Mettiki Coal Corporation

Plain-English summary

MSHA alleged that Mettiki Coal allowed coal and coal dust to accumulate around conveyor equipment, on a long catwalk, and along another conveyor. Judge Avram Weisberger found that dry coal dust around the equipment violated 30 C.F.R. § 75.400 and resulted from unwarrantable failure, with a $1,000 penalty. He found that coal and rock on the catwalk violated 30 C.F.R. § 77.205(b), but the rail meant the violation was not significant and substantial, and he assessed $500. He dismissed the order under 30 C.F.R. § 77.202 because the record did not establish dangerous amounts of coal dust.

Decision snapshot

• Cited standard(s): 30 C.F.R. §§ 75.200, 75.400, 77.205(b), and 77.202; 30 U.S.C. §§ 813(i), 814(d)(2), and 820(i).
• Outcome: Order Nos. 2944834 and 2944821 were sustained, with Order No. 2944821 amended to remove the significant-and-substantial designation. Order No. 2944822 was dismissed. Total penalties were $1,500.
• Key point: A coal accumulation can support an unwarrantable-failure finding when it is obvious and persists despite reports, but the record must establish dangerous amounts before a violation of section 77.202 can be sustained.

Full text (FMSHRC public release)

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. YORK 88-13
PETITIONER A. C. No. 18-00621-03615

      v.                            Mettiki Mine

METTIKI COAL CORPORATION,
RESPONDENT

                         DECISION

Appearances: Mark D. Swartz, Esq., Office of the Solicitor,
U. S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Susan E. Chetlin, Esq., Crowell & Moring,
Washington, DC, for Respondent.

Before: Judge Weisberger

Statement of the Case

 On April 6, 1988, the Secretary (Petitioner) filed a

petition for Assessment of Civil Penalty for alleged violations
by the Respondent of 30 C.F.R. 75.200, 30 C.F.R. 75.400, 30
C.F.R. 77.205(b), and 30 C.F.R. 77.202. Respondent filed its
Answer on May 5, 1988. Subsequent to a Prehearing Order issued
May 17, 1988, requiring the Parties to confer for the purposes of
discussing settlement, exchange exhibits which may be endorsed at
a hearing, and lists of witnesses who may testify, the Parties
engaged in prehearing discovery.

 Pursuant to notice, the case was scheduled and heard in

Pittsburgh, Pennsylvania, on November 15 - 16, 1988. Phillip
Martin Wilt, Steven Polce, Stanley A. Martin, Barry Lane Ryan,
Thomas Andrew Reed, and Horace Joseph Theriot testified for
Petitioner. Timothy Clay Rush, Joseph Eugene Peck, Carl Randall
Johnson, Alan B. Smith, William Allen Hartman, Horace Joseph
Theriot, and Thomas Andrew Reed testified for Respondent. At the
hearing Petitioner indicated that Order No. 2943340 issued on
November 9, 1987 was vacated on November 2, 1988, and that
Petitioner has withdrawn its petition for assessment of civil
penalty with regard to the violation alleged in Order No. 2943340.

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Proposed Findings of Fact, Conclusions of Law, and Briefs were
filed by Petitioner and Respondent on January 25, 1989. Reply
Briefs were filed by Respondent and Petitioner on February 3 and
February 6, 1989, respectively.

 Both Parties, on January 25, 1989, filed Motions to Correct

the hearing Transcript. The Respondent's Motion incorporates all
the corrections noted by Petitioner in its Motion, and includes
additional corrections. Respondent indicated that Petitioner does
not object to Respondent's Motion. Accordingly, these Motions are
granted.

Stipulations

 The following stipulations were submitted by the Parties at

the hearing:

 1. The Respondent, Mettiki Coal Corporation, has owned and

operated the Mettiki Mine at all times relevant to these
proceedings.

 2. The Mettiki Mine is subject to the jurisdiction of the

Federal Mine Safety and Health Act of 1977.

