Mettiki Coal Corporation

Plain-English summary

Mettiki Coal operated the Mettiki Mine. MSHA found that a damaged check curtain allowed air from a belt entry to ventilate an active working section, contrary to 30 C.F.R. § 75.326. Judge Avram Weisberger found that the violation occurred, but the evidence did not establish a reasonable likelihood of a serious injury or that the condition resulted from aggravated conduct. He amended the order to a section 104(a) citation, removed the significant-and-substantial and unwarrantable-failure designations, and assessed a $100 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.326
• Outcome: The order was modified to a section 104(a) citation without S&S or unwarrantable-failure designations, with a $100 penalty.
• Key point: A ventilation violation may be established even when the operator had little opportunity to discover a recently loosened curtain, but the enforcement designations require additional proof.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. METTIKI COAL
DDATE:
19890523
TTEXT:

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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 88-30
PETITIONER A. C. No. 18-00621-03624

         v.                            Mettiki Mine

METTIKI COAL CORPORATION,
RESPONDENT

                                DECISION

Appearances: Anita D. Eve, Esq., Office of the Solicitor,
Department of Labor, Philadelphia, Pennsylvania,
for the Secretary;
Susan E. Chetlin, Esq., Jane C. Baird, Esq.,
Crowell & Moring, Washington, DC, for Respondent.

Before: Judge Weisberger

Statement of the Case

 In this case, the Secretary (Petitioner) seeks a Civil

Penalty for an alleged violations of the Operator (Respondent) of
30 C.F.R. 75.326. Pursuant to notice, this case was heard in
Falls Church, Virginia, on February 14, 1989. At the hearing,
Philip Martin Wilt, Barry Lane Ryan, and Dennis Deaver testified
for Petitioner. John Pritt, Carl Randal Johnson, and Mark
Carpenter testified for Respondent. Proposed Findings of Fact and
Briefs were filed by Petitioner and Respondent on April 24, 1989.
Respondent's filed a Reply Brief on May 12, 1989.

 Respondent, on April 24, 1989, filed a Motion to Correct

Hearing Transcript. Respondent, in its Motion, indicated the
Petitioner did not object to the Motion, and it is hereby
granted.

Stipulations

    At the hearing, the following stipulations were entered

into:

 1. That Mettiki Coal Corporation is the owner and operator

of the Mettiki Mine located in Deer Park, Garrett County,
Maryland.

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2. That Mettiki Coal Corporation and Mettiki Mine are subject to
the jurisdiction of the Federal Mine Safety and Health Act of
1977.

   3. That the Mettiki Mine was opened after March 30, 1970.

 4. The Administrative Law Judge has jurisdiction over this

case pursuant to section 105 of the Act.

 5. A copy of the Order was properly served by Philip M.

Wilt, a duly authorized representative of the Secretary, upon an
agent of the Respondent at the date, time and place stated
therein, and may be admitted into evidence for the purpose of
establishing its issuance, and not necessarily for the
truthfulness or relevancy of any statements asserted therein.

 6. That the assessment of a civil penalty in this proceeding

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

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

of the coal operator's business should be based on the fact that
Respondent's annual production tonnage is 2,294,859.

 8. That Mettiki Mine was assessed a total of 382 violations

over 547 inspection days for a 24-month period immediately
preceding the issuance of the order involved in this case.

 9. That, in fact, air from the belt haulage entry was

ventilating at the working face on February 22, 1988, at the time
and place in which Philip Wilt indicated pursuant to Order No.
3115962.

Findings of Fact and Discussion

                                 I.

