<DOC>
[DOCID: f:k95-451.wais]

 
J B D MINING COMPANY, INC.
March 7, 1996
KENT 95-451


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                            March 7, 1996


SECRETARY OF LABOR,              :   CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         :   Docket No. KENT 95-451
               Petitioner        :     A.C. No. 15-16508-03594
          v.                     :
                                 :   Docket No. KENT 95-671
J B D MINING COMPANY, INC.,      :   A.C. No. 15-16508-03600
               Respondent        :
                                 :   Docket No. KENT 95-728
                                 :     A.C. No. 15-16508-03601
                                 :
                                 :   Mine:  Harlan No. 1


                               DECISION

Appearances:  Thomas A. Grooms, Esq., Office of the Solicitor,
              U.S. Department of Labor, Nashville, Tennessee;
              Tommy D. Frizzell, Conference and Litigation
              Representative, Mine Safety and Health Administration,
              Barbourville, Kentucky; Ronnie R. Russell, Conference
              and Litigation Representative, Mine Safety and Health
              Administration, Barbourville, Kentucky, for  Petitioner;
              Jefferson B. Davis, President, J B D Mining, Pathfork,
              Kentucky, Pro Se, for Respondent.

Before:  Judge Amchan


                        Docket No. KENT 95-451

     On November 17, 1994, MSHA representative Billy Parrott conducted
an inspection of Respondent's No. 1 Mine in Harlan County, Kentucky.
When he arrived at the mine's only working section, Parrott noticed
that a center line, drawn on the roof of a crosscut to guide the
continuous mining machine, extended inby the last row of bolts
(Tr. I: 14-16).[1]

     This line could not have been drawn without a miner walking
under an unsupported portion of the roof (Tr. I: 23).  Going into
an area in which the roof is unsupported is very dangerous and could
result in a miner being killed or seriously injured by a roof fall.
Parrott issued an imminent danger order and Citation No. 4246900.
The citation alleges a violation of MSHA regulation 30 C.F.R. �75.202(b).
This regulation generally forbids work or travel under unsupported roof.

     The citation alleges a significant and substantial (S&S)
violation due to moderate negligence on the part of the Respondent.
It also alleges that it was highly likely that an injury resulting
in permanently disabling injuries might occur due to the violation.
MSHA proposed a $2,000 penalty for the violation.

     Respondent does not deny that the violation occurred.  It argues
that the proposed penalty is much too high given the circumstances.
When proposed penalties are contested, the Commission assesses civil
penalties independently of the proposal made by MSHA.  Section 110(i)
of the Act requires that the Commission assess civil penalties after
giving consideration to six factors.  These are the size of the operator,
the gravity of the violation, whether the operator was negligent, whether
the operator demonstrated good faith in promptly abating the violation,
the operator's history of previous violations and the effect of the penalty
on the operator's ability to stay in business.

     Respondent is a small operator and it has not offered evidence
that payment of the proposed penalties would affect its ability to
stay in business.  Respondent appears to have been cooperative in
trying to prevent recurrences of the violation (Exh. G-2, Block 17).
As to Respondent's prior history of violations, the Secretary's
computerized list of citations between November 17, 1992 through
November 16, 1992 (Exh G-1), reveals no reason to assess either a
higher or lower penalty.  It does indicate that Respondent pays few
of the uncontested penalties proposed by MSHA.  However, I do not
regard this as a basis for increasing the penalty for the instant
violations.  The mechanism for addressing a failure to pay civil
penalties is the institution of a collection proceeding in U.S. District
Court pursuant to � 110(j) of the Act.

     The record in this case requires resolution of conflicting
evidence regarding the negligence of the operator in violating the
Act and the gravity of the violation.  As to negligence, Charles
Farmer, a repairman and sometime section foreman, admits he drew the
center line in the area cited by Inspector Parrott (Tr. I: 66).  He
stated that he thought he was still under supported roof because he
did not realize that the person installing roof bolts had not finished
the row of bolts closest to the face (Tr. I: 69, 72, also see
Respondent's Answer of May 23, 1995).

     Farmer contends that there were two bolts on the right side
of the unfinished row of bolts in the crosscut and that the red
reflective marker was on the one closest to the middle of the
crosscut (Tr. I: 67, 69; Exh. R-1). Inspector Parrott contends that
the marker, which indicates the last row of bolts, was attached to
one of the bolts in the last completed row (Tr. I: 38; Exhibit R-1).
Moreover, he states that only one bolt had been installed inby that
row (Exh. G-5)[2].

