<DOC>
[DOCID: f:k97-20.wais]
RAWL SALES & PROCESSING CO.
June 6, 1997
KENT 97-20
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
June 6, 1997
SECRETARY OF LABOR, :
CIVIL PENALTY PROCEEDING :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 97-20
Petitioner : A. C. No. 15-13720-03663
v. :
:
Tall Timber Mine :
RAWL SALES & PROCESSING CO., :
Respondent :
DECISION
Appearances: Thomas A. Grooms, Esq., Office of the
Solicitor, U.S. Department of Labor, Nashville,
Tennessee, for the Petitioner;
William C. Miller, II, Esq., Jackson & Kelly, Charleston,
West Virginia, for the Respondent.
Before: Judge Koutras
Statement of the Case
This is a civil penalty proceeding filed by the petitioner
against the respondent
pursuant to section 110(a) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. 820(a), seeking a civil penalty assessment
in the amount of $3,407, for an alleged violation of mandatory
respirable dust standard 30 C.F.R. � 70.100(a), as stated in a
section 104(a) "S&S" citation
issued by an MSHA inspector on May 29, 1996. Upon expiration of
the initial abatement time, a second inspector issued a section
104(b) non-compliance order on July 10, 1996, which remained in
effect for approximately five minutes, and subsequently
terminated on July 18, 1996.
The respondent filed a timely answer contesting the alleged
violation, and a hearing was held in Pikeville, Kentucky. The
parties filed posthearing arguments, and I have considered them
in the course of my adjudication of this matter.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, Pub. L.
95-164, 30 U.S.C.
� 801 et seq.
2. Section 110(i) of the 1977 Act, 30 U.S.C. � 820(i).
3. Commission Rules, 29 C.F.R. � 2700.1 et seq.
Issues
The issues presented in this case are (1) whether the
condition or practice cited by the inspector constitutes a
violation of the cited mandatory health standard, (2) whether the
alleged violation is "Significant and Substantial" (S&S), and (3)
the appropriate civil penalty to be assessed for the violation,
taking into account the civil penalty assessment criteria found
in section 110(i) of the Act.
An additional issue raised in the course of the hearing is
whether or not the validity of the uncontested section 104(b)
non-compliance order is an issue in this civil penalty
proceeding, and whether or not any consideration of the order
should be limited to the section 110(i) negligence and good faith
civil penalty criteria.
Stipulations
The parties stipulated to the following (Tr. 8-10):
1.The Commission has jurisdiction in this matter.
2. The respondent's history or prior violations is
reflected in an MSHA computer print-out covering
the period May 29, 1994, through May 29, 1996
(Exhibit P-1).
3. The respondent's overall coal production for the
period in question was over 21 million tons as
stated in MSHA's attachment to its proposed civil
penalty assessment (Exhibit A). The mine
production at that time was 898,097 tons.
4. Assuming the violation is affirmed, the
petitioner's proposed civil penalty assessment of
$3,407, if levied, will not adversely affect the
respondent's ability to continue in business.
5. The petitioner's exhibits, P-1 through P-6, were
offered and received in evidence without
objection.
Discussion
Section 104(a) "S&S" Citation No. 9981345, issued at 10:05
a.m., on May 29, 1996, by MSHA Inspector Michael Wolford, cites an
alleged violation of mandatory respirable dust standard 30 C.F.R.
70.100(a), and the cited condition or practice states as follows
(Exhibit P-2):
According to advisory No. 0080 dated 05-28-1996,
the average concentration of respirable dust analyzed
from five valid samples collected by the operator
during a bi-monthly period in the working environment
of the designated occupation 036 in MMU 003-0 amounted
to 2.6 milligrams. Management shall take corrective
action to lower the concentration of respirable dust to
within the 2.0 milligrams standard and then sample each
production shift until five valid samples are taken and
submitted to the Pittsburgh Respirable Dust Processing
Laboratory.
Inspector Wolford fixed the abatement time as 7:00 a.m.,
June 19, 1996. Subsequently, additional dust samples were
collected and submitted by the respondent to abate the violation.
The test results reflected an average respirable dust
concentration of 3.6 percent. MSHA Inspector Ronald Hayes then
issued a section 104(b) non-compliance withdrawal Order
No. 4236728, at 6:15 a.m., on July 10, 1996, closing down the
entire 003-0 mechanized mining unit (MMU). The order states as
follows (Exhibit P-5):
Results of the five most recent samples received by
MSHA and collected from the working environment of the
designated occupation (continuous miner operator 036),
in a Mechanized Mining Unit 003-0 shows an average
concentration of 3.6 mg/m3. Due to the obvious lack of
effort by the operator to control the respirable dust,
during the reasonable period of time set by citation
no. 9981345, the citation is not further extended. All
miners working on this M.M.U. shall be withdrawn until
the violation is corrected.
Inspector Hayes modified his order at 6:20 a.m., on July 10,
1996, and the modification states as follows (Exhibit P-5, second
page):
The operator has submitted and implemented a
revised respirable dust control plan, therefore the
order is modified to permit M.S.H.A. to collect
respirable dust samples on the 003-0 M.M.U. to
determine if compliance is attained. The minimum spray
pressure is raised from 70 PSI to 80 PSI; the water
sprays are changed from FC type to Flat Type sprays.
On July 18, 1996, Inspector Hayes terminated his order, and
the termination notice states as follows (Exhibit P-5, third
page):
The results of 5 valid samples taken by M.S.H.A.
showed a section average of 0.442. This is in the
allowable limit of the 003-0 M.M.U. dust standard of
2.0.
Petitioner's Testimony and Evidence
MSHA Inspector Michael Wolford testified that he issued his
section 104(a) "S&S" citation on May 29, 1996, and served it by
mail on the respondent. He issued the citation after receiving
the results of the respondent's then current bi-monthly dust
sampling cycle for the designated "high risk" occupation 036,
continuous miner operator, for mechanized mining unit (MMU) 003-
0. The average concentration of respirable dust for that
occupation was 2.6 percent, which exceeded the section 70.100(a)
regulatory allowable exposure limit of 2.0 percent
(Tr. 15-16).