 On February 22, 1988, while inspecting the E2 Section of

Respondent's Mettiki Mine, Philip Martin Wilt, a MSHA Inspector,
noted that a check curtain at the feeder to the belt had an
opening in the left bottom corner, which he measured as 5 square
feet, and additionally had more than five openings. Wilt termed
the curtain to be "very poorly" and "loosely" installed (Tr. 24),
and said that he measured 1300 cubic feet of air going through
the curtain's opening. He issued a 104(d)(2) Order, citing
Respondent with allowing air from the conveyor belt entry to
enter into and ventilate the active working section. Respondent
concedes that air from the belt did enter the working section.
Accordingly, it is found that Respondent herein did violate
section 75.326, supra, which, in essence, provides that air from
the belt entries shall not be used to ventilate active working
places.

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II.

 According to Wilt, if an ignition would have occurred in the

belt line, the resulting dark smoke and gases could have entered
into the working areas causing "zero" (Tr. 39) visibility, and
the possibility of miners working there being overcome by the
gases. Barry Lane Ryan, a MSHA Supervisor, essentially agreed
with Wilt's assessment, and in addition, indicated that in a belt
entry there are ignition sources such as cables and belt rollers.
Also, according to Ryan, a belt rolling over frozen rollers, or
cutting into timbers that are too close to the belt line, creates
friction which is a source of ignition. Ryan also indicated that
coal dust is generated by the belt movement which would then, if
air is flowing from the belt entry to the face, go to the face,
exposing miners to coal dust.

 At the time the Order in question was issued, there was no

production on the section, although the belt was in operation.
According to Mark Carpenter, Respondent's section foreman, who
arrived on the section for the start of the shift along with Wilt
and the other miners in the section, indicated that when he went
to make his fire boss inspection, the miners on the shift were at
the tool car, which was located one cross cut inby the face and
between the intake entry and the number four return entry. As
such, the weight of the evidence does not establish that at the
time of the violation there were miners at the face exposed to
air from the belt entry. Ryan's testimony with regard to the
effect of the instant violation, was merely hypothetical, as he
did not observe the conditions on the date in issue. Although, at
best, the testimony of Petitioner's witnesses tends to establish
that a health hazard to miners could have been contributed to by
the violation herein, it fails to establish that there was any
reasonable likelihood of a hazard occurring, nor a reasonable
likelihood that it would result in injury of a reasonably serious
nature. As such, I find it has not been established that the
violation herein was significant and substantial (c.f. Mathies
Coal Co., 6 FMSHRC 1 (January 1984)).

                              III.

 Wilt indicated that when he observed the curtain in question

on February 22, 1988, it was "loosely" installed (Tr. 24), had
more than five openings, with one in the left hand corner being 5
feet square, and opined that it was an "old curtain", and in
"poor" condition (Tr. 52). In this connection, Wilt indicated
that he relied upon his review of a Daily Section and Time Report
(Exhibit R-3), which indicated that on the previous shift a
curtain was hung at the feeder in an "elapsed time" of 8 minutes.
According to Wilt, he did not see any evidence of rocks or coal
having fallen from the ridge of the roof in the area of the

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feeder curtain. Essentially Wilt opined that the violation was
due to Respondent's unwarrantable failure, based on ". . . the
condition and in the way the curtain was installed" (Tr. 41). He
also indicated, essentially, that he considered Respondent
negligent based on the above factors, as well as the fact that in
the preceding quarter he issued three citations for violations of
the standard at issue.

 Ryan indicated that he essentially agreed with Wilt's

conclusions with regard to Respondent's negligence, and the fact
that the violation resulted from its unwarrantable failure.
Essentially, Ryan indicated that his opinion in this regard was
based upon the same factors testified to by Wilt. He also
considered that it was "unreasonable" for the "high" amount of
air in the belt entry to be regulated through an 8 inch square
regulator (Tr. 61).

