Consolidation Coal Company

Plain-English summary

Consolidation Coal operated the Humphrey No. 7 Mine, where an inspector found large accumulations of coal spillage in active workings and found that a preshift examiner had not recorded the conditions. Judge Gary Melick affirmed two section 104(d)(2) orders, concluding that the accumulations violated the cleanup standard, were significant and substantial, and resulted from unwarrantable failure. He also found the unreported conditions violated the preshift-examination standard. The judge assessed penalties of $5,500 for the accumulation order and $5,000 for the preshift-reporting order.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.400 and 75.360
• Outcome: Order Nos. 7102307 and 7102308 were affirmed, with total civil penalties of $10,500.
• Key point: Extensive coal accumulations and failure to record hazardous conditions during a preshift examination supported high-gravity, unwarrantable-failure findings.

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

                                   December 7, 1999

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 99-79
Petitioner : A. C. No. 46-01453-04249
v. :
:
CONSOLIDATION COAL COMPANY, :
Respondent : Humphrey No. 7 Mine

                                      DECISION

Appearances: Daniel M. Barish, Esq., Office of the Solicitor, U.S. Department of
Labor, Arlington, Virginia, on behalf of Petitioner;
Elizabeth S. Chamberlin, Esq., 1800 Washington Road, Pittsburgh,
Pennsylvania, on behalf of Respondent.

Before: Judge Melick

    This case is before me upon a Petition for Civil Penalty filed by the Secretary of Labor

against the Consolidation Coal Company (Consol) pursuant to Section 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., the “Act,” alleging two violations
of mandatory standards and seeking civil penalties of $10,500.00 for those violations. The
general issue before me is whether Consol committed the violations as alleged and, if so, what is
the appropriate civil penalty to be assessed considering the criteria under Section 110(i) of the
Act. Additional specific issues are addressed as noted.

   Order No. 7102307, issued pursuant to Section 104(d)(2) of the Act, alleges a “significant

and substantial” violation of the standard at 30 C.F.R. § 75.400 and charges as follows:1

      1
           Section 104(d)(2) of the Act provides as follows:

   If a withdrawal order with respect to any area in a coal or other mine has been issued

pursuant to paragraph (1), a withdrawal order shall promptly be issued by an authorized
representative of the Secretary who finds upon any subsequent inspection the existence in such
mine of violations similar to those that resulted in the issuance of the withdrawal order under
paragraph (1) until such time as an inspection of such mine discloses no similar violations.
Following an inspection of such mine which discloses no similar violations, the provisions of
paragraph (1) shall again be applicable to that mine.

Page 2

           On the 2 north panel, from crosscuts 4 to 3, 3 to 2 and 2 to 1 entries, coal
   spillage has not been cleaned during the normal mining cycle. The spillage
   measures from 6 inches to 24 inches deep. This spillage is along the ribs and in
   the center of the crosscuts. From the 6 to 7 entries and down the No. 7 entry for
   90 feet and down the No. 6 entry for 90 feet, loose coal spillage measuring up to
   36 inches deep along the ribs and in the center of said entries. The operator’s
   clean-up program is not being followed on the 2 north panel.

The cited standard, 30 C.F.R. § 75.400, provides that “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 electric
equipment therein.”

     Timothy Reseter has been an inspector for the Mine Safety and Health Administration

(MSHA) since 1992. He has an additional 20-years experience as an underground miner with the
last ten years as a foreman. On October 27, 1998, he reported to the Humphrey No. 7 Mine to
conduct an inspection.2 He examined the preshift examination records for the 2 Mains North
Section between 6:45 a.m. and 7:30 a.m. and found that no spillage had been reported. Reseter
thereupon proceeded to inspect the 2 Mains North Section.

    This was a continuous miner section with seven entries and three working shifts. The day

and afternoon shifts were producing shifts, and the midnight shift was a maintenance shift in
which no coal was mined. The left side of the section consisted of entries one through four, and
the right side of the section consisted of entries five through seven. As of the morning of
October 27, 1998, the section had been roof bolted except for a small area in the crosscut
between the No. 2 entry and the No. 1 entry, and part of the No. 7 entry inby the last open
crosscut .

