SECRETARY OF LABOR, MINE SAFETY : CIVIL PENALTY PROCEEDING
AND HEALTH ADMINISTRATION (MSHA) : DOCKET No. CENT 2004-212
Petitioner, : A.C. NO. 29-02170-32227
:
v. :
:
SAN JUAN COAL COMPANY, : San Juan South
Respondent :
DECISION
Appearances: Michael D. Schoen, Esq., Office of the Solicitor, U. S. Department of Labor,
Dallas, Texas, for Petitioner;
Timothy M. Biddle, Esq., Daniel W. Wolff, Esq., Crowell & Moring,
LLP, Washington, D.C., for Respondent.
Before: Judge Hodgdon
This case is before me on a Petition for Assessment of Civil Penalty brought by the Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA), against San Juan Coal Company, pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815. The petition alleges three violations of the Secretary’s mandatory health and safety standards and seeks a penalty of $13,524.00. A trial was held in Farmington, New Mexico. For the reasons set forth below, I modify a citation and an order, affirm the third citation, and assess a penalty of $10,224.00.
Background
San Juan Coal Company operates the San Juan South Mine, an underground coal mine in Waterflow, New Mexico. The mine operates 24 hours a day, seven days a week, in three ten hour shifts per day. The day shift, 7:00 a.m. to 5:00 p.m., and the afternoon shift, also called the “swing” shift, 4:00 p.m. to 2:00 a.m., are production shifts. The “graveyard” shift, 10:00 p.m. to 8:00 a.m., generally performs maintenance (which explains why it is also known as the “maintenance” shift).
Coal is mined by the longwall method. The longwall miner in the 102 longwall panel, the area under consideration in this case, consists of a double cutting drum shear which is conveyed back and forth across the coal face on a conveyor system, cutting the coal. The coal falls onto a pan line below the shear and is transported to the headgate to be taken out of the mine. The roof is supported by 176 shields ranging across the longwall face, which measures 1,006 feet. After the shear cuts the coal, the shields automatically advance toward the face, providing continuous support for the newly exposed roof.
Except for the first four shields on each side of the face, which are slightly larger, the shields are five feet wide at the base. As coal is mined, the continuous cutting action of the shear causes coal dust, coal particles and chunks of coal to accumulate on the shields. These accumulations are cleaned off of the shields mainly by the use of high pressure water hoses which are located every ten shields. If the coal is too large to be cleaned off by the water, shovels are used. Of the six man longwall crew, two miners called “propmen” have the primary assignment of cleaning the longwall shields.
MSHA Inspector Donald E. Gibson, the Field Office Supervisor in MSHA’s Aztec, New Mexico, field office, went to the mine on March 22, 2004, to conduct a five day spot inspection.[1] After reviewing the mine records and meeting with management officials, he went underground with Monty Owens, San Juan’s safety representative, and Steve Felkins, the miners’ representative, to inspect the 102 longwall. They arrived at the headgate at about 7:30 a.m., shortly after the beginning of the day shift. The longwall was not in operation because the miners were constructing an isolation stopping.[2]
Inspector Gibson proceeded across the longwall face. When he arrived in the area of longwall shield 130 he observed that shields 130 through 176 had accumulations of loose coal and coal dust on the jack legs, on the toes of the shields, as well as on the base of the shields and the leminscates. The accumulations measured between 1/8 inch and 10 inches in depth. Based on his observations, Inspector Gibson issued Citation No. 4768527.
After issuing the citation, Inspector Gibson continued his inspection to the tailgate area and the Nos. 2 and 3 return air entries. When he arrived at the No. 3 entry, he noticed that the area next to a check curtain, directing air into the No. 2 entry, was black with float coal dust. He went to the No. 2 entry and observed that both entries were black with float coal dust. The inspector examined along both entries, and noted what he believed to be impermissible float coal dust accumulations from crosscuts one through 22. As a consequence, he issued Order No. 4768528.
