. A hearing was
held in Abingdon, Virginia on March 13-14, 2000. Petitioner submitted a brief on April 27,
2000. Following receipt of the hearing transcript, Respondent submitted a reply brief on
June 15, 2000. For the reasons set forth below, I affirm the citation and assess a penalty of
$1,500.00.

                                    Findings of Fact

    On May 17-19, 1999, John B. Sylvester, Jr., an inspector with the Secretary of Labor’s

Mine Safety and Health Administration (MSHA) conducted an inspection of the Hiope mine, an
underground coal mine located in McDowell County, West Virginia. Over the course of the
inspection he issued a total of 15 citations, four of which, he concluded were Significant and
Substantial (S&S). Respondent did not contest 14 of the citations. The only citation at issue
here was written on May 19, 1999, at 8:55 p.m., when Inspector Sylvester observed

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accumulations of coal and float coal dust that he concluded violated 30 C.F.R. § 75.400.1 He
issued Citation numbered 7183561, which identified the condition or practice as:

   On the 001-0 section coal and float coal dust is being allowed to accumulate on
   the mine floor and on the ribs. In the No. 2 face coal is being allowed to
   accumulate for a distance of 55 feet and the last line open cross-cuts from No. 4
   heading to No. 9 heading hasn’t been cleaned up at all for a distance of 250 feet.
   The accumulations range from 1 to 14 inches in depth. The section was
   producing coal at the time the citation was issued. No one was in the process of
   cleaning the section at this time. Citation No 7183548 was issued 5-17-99 for
   these same conditions.

The citation was issued pursuant to § 104 (d)(1) of the Act2 because Inspector Sylvester
determined that the violation was significant and substantial and the result of the operator’s
unwarrantable failure. As noted in the body of the citation, the inspector’s assessment of the
operator’s negligence as "high" was based, in part, on the issuance of at least one prior citation
for similar conditions only two days earlier in the same section of the mine. Upon issuance of
the citation, the foreman, the continuous miner operator and the two shuttle car drivers directed
their efforts to cleaning and the citation was terminated at 10:50 p.m., slightly less than two
hours after it had been issued.

   1
           30 C.F.R. § 75.400, entitled Accumulation of Combustible Materials, provides:

           Coal dust, including float coal dust deposited on rock-dusted surfaces, loose
   coal, and other combustible materials, shall be cleaned up and not be permitted to
   accumulate in active workings, or on diesel-powered and electric equipment therein.
   2
           Section 104(d)(1), 30 U.S.C. § 814(d)(1), provides in pertinent part:

           If, upon any inspection of a coal or other mine, an authorized representative
   of the Secretary finds that there has been a violation of any mandatory health or
   safety standard, and if he also finds that, while the conditions created by such
   violation do not cause imminent danger, such violation is of such nature as could
   significantly and substantially contribute to the cause and effect of a coal or other
   mine safety or health hazard, and if he finds such violation to be caused by an
   unwarrantable failure of such operator to comply with such mandatory health or
   safety standards, he shall include such finding in any citation given to the operator
   under this Act. . . .


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    Subsurface coal extraction at the Hiope mine was conducted on three shifts. The first

and second shifts actively mined coal. The third, midnight or "hoot owl," shift was devoted to
maintenance activities, described by Hiope’s President, Ronald Combs, as including cleaning,
rock dusting and moving the conveyor belt. The crews for the first and second shifts consisted
of six men, a foreman, a continuous miner operator, two shuttle car drivers and two roof bolters.
According to the testimony of the mine (and #1 shift) foreman, Gerald Tatum the #1 and #2
shifts were operating "shorthanded" with a "skeleton crew" of six men. The #2 shift foreman at
the time, Raymond Poszich,3 described a "normal" crew as consisting of at least two more men,
an electrician and a scoop operator who would normally perform most of the cleaning and rock
dusting duties.

