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[DOCID: f:k93-318r.wais]
PEABODY COAL COMPANY
May 15, 1996
KENT 93-318-R
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
May 15, 1996
PEABODY COAL COMPANY, : CONTEST PROCEEDINGS
Contestant :
:
v. : Docket No. KENT 93-318-R
: Citation No. 3551261; 1/6/93
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. KENT 93-319-R
ADMINISTRATION (MSHA), : Order No. 3551262; 1/6/93
Respondent :
: Docket No. KENT 93-320-R
: Order No. 3551263; 1/20/93 :
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 93-437
Petitioner : A.C. No. 15-02709-03840
:
v. :
: Camp No. 1 Mine
PEABODY COAL COMPANY, : Mine ID No. 15-02709
Respondent :
DECISION ON REMAND
Before: Judge Amchan
The Commission Decision and Remand Order
On April 19, 1996, the Commission reversed and remanded my
January 5, 1994 decision in these matters. I had found
Peabody's violations of the respirable dust limit in 30
C.F.R. �70.100(a) with regard to three of its six mechanized
mining units to be due to an "unwarrantable failure" to
comply the standard and due to high negligence. This
Commission concluded:
... Peabody's remedial measures clearly demonstrate a
good faith, reasonable belief that it was taking steps
necessary to solve its dust problems and this record
cannot support a finding of high negligence or
unwarrantable failure. (Slip opinion at page 6.)
This matter is now before me to reassess the civil
penalties with regard to these violations.
Findings of Fact
Violative conditions and prior respirable dust violations
in the two years before the instant citation and orders
On January 6, 1993, MSHA inspector Arthur Ridley reviewed
the results of Respondent's bimonthly sampling for respirable
dust for the period of November-December 1992 (Tr. 16-18). These
records indicated that for the five samples taken in the sampling
period, the average exposure of the continuous miner operator on
mechanized mining unit (MMU) 044 was 2.4 mg/m3 (Jt. Exh. 4).
Ridley therefore issued Citation No. 3551261, alleging a
violation of 30 C.F.R. � 70.100(a), which requires that:
Each operator shall continuously maintain the average
concentration of respirable dust in the mine atmosphere
during each shift to which each miner in the active
workings of each mine is exposed at or below 2.0 milli-
grams of respirable dust per cubic meter of air ... .
The citation was issued pursuant to section 104(d)(1) of the
Act in that it alleged that the violation was "significant and
substantial" (S&S) and due to the "unwarrantable failure" of
Peabody to comply with the standard. A $4,000 civil penalty was
proposed for this alleged violation.
On January 6, 1993, the inspector also reviewed the results
of the November-December 1992 sampling of the continuous miner
operator on MMU 056. The five samples also averaged 2.4 mg/m3
(Tr. 58-59, 63). Ridley issued section 104(d)(1) Order
No. 3551262. The Secretary subsequently proposed a $6,000 civil
penalty.
Ridley returned to Camp 1 on January 20, 1993 and reviewed
samples taken between January 4 and 6, 1993, on MMU 047 for the
January-February 1993 bimonthly sampling period. These averaged
2.2 mg/m3. The inspector issued section 104(d)(2) Order
No. 3551263. The proposed penalty for this order was $6,000.
While Peabody conceded that the violations were "S&S," it
challenged the allegations of unwarrantable failure and high
negligence. These allegations were predicated on the number of
citations issued within the prior two years for violations of the
respirable dust standard on each on the mechanized mining units
cited in January, 1993 (Tr. 34-39, 65, 74-75, 83-85, 100-102).[1]
These violations were considered only on a MMU-by-MMU basis; the
Secretary did not consider Respondent's compliance record as a
whole (Tr. 74-75, 100-102).
In the two years prior to January 1993, Unit 044 had been
sampled in 10 of the 12 bimonthly sampling periods. Respondent
had been out of compliance with the respirable dust standard on
four of these occasions. On February 8, 1991, Respondent
received a citation because the samples on Unit 044 averaged
3.3 mg/m3 for the January-February 1991 bimonthly sampling period
(Exhibit G-1). On March 28, 1991, a section 104(b) order was
issued because the samples for the March-April 1991 bimonthly
period averaged 2.2 mg/m3. On December 2, 1991, a section 104(a)
citation was issued because the samples for the November-December
1991 bimonthly period averaged 2.7 mg/m3 (Exhibit G-2, page 2).
On February 11, 1992, another citation was issued because the
samples for the January-February 1992 bimonthly period averaged
2.8 mg/m3 (Exhibit G-2, page 3).