 3. The Administrative Law Judge has jurisdiction over these

proceedings.

 4. The subject orders were properly served by a duly

authorized representative of the Secretary of Labor upon
authorized agents of the Respondent at the dates, times, and
places stated in the orders.

 5. The assessment of civil penalties in these proceedings

will not affect Respondent's ability to continue in business.

 6. The appropriateness of the penalty, if any, to the size

of the coal operator's business should be based on the following
production tonnage information:

 a. That production tonnage of 2,525,216 at the Mettiki Mine

in 1986, and

 b. Production tonnage of 9,225,921 at all of Respondent's

mines in 1986.

 7. Mettiki Mine's history of previous violations with

respect to the orders in this case is as follows:

 With respect to Orders Nos. 2944821 and 2944822, which were

issued on November 16, 1987, there is a history of 441 assessed
violations in the 24 month period from November 16, 1985

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to November 15, 1987, and then with respect to Order No. 2944834,
which was issued on December 8, 1987, there is a history of 450
assessed violations in the 24 month period from December 8, 1985
to December 7, 1987.

 8. Respondent has demonstrated good faith in abating the

violations alleged in Orders Nos. 2944821, 2944822, and 2944834.

 9. Mettiki Mine was issued Order No. 2701558 on May 30,

1986. There was no intervening clean inspection from May 30, 1986
      through December 8, 1987. Therefore, the Mettiki Mine was on a
      section 104(d)(2) cycle or chain at all times relevant to these
      proceedings.

      10. On December 8, 1987, the Mettiki Mine was in the 15
          working day spot inspection program for methane as specified in
          section 103(i) of the Act.

      11. In terms of specific dates, November 16, 1987, was a
          Monday; December 8, 1987, was a Tuesday.

      12. The Parties stipulated to the authenticity and
          admissibility of Order Nos. 2944821, 2944822, and 2944834.

      Order No. 2944834

      Order No. 2944834 issued on December 8, 1987, alleges a
      violation of 30 C.F.R. 75.400 in that:

        Combustible materials, loose coal, some very fine and
        dry is accumulated under, and around the drive, and
        take-up rollers to the B-mains No. 3 conveyor belt, the
        drive roller had been permitted to turn in the
        materials, also there is loose coal deposited on the
        mine floor along and under the bottom belt on the left
        side beginning at the drive rollers and extending inby
        to the tail rollers, a distance of approximately 1,000.
        The bottom belt and rollers had been permitted to turn
        in the materials in several locations. Also there was
        fine dry coal accumulated on the two 200 PLO HP
        energized electrical motors to the conveyor drives.
        Alan Smith, Company Safety Director, is the responsible
        person.
      

Findings of Fact and Discussion

                         I.

 Phillip F. Martin Wilt, a MSHA Coal Inspector, testified, in

essence, that when he inspected Respondent's Mettiki Mine on
December 8, 1987, at approximately 8:20 a.m., he observed damp

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coal along the belt line for approximately 1000 continuous feet.
He indicated that he also observed loose dry fine crushed coal at
an estimated depth of 2 to 6 inches in the area of the take up
rollers, and around the drive. Wilt was accompanied by Barry Lane
Ryan, a MSHA Field Office Supervisor, who corroborated Wilt's
testimony with regard to the depth of the coal dust of
approximately 2 to 6 inches at the base of the motors. In
contrast, Joseph Eugene Peck, Respondent's Shift Supervisor,
indicated that there was "some small accumulations" of coal by
the motor, which he indicated was maybe a couple of inches (Tr.
209). He also indicated that in some places the accumulation was
to a depth of a few inches, and there were possibly 3 to 4 inches
under the rollers. He described the material in the belt areas as
containing rocks and large material. Alan B. Smith, Respondent's
Safety Director, indicated that on December 8, 1987, there was
coal accumulation on the motors, drive rollers, and under the
take up unit.

