FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., Suite 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

September 6, 2012

DECISION

Appearances:  Angela F. Donaldson, Esq., Office of the Solicitor, U.S. Department of Labor, Atlanta, Georgia, on behalf of the Petitioner;

Guy W. Hensley, Esq., Jim Walter Resources, Inc., Brookwood, Alabama,

                        on behalf of the Respondent.

Before:            Judge Bulluck

            These cases are before me on Notices of Contest and a Petition for Assessment of Civil Penalty filed by the Secretary of Labor (“Secretary”), on behalf of her Mine Safety and Health Administration (“MSHA”), against Jim Walter Resources, Incorporated, (“JWR”), pursuant to section 105 of the Federal Mine Safety and Health Act of 1977 (“Act” or “Mine Act”), 30 U.S.C. § 815. The Secretary seeks civil penalties in the amount of $49,141.00 for fourteen alleged violations of the Secretary’s Mandatory Safety Standards for Underground Coal Mines.

            A hearing was held in Birmingham, Alabama. Prior to convening the hearing, the parties reached an agreement to settle twelve of the contested citations and, subsequently, filed a Joint Motion to Approve Settlement. The parties’ Post-hearing Briefs are of record. For the reasons set forth below, I AFFIRM the two remaining citations, and assess penalties against Respondent.

I.         Stipulations 

            The parties stipulated as follows:

            1. The Administrative Law Judge and the Federal Mine Safety and Health Review Commission have jurisdiction to hear and decide these proceedings.  

            2. JWR is a mine operator subject to the jurisdiction of MSHA.

            3. JWR is the owner and operator of the No. 4 Mine located in Brookwood, Alabama.

            4. Operations at the No. 4 Mine are subject to the jurisdiction of the Act.

            5. All MSHA inspectors at issue were acting in their official capacities as authorized representatives of the Secretary.

            6. The citations contained in this docket were served on JWR or its agent, as required by the Act.

            7. The citations contained in this docket are authentic and may be admitted into evidence for the purpose of establishing issuance, not for the purpose of establishing the accuracy of any statements asserted therein.

            8. JWR demonstrated good faith abatement.

            9. The size of the mine and size of the controller are accurately reflected and accounted for in the Proposed Assessment of penalties for Citation Nos. 7692831 and 7692848.

            10. The mine’s history of violations for the two citations at issue is accurately reflected in the Secretary’s exhibit P-3 for Citation No. 7692831, and P-4 for Citation No. 7692848.

            11. The assessed penalties, if affirmed, will not impair JWR’s ability to remain in business.

Sec’y Br. at 2-3; Tr. 9-11.

II.       Factual Background

            MSHA Inspector Timothy Foster, employed by MSHA since 2002, was a coal mine safety and health inspector during the time period relevant to the two citations at issue. Tr. 20. Foster worked in the coal mining industry since 1978 in a variety of capacities, including outby laborer, face equipment operator, certified mine examiner, certified electrician and foreman, and he has operated most types of equipment used at the face. Tr. 21-26. Foster also earned a college degree in mining maintenance, served as a union safety committeeman, and holds MSHA electrical, dust sampling and impoundment certifications. Tr. 25-26. At the time of the hearing, he was a roof control specialist assigned to MSHA’s Homewood, Alabama office. Tr. 20, 28.

            On July 31, 2007, Inspector Foster was conducting a regular, EO1 inspection of JWR’s No. 4 Mine, accompanied by MSHA trainee Tom O’Donnell, JWR’s representative Gary Toxey, and miners’ representative Ricky Dunn. Tr. 28-30, 41. During the course of the inspection, Toxey was notified by Jim Brachner that a fire had occurred on a scoop battery on the Number 8 section. With his inspection team, Foster immediately traveled to the site to conduct an EO8 accident investigation. Tr. 29-31. It took 15 to 20 minutes to reach the scoop at the end of the track. Tr. 31. Foster observed that the battery lids had been raised, the battery was covered with expellent from the fire suppression system and fire extinguishers, leads on top of the battery had been cut, and several fire extinguishers had been strewn nearby. Tr. 31-32, 34; Ex. P-5. He examined the battery, and determined that the fire had been caused by an accumulation of coal and coal fines surrounding the receptacle, and loose butt connectors in the receptacle area. Tr. 37-39, 45, 59-60, 63. He took measurements of the accumulations, and interviewed several miners at the scene. Tr. 39, 41-44, 46-49; Ex. R-2, 9-16. When Toxey speculated that the material may not be combustible, Foster took a sample and submitted it for testing by MSHA. Tr. 65-67, 129. Notwithstanding Foster’s decision to send the sample for testing of its combustibility content, pursuant to his investigation, he issued a citation to JWR for its failure to maintain the receptacle of the scoop battery free of combustible accumulations.

             Subsequently, during the August 14, 2007 continuation of his inspection of the No. 4 mine, Foster, accompanied by O’Donnell, JWR’s representative Chuck Gallaher, and miners’ representative Ricky Dunn, inspected the East Belt Drive entry, including the transformer supplying electrical power to the belt drive motors. Tr. 138, 173. From his view through the window, Foster observed an accumulation of float coal dust on the internal energized electrical components. Tr. 140-42. Foster cited JWR for allowing float coal dust to accumulate inside the transformer.

