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[DOCID: f:k93-974.wais]

 
NATS CREEK MINING COMPANY
February 2, 1995
KENT 93-974


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041


                           February 2, 1995

SECRETARY OF LABOR,          :    CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH     :
  ADMINISTRATION (MSHA),     :    Docket No. KENT 93-974
               Petitioner    :    A.C. No. 15-16492-03540
                             :
     v.                      :    Docket No. KENT 94-51
                             :    A.C. No. 15-16492-03541
NATS CREEK MINING COMPANY,   :
               Respondent    :    Docket No. KENT 93-877
                             :    A.C. No. 15-16492-03537

                             DECISION

Appearances: Anne T. Knauff, Esq., Office of the Solicitor,
             U.S. Department of Labor, Nashville, Tennessee,
             for the Petitioner;
             Billy R. Shelton, Esq., Baird, Baird, Baird &
             Jones, Pikeville, Kentucky, for the Respondent.

Before: Judge Fauver

     These are consolidated civil penalty cases under
�110(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. � 801 et seq.

     Docket No. KENT 93-877 involves five � 104(a) 
citations issued on December 1, 1992, alleging significant
and substantial violations due to a moderate level of
negligence.  Four of the citations allege that certain
scoops were not equipped with operative methane monitors.
The fifth alleges that a fire suppression system on a scoop
was rendered inoperative by a missing hose.

     Docket No. KENT 93-974 involves two � 104(a) 
citations and a � 107(a) imminent danger withdrawal order
issued on December 8, 1992.  The citations allege
significant and substantial violations due to high
negligence.  One citation alleges that an underground
battery charging station was not housed in an adequate
fireproof structure and was in return air.  The other
alleges that non-permissible battery chargers were used
while the battery charging station was ventilated with 
return air.

     Docket No. KENT 94-51 involves three � 104(a) 
citations and a � 107(a) order issued on June 24, 1993.
The citations allege significant and substantial
violations due to high negligence. One citation alleges
that an automatic fire sensor warning device for four
conveyer belts was inoperative.  The second citation
alleges accumulations of combustible material around the
conveyor belts.  The third citation alleges that there 
were damaged, broken and stuck rollers on a conveyor belt
and the belt came into contact with accumulations of
combustible material.

     Having considered the hearing evidence and the 
record as a whole, I find that a preponderance of the
substantial, reliable, and probative evidence establishes
the Findings of Fact and further findings in the
Discussion below:

                         FINDINGS OF FACT

     1. Nats Creek Mining Co., Inc., operates Sugarloaf 
     No. 2 Mine in Floyd County, Kentucky, as a contract
     miner for JRC Land and Equipment Company of
     Lexington, Kentucky.  The mine produces about 
     160,000 tons of coal per year from one production
     section, operating three shifts, five or six days a
     week.  The coal is sold in or with substantial
     effect upon interstate commerce.

                              Scoops

     2. Scoops are used to load and haul coal from the
     face to a conveyor belt system.

     3. The mine liberates about 17,600 cubic feet of
     methane daily.  At that rate of liberation, methane
     could accumulate to an explosive concentration (5
     to 15 percent) in about a 12-hour period if the mine
     fan were off.

     4. On Saturday evening, November 28, 1992, there was
     a fatal accident when a scoop operator was crushed
     between the rib and his vehicle.

     5. Inspector Mark Bartley went to the mine on 
     December 1, 1992, to perform a spot electrical 
     inspection and to assist in the investigation of the
     fatal accident.  The investigation was handled
     jointly by MSHA and the Kentucky Department of Mines
     and Minerals.

     6. MSHA issued a work-stoppage order to preserve the
     accident site and equipment.  Under the MSHA order,
     the equipment was to be kept in the same condition 
     as it was on November 28, 1992.

     7. Because the coal seam was only 34 to 38 inches
     high, MSHA ordered all the scoops to be brought out
     of the mine so that Inspector Bartley could examine
     them more thoroughly.  Nine scoops were brought out
     of the mine.  All were found in violation of at least
     one safety standard.  Inspector Bartley issued 20
     citations on the scoops.

     8. All of the scoops were subject to being used to
     load coal at the face.  Nats Creek acknowledged that
     seven of the nine scoops routinely were used at the
     face, but the company could not tell Inspector
     Bartley which three or four scoops were in service
     at the time of the fatal accident.  No records were
     maintained to showed whether a scoop was used inby
     or outby the last open crosscut on any given date.

     9. None of the nine scoops was tagged out of 
     service or listed as out of service in the company's
     books as of November 28 through December 1, 1992.

     10. All nine scoops were operative and subject to
     being used inby the last open crosscut.  Inspector
     Bartley observed all of the scoops come out of the
     mine under their own power.  Nats Creek's
     electrician confirmed that the scoops came out of
     the mine under their own power.

     11. Methane monitors on the scoops are designed to
     give a warning when one percent methane appears in
     the atmosphere.  At two percent, the methane 
     monitors are designed to de-energize the machine to
     prevent a methane ignition.

