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[DOCID: f:k96-292.wais]
SOLID ENERGY MINING CO.
May 22, 1997
KENT 96-292
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
May 22, 1997
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. KENT 96-292
Petitioner : A. C. No. 15-07475-03534
v. :
: Docket No. KENT 96-330
SOLID ENERGY MINING CO., : A. C. No. 15-07475-03535
Respondent :
: Docket No. KENT 96-335
: A. C. No. 15-07475-03536
:
: Mine #1
DECISION
Appearances: Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Petitioner;
William C. Miller, II, Esq., Jackson & Kelly,
Charleston, West Virginia, for Respondent.
Before: Judge Hodgdon
These consolidated cases are before me on Petitions for
Assessment of Civil Penalty filed by the Secretary of Labor,
acting through her Mine Safety and Health Administration (MSHA),
against Solid Energy Mining Company pursuant to section 105 of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 815.
The petitions allege eleven violations of the Secretary's
mandatory health and safety standards and seek penalties of
$4,879,00. For the reasons set forth below, I affirm all of the
citations and assess penalties of $3,331.00.
A hearing was held on March 4, 1997, in Pikeville, Kentucky.
In addition, the parties submitted post-hearing briefs in these
matters.
Docket No. KENT 96-292
This docket consists of three citations. At the hearing the
Respondent's counsel stated that the company was not contesting
Citation Nos. 4508988 and 4235513 and would pay the penalties
assessed. (Tr. 40.) Accordingly, evidence was only presented on
Citation No. 4585909.
That citation alleges a violation of section 75.370(a)(1) of
the Regulations, 30 C.F.R. � 75.370(a)(1), because:
Operator failed to follow the approved ventilation
plan. The bleeder entries serving the No. 3 panel,
located adjacent to the 1st right submains, was [sic]
not being maintained free of roof falls. A roof fall
was present in the No. 5 entry which prohibits travel
to a bleeder evaluation point serving the No. 3
pillared area. Also permanent stoppings (1) crushed
out [sic] and two (2) permanent stoppings, inby S.S.
2034, had not been constructed. The approved
ventilation supplement date [sic] 9-12-1995 references
"Evaluation points as shown on mine map." The
evaluation point is not accessible and stoppings not
maintained/constructed [sic] per mine map.
(Govt. Ex. 6.)
Section 75.370(a)(1) provides, as pertinent to this case,
that "[t]he operator shall develop and follow a ventilation plan
approved by the district manager. . . . The ventilation plan
shall consist of two parts, the plan content . . . and the
ventilation map . . . ." The September 12, 1995, supplement to
Solid Energy's ventilation plan states the following with respect
to evaluations of bleeder entries[1]:
1. The following methods are used to maintain all
bleeder entries free from obstructions such as
water or roof falls:
Bleeder entries or bleeder systems will be adequately
maintained and free of water. A permissible sump pump
may be installed through the bore hole to de-water the
gob area.
Coal will be extracted in a manner that will not
interfere with the integrity of the bleeder systems.
2. The following means are used to determine the
effectiveness of bleeder entries:
At least every seven (7) days, a certified person
designated by the operator shall evaluate the
effectiveness of the bleeder systems by determining the
volume and proper flow of air, concentration of oxygen
and methane as shown on the mine map.
3. The alternative method of evaluating worked-out
areas will be as follows:
Evaluation point as shown on mine map.
(Govt. Ex. 7, p.3.)
The parties agree that a roof fall had occurred in the entry
serving the No. 3 Panel in an area of the mine that had
previously mined and pillared and that the fall prevented access
to an evaluation point indicated on the ventilation plan map.
They also agree that a stopping had been "crushed out" and two
stoppings had not been constructed. They disagree as to whether
any of this constituted a failure to follow the ventilation plan.
As set out in the supplement, the bleeder entries are
supposed to be examined on a weekly basis. According to
Inspector Williams, the results of these examinations are
required to be recorded by the operator. He further testified
that he did not know when the roof fall occurred and admitted
that it was possible that it had occurred within the seven day
period between inspections. It is the company's position that
this is exactly what happened with the roof fall and the "crushed
out" stopping. Therefore, Solid Energy argues that the
ventilation plan was not violated by these occurrences.