 Based upon the above testimony, I conclude that when

observed by Wilt, on the morning of December 8, 1987, there was
indeed an accumulation of coal dust and loose coal which had not
been cleaned up in the area of the No. 3 belt, which is an
"active workings." As such, I conclude that it has been
established that Respondent herein violated 30 C.F.R. 75.400.

                         II.

 In essence, according to Wilt, the coal that had accumulated

in the belt area was damp i.e., containing moisture, but not
saturated. The accumulation in the area of the drive and the
take-up rollers was described as having a fine texture and being
loose and dry. Wilt's testimony in this regard was essentially
corroborated by Ryan, who also indicated that he observed coal
dust in the air as the consequence of persons kicking it up while
walking. Both Wilt and Ryan indicated essentially that, based
upon their experience, dry fine coal dust can be combustible.
According to Wilt, the belt bottom had been turning in the
material, and the belt rollers could cause friction rubbing
against the coal dust possibly causing it to ignite. Wilt also
indicated that there was an electrical current in the lighting
system above the belt starter box, and that a possible short in a
motor or electrical system could cause an ignition. He indicated
that if the coal would ignite there would be a fire and that the
resulting smoke could cause injuries. It was also Ryan's
uncontradicted testimony that the mine in question liberates more
than 2 million cubic feet of methane in a 24 hour period.

 Joseph Eugene Peck, Respondent's Shift Supervisor, testified

that he touched the material along the belts as he gathered some
of the rocks by hand. He indicated that some of the material was
probably wet enough so that "possibly" water could have been
squeezed out of it (Tr. 215). He said some of the material was

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damp i.e., not absolutely wet but not dry. Carl Randall Johnson,
Respondent's Section Foreman, indicated, in essence, that in the
take up area that he cleaned, the material that he shoveled was
wet and that it stuck to the shovel. He also described the
material under the rollers as being wet and that it soaked into
the clothing although he did not touch it. Alan B. Smith,
Respondent's Safety Director, indicated that he saw the Inspector
put his stick in some of the coal that had accumulated, and there
was wetness on it. Essentially he described the area in question
as very damp to wet, but indicated that the drive area was drier
than the balance of the area. Based on the above, I find the
testimony of Wilt and Ryan to be uncontradicted in that in the
area of the drive and take-up rollers, the accumulated coal dust
was dry. I accept the description of the material as contained in
the testimony of Wilt and Ryan inasmuch as they both touched the
material at these areas. Although the material in the area of the
belt was clearly damp, and Johnson and Peck described some of the
material as wet, I accept the testimony of Wilt and Ryan that the
material was not wet or saturated, inasmuch as both testified
that they actually touched the material. Furthermore, I find
persuasive Ryan's testimony, as it was not contradicted, that in
order for the water content of coal dust to be a barrier to an
explosion, the coal dust must have the "consistency of catsup"
(Tr. 126). He specifically indicated that none of the coal along
the left side of the belt had this consistency, and none of
Respondent's witnesses adduced testimony to establish that any of
the material in question had such a consistency.

 Accordingly, I conclude that on the date in question there

had been an accumulation of dry coal dust. Based on the
uncontradicted testimony of Wilt and Ryan, I conclude that dry
fine coal dust can be combustible. Smith indicated essentially
that the hazard of a fire would be somewhat negated by the facts
that the cables in proximity to the accumulated coal dust were
insulated and grounded, circuit breakers were in operation, the
motors were grounded, a fire suppresser system was on the belt
line, and the belting was MSHA-approved fire resistant.
Respondent also cites the lack of evidence of methane at the
time, and the fact that the belts were not running at the time of
the inspection. However, no evidence was adduced which
contradicted Wilt's statement that the belt bottom had been
turning in the accumulated material, and the belt roller could
cause friction which could serve as an ignition source for the
accumulated dry coal dust.(FOOTNOTE 1) I also note that although Smith