Citation No. 4768527 and Order No. 4768528 were contested at the trial. A third violation, set out in Citation No. 7605679, was included in this docket. San Juan stipulated that Citation 7605679 properly alleged a violation of section 75.403 of the regulations, 30 C.F.R. § 75.403, and agreed to pay the assessed penalty of $324.00 in full. (Tr. 11-12.)
Findings of Fact and Conclusions of Law
Accumulations of loose coal and fine coal dust w[ere] permitted to accumulate on the shields on the 102 Longwall retreating working section.
The accumulations were on the leminscates, both top and bottom, from shield 130 to shield 176, inclusive. The accumulations were dry.
The accumulations were left from the afternoon shift which stopped mining at 0200 hours 3/22/04.
Several discussions occurred with mine management concerning cleaning off of the shields.
The accumulations ranged from 1/8" to 10" deep.
(Govt. Ex. 10.) Section 75.400 requires that: “Coal dust, including
float coal dust deposited on rock dusted surfaces, loose coal, and other
combustible materials, shall be cleaned up and not be permitted to
accumulate in active workings, or on diesel-powered and electric
equipment therein.”[3]
The Respondent does not deny that the accumulations existed as observed
by Inspector Gibson, but maintains that the operator was not given an
opportunity to clean them up before the citation was issued. In making
this argument, the company focuses on the “shall be cleaned
up” language of the regulation. On the other hand, the Secretary,
emphasizing “not be permitted to accumulate,” asserts that if
there is an accumulation, there is a violation. While the facts in some
case may require that a line be drawn between the two interpretations,
this is not that case. Under either reading, San Juan violated the
regulation.
The company argues that the afternoon shift “just ran out of time
before they were able to wash down all 176 shields” and that
“it was perfectly normal for a subsequent production shift to pick
up cleaning where the previous production shift left off.” (Resp.
Br. at 20.) This argument might have merit if the subsequent production
shift began when the previous production shift left
off, but that is not the case here. Instead, at least five and one half
hours elapsed between the time the afternoon shift left the mine and
Inspector Gibson issued the citation.
The Commission has long held that the legislative history of the Mine Act
“demonstrates Congress’ intention to prevent, not merely to
minimize, accumulations. The standard was directed at preventing
accumulations in the first instance, not at cleaning up the materials
within a reasonable period of time after they have accumulated.”
Old Ben Coal Co., 1 FMSHRC 1954, 1957 (Dec. 1979). The Commission
went on to state that: “We hold that a violation of section 304(a)
and 30 C.F.R. § 75.400 occurs when an accumulation of combustible
material exists.” Id. at 1958. Since there is no dispute
that the accumulations on the shields existed, it follows that it was a
violation of the regulation.
Furthermore, even if it is inferred that the operator has to be afforded
an opportunity to clean up the accumulations, this operator made no
attempt to clean the accumulations up within a reasonable time. The
maintenance shift apparently made no effort to clean up the accumulations
and the day shift had not started to clean them up at the time that the
inspector discovered them even though the shift began at 7:00 a.m. As the
Commission has stated:
The goal of reducing the hazard of fire or explosions in a mine by
eliminating fuel sources is effected by prohibiting the accumulation of
materials that could be the originating sources of explosions or fires
and by also prohibiting the accumulation of those materials that could
feed explosions or fires originating elsewhere in a mine.
Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1120 (Aug. 1985).
This danger exists as long as the accumulations exist. The danger does
not cease to exist when a production shift is followed by a maintenance
shift or when the day shift is putting in an isolation stopping. In this
case, the operator took no action to clean-up the accumulations for over
five hours
Accordingly, I conclude that the company violated section 75.400 as
alleged.