Although the book recording the results of the examinations
was not entered into evidence, and the person charged with
conducting the weekly examinations did not testify, the evidence
supports the company's position. Inspector Williams testified
that he checked the examination book, and that as a result of
this he issued a citation for failing to record the results of
the examinations of Evaluation Points 2A, 3A and 14. Since the
evaluation point in question is 4A, and since the company was not
cited for failing to record the results of the examinations at
that point, it can be inferred that the required examinations
were being conducted with respect to 4A.
The Secretary did not show any of the following: (1) when
the fall and the crushed stopping occurred, (2) that the company
was not conducting the required weekly examinations with respect
to Evaluation Point 4A or the crushed stopping, (3) that the
company was required to conduct examinations more frequently than
every seven days, or (4) that the company knew or should have
known about those occurrences. All that the Secretary has shown
is that a roof fall had occurred and a stopping had been crushed.
Without more, this is not enough to establish a violation of the
regulation.
That does not mean, however, that the company did not
violate the regulation. The testimony of Kenneth Deskins, Mine
Foreman, clearly verifies that the company violated section
75.370(a)(1) by not constructing stoppings required by the plan
and shown on the ventilation map. Deskins testified as follows:
Q. Mr. Deskins, the stopping that had not been
constructed was required to be constructed by the plan,
is that correct?
A. Correct.
Q. You actually had the block sitting there on pallets
waiting to be installed, did you not?
A. There were two pallets blocked [sic].
Q. How long had those pallets been there?
A. Approximately probably a month.
Q. Mr. Deskins, did the weekly examiner record in the
weekly examination book that the stopping had not been
constructed that was supposed to have been constructed?
A. I did not read it had it recorded.
Q. Pardon me?
A. I didn't read it in the exam book.
Q. Do you countersign the exam book?
A. Yes.
Q. He had never recorded that the stopping had not
been constructed?
A. Correct.
Q. That would have been for at least three or four
weekly exams; is that correct?
A. That's correct.
(Tr. 76, 80.) Based on this, I conclude that Solid Energy
violated section 75.370(a)(1). Because the blocks to
construct the stopping had been present for at least a month
and the foreman apparently made no effort to determine
whether it had been constructed, I further conclude that the
operator's degree of negligence for this violation was
"high."
Docket No. KENT 96-330
This docket consists of seven citations, Citation Nos.
4025271- 4025277, however, only Citation No. 4025272 was
contested by the Respondent. (Tr. 83.) That citation
alleges a violation of section 75.507-1(a), 30 C.F.R. �
75.507-1(a), in that:
A non-permissible battery charger was observed
charging a Fairchild scoop in the return air course of
the 003-0 working section. The charger was located
approximately 40 feet outby the last open crosscut of
the No. 2 entry on the return side of the return
stopping line.
Methane concentrations of 0.4% were found at the
No. 4 face, on this day's inspection.
(Govt. Ex. 10.)
Section 75.507-1(a) requires that "[a]ll electric equipment,
other than power-connection points, used in return air outby the
last open crosscut in any coal mine shall be permissible . . . ."
Section 75.301 sets out the definition of "return air." As
pertinent to this violation it states: "For the purposes of �
75.507-1, air that has been used to ventilate any working place
in a coal producing section or pillared area, or air that has
been used to ventilate any working face if such air is directed
away from the immediate return is return air."
In its brief, the company states: "Although Respondent
concedes the existence of the violation, the facts in this matter
do not support a finding that the violation was significant and
substantial." (Resp. Br. at 7.) Consequently, I conclude that
Solid Energy violated section 75.507-1(a).
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 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 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission set out 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 (December 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 significant and substantial must be based
on the particular facts surrounding the violation. Texasgulf,
Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Co., 9
FMSHRC 1007 (December 1987).
As is generally the case, Solid Energy argues that the third
Mathies criterion, whether there was "a reasonable likelihood
that the hazard contributed to will result in any injury," is not
present. The company asserts that the absence of explosive
quantities of methane[2] and the fact that ventilation in the
area was characterized by the inspector as good indicates that an
injury would not likely result.