            As the inspection team left the area and came upon MSHA inspector John Church, an electrical specialist, who was traveling toward the East Belt Drive, Foster asked Church to check on the status of JWR’s efforts to clean out the transformer. Tr. 152. When Church arrived at the transformer, a couple of miners had “blown out” the float coal dust with compressed air but, because the lids had been replaced and it was energized, he checked JWR’s cleanup through the window. Tr. 190-91, 205-06. Church observed that some float coal dust remained on the floor of the cabinet. Tr. 199-200, 204-05. Therefore, he did not terminate the citation. Tr. 191.

            After Foster left the area, Toxey took a sample of the accumulation and sent it to JWR’s lab for a “rock dust non-combustibility analysis.” Tr. 303-04. Ultimately, Foster allowed additional time for JWR to charge a portable battery operated vacuum and remove the remaining material from the lower part of the cabinet. Tr. 153, 305; Ex. P-2.

III.      Findings of Fact and Conclusions of Law

                 A. Citation No. 7692831

            As a result of Inspector Foster’s investigation of the scoop battery fire, and his opinion that it was caused by an accumulation of combustible material in the receptacle compartment of the battery, he issued section 104(a) Citation No. 7692831, alleging a significant and substantial violation of 30 C.F.R. § 75.400. The citation further alleges that the condition was “reasonably likely” to cause an injury that could reasonably be expected to be “permanently disabling,” and was the result of JWR’s “moderate negligence.” The “Condition or Practice” is described as follows:

Combustible materials in the form of coal and coal fines were allowed to accumulate in and around the battery female receptacles of the DBT Model 188 Scoop, Company No. SP150 (s/n 488-1093). These accumulations measured 6 ½ inches wide x 5 ½ inches high x 12 inches in length and were in contact with the battery receptacles and battery terminal connections. The accumulations were found during a non-injury accident investigation of a fire that originated in the compartment housing the receptacles of the above listed scoop. Seven persons were in the immediate area fighting the fire and delayed access of the originating area due to I-beams being bolted across battery covers. Ventilation travels from this area inby to the working face. Persons are exposed to serious hazards from inhalation of toxic chemicals, smoke and dangers associated with fighting fires. The scoop was located on the No. 8 section (MMU 008-0) in spad No. 23454.

Ex. P-1.

                        1. Testimony

                                    a. Timothy Foster

             Inspector Foster described his observations when he first arrived at the scoop:

The scoop was sitting there and it had the battery lids open. Expellent was on the batteries from fire extinguishers, the automatic fire suppression system. The area was dark and charred. I seen [sic] cables that were on top of the scoop that had been cut and several fire extinguishers around the area.

Tr. 31. Additionally, using a diagram of a standard single lid scoop battery, Foster identified the charred underside of the lid and the charred cells, the open receptacle cover and area where coking of the coal had occurred, and the area behind the receptacle where he found loose cables. Ex. P-5: A, B, C, D; Tr. 34-36. Foster testified that, using his tape, the accumulation measured 6 ½ inches wide, by 5 ½ inches high, by 12 inches long, and that he could see coal and coal fines in the material. Tr. 39, 41. He stated that, by touch, the accumulation was warm, and the smell of burning was obvious. Tr. 40-41, 44. According to Foster, based on the “matted together, charred, real black” condition of the coal and coal fines, it was also obvious that the accumulation had burned. Tr. 44-45, 77. As support for his opinion that a buildup of heat set the mixture of coal and coal fines on fire, he explained that JWR had sent out the battery to be rebuilt, and that the cable connections in the back of the receptacle had not been properly secured. Tr. 36-38. Foster emphasized that the heat generated by the unsecured cables, not allowed to dissipate and traveling to the combustible area, created all the elements of a fire triangle: oxygen, combustion source (coal and coal fines), and an ignition source (heat from improper installation of the cables). Tr. 59-64.

            Foster testified that he interviewed all the miners who had knowledge of or who had been involved in putting out the fire. Tr. 43, 46. He questioned what they had seen, what they were doing when the fire occurred, what color it was if they saw it, how long it lasted, and what they used to extinguish it. Tr. 46. According to Foster, as is typical of investigations of ignitions, the accounts of the fire were inconsistent, in that it ranged from red to blue to orange to yellow, and lasted from 15 seconds to 10 to 15 minutes. Tr. 46-48. From his notes of investigation, taken contemporaneous with securing the site and conducting the interviews, Foster identified Frank Green, Randy Jones, Scott Box, Andrew Harris, Terry Tavel, and Gregory Davidson as the miners who had fought the fire. Tr. 48-49, 53, 99.

            Foster testified that, “[b]ased on the observance of the combustible materials that were allowed to exist around the electrical area of the battery,” he determined that a violation of section 75.400 existed. Tr. 52. He explained his reasoning for accessing JWR’s negligence as moderate:

I interviewed the scoop operator, and I asked him about how often they wash the batteries to alleviate a buildup of combustible materials, and he stated to me that he had just washed them, or they had been washed on the 30th, one day prior. The battery . . . lids were open . . . and most of the battery area didn’t have all that much that would be attributed to the normal mining process; but the area inside the receptacle area, it had a lot of material in it. So I deemed that as a mitigating circumstance. They washed it. They may have opened them up and washed it a little, and thought that was good and left it.

Tr. 57. It was Foster’s opinion, however, that, based on the amount of material that he observed, the battery’s receptacle area had not been washed. Tr. 57.