    Both Mr. Tatum and Mr. Poszich testified that the other five members of their crews

were fully occupied operating equipment that was actively engaged in the production of coal and
were available for cleaning only if their piece of equipment was inoperable. As a consequence,
cleaning duties were generally the responsibility of the foreman, who had many other duties,
including providing supplies to the roof bolter, making inspections of the mine every two hours
and hanging centerlines and line curtains. While Mr. Tatum testified that he performed some of
these duties while operating a scoop and doing cleaning and that he and his crew tried to clean as
much as they could, Mr. Poszich testified that they simply didn’t clean unless equipment broke
down. I find that Mr. Poszich’s testimony, based upon his lack of a current employment
relationship with Respondent and the findings of Inspector Sylvester, more accurately described
the cleaning effort during the production shifts. In actual practice, if mining operations were
uninterrupted by equipment breakdowns, very little cleaning was performed on the first and
second shifts.

    At the time the citation was issued, the mine’s posted cleanup program called for

cleaning and rock dusting to be performed "after each work cycle." A work "cycle" consisted of
the continuous miner making a cut 15-20 feet deep - the fresh cut was then to be roof bolted and
cleaned, with loose coal being removed or "pushed up" to the face where it would be loaded out
when the continuous miner returned to make another cut. After the citation was issued,
Inspector Sylvester observed that Hiope was violating its own cleanup program. Within a month
of the issuance of the citation, Hiope’s president amended the program to specify that cleaning
was required to be done after each 16 hour "producing period." It also provided that: "During
the producing period a scoop will be utilized as much as possible to do cleaning." The change,
in essence, brought the written cleanup program into conformance with the existing cleaning
practice and was intended, in part, to assure that an inspector would not be able to refer to a
failure to follow an established cleanup program in support of a citation.

   3
           Mr. Poszich no longer worked at the Hiope mine at the time of hearing.

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   Hiope cannot strenuously dispute inspector Sylvester’s description of the accumulations

as noted in the citation. Mr. Poszich, the foreman on duty at the time, testified that he did not
disagree with that description. The primary defense is that the citation was issued "prematurely"
because, due to delays in roof bolting, cleaning could not have been done in the subject areas4
and that there is no reliable evidence that cleaning was not being done on cycle.

    The mine was developed with nine entries, each 20 feet wide and spaced 50 feet apart on

center. Cross cuts connecting the entries were made on centerlines spaced 80 feet apart. The
mine was developed in the following sequence: cuts were made first in the #9 entry, followed by

8 and, in order, down to #5, where the conveyor belt was located. That process was repeated

until those entries were mined up to where the next cross cut would be located. Cross cuts were
then made, turning right, i.e. from #8 entry toward #9 entry. Each cross cut through 30 feet of
coal had to be made with 2 cuts of the continuous miner. When the cross cuts from #5 to #9 had
been completed, mining began on the left side and the #4 through #1 entries were cut and
connected with cross cuts which became an extension of the #5 to #9 cross cut. When the
second shift started work on May 19, 1999, the #4 through #9 entries had been mined up to the
next cross cut and cross cuts had been made completely through from the #4 to the #9 entry.
The Pre-shift report for the second shift, which was done between 2:00 and 3:00 p.m on May 19,
1999, by Mr. Tatum, described the condition of the mine as, "needs bolted" for entries #1, #2,

3, #4, #6 and #8 and "needs cleaned" for entries #5, #7 and #9. "Needs bolted" means that the

continuous miner had made a 15-20 foot cut and that it had not yet been roof bolted. Such areas
are "dangered off", by hanging a reflector warning that no one can enter the area where the roof
is unsupported. "Needs cleaned" means that the area had been roof bolted and could then be
cleaned. No distinction was made between entries and cross cuts in the report because the cross
cut was viewed as a continuation of the entry. For example, the cross cut from #6 to #7 was
made by bringing the continuous miner up entry #6, where it would make a right turn toward
entry #7. Two more cuts would be made, completing the cross cut between #6 and #7 & all of
which would be referred to as mining in the #6 entry. Consequently, the preshift report entry
that #6 "needs bolted" means that the final cut of the cross cut from #6 to #7 had been made and
needed to be roof bolted.