     12. Inspector Bartley tested the methane monitor on
     scoop No. 105A/R11079-210.  When he found that it 
     was inoperative, he issued � 104(a) Citation No.
     4017965.  The methane monitor display on the scoop
     was missing and the whole internal component had 
     been taken out of the monitor.  The display was
     three inches in diameter, so that it was easy to see
     that the display was gone.

     13. Inspector Bartley examined the AR-4 Elkhorn
     scoop and found that there was no methane monitor 
     on the scoop.  He then issued Citation No. 4017967.
     Nats Creek's electrician confirmed that there was 
     no methane monitor on the scoop.  This is the scoop
     that was involved in the fatal accident.

     14. Inspector Bartley examined scoop No. 486-1193
     and found that the read-out methane monitor display
     was missing and the monitor did not work.  He then
     issued Citation No. 4017975.

     15. Inspector Bartley determined that all four of
     the methane monitor violations were significant and 
     substantial. There was a known history of methane
     liberation at the mine. There was no other automatic
     de-energization device on the equipment.  There was
     no other automatic methane detection device on the
     section.  The inoperative methane monitors could
     significantly and substantially contribute to an
     explosion or an ignition.

     16. Inspector Bartley determined that a moderate 
     level of negligence was involved in each of the
     methane monitor violations.

     17. Inspector Bartley examined the AR-4 Elkhorn 
     scoop, the one involved in the fatal accident, and
     found that, in addition to missing a methane monitor,
     it had an inoperative fire-suppression system.  A
     hose to the activator was missing. Because of this
     condition, he issued Citation No. 4017968.

     18. The manual activator is a pressurized cylinder.
     A button on the one-time-use cylinder is designed to
     pop a bladder cap on the cylinder seal to release
     pressure out of the cylinder. The pressure travels
     through a hose to force a chemical discharge to put
     out a fire.  The hose is 1/4 to 1/2 inch in diameter
     and about eight feet long.  The system is manually
     activated; that is, the operator has to hit the 
     button on the cylinder to cause the system to work.
     The button is within arm's reach of the operator's
     compartment.  The hose is an essential part of the
     fire-suppression system.  Without it, there is no way
     to discharge the chemical to suppress a fire. The
     fire-suppression system is an enclosed, self-
     contained system.  The missing hose rendered the
     system inoperative.  Nats Creek's superintendent and
     electrician told Inspector Bartley that the scoop
     was subject to being used in and inby the last open
     crosscut.  There was no indication on the scoop that
     it was restricted to use outby the last open crosscut.

     19. Inspector Bartley determined that the violation
     was significant and substantial.  If there had been 
     a fire on the vehicle, there would have been no way
     to extinguish the fire readily.  If the scoop
     operator had been trapped, he could have been burned
     alive.  The scoop came out of the mine under its own
     power.  It was not tagged out of service and it was
     subject to being used anywhere in the mine.

     20. Inspector Bartley determined that a moderate
     level of negligence was involved in this violation.
     He could not tell how long the hose had been missing,
     but noted that the hose connections were dirty, 
     indicating that the hose had been missing for a
     substantial period.

                     Battery Charging Station

     21. On December 8, 1992, Inspector Donnie R. Johnson
     found that the battery charging station was 
     ventilated with return air and that no intake air
     was supplied to the station.

     22. Inspector Johnson determined that the observed
     conditions constituted an imminent danger.  Non-
     permissible equipment was in the charging station.  
     There were open energized circuits in the charging
     units.  Return air was coming into the battery
     charging station from the face area.  A worked-out
     coal panel to the right of the station could produce 
     methane or toxic fumes.  Coal dust coming from the
     face could cause an ignition or an explosion.  An 
     ignition or explosion could blow out permanent
     ventilation controls.  Coal dust could propagate an
     explosion or fire throughout the mine.  The charging
     station was 20 or 25 crosscuts outby the working
     section.  Based upon the conditions observed, 
     Inspector Johnson issued imminent danger withdrawal
     Order No. 3516672.

     23. Inspector Johnson issued � 104(a) Citation No. 
     3516674 on December 8, 1992, charging a violation 
     of 30 C.F.R. � 75.340(a)(1).  The regulation requires
     that underground battery charging stations be located
     in noncombustible structures or areas or be equipped
     with a fire-suppression system.  The equipment must 
     be ventilated by intake air that has not been used
     to ventilate working places.  The battery charging
     station was not housed in a fireproof structure or 
     equipped with a fire-suppression system.  It was not 
     ventilated with intake air. Two brattices had been 
     removed to allow the return air from the 001-0 
     section to pass through and ventilate the battery 
     charging station, where six energized 480-volt 
     batteries were charging scoop batteries.

     24. The coal ribs that formed the battery charging 
     station were not insulated or fireproofed.  The 
     station was located between pillar blocks of coal 
     that were left when the entries were mined and 
     developed with crosscuts connecting the entries. There
     was no enclosing structure.  The exposed coal ribs and
     coal dust on the floor were combustible.  The station 
     was littered with empty cardboard boxes and open cans
     which contained hydraulic fluid.  Inspector Johnson 
     found about 45 empty cardboard boxes piled up between 
     batteries and a brattice.