In the 12 bimonthly sampling periods during calendar year
1991 and 1992, mechanized mining Unit 056 was out of compliance
with the respirable dust standard five of the 12 times it was
sampled. In February 1991, Respondent was cited because the
January-February samples averaged 2.2 mg/m3 (Exhibit G-2). In
July 1991, Peabody was cited again because the May-June samples
averaged 2.7 mg/m3. In February 1992, another citation was
issued because the January-February samples averaged 2.9 mg/m3
(Exhibit G-2, page 3). In April 1992, MSHA cited Peabody again
because the samples for the March-April period averaged
2.6 mg/m3. The fifth violation during 1991-1992 occurred in the
November-December 1992 sampling period and is addressed by Order
No. 3551262.
Mechanized mining Unit 047 was available for sampling in
only four of the 12 bimonthly sampling periods of 1991-1992. In
May 1991, a citation was issued because the March-April samples
averaged 3.0 mg/m3. The next time Unit 047 was sampled was for
the July-August 1992 sampling period when it was barely in
compliance at 1.9 mg/m3 (Exhibit G-3, page 4). For the
September-October sampling period the average concentration was
2.4 mg/m3, precipitating another citation (Exhibit G-3, page 4).
MMU 047 was in compliance for the November-December 1992 sampling
period, then out of compliance again for the January-February
1993 period, which is covered by Order No. 3551263.
Measures Taken Prior to January 1993 to improve
dust control
Beginning in January 1992, Peabody implemented a number of
measures to increase the water supply to its MMUs and thereby
improve dust control. In January 1992, it began a 6-month
project to install water flow gauges on its continuous miners.
This allows the operator of the machine to monitor the amount of
water coming through his machine (Tr. 179).
In February, Respondent began a six to seven month project
to increase the size of the fittings on the water lines leading
to the continuous miners from � inch to 2 inches (Tr. 181 - 82).
In March 1992, Peabody increased the water volume on its
four continuous miners that are shuttle car units by 25 percent.
The water volume of its two continuous miners that are continuous
haulage units was increased by 50 percent (Tr. 182-83).
Beginning in February 1992, Respondent replaced the 2-inch
plastic pipe in its water lines with 2-inch metal pipe, thus
allowing it to use greater water pressure (Tr. 183). In March
1992, Peabody increased the size of the water lines going to the
miners from 1 inch to 1 � inches (Tr. 184).
In July 1992, the company replaced its water pumps with
pumps that allowed for increased water pressure (Tr. 188).
Finally, over a six-week period in November and December,
1992, Peabody installed water sprays inside the ductwork of
the scrubbers on the continuous miners to improve scrubber
efficiency
**FOOTNOTES**
[1]: At the time of the January 1993 citation and orders,
Peabody had six mechanized mining units in operation at the
Camp No. 1 mine.
(Tr. 185). Peabody also began working with the manufacturer
of its continuous miners to reduce restrictions in the water
line of these machines (Tr. 187).
Assessment of Civil Penalties
In my prior decision I assessed a $5,000 civil penalty for
each of the three respirable dust violations cited by
Inspector Ridley in January, 1993. Given the fact that the
Commission
has concluded that the record does not support a finding of
"unwarrantable failure" or high negligence upon which these
assessments were predicated, penalties of substantially less
than $5,000 are clearly indicated by the remand order.
The Six Statutory Criteria for Assessing Civil Penalties
The effect on the operator's ability to stay in business:
The parties stipulated that penalties of the magnitude of
those proposed would not effect Peabody's ability to stay in
business.
Size of the operator: Peabody produces in excess of
10,000,000 tons of coal a year and is thus a relatively
large operator. Other things being equal, this would
indicate that
a somewhat larger penalty is more appropriate than for a
smaller operator.
Good faith in attempting to achieve rapid compliance after
notification of the violation: Peabody immediately acted
upon Inspector Ridley's suggested method to terminate (or
abate) the violations. It assigned additional supervisory
personnel to monitor its employees while they were being
sampled for respirable dust exposure (Tr. 72-73, 96, 190).
These supervisors insured that miners positioned themselves
where they would mini-mize dust exposure and checked on
ventilation and water pressure (Tr. 191). Respondent should
be given credit for exercising good faith in terminating the
citations even though implementation of the inspector's
suggestions may violate 30 C.F.R. � 70.207, which requires
that sampling be taken during a normal production shift.