Mr. Wolford confirmed that the respirable dust sampling
cassette and pump is used by the designated continuous miner
operator to monitor his dust exposure during the sampling cycle
in order to determine whether the entire mechanized mining unit
is in compliance with the 2.0 percent standard. The purpose of
the testing is to control the dust exposure and prevent Black
Lung disease (Tr. 16-18).
On cross-examination, Mr. Wolford stated that at the time he
issued the citation he was a dust specialist. He confirmed that
compliance cannot be determined by visual observation, and if a
mine has a history of compliance, the only method to alert the
operator that he might be out of compliance is by dust sampling.
He explained that as a general rule, a mine operator can take
corrective action by reviewing the approved mine ventilation
plan. He believed that the respondent in this case should have
checked the parameters of the ventilation plan, and confirmed
that the lack of adequate water supply could result in worst dust
problems (Tr. 19-21).
Mr. Wolford stated that the MMU unit consisted of a
continuous miner machine, two shuttle cars, and two roof bolting
machines. He confirmed that he was not involved in the abatement
of the violation. He stated that he based his "S&S" finding on
the fact that respirable dust non-compliance violations are
routinely found to be significant and substantial violations
because they contribute to black lung, and that in this case he
believed that one miner, namely the designated miner operator,
would be affected by the violation. He further stated that he
based his moderate negligence finding on his belief that the
respondent should have been aware that the unit was out of
compliance, and that this amounted to ordinary negligence. He
confirmed that he had previously inspected the mine for
approximately one year, and it had always been in compliance with
the dust standard (Tr. 24-27; 75).
Ronald Hayes, MSHA Dust Specialist, testified that he issued
his section 104(b) non-compliance order on July 10, 1996,
after receiving the results of the respondent's dust
sampling on the cited mechanized mining unit. He noted the
fact that a prior section 104(a) citation was issued by
Inspector Wolford, with an abatement date of June 19, 1996,
because the sampling in support of that citation reflected
an average dust concentration of 2.6 percent, which exceeded
the 2.0 percent regulatory standard. Since the respondent's
dust sample results of June 19, 1996, reflected an increased
average dust concentration of 3.6 percent, rather than a
decrease, he concluded that there was an "obvious lack of
effort" to achieve compliance and wrote the order and took
it to the mine and personally served it on mine
superintendent Lynn Hatfield
(Tr. 30- 34).
Mr. Hayes stated that he modified his order five minutes
after he issued it, so that MSHA could conduct additional
dust sampling under normal mining conditions to determine
whether the respondent's revised dust control plan achieved
compliance. He noted that the respondent raised its minimum
water sprays pressure from 70 p.s.i. to 80 p.s.i., and
changed the type of water sprays that it had been using in
the past (Tr. 34-36).
Mr. Hayes confirmed that the July 10, 1996, additional MSHA
sampling results reflected an average dust concentration of
0.442 percent, and resulted in compliance. He subsequently
terminated his order on July 18, 1996. He believed that the
corrective action taken by the respondent to accomplish
compliance should have been taken at the time the initial
citation was issued by Inspector Wolford (Tr. 47). Mr.
Hayes confirmed that the mine was in compliance on July 10,
1996, when he issued the section 104(b) order (Tr. 47-48).
On cross-examination, Mr. Hayes reiterated that he based his
conclusion of an "obvious lack of effort" by the respondent
to achieve timely compliance on the fact that the initial
2.6 percent sample results increased to 3.6 percent after
additional sampling. He stated that there was "a lack of
something somewhere" or that the respondent "didn't do
something." He could not recall what the respondent may
have done to achieve compliance, and he confirmed that he
based his order strictly on the 3.6 percent sampling results
of June 19, 1996. He further confirmed that he made no
inquiries to determine the respondent's compliance efforts
and that Mr. Hatfield offered no explanations. The second
sample results of 3.6 percent was the sole determining
factor that prompted him to issue the order (Tr. 37-40).
The order is issued "automatically", and he has no
discretion to do otherwise (Tr. 42-43). He explained his
conclusion that there was an "obvious lack of abatement
effort" by the respondent as follows at (Tr. 47-50):
JUDGE KOUTRAS: Now, you're not suggesting that during
that time that the operator wasn't doing anything?
A. No, I'm not. I'm not suggesting one thing or the
other.
JUDGE KOUTRAS: You have no knowledge of what they were
doing to try to bring them into compliance?
A. I hadn't even been there yet, not until July 10th.
No contact with them as far as I know.
JUDGE KOUTRAS: Is it possible that when you went there
on July 10th and issued this order that the mine was,
in fact, in compliance on that day?
A. It's possible that they were then because I was
running samples.
JUDGE KOUTRAS: You ran samples that day and they
reflected a rather drastic reduction to 0.442 right?
A. Yes.
JUDGE KOUTRAS: So that would indicate that they were in
compliance on July 10th; would it not?
A. Yes, it did.
* * * *
JUDGE KOUTRAS: Have you ever conducted a regular
inspection?
A. Yeah, prior to being in dust.
JUDGE KOUTRAS: Have you ever issued a section 104(b)
order on a regular inspection?
A. Yes, I have.
JUDGE KOUTRAS: And what criteria do you follow in
issuing --- to issue a 104(b)?
A. Evidence usually showing that they didn't comply
with what the citation says.
* * * *
JUDGE KOUTRAS: And how would you develop that evidence?
A. Well, the one I issued there would be available.
They might talk to the operator and ask him why.
JUDGE KOUTRAS: But that didn't happen in this case?
A. Yeah.
JUDGE KOUTRAS: Is that right? In this case you didn't
inquire of the operator why he wasn't in compliance and
all that business before issuing the order?
A. No, I didn't.
JUDGE KOUTRAS: Is that the accepted way of doing it, do you
know?
A. That's the accepted way of doing things, yes, Your
Honor.
JUDGE KOUTRAS: On respirable dust?
A. Yes, it is.
JUDGE KOUTRAS: But different on other inspections?
A. Yes, it is. Respirable dust you go on the evidence
of what the operator runs and sends to you. That's the
evidence you go on.