This argument, however, overlooks the guidance of U.S.
Steel, supra, that analysis of the Mathies criteria should be
made in terms of "continued normal mining operations." Inspector
Justice testified that the mine, at the time the citation was
issued, was liberating over 200,000 cubic feet of methane per day
and that it now liberates 500,000 cubic feet of methane per day.
Thus, the fact that at the precise time of the violation an
explosive concentration of methane was not present does not mean
that under continued normal mining operations an explosive
concentration could not accumulate. Indeed in the inspector's
opinion that is precisely what could have happened.
Inspector Justice described the situation succinctly when he
testified: "We have an arcing potential. . . . We have a mine
which is clearly shown to liberate methane. We have a charger
that is sitting in an area where methane can be carried over top
of or accumulate in this area. We have a timer which can be set
and no one even be around the charger and it kick off causing an
ignition . . . ." (Tr. 102.) Based on this evidence, I find
that there was a reasonable likelihood that the hazard
contributed to by the violation would result in an injury from a
methane ignition. Accordingly, I conclude that the violation was
"significant and substantial."
Docket No. KENT 96-335
This docket consists of Citation No. 4225514, which was
contested. It alleges a violation of section 77.204, 30 C.F.R. �
77.204, because: "The fence was detached from the side of the
elevator head frame, leaving an open space that persons could
travel to the top of the elevator shaft [sic] that was not
provided with railings barriers [sic] to prevent falling into the
shaft, where persons are regular [sic] working in this area."
Section 77.204 provides that: "Openings in surface installations
through which men or material may fall shall be protected by
railings, barriers, covers or other protective devices."
The facts surrounding this citation are not in dispute. The
cement collar of an elevator shaft extended about 18 inches above
the ground. The shaft, which was about 22 feet in diameter, was
not covered and no railings, barriers or other protective devices
existed on or around the collar. There was, however, a fence
around the shaft, located some six to eight feet from it. The
fence was normally attached to a steel head frame, although at
the time of the inspection, it was partially detached at the top.
A mine employee regularly cuts the grass in the space
between the fence and the shaft, entering the area through a gate
in the fence. The only other people entering the fenced area are
employees of the elevator company under contract with the
operator to perform maintenance on the elevator or shaft. When
performing this work the elevator employees wear safety belts.
It is the Respondent's position that the fence satisfies the
requirements of the regulation. The Secretary maintains that
because employees can go inside the fence, the shaft itself must
be protected.[3] Since the fence would not prevent the grass
cutter from falling into the shaft, I find that section 77.204
required a railing, barrier, cover or other protective device on
the shaft collar.[4] Consequently, I conclude that the company
violated the regulation.
Significant and Substantial
The inspector found this violation to be "significant and
substantial" because the grass cutter and the elevator
examiner[5] would be subjected to the hazard of falling down the
shaft. I do not concur with his, or the Secretary's, assessment.
I find that the only person subject to this hazard was the
grass cutter. It is clear from the testimony that the elevator
examiner conducts his examination from inside the shaft by
climbing to the top of the elevator. Therefore, he would have no
reason to enter the area inside the fence. In addition, I do not
find that the elevator company employees would be exposed to the
hazard since they would routinely be inside any railing, barrier,
cover or protective device to perform their work and they wear
safety belts.
While I find that the grass cutter would be vulnerable to
falling into the shaft, I do not view such a happening as very
likely. As a mine employee he would be aware of the presence of
the open shaft and his duties would not require him to go near to
the shaft because the length of weed eater that he uses to cut
the grass would be between him and the shaft. Thus, the chance
of him inadvertently falling would be minimal. Accordingly, I
find that the third Mathies criterion is not met and conclude
that the violation was not "significant and substantial."
Moreover, because I find that the Respondent may reasonably have
believed that the fence did comply with the regulation, I will
reduce the level of negligence to "low."
Civil Penalty Assessment
The Secretary has proposed civil penalties of $4,879.00 for
all of the violations in these cases. However, it is the judges
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 (April 1996).