Sampling results obtained under conditions that are abnormal
are likely to be unrepresentative of the miners' regular,
daily exposure to respirable dust.
Gravity of the violations: The gravity of the violations is
quite high. The parties have stipulated that the violations
are "S&S." The record also suggests that Respondent's
miners have been regularly exposed to respirable dust levels
above those allowed by the standard for a 2-year period.
Prior History and Negligence: These factors must be
considered in unison when assessing a civil penalty in these
matters. Citation No. 3551261 was the fifth respirable dust
violation on MMU 044 in a 2-year period. Order No. 3551262
was the fifth on MMU 056. Order No. 3551263 was the third
violation out of five sampling periods on MMU 047. Although
MSHA appears to have considered each MMU in isolation, I
believe one must consider that in January 1993, after
numerous prior respirable dust violations, three of
Respondent's six mechanized mining units were in violation
of the respirable dust standard. Although it is true that
two of these violations were for one bimonthly sampling
period and one was for another, I deem it significant that
in the same month MSHA cited Respondent for respirable dust
violations on half of its production units.
The Commission has found that this record does not support a
finding of high negligence. Thus, the question becomes
whether the violations were the result of negligence at all,
or simply bad luck[2]. Since January 1993, Respondent's
management has watched its continuous miner operators while
their dust exposure is being sampled (Tr. 214-15). Miner
operators have been observed on several occasions improperly
positioning the curtain or line brattice to direct air
towards the working face, and positioning themselves in the
exhaust current, rather than the intake current (Tr. 215-
16).
The Commission noted that employee work practices were also
addressed before the issuance of the instant citations (slip
opinion at page 6). The contents of the approved dust
control plan were covered in annual refresher training and
at least at some unspecified number of recurring safety
meetings (Tr. 213). Additionally, in May, 1992, the
Superintendent and chief mine manager of Camp No. 1 Mine
went to employees in each working section and explained in
detail Respondent's dust control program (Tr. 213).
I conclude that the instant violations were the result of
Respondent's "ordinary" negligence. Sampling by MSHA in
1991 and 1992 indicated that compliance with the standard was
achievable with the equipment already on site, thus putting
Peabody on notice that something else, such as improper work
practices, was partially the cause of its excessive
respirable dust readings (Tr. 48, 89). Moreover, the
results of the company's sampling in the latter part of 1992
was not such that it should have led Respondent to believe
that it had solved the problem. For the three bimonthly
sampling periods May-October 1992, the results of Peabody's
sampling on the three cited machines was as follows:
---------------------------------------------------------------
|Sampling |MMU 044 |MMU 056 |MMU 047 |
|Period | | | |
---------------------------------------------------------------
|May-June `92 |1.5mg/m3 |1.3mg/m3 |Non Producing|
---------------------------------------------------------------
|July-Aug `92 |Non Producing |1.2mg/m3 |1.9mg/m3 |
---------------------------------------------------------------
|Sept.-Oct. `92 |Non Producing |1.6mg/m3 |
2.4mg/m3(violation) |
---------------------------------------------------------------
I conclude that these results were insufficient to give a
reasonably prudent operator assurance that it had solved its
respirable dust problem, and should have put it on notice that
greater attention to employee work practices was necessary.
Thus, I conclude that the violations found in the November-
December 1992 sampling period on MMU 044 and 056, and the
violation found on MMU 047 in the January-February 1993 sampling
period, were the result of some degree of negligence.
Considering all six criteria in section 110(i) of the Act in
unison, I conclude that a penalty of $1,500 is appropriate for
each section 104(a) citation in this case.
ORDER
1. Citation Nos. 3551261, 3551262 and 3551263 are affirmed
as section 104(a) violations.
2. Peabody Coal Company shall, withing 30 days of the date
of this decision, pay to the Secretary $4,500 for the violations
found herein.
Arthur J. Amchan
Administrative Law Judge
Distribution:
Anne T. Knauff, Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Rd., Suite B-201, Nashville,
TN 37215 (Certified Mail)
David R. Joest, Esq., 1951 Barrett Court, P.O. Box 1990,
Henderson, KY 42420-1990 (Certified Mail)
/lh
**FOOTNOTES**
[2]: The Commission concluded that "Peabody's remedial
measures clearly demonstrate a good faith, reasonable belief
that it was taking the steps necessary to solve its dust problems
and this record cannot support a finding of high negligence or
unwarrantable failure." Slip opinion at page 6. I infer that
the record may support a finding of ordinary negligence; other-
wise the Commission would have concluded that it did not do so.