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indicated he had seen "numerous" methane spot inspections at the
A & B Portals, in which methane was not detected, none of
Respondent's witnesses contradicted Ryan's statement with regard
to fact that the mine in question liberates 2 million cubic feet
of methane over a 24 hour period. Also, there was no
contradiction of the testimony of Ryan and Wilt that should a
fire occur, it would result in serious injuries due to the
presence of smoke. Employees exposed to this hazard would be
those conducting examinations in the area and those assigned to
clean the area. Taking these factors into account, I conclude
that the violation herein contributed to the hazard of an
explosion or fire, with a reasonable likelihood of this hazard
resulting in injuries of a reasonably serious nature. As such,
the violation herein was significant and substantial.(FOOTNOTE 2)
(Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984)). I do not find
Mettiki Coal Corp., 8 FMSHRC 1768, (November 1986), cited by
Respondent in its Brief, to be relevant to the case at bar. In
Mettiki, supra, Judge Melick stated that he could not find the
violation therein to be significant and substantial in light of
the inspectors admission that "there was little likelihood of an
explosion." (8 FMSHRC 1768, supra at 1770). In contrast, in the
case at bar, Wilt opined that the fine texture of the coal around
the drive and take up rollers could have been ignited by
friction.

                        III.

 It is Petitioner's position that the violation herein

resulted from Respondent's unwarrantable failure. In this
connection, Wilt testified, in essence, that the accumulation was
easily observed. Wilt's testimony in this regard was corroborated
by Ryan, who termed the condition "very obvious," (Tr. 127).
Further, Wilt testified that he felt the accumulation around the
motors and it felt warm to the touch, and was "baked like" (Tr.
43). Accordingly, he concluded that the accumulation had been in
existence "for a period of time" (Tr. 42), to permit a drying out
process. Smith, in essence, opined that it would take 45 minutes
to an hour to dry coal out on the motors. I do not place much
weight on Smith's opinion in this regard, as although he had
touched the coal, he did not describe its dryness. In contrast,
Wilt handled the coal and described how it felt (Tr. 43).

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According to Polce, Rush, and Smith, due to the mining conditions
around the date in question, water from the coal seam being mined
frequently ran back along the belt knocking coal off the belt.
According to Peck, the violative condition looked recent, and due
to water from the longwall, accumulations can occur in a matter
of minutes. I give more weight to the testimony of Wilt, as his
testimony was not contradicted, with regard to the conditions
specifically at the drive and take up rollers. In addition, I
find his description credible, inasmuch as he actually had
touched the material. Also, his testimony, that the observed
condition was obvious, as corroborated by Ryan, has not been
contradicted. Also, Smith, while indicating that the accumulation
on the belt line could have occurred in 5 or 10 minutes, opined
that the coal in the belt area was there for several hours, and
on the motors for 45 minutes to an hour. Also, Government Exhibit
2, EXAMINATION OF BELT CONVEYORS, indicates that on all three
shifts on the day prior to the date of the inspection, it was
reported that on the belt in question the head and take up "needs
cleaned and dusted." (Sic.) In this connection, I find purely
speculative testimony by Polce and Stanley A. Martin,
Respondent's Fire Boss, that, in essence, the reported conditions
could have been cleaned up and then reoccurred. I do not find
support in the record for Respondent's position, as articulated
in its Post Hearing Brief, that the cited condition was
extraordinary and occurred after the preshift and last regularly
scheduled cleanup. None of Respondent's witnesses presented any
testimony, based on personal observations, as to when the
accumulations in question actually occurred, and as to whether
the conditions cited in the EXAMINATION OF BELT CONVEYORS on the
day prior to the day in question, were actually cleaned up. Smith
indicated that the conditions he observed on the day in question
were "much more severe" than when recorded in the EXAMINATION OF
BELT CONVEYORS (Tr. 251). I do not place much weight on this
conclusion, as there is no evidence that Smith had personal
knowledge of the nature of the conditions cited in the
EXAMINATION OF BELT CONVEYORS. Similarly, Timothy Clay Rush, a
miner engaged by Respondent who fire bosses the second portion of
the shift, indicated, in essence, that the condition described in
the Order in question is not consistent with what was reported in
the preshift examination. I do not find this probative in
establishing that the violative condition occurred subsequent to,
and was in excess of, the condition found on preshift
examinations, as his testimony does not establish he had personal
knowledge or recollection of the conditions existing at the
preshift examination (Tr. 173). Nor does it appear that he had
any personal knowledge of the conditions existing at the time of
the Order in question. Inasmuch as the evidence fails to
establish that the cited condition occurred after one preshift
examination and before another, as asserted by Respondent in its
Brief, I find that the