JUDGE KOUTRAS: But you had no evidence that there was
an obvious lack of effort, other than the test results?
A. That's all, yes.
Mr. Hayes confirmed that non-compliance with the 2.0 percent
dust standard cannot be determined by visual observation.
He stated that he reviewed the respondent's prior dust
compliance record for the prior year and it did not disclose
any violations of section 70.100(a), during the prior six
sampling cycles over a 12 month period. He further
confirmed that if the June 19, 1996, sampling results had
reflected a dust concentration of 2.3 percent, he would
still have issued his order. He explained that the delay
from July 10, 1996, when he modified the order, to July 18,
1996, when he terminated it, was due to a two-week mine
vacation period and training that he was taking. He further
believed that all respirable dust non-compliance violations
are "automatically" considered "S&S" violations (Tr. 40-55,
63, 75-76).
Bench Ruling Regarding Respondent's Motion to Dismiss
At the conclusion of the petitioner's case, the respondent's
counsel moved for a directed verdict on the ground that
Inspector Hayes acted arbitrarily when he issued the section
104(b) non-compliance withdrawal order, and failed to
consider the degree of danger any extension of the abatement
time would cause miners, the respondent's diligence in
attempting to meet the initial abatement time, and the
disruptive effect that the extension would have (Tr. 78-79).
The respondent's counsel stated that the respondent is not
contesting the violation or the citation and concedes a
violation of section 70.100(a), but challenges the propriety
of the inspector issuing a section 104(b) order based simply
on the respirable dust sample test results (Tr. 78-79).
In opposition to the motion, the petitioner's counsel took
the position that the section 104(b) order is not in issue
in this penalty case because of the failure by the
respondent to
contest it within 30 days as required by Commission Rule 20,
29 C.F.R. � 2700.20. In support
of his argument, counsel stated that the issuance of a
section 104(b) withdrawal order based solely on the results
of dust sampling is "unique" (Tr. 56). Counsel asserted
that it is clear that the citation was not timely abated and
"there was no application for an extension of the abatement"
(Tr. 56-57). Counsel took the position that the validity of
the order is not in issue in this case, "only the question
of good faith abatement" (Tr. 74). He further argued that
there was no evidence regarding the diligence of the
respondent to abate the violation, and that the order was
made a matter of record in this case to show a lack of good
faith compliance by the respondent in connection with the
section 104(a) citation (Tr. 80-81). The respondent's
motion to dismiss was denied.
Respondent's Testimony and Evidence
Mine Superintendent Lynn T. Hatfield testified that he was
aware of the May 29, 1996, citation issued by Inspector
Wolford and took steps to achieve compliance by checking the
ventilation and fans, changing the continuous miner water
lines from 1 1/4" to 1 1/2", replacing and aligning broken
miner bit lugs, and replacing a valve on the miner hydraulic
cutting head that was reportedly cutting into the mine roof.
He stated that the mine ventilation plan could not be
changed without MSHA's approval, and that the stated
adjustments were made while the additional dust sampling was
taking place (Tr. 82-85).
Mr. Hatfield stated that the additional dust samples were
submitted on June 19, 1996, and that he was aware of the
sample results before July 10, 1996, when Inspector Hayes
came to the mine and served his order. He explained that
his Pikeville office informed him of the results of the
sampling and that a new ventilation plan needed to be
submitted. He contacted the MSHA office and submitted a new
ventilation plan on June 21, 1996, which was approved on
June 26, 1996, but not received by the mine safety office
until July 8, 1996. Although he was informed verbally that
the plan had been approved sometime after June 21, 1996, he
indicated that the plan could not be implemented until the
written approval was received (Tr. 86-88).
Mr. Hatfield stated that the miners were on vacation for a
two week period which ended on July 10, 1996, and that no
coal production was taking place during the vacation period.
There were only 11 miners working at the mine doing
maintenance work. He stated that all of the changes that
were made to address the violation were made and in effect
on July 8, 1996, and he had no reason to believe that the
mine was still out of compliance. He alluded to certain
water supply problems for the continuous miner machine
caused by attempts to service another MMU unit mining in
another area of the mine, and candidly conceded that his
attempts at finding and correcting the dust problem seemed
to make matters worse (Tr. 89-91).
On cross-examination, Mr. Hatfield reiterated his efforts to
abate the initial citation, including the replacement of old
continuous miner water sprays with new ones, changing the
miner filters and cutting bit lugs, and repairing the HIC
valve that controls the height of the miner cutting head
that was reported by the miner operator to be cutting into
the top. He further stated that he had 6,000 cfm's of air
behind the ventilation curtain, tightened the ventilation
curtains, and made fan adjustments in an effort to address
the problem (Tr. 91-94).
Mr. Hatfield believed that the decision to change the size
of the miner water lines may have resulted in the dust
exposure increase from 2.6 to 3.6 percent, and that it
became evident that the ventilation plan needed to be
changed. He also believed that the water line changes and
miner cutting head valve problem may have contributed to the
increased dust level. He explained that a single water line
supplied both MMU continuous miner machines and could have
affected the water sprays. He stated that he did not know
that the cited unit was still out of compliance, but decided
to change the water sprays and spray pressure when the 3.6
sample results were received, and these measures achieved
compliance (Tr. 94-96).
Mr. Hatfield stated that he was in the process of changing
the water lines when the
2.6 test results were received, and since he did not believe
that these results were particularly unusual, he did not
contact MSHA. He further stated that he did not know who
was conducting the on-shift examinations during the
abatement period and did not recall speaking to the
examiner. He explained that he was in communication with
the continuous miner operator because that was where the
dust problem existed (Tr. 96-107). He further stated that
he tightened and adjusted the ventilation fan belts to
prevent any slippage, and he did not know what caused the
mine to be out of compliance when the dust test results
reflected 2.6 and 3.6 percent
(Tr. 107).