    According to Inspector Reseter there were coal accumulations on the left side of the

section in the last open crosscuts from the No. 4 to No. 3 entry, No. 3 to No. 2 entry, and No. 2 to
No. 1 entry, from rib to rib. The accumulations on the left side of the section were measured at 3
to 24 inches deep. In addition, two places on the left side had 36 inches of coal spillage where
the corners had been bulldozed. Acting mine foreman Charlie Harper confirmed that five corners
had been bumped on the left side of the section resulting in spillage up to two feet deep.
According to Reseter, the spillage on the left side of the section was mostly dry with little rock
dust on top.

    On the right side of the section, Reseter found coal spillage from rib to rib in the last open

crosscuts from the No. 5 to the No. 6 entry, and from the No. 6 entry to the No. 7 entry. Reseter
also found accumulations of up to 36 inches in the No. 6 and No. 7 entries for a distance of 90
feet outby the last open crosscuts. Reseter testified that these accumulations on the right side
were dry except for the area 90 feet outby the last open crosscuts. There seems to be no dispute

   2
           It has been stipulated that the Humphrey No. 138 Mine referenced by other

witnesses corresponds to the same area as the Humphrey No. 7 Mine described herein.

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that the coal accumulations found by Reseter had been created by mining done on the afternoon
shift and the day shift of the previous day.

     I find inspector Reseter’s testimony concerning the size and consistency of the cited

accumulations to be completely credible and sufficient to sustain the violation as charged. In
reaching this conclusion I have not disregarded the testimony of Consol’s witnesses that much of
the cited coal spillage was wet. I also note however that Jimmy Brock, then assistant mine
superintendent, testified that although much of the the cited coal was mixed with mud and was
wet in certain areas, there was another layer of apparently dry coal 3 to 6 inches deep on top of
that in some areas. Brock also acknowledged that not all the entries were wet. However even
assuming, arguendo, that the cited coal accumulations were at least partially wet, the
Commission has held that that does not render it incombustible. See Utah Power & Light
Company, 12 FMSHRC 905 at 969 (May 1990) and Black Diamond Coal Mining Co.,
7 FMSHRC 1117 (August 1985).

     The Secretary also alleges that the violation was “significant and substantial.” A

violation is properly designated as "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 explained:

           In order to establish that a violation of a mandatory safety standard is
   significant and substantial under National Gypsum the Secretary 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.

            See also Austin Power Inc. v. Secretary, 861 F.2d 99, 103-04
   (5th Cir. 1988), aff’g 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies
   criteria).

    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)). The likelihood of such
injury must be evaluated in terms of continued normal mining operations without any
assumptions as to abatement. U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984);
See also Halfway, Inc., 8 FMSHRC 8, 12 (January 1986) and Southern Ohio Coal Co.,
13 FMSHRC 912, 916-17 (June 1991).

   In arguing that the violation herein was “significant and substantial” the Secretary relies

upon the opinion of Inspector Reseter, that it was reasonably likely for injuries to occur as result

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of shuttle car movement through the cited area damaging electrical cables lying along the rib line.
According to Reseter, a damaged electrical cable could result in a short circuit and ignite
pulverized coal. He added that if a fire should occur then smoke inhalation could result in
fatalities. The Secretary argues that it is reasonable to infer that, if normal mining operations
continued, electrical cables would be damaged. I agree with the Secretary’s position which is
supported by credible testimony and find that the violation was “significant and substantial” and
of high gravity.

     The Secretary also alleges that the violation was the result of the Respondent’s

"unwarrantable failure" to comply with the cited standard. In Emery Mining Corp., 9 FMSHRC
1997, 2004 (December 1987), the Commission determined that unwarrantable failure is
aggravated conduct constituting more than ordinary negligence. This determination was derived,
in part, from the plain meaning of "unwarrantable" ("not justifiable" or "inexcusable"), "failure"
("neglect of an assigned, expected or appropriate action"), and "negligence" (the failure to use
such care as a reasonably prudent and careful person would use, and is characterized by
"inadvertence," "thoughtlessness," and "inattention"). 9 FMSHRC at 2001. Unwarrantable
failure is characterized by such conduct as "reckless disregard," "intentional misconduct,"
"indifference" or a "serious lack of reasonable care." 9 FMSHRC at 2003-04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC at 189, 193-94 (February 1991).