Significant and Substantial
The inspector found this violation to be “significant and
substantial.” A “significant and substantial” (S&S)
violation is described in section 104(d)(1) of the Act, 30 U.S.C. §
814(d)(1), as a violation “of such nature as could significantly
and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard.” 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 Division, National Gypsum Co., 3
FMSHRC 822, 825 (Apr. 1981)
In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission
enumerated four criteria that have to be met for a violation to be
S&S. See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133,
135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC
2015, 2021 (Dec. 1987) (approving Mathies criteria). Evaluation of
the criteria is made in terms of “continued normal mining
operations.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1573,
1574 (July 1984). The question of whether a particular violation is
S&S must be based on the particular facts surrounding the violation.
Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny &
Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
In order to prove that a violation is S&S, the Secretary must
establish: (1) a violation of a safety standard; (2) a distinct safety
hazard 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 will be of a reasonably serious nature.
Mathies, 6 FMSHRC at 3-4. I have already found a violation of a
safety standard. I further find that the accumulations contributed to a
distinct safety hazard, i.e. as the originator or feeder of a fire or an
explosion. Thus, as is almost always the case, the question of whether
the violation is S&S turns on whether the hazard contributed to will
result in an injury.
In connection with accumulations, the Commission has held, with regard to
the third Mathies criterion, that:
When evaluating the reasonable likelihood of a fire, ignition, or
explosion, the Commission has examined whether a “confluence of
factors” was present based on the particular facts surrounding the
violation. Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1988). Some
of the factors include the extent of accumulations, possible ignition
sources, the presence of methane, and the type of equipment in the area.
Utah Power & Light Co., 12 FMSHRC 965, 970-71 (May 1990)
(“UP&L”); Texasgulf, 10 FMSHRC at 500-03.
Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997).
Inspector Gibson testified that the accumulations were “the worst
that I’d seen” in his many inspections of the longwall and
the mine. (Tr. 104.) They were extensive, covering up to 46 shields, an
area of 230 feet, in deposits up to 10 inches in depth. They were also
dry. (Tr. 104.) In addition to the extensiveness of the accumulations,
the mine liberates more than one million cubic feet of methane per day.
Finally, witnesses testified: (1) that the bits on the shear’s
drums caused sparks when striking rocks or metal, such as the sprags on
the shields; (2) that there were electrical cables along the face as well
as electrical equipment; and (3) that all of these could serve as
ignition sources for a fire or explosion. (Tr. 84, 105, 117-18, 213.)
The Respondent argues that since no coal was produced on the maintenance
shift, since coal had not been produced on the morning shift when the
inspector wrote the citation and since it was the company’s normal
policy to clean the accumulations on the shield before resuming mining,
the Secretary has not established a reasonable likelihood of an ignition.
This, however, ignores the length of time the accumulations were present,
the fact that maintenance was performed on the longwall during the
maintenance shift, which would mean that the electrical equipment was
activated in addition to the possibility that whatever tools the
maintenance miners were using could be a source of ignition, the fact
that with the ignition of methane anywhere in the mine the accumulations
could propagate and increase the severity of a fire or explosion, and the
fact that continued normal mining practices would involve operation of
the shear.
Accordingly, I conclude that the Secretary has established a reasonable
likelihood that a fire or explosion involving the accumulations would
occur, resulting in an injury. It goes without saying that any injury
sustained in a fire or explosion would be a serious one. Therefore, I
conclude that the violation was “significant and
substantial.”
Unwarrantable Failure
This violation was also charged as resulting from the
“unwarrantable failure” of the company to comply with the
regulation.[4] The
Commission has held that unwarrantable failure is aggravated conduct
constituting more than ordinary negligence by a mine operator in relation
to a violation of the Act. Emery Mining Corp., 9 FMSHRC 1997, 2004
(Dec. 1987); Youghiogheny, 9 FMSHRC at 2010. “Unwarrantable
failure is characterized by such conduct as ‘reckless
disregard,’ ‘intentional misconduct,’
‘indifference’ or a ‘serious lack of reasonable
care.’ [Emery] at 2003-04; Rochester & Pittsburgh
Coal Co., 13 FMSHRC 189, 193-94 (February 1991).” Wyoming
Fuel Co., 16 FMSHRC 1618, 1627 (Aug. 1994); see also Buck Creek
Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995)
(approving Commission’s unwarrantable failure test).