The Petitioner's Arguments
The petitioner points out that the respondent has conceded
the validity of the citation, and offered no proof that the
citation was not properly characterized as "significant and
substantial" or the result of the respondent's moderate
negligence. Under the circumstances, the petitioner asserts
that the only issue in this case is the validity of the
section 104(b) order issued by Inspector Hayes. Contrary to
the position stated by counsel during the hearing, the
petitioner does not now take the position that the
respondent is foreclosed from challenging the validity of
the order in this civil penalty proceeding notwithstanding
the fact that it did not file a timely contest regarding the
order.
The petitioner states that the disposition of this case is
controlled by the recent decision of the Court of Appeals,
for the D.C. Circuit in the case of Energy West Mining
Company v. FMSHRC, No. 96-1243, slip op. (D.C. Cir. April
25, 1997), and that the presiding judge need look no further
than this case to find the basis for upholding the validity
of the section 104(b) order.
The petitioner submits that a section 104(b) withdrawal
order presents a unique set of circumstances in the context
of abatement of dust sampling violations. As an example,
the petitioner states that although Mr. Hayes testified that
he relied exclusively on the results of dust samples from
the May-June 1966, bi-monthly sample period, as stated in
the June 19, 1996, "advisory" showing 2.6 respirable dust,
in excess of the 2.0 regulatory maximum, it is clear that
analyzing the facts of this case, and comparing them to the
facts of Energy West, that additional factors emerge which
on the face of the record justify the issuance of the order
by Mr. Hayes.
An "additional" factor cited by the petitioner is the
increased level of dust concentrations evidenced by the
second set of dust samples communicated to MSHA in the June
19, 1996 "advisory" reflecting a 3.6 average dust
concentration. These samples were taken to abate the
initial citation.
The petitioner maintains that regardless of whether an
inspector articulates all of his bases for issuing a section
104(b) order or testifies that he relied exclusively on the
results of the second sampling, the Commission must apply an
objective standard and analysis to its consideration of the
validity of the 104(b) order, and should analyze all of the
factors surrounding the issuance of the order to determine
whether there are objective bases for a finding that the
section 104(b) order was validly issued without regard to
the subjective intent of the issuing inspector.
In this case, however, the petitioner further takes the
position that the threshold issue to be determined by the
presiding judge before examining any other factors in
determining whether the inspector properly exercised his
discretion in issuing the section 104(b) order is the
question of whether or not the operator communicated a
request for an extension of the abatement time to the
inspector. In support of this argument, the petitioner
cites the following statement by the Court:
We also agree with the Commission that the burden
rested on Energy West to bring to MSHA's attention any
specific abatement measures justifying extension of the
abatement period, particularly in the face of what
appeared to be deteriorating mine conditions.
The petitioner asserts that in this case, the respondent
made absolutely no effort to communicate to Mr. Hayes that it had
acted to abate the violation or that it desired to have the
abatement period for the original 104(a) citation extended.
Instead, it chose to alter its ventilation plan in order to
achieve compliance with section 70.100(a), and never sought to
have the abatement time extended. Relying on the Court's
decision in Energy West, the petitioner concludes that before an
operator may challenge the validity of a 104(b) order, it must
first establish that it communicated to MSHA its desire and
reasons for seeking the extension of the abatement time for the
original citation. Since the respondent knew shortly after the
second sample results came back on June 19, 1996, that it had not
achieved compliance, and opted to submit a new ventilation plan
to fix the problem, without communicating to Mr. Hayes or to any
other MSHA official that it wished an extension of the abatement
period, the petitioner concludes that Mr. Hayes was justified in
issuing the order effectively mandated by the June 19, 1996,
sampling results.
Finally, the petitioner submits that the Court's decision in
Energy West stands for the principle that MSHA is not required to
offer to the operator what the operator itself does not
seek. Accordingly, the petitioner concludes that the
respondent's challenge to the section 104(b)
order should be denied when it only communicated its
dissatisfaction with the order by way of a notice of contest
filed some four months after the fact.
The Respondent's Arguments
The respondent states that upon receiving the initial
section 104(a) citation on May 29, 1996, it took various steps to
correct the violation, including checking the ventilation system
and fan, tightening the fan bolts, checking the belts for
slippage, checking, aligning, and replacing continuous miner
cutting head bit lugs, changing the cutting head HIC valve to
prevent cutting into the mine roof, checking and replacing the
miner water sprays, and changing the miner filters.
The respondent asserts that it collected five additional
dust samples during June 7, through June 14, 1996, and following
a notification that it was still out of compliance, and with the
help and advice from MSHA, submitted a new ventilation plan in an
attempt to correct the problem. Further, at the suggestion of
MSHA, the type of water sprays were changed, and superintendent
Hatfield determined on his own to increase the miner spray
pressures from
70 pounds to 80 pounds. The new plan was submitted on June 21,
1996, and after it was approved on July 8, 1996, it was
immediately implemented by Mr. Hatfield. The respondent further
states that prior to the mid-May 1996, sampling the mine had been
in compliance with section 70.100(a) for over a two-year period
and a total of approximately 12 sampling periods.
The respondent contends that the section 104(b) order was
improperly issued by Inspector Hayes and that he should have
extended the abatement period of the section 104(a) citation. In
support of its contention, the respondent cites Peter White
Mining Corporation, 1 FMSHRC 255, 265 (April 1979), where Judge
Fauver vacated a section 104(b) order because the inspector
failed to give any consideration to the extension of time allowed
for abatement of the citation. The judge found that such
consideration was a basic requirement for the issuance of such an
order.
The respondent further cites United States Steel
Corporation, 1 MSHC 1490
(November 29, 1996), holding that an inspector's authority under
Section 104(b) in deter-
mining whether the abatement time for the violation should be
extended, or an order of withdrawal issued, carries the
implication that it will be exercised reasonably, not arbitrarily
or capriciously, and Eastern Associated Coal Corporation, 1 MSHC
1665 (June 22, 1978), involving a challenge to the inspector's
failure to extend the abatement time for a violation of section
70.100(b), and which resulted in the issuance of a section 104(b)
order. In the Eastern Associated case, Judge Stewart held that
such an order should be based on the prevailing circumstances,
including the initial sampling processing time, the time required
to evaluate the samples and make changes, the time to review the
results of additional samples, and the degree of hazard
presented. The judge noted that the operator could not evaluate
the efficacy of its repairs until the results of dust sampling
analysis had been received.
