Mettiki Coal Company

Plain-English summary

Mettiki Coal Company faced consolidated proceedings involving ventilation, hoist-cable, and roof-control issues at the Mettiki Mine. Judge William Fauver vacated the order alleging that the mine's ventilation plan was violated because the cited areas carried intake air and complied with the plan. He affirmed the order involving a distorted hoist cable as a significant and substantial, unwarrantable violation and assessed a $1,100 penalty. He also affirmed revised citations involving roof support and preshift examination, with penalties of $100 each, for total penalties of $1,300.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.1434(e), 30 C.F.R. § 75.220, 30 C.F.R. § 75.303, 30 C.F.R. § 75.316, 30 U.S.C. § 820(i)
• Outcome: One ventilation order was vacated, one hoist-cable order and two revised citations were affirmed, and total penalties of $1,300 were assessed.
• Key point: The result turned on the mine's actual ventilation-plan configuration and on management's failure to remove a known distorted hoist cable from service.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. METTIKI COAL
DDATE:
19900112
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 89-6
PETITIONER A. C. No. 18-00621-03645

      v.                            Mettiki Mine

METTIKI COAL COMPANY,
RESPONDENT

                         DECISION

Appearances: Judith Horowitz, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, PA,
for the Secretary;

              Ann Klee, Esq., Crowell and Moring, Washington, DC,
              for the Respondent.

Before: Judge Fauver

 The Secretary of Labor seeks civil penalties for alleged

safety violations under 110(a) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. 801 et seq.

 Having considered the hearing evidence and the record1

as a whole, I find that a preponderance of the substantial,
reliable, and probative evidence establishes the following
Findings of Fact and additional findings in the Discussion below:

                        FINDINGS OF FACT

                        Mine Ventilation

 1. At all relevant times, the Mettiki Mine was ventilated by

an exhaust system. Mine fans on the surface pulled fresh intake
air from the portals into the mine.

 2. From the portals, intake air was pulled through three

main entries to the bottom of the hill, as shown on Exh. R-4, and
directed to the left into the K-Mains so it could be used to
ventilate the L-3 and L-4 longwall panels.

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3. On July 19, 1988, when Order 3115856 was issued, Mettiki was
in the process of retreat mining the L-3 longwall panel, although
no mining was being done that day because the mine was idle for
the miners' vacation.

 4. The L-3 longwall panel was ventilated by five intake

entries, two on the headgate side and three on the tailgate side.

 5. The intake entry on the headgate side served as the main

section intake; most of the air in that entry was used to
ventilate the longwall face. Once the intake air ventilated the
longwall face, it became return air which was carried out of the
mine through the bleeder entries and the gob and into the main
return.

 6. The three entries on the tailgate side of the L-3

longwall panel were also intake entries, which carried more fresh
air in an inby direction up the tailgate and into the bleeders.

 7. This method of ventilating the L-3 panel was approved in

the mine ventilation and methane and dust control plan.

 8. The main entries immediately outby the L-3 longwall

panel, which are the subject of this case, were ventilated
entirely with intake air.

 9. The "teardown rooms," consisting of two entries and

connecting crosscuts immediately inby these main entries, were
also ventilated with intake air. The teardown rooms were to be
used to disassemble the longwall equipment when the panel was
mined out, so that the L-3 longwall equipment could be moved to
the next panel.

 10. Because the L-3 panel was nearly mined out, Mettiki was

using the vacation period to complete a substantial amount of
work in the teardown rooms (including hauling supplies,
rehabilitating a roadway and operating a diesel scoop).

 11. Management decided that the rehabilitation work in the

teardown rooms required increased intake air, and to provide this
two special ventilation measures were taken. First, a stopping
was removed from the No. 12 crosscut between the Nos. 3 and 4
entries of the K-Mains so that intake air could be maintained in
the L-3 teardown rooms. Second, although it was not required by
the ventilation plan, a check curtain was erected in the No. 11
crosscut of the No. 2 main track entry ("A" on Exh. R-4) to
direct some of the fresh air headed for the longwall face into
that area.