     25. There was no fire-suppression system or automatic 
     fire-fighting equipment at the charging station.  Two
     small hand-held five-pound fire extinguishers were in
     the area.  There were hoses and jugs of water in the 
     charging station.  However, Respondent's 
     superintendent was aware that firefighting problems 
     would be compounded by trying to use water to fight 
     an electrical fire. At least two of the battery 
     chargers and the batteries were against the coal ribs.
     Batteries being charged generate heat. The charging 
     unit also produces heat.  Hydrogen is a by-product of
     the battery charging process.  It is very explosive, 
     with an explosive range of 4 to 74 percent.  As the 
     plates in the batteries expand, they push up liquid. 
     Any hydrogen on top of the liquid in the cell is 
     pushed out into the atmosphere.

     26. Return air was used to ventilate the battery 
     charging station.  The air passed through the last 
     working place in the active section before it 
     ventilated the charging station. Inspector Johnson 
     observed that the battery charging station was
     energized.  He could hear the chargers humming, the 
     batteries bubbling, and he could smell the 
     distinctive odor associated with charging batteries.
     The cords for the charges and the batteries were
     plugged together.  Three scoops and four sets of 
     batteries were being charged.

     27. Inspector Johnson determined that this was a
     significant and substantial violation.  The mine 
     liberates methane.  If return air containing methane
     and coal dust from the face passed over the 
     energized electrical components in the charging 
     station, and a spark was released, the spark could 
     have caused a fire or an explosion.  The battery 
     chargers were not permissible equipment.  If there 
     had been an explosion, it could have blown out the
     ventilation controls between the return and intake 
     air courses.  If the ventilation controls had been
     blown out, the fresh air going to the working face 
     could have been contaminated. If the single mine fan
     had been blown out by an explosion, there would have
     been no ventilation in the mine. It was highly 
     likely that if mining had continued, the conditions
     found by the inspector would result in serious 
     injury.

     28. Inspector Johnson determined that high negligence
     was associated with the violation charged in Citation
     No. 3516674. The violation had existed for a 
     substantial period, probably a month.  The mine 
     superintendent concurred in this estimate.  He told
     Inspector Johnson, before they went underground, that 
     there was a problem with the charging station.  He
     did not mention then that it was being ventilated 
     with return air, but confirmed later that it was 
     ventilated that way.  There was no evidence of any
     efforts to fireproof the battery charging station, to
     ventilate it with intake air, or to keep the return 
     air out of it.  The conditions found by the inspector
     were obvious to anyone with a reasonable knowledge of
     mining practices and ventilation control. The cited
     conditions should have been discovered and corrected
     during the routine preshift examinations, but they
     were not reported in the preshift examination records.

     29.  The citation was terminated after abatement of
     the violative conditions.  The coal ribs were 
     insulated with a noncombustible sealer to form a fire
     protection barrier between the coal ribs and the 
     charging units.  The mine floor was cleaned up.  Rock
     dust was applied to all the areas.  The cardboard
     containers, plastic containers and empty oil cans
     were removed from the underground area of the mine. 
     Double airlock doors were installed.  A brattice and
     regulators were installed.  The changes allowed 
     intake air to ventilate the charging station. After
     ventilating the station, the air coursed out into the
     return air course.  All the corrective actions were
     completed in one day.

     30. Inspector Johnson issued � 104(a) Citation No.
     3516675 on December 8, 1992.  Originally, the
     citation cited a violation of 30 C.F.R. � 75.503.
     During the hearing an amendment was allowed to
     conform to the proof.  The cited regulation was
     changed to 30 C.F.R. � 507-1(a), which provides that
     electric equipment used in return air outby the last
     open crosscut must be permissible equipment.  Non-
     permissible 480-volt battery chargers were found at
     the charging station in return air.

     31. For the same reasons given for his findings as to
     Citation No. 3516674, Inspector Johnson determined 
     that this was a significant and substantial violation
     involving a high level of negligence, and was highly 
     likely to result in fatal injuries.

                       Conveyor Belt System

     32. On June 24, 1993, Inspector Johnson began a
     quarterly inspection of the mine.  Advance mining 
     was underway.  When he arrived at the mine, he met 
     with the superintendent, who told him that because
     a rock-picking table was being repaired the conveyor
     belts were not moving.  Inspector Johnson informed 
     the superintendent that he would start traveling 
     the conveyor belts that day, since they would not be
     operating.  Inspector Johnson entered the No. 2 belt
     entry portal to crawl the belts.  Along the No. 1 
     conveyor belt Inspector Johnson observed three 
     conditions that caused him to issue � 107(a) Order
     No. 4027494, finding an imminent danger:  The
     automatic fire sensor warning device was inoperative.
     There were damaged and stuck rollers. There were 
     extensive accumulations of loose coal, coal dust and
     float coal dust.  Inspector Johnson saw no evidence
     of efforts to correct these conditions.  Methane was 
     being liberated at the rate of about 17,600 cubic 
     feet per day.  Inspector Johnson feared that when 
     the conveyor belts started again, the three 
     conditions would combine to result in a serious mine
     fire or a coal dust explosion.  He immediately 
     returned to the surface to issue a � 107(a) order
     and to put a red tag on the No. 2 portal canopy for
     the belt conveyor to show that it was closed by a �
     107(a) order.