Finally, the respondent cites the presiding judge's decision
in Peabody Coal Company,
11 FMSHRC 2068 (October 1989), vacating a section 104(b) order
issued following non-compliance with a section 104(a) citation
issued for an alleged violation of section 70.101, and quotes as
follows from that decision at 11 FMSHRC 2102:
I find no rational basis for an inspector to
automatically issue a section 104(b) withdrawal order
simply because an operator's sampling results reflects
continued non-compliance with the dust standards. If
this were the case, an inspector could refuse to
further extend any abatement time for any violation
simply because an operator has not abated the condition
within the initial time fixed for abatement, completely
ignoring the circumstances presented * * * *.
The respondent maintains that Inspector Hayes failed to
conduct a follow-up mine inspection as required by the Act, and
failed to inquire of mine personnel as to what steps had been
taken to abate the violation. Further, the respondent points out
that Mr. Hayes based the issuance of his order strictly on the
second set of dust samples, and had no facts to make an informed
decision prior to issuing the order.
The respondent contends that the inspector was of the
mistaken opinion that if the second set of samples indicated non-
compliance, the issuance of the order was automatic and that he
had no discretion to extend the abatement time further. The
respondent concludes that the inspector's belief is clearly wrong
and in direct contravention of its cited cases and that the
issuance of the order was improper.
The respondent rejects any suggestion that the disputed
order was appropriate because of the danger any extension posed
to the safety of miners. The respondent concludes that if safety
had been a concern to the inspector, he would not have permitted
20 to 21 days to pass before issuing his order, he could have
issued it in a more timely manner, or if he were unavailable,
another inspector could have issued it.
The respondent states that it was permitted, with the
exception of approximately five minutes while shut down by the
order, to resume and continue to operate until the results of the
third set of samples was analyzed and determined to be well
within compliance, and that extending the abatement time would
not have altered its conduct in any manner. The third set of
samples would have been taken, the section would have continued
to operate, the sample analysis would have indicated compliance,
and the citation would have been terminated. The respondent
emphasizes the fact that it had not been cited for excessive dust
levels in the entire two-year period preceding the issuance of
the order, and the mine had no dust problem history.
The respondent maintains that simply because the dust
concentration was greater on the second set of samples does not
justify the issuance of the order. The respondent argues that
the instant case is factually distinguishable from Energy West
Mining Company, where the dust samples from a mechanized mining
unit indicated an average concentration of 2.2 milligrams, and
the sample taken to terminate the citation showed an average of
2.3 milligrams. In that case, the inspector issued a � 104(b)
order based upon the second set of samples and the fact that the
mine had been frequently out of compliance. The respondent
points out that Judge Morris relied upon two grounds in upholding
the issuance of the � 104(b) order, namely, the fact that the
operator had made only minimal and inadequate efforts to control
the dust and had a prior history of being out of compliance with
the dust standard.
The respondent maintains that, as previously detailed, it
took numerous and extensive steps prior to the issuance of the
order to correct the dust problem, and did more than simply check
the ventilation plan parameters to assure the system was
functioning as required. Unlike the mine in Energy West, which
had a history of being out of compliance on 11 of 22 dust
samplings over a two-year period, the respondent points out that
its mine had no previous history of dust problems and had no dust
violations for the previous two years. The respondent concludes
that the Energy West decision is distinguishable on both the
grounds upon which it was decided and does not control the
outcome in the instant case.
Finally, the respondent contends that the question of
whether it had complied with the
on-shift examination requirements of section 75.362(a)(2), raised
for the first time by the petitioner at the hearing, is not an
issue in this case. The respondent asserts that it was not cited
for a violation of this section and was not aware that this was
an issue.
Findings and Conclusions
The undisputed facts establish that the section 104(a) "S&S"
Citation No. 9981345, was issued and served by certified mail on
the respondent on May 29, 1996, for a violation of the respirable
dust requirements found at 30 C.F.R. � 70.100(a). The citation
was based on the fact that five valid dust samples collected by
the respondent for the designated occupation in mechanized mining
unit 003-0, amounted to 2.6 milligrams, exceeding the 2.0
milligram
section 70.100(a), standard. The respondent has conceded the
validity of the citation and does not dispute the fact that the
dust sampling results establish a violation in this case.
Accordingly, the citation citing a violation of section
70.100(a), IS AFFIRMED.
The Section 104(b) Order
Pursuant to Commission Rule 20(a), 29 C.F.R. � 2700.20(a),
an operator may contest the reasonableness of the abatement
time associated with a section 104(b) withdrawal order.
However, pursuant to Rule 20(b), the contest must be filed
within 30 days of the receipt of the order.
Pursuant to Commission Rule 21, 29 C.F.R. � 2700.21, the
failure by an operator to timely contest a section 104
citation or order does not preclude the operator from
challenging, in a penalty proceeding, "the fact of violation
or any special findings . . . . including the assertion . .
. . that the violation was of a significant and substantial
nature or was caused by the operator's unwarrantable failure
to comply with the standard".
As noted earlier, at the hearing in this matter, the
petitioner took the position that the validity of an
uncontested section 104(b) withdrawal order cannot be
challenged in a civil penalty proceeding. However, in its
posthearing brief, the petitioner changed its position and
asserts that the respondent is not foreclosed from
challenging the validity of the order in this case. I note
in passing, however, that the Secretary's Arlington,
Virginia Solicitor's Office, in a recent contest case before
Chief Judge Merlin, took the position that an operator may
not obtain review of an uncontested section 104(b) order in
a civil penalty proceeding seeking a penalty assessment for
a violation noted in the underlying unabated section 104(a)
citation. Consolidated Coal Company, Docket No. WEVA 97-84-
R. In that case, Judge Merlin, on April 29, 1997, denied
the Secretary's motion to dismiss the untimely contest
challenging the validity of the order. Judge Merlin
concluded that the intent of Commission Rule 21 is to secure
review of special findings.