     I credit the testimony of Inspector Parrott and find that the
reflective marker was in the last full row of bolts and that there
was only one bolt in front of this row.  I do so because he is likely
to have focused his attention much more on the location of the bolts
and marker than did Farmer, who was also concerned with his production
responsibilities.  Moreover, Parrott committed his recollections to
paper by making a  sketch of the area within 10 or 15 minutes of his
observations (Tr. I: 39, 43).


**FOOTNOTES**

     [1]:  I will refer to the transcript for Docket No. KENT 95-
451 as Tr. I, the transcript for Docket No. KENT 95-671 as Tr. II
and the transcript for Docket No. KENT 95-728 as Tr. III.

     [2]:  Exhibit G-5 was drawn on acetate and used on an overhead
projector at hearing.  It was also copied on paper.  The paper
version of G-5 contains marks made by the witnesses which are not
on the acetate version.


     Since I conclude that Farmer went beyond the red reflective
marker, I find his negligence to be somewhat greater than if the
marker had been on the bolts closest to the face. Nevertheless, I
accept Respondent's claim that the violation was due to inadvertence.

     The coal seam at this point is only 30 inches high.  Miners
are not able to stand up, and it is thus more likely that Farmer did
not appreciate the fact that the row of bolts closest to the face had
not been completed.  On the other hand, it is incumbent upon Respondent
to insure that all its employees are trained sufficiently so they
recognize when a row of bolts has not been completely installed.

     I therefore conclude that this violation was due, in part, to a
moderate degree of negligence on the part of Mr. Farmer in failing to
determine whether the roof under which he traveled was supported.  Mr.
Farmer's negligence is imputed to Respondent for liability and penalty
purposes.  He generally was given super-visory responsibilities and
there is nothing in the record which indicates that Respondent had taken
reasonable steps before this incident to avoid such a violation, Nacco
Mining Company, 3 FMSHRC 848, 850 (April 1981).

     I also find Respondent was negligent for creating a situation
in which a miner might not realize that the row of bolts closest to
the face had not been completely installed. Nothing in the record
indicates that there was anything unprecedented in the circumstances
leading to the violation. The bolts were apparently left out of the
row closest to the face due to the presence of cap coal (coal left on
the roof by the continuous miner).  The record does not indicate that
Respondent had taken any precautions to insure that miners would not
travel under a portion of the roof where bolts had not been installed
for this reason.  Thus, I conclude it was foreseeable that they might
do so.

     MSHA considered the instant violation to be highly likely to
result in an accident, in part because the Harlan No. 1 Mine has 2 to
12 inches of draw rock in many places and has experi-enced a number
of roof falls (Tr. I: 54-61).  Mr. Farmer, on the other hand, does
not recall encountering any draw rock in the cited area (Tr. I: 70).

     Regardless of whether this area contained draw rock, I find
that the violation was "S&S" as alleged by the Secretary. The
Commission test for "S&S," as set forth in Mathies Coal Co., supra,
is as follows:

          In order to establish that a violation of a
     mandatory safety standard is significant and
     substantial under National Gypsum the Secretary
     of Labor must prove: (1) the underlying violation
     of a mandatory safety standard; (2) a discrete
     safety hazard--that is, a measure of danger to
     safety--contributed to by the violation; (3) a
     reasonable likelihood that the hazard contributed
     to will result in an injury; and (4) a reasonable
     likelihood that the injury in question will be of
     a reasonably serious nature.

     The Commission, in United States Steel Mining Co., Inc.,
FMSHRC 1573, 1574 (July 1984), held that S&S determinations are
not limited to conditions existing at the time of the citation, but
rather should be made in the context of continued normal mining
operations.  Applying this test, I conclude the violation was as
reasonably likely to occur in an area with draw rock as in one with
no draw rock.  Therefore, I conclude that a serious accident was
reasonably likely, and thus the violation was properly characterized
as "S&S."  Further, given the consider-ations discussed herein, I
conclude that a $500 civil penalty is appropriate for this violation.

                        Docket No. KENT 95-671

     MSHA representative Roger Dingess inspected the Harlan No. 1
mine on April 19, 1995 (Tr. II: 5-7).  After inspecting the face
area he walked outby four crosscuts along the belt line and found
a fresh cigarette butt.  He continued walking approximately 300 feet
outby to a power center where he found a second fresh cigarette
butt (Tr. II: 6-8).

     As a result of these discoveries, Dingess issued citation
No. 4478078 to Respondent alleging a violation of 30 C.F.R. �75.1702.
The cited regulation prohibits anyone from smoking underground or
carrying any smoking materials underground.  It also requires a mine
operator to institute a program, approved by the Secretary, to insure
that nobody carries smoking materials underground.

     The citation alleges this standard was violated in that the
operator did not comply with its smoking program (Exh. G-8, Block 8).
MSHA characterizes the violation as S&S and due to the operator's
moderate degree of negligence.  A penalty of $2,500 was proposed for
this violation.