 12. Once the intake air in the K-Mains ventilated the

teardown rooms, it was directed up the L-3 tailgate entries into
the bleeders behind the L-3 panel and out of the mine through the
main return.

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13. Intake air from an isolated K-Mains entry was also used to
ventilate the seals adjacent to a mined-out area.

 14. Once the fresh air swept the seals, it was directed into

the bleeder entries adjacent to the mined-out L-2 longwall panel,
into the main return, and out of the mine. The intake air that
ventilated the seals was not used to ventilate any working areas.
Order 3115856

 15. On July 19, 1988, MSHA Inspector William Darios

inspected the K-Mains entries immediately outby the L-3 longwall
panel.

  16. Inspector Darios had never been to the L-3 section

before, but he believed that the L-3 longwall panel was
ventilated in accordance with page 48b of Mettiki's ventilation
plan.

 17. Acting Mine Foreman Joe Peck accompanied Inspector

Darios on his inspection.

 18. Near the mouth of the tailgate entry, immediately

adjacent to the L-3 longwall panel, Inspector Darios took an air
measurement of 7,104 cubic feet per minute.

 19. He believed the air at that location was moving in an

outby direction and concluded it was return air.

 20. In addition, Inspector Darios believed that the air used

to ventilate the seals adjacent to the K-Mains entries was return
air, because he thought the seals were examined only weekly, as
required by 75.305 for seals ventilated with return air.
Because he thought there was return air in the tailgate entry and
at the seals, he assumed that all K-Mains entries at the mouth of
the L-3 longwall panel carried return air.

 21. All these assumptions led him to the conclusion that

having a check curtain (instead of a permanent stopping) in a
crosscut in the No. 2 entry of the K-Mains ("A" on Exh. R-4)
allowed air from the headgate side of the L-3 panel to "mix" with
the return air he believed to be present in the K-Mains entries.

 22. Believing this condition violated the mine's ventilation

plan, Inspector Darios issued Order 3115856, alleging a violation
of 30 C.F.R. 75.316.
Order 2493077

 23. On July 6, 1988, Inspector Darios issued Section

104(d)(2) Order 2943077 after observing a kink or bend in the

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cable of the C Portal Nordberg Hoist. The kink was 13 inches long
and kinked 3/8 of an inch when the cable was weighted and 7/8 of
an inch without weight.

 24. The kink in the cable was 10 feet 2 1/2 inches from the

Nordberg Hoist Barney car.

 25. Grease and dirt imbedded in the cable at the point of

the kink made it impossible to properly examine the damage
without proper cleaning.

 26. When the inspector observed the kink in the cable, the

equipment had not been removed from service.

 27. The condition was noted in the daily examination book by

the hoist operator on July 1, 1988.

 28. The damage was not repaired nor was the hoist cable

removed from service between July 1, 1988 and July 6, 1988.

 29. The kink was examined visually by the hoist operator but

the cable was not cleaned before his examination nor was the kink
measured during his examination.

 30. The equipment needed to repair the cable was present on

the mine property.

            DISCUSSION WITH FURTHER FINDINGS

                      Order 3115856

 The ventilation plan required that return entries be

separated from intake entries by permanent stoppings within three
crosscuts of any working face. Exh. J-3 at 48a. There was no
requirement that intake entries be separated from other intake
entries or that returns be separated by stoppings from other
returns. At the time Order 3115856 was issued, the K-Mains
immediately outby the L-3 longwall panel were ventilated with
intake air so that work could be performed in the teardown rooms.

 The check curtain cited by the inspector was placed in the

middle of an intake entry, and permitted a small amount of intake
air to pass through the curtain to intake entries on the other
side. Placement of the curtain did not violate Mettiki's
ventilation plan. Rather, as Mr. Peck testified, at the time the
order was issued, the ventilation of the K-Mains and the L-3
longwall panel complied with the ventilation plan; the air
pressure against the check curtain was what he expected to see,
indicating that the K-Mains were ventilated with intake air.