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case at bar, is distinguished from Freeman Coal Mining Co., 3
IBMA 439 (1979), and Target Industries Inc., 10 FMSHRC 161
(1988), cited by Respondent. In both Target Industries supra, and
Freeman Coal Mining Co., supra, the violative conditions occurred
after one preshift examination and before another.

 I thus find, based upon all the above, that the accumulation

of coal dust herein was obvious, and in existence for a time
period longer than that immediately prior to the inspection. I
also find that the coal accumulation, in the area in question,
was reported to management on three successive shifts immediately
prior to the shift in question in which the violation was
observed. I also find there was insufficient evidence to conclude
that Respondent either cleaned up the reported accumulative coal
or made any effort to do so. Based upon all the above, I conclude
that the violation herein resulted from Respondent's aggravated
conduct and thus constitutes an unwarrantable failure (See, Emery
Mining Corp., 9 FMSHRC 1197 (December 1987)).

                     IV.

 The testimony of Smith and Respondent's other employees who

testified, would appear to indicate that the accumulation of coal
herein was not caused by Respondent's negligence, but rather
inherent in the normal mining conditions, and operations on the
date in question. However, based on the rationale set forth in
III. above, infra, I conclude that the Respondent herein was
negligent to a high degree in not clearing the obvious
accumulation once it occurred. Taking into account the presence
of dry fine coal dust, as testified to by Wilt and Ryan, in the
area of the rollers and drive, along with the possibility of
friction from the belt rollers, and the history of methane
production in the mine as testified to by Ryan, I conclude that
the ignition of the coal dust was likely, and consequently find
the gravity of the violation herein to be moderately high. Taking
these matters into account, as well as the remaining factors in
section 110(i) of the Act, as stipulated to by the Parties, I
conclude that a civil penalty of $1000 is proper for the
violation found herein.

 Order No. 2944821

 Order No. 2944821 alleges as follows:

      The cat-walk leading from the ground level to the top
      of the raw coal silo which is a distance of
      approximately 500 feet in length is not being kept free
      of stumbling and slipping hazards, because with the
      exception of two isolated areas of distances of
      approximately 20 feet each, the entire length of the
      walkway

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is obstructed with loose coal and rock averaging from 2 to 6
inches deep and 20 to 24 inches wide. Jody Theriot, company, and
miner representative is the responsible person.

                        I.

 On November 16, 1987, at approximately 8:55 a.m., Wilt, in

the presence of Horace Joseph Theriot, Respondent's Safety
Coordinator, climbed up to a catwalk that ran approximately 700
feet connecting a metal building to a coal silo and providing
access to the top of the coal silo. He observed that, with the
exception of two isolated areas of approximately 20 feet in
length, the balance of the approximately 700 foot long by 24 inch
wide catwalk was generally covered with loose coal and rocks. He
described the catwalk as being totally obstructed, with the
exception of the two isolated areas, and indicated that the depth
of the material was measured to be an average of 2 to 6 inches.
In essence, he testified that although he could have walked on
the material without a rail, he used a rail as he considered the
material on the catwalk to constitute a stumbling hazard as it
would tend to turn one's feet when walking on it.