The Commission has established several factors as being
determinative of whether a violation is unwarrantable, including:
[T]he extent of a violative condition, the length of time it has existed,
whether the violation is obvious, or 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 efforts in abating the
violative condition. 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); BethEnergy
Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Warren Steen
Constr., Inc., 14 FMSHRC 1125, 1129 (July 1992).
Cyprus Emerald Resources Corp., 20 FMSHRC 790, 813 (Aug. 1998).
Some of these factors are present in this case. As already noted, the
accumulations were extensive and obvious. They had existed since the end
of the afternoon shift, or approximately six hours.[5] Further, as the company has
admitted, no attempts were made to clean-up the accumulations between the
time the afternoon shift shut down and the time Inspector Gibson observed
them. Nevertheless, taking everything into consideration, I do not find
that this violation resulted from the operator’s unwarrantable
failure.
Based on the company’s history of violations, discussions between
mine management and Inspector Gibson, and MSHA’s “Winter
Alert Program,” the Secretary argues that the operator had been
placed on notice that greater efforts were necessary for compliance in
this area. The Secretary’s reliance on these factors is misplaced.
According to the operator’s Assessed Violation History Report, the
company was cited 47 times for violations of section 75.400 between
January 2001 and March 2004. (Govt. Ex. 9.) For a mine the size of
this one, that does not seem to be a significant number of citations,
particularly since, as Inspector Gibson testified, section 75.400 was the
most frequently cited section of the regulations, industry-wide, in 2004.
(Tr. 136.) For “putting the operator on notice of the necessity for
greater efforts at compliance,” these citations take on even less
importance inasmuch as none of them were for accumulations on the
shields. (Tr. 135.) Consequently, I do not find that the company’s
previous violations should have put it on notice that it needed to make
greater efforts to control accumulations on the shields.
The parties stipulated that prior to this violation “San Juan
management acknowledges several previous discussions with Inspector
Gibson concerning the need to clean the shields of coal dust
accumulations.” (Tr. 58-59.) David Zabriskie, the afternoon shift
longwall supervisor, testified that Inspector Gibson and the other
inspectors were always pointing out areas where improvements could be
made, but that he did not “consider it a warning as much as I did
good advice because of their experience.” (Tr. 210.) Similarly,
Scott Jones, the General Mine Foreman, said that Inspector Gibson
“kind of made comments to me that, you know, you need to watch your
cleanup in that area, you need to make sure that you’re continually
cleaning those shields and keeping them up to standard.” (Tr. 335.)
However, to raise a violation to the level of unwarrantable failure,
there have to be more than just discussions. As Inspector Gibson
testified, he and mine officials had had discussions ever since his first
visit to the mine. (Tr. 108.) For the discussions to put the operator on
notice that greater efforts at compliance are necessary, they should be
admonishments of that effect. General discussions between operators and
inspectors occur all the time, but they do not make every violation an
unwarrantable failure. As Jones testified, neither Inspector Gibson nor
the other inspectors ever told them that their method of cleaning the
shields was inadequate or that
they needed more miners working on the cleanup. (Tr. 335-36.) Therefore,
I do not find that these discussions put the company on notice that
greater efforts at compliance were needed.
The last type of notice that the Secretary relies on is MSHA’s
“Winter Alert Program.” Inspector Gibson testified that
historically most mine explosions occur between October and March.
Accordingly, since the 1970's MSHA has had a “Winter
Alert” campaign to remind operators of that fact. He said that in
the winter 2003-2004, MSHA was emphasizing “ventilation,
examination, permissibility and rock dusting.” (Tr. 110.) As with
the general discussions, there is no evidence that the company was
ignoring the yearly alerts or had a general practice of not properly
cleaning up accumulations.