 There was no requirement for a stopping or even a check

curtain at the No. 11 crosscut of the No. 2 entry cited by the
inspector. Mr. Peck testified that the only reason a check

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curtain had been installed at that location was to maintain the
amount of fresh air going to the longwall face; it was not
intended as a permanent separation because one was not required.
Moreover, there was no requirement for a stopping at the No. 12
crosscut between the Nos. 3 and 4 entries of the K-Mains. Mr.
Peck testified that a stopping had been necessary at that
location to maintain the separation between the primary and
secondary escapeways from the L-2 longwall section during the
retreat mining of that panel. However, once the L-2 panel was
mined out and retreat mining switched to the L-3 longwall panel,
the escapeways had to be rerouted, obviating the need for a
stopping at the location cited by the inspector. Tr. 330-33.

 I find that the L-3 longwall panel was being ventilated in

accordance with page 48a of the ventilation plan, as Mr. Peck
explained. The inspector was mistaken in his conclusion that
Respondent was following page 48b of the plan.

 Thus, contrary to the inspector's assumptions, there was no

mixing of intake and return air in violation of the ventilation
plan, because there was no return air in the places he believed
it existed. Where the stopping had been removed and where the
check curtain was located, intake air was mixing with intake air
and that did not violate Mettiki's ventilation plan or any other
mandatory standard.

                      Order 23943077

 The Secretary has alleged a violation of 30 C.F.R.

75.1434(e), which provides in part:

      Unless damage or deterioration is removed by
 cutoff, wire ropes shall be removed from
 service when any of the following conditions
 occurs:

                 *     *     *

      (e) Distortion of the rope structure * * *.

 On Friday, July 1, 1988, Hoistman Ellsworth Lambert noticed

a kink, or bend, in the hoist cable and noted it in the hoist
examination book at 4:20 p.m. On Tuesday, July 6, before 7:30
a.m., Mine Superintendent Steve Polce called Maintenance Foreman
Dave Blythe to inform him that a bend in the hoist rope had been
reported. He sent Maintenance Foreman Blythe to investigate the
condition. Mr. Blythe examined the kink and considered it a
distortion of the rope structure within the meaning of
75.1434(e). He ordered parts to replace the damaged part of the
cable, but did not remove the cable from service pending repairs.

 Later that day, around 9:45 a.m., MSHA Inspector Joseph W.

Darios inspected the hoist. After carefully inspecting the kink

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in the cable, he issued Order 23943077 alleging a "substantial
and significant" (S & S) violation of 30 C.F.R. 1434(e), and an
unwarrantable failure to comply with the regulation.

 I find that the kink in the cable was a "distortion of the

rope structure" within the meaning of 75.1434(e), as recognized
in the testimony of both Inspector Davis and Maintenance Foreman
Blythe. Respondent's argument that the kink was not a distortion
of the cable structure is not persuasive, and is far afield of
the facts in this case.

 Inspector Darios found the violation was S & S because of

the risk of serious injuries in the event the cable broke. The
hoist cable supported mantrips and heavy equipment up and down a
steep slope (about a 15% grade). If the cable broke, there was a
reasonable likelihood of serious injuries.

 The Secretary has proven a significant and substantial

hazard under the criteria set forth in the Act and by the
Commission. An S & S violation is one "that could significantly
and substantially contribute to the cause and effect of a mine
safety or health hazard" ( 104(d)(1) of the Act). If, "based
upon the particular facts surrounding [the] violation, there
exists a reasonable likelihood that the hazard contributed to
will result in an injury or illness of a reasonably serious
nature" the violation meets the statutory definition. Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (1981).

 In Mathies Coal Company, 6 FMSHRC 1 (1984), the Commission

further discussed the element of an S & S violation. The
Secretary must prove: (1) there is a violation, (2) the violation
contributed to a discrete safety hazard, (3) the hazard would be
reasonably likely to lead to an injury and (4) the injury would
be reasonably serious. 6 FMSHRC at 3-4.