 Thomas Andrew Reed, an employee of Respondent, who has the

responsibility for clearing the middle portion of the catwalk,
testified, in essence, that when he was on the catwalk at
approximately 1 to 2 a.m., on November 16, 1987, there were only
some lumps on the catwalk, but not a lot of material. He also
indicated that when he left his shift, there was no coal in the
approximately 400 feet that he had cleaned. Theriot, who was with
Wilt at the time of the inspection, indicated that he did not
have any difficulty walking on the catwalk. Also, William Allen
Hartman, an employee of Respondent, who was cleaning the catwalk
at approximately 9:30 in the morning on November 16, indicated
that he could walk on the material on the catwalk.

 Although there was a vertical ladder providing access to the

silo, there was no evidence contradicting Wilt's testimony that
the catwalk in question does provide access to the top of the
silo. According to Wilt's uncontradicted testimony, an electrical
motor and a gear reduction unit are located in an enclosed area
at the top of the silo. As such, the catwalk would be a means of
an access to this area to service and repair such equipment.
Also, it appears from Wilt's testimony that the belt line is
parallel to the catwalk at the same level, and without any
separation between them. Respondents's employees, who clean and
grease the belt line would apparently have access to it by way of
the catwalk. Also, William Allen Hartman, who was responsible for
cleaning the uppermost portion of the catwalk, would have to walk
along the catwalk from the steps to reach his area of
responsibility. Therefore, I find that the catwalk is a travel
way or a means of access to areas

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where persons are required to travel or work, and as such is
within the purview of 30 C.F.R. 77.205(b). Although Reed
indicated, in essence, that there was not a lot of coal on the
catwalk when he observed it at 1 or 2 a.m., on November 16, I
find that, essentially, Wilt's detailed description of the
extent, depth, and description of the material that had
accumulated on the catwalk, was not contradicted. Although
essentially Reed, Theriot, and Hartman indicated that they did
not have any difficulty walking on the material, I conclude,
based upon Wilt's description of the material, its extent, and
depth, along with evidence of the slope of the catwalk, as
depicted in Exhibit R-2, that the accumulated coal and rocks
constituted a stumbling hazard. As such, I conclude that
Respondent herein did violate 30 C.F.R. 77.205(b).

                         II.

 In essence, Wilt testified that it was his opinion that,

taking into account the size and shape of the material that had
accumulated on the catwalk, as well as its slope, and considering
the difficulty that he himself experienced walking on the
catwalk, it was highly likely that the accumulation could
contribute to an injury to one person by causing that person to
slip and fall, resulting in broken bones, sprains, or
lacerations. In contrast, neither Theriot, who walked on the
material along with Wilt, nor Reed, who walked on the material a
few hours prior to Wilt, nor Hartman, who walked on the material
shortly after Wilt, experienced any difficulty walking. Clearly
the extensive presence of coal and rock accumulations on the
sloped catwalk did present a hazard of stumbling and falling.
However, I note that the catwalk had a rail, and Wilt who used
the rail in traversing the catwalk did not specifically testify
to the degree of hazard when using the rail. Hence, I conclude
that it has not been established that the presence of the rail
would not have minimized the likelihood of one stumbling or
falling. As such, I conclude that, although it was certainly
possible for one traversing the catwalk to have stumbled and
fallen and suffered a reasonably serious injury, it has not been
established that the hazard of falling and suffering a serious
injury was reasonably likely to have occurred. (c.f. Mathies Coal
Co., supra). As such, I conclude that the violation herein was
not significant and substantial. (Mathies Coal Co., supra).

                        III.

 According to Wilt, the extensive amount of material present

on the catwalk indicated to him that it had been permitted to
continue for "some time" (Tr. 337). He also indicated that he
observed two areas on the catwalk that had been cleaned, four
shovels, and foot prints in the material on the catwalk above him
towards the silo. He thus concluded that Respondent knew of the
condition.