     33. When Inspector Johnson advised the mine 
     superintendent that he had issued an imminent danger
     order, the mine superintendent called the section by
     phone to have miners from the face start to abate 
     the cited hazards.  The superintendent did not
     express disagreement with the order or assert that 
     miners already were on their way to address the
     cited violations.  When the inspector had arrived at
     the mine and said he was going to crawl the belts, 
     the superintendent said, ". . . I don't think it
     looks too good, probably dirty. . . ."  Mine Manager 
     Travis Miller acknowledged the condition of the 
     belts:  "We had been there and like Billy [Martin, 
     the superintendent] said, well, they're probably 
     dirty."  The superintendent testified further, "I 
     did go straight to the phone right then and I called 
     inside and I told the boss, the section foreman, to 
     get people down there on the number one belt.  
     That's the reason . . . I didn't go up the belt with 
     him. . . .  I called to get people to correct the 
     problem if there was anything wrong with the belt 
     line because, I knew he was going to check it."  Tr.
     356-359.  It was not until the MSHA inspectors came 
     to the mine that the superintendent called to have 
     miners clean up the belts.

     34. The imminent danger order was terminated the 
     following afternoon after the fire sensor was 
     repaired, the accumulations were cleaned up, and 
     the rollers were repaired or replaced.

                        Fire Sensor System

     35. The first condition that contributed to issuance 
     of the above imminent danger order was cited in 
     � 104(a) Citation No. 4027495, dated June 24, 1993.  
     The regulation cited (30 C.F.R. � 75.1103-1) 
     requires that a fire sensor system be installed on
     each underground belt conveyor, to give warning
     automatically when a fire occurs on or near the belt 
     and to provide both audible and visual signals that 
     permit rapid location of the fire.  The fire sensor
     system was not maintained in an operative condition 
     for the Nos. 1, 2, 3, and 4 conveyor belts.  The 
     fire sensor cable had been severed between the 
     automatic indicator and the alarm signal box.  The 
     cable also had been severed at several locations 
     along the No. 1 conveyor belt.

     36. At Inspector Johnson's request, the company 
     electrician, George Bush, tried to activate the fire 
     sensor system.  It would not function.  As he 
     crawled the belt, Inspector Johnson found that the
     fire sensor cable had been cut or worn through in
     several locations, where the cable had dropped down 
     beside the belt conveyor, which rubbed against the
     cable until it was severed or badly worn.

     37. Fire sensors are contained in the cable, spaced 
     at intervals of 125 feet.  If a fire occurs, when 
     the sensor is heated to 125 degrees the circuit 
     opens and automatically indicates which belt 
     conveyor is on fire.  There were four belts 
     underground.  The fire sensor would not work for any 
     of them. One or two miners were assigned to monitor 
     more than a mile of belts.  Each belt was 1,400 to 
     2,000 feet long.  The belt entries also served as
     secondary escapeways.

     38. The fire sensor system was needed to respond to
     a fire quickly, to extinguish it or to try to keep
     it under control. Without the system, a fire could
     be raging out of control before being detected.  In 
     the event of fire, the ventilation system would pull
     the smoke to the face where the miners were working.
     The only firefighting system in place was the 
     manually activated water line which extended along 
     the belt conveyors.

     39. Although the belts were not running, the 
     section was engaged in advance mining.  Miners 
     could blast and extract coal at the face to have it 
     ready to load when the belts started to run again.
     Inspector Johnson observed that some miners were at
     the face and some were repairing the rock-picking 
     table on the outside.

     40. Inspector Johnson determined that the fire 
     sensor violation was significant and substantial.  
     Without the system, there was no way to detect a 
     fire on the belt conveyors until someone
     encountered smoke or flames.  Inspector Johnson 
     expected that the belts would be turned back on 
     as soon as the repairs were completed on the 
     picking table.  He believed that the observed 
     conditions were likely to result in a mine fire or
     explosion if normal mining operations were resumed.  
     There was friction between the belt and the 
     damaged rollers.  There were areas where the 
     combustible accumulations touched the bottom of
     the belt.  If the friction resulted in a fire, 
     there was no system in place to warn of it or to 
     locate it.

