Mettiki Coal Corporation

Plain-English summary

MSHA cited Mettiki Coal Corporation after finding coal dust and other combustible material accumulated around longwall shields at the Mettiki A Mine. Judge Gary Melick found a violation of the cleanup standard, but concluded that the condition was not significant and substantial because the inspector saw little likelihood of an explosion. He modified the citation from section 104(d)(1) to section 104(a), affirmed it as modified, and assessed a $250 civil penalty. The judge found operator negligence because the accumulations should have been discovered during examinations.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.400; 30 U.S.C. §§ 801, 814(d)(1), 814(a), and 820(i)
• Outcome: Citation 2701541 was modified from section 104(d)(1) to section 104(a) and affirmed as modified, with a $250 penalty.
• Key point: A combustible-material accumulation can violate the cleanup standard without being significant and substantial when the evidence shows little likelihood of an explosion.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. METTIKI COAL
DDATE:
19861118
TTEXT:

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       Federal Mine Safety and Health Review Commission
             Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. YORK 86-11
PETITIONER A.C. No. 18-00621-03553

      v.

METTIKI COAL CORPORATION,
RESPONDENT

METTIKI COAL CORPORATION, CONTEST PROCEEDING
CONTESTANT
Docket No. YORK 86-5-R
v. Citation No. 2701541; 5/5/86

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
RESPONDENT "A" Mine

                           DECISION

Appearances: Susan Chetlin, Esq., and Timothy Biddle, Esq.,
Crowell & Moring, Washington, DC, for Contestant;
Susan M. Jordan, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsy-
lvania, for Respondent.

Before: Judge Melick

 These consolidated cases are before me under section 105(d)

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
801 et seq., the "Act," to challenge the issuance by the
Secretary of Labor of a citation under section 104(d)(1) of the
Act,(FOOTNOTE 1) and for review of civil penalties proposed by the
Secretary for the violation alleged therein.

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The general issues before me are whether Mettiki has violated the
cited mandatory standard and, if so, whether that violation was
of such a nature as could significantly and substantially
contribute to the cause and effect of a mine safety or health
hazard i.e., whether the violation was "significant and
substantial." If a "significant and substantial" violation is
found it will also be necessary in order to sustain the citation
as a citation under section 104(d)(1) to determine if the
violation was caused by the "unwarrantable failure" of the
operator to comply with cited standard. Finally if a violation is
found it will also be necessary to determine the appropriate
civil penalty to be assessed in accordance with section 110(i) of
the Act.

 The citation at bar, No. 2701541, charges a "significant and

substantial" violation of the regulatory standard at 30 C.F.R.
75.400 and states as follows:

Float coal dust, coal spillage, rock and a mixture of
fire clay, was allowed to accumulate on the back side
of the longwall shields. The accumulation [sic] were 0
to 12 inches deep, 1 foot wide and approximately 18
inches in length on all shields. Most of the
accumulations were damp and no source of ignition was
present. John Morgan, longwall foreman, and John Sisler
responsible. The condition found at the BÄPortal.

 The cited standard 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 electric
equipment therein."

 Charles Wotring, an inspector for the Federal Mine Safety

and Health Administration (MSHA), was conducting a regular
inspection of the Mettiki "A" mine on May 5, 1986, accompanied by
another inspector, Mine Foreman Dennis Dever and Mine Manager
William Pritt. According to Wotring there were coal accumulations
around the shields along the entire 650 foot length of the
longwall face with the blackest accumulations lying between
shields number 83 and 126. Float dust and fine ground-up coal
mixed with some coal and rock were also present. Wotring measured
several of the accumulations and found them to be 12 inches wide,
18 inches long and "most were" 12 inches deep. Wotring also found
float coal dust on the jacks and shields.

 The accumulations were admittedly damp and no methane gas or

ignition sources were present. Wotring opined that while a
methane or dust explosion could trigger an explosion

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of even this damp material, there was "little likelihood" of such
an explosion. He further acknowledged that the accumulations on
shields number 1 to 83 were not hazardous because they were mixed
with fire clay to the point of incombustibility.

 Mettiki witnesses, Foreman John Morgan and General Mine

Foreman Dennis Dever, agreed that there were accumulations around
the longwall shields but testified that those accumulations
consisted primarily of noncombustible fire clay, soapstone, and
slate. These witnesses also acknowledged however that a fine mist
of float coal dust appeared on those longwall shields which had
not been hosed down before the longwall broke down earlier that
morning.

 In rebuttal Inspector Wotring observed that the areas

depicted in the photographs in evidence (Exhibits CÄ1 through
CÄ5) indeed contained primarily rock as alleged by Mettiki's
witnesses but he pointed out that the area in which he found the
violative coal accumulations were not depicted in any of the
photographs. Wotring noted without contradiction that the cited
accumulations were located in the area depicted in Exhibit CÄ6
cross-hatched in blue. Within this framework it is clear that
coal dust, including float coal dust, loose coal and other
combustible materials had not been cleaned up and were permitted
to accumulate in violation of the cited standard. Accordingly the
violation is proven as charged.

 In light of Wotring's admission however that "there was

little likelihood of an explosion" I cannot find that the
violation was "significant and substantial" or of high gravity.
In order for a safety violation to be "significant and
substantial" there must be a reasonable likelihood that the
hazard contributed to will result in an injury and a reasonable
likelihood that the injury will be of a reasonably serious
nature. Secretary v. Mathies Coal Co., 6 FMSHRC 1 (1984). Under
the circumstances the citation at bar, issued under section
104(d)(1) of the Act, must be modified to a citation under
section 104(a) of the Act. The issue of whether or not the
violation was caused by the "unwarrantable failure" of the
operator to comply with the cited standard is therefore moot. fn.
1 supra.

 In evaluating the civil penalty negligence criteria I accept

the undisputed testimony of inspector Wotring that from the
compactness of the accumulated coal spillage it was reasonable to
infer that the accumulations had existed since the previous
shift. Accordingly those accumulations should have been
discovered during the preshift examination or the onshift
examination which had already been conducted that morning by
Foreman Morgan. The failure to have removed the accumulations was
therefore the result of operator negligence. It is noted that
Mettiki easily removed the coal dust accumulations by merely
attaching a hose to the water line and washing them down.

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In determining the amount of penalty herein I have also
considered that the operator is medium in size and has a moderate
history of reported violations. The condition was in fact abated
in a timely and good faith manner. Accordingly a civil penalty of
$250 is deemed appropriate.

                            ORDER

 Citation No. 2701541 is modified to a citation issued under

section 104(a) of the Act and, as modified, is affirmed. The
Mettiki Coal Corporation is order to pay a civil penalty of $250
within 30 days of the date of this decision.

                       Gary Melick
                       Administrative Law Judge

FOOTNOTE START HERE-

1 Section 104(d)(1) provides as follows:
"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."