    There are factual disputes about the exact state of development of the mine on May 19,

1999, both at the beginning of the second shift and when the inspector arrived on section 1 at
about 8:35 p.m. I find that at the time the inspector arrived the mine was developed as depicted
in Government’s Exhibit #18, a copy of which is attached as Appendix I, with the exception that
the #5 through #9 entries were advanced no more than a few feet beyond the cross cut. I also
find that at the beginning of the second shift the cross cuts from #4 to #9 had been cut through.
There is no dispute that by the time Inspector Sylvester arrived the cross cuts from #4 through

9 had been cut through. Mr. Poszich testified that his shift did no mining on the right side (#5-

9) and mined only on the #3, #2 and #1 entries. The only witness that testified to the contrary

   4
            Mandatory Safety Standards for underground coal mines provide that “[n]o person

shall work or travel under unsupported roof * * * .” 30 C.F.R. § 75.202(b).

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was Walter McGlothlin, a shuttle car operator who stated that the continuous miner started in the

6-#7 cross cut. However, he was impeach with his deposition testimony that mining was done

only in the #4 through #1 entries on the second shift.

    I find, as Mr. Poszich testified, that mining on the second shift occurred only in the #3,

2 and #1 entries. Critically, when Inspector Sylvester arrived, the #2 entry had been driven in

approximately 70 feet, the last cut of which had not been roof bolted. The first 55 feet of entry

2, however, had been bolted and should have been cleaned prior to the next cut being made.

The inspector found excessive accumulations throughout the first 55 feet of the entry,
accumulations that he was certain did not result from the last cut because of their extensiveness
and location. There was a suggestion, in Mr. McGlothlin’s testimony, that the accumulations
may have been of recent origin because there may have been a cross cut started with a left hand
turn from the #2 entry and that substantial spillage occurs when turns are made. I reject that
suggestion because neither the #2 nor the #1 entry had been driven to the point where a cross cut
would have been made and other testimony was uniformly to the effect that cross cuts were
made by turning to the right.

     There were also excessive accumulations throughout the length of the cross cuts from #4

entry to #9 entry. Respondent is correct in its contention that cleaning could not be done under
unsupported roof and areas "in-by" unsupported roof. However, that would excuse the failure to
clean only in the second cut that had not been roof bolted. At the start of the second shift the #4-

5 and #5-#6 cross cuts had been cut though and bolted, as indicated on the preshift report and

the testimony of Scott Honaker, one of the roof bolters. I reject the contrary testimony of Steve
Blackwell, the other roof bolter, that bolting was done in the #5-#6 cross cut on that shift. There
is a dispute in the testimony as to the location of the roof bolter when the inspector arrived. He
testified, consistent with his notes, that the bolter was at the last row of bolts in the #7-#8 cross
cut. The roof bolters testified that they were working in the #6-#7 cross cut at the time. While I
find that it is unlikely that the roof bolter was in the #7-#8 cross cut,5 its location when the
inspector arrived is of little significance. Even if the roof bolter was in the second cut of the

6-#7 cross cut, such that cleaning could not have been done there or in the area of the second

cuts of the #7-#8 and #8-#9 cross cuts, there were excessive accumulations that should have been
cleaned previously in the entire cross cut from #4 through the first cut of the cross cut in #6-#7
and the first cuts of the cross cuts in #7-#8 and #8-#9.

    With respect to possible ignition sources, Inspector Sylvester testified that there were

several present, including sparks from the continuous miner, worn or damaged insulation on
electrical cables and improperly maintained permissible equipment. In addition to the
combustible accumulations, the mine liberated methane. While the Hiope mine was not a
particularly gassy mine, mining operations were, at the time, occurring only 20-30 feet above an
abandoned mine where serious methane problems and several ignitions had been experienced.

    5
            As noted above, the preshift report indicates that that cross cut had been bolted at the

start of the second shift and no additional mining had been done on that side.