As counsel for the Secretary acknowledged in his opening statement, the
Secretary’s foundation for claiming that the operator unwarrantably
failed to comply with the regulation “is based primarily on the
mine’s management’s notice of the requirements of the Act and
a greater need for compliance with the Act.” (Tr. 8.) This in turn
“was based principally on many conversations that Mr. Gibson and/or
other mine inspectors had had with mine management
. . . .” (Tr. 8-9.) The evidence does not support this claim.
Further, the evidence shows that the company had two
“propmen” assigned to each longwall, whose primary function
was to clean the longwall shields. In addition, the operator had not
previously been cited for accumulations on the shields. Thus, while I
find that the Respondent was highly negligent with regard to this
violation, I do not find that its negligence rises to the level of
reckless disregard, intentional misconduct, indifference or a serious
lack of reasonable care.
Accordingly, I conclude that this violation was not the result of the
operator’s unwarrantable failure to comply with the regulation. The
citation will be modified to a 104(a) citation, 30 U.S.C. § 814(a).
Order No. 4768528
This order alleges a violation of section 75.400 because:
Accumulations of dry float coal dust deposited on rock-dusted surfaces was permitted to accumulate in the #2 and #3 return air entries of the 102 Longwall working section.
The accumulations began just outby crosscut #22 and extended outby to crosscut #1 in both entries including the crosscuts for a distance of 3,000 feet. Methane in both entries ranged between 0.2-0.4 per centum through the entire distance.
This area was traveled by the weekly examiner on 03/18/04 and the float coal dust was noted in the record book countersigned by the mine foreman.
Other violations for this same condition have been issued to the operator. One was issued on 2/28/04 that included 3,900 feet in the #2 and #3 entries of the 102 Longwall.
At crosscut #9 there w[ere] 2 wooden pallets and a cardboard box up next to the stopping.
Numerous discussions have been held with mine management concerning rock dusting and clean-up on the shields.
The condition noted by the weekly examiner was corrected on day shift on
03/18/04 by two miners. The area was rock dusted. Seven production shifts
occurred after the area was dusted. Approximately 56 passes by the shear
w[ere] mined at about 1,500 tons per pass or 84,000 tons. Due to the
dryness of the coal and more float dust being generated, more attention
to the condition of the return entries should have been made by
management.
(Govt. Ex. 11.)
After writing the citation for the shields, Inspector Gibson proceeded to
the tailgate of the longwall, to the number 2 and 3 return air entries.
He testified that “the area was black with float coal dust.”
(Tr. 114.) He related that there was a check curtain across the number 3
entry, directing air into the number 2 entry. He said that he went
through the curtain into the number 3 entry and started heading outby. He
said both the number 2 and 3 entries were black with float coal dust, the
“worst” that he had seen. (Tr. 115.) He said the float coal
dust was dry and continued through both entries to crosscut number 1. He
testified that it was thick enough that he left palm prints on the ribs
and footprints on the floor. (Tr. 115.) The inspector further testified
that he observed two wooden pallets and a cardboard box, also combustible
materials, next to the stopping in crosscut number 9. (Tr. 154.)
Similar to its argument with regard to the previous citation, the company
does not deny the existence of the accumulations, but asserts that since
the area had been rock dusted on March 18, four days earlier, it should
not be cited for accumulations without a showing that the rock dusted
accumulations did not meet the requirements of section 75.403, 30 C.F.R.
§ 75.403.[6]
This argument would be more persuasive if section 75.400 did not
specifically require the cleaning up of accumulations of “float
coal dust deposited on rock-dusted surfaces.” Plainly, float coal
dust deposited on rock-dusted surfaces is dangerous whether or not the
rock-dusted surface below it is incombustible.
Here float coal dust was deposited on rock-dusted surfaces to such an
extent that they were black. According to Inspector Gibson this was
observable right at the tailgate and got
worse down the entries. The deposits were deep enough to leave hand and
foot prints. Therefore, I conclude that the company violated section
75.400 as alleged.