In connection with those criteria, the parties have
stipulated that: (1) The proposed penalties are appropriate to
the size of the operator's business and will not affect the
operator's ability to remain in business; (2) The operator
demonstrated good faith in attempting to achieve rapid compliance
after notification of the violations; and, (3) The Solid Energy
No. 1 mine produced 1,110,210 tons of coal in the twelve months
preceding these violations and during the same period the
company's controlling entity, Fluor Corporation, produced
21,675,626 tons of coal. (Tr. 5-7.) In addition, I find that
the company's history of violations falls in the average range.
(Govt. Exs. 1A and 1B.)
Based on the penalty criteria, I will assess the penalties
proposed by the Secretary on the uncontested citations. With
regard to Citation No. 4585909 in Docket No. KENT 96-292, the
Secretary has proposed a penalty of $900.00. While I find the
degree of negligence involved in this violation to be "high," I
find the gravity to be lower than determined by the inspector
because the company failed to follow the ventilation plan in only
one of the three ways alleged by the inspector. Furthermore, the
evidence was that despite this violation the bleeder entries
still appeared to be performing their function. Therefore, I
will reduce the penalty to $450.00.
The Secretary has proposed a penalty of $1,019.00 for
Citation No. 4025272 in Docket No. KENT 96-330. Like the
Secretary, I find the gravity of this violation to be serious and
the negligence to be "moderate." Based on the penalty criteria,
I assess a penalty of $1,019.00.
The Secretary has proposed a penalty of $1,298.00 for
Citation No. 4235514 in Docket No. KENT 96-335. I find the
gravity of this violation to be considerably less serious than
the Secretary and the degree of negligence to be "low" rather
than "moderate." Consequently, based on the penalty criteria, I
assess a penalty of $200.00.
The penalties assessed for each citation are:
Docket No. KENT 96-292
Citation No. Penalty
4058988 $ 400.00
4585909 $ 450.00
4235513 $ 50.00
Docket No. KENT 96-330
4025271 $ 50.00
4025272 $1,019.00
4025273 $ 506.00
4025274 $ 50.00
4025275 $ 50.00
4025276 $ 50.00
4025277 $ 506.00
Docket No. KENT 96-335
4235514 $ 200.00
Total$3,331.00
ORDER
Accordingly, Citation Nos. 4508988, 4585909 and 4235513 in
Docket No. KENT 96-292 are AFFIRMED; Citation Nos. 4025271,
4025272, 4025273, 4025274, 4025275, 4025276 and 4025277 in Docket
No. KENT 96-330 are AFFIRMED; and Citation No. 4235514 in Docket
No. KENT 96-335 is MODIFIED by deleting the "significant and
substantial" designation and reducing the degree of negligence
from "moderate" to "low" and is AFFIRMED as modified. Solid
Energy Mining Company is ORDERED TO PAY civil penalties of
3,331.00 within 30 days of the date of this decision. On receipt
of payment, these proceedings are DISMISSED.
T. Todd Hodgdon
Administrative Law Judge
Distribution:
Thomas A. Grooms, Esq., Office
of the Solicitor, U.S. Dept.
of Labor, 2002 Richard Jones
Rd., Suite B-201, Nashville,
TN 37215 (Certified Mail)
William C. Miller, II, Esq.,
Jackson & Kelly, P.O. Box 553,
Charleston, WV 25322
(Certified Mail)
\mca
**FOOTNOTES**
[1]: Bleeder entries "are panel entries driven on a
perimeter of block of coal being mined and maintained as exhaust
airways to remove methane promptly from the working faces to
prevent buildup of high concentrations either at the face or in
the main intake airways. They are maintained, after mining is
completed, . . . in preference to sealing the completed
workings." Bureau of Mines, U.S. Department of Interior, A
Dictionary of Mining, Mineral, and Related Terms 112 (1968).
[2]: Methane is explosive in concentrations of between five
and fifteen percent. (Tr. 103.)
[3]: There was some indication at the hearing that the
inspector believed that the regulation was violated by the gap at
the top of the fence. The Secretary has wisely not pursued this
line of reasoning in her brief.
[4]: Solid Energy abated the violation by installing a hand
railing around the top of the shaft.
[5]: Section 75.1400-3, 30 C.F.R. � 75.1400-3, requires that
elevators be inspected daily.