            Finally, as to his decision to send a sample of the accumulation for testing, Foster expressed his understanding that inspectors are not required to take samples for section 75.400 violations. Tr. 67. Indeed, there is no form for sampling under section 75.400; the form used by Foster is the Rock Dust Sample Submission Form pertaining to rock dust surveys in active areas of a mine under 30 C.F.R. § 75.403. Tr. 123-27, 131. He also asserted that the test results, indicating that the material was 66.9% compliant, did not alter his finding of a violation, because the material was not 100% incombustible. Tr. 67, 73-77, 130; Ex. R-1.

                                    b. Gregory Davidson

            JWR’s witness, longwall helper Gregory Davidson, had been employed at the No. 4 mine for 5 years at the time of the hearing. Tr. 208. Davidson worked day shift in July 2007, had been a scoop operator for 1 ½ years, and was the operator of the scoop that caught fire at the end of the Number 8 section track on July 31. Tr. 208-09. He testified that, as part of routine maintenance on the scoop, he was required to wash the battery to remove any combustible material. Tr. 210. Davidson recalled that the scoop battery had had to be changed in the early morning of July 31, and in doing so, he had removed the I-beams, lifted the lids, washed away the coal dust, and checked the battery’s air and water. Tr. 211, 214. In response to being asked whether the receptacle area had been washed, he responded that “[w]e never went in there. Never.” Tr. 214; see 232-33. Davidson was unsure, but recalled that the scoop had been used to service an entry before it was moved to the end of the Number 8 track. Tr. 214-25. He testified that, as soon as they had exited the scoop, someone hollered “Fire,” and he grabbed a fire extinguisher from a slow moving miner and helped put it out. Tr. 215-16. According to him, the fire “was along one of the cells where a wire had came (sic) off at, and that started the fire.” Tr. 218-20; Ex. P-5. Davidson opined that the accumulation was mostly rock dust, which he described as grayish, wet on top, and hard. Tr. 221-23. He also stated that when Foster identified the receptacle area as the source of the fire, the supervisor directed that, as part of routine scoop maintenance from then on, the electricians were to check battery receptacle compartments on a daily basis. Tr. 227-29.              

                                    c. Frank Green

            Frank Green, JWR’s supervisor coordinator on the evening shift, had worked at the No. 4 mine approximately 5 ½ years at the time of the hearing, and was a union electrician trainee in July 2007. On July 31, Green was working on the Number 8 section track entry assembling a new continuous miner with a representative of the equipment, DBT, some 40 to 60 feet away from the scoop. Tr. 236-37. Identifying himself as the first to see the fire, he testified that after hearing popping sounds, then seeing a flame emanating from under the battery covers, he hit the scoop’s fire suppression system but, when it failed to put the fire out, other miners used fire extinguishers to put it out in about 10 minutes. Tr. 238-39, 252. He acknowledged that, because he had been engaged in hooking up the fire hose, he did not actually see the battery until after the fire had been extinguished. Tr. 239. He explained that the battery lids are plastic, and from his observation, they were only a little wrinkled, rather than melted. Tr. 240-41. Green identified the site of the fire as the cell area on top of the battery -- the same area that Davidson had identified on the diagram. Tr. 242; Ex. P-5. He explained that a lead running across that area had arced, and he “[didn’t] know what it was arced on or how it shorted, but that’s what caught on fire, was the actual wire lead.” Tr.242. He described the accumulation as dark gray, hardened as a result of intermittent wetting and drying and, because it appeared to be a mixture of primarily rock dust with some coal dust, noncombustible. Tr. 244-46.

                                    d. Gary Toxey

            JWR’s witness, safety supervisor Gary Toxey, had been working at the No. 4 mine for four years at the time of the hearing, and had 29 years of extensive experience in the underground coal mining industry, except, as he noted, in the electrical field. Tr. 253-254. His experience also includes mine rescue, and he is a certified first responder medic and Alabama state firefighter. Tr. 255-56. Toxey essentially gave the same account as Foster about the circumstances under which the inspection team was diverted to the scoop fire on the Number 8 section, and he estimated that it took about 30 minutes by rail to reach the location of the scoop at the end of the track. Tr. 258-59. Toxey described what he observed upon their arrival:

When we arrived there at the scene of the accident, I observed the battery lids being raised, the crossbar had been unbolted, and the lids were open. At that time, that’s when I realized that there had been an arc in between two cables. There were no flames and no smoke at the time of arrival. There were other personnel in the area. The scoop operator was standing close by, and his helper.

Tr. 259-60. On the diagram of the battery, he also identified the same area that Davidson had labeled as the location that the two cables had “arced together and stuck.” Tr. 263; Ex. P-5. Toxey also stated that he observed “flash” and soot on the underside of the lids, and that the insulation was burned off of the cables where they had arced and stuck together. Tr. 263-64.

In his opinion, there had been an electrical fire due to arcing of the cables rather than a coal fire because, “a fire of that magnitude [would have] showed where it had burned all the paint off the lids. Not only that, it would have shown signs of burning and heating on the topside of the lids.” Tr. 264; see 275-76, 280, 286, 288-89. However, Toxey did acknowledge that “[t]here was a lot of noncombustible material around the battery plug” and, therefore, substantiated the presence of the accumulation. Tr. 265. He opined that the material was grayish-white, pure rock dust, and he stated that there was no evidence of arcing or coking whatsoever in the receptacle housing.