     41. Inspector Johnson determined that the 
     violation involved high negligence.  The fire 
     sensor system was required to be checked weekly.  
     The belt line was required to be checked daily,
     within three hours after the beginning of a 
     production shift. The miners had been 
     underground 2 hours 50 minutes when Inspector
     Johnson issued the citation.  The cable had been 
     severed in several locations.  The control box 
     for the fire sensor system has a warning light 
     to show any short-circuit in the system.  The
     severed cable should have short-circuited the 
     system, but Inspector Johnson found that the 
     warning light control box was not functioning, 
     perhaps because of dead batteries.  It did not 
     appear that the control box had been touched in
     a long time.  All that had to be done was to push 
     an easily accessible test button once each week 
     to see if the system was working.  There was no
     mention of the non-functioning system or of the 
     severed cable in the preshift examination records 
     or in the weekly examination records.  There was 
     no evidence that the company was about to begin
     repairs of the cable and the fire sensor system.

     42. Citation No. 4027495 was terminated the next
     day, after the automatic fire sensor system was 
     restored.

              Accumulations of Combustible Material

     43. The second condition that contributed to 
     issuance of the imminent danger order was cited 
     in � 104(a) Citation No. 4027496, on June 24, 
     1993.  The cited regulation (30 C.F.R � 75.400),
     prohibits the accumulation of coal dust, float 
     coal dust, loose coal, and other combustible 
     material in active workings or on electric 
     equipment in active workings.  Inspector Johnson
     found accumulations of loose coal, coal dust, 
     and float coal dust alongside and beneath the
     No. 1 conveyer belt and in the connecting 
     crosscuts.  The accumulations extended about 
     1,440 feet, from 1 inch to 30 inches deep.  In 
     the areas where Inspector Johnson saw one inch 
     of float coal dust it was scattered across the 
     entire entry, from rib to rib.  The area was dry.
     The accumulations were black.  The energized 
     4,160-volt cable was buried in the loose coal 
     and float coal dust alongside the belt conveyor.

     44. Inspector Johnson measured the accumulations 
     with a measuring tape, using his hand to rake 
     the coal back until he reached the mine floor.  
     His close inspection of the accumulations 
     verified that it was loose coal, coal dust and
     float coal dust.  Large quantities of coal dust 
     were raised into the air as he crawled through
     the accumulations.  Miners had worked or traveled
     in the area where the combustible accumulations 
     were found.  The area was required by regulation 
     to be traveled daily during the preshift 
     examination.

     45.  For the same reasons given for his findings 
     as to Citation No. 4027495, Inspector Johnson 
     determined that this was a significant and 
     substantial violation and involved high 
     negligence.  It was reasonably likely to result 
     in serious injuries to 12 miners working on the 
     head drive and at the face. The 4160-volt cable 
     buried in the accumulations was energized and
     was the main power cable.  Roof conditions were 
     fair, but some loose material had fallen out 
     from between the roof bolts.  The power cable 
     went through the area where the roof had 
     sloughed. If a piece of the roof fell on the 
     cable in the accumulations, the cable could have 
     been cut, resulting in a hot flash.  The hot
     flash could have ignited the float coal dust.  
     When the belt was running again, there would be
     friction between the belt and the rollers that 
     were broken or stuck.  Also, there would be 
     friction as the belt rubbed against the metal 
     frame of the belt assembly. The belt runs 250 
     to 450 feet per minute.  There were shiny and
     worn places on the steel frame, indicating that 
     the belt had rubbed against it.  Additionally, 
     there were rollers with shiny, smooth and worn 
     places, indicating that the belt was rubbing on
     them, rather than rolling over them.  Inspector 
     Johnson saw no evidence of efforts to clean up 
     the accumulations.  The accumulations were 
     easily visible alongside the belt, as was the
     2 1/2-inch power cable where it dropped down 
     into the accumulations from the mine roof.  
     Inspector Johnson estimated that the 
     accumulations would fill one, or possibly two, 
     coal trucks.  There was no mention of the 
     accumulations in the preshift examination records.

     46. The citation was terminated the next day,
     after the accumulations had been cleaned up and
     rock dust had been applied to the area.

                      Conveyor Belt Rollers

     47. The third condition that contributed to the 
     issuance of the imminent danger order was cited 
     in � 104(a) Citation No. 4027497, on June 24, 
     1993.  The cited regulation (30 C.F.R. � 75.1725)
     requires that machinery and equipment be
     maintained in safe operating condition and that 
     machinery and equipment in unsafe condition be 
     removed from service immediately.  Inspector
     Johnson found damaged, broken, or stuck rollers at 
     several locations along the No. 1 belt conveyor, 
     beginning at the No. 2 mine portal and extending to 
     the conveyor tail piece, about 1,440 feet.  The 
     damaged, broken, or stuck rollers allowed the 
     conveyor belt to contact the dry accumulations of 
     loose coal, coal dust, and float coal dust beneath 
     the belt.

     48. There are two layers of 3-inch steel rollers.  
     The top rollers are five to six feet apart.  The 
     bottom rollers are 10 to 12 feet apart.  The rubber 
     conveyor belt is designed to reduce friction by 
     moving on rotating rollers rather than rubbing
     against them.