 In this case, the violation contributed to a discrete safety

hazard of the hoist's wire rope breaking. Inspector Darios
noticed the kink in the cable. Seeing that dirt and grease were
coating the cable, he asked to have the area cleaned so he could
examine it. He then measured the distortion with weight on the
cable and with weight removed from the cable. He observed that
the spacing between the lays of the cable in the internal portion
of the kink was wider than usual. He concluded, based upon his
expert training, experience and careful observations, that the
cable was distorted, that there could be internal damage to the
wire rope and that the total condition created an S & S hazard of
the rope breaking.

 The evidence clearly supports the conclusion that the

violation contributed to the cause and effect of a discrete
safety hazard and that continued normal mining operations would
endanger miners. There was sufficient visible evidence of a

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distortion of the cable structure to justify the inspector's
concerns about possible internal damage.

 The evidence further establishes that the hazard contributed

to by the violation was reasonably likely to result in serious
injuries. Breakage of the cable was reasonably likely to result
in a number of different events that could cause serious injury.
Derailment of the hoist could result in a collision between the
hoist and equipment parked on side tracks. Such a derailment and
the subsequent collision could result in miners becoming caught
between equipment. Also, heavy equipment could travel down the
track and strike people at the bottom of the slope. In the event
the cable broke, even if emergency equipment operated
successfully to prevent a collision or derailment (and this is
not always a reasonable assumption), lurching of a mantrip could
cause serious injuries to riders.

 The operator introduced the results of a destructive test in

which the cable broke at 217,000 pounds. This evidence also
showed that the cable broke at the point of the kink. Therefore,
the weakest point, the point of failure, was the site of the
distortion. The evidence demonstrates that the kink threatened
the integrity of the cable. Furthermore, the test itself did not
reflect the conditions under which the rope was used. In the
test, constant pressure was increased until the cable broke; this
was not intermittent pressure that would reflect the daily strain
put on the cable. Nor did the test take into account the fact
that, with continued use of the cable, strands in the distorted
section would undergo greater friction, and more water would
infiltrate the core of the cable with greater risk of corrosion.

 The Commission stated in National Gypsum that the

inspector's independent judgment and expertise are an important
element in making significant and substantial findings. Inspector
Darios carefully examined the distortion in the cable, including
measurements with weight tests, and reasonably concluded there
was an S & S hazard if the condition were allowed to continue
unabated.

 The inspector also found an unwarrantable violation. A

violation is unwarrantable if it results from "aggravated
conduct" constituting more than ordinary negligence. Emery Mining
Company, 9 FMSHRC 1997 (1987). I find that Respondent displayed
indifference or a serious lack of reasonable care in failing to
address the problem in the hoist cable that existed for six days.
Such conduct met the Emery Mining definition of an unwarrantable
violation.

 Both the lack of procedures that would assure prompt

discovery and correction of the violation and management's
conduct in failing to address and correct the condition once it
was discovered support a finding of unwarrantable failure. The
hoist operator, Elwood Lambert, first noticed that there was a

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kink in the cable around 4:20 p.m. on Friday, July 1, 1988,
during his daily examination of the equipment. The condition was
reported in the examination book on July 1 and was noted every
day until July 6, 1988, when Inspector Darios came to the mine to
conduct a regular inspection. Although the condition was noted
for six days, management did not take any action to examine the
cable until July 6, 1988, when Maintenance Foreman Dave Blythe
examined the cable in response to a call from the Mine
Superintendent. At that time, he looked at the cable and decided
that the problem was not serious. He decided to perform the
repairs when convenient. No other management official examined
the cable before the order was issued by Inspector Darios.

