FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001

April 25, 2012

NOTICE OF RESCHEDULED HEARING

            The hearing in these proceedings had been scheduled for May 1, 2012, in the vicinity of Pikeville, Kentucky. During an April 19, 2012, telephone conference, for the reasons discussed below, the parties were advised that the hearing would be moved to the Commission’s Headquarters in Washington, D.C. After being informed of the change in hearing location, the Secretary requested a continuance for the purpose of providing additional time to complete travel arrangements. Good cause having been shown, the Secretary’s request for continuance IS GRANTED. The parties have agreed that June 6, 2012, is a suitable revised hearing date.

            These matters concern 46 violations for which the Secretary has proposed a total civil penalty of $44,996.00. During the course of several telephone conferences culminating in the April 19, 2012, conference, the parties advised that they have settled 44 of the 46 subject violations. The two citations that remain are 104(d)(2) Order No. 8222328 in Docket No. KENT 2009-1426 and 104(a) Citation 8222333 in Docket No. KENT 2009-955.

            104(d)(2) Order No. 8222328 in Docket No. KENT 2009-1426, issued on February 10, 2009, concerns an alleged violation of 30 C.F.R. § 75.400 that prohibits accumulations of float coal dust on electrical equipment. The cited violation was initially attributed to a moderate degree of negligence. The citation was subsequently modified to a 104(d)(2) order that specified the negligence as high. The modification was based on the Respondent’s history of previous violations of section 75.400. The modified 104(d) order states, in pertinent part, “[t]hese accumulations are evident through the box[’s] inspection window and appear to be approximately 1/8 of an inch in depth and are deposited upon the energized components and the box[’s] floor.” The Secretary proposes a civil penalty of $6,224.00 for 104(d)(2) Order No. 8222328.

            104(a) Citation 8222333 in Docket No. KENT 2009-955, issued on February 11, 2009, concerns an alleged violation of 30 C.F.R § 75.512-2 that requires weekly examinations of electrical equipment to ensure that electrical equipment is maintained in a safe condition. The cited violation was attributable to a moderate degree of negligence. The Secretary proposes a civil penalty of $585.00 for Citation No. 8222333. The Citation, in pertinent part, states:

The examination record indicates that the examination performed on 2-9-09 revealed no hazardous conditions. However, on 2-10-09 an MSHA inspector observed accumulations of black float coal dust deposited on the inside, energized phase conductors and floor, which resulted in the issuance of a violation of 75.400 [104(d)(2) Order No. 8222328]. This condition was observed through the box[’s] provided inspection window and would be obvious to any reasonably prudent person familiar with the requirements of this type of examination.

            During the telephone conferences, I expressed my recognition of the parties’ good faith efforts in reaching a settlement for the vast majority of the citations at issue in these proceedings. With regard to the subject accumulations, counsel for both parties agreed that the accumulations were observed through the window of an electrical box. The parties further agreed that the accumulations were neither objectively measured nor analyzed for combustible content.

            With respect to the fact of the violations, counsel for the Respondent asserted that the cited 1/8 of an inch accumulations primarily consisted of inert rock dust. However,

I urged the parties to resolve the issue of the fact of the violations based on Commission case law that affords broad discretion to mine inspectors in determining whether accumulations violate section 75.400. See Old Ben Coal Company, 2 FMSHRC 2806, 2808 (October 1980); Amax Coal Co., 19 FMSHRC 846, 847, 849 (May 1997); Jim Walter Resources, Inc., 19 FMSHRC 480, 483 (Mar. 1997); Enlow Fork Mining Co., 19 FMSHRC 5, 19-20 (Jan. 1997) (Marks, concurring).

            Turning to the issue of unwarrantable failure, the parties were requested to focus on whether the cited accumulations, only estimated to be between 1/16 and 1/8 of an inch in depth, were of sufficient magnitude to support an unwarrantable failure. In this regard, the parties were directed to consider in their settlement negotiations the indicia of an unwarrantable failure that include the extent of a violative condition, the length of time that it has existed, whether the violation is obvious, whether the violation poses a high degree of danger, whether the operator has been placed on notice that greater efforts are necessary for compliance, and the operator’s compliance efforts made prior to the issuance of the citation or order. Enlow Fork Mining Co., 19 FMSHRC 5, 11-12, 17 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984).

            The various factors considered in determining whether a violation is unwarrantable must be viewed in the context of the factual circumstances in a particular case, and some factors may be entitled to more weight in a particular factual scenario. See Consolidation Coal, 23 FMSHRC 588, 593 (June 2001) (citations omitted). While the history of previous violations is relevant, a subsequent violation of section 75.400 manifest by accumulations of no more than 1/8 of an inch is not per se unwarrantable. Thus, the parties should consider in any settlement negotiations, or in preparation for a hearing, whether there are any additional aggravating factors, given the de minimis extent of the subject accumulations. In this regard, the cited accumulations were originally attributed to a moderate degree of negligence. So too, the failure of the electrical examiner to note the accumulations was also attributed to moderate negligence reflecting that the accumulations may not have been conspicuous.

            Although there do not appear to be irreconcilable differences with regard to the fact of the violations, the parties apparently have been unable to reach an agreement with respect to unwarrantable failure. In the absence of settlement, these matters shall proceed to hearing. However, in view of the circumstances discussed above reflecting the parties’ inability to reach a settlement, given the Commission’s limited resources and unprecedented case load, the hearing in these matters shall be moved from Pikeville, Kentucky to the Commission’s Headquarters. IT IS ORDERED that any settlement must be presented to me in writing on or before May 22, 2012. Any settlement thereafter must be presented on the record at the hearing. The hearing will commence at 10:00 a.m. on June 6, 2012, at the following location:

Federal Mine Safety and Health Review Commission

601 New Jersey Avenue, NW, Suite 9500

 Backley Hearing Room, 9^th Floor

Washington, DC 20001

            Any person who plans to attend this hearing and requires special accessibility features and/or any auxiliary aids, such as sign language interpreters, must request them in advance

(subject to the limitations set forth in § 2706.160(d)).

                                                                        /s/ Jerold Feldman  

                                                                        Jerold Feldman

                                                                        Administrative Law Judge     

Distribution:

Schean G. Belton, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, Suite 230, Nashville, TN 37219

Mark E. Heath, Esq., Spilman, Thomas, & Battle, PLLC, 300 Kanawha Blvd., East,

P.O. Box 273, Charleston, WV 25321-0273

/jel