     49. Inspector Johnson found that 19 rollers were 
     defective. The conveyor belt had not been taken out 
     of service.  Some rollers were broken.  The belt 
     had cut through the tops of some of the rollers.  
     Some rollers had dropped down in the middle. Some 
     had broken off the end of the supporting frame.  
     Some would not roll because there was coal jammed 
     between the frame and a roller.  Inspector Johnson 
     tried to turn some of the rollers with his hands; he
     could not move them.  In addition to the 19 stuck   
     and broken rollers, Inspector Johnson saw rollers 
     with shiny, smooth and worn places, indicating that 
     the belt was rubbing on them, rather than rolling 
     over them.

     50. Some of the rollers were in accumulations of coal
     dust. For the same reasons given for his findings as 
     to Citations Nos. 4027495 and 4027496, Inspector 
     Johnson determined that this was a significant and 
     substantial violation and involved high negligence.

     51. The damaged rollers were obvious and clearly
     visible to anyone crawling along the belts to make
     the belt examinations. There were two production 
     shifts a day.  The belts and rollers were required 
     to be examined twice every work day.  There was no
     report of defective rollers in the preshift 
     examination records.

          DISCUSSION WITH FURTHER FINDINGS, CONCLUSIONS

                              Scoops

     Four citations charge a violation of 30 C.F.R 
� 342(a)(1) for having a defective or missing methane 
monitor on a scoop.

     Respondent contends that the four citations should 
be vacated because the inspector could not testify that 
the cited scoops were used to load coal while having a
defective or missing methane monitor.

     Section 75.342(a)(1) provides:

          MSHA approved methane monitors shall be 
     installed on all face cutting machines, continuous 
     miners, longwall face equipment, loading machines, 
     and other mechanized equipment used to extract or 
     load coal within the working place.

     "Working place" is defined as "the area of a coal 
mine inby the last open crosscut."  30 C.F.R. � 75.2.

     Respondent states that its evidence shows that all 
scoops were checked to be sure the methane monitors 
were operative before a scoop was used to haul coal 
and that if a scoop was not in permissible condition
it was rendered inoperative by not hooking the 
necessary wiring back up to the circuit breaker.  It
states that if a methane monitor became inoperative
during the production shift, the scoop was returned 
to the battery barn where it was replaced with a new 
scoop or the methane readout or display unit was 
replaced.

     The Secretary contends that no records or other
identification was used to restrict any scoops from 
being used inby the last open crosscut, and that 
when the inspector asked the company which scoops 
had been used at the face it was unable to identify
them.  Scoops  with defective methane monitors were
not listed in the examination records, nor were 
they tagged out of service or marked in any way to 
prevent their use inby the last open crosscut.

     The company acknowledged that seven of the nine 
scoops routinely were used to load or haul coal at 
the face, but the company could not tell the inspector
which three or four scoops were in service at the time
of the fatal accident.  No records were maintained to 
show whether a scoop was used inby or outby the last 
open crosscut on any given date.

     On balance, I find that the inspector properly 
found that the cited scoops were subject to being used 
to load coal at the face at any time.  The defective or 
missing methane monitors therefore constituted 
violations of 30 C.F.R. � 75.342(a)(1).

     The evidence also supports the inspector's finding
that the violations were significant and substantial.
There was a known history of methane ignitions at 
this mine.  There was no other automatic de-energizing
device on the equipment.  There was no other automatic
methane detection device on the section.  The defective
methane monitors could significantly and substantially
contribute to an explosion or ignition. It was
reasonably likely that the violations would result in
serious injury.  The violations were therefore
significant and substantial.  Mathies Coal Company,
6 FMSHRC 1 (1984); U.S. Steel Mining Company, Inc.,
6 FMSHRC 1573 (1984).

     The evidence supports the inspector's finding of a 
moderate degree of negligence.  The operator failed to 
take reasonable steps to ensure that scoops with 
defective or missing methane monitors were not used to
load coal inby the last open crosscut.

     A fifth citation alleges that the AR-4 Elkhorn scoop, 
the one involved in the fatal accident, had an inoperative
fire suppression system (in addition to missing a methane
monitor), in violation of 30 C.F.R. � 1100-3.  A hose to 
the activator on the fire suppression system was missing.

     The company contends that the AR-4 scoop was not used 
to load coal but was used only to transport persons and 
supplies, and therefore was not required to have a fire 
suppression system.

     I find that the inspector properly determined that 
the scoop was not "transportation" equipment within the 
meaning of the regulations, based upon the representations
of company personnel to the inspector and the fact that a 
scoop is designed to haul coal and is not designed to 
transport people.

     Moreover, � 75.1100-3 requires that "All firefighting
equipment shall be maintained in a usable and operative
condition."  If a vehicle has a fire suppression device, 
it compromises safety and violates this section if the 
firefighting device does not work.