     The only evidence of fault on Respondent's part is Inspector
Dingess' testimony that Charles Farmer, Respondent's foreman, was
working only 100 feet inby from the location of the first cigarette
butt found and therefore should have immediately detected the smoke
from this cigarette (Tr. II: 13-14).  However, there is no direct
evidence that Farmer knew anyone was smoking in the mine, and
insufficient evidence to infer such a fact.

     The airflow along the belt line is of relatively low velocity,
but it would have carried cigarette smoke outby and away from Farmer,
rather than towards him (Tr. II: 17-18).  Moreover, it is not certain
that the cigarettes were smoked at the locations at which they were
found (Tr. II: 18).

     There is also no evidence that Respondent's smoking program
was defective or improperly implemented (Tr. II: 13,17,21).
Negligence on the part of J B D management cannot be inferred
simply from the fact that smoking materials were found underground.
Further, the negligence of non- supervisory personnel in bringing
smoking materials into the mine cannot be imputed to the Respondent
for purposes of assessing a civil penalty, Southern Ohio Coal Co.,
4 FMSHRC 1459 (August 1982).

     Despite the fact that Inspector Dingess has never detected
methane at the No. 1 mine, I conclude that the instant violation
is S&S.  Congress would not have specifically prohibited the
 presence of such materials and provided for penalties for individual
 miners unless it considered that such materials are reasonably
 likely to result in serious injury.

     Nevertheless, in spite of the high gravity of the violation,
I assess only a $200 civil penalty.  Paramount in this decision is
the absence of evidence of Respondent's negligence and its good faith
abatement of the violation. Respondent took steps to prevent a recurrence
of the violation by discharging the miner who most likely brought the
smoking materials into its mine (Tr. II: 22-24).

                        Docket No. KENT 95-728

     On April 20, 1995, while inspecting the surface area of the
Harlan No. 1 mine, Mr. Dingess observed Bobby Taylor get out of his
haul truck and load coal into it with a front end loader (Tr. III:
5-7, 12).  Inspector Dingess asked Taylor for documentation regarding
his hazard training at this mine. While Taylor had training slips for
other mines he had worked at, he did not have any for Respondent's mine
(Tr. III: 7, 10).

     Taylor was employed by Kincaid Coal Co., a contractor operating
on Respondent's property (Tr. III: 7, Answer).  Nevertheless, since
MSHA deems it the operator's responsibility to insure that all
contractor employees have the requisite site-specific training,
Dingess issued Citation No. 4478079 to Respondent.

     The citation alleges an S&S violation of 30 C.F.R. �48.31(a).
MSHA has proposed a $2,000 penalty.  It contends that the violation
was highly likely to result in a fatal injury (Citation, block 10).
This conclusion is predicated on the fact that the No. 1 mine is
located on the side of a mountain and that coal is dumped into a chute
that sits on a 200 foot embankment (Tr. III: 11-13).

     The area in which Mr. Taylor was observed loading his truck
is located next to the bottom of the chute.  Inspector Dingess
believes miners in the area could be injured by objects coming
through the windshield of their vehicles (Tr. III: 13).

     Respondent argues that this is simply a paper violation. Taylor
has worked at this site intermittently for four years (Tr. III: 23).
Moreover, he had received training from two other operators (Tr. III: 17).
Finally, Respondent contends that it abated the violation in 15 minutes
merely by reviewing information of which Taylor was already aware and
completing the MSHA form 5000-23.

     I conclude that the Secretary has not established an S&S violation
with regard to this citation.  Given Mr. Taylor's familiarity with the
worksite and recent training by other operators it would be unlikely
that his lack of training would result in an injury.  For the same
reasons, I deem the gravity of the violation to be relatively low.

     However, I find Respondent negligent in not complying with the
training requirements for Mr. Taylor.  In conjunction with the other
penalty criteria in section 110(i), I conclude that a civil penalty
of $200 is appropriate.

                                ORDER

Docket KENT 95-451:  Citation No. 4246900 is affirmed and a $500
civil penalty is assessed.

Docket KENT 95-671:  Citation No. 4478078 is affirmed and a $200
civil penalty is assessed.

Docket Kent 95-728:  Citation No. 4478079 is affirmed and a $200
civil penalty is assessed.

The total civil penalties of $900 shall be paid within thirty (30)
days of this decision.


                                 Arthur J. Amchan
                                 Administrative Law Judge


Distribution:

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

Jefferson B. Davis, President, J B D Mining Co., Inc.,
5978 E. Hwy. 72, Pathfork, KY 40863 (Certified Mail)

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