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Test results in the record generally show zero or very low concentrations in areas where coal was
not actually being cut. However, as Inspector Sylvester testified, methane concentrations are not
predictable and he had been told by the continuous miner operator that concentrations at or
above 2% had been encountered.6 Mr. Poszich testified that he had experienced methane
concentration sufficient to shut down the continuous miner the same day that the subject citation
was issued. Sparks are produced when the continuous miner’s bits strike roof material and
provide an efficient ignition source at the very location that methane is likely to be liberated.
Other ignition sources include the equipment, which is powered by electricity. Wear and
damage to trailing cables supplying 480 volts of electricity is not uncommon. In fact, Inspector
Sylvester issued a citation on May 17, 1999, having found worn insulation in five locations on
the trailing cables of the continuous miner. Sparks or flames in electrical controls also can
provide an ignition source if the equipment is not maintained in "permissible" condition.
Inspector Sylvester also issued a citation on May 17, 1999, for failure to maintain the continuous
miner in permissible condition.

                                    Conclusions of Law

Significant and Substantial

    A "significant and substantial" (S&S) violation is described in Section 104(d)(1) of the

Act as a violation "of such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." A violation is properly designated
S&S "if, based upon 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 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. (footnote omitted)




   6
           Methane is a highly combustible gas . Continuous mining machines are equipped with

methane monitors that sound a warning when methane concentration reaches 1% and automatically
shut the machine down at concentrations of 2%.

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See also, Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v.
Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021
(December 1987) (approving Mathies criteria).

 In United States Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (August 1985), the

Commission stated further as follows:

   We have explained further that the third element of the Mathies formula "requires
   that the Secretary establish a reasonable likelihood that the hazard contributed to
   will result in an event in which there is an injury." U.S. Steel Mining Co., 6
   FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
   with the language of section 104(d)(1), it is the contribution of a violation to the
   cause and effect of a hazard that must be significant and substantial. U.S. Steel
   Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co.,
   Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

    This evaluation is made in terms of "continued normal mining operations." U.S. Steel

Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a particular
violation is significant and substantial must be based on the particular facts surrounding the
violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Co., 9
FMSHRC 1007 (December 1987).

The Violation

    The conditions found to exist, as described above, violated § 75.400. While they were

the product of normal mining operations, the extensive accumulations existed at the time of the
citation because Hiope failed to clean as part of the normal mining cycle. Any argument that the
areas in question could not have been cleaned because they had not been roof bolted is
unavailing because the great majority of the areas noted in the citation had been roof bolted. As
the inspector noted, the #2 entry had not been cleaned for a distance of 55 feet to the last row of
bolts. That distance would have been mined in three cycles, with a continuous miner making
cuts of 15-20 feet. Those cuts had been roof bolted and should have been cleaned prior to the
next cut being made. Similarly, there is no viable excuse for allowing accumulations to exist in
the cross cuts from #4 to #6 and in the area of the first cuts in the other cross cuts from #6 to #9.

    Hiope argues that the only evidence that clean up was not being done on cycle was

testimony from Raymond Poszich who was referring to a later time period when the mine was
operating under the new cleanup plan. However, Mr. Poszich’s testimony quite clearly was
directed to the time frame of May 19, 1999, not a later period.7 The excessive accumulations

   7
           See, e.g., transcript pages 113 (“that was an accepted plan when we got there”) and

155 (the cited accumulations would not have been cleaned up until the midnight shift, had the
inspector not arrived). While he did refer to the amended cleanup plan, it appears to have been for

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found by Inspector Sylvester are also ample proof that cleaning was not being done on cycle.
Hiope also contends that Inspector Sylvester’s testimony is unreliable for a number of reasons,
including his lack of recollection of the exact status of roof bolting and the mining sequence.
However, as noted previously, there is little dispute as to the accuracy of Inspector Sylvester’s
description of the excessive accumulations. Those accumulations existed in areas that clearly
had been roof bolted and should have been cleaned.

   The Commission’s decisions long ago made clear that § 75.400 is directed at preventing

accumulations & not to cleaning them up within a reasonable time. As stated in Utah Power and
Light Co., 12 FMSHRC 965, 968 (May 1990):

           In defining a prohibited "accumulation" for section 75.400 purposes, the
   Commission explained [in Old Ben Coal Co., 2 FMSHRC 2806 (October 1980)]
   that "some spillage of combustible materials may be inevitable in mining
   operations. However, it is clear that those masses of combustible materials which
   could cause or propagate a fire or explosion are what Congress intended to
   proscribe." Old Ben II, 2 FMSHRC at 2808. The Commission emphasized that
   the legislative history relevant to the statutory standard that section 75.400 repeats
   "demonstrates Congress’ intention to prevent, not merely to minimize,
   accumulations. The standard was directed at preventing accumulations in the first
   instance, not at cleaning up the materials within a reasonable period of time after
   they have accumulated." Old Ben I, 1 FMSHRC [1954 (December 1979)]
   at 1957. . . . .