Significant and Substantial
Inspector Gibson charged this violation as being “significant and
substantial.” He based this determination on the amounts of float
coal dust and the fact that it was very dry so that “[a]ny forces
going through there would only pick the float dust up and contribute to
any forces of an explosion.” (Tr. 117.) He also considered the
presence of methane in the mine. (Tr. 118.) He further testified that, in
addition to the propensity for the float coal dust to exacerbate an
existing fire or explosion, the dust could be ignited by “[t]he
shearing machine itself, the electrical cables along the face, the
lights, under normal mining conditions there’s going to be dust
generated and again the potential of as evidenced the metal against metal
cutting bits contacting the sprags or hard rock.” (Tr. 117-18.)
Continuing its argument made concerning the fact of violation, the
Respondent contends that the Secretary’s failure to show whether or
not the rock-dusted surfaces were incombustible precludes a finding that
the violation was S&S. As previously noted, this contention is at
odds with the specific recognition in 75.400 that float coal dust on
rock-dusted surfaces is hazardous.
Considering this violation under the Mathies criteria, I have
already found criterion 1, a violation of a mandatory safety standard,
section 75.400. I further find: (2) that the accumulation contributed to
the safety hazard of a fire or explosion; (3) that there was a reasonable
likelihood that a fire or explosion would occur, resulting in an injury;
and (4) that the resulting injury or injuries would be serious. I make
these findings for the same reasons I made them concerning the previous
citation. Accordingly, I find that the violation is “significant
and substantial.”
Unwarrantable Failure
Inspector Gibson found this violation to result from the company’s
unwarrantable failure to comply with the regulation. He testified that
one reason he made this finding was that the operator had been cited on
February 18, 2004, for accumulations of float coal dust in the numbers 2
and 3 entries, from crosscuts 20 through 33. (Tr. 122, Govt. Ex. 7.) He
related further that:
The violation was extensive, it was 3,900 feet in length. And some of the
crosscuts that I was dealing with on March 22 overlapped at least two of
the crosscuts that [Inspector Vetter] dealt with on February 18. So their
awareness was already elevated, I mean it should have been, it should
have been elevated, hey, we do have a problem and it should have been
recognized knowing that the winter alert you’re in that season, the
mine’s more drier, the coal’s more drier. And I really felt
that they should have been – had a higher degree of care displayed
than what was displayed.
(Tr. 122-23.)
The Respondent maintains that since it was rock dusting in the numbers 2
and 3 entries, “at least rock dusting as much as it thought
adequate,” it did not act unwarrantably. (Resp. Br. at 41.)
However, rock dusting is not at issue in this violation, accumulations
are.
With regard to unwarrantable failure, the following factors are
significant: (1) The operator was cited for float coal dust accumulations
in the same entries on February 18, 2004, (Govt. Ex. 7); (2) A weekly
examination report for March 15 noted the need to rock dust the returns
from crosscut 24 through crosscut 8, (Govt. Ex. 1); (3) A March 18
construction report stated that the returns had been rock dusted from
crosscut “19 to ?”, (Govt. Ex. 4); (4) By March 22, the area
at the tailgate of the longwall at the numbers 2 and 3 return air entries
was black with float coal dust, (Tr. 114); (5) The mine had been going
through rough conditions with the top, which was “real brittlely
and falling in,” and floor for the last couple of breaks, (Tr.
288-89); (6) When coal on the longwall face is dry, it is not unusual for
the bottoms of the return air entries to become dark or even black over
the course of several days, (Tr. 350).
By March 22, the operator had previously been cited for float coal dust
accumulations in the numbers 2 and 3 return entries and it had been
alerted a week earlier that the entries needed more rock dusting than
they were getting. The longwall supervisors were aware that the area in
which they were currently mining was producing more coal particles and
float coal dust than normal. The area of the numbers 2 and 3 entries
right at the tailgate was black with float coal dust. All of this should
have put the operator on notice that float coal dust was accumulating in
the return entries at a pace that required greater attention than waiting
until the next weekly examination before taking any action to resolve the
problem. Instead, the company did nothing different than it would have
done when mining in “normal” conditions.