 Respondent's decision to allow the cable to remain in

service demonstrates a serious lack of reasonable care. Because
he was the only member of management to examine the cable before
the order was issued, Foreman Blythe's actions must be closely
examined. First, he decided to allow the cable to remain in
service in spite of his belief at the time that the kink
constituted a distortion of the structure of the cable within the
meaning of 30 C.F.R. 75.1434(e). Tr. 602. He explained his
decision to allow the violation to continue by saying that the
cable had been allowed to remain in service in the past when
broken wires had been found. Tr. 610. This explanation is
unsatisfactory. It must be noted that he failed in this case to
make measurements with a micrometer as he had been required to do
when broken wires were found. Tr. 610-611. Furthermore, whereas
distortions require retirement of a cable ( 75.1434(e)) broken
wires may not (see 75.1434(a)). Moreover, although he felt the
condition posed no hazard, he was aware that a visual examination
of an unbroken cable does not reveal internal damage. Finally, he
did not mention that he placed any reliance on previously issued
citations. He only said that the mine has always repaired
distortions when convenient.

 Management's failure to discover and correct the violation

for almost a week further supports a finding that its conduct
constitutes an unwarrantable violation. The daily examination
books are countersigned by a management official. However, no
management official was available to perform this duty from
Friday, July 1, until the following Tuesday, July 5. Even at that
time, no action was taken and the condition was allowed to exist
another day without attention. When Foreman Blythe was finally
notified of the condition, his examination was only cursory.

 Respondent argues that its conduct was not unwarrantable

because its personnel relied on citations issued by another
inspector, Wayne Fetty, for distortions in wire ropes in which
the rope was not required to be removed from service immediately.
However, the actions taken by Mettiki's management at the time of
the instant violation reveal that management was not even aware
of the condition for five days after it was first reported in the

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examination books. Tr. 688-689. Further, the management official
who examined the cable did not indicate that he relied upon Mr.
Fetty's citations. In fact, he testified that he never discussed
with Mr. Fetty what constitutes sufficient damage for application
of the retirement criteria. Tr. 601.

 An examination of the operator's conduct at the time the

distortion was discovered reveals a failure of management to
address safety problems identified by the miners. The duty of
assessment of the severity of the distortion of the cable was
left to the judgment of an hourly employee. Tr. 691. Under
management's policy, it was the rank and file's responsibility to
determine if a problem already identified in the examination
books is serious enough to alert management to take immediate
action. Tr. 690-691. If a problem happened to occur on a Friday
as it did in this case, there was no management official
responsible for locating and assessing violations that occurred
to the hoist. Tr. 690-691.

 On balance, I find that Respondent's conduct rose to a level

above ordinary negligence.

 Considering all the criteria for a civil penalty in   110(i)

of the Act, I assess a civil penalty of $1100 for this violation.
Orders 3115846 and 3115848

 At the hearing, the parties stipulated that the only issue

remaining on liability as to these orders is whether Mettiki's
roof control plan required Mettiki to replace posts that were
removed in order to install longwall equipment. Tr. 472. If this
issue is answered in the affirmative, the parties stipulated that
the above 104(d) orders should be modified to 104(a)
citations with reduced findings of negligence and gravity.

 Order 3115846 alleges that roof support posts had been

removed in a number of places in the L-4 entry and Nos. 5 and 6
crosscuts allowing the width of the entry and crosscuts to exceed
18 feet, in violation of Mettiki's roof control plan and 30
C.F.R. 75.220. Order 3115848 alleges a violation of 30 C.F.R.
75.303 for a failure to conduct an adequate preshift examination
of the cited area.

 Mettiki's roof control plan provided that, "As the longwall

pan, shields, and shearer are installed, posts will be removed as
necessary." Jt. Ex. 4, p.31.

 The Secretary contends that this provision is only a

conditional exception to the requirement for an 18 foot width in
the longwall setup entry and crosscut. She contends that in
context, the word "as" is synonymous with "while" or "when" so
that the roof control provision means that after the longwall
equipment is moved through the entry and crosscut, the removed

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posts must be put back in place to keep a maximum width of 18
feet.

 Respondent contends that the roof control plan does not

expressly require posts to be reinstalled after they have been
removed according to the plan, and such a requirement is not
reasonably implied by the plan.