   Here, Hiope allowed lose coal, float coal dust and related combustible materials to

remain in the active workings of the mine in numerous areas that had been roof bolted and
should have been cleaned. These were clearly "accumulations" as defined in, and in violation of,
§ 75.400.

Likelihood of Injury

    There can be little dispute that combustible accumulations contribute to the hazard of

ignition or propagation of a fire and that any injury resulting from such a hazard could be serious
and possibly fatal. The critical factor in the S&S determination, therefore, is whether there was
a reasonable likelihood that the hazard would result in an injury. There were several ignition
sources in the area and the mine was known to liberate methane. Sparks from the continuous
miner, damaged trailing cables from the miner and other equipment and improperly maintained
equipment were potential ignition sources. Inspector Sylvester had cited Hiope because
insulation on the trailing cable of the continuous miner was worn in five places. Concentrations
of methane sufficient to shut down the continuous miner had been encountered the same day that

illustration purposes. No attempt was made on cross examination to establish that he was referring
to a time frame other than when the citation was issued.

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Page 9

the citation was issued. The active workings in question were also located approximately 20-30
feet above an abandoned mine that had far more significant methane problems, including several
ignitions. These factors give rise to a reasonable likelihood that the hazard contributed to by the
accumulations would result in an injury. Accordingly, I find that the violation was significant
and substantial.

Unwarrantable Failure

   In Windsor Coal Co., 21 FMSHRC 997, 1000 (Sept. 1999), the Commission reiterated

the law applicable to determining whether a violation was the result of an unwarrantable failure.

            The unwarrantable failure terminology is taken from section 104(d) of the
   Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator in
   connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec.
   1987), the Commission determined that unwarrantable failure is aggravated
   conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable
   failure is characterized by such conduct as "reckless disregard," "intentional
   misconduct," "indifference," or a "serious lack of reasonable care." Id. at
   2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991);
   see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995)
   (approving Commission's unwarrantable failure test). The Commission has
   recognized that a number of factors are relevant in determining whether a
   violation is the result of an operator's unwarrantable failure, such as the
   extensiveness of the violative condition, the length of time that the violative
   condition has existed, the operator's efforts to eliminate the violative condition,
   and whether an operator has been placed on notice that greater efforts are
   necessary for compliance. Mullins & Sons Coal Co., 16 FMSHRC 192, 195
   (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992). The
   Commission also considers whether the violative condition is obvious, or poses a
   high degree of danger. BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44
   (Aug. 1992) (finding unwarrantable failure where unsaddled beams "presented a
   danger" to miners entering area); Warren Steen Constr., Inc., 14 FMSHRC 1125,
   1129 (July 1992) (finding violation aggravated and unwarrantable based on
   "common knowledge that power lines are hazardous, and . . . that precautions are
   required when working near power lines with heavy equipment"); Quinland
   Coals, Inc., 10 FMSHRC 705, 709 (June 1988) (finding unwarrantable failure
   where roof conditions were "highly dangerous"); Kitt Energy Corp., 6 FMSHRC
   1596, 1603 (July 1984) (conspicuous nature of the violative condition supports
   unwarrantable failure finding).