Black Diamond Coal Mining Co., 5 FMSHRC 764 (April 1983), is
a civil penalty case concerning proposed penalty assessments
for two violations cited in two section 104(d)(1) "S&S"
orders. In view of the operator's failure to timely contest
the orders, I declined to consider the merits of the
inspector's unwarrantable failure findings in the context of
the penalty proceeding, but nonetheless considered the
evidence in this regard as part of the negligence criterion
found in section 110(i) of the Act. The Commission affirmed
my decision, Black Diamond Coal Mining Company, 7 FMSHRC
1117 (August 1985), and stated as follows at 7 FMSHRC 1122,
fn. 7:
The issue Black Diamond raises - the impact of special
findings in a withdrawal order upon a civil penalty
proposed by the Secretary for the violation alleged in
the order - is different than the issue of whether the
merits of such special findings may be challenged in a
civil penalty proceeding when the operator has not
sought review of the order pursuant to section 105(d).
We leave consideration of the latter issue to a case in
which it is squarely presented.
Bethlehem Mines Corp., 6 FMSHRC 1011, 1039-1041 (April
1984), concerned a civil penalty proceeding for a violation cited
in a section 104(a) citation, followed by a section 104(b) order
for untimely abatement. Absent any evidence of a timely contest
of the order, and taking into account that MSHA's proposed civil
penalty assessment was limited to the citation, and did not
include the order, I concluded that the validity of the order,
including the question of whether or not the inspector abused his
discretion in not extending the abatement time, was not directly
in issue. However, I considered the operator's abatement efforts
in connection with the elements of good faith compliance and
negligence pursuant to section 110(i) of the Act, and took this
into consideration in the penalty assessment for the violation.
In Quinland Coals, Inc., 9 FMSHRC 1614 (September 1987), the
Commission held that the failure by an operator to timely contest
a section 104(d)(1) order alleging a violation and containing
special "S&S" and unwarrantable failure findings, did not
preclude the operator from challenging such special findings in a
subsequent civil penalty proceeding. The Commission noted the
"interdependent nature" of special findings and a penalty
assessment and further noted that a "a special finding is a
critical consideration in evaluating the nature of the violation
and bears upon the appropriate penalty to be assessed", 9 FMSHRC
1621, 1623. The Commission stated as follows at 9 FMSHRC 1623:
* * * * Because of the interdependent nature of special
findings and the penalty assessment provisions of the
Mine Act, it is appropriate to allow contest of such
findings in a civil penalty proceeding and not to
preclude this challenge because the operator failed to
contest the validity of the order in which the findings
are contained within 30 days of its issuance.
In Moline Consumers Company, 12 FMSHRC 1953 (October 1990),
I imposed a penalty assessment of $50, for a section 104(a) non-
"S&S" guarding violation. With respect to the disposition of a
section 104(b) order which was issued following the failure of
the mine operator to timely abate the cited condition, I noted
the absence of any evidence that the respondent timely contested
the issuance of the order and concluded that the validity of the
order was not directly in issue. However, I further concluded
and found that since MSHA considered the issuance of the order as
part of its proposed penalty assessment for the violation,
particularly with respect to the question of negligence and good
faith compliance, the order was relevant to my consideration of
the penalty assessment criteria found in section 110(i) of the
Act.
Energy West Mining Company, 16 FMSHRC 835 (April 1994), is a
civil penalty case in which former Commission Judge John Morris
affirmed a violation of 30 C.F.R. � 70.100(a), cited in a section
104(a) citation issued by an inspector after he found that the
designated MMU longwall operator occupation was out of compliance
with the applicable 2.0 mg/m3 standard. The five dust samples
taken by the mine operator showed an average dust concentration
of
2.2 mg/m3. Subsequent samples taken during the abatement period
of approximately three weeks given by the inspector should an
increase in the dust concentration to 2.3 mg/m3. The inspector
refused to extend the abatement period further and issued a
section 104(b) withdrawal order. The parties stipulated that the
judge had jurisdiction and that the citation and order were
properly issued and served on the operator. It would appear that
the issue of the reviewability of the uncontested section 104(b)
order was not specifically raised, and the judge's decision is
silent with respect to this question.
In Energy West, the inspector's determination that an
extension of the abatement time was not warranted was based on
increased dust levels as reflected by the subsequent dust samples
taken to abate the initial section 104(a) citation, frequent
prior MMU citations for violations of section 70.100(a), the
increase in the number of abatement samples that were out of
compliance, and the operator's failure to incorporate changes to
its ventilation plan that it had made previously to bring the
cited MMU into compliance.
On appeal, the Commission affirmed the judge's decision
upholding the violation, as well as the section 104(b) order.
However, the Commission vacated the $3,000, penalty assessment
and remanded the case for reassessment in view of the judge's
apparent failure to consider evidence of a gravity level lower
than "high" as found by the judge, 18 FMSHRC 565 (April 1996).
No mention is made of any review problem with respect to the
section 104(b) order.
In upholding the judge's determination that the inspector
did not abuse his discretion in issuing the order, the Commission
pointed out that the inspector relied on several factors
(enumerated above) to support his determination that the initial
abatement time should not be further extended. The Commission
rejected the operator's contention that the judge erred in
failing to consider that it moved the MMU as part of its
abatement efforts, a fact apparently not communicated to the
inspector when he issued the order. In this regard, the
Commission noted that the mine Act and legislative history does
not address the extent of an inspector's inquiry in determining
whether the abatement time should be extended, and it concluded
that the inspector was not obliged to ascertain, before issuing
the order, that the MMU had not been moved.
18 FMSHRC 565, 570-71 (April 1996).
Energy West's further appeal to the U.S. Court of Appeals
for the D.C. Circuit was denied, Energy West Mining Company v.
FMSHRC, and the Secretary of Labor, No. 96-1243, slip op. (D.C.
Cir. April 25, 1997). The Court affirmed the Commission's
determination that an inspector can rely on increased dust levels
determined by dust samples to support his decision not to extend
the abatement time and to issue a section 104(b) withdrawal order
without further inquiry concerning the operator's abatement
efforts.