Tr. 272-74. Contrary to Davidson’s actual testimony, Toxey testified that, after speaking with Davidson, he was under the impression that the arcing had lasted for one to three minutes.

Tr. 274-75. According to Toxey, an arc leads to a flame path. Tr. 280. On cross-examination, however, he conceded that coal fines accumulated in the vicinity of a flame path could lead to a fire if an ignition source were present. Tr. 281- 82, 293.

                        2. Fact of Violation

            In order to establish a violation of one of her mandatory safety standards, the Secretary must prove that the violation occurred “by a preponderance of the credible evidence.” Keystone Coal Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989)).

            The Commission, citing Old Ben Coal Company, 1 FMSHRC 1954, 1957, (Dec. 1979) (“Old Ben I”), stated that it had “previously noted Congress’ recognition that ignitions and explosions are major causes of death and injury to miners: ‘Congress included in the Act mandatory standards aimed at eliminating ignition and fuel sources for explosions and fires. [Section 75.400] is one of those standards.’” Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1120 (Aug. 1985). In Old Ben, the Commission recognized that “[t]he language of the standard [75.400], its legislative history, and the general purposes of the Act all point to a holding that the standard is violated when an accumulation of combustible materials exists.” 1 FMSHRC at 1956. In Black Diamond, the Commission also found that “[a] construction of the standard that excludes loose coal that is wet or that allows accumulations of loose coal mixed with noncombustible materials, defeats Congress’ intent to remove fuel sources from mines and permits potentially dangerous conditions to exist.” 7 FMSHRC at 1121. The Commission has also rejected the rule that evidence of depth and extent is a necessary prerequisite to establishing a violation of section 75.400, holding that, subject to challenge before an administrative law judge, “an accumulation exists where the quantity of combustible materials is such that, in the judgment of the authorized representative of the Secretary, it likely could cause or propagate a fire or explosion if an ignition source were present.” Old Ben Coal Co., 2 FMSHRC 2806, 2807-08 (Oct. 1980) (“Old Ben II”). Moreover, the Commission has long held that violations of section 75.400 are supportable by visual observation alone:

[W]e have never held that violations of section 75.400 require a test to determine the particular combustible material present, and section 75.400 does not by its terms require testing. Our precedent indicates that violations of the accumulation standard have been established by inspector observations. (Citations omitted). Further, nothing advanced by Harlan here persuades us to take the extraordinary step of overruling our precedent by engrafting a testing requirement onto section 75.400.

Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1290 (Dec. 1998). In pointing out the obviousness of the prohibition against permitting loose coal to accumulate, the Tenth Circuit has interpreted the mandate to require reasonably prompt clean up, “with all convenient speed.” Utah Power & Light Co. v. Sec’y of Labor, 951 F.2d 292, 295 n 11 (10th Cir. 1991). The judgment of an MSHA inspector as to whether a violation existed is subject to review under “an objective test of whether a reasonably prudent person, familiar with the mining industry and the protective purposes of the standard, would have recognized the hazardous condition that the regulation seeks to prevent.” Utah Power & Light Co.,12 FMSHRC 965, 968 (May 1990), aff’d, 951 F.2d 292 (10th Cir. 1991).

            As might be expected, the Secretary maintains that “section 75.400 does not require a showing of the combustibility content of accumulated material in order to establish a violation of the standard. Sec’y Br. at 11. Indeed, as to the fact of violation, she frames the issue before me as “whether there is any effect of the presence of non-combustible materials near or mixed with the combustible materials that were, in fact, present.” Tr. 14.

            Arguing a contrary position, JWR maintains that this case is “unique,” “special,” “exceptional” because both citations involve material that was located in an enclosed area and, therefore, the “incombustible content of the cited material is knowable.” JWR Br. at 4. While JWR acknowledges that “[t]here is no rule requiring laboratory sample results to substantiate a 75.400 citation,” it contests the violations based upon the proposition that, “[f]or purposes of determining compliance with 75.400, laboratory sample results are the most accurate way to determine the incombustibility level of a cited accumulation of material. JWR Br. at 5; Tr. 79-80. Indeed, JWR’s counsel clearly articulated the operator’s position that sampling may be used in section 75.400 violations to rebut presumptions of combustibility:

If the evidence in this case shows that the material was not combustible, then we are able to rebut an allegation that the material was combustible. There’s nothing prohibiting an inspector from issuing a 75.400 based on a visual observation; but, if the evidence is that the material was not combustible and the inspector was incorrect, then by definition, under 75.400, you don’t have an accumulation of combustible materials because the material is not combustible. It has to be proven, as a matter of fact, in this case. * * * Really, what you’re looking at here is a reasonable miner test where, if two reasonable people observe a condition and disagree on the combustibility, then a sample can provide evidence that can help a fact-finder decide whether it was [a] combustible accumulation or not.

Tr. 82-85.

            As the Secretary has pointed out, Inspector Foster fully explained the basis for concluding that what he observed was an accumulation of combustible material. Sec’y Reply Br. at 8. He testified that he found an accumulation in the receptacle compartment and that the combination of coal and coal fines embedded in the material was obvious. Tr. 39, 45. He measured the accumulation, and it was warm when he touched it. Tr. 39-40. He described the area around the plugs in the receptacle as “smutty” and “matted,” and “real black” due to coking of the coal, and that the smell of burning was obvious. Tr. 44-45. Foster’s notes of his investigation are consistent with his testimony. Ex. R-2 at 9-16.