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    A consideration of the above factors compels a conclusion that the violation was the

result of Hiope’s unwarrantable failure. The accumulations were extensive and existed in
several areas that should have been cleaned, had proper effort been devoted to cleaning in the
normal mining cycle, i.e. after roof bolting had been completed. The record of prior violations
by Hiope indicates that it had been cited for violations of § 75.400 seven times in the six months
preceding the issuance of the instant citation. With one exception, the circumstances of those
violations have not been explained and I do not consider that they should have put Hiope on a
heightened alert for such violations. The § 75.400 violation cited in May 17, 1999, however,
resulted from the same practice that prompted the violation at issue here, and clearly put Hiope
on notice that delaying cleaning efforts and allowing accumulations to exist in the active
workings was a violation of a mandatory health and safety standard. Nevertheless, Hiope did
not change its ways. No cleaning had been done on the #2 shift and no cleaning was being done
when the inspector arrived in the area despite the fact that the need for cleaning had been noted
on the preshift inspection report and additional areas had been roof bolted and should have been
cleaned. Cleaning was not initiated until the citation was issued, some five hours after the shift
had begun. At that point, four miners worked two hours to abate the conditions cited. It is
apparent that, had the inspection not taken place, substantial accumulations would have been
allowed to remain in the active workings until the midnight shift began.

    Hiope places significance on the fact that, on May 18, 1999, Inspector Sylvester found

the mine clean and observed some cleaning being done during the #1 shift. However, Inspector
Sylvester arrived at the mine virtually at the beginning of the #1 shift that day. Under the
cleaning process actually followed by Hiope, the mine would normally have been clean by the
end of the midnight shift. Attention to cleaning in the presence of an inspector who had issued a
citation for excessive accumulations during the same shift the previous day is hardly indicative
of a proper ongoing cleaning program. As the inspector testified; "If I was there [on the 18th],
they were doing cleanup, I guarantee it."

    The situation presented here is comparable to that in Utah Power and Light Co., supra,

where an operator made a conscious decision to mine in a manner that allowed accumulations to
exist. While the unwarrantable failure finding in that case was reversed, the reversal was
predicated on the operator’s good faith belief that its cleanup plan was consistent with applicable
regulations and that its cleanup methods were safer than alternative procedures. In addition, the
operator there had been cited in the past for deviating from its cleanup plan and was
understandably reluctant to change its procedures. Those factors stand in sharp contrast to the
situation presented in this case. Here, Hiope’s conscious decision to mine in a manner that
allowed unlawful accumulations to exist was a deviation from its cleanup program, a deviation
for which it had been issued a citation only two days earlier. Hiope’s response to the May 17
and May 19, 1999 citations was not to conform to its cleanup program and eliminate the
accumulations. Rather, Hiope determined to change its cleanup program to formalize its
deficient cleaning procedures. Under the Commission precedent discussed above, it was long
ago made clear that deferring cleanup efforts and allowing accumulations to exist for even one
shift, much less two shifts, was a violation of § 75.400.

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    The citation is affirmed as significant and substantial and due to Hiope’s unwarrantable

failure to comply with a mandatory health and safety standard.

                                 The Appropriate Penalty

    Hiope Mining Inc. is a relatively small operator, with production of 56,060 tons of coal

in 1998. It has a relatively good history of violations, having been cited for violations of the Act
forty-five times, including the instant violation, during fifty-one inspection days in the two year
period ending on May 19, 1999. Thirty-seven of the violations involved single penalty
assessments and none of those finally adjudicated was specially assessed. The parties have
stipulated that the proposed penalty of $1,500.00 would not affect Hiope’s ability to continue in
business and that the violation cited was abated timely and in good faith. The gravity of the
violation was serious in that six miners were exposed to a reasonable likelihood of serious
injury. The operator’s negligence was high. Although Hiope’s subsequent amendment of its
cleanup program raises concern about future compliance with the standard, it did promptly abate
the violation in this case. Weighing these factors, which are required to be considered under §
110(i) of the Act, I find that the proposed penalty of $1,500.00 would properly effectuate the
deterrent purposes underlying the Act’s penalty assessment scheme.

                                         ORDER

   Based upon the foregoing, citation number 7183561 is Affirmed and Hiope Mining Inc.

is Ordered to pay a civil penalty of $1,500.00 within 30 days.

                                          Michael E. Zielinski
                                          Administrative Law Judge

Distribution:

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

Daniel R. Bieger, Esq., Copeland, Molinary & Bieger, P.C., 212 West Valley Street,
P. O. Box 1296, Abingdon, VA 24212 (Certified Mail)

/mh

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