I conclude that the Respondent acted with indifference and a serious lack
of reasonable care with regard to this violation. Therefore, I find that
the operator unwarrantably failed to comply with the regulation.
Citation No. 4768527 was the predicate citation for this order. In view
of the fact that Citation No. 4768527 is being modified to a 104(a)
citation, it can no longer serve as the predicate for Order No. 4768528.
Accordingly, Order No. 4768528 will be modified from a 104(d)(1) order to
a 104(d)(1) citation. Consolidation Coal Co., 4 FMSHRC 1791, 1794
(Oct. 1982).
Civil Penalty Assessment
The Secretary has proposed a penalty of $13,524.00 for these three
violations.[7]
However, it is the judge’s independent responsibility to determine
the appropriate amount of penalty in accordance with the six penalty
criteria set out in section 110(i) of the Act, 30 U.S.C. § 820(i).
Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 (7th Cir.
1984); Wallace Brothers, Inc., 18 FMSHRC 481, 483-84 (Apr. 1996).
In connection with the penalty criteria, the parties have stipulated that
San Juan Coal is a large company, the San Juan South Mine is a large mine
and that payment of the penalty in this case will not affect San
Juan’s ability to continue in business. (Tr. 11-13.) From the
Assessed Violation History Report and other documents in the file, I find
that the company has a slightly better than average history of
violations. I further find that the Respondent demonstrated good faith in
attempting to rapidly abate the violations.
I find the gravity of Citation Nos. 4768527 and 4768528 to be very
serious as there is nothing more dangerous in underground coal mining
than fires and explosions. The gravity of Citation No. 7605679 is
serious, but not as serious as the other two because it involves levels
of incombustibility. I further find that the level of negligence with
regard to Citation Nos. 4768527 and 4768528 was “high” and
that the level of negligence for Citation No. 7605679 was
“moderate.”
Taking all of these factors into consideration, I conclude that the
following penalties are appropriate: (1) Citation No. 4768527-$3,000.00;
(2) Citation No. 4768528-$6,900.00; and (3) Citation No. 7605679-$324.00.
Order
T. Todd Hodgdon
Administrative Law Judge
Distribution:
Michael D. Schoen, Esq., Office of the Solicitor,
U.S. Department of Labor, 525 South Griffin Street, Suite 501, Dallas, TX
75202
Timothy M. Biddle, Esq., Daniel W. Wolf, Esq.,
Crowell & Moring LLP, 1001 Pennsylvania Ave., N.W., Washington, D.C.
20004
/sb
[1] Because the mine liberates more than one million cubic feet of methane per day it is subject to a “spot inspection . . . every five working days at irregular intervals.” 30 U.S.C. § 813(i).
[2] The last time coal had been mined was on the previous day’s afternoon shift.
[3] This language, with the exception of the words “diesel-powered and,” was taken verbatim from section 304(a) of the Mine Act, 30 U.S.C. § 864(a).
[4] The term “unwarrantable failure” is taken from section 104(d)(1) of the Act, which assigns more severe sanctions for any violation that is caused by “an unwarrantable failure of [an] operator to comply with . . . mandatory health or safety standards.”
[5] Inspector Gibson intimated that he believed that the accumulations might have existed for longer than a shift. (Tr. 110.) In view of the fact that almost three quarters of the shields had been cleaned, I find it highly unlikely that the accumulations on the remaining quarter of the shields had been there throughout the whole afternoon shift.
[6] Section 75.403 calls for rock dusted areas in return entries to have an incombustible content of 80 percent.
[7] The penalties are proposed as follows: (1) Citation No. 4768527-$6,300.00; (2) Order No. 4768528-$6,900.00; and (3) Citation No. 7605679-$324.00.