            Davidson described the material as grayish, mostly rock dust, wet on top and hard. Tr. 221-23. Green testified that the material was a hard, dark grayish mixture of rock dust and maybe coal dust. Tr. 244. Toxey’s description, that the material was pure rock dust, stands by itself, uncorroborated by any other evidence. Tr. 272-73. Based on all the evidence, particularly, the testimony that the material ranged from gray, to dark gray, to black, I find that the accumulation contained coal and coal fines and, therefore, was combustible. Mindful of the Commission’s rejection of excluding from the purview of the standard accumulations that are mixtures of combustible and noncombustible materials, I have considered the cases cited by Respondent, but find no authority, whatsoever, for requiring more of the inspector than his reasonable observation. Parenthetically, I note that the sample, although chemically altered as a result of burning and application of expellent, tested 33.1% combustible. Ex. R-1. The “reasonable miner” test advanced by JWR is simply not the objective test the Commission applies to the inspector’s assessments. Finally, I find, based on Foster’s measurements and the fact that pre-operational maintenance of the scoop had never included inspecting or cleaning the battery receptacle compartments, that the buildup of combustible material was extensive and not promptly removed, as envisioned by the standard. Accordingly, I conclude that the Secretary has proven, by a preponderance of the evidence, that combustible material was allowed to accumulate in the receptacle compartment of the scoop battery in violation of section 75.400.

                        3. Significant and Substantial

            Inspector Foster determined that the violation was “significant and substantial” (“S&S”). The S&S terminology is taken from section 104(d)(1) of the Act, which distinguishes as more serious any violation that is “of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine or safety hazard.” 30 U.S.C. § 814(d)(1). A violation is properly designated S&S “if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

            In Mathies Coal Company, the Commission set forth four criteria that the Secretary must establish in order to prove that a violation is S&S under National Gypsum: 1) the underlying violation of a mandatory safety standard; 2) a discrete safety hazard - - that is, a measure of danger to safety - - contributed to by the violation; 3) a reasonable likelihood that the hazard contributed to will result in an injury; and 4) a reasonable likelihood that the injury in question will be of a reasonably serious nature. 6 FMSHRC 1, 3-4 (Jan. 1984); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). Evaluation of the third criterion, the reasonable likelihood of injury, should be made in the context of “continued normal mining operations.” U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). Moreover, resolution of whether a violation is S&S must be based “on the particular facts surrounding that violation.” Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1998); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011-12 (Dec. 1987).

            The fact of violation has been established. The focus of the S&S analysis here is whether the violation was reasonably likely to result in an injury producing event. In U.S. Steel Mining Company, the Commission provided further guidance:

We have explained further that the third element of the Mathies formula “requires that the Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury.” (citation omitted). We have emphasized that, in accordance with the language of section 104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial.

U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985) (emphasis added).

            When examining the likelihood of a fire, ignition, or explosion, the Commission examines whether a “confluence of factors” was present on the particular facts surrounding the violation, including the extent of the accumulations and the presence of possible ignition sources. Amax Coal Co., 19 FMSHRC 846, 848 (May 1997) (quoting Texasgulf, Inc., 10 FMSHRC at 500-01. The Commission also considers whether methane was present, and what type of equipment was in the area. Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997) (quoting Utah Power & Light, 12 FMSHRC at 970-71 (May 1990)); Texasgulf, 10 FMSHRC at 500-03).

            Inspector Foster explained that all three elements of a fire triangle had been present. His conclusions, that the scoop battery caught on fire because of loose cable connections generating heat from the scoop’s motion and igniting the coal, was not rebutted by JWR. Toxey, having no electrical training, was the only witness who opined that two cables had arced, and no fire had occurred. Indeed, the miners on the section described seeing and extinguishing a fire, and they also told Foster that the smoke had reached the face. The evidence proffered by JWR, that the top of the batteries burned at the cells, does establish that the fire originated in an area other than where the combustible accumulation was located, but only that the fire spread. Therefore, based on the unrebutted evidence of the loose cable connections and coking of the coal, I find that a fire occurred, and that it started in the receptacle compartment of the scoop battery.

            Foster testified that he determined the violation to be reasonably likely to result in permanently disabling injuries because:

In this case you’ve got combustion occurring in an area and the ventilation in this area travels inby to the face area where the miners are working, then they’re exposed to the inhalation of toxic chemicals from combustion. They’re also exposed to the dangers associated with putting the fire out. They can receive burns. They can receive chemical burns from the sulfuric acid that’s inside the batteries. There’s also a possibility of electrical shock hazards.

Tr. 58-59.  

            Considering that removal of the I-beams and opening the lids was required to access the fire, the scoop’s fire suppression system was ineffective and use of fire extinguishers was necessary to put out the fire. Therefore, the miners were exposed to smoke, toxic fumes, and the actual flames. Applying the Mathies criteria, I find that the Secretary has met her burden of establishing the reasonable likelihood of the violation resulting in serious burn and inhalation injuries that would be permanently disabling to miners on the section, given continued mining operations. Accordingly, I find that the violation was S&S.