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Steven Polce, Respondent's employee who has supervisory
responsibilities over the catwalk, indicated essentially that
three men are assigned to clean a portion of the catwalk, and
that he never told them to clean another section aside from their
own. William Allen Hartman, who was assigned to clean the upper
portion of the catwalk, indicated that when the day shift ended
on Friday, November 13, 1987, he walked the catwalk, and it was
clean top to bottom. Thomas Andrew Reed, Respondent's employee
who is responsible for the middle portion of the catwalk,
indicated that on the last shift on Friday, November 13, when he
left, his area was "fairly clean" (Tr. 384). (When called as a
witness for Respondent, Reed described his areas as "clean" at
the end of that shift (Tr. 428)). He also indicated that on the
shift from 11 p.m., November 15 to 7 a.m., November 16, he spent
3 1/2 to 4 hours cleaning, but only cleaned his area and when he
left there was no coal in his area and the area was clean. He
said he told Hartman, who had the responsibility of cleaning on
the next shift, that there was a little bit of binder and coal on
the catwalk. Reed indicated that, in general, Respondent does not
have any policy requiring the catwalk cleaners to call for help
to clean up the catwalk, and they are not required to inform
management of any coal accumulation on the catwalk when they
leave their shift. Reed also indicated that in October/November
1987, the catwalk was covered with material completely 2 to 3
times a week, and that material could accumulate in less than 15
minutes after it was cleaned. (Hartman indicated, in essence,
that an accumulation in these conditions could occur in 5
minutes).

 I have taken into account Wilt's opinion with regard to the

existence of the material for a period of time, but conclude,
based on the uncontradicted testimony of Hartman, that in
actuality, as observed by him, there was no accumulation of coal
on the catwalk at the end of the day shift on Friday, November

13. However, based on Reed's testimony, I conclude that at least
    as early as the 11 p.m. to 7 a.m shift November 15 to November
    16, there was an accumulation of coal and rocks on the catwalk,
    and that this condition was known to Reed. Inasmuch as Respondent
    did not have any procedures requiring the belt cleaners to report
    to management when there was an accumulation of coal they could
    not clean up, and inasmuch as only one employee per shift was
    assigned to clean only one third of the catwalk,(FOOTNOTE 3) I conclude

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that the existence of the coal accumulation observed by Wilt on
the morning of November 16, resulted from Respondent's aggravated
conduct. Thus, I conclude that the violation herein was the
result of Respondent's unwarrantable failure (See, Emery Mining
Corp., supra).

                         IV.

 The extensive presence of coal and rocks to a depth of 2 to

6 inches on the sloped catwalk clearly presented a stumbling
hazard. However, due to the presence of a rail, I conclude that
the gravity of the violation herein was only moderate. Inasmuch
as Respondent did not provide for more than one employee per
shift to clear more than one third of the catwalk, and inasmuch
as Reed knew of the accumulation of coal in the night shift
between November 15 and November 16, I conclude that the failure
of Respondent to clean the accumulated coal on the catwalk
constituted a high degree of negligence. Taking these factors
into account, as well as the remaining statutory factors in
section 110(i) of the Act, as stipulated to by the Parties, I
conclude that a penalty of $500 is appropriate for the violation
found herein.

 Order No. 2944822

 Order No. 2944822 reads as follows:

      Loose coal, including fine dry coal, and coal dust is
      accumulated between the top, and bottom moving conveyor
      belt leading from the mine portal to the top of the raw
      coal silo, these conditions exist the entire length of
      the conveyor which is approximately 500 feet in length.
      The accumulations are such as to permit numerous top
      rollers and belt to run in the materials, also due to
      the accumulations several to rollers are frozen and
      will not turn. Also when the conveyor reaches the
      ground level near the belt portal there is accumulation
      of coal from 2 to 5 feet in thickness, for a distance
      of 60 feet, the distance was measured with a tape rule.
      Jody Theriot, Company, miner representative is the
      responsible person.

                         I.