    In this regard, I have considered the large amount of accumulations and the significant

history of the same type of violation on September 4, 1998, June 10, 1998, and July 29, 1998.
These circumstances clearly warrant a finding of an aggravated omission constituting more than
ordinary negligence and a serious lack of reasonable care. In reaching this conclusion I have not
disregarded the testimony of the Respondent’s witnesses that they had been unable to clean up
the cited material because of equipment breakdowns and that they were in fact performing
manual clean up when the inspector arrived. However, in light of the time during which the
accumulations had existed, i.e., since the previous afternoon shift on October 26th and since no
coal had been produced on the midnight shift nor on the day shift on October 27th up to the time
the inspector saw the violative conditions, I find the alleged mitigating factors insufficient. Since
there is no dispute that there was no intervening clean inspection prior to the issuance of Order
No. 7102307, it must be affirmed as a “Section 104(d)(2)” order.

    Order No. 7102308, also issued pursuant to Section 104(d)(2) of the Act, alleges a

“significant and substantial” violation of the standard at 30 C.F.R. § 75.360 and charges as
follows:

           The preshift exam conducted on 10/27/98, from the midnight shift to the
   day shift was not complete in that the severe coal spillage at the face area on 2
   north panel was not entered in the book. This coal spillage occurred from the
   mining cycle from the afternoon shift on 10/26/98. Order No. 7102307 was

   issued for said spillage. Also no dates, times or initials were found for the


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   midnight shift at the face area.3

   The cited standard, 30 C.F.R. § 75.360, provides in subsection (f), as relevant hereto, that

“a record of the results of each preshift examination, including a record of hazardous conditions
and their locations found by the examiner during each examination . . . shall be made on the
surface before any persons, other than certified persons conducting examinations required by this
subpart, enter any underground area of the mine.”

    I find that the failure of preshift examiner Ronnie Jarrell to have reported the

accumulations in the preshift examiner’s book constituted a violation of 30 C.F.R. § 75.360 as
charged in Order No. 7102308. It is undisputed that the accumulations of coal at issue were
created by mining that occurred before the midnight shift of October 27, 1999, and before Ronnie
Jarrell would have conducted his preshift examination. Indeed, Jarrell himself admitted that he
observed accumulations of coal spillage when he performed his preshift examination. He
maintained only that he did not record the accumulations of coal because he believed they were
not hazardous. As previously noted, I accept the credible expert testimony of Inspector Reseter
as a “reasonably prudent person” regarding the hazardous nature of these particular
accumulations.

     This violation was also “significant and substantial” and of high gravity. The preshift

examination and the reporting thereafter is intended, inter alia, to prevent hazardous
accumulations from developing and to warn the miners on the oncoming shift about potentially
hazardous conditions. By not reporting the hazardous accumulations of coal in the preshift book,
the miners on the day shift were not placed on notice of these hazardous conditions and
management could have overlooked or have been less inclined to clean up such unreported
accumulations. It is reasonably likely for these consequences to lead to the serious injuries or
fatalities previously described.

     I also find that this violation was the result of “unwarrantable failure” and high

negligence. Because of the massive size of the cited accumulations it cannot be inferred that the
preshift examiner could have reasonably and in good faith concluded that these conditions were
not hazardous. His failure to have reported these conditions was therefore the result of a serious
lack of reasonable care and “unwarrantable failure.” Since there is no dispute that there was no
intervening clean inspection prior to the issuance of this order, it must likewise be affirmed as a
“Section 104(d)(2)” order.

   Considering Consol’s large size, its history of violations in evidence, its undisputed good


   3
            At hearing the Secretary represented that she is not charging as a separate

violation the failure of the mine examiner to have noted the date, time and his initials at the face
area for the midnight shift.

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faith abatement as well as the previous high gravity and negligence findings I conclude that the
Secretary’s proposed penalties are appropriate.

                                        ORDER

    Order Nos. 7102307 and 7102308 are affirmed. Consolidation Coal Company is hereby

directed to pay civil penalties of $5,500.00 and $5,000.00, respectively for the violations
charged in Order No. 7102307 and Order No. 7102308, within 40 days of the date of this
decision.

                                         Gary Melick
                                         Administrative Law Judge

Distribution:

Daniel M. Barish, Esq., Office of the Solicitor, U.S. Dept. of Labor, 4015 Wilson Blvd.,
Suite 400, Arlington, VA 22202 (Certified Mail)

Elizabeth S. Chamberlin, Esq., Consolidation Coal Company, 1800 Washington Road,
Pittsburgh, PA 15241 (Certified Mail)

\mca

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