In the instant case, the initial section 104(a) citation was
issued by Inspector Wolford on
May 29, 1996, and he fixed the abatement time as 7:00 a.m. on
June 19, 1996. The respondent took five additional dust samples
that day, and the test results reflected an increased dust
concentration from 2.6 to 3.6 for the cited MMU, and Mr. Hayes
confirmed that he received the test results by computer that same
day (Tr. 33-34).
The disputed order was not issued until July 10, 1996, and
Mr. Hayes confirmed that it was "automatically" issued solely
because of the increased second dust sample results of June 19,
and that he had no discretion not to issue the order (Tr. 42-43).
The petitioner's counsel attributed the delay from June 19 to
July 10, 1996, to a mine vacation period for part of this time,
and the fact that Mr. Hayes had taken over the dust sampling
program from Mr. Wolford only a short time after the issuance of
the original citation. However, Mr. Hayes further attributed the
delay to the fact that he was in training and on leave (Tr. 46).
Mr. Hayes asserted that he had no knowledge as to what steps
the respondent may have taken to achieve compliance before July
10, and he confirmed that he was not suggesting that the
respondent was not doing anything to achieve compliance (Tr. 47).
As a matter of fact, he believed it was possible that the mine
was in compliance on the very day he issued his order on July 10,
because he was taking dust samples at that time and the test
results reflected a drastic dust concentration reduction from 3.6
to 0.442. He agreed that this would indicate that the mine
was in fact in compliance on that day (Tr. 47-48). He admitted
that he had no evidence apart from the test results to support
the "obvious lack of effort" notation that he made on the face of
his order (Tr. 50).
Mr. Hayes stated that after he modified the order to
facilitate the taking of samples, he allowed the unit to stay in
production and did not reinstate the order "because we have no
idea of knowing whether they're going to be out or in" (Tr. 60),
and that "you give that benefit of a doubt that they are there,
you know, in good faith . . . . because they've done something to
comply"
(Tr. 61) (emphasis added).
In response to a question as to whether it was conceivable
or possible that the respondent had taken reasonable steps to
abate the citation prior to the issuance of his July 10, 1996,
order Mr. Hayes responded as follows at (Tr. 39):
A. If he took any other steps he didn't volunteer to
tell me that he'd done other things when I got there at
that mine. If he had, I would noted it in my notice.
It's not there so he did not tell me anything that he
had done prior to the (b) order.
The record reflects that Mr. Hayes modified his 104(b) order
five minutes after he issued it so that dust sampling could be
accomplished under active working conditions. I take note of the
fact that on the face of his modified order, Mr. Hayes noted that
the respondent submitted and implemented a revised respirable
dust control plan, that the types of water sprays that were in
use were changed, and that the water spray pressures were raised
from 70 psi to 80 psi. When asked if the respondent had
explained to him on July 10, about any efforts made to achieve
abatement, Mr. Hayes responded "Just this right here is all.
Just what I wrote on the modification". He also confirmed that
prior to going to the mine, his dispatcher told him that the mine
ventilation plan had been submitted to raise the water spray
pressures (Tr. 64-65). Mr. Hayes
admitted that prior to going to the mine on July 10, he knew that
the respondent had changed its ventilation plan and had an MSHA
approved modified plan in place. He also knew that the water
sprays had been changed, and that the water spray pressures had
been increased (Tr. 53-54; 64).
In view of the foregoing, it seems obvious to me that Mr.
Hayes had knowledge of the respondent's abatement efforts before
he issued his section 104(b) order, and I find his denials to the
contrary because he had not noted them in his order to be
incredible. Under the circumstances, I find that the fact that
superintendent Hatfield did not tell Mr. Hayes what he already
apparently knew is irrelevant. Further, given the fact that Mr.
Hayes' practice was to automatically issue section 104(b) orders
based solely on dust sample results, I find it reasonable to
conclude that Mr. Hayes would have issued his order regardless of
what abatement efforts may have been communicated to him by Mr.
Hatfield.
The Commission's decisions in Black Diamond Coal Mining Co.
and Quinland Coals, Inc., supra, concerned "special" S&S and
unwarrantable failure findings noted in a section 104(d)(1)
notice and a section 104(d)(1) order. In the Energy West Mining
Company case, although the D.C. circuit characterized the "paper"
issued by the inspector as a section 104(d)(1) "S&S" citation, it
was in fact a section 104(a) "S&S" citation (pg. 3, slip op.),
and as previously noted, the issue concerning the reviewability
of the uncontested section 104(b) order was never specifically
raised or questioned.
I recognize the fact that a section 104(b) order is an
"enforcement action" pursuant to the Act. However, I cannot
conclude that such an order includes any "special findings" such
as "S&S" and "unwarrantable failure". A section 104(b) order is
a non-compliance order for failure to timely abate a violation
noted in a section 104(a) citation. An operator may contest the
reasonablesness of the abatement time, but must do so within 30
days of the receipt of the order. Since the respondent in this
case failed to timely contest the order, I conclude and find that
it is precluded from now challenging the merits or the validity
of the order. However, since the order had a direct impact on the
proposed penalty assessment, as discussed below, I will consider
the respondents's abatement efforts in connection with the
section 110(i) good faith compliance penalty assessment criterion
in assessing a de novo penalty for the violation that has been
affirmed.
The proposed penalty assessment of $3,407, is based on a
"regular assessment" computed pursuant to the petitioner's
regulatory penalty assessment criteria and procedures found in
Part 100, Title 30, Code of Federal Regulations. The proposed
assessment filed by the petitioner reflects a total of 63
"points" based on the respondent's size, prior history of
violations, negligence, gravity, and good faith abatement. Based
on the Penalty Conversion Table, at section 100.3(g), the 63
points converts to a monetary proposed penalty assessment of
$3,407. Ten of the 63 penalty points were assigned pursuant to
section 100.3(f), because of the respondent's failure to abate
the violation within the time fixed by the inspector. Although
this section provides for a 30% penalty reduction for timely
abatement, no reduction was made in this case. Further, in the
course of the hearing, petitioner's counsel stated that the order
was made a part of the record in this case to establish a lack of
good faith compliance by the respondent in connection with the
section 104(a) citation (Tr. 80-81).