     By regulation, Nats Creek was required to adopt a 
program for the instruction of all miners in the location
and use of firefighting equipment, including operation of 
fire suppression equipment available in the mine.  
Presuming Nats Creek's compliance with the training 
regulations, drivers of the cited scoop would have been 
trained in the operation of the fire suppression system 
on the equipment.  The scoop was not equipped with any 
other firefighting equipment.  It is likely that a scoop
driver would have relied on the fire suppression system
available within arm's reach.  A scoop driver's reliance 
on the inoperative fire suppression system could have 
significantly and substantially contributed to a serious 
fire hazard, resulting in serious injury.  The violation 
was reasonably likely to result in serious injury and 
therefore was significant and substantial.

                     Battery Charging Station

     Two citations were issued in conjunction with a
� 107(a) imminent danger order on December 8, 1992.

     Citation No. 3516674 charges a violation of 30 C.F.R.
� 75.340(a)(1), which requires that underground battery
charging stations be located in noncombustible structures 
or areas or be equipped with a fire suppression system.
Additionally, the regulation requires that battery 
charging stations be ventilated by intake air.  The 
citation was issued for several reasons.  The inspector 
found 45 combustible cardboard boxes piled between 
batteries and a brattice in one area of the station.  The 
battery charging station was littered with empty oil cans.  
The coal ribs which formed the battery charging station 
were not adequately insulated or fireproofed.  The station 
was located between pillar blocks of coal; there was no
enclosing structure.  The exposed coal ribs and coal dust 
on the floor were combustible.  At least two of the
battery chargers and the batteries were against the coal 
ribs.

     No fire suppression system was in place.  There was 
no automatic firefighting equipment.  Two small hand-held
5-pound fire extinguishers were in the area.  There were 
hoses and jugs of water in the charging station, but using
water on an electrical fire would only compound the 
problem.  The batteries and the charging units generate 
heat.  Hydrogen, which can quickly reach an explosive 
level, is a by-product of the battery charging process.

     Return air, with potentially high quantities of coal 
dust, float coal dust, toxic or explosive fumes, methane, 
and carbon monoxide, was ventilating the battery charging
station.  The air came from the last working place on the
active section.

     Citation No. 3516675, as amended, charges a 
violation of 30 C.F.R. � 75.507-1(a), which requires that 
electric equipment used in return air outby the last open 
crosscut be permissible.  The citation was issued because
non-permissible 480-volt battery chargers were being used 
in the battery charging station.

     The company contends that the two citations are 
duplicative in that they involve only one violation, i.e., 
ventilating the battery charging station with return air.  
It states that both citations were terminated through one 
action taken by the operator, i.e., changing the 
ventilation of the battery station to intake air.

     However, the battery charging station was not housed 
in a fireproof structure, it was ventilated with return 
air, and non-permissible equipment was being used in it 
while it was ventilated with return air.  These are 
distinct, separate violations.  Despite the fact that the 
violations arose out of a single mining activity (battery 
charging) there were separate violations of two separate 
regulations.  Separate proof was offered for each 
violation.  See: Southern Ohio Coal Company, 4 FMSHRC 1459,
1462 (1982).  Thus, to abate the violation of 
� 75.340(a)(1), substantial separate actions were required
besides changing the ventilation to intake air.  The coal
ribs housing the station were insulated with a
noncombustible sealer to form a fire protection barrier
between the coal ribs and the charging units.  The mine
floor was cleaned.  Rock dust was applied to all the areas.
The cardboard containers, plastic containers and empty oil
cans were removed from the underground area of the mine.

     The company also contends that the two violations were 
not due to high negligence because there were mitigating
circumstances.  It states that the battery charging station
was being ventilated pursuant to directions given by a 
prior MSHA inspector and had been ventilated that way for 
a substantial period before the citations.

     Three or four days before the citation was served, 
the Mine Superintendent, Billy Martin, told Inspector 
Johnson that he had a ventilation problem concerning the 
battery charging station, and showed him a small drawing 
or map to indicate the problem.  The problem he described 
did not indicate that station was in return air.  The 
inspector was leaving and stated that when he returned 
(several days later) he "would try to help him on the 
ventilation" problem. Tr. 234.  When the inspector 
returned, on December 8, 1992, he examined the battery 
charging station and found that it was in return air.  
The inspector testified that Martin had not told him,
several days earlier, that the station was in return air.

     In looking back at the situation, the inspector 
testified that "when I issued the imminent danger [order]
[it] was my understanding that Mr. Martin didn't know 
that he could use this neutral air to dump into this 
charging station ...." Tr. 232.

     Travis Miller, the Mine Manager, testified that the 
battery station "was ventilated pursuant to the 
direction of [Inspector] Sloan and to his satisfaction."
Tr. 273. However, Mr. Miller had no firsthand knowledge
of the condition of the battery station prior to December
8, 1992. I do not find that the prior inspector, Marcus 
Sloan, approved the ventilation pattern for the battery 
station that was later found by Inspector Johnson on
December 8, 1992.