                        B. Citation No. 7692848

            Based on his inspection of No. 4 mine’s East Belt Drive, and his observation of float coal dust accumulations on the energized electrical components inside the transformer, Foster issued 104(a) Citation No. 7692848, alleging an S&S violation of 30 C.F.R. § 75.400, that was “reasonably likely” to cause an injury that could reasonably be expected to result in “lost workdays or restricted duty,” and was the result of JWR’s “moderate” negligence. The “Condition or Practice” is described as follows:

Accumulations of combustible material in the form of float coal dust were allowed to exist in the 7200 KVA RAD Engineering (s/n 0699) transformer located in crosscut 3 of the East Belt Drive area. Float coal dust was visible on the electrically energized cables, switch gear and resistors through the windows [sic] at the high voltage end of the transformer. This area is located in the alternative escapeway, and ventilation travels inby to the working face where people work and travel. The failure to keep the transformer free of combustible material exposes miners to hazards of inhalation of toxic chemicals [and] also hazards associated with fighting fires.

Ex. P-2.

                        1. Testimony

                                    a. Timothy Foster

            Foster described the energized 7200 transformer, which provides electrical power to the belt drive motors, as approximately 10 to 12 feet in length, 5 feet wide, and 4 feet high; it has a visual disconnect window measuring 10 inches, by 10 to 12 inches, that provides a view of the internal electrical installations, and the internal cabinet is painted yellow. Tr. 140-41, 157. He testified that, through the window, he observed “very black” float coal dust heavily coating the energized “make and break” contactors, switch gears and resistors, such that the copper components could not be seen. Tr. 140-45, 157, 162, 164-65, 175. Foster explained that, because the transformer is located adjacent to the belt’s dumping point, and coal dust is thrown up as a result of sweeping and travel, dust is “promulgated into the atmosphere,” and the transformer’s cooling fans draw it into the cabinet. Tr. 148, 163-65. He determined that, although JWR should have known the danger of permitting the accumulation to exist, there were mitigating circumstances that caused him to assess the operator’s negligence as “moderate:”

Mr. Gallaher said, you know, that they blow these things out on a regular basis. When I say ‘blow out,’ they take air. Normally, maybe on the weekends during fan checks and things like that, they know that they’re going to get dust in these boxes. So they have a routine time that they do preventive maintenance, and things like that and, at that time, they can alleviate the area of combustible materials. This may have slipped through the cracks. It may not have gotten done. * * * I had checked some other ones [transformers], and they seemed to be okay. So this one may have just fell through the cracks.

Tr. 147-48. According to Foster, Gallaher made arrangement for an immediate clean up and, as the inspection team proceeded down the beltline, it encountered Inspector Church. Tr. 151-52, 176. Foster testified that he asked Church to check on the clean up of the transformer, since he was going in that direction. Tr. 152-53. Foster stated that, subsequently, he and Church traveled out of the mine together and that, as a result of Church’s report that the float coal dust had been removed from the energized components, but that some remained on the cabinet floor, he, Foster, extended the abatement period to allow JWR to vacuum the float coal dust from the lower part of the cabinet. Tr. 152-53, 174-75; Ex. R-4 at 8, 9. Because the vacuum cleaner battery required charging, he testified, it was not until lunchtime two days later, August 16, that the material was removed from the cabinet floor. Tr. 154. Foster also stated that he did not see Toxey take a sample of the material from inside of the transformer. Tr. 157.

            On cross-examination, while Foster acknowledged that “those areas are regularly swept to deal with the float coal dust,” and that there are “sprays on the belt,” he commented that he personally knows of situations where the abundance of float coal dust requires greater measures. Tr. 166-68. He also stated that the belt entry is the alternative escapeway, that the air flows inby, and that the transformer, situated in a crosscut between the belt and track entry, was probably 30 feet from the belt. Tr. 170-71. According to him, JWR normally uses an air line, stationed in the belt drive area, to blow float coal dust out of the enclosure. Tr. 173. Finally, he acknowledged that Church had reported to him that the material on the cabinet floor “had become gray.” Tr. 174-75.

                                    b. John Church

            John Church, an MSHA Conference and Litigation Representative, was an MSHA inspector and electrical specialist assigned to District 11 at the time of the August 14 inspection. Tr. 187-88. Church had been an MSHA employee for 19 years at the time of the hearing, and had 14 years experience in the mining industry prior to joining MSHA, including ownership of a mine and independent contract mining. Tr. 192. Church testified that as part of his regular inspection of the mine, he was checking on high voltage transformers parallel to the track, when Foster asked him to check on the clean up progress of the transformer he had cited and, if appropriate, terminate the citation. Tr. 188-89. He explained what action he took in response to Foster’s request:

I traveled over off the track entrance to a set of doors over where the power center was at. I looked at it. If my memory serves me, I think a couple of guys were there, and they had done some work. I looked inside of it, the best I could, to see what they had done. It looked like they may have used some compressed air to try to blow off the stuff inside out, but there was still some accumulations of float coal dust inside the enclosure.

                                                            * * *   

            It was black in color, and the power center was parallel to the belt.

Tr. 189-90. Church described the transformer as an enclosure that, because it has lids, is not totally sealed and, therefore, “if there is an accumulation of float coal dust, it can be in the air and it can get inside the box; and that’s generally where it comes from.” Tr. 190-91. He stated that, when he inspected the power center, it was energized but the lids had been replaced. Tr. 191. He recalled that from his observation through the window, it was clear that more cleaning was needed, so he did not terminate the citation; rather, he suggested to the miners that they ask Foster for an extension of the abatement deadline. Tr. 191-92, 201.