 According to the uncontradicted testimony of John Pritt,

Respondent's section foreman for the day shift, the curtain in
question was installed on February 22, 1988, at the commencement
of the day shift at approximately 8:00 a.m., by being wired to
roof bolts at the top of the roof, and was nailed to rib boards
every 4 feet and to the coal in the rib. He indicated that there
were no major tears in the curtain when it was installed. He
indicated that he had installed the curtain because in the
preceding shift the belt and its feeder was moved to a side dump
position from an end dump position. According to Pritt, it took
three persons to hang the curtain, and that the 8 minutes
indicated on the Daily Section and Time Report was only an
estimate which was arrived at after the shift was completed at
3:00 p.m. . Pritt indicated that when he left the section at
about 2:30 p.m., on February 22, he did a preshift examination
for the next shift and the curtain was tight without any major
tears and "in good shape" (Tr. 114). He also indicated,
essentially, that the air was checked at the feeder at that time
and was going in the right direction. He described the curtain,
when he left the section, as "hanging straight up and down"
without any force of air in either direction (Tr. 128). He
indicated that the belt was running when he left, and that power
was subsequently shut off on the way out.

 I have taken into account Wilt's testimony that he did not

observe any evidence of rocks having fallen from the ribs or roof
in the area of the feeder. I find this testimony insufficient to
contradict the testimony of Pritt that when he left the section
at the end of the day shift at approximately 2:30 p.m., the check
curtain was "tight" and "in good shape" (Tr. 114). (In this
connection I note that even Wilt agreed that a curtain could come

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loose in seconds if there were rocks on the feeder or if people
walk though the curtain. The evidence indicates that miners do
indeed travel through the curtain feeder).

 I also find no contradiction to Carpenter's testimony that

upon arrival on the section in the afternoon shift along with
Wilt, he went to perform his fire boss inspection, which usually
includes the belt entry feeder area, and had not yet reached that
area by the time Wilt issued the Order in question. Thus, it
appears that the loosening of the curtain occurred between the
time Pritt left the section at 2:30 p.m., and the time it was
observed by Wilt at 3:45 p.m., and before Carpenter had a chance
to discover it in the course of his fire bossing. Thus,
Respondent had no opportunity to find and tighten the curtain
before Wilt issued the Order in question.

 Taking all the above into account, I conclude it has not

been established that the condition, and specifically the air
flow observed by Wilt at the beginning of the afternoon shift,
was the result of any aggravated conduct on the part of
Respondent. Accordingly, I find that it has not been established
that the violation herein resulted from Respondent's
unwarrantable failure. (Emery Mining Corp., 9 FMSHRC 1997 (1987).
IV. Inasmuch as the evidence establishes that as a consequence
of the violation herein, an ignition in the belt area could
result in miners at the working faces being subjected to gases
and dense smoke, I find that the violation herein to be of a
moderately serious nature. Based upon the testimony of Pritt, as
discussed above, III., infra, I find that the violative condition
did not exist at the end of the day shift when Pritt made the
last examination. The record does not establish the cause of the
violative condition, but it is clear that it occurred sometime
between Pritt's last inspection, and the time it was noted by
Wilt. It is significant to note that Carpenter, who had the
responsibility of inspecting the section prior to the
commencement of the afternoon shift, was on his round, and had
not yet had an opportunity to inspect the feeder area before it
was cited by Wilt. Taking into account all the above, I conclude
that Respondent herein was negligent to only a low degree. I also
have considered the various other factors set forth in section
110(i) of the Act, as stipulated to by the Parties, and I adopt
their stipulations. Based on all the above, I conclude that a
penalty of $100 is appropriate for the violation herein of
section 75.326, supra.

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ORDER

 It is hereby ORDERED that Order No. 3115962 be amended to a

section 104(a) Citation to reflect the fact that the violation
cited therein was neither significant and substantial, nor was it
the result of Respondent's unwarrantable failure. It is further
ORDERED that Respondent shall pay $100, within 30 days of this
Decision, as civil penalty for the violation found herein.

 It is further ORDERED that the Transcript of the hearing in

this matter be amended to reflect the changes set forth in
Respondent's Motion to Amend Transcript filed on April 24, 1989.

                            Avram Weisberger
                            Administrative Law Judge