The section 104(a) citation issued by Inspector Wolford
required the respondent to "take corrective action to lower the
concentration of respirable dust" and "then sample" and submit
the valid samples to MSHA'S dust processing laboratory. I find
that this is precisely what the respondent in this case did to
address the dust problem.
In this case, I conclude and find that the credible and
unrebutted testimony of mine superintendent Hatfield establishes
that the respondent initiated a course of corrective action that
it reasonably believed addressed a dust problem that had never
been previously experienced in the mine. In order to cure such a
problem, the respondent must know what caused it, and must be
given enough time to discover the cause. The fact that the steps
taken by the respondent to address the problem subsequently
resulted in an increased, rather than decreased dust
concentration, does not, in my view, detract from the
respondent's good faith effort to timely correct and abate the
cited violation. Indeed, Inspector Hayes admitted that even
though he stated on the face of his order that there was an
"obvious lack of effort" by the respondent to control the dust,
he was not suggesting that the respondent did nothing. He
further conceded that he had no evidence of any "lack of effort"
other then the dust sample results, and admitted that it would
appear that the mine was probably in compliance when he issued
his section 104(b) withdrawal order (Tr. 47-50). Under all of
these circumstances, I conclude and find that the respondent
acted in good faith and took reasonable steps in its attempt to
address its very first respirable dust problem, and its efforts
in this regard are reflected in the reduced penalty assessment
that I have imposed for the violation in question.
Size of Business and Effect of Civil Penalty on the Respondent's
Ability to Continue in Business.
Based on the stipulations by the parties, I conclude that
the respondent, as a corporate operator, is a large mine
operator, and that its Tall Timber mine is a relatively large
operation.
The parties stipulated that the proposed penalty assessment of
$3,407, will not adversely affect the respondent's ability to
continue in business. Accordingly, I conclude and find that the
penalty I have assessed will not adversely affect the
respondent's ability to continue in business.
History of Prior Violations
The parties have stipulated to the respondent's history of
prior violations is reflected in an MSHA computer print-out
(Exhibit P-1). The print-out reflects that for the two-year
period prior to the issuance of the May 29, 1996, citation in
this case, the respondent paid civil penalty assessments for 236
of the 237 listed violations. The only exception is the instant
contested case which concerns the only listed violation that
resulted in the issuance of a section 104(b) order. All of the
236 prior violations are section 104(a) citations, 146 of which
are "single penalty" $50 assessments. Further as previously
noted, there are no prior section 70.100(a) respirable dust
violations included as part of the mine history. One prior
violation noted is for violation of section 70.101, for
respirable dust (with Quartz present), a single-penalty citation
assessed at $50 and paid by the respondent. For an operation of
its size, I cannot conclude that the respondent's compliance
history warrants any additional increase in the civil penalty
assessed by me for the violation in question.
Gravity
The Commission has recognized that any violation of section
70.100(a) is serious and presumptively S&S. Consolidation Coal
Co., 8 FMSHRC 890, 899 (June 1986), aff'd 824 F.2d 1071 (D.C.
Cir. 1987).
In the Energy West Mining Company case, 18 FMSHRC 565 (April
1996), Judge Morris affirmed an "S&S" violation of section
70.100(a), and assessed a $3,000 civil penalty after finding that
the gravity of the violation was high, given the risk of
pneumoconiosis, and the fact that such section 70.100(a)
violations are generally considered to be S&S. The
Commission affirmed the violation, but vacated the penalty
assessment and remanded the case to the Judge to consider the
fact that the Secretary withdrew his S&S allegations because the
affected miners were wearing personal protective equipment
(helmets) which the Judge found provided "a virtually dust-free
air supply to miners, reducing respirable dust exposure to
insignificant levels". The Commission observed that there was no
indication in the judge's analysis that he considered this
evidence in determining that the violation was of high gravity or
in assessing the civil penalty, 18 FMSHRC 571-572.
As noted earlier, the respondent did not contest the
issuance of the section 104(a) "S&S" citation.. Further, the
respondent did not address this issue in its posthearing brief,
and presented no evidence to rebut the inspector's credible "S&S"
finding. Under the circumstances, the inspector's "S&S" finding
IS AFFIRMED.
Negligence
Inspector Wolford testified that he had previously inspected
the mine for approximately a year and found that it was always in
compliance with the cited standard section 70.100(a)
(Tr. 24). He confirmed that he based his moderate negligence
finding on his belief that the respondent should have been aware
that the cited MMU was out of compliance, and that this amounted
to ordinary negligence (Tr. 75). The respondent's compliance
history for the two-year period prior to the May 29, 1996,
citation issued by Inspector Wolford reflects no prior violations
of section 70.100(a). I conclude and find that the violation
resulted form the respondent's failure to exercise reasonable
care, and the inspector's moderate negligence finding IS
AFFIRMED.
Civil Penalty Assessment
On the basis of the foregoing findings and conclusions, and
taking into account the civil penalty assessment criteria found
in section 110(i) of the Act, I conclude and find that a civil
penalty assessment of $1,200, is reasonable and appropriate for
the violation in this case.
Order
In view of the foregoing, IT IS ORDERED AS FOLLOWS:
1. Section 104(a) "S&S" Citation No. 9981345, May 29,
1996, citing a violation of mandatory health
standard 30 C.F.R. � 70.100(a), IS AFFIRMED.
2. The respondent IS ORDERED to pay a civil penalty
assessment in the amount of $1,200, for the
violation in question. Payment is to be made to
MSHA within thirty (30) days of the date of this
decision and order, and upon receipt of payment,
this matter is dismissed.
George A. Koutras
Administrative Law Judge
Distribution:
Thomas A. Grooms, Esq., Office of the
Solicitor, U.S. Department of Labor,
2002 Richard Jones Rd., Suite B-201,
Nashville, TN 37215-2862 (Certified
Mail)
William C. Miller, II, Esq., Jackson &
Kelly, 1600 Laidley Tower, P.O. Box 553,
Charleston, WV 25322 (Certified Mail)
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