            On cross-examination, Church testified that he got to the transformer about 1 ½ to 2 hours after Foster had made the request, and through the window, it appeared to him that compressed air had been used successfully to clean the float coal dust from “the wires and cables and switch gear and stuff. That all looked to be pretty clean and clear. . . . What I observed was what I seen [sic] in the main bottom of the power center, on the floor of it.” Tr. 194-95, 200. According to Church, although he had not witnessed any cleaning, the miners told him that they had cleaned inside the transformer. Tr. 199. Church also opined that, from his observation of the remaining material, JWR was in violation of section 75.400 and he, himself, would have cited the operator. Tr. 195, 203-04. In Church’s experience, “rock dust, coal dust, road dust and track dust will go - - will get inside the power centers; and they build up on the wires, and on the electrical connections on top of the transformers, and on top of the switch gear mechanisms. . . .” Tr. 196-98, 202-04.

                                    c. Gary Toxey

            Gary Toxey testified that he accompanied Foster during his inspection on August 14, although Foster testified to the contrary. Tr. 298. He described the location of the transformer in crosscut number 3, between the track and belt entries, as a “windy situation” that is constructed with a stopping that contains a man-door separating the greater air pressure in the track entry from the lesser air pressure in the belt entry. Tr. 300-302. According to Toxey, the air that travels across the crosscut carries rock dust, and that the material cited in the transformer was rock dust. Tr. 302-03. Toxey explained what action he took as a result of being cited by Foster:

Once the power was disconnected from the switch gear, the lids were removed . . . and, at that time, I took out a dust sample bag that’s used by MSHA. The area of the piece of equipment had been locked and tagged out. I brushed the resistors, the transformer, and the switch gear on the wall, and I recovered a sample. I labeled it as 3 East-A switch gear box. At that time, it was tied up, sealed, and after we . . . came back outside, it was given to my safety director, Jim Brackner. At that time, he sent it to our lab to have the rock dust noncombustibility analysis done.

Tr. 303-04. Toxey was of the opinion, based on his observation before the transformer was opened, that the material was noncombustible due to its grayish-white color. Tr. 304. He also testified that he took the sample prior to any cleaning, then the material was blown out, the lids were reinstalled, and the belt was restarted. Tr. 305. Toxey also testified that there was “very light film all over everything inside the switch gear,” and that “the switch gears are cleaned as needed; on a weekly basis, they’re checked under the permissibility checks.” Tr. 306.

                                    d. Jim Brackner

             Jim Brackner had been JWR’s safety director at the No. 4 mine for 4 ½ years at the time of the hearing, and he had held the position of supervisor for five years prior to that, UMWA committeeman for nine years, and fire boss pumper for 18 years. Tr. 311. Brackner testified that, because the East belt area is a “main line header and belt drive, normally, we have somebody there every shift,” in order “to keep the area clean and rock dust it.” Tr. 312. He testified about his involvement in the testing of the sample removed from the transformer:

Basically, when this citation was issued, Mr. Toxey gathered a sample from inside the transformer and brought it out to me. I carried it to Jim Walter’s lab. If I can remember, I gave it to Mr. Ashley Riley, and they sampled it up there, sampled both the contents, and then sent the results back to me.

Tr. 314. The sample results showed the material to be 87.90% noncombustible. Tr. 314;

Ex. R-5. According to Brackner, the sample was gray, in his opinion a mixture of more rock dust than coal dust and, noncombustible. Tr. 315-16. When asked how the dust got inside the enclosure, Brackner speculated that it was carried by the cooling fans after it was stirred up by people working in the area, or when the walk-thru door in the number 3 crosscut was open. Tr. 316. He acknowledged that, despite JWR’s dust suppression sprays, it is possible that coal dust could have been generated at the dumping point, some 500 feet away from the transformer. Tr. 317-18. When asked how often the transformers are blown out, Brackner responded that JWR’s policy is to clean them on a weekly basis. Tr. 318, 319-20. He also testified that the electricians conduct monthly checks on the electrical components to ensure that the breakers and the ground faults are operating properly. Tr. 318-19. On cross-examination, however, Brackner was unable to pinpoint when the insides of the transformer in question had been cleaned prior to August 14. Tr. 319-20.

                        2. Fact of Violation

            JWR has mounted no defense to the allegation that there was an accumulation inside the transformer, but bases its challenge on the material’s combustibility content. Foster described that the electrical installations as coated with very black float coal dust. Toxey acknowledged that there was a very light film coating the electrical components, but that the material was grayish-white rock dust. Brackner testified that the material was a gray mixture of rock dust and coal dust. Church not only corroborated Foster’s testimony that material had accumulated inside the transformer, but that it was black. JWR’s own witnesses acknowledged that the material was, at least, gray. Mindful that Commission precedent has rejected an interpretation of the standard that permits accumulations of combustible and noncombustible mixtures, and has held that violations of section 75.400 simply occur when an accumulation of combustible materials exists, by Foster’s reasonable observation, the Secretary has established the violation. Furthermore, as discussed in reference to the previous violation, sample testing is not required under section 75.400 and, unlike section 75.403, there is no noncombustibility compliance requirement. Accordingly, I find that JWR violated 30 C.F.R. § 75.400 when it permitted float coal dust to accumulate inside the transformer.

