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[DOCID: f:k93-184.wais]
PYRAMID MINING INCORPORATED
May 4, 1995
KENT 93-184
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
May 4, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
Petitioner : Docket No. KENT 93-184
: A. C. No. 15-11620-03533
: No. 2 Hall
v. :
:
PYRAMID MINING INCORPORATED, :
Respondent :
DECISION
Appearances: Susan E. Foster, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Petitioner; Carl B. Boyd, Jr., Esq.,
Meyer, Hutchinson, Haynes & Boyd, Henderson,
Kentucky, for the Respondent.
Before: Judge Weisberger
On October 31, 1994, the Commission issued a decision that
vacated my determination that Pyramid Mining Incorporated
("Pyramid") did not violate 30 C.F.R. � 77.1505 by failing to
block auger holes, because the holes had not been "abandoned"
within the meaning of the standard (16 FMSHRC 2037 (October
1994)). In its decision, the Commission remanded the matter to
me to consider whether Pyramid violated Section 77.1505, supra,
by failing to block the cited holes at the earliest reasonable
time, taking into account the following factors: the existence of
any active mining in the area in question, the period of time
that had passed since holes were created in the initial coal
extraction, whether the operator has taken action to resume
drilling, and the hazards presented by the holes" (16 FMSHRC
supra, at 2040).
On November 2, 1994, I initiated a telephone conference call
with counsel for both parties, to determine if counsel would seek
an evidentiary hearing on the issues raised by the Commission's
remand. Counsel were granted additional time to determine their
positions. On November 15, 1994, in a subsequent telephone
conference call, counsel advised that they each requested an
evidentiary hearing, and it was mutually agreed that the matter
be heard on February 1, 1995. In a subsequent telephone
conference on December 15, 1994, Respondent requested an
adjournment due to the scheduling of another trial on
February 1, and Petitioner did not oppose the request. The
matter was rescheduled, and heard in Evansville, Indiana on
February 16, 1995.
At the hearing, MSHA inspector Darold Gamblin testified for
Petitioner, and James Michael Hollis, Respondent's Safety and
Reclamation Supervisor, testified for Respondent. Both Gamblin
and Hollis had testified at the initial hearing on July 8, 1993.
I. Findings of Fact
Based on evidence adduced at the initial hearing, and at the
supplemental hearing held on February 16, 1995, I make the
following findings of fact, in addition to those made in my
initial decision of September 23, 1993 (15 FMSHRC 1950 (1993):
1. On March 20, 1992, when Gamblin inspected the
subject site, active mining was taking place in
an area approximately 2000 feet from the area where
the unblocked hose was located. There is no clear
convincing evidence to establish the precise period of
time that had passed since holes were created in the
initial coal extraction. Gamlin indicated that he had
seen the same holes in January 19, 1992, during a
previous examination. Joe Clark, Respondent's Ground
Manager, when asked at the initial hearing, when the
holes were initially drilled answered as follows:
"[t]hey would have been drilled between November and
March" (Tr. 58, September 23, 1993) (Emphasis added).
James Hollis, Respondent's Safety and Reclamation
Supervisor, testified that he did not recall when the
holes were created.
2. In discussions Hollis had with the contractor
responsible for drilling the holes over the period
November, December 1991 and January 1992, the
contractor was informed that, regarding the holes that
had not been fully penetrated, " . . . we were going to
attempt at that time to re-enter (sic) them" (Tr. 133).
However, there is no evidence that Pyramid had taken
action to resume drilling.
3. There was no fence or other device physically
blocking the entrance to any of the unblocked holes.
Nor were there any signs specifically warning persons
of the hazards involved in entering these holes and
warning persons to stay out of them. Children from
a nearby residential area might enter these holes.
A person entering an unblocked auger hole could
encounter the hazards attendant upon exposure to
methane, unsupported roof, or accumulations of water.
II. Discussion
A. Violation
According to Hollis, Pyramid considers the area where holes
had been augered and the area where mining was taking place on
the date cited, to be "all one pit" (Tr. 130). However, the
record is clear that at the date Pyramid was cited, active
mining was taking place in a section approximately 2000 feet
away from the cited auger holes. Although a finding cannot be
made as to the precise amount of time that had elapsed from the
time the holes were created until they were cited in March 1992,
it appears that the cited holes were augered during the months
of November 1991, December 1991 and January 1992 (See Exhibit
R-2). Both Hollis and Clark testified at the initial hearing
that, in essence, it was Pyramid's intent to have the holes
redrilled to their full length. Hollis testified at the
February 16 hearing that the contractor responsible for
drilling the holes was informed in November and December
1991 and in January 1992, that Pyramid had decided to attempt
to redrill the holes. However, there is no evidence that
Pyramid has taken any action to resume drilling of these holes.
Respondent has not impeached or contradicted Gamblin's
testimony that the holes were not ventilated to their full
depth, and that methane accumulates in the holes. Nor did
Respondent contradict or impeach Gamblin's testimony that
cave-ins could occur in the holes due to unsupported roof.
Also, Gamblin's uncontroverted testimony establishes that
the holes could become filled with water, which also
would pose a hazard.
Following the dictates of the Commission in its decision in
this matter, 16 FMSHRC supra, and considering the factors set
forth in the Commission's decision, as discussed above, I conclude
that Pyramid did violate Section 77.1505 supra, by failing
to block the cited holes at the earliest possible time.
B. Significant and Substantial
According to Gamblin there had been three previous
methane ignitions in auger holes on the cited property. He
also referred to an accident that had occurred at another
mine when methane was ignited in a drilling operation which
lead to an explosion and injuries. There was no fence
surrounding the pit area, and there were no signs warning
persons not to go there or warning of dangers of the
unblocked holes.
In order for a violation to be significant and
substantial, it must be established that there was a
reasonable likelihood of an injury producing event (U.S. Steel
Mining Company, Inc., 7 FMSHRC 1125, 1129 (1985)). Hence,
it must be established that there was a reasonable likelihood
of a person being exposed to the hazards of the abandoned holes.
It is clear that persons could have entered the unblocked holes.
However, there is insufficient evidence to predicate a
conclusion that such an event was reasonably likely to have
occurred. Indeed, on cross-examination, Gamblin was asked
whether there was a reasonable likelihood of persons
entering the holes. He indicated only that such an event
was possible. For these reasons, I find that it has not
been established that the violation was significant and
substantial.
C. Penalty
In assessing a penalty, I find that the penalty to be
imposed should be mitigated in that Respondent did not
consider the holes to be abandoned and intended to have them
redrilled. Hence, there was only a low level of negligence
on its part in connection with the violation of Section
77.1505, supra, which requires the blocking of such holes
before they are abandoned. I find that a penalty of $100 is
appropriate for this violation.
ORDER
IT IS ORDERED that the citation at issue be amended to a
violation that is not significant and substantial. It is further
ordered that Respondent shall, within 30 days of this decision,
pay a civil penalty of $100.
Avram Weisberger
Administrative Law Judge
Distribution:
Susan E. Foster, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215-
2862 (Certified Mail)
Carl B. Boyd, Jr., Esq., Meyer, Hutchinson, Haynes & Boyd, 120 North
Ingram Street, Suite A, Henderson, KY 42420 (Certified Mail)
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