 The roof control plan requires the setup entry and crosscuts

to be mined 18 feet wide initially and supported with roof bolts.
The operator is then required to set a double row of posts on
five foot centers along the length of the setup entry and
crosscuts. The plan then and only then allows the operator to
shear off an additional five feet in width along the rib opposite
the posts to allow the entry or crosscut to be a maximum width of
23 feet. The stated purpose of requiring the double row of posts
to be set is to maintain an 18 foot width before the entry and
crosscut is widened to 23 feet. At no time in the process is the
setup entry and crosscut allowed to become more than 18 feet wide
without additional support of the double row of posts.

 The plan then provides that, "As the longwall pan, shields,

and shearer are installed, posts will be removed as necessary."
(Emphasis added.) The word "as" is reasonably interpreted to mean
"during the time that," or "while" in this context. Thus, the
plan allows for removal of the posts only during installation of
the panline, shields and shearer. The limitation that the posts
be removed only as necessary further emphasizes that such removal
be minimized.

 The roof support plan specifies the order in which the steps

are to be performed so that the set-up entry and crosscuts may be
sheared to a maximum width of 23 feet. The plan requires that the
steps be taken in a specific order so that at each step the entry
and crosscut are always narrowed by, and supported by posts.
Further, the plan for supporting the roof of the longwall setup
entry and crosscut specifically states that the "entry and
crosscut will be sheared to 23 feet wide and supported to plan."
(Emphasis added.) The plan requires the double row of posts to be
set. That requirement read in conjunction with the provision
allowing removal of such posts only when installation of the
panline, shields or shear is occurring, supports the conclusion
that the posts must be reinstalled after removal.

 To interpret the roof plan to allow posts to remain absent

would render the specific cutting and roof support procedures
superfluous. The plan must not be interpreted to render its
requirements illogical. If the roof support plan for the longwall
setup entry and crosscuts were interpreted as urged by the
operator, the effect would be quite dangerous. If posts were not
required to be replaced, one section of panline might be
installed and posts could be removed. Then if work did not
continue, under Respondent's interpretation the entry or crosscut

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could remain unsupported with excessive widths indefinitely. The
plan is written and must be interpreted to avoid this result.

 The parties' stipulation is granted to modify these orders

to 104(a) citations with reduced findings of negligence and
gravity. The original allegation of negligence in Order 3115846
is changed to moderate negligence and gravity is changed by
deleting S & S. In Order 3115848, the original allegation of
negligence is changed to moderate negligence and gravity is
changed by deleting S & S.

 Independent of the question whether the instant violation is

"significant and substantial" within the meaning of 104(d)(1)
of the Act, I find that it is a serious violation within the
meaning of "gravity" in 110(i) of the Act. It is serious
because the safety standard is an important protection for miners
and Respondent's conduct created a reasonable possibility of
serious injury that could result from excessive widths of entries
and crosscuts. It is also a serious violation because of the need
to deter future violations of this type.

 Considering all the criteria for civil penalties in   110(i)

of the Act, I assess a civil penalty of $100 for each of the two
violations cited in revised Citations 3115846 and 3115848.

                   CONCLUSIONS OF LAW

 1. The judge has jurisdiction over this proceeding.

 2. The Secretary failed to prove a violation of 30 C.F.R.

75.316 as alleged in Order 3115856.

 3. Respondent violated 30 C.F.R.   75.1434(e) as alleged in

Order 23943077.

 4. Respondent violated 30 C.F.R.   75.220 as alleged in

revised Citation 3115846.

 5. Respondent violated 30 C.F.R.   75.303 as alleged in

revised Citation 3115848.

                          Order

 WHEREFORE IT IS ORDERED that:

 1. Order 3115856 is VACATED; Order 23943077 is AFFIRMED;

revised Citations 3115846 and 3115848 are AFFIRMED.

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2. Respondent shall pay the above civil penalties of $1,300
within 30 days of this Decision.

                            William Fauver
                            Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE

 1. The transcript and exhibits are consolidated in Docket

Nos. YORK 89-10-R, YORK 89-12-R, YORK 89-5, YORK 89-6, YORK
89-16, YORK 89-17, YORK 89-18, YORK 89-26, and YORK 89-28.