                        3. Significant and Substantial

            Foster explained his S&S determination based on the seriousness of the violation:

Well you’ve got combustible material on an energized area. If an accident were to occur, it’s very reasonable to believe that it would be of a serious nature and people would receive serious injuries. You could have a fire here. The belt motors derive power from this area here. Inside this, you have . . . motor contacts. When those motor contacts open and close, then you have arcing occurring. If you’ve got arcing occurring, you have an ignition source. Now, if we add to that we’ve got float coal dust and oxygen, we’ve got all the elements of the fire triangle.

Tr. 148-49. Foster also testified that “a transformer could blow up as a result of this, people in the area would be subjected to the toxic chemicals that come off this, it’s dangerous fighting fires, electrocution. The thing may not be deenergized.” Tr. 150-51.

            The fact of violation has been established. Foster gave detailed, credible testimony, unrebutted by JWR, that the elements of a fire triangle were created due to the float coal dust coating the energized electrical components operating inside the transformer. Applying the Mathies criteria, in the context of continued mining operations, I find that the Secretary has established the reasonable likelihood of the violation resulting in serious injuries to miners on the section from burns, explosion, and inhalation of toxic chemicals, and that these injuries would, at least, be reasonably expected to result in lost workdays or restricted duty. Accordingly, I find that the violation was S&S.

III.      Penalty

                 A. Section 110(i) Criteria

            While the Secretary has proposed a total civil penalty of $19,567.00 for the two violations under her civil penalty point system, 30 C.F.R. Part 100, the judge must independently determine the appropriate assessment by proper consideration of the six penalty criteria set forth in section 110(i) of the Act, 30 U.S.C. § 820(i). See Sellersburg Stone Co., 5 FMSHRC 287, 291-92 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984).

            Applying the penalty criteria, I find that JWR is a large operator, with a history of prior violations that is significant. Ex. P-3, P-4. As stipulated by the parties, the total proposed penalty will not affect JWR’s ability to continue in business, and the company demonstrated good faith in achieving rapid compliance after notice of the violations. Stip. 8, 11. The remaining criteria involve consideration of the gravity of the violations and JWR’s negligence in committing them. These factors have been discussed fully respecting each citation. Therefore, considering my findings as to the six penalty criteria, the penalties are set forth below.

B. Assessment

                        1. Citation No. 7692831

            The Secretary has established a serious violation of 30 C.F.R. § 75.400, that the violation was S&S, and caused by JWR’s moderate negligence. The Secretary petitioned the Commission to assess a penalty of $15,571.00 for this violation. Applying the civil penalty criteria, I find that a penalty of $15,571.00, as proposed, is appropriate.

                        2. Citation No. 7692848

            The Secretary has established a serious violation of 30 C.F.R. § 75.400, that the violation was S&S, and caused by JWR’s moderate negligence. The Secretary petitioned the Commission to assess a penalty of $3,996.00 for this violation. Applying the civil penalty criteria, I find that a penalty of $3,996.00, as proposed, is appropriate.

IV.      Approval of Settlement 

            The parties have filed a Joint Motion to Approve Partial Settlement of Docket SE 2008-406 and dismiss the case as to 12 of the 14 citations in the civil penalty docket. A reduction in penalty from $27,945.00 to $17,145.00 is proposed. The citations, initial assessments, and the proposed settlement amounts are as follows:

                        Citation                                   Initial                                      Proposed

                        Number                                  Assessment                             Settlement

                        7692833                                  $ 5,080.00                               $ 2,282.00

                        7692836                                  $ 1,203.00                               $ 1,203.00

                        7692844                                  $ 4,689.00                               $ 2,514.00

                        7692845                                  $ 5,080.00                               $ 3,143.00

                        7692849                                  $ 4,329.00                               $ 3,463.00

                        7692851                                  $ 745.00                                  $ 317.00 

                        7692889                                  $ 745.00                                  $ 344.00

                        7675031                                  $ 1,304.00                               $ 263.00

                        7694206                                  $ 745.00                                  $ 297.00

                        7691156                                  $ 745.00                                  $ 596.00

                        7694207                                  $ 2,473.00                               $ 1,978.00

                        7694210                                  $ 807.00                                  $ 745.00

                                                            Total: $27,945.00                              $17,145.00

            I have considered the representations and documentation submitted by the parties, including modifications previously made to two citations, and I conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i) of the Act.

ORDER

            WHEREFORE, it is ORDERED that Citation Nos. 7692831 and 7692848 are AFFIRMED, as issued; that the Secretary MODIFY Citation No. 7692844 to reduce the level of gravity to “permanently disabling,” Citation No. 7692845 to “2 persons affected,” Citation No. 7692851 to “6 persons affected,” and Citation No. 7694210 to “1 person affected,” and Citation Nos. 7692833, 7692889 and 7694206 to reduce the degree of negligence to “low;” and that Jim Walter Resources PAY a civil penalty of $36,712.00 within 30 days of this Decision. Accordingly, these cases are DISMISSED.

                                                                        /s/ Jacqueline R. Bulluck

                                                                        Jacqueline R. Bulluck

                                                                        Administrative Law Judge

Distribution:

Angela F. Donaldson, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street, S.W., Room 7T10, Atlanta, GA 30303

Guy W. Hensley, Esq., Jim Walter Resources, Inc., 16243 Highway 216, Brookwood, AL 35444

JRB/