 At approximately 9:05 a.m., on November 16, 1987, Wilt

observed coal and coal dust in the pan, which is a structure
separating the top and bottom of the belt which runs alongside
the catwalk. He described the material in and around the rollers
as being fine, dry, and dusty. He said that several of the belt

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rollers were turning in the material. He described the material
that the belt had been running in as fine, dry, and dusty. In
contrast, Reed was asked on cross-examination whether the coal
was wet on the night shift of November 15 - 16, and he indicated
that he touched it in the process of cleaning and indicated that
it was wet. Hartman, who worked on cleaning up the belt on
November 16, at approximately 10 to 10:30 a.m., described the
coal on the pan line as "definitely wet," (Tr. 440). and said
that he did not see coal dust or dry coal on the belt. Also,
Theriot, who accompanied Wilt, indicated that he did not see dust
in the pan and did not recall dust being there.

 I place most weight on Wilt's testimony as to what he

actually observed in the specific area of the rollers. Neither
Reed nor Hartman, who described the material as being wet, nor
Theriot contradicted the testimony of Wilt, as neither of them
presented testimony specifically as to the area in and around the
rollers. Also, although Hartman indicated that he did not see
coal dust or dry coal on the belt, it is noted that he observed
this area approximately an hour and a half after it was cited and
after clean up had already begun. Thus, based upon Wilt's
testimony, I conclude that on approximately 9:05 a.m. on November
16, there was coal dust around the rollers. I accept Wilt's
testimony, as it was not contradicted, with regard to the
description of the pan, and conclude that it was a structure
within the purview of 30 C.F.R. 77.202.

 However, in order for a violation of section 77.202, supra,

to occur, the coal dust must exist "in dangerous amounts." In The
Pittsburgh & Midway Coal Mining Co., 6 FMSHRC 1347 (May 1984),
aff'd 8 FMSHRC 4 (January 1986), Commission Judge Broderick
interpreted the phrase "in dangerous amounts" as follows:
"Whether an accumulation is dangerous depends upon the amount of
the accumulation and the existence and location of sources of
ignition. The greater the concentration, the more likely it is to
be put into suspension and propogate (sic.) an explosion."
(Pittsburgh v. Midway Coal Mining Co., supra, at 1349). I adopt
this interpretation.

 At best, as argued by Petitioner in its Brief, the record

contains Wilt's observations as to rollers turning in accumulated
materials and rollers being frozen in place by accumulated
materials. There is no evidence with regard to the specific
amounts of the accumulation such as its color, depth, or
measurement of the area it covered. Also the record is devoid of
evidence with regard to the location and existence of sources of
ignition. Thus I conclude that it has not been established that
the coal dust present in the mine existed "in dangerous amounts."
As such, it has not been established that a violation of 77.202,
supra, occurred, and Order No. 2944822 must accordingly be
dismissed.

Page 15

~344
ORDER

 It is ORDERED that Respondent, within 30 days of this

Decision, pay $1,500 as Civil Penalties for the violation found
herein. It is further ORDERED that Order No. 2944821 be amended
to reflect the fact that the violation therein is not significant
and substantial. It is further ORDERED that Order No. 2944822 be
DISMISSED.

                           Avram Weisberger
                           Administrative Law Judge

FOOTNOTES START HERE
~FOOTNOTE_ONE
1. On redirect examination Johnson estimated that there were
3 to 4 feet between the rollers and the accumulation of coal.
However, I did not place much weight in this testimony as Johnson
had previously, on cross-examination, admitted that he did not
clean the rollers, and did not see the coal around the drive
rollers (Tr. 230).

~FOOTNOTE_TWO
2. In this connection I note that Smith, Respondent's Safety
Director, agreed that the violation herein was significant and
substantial.

~FOOTNOTE_THREE
3. Hartman indicated that he did help clean other areas,
although he did not have any such direct order. Although this
action is commendable, it does not exonerate Respondent's conduct
in assigning only one employee per shift to clean only one third
of the catwalk.