     However, I find that Mr. Martin's effort to get 
advice from Inspector Johnson concerning the ventilation
of the battery station several days before December 8, 
1992, is a mitigating factor that serves to reduce the 
operator's negligence from high to moderate as to the 
violations involving ventilating the battery station in 
return air. This factor does not mitigate the high 
negligence involved in the failure to maintain the battery
station in a noncombustible structure or area, which is an 
important part of the violation of � 75.340(a)(1).

     The evidence sustains the inspector's finding of 
significant and substantial violations as to the battery 
charging station.

                          Belt Conveyors

     Three � 104(a) citations were issued in conjunction 
with a � 107(a) imminent danger order on June 24, 1993.

     The imminent danger order was issued based upon the
inspector's finding that a combination of hazards
constituted an imminent danger:  the automatic fire sensor
system for four conveyor belts was inoperative; extensive
accumulations of loose coal, coal dust and float coal dust
were present; and there were damaged, broken, and stuck
rollers.

     The imminent danger order was terminated the
following afternoon, after the fire sensor system was
repaired, the accumulations were cleaned up, and the
rollers were repaired or replaced.

     The company contends that the imminent danger order
was improper because the conveyor belts were not running 
and were in the process of being cleaned and repaired at
the time of the inspection.

     However, when Inspector Johnson arrived at the mine
on June 24, 1993, advance mining was underway in the 
active workings.  He met the mine superintendent, who 
told him the belt conveyors were not running  because a 
rock-picking table was being repaired.  Inspector Johnson 
crawled the belts.  Even though the shift had begun three 
hours earlier, he saw no evidence of any effort to repair 
the fire sensor system, the rollers, or  to clean up the 
extensive accumulations of loose coal, coal dust, and 
float coal dust.

     The evidence sustains the imminent danger order and 
the three � 104(a) citations.  The violations were 
significant and substantial, as they were reasonably
likely to cause serious injury.  The violations were 
obvious and demonstrated high negligence.

      Claim of Financial Hardship

     Travis Miller, the mine manager, testified concerning
Nats Creek's ability to pay the penalties proposed by the
Secretary.  In general, he stated that the price of coal
was low and the cost of mining it was high.  These are 
common complaints in the mining industry. He testified 
that the Sugarloaf No. 2 Mine was losing money, but he 
had no information about assets, liabilities, owners' 
salaries, business structure, or any other financial
data.  To support his testimony, he offered a one-page
unaudited and unsigned consolidated income statement for 
the five months ending May 31, 1994 (Respondent's Exhibit
2).  The preparer of the statement was not identified.  
No company records or tax returns were offered to support
the figures in the statement.

     At the close of the hearing the judge gave Nats Creek
15 days from the date of the hearing to submit an audited
financial statement.  No such statement was submitted.

     The burden is on a mine operator to establish that 
payment of the assessed civil penalties will adversely 
affect its ability to continue in business.  Absent proof
that the imposition of civil penalties would adversely 
affect a mine operator's ability to continue in business, 
it is presumed that no such adverse affect would occur.  
Sellersburg Stone Co., 5 FMSHRC 287 (1987), aff'd. 736 
F.2d 1147 (7th Cir. 1984).

     Mr. Miller's testimony and the one-page unaudited 
income statement do not meet Nats Creek's burden of proof
that payment of the penalties assessed would affect the
operator's ability to continue in business.

                         Civil Penalties

     Respondent produces about 160,000 tons of coal a year.

     From June 30, 1990, to June 30, 1994, Respondent had
135 violations of mine safety and health standards, for
which it paid $17,320 in civil penalties, and was cited
with 48 other violations with proposed civil penalties of
$86,290 which are in litigation.

     As to each of the violations in the cases at bar, 
Respondent made a good faith effort to achieve rapid 
compliance after being notified of the violation.  The
factors of negligence and gravity are discussed above.

     Considering all of the criteria for assessing civil
penalties in � 110(i) of the Act, I find that the
following civil penalties are appropriate:

     Citation No. Date Civil Penalty

     4017965 12/1/92      $  235
     4017967 12/1/92 $  235
     4017975 12/1/92 $  235
     4017980 12/1/92 $  235
     4017968 12/1/92 $  235
     3516674 12/8/92 $6,500
     3516675 12/8/92 $4,500
     4027495 6/24/83 $2,000
     4027496 6/24/83 $5,000
     4027497 6/24/83 $4,000

                        CONCLUSIONS OF LAW

1. The judge has jurisdiction.

2. Respondent violated the mine safety standards as 
alleged in each of the 10 citations involved in these
cases.

3. The evidence sustains the two � 107(a) orders involved 
in these cases.

                                ORDER

1. The 10 citations and the two � 107(a) orders involved 
in these cases are AFFIRMED.

2. Respondent shall pay civil penalties of $23,175 within
30 days of this Decision.


                               William Fauver
                               Administrative Law Judge
   
Distribution:

Anne T. Knauff, Esq., Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN  37215-2862 (Certified Mail)

Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, 415
Second St., P.O. Box 351, Pikeville, KY 41502 (Certified
Mail)

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