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[DOCID: f:k97-45.wais]
FREEDOM ENERGY MINING CO.
July 21, 1997
KENT 97-45
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
July 21, 1997
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 97-45
Petitioner : A.C. No. 15-07082-03719
v. :
:
FREEDOM ENERGY MINING CO., :
Respondent : Mine No. 1
DECISION
Appearances: Susan E. Foster, Esq., Office of the Solicitor,
U.S. Dept. of Labor, Nashville, Tennessee and
Wallie McMasters, Conference and Litigation
Representative, Nashville, Tennessee, on behalf of
the Petitioner;
William Miller, Esq., Jackson & Kelly, Charleston, West
Virginia, for the Respondent.
Before: Judge Melick
This civil penalty proceeding is before me pursuant to
Section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. � 801 et seq., the "Act," to challenge nine citations
issued by the Secretary of Labor to Freedom Energy Mining Company
(Freedom Energy) and the civil penalties proposed for the
violations charged therein. The general issue before me is
whether Freedom Energy violated the cited standards and, if so,
what is the appropriate civil penalty to be assessed considering
the criteria under the Section 110(i) of the Act. Additional
specific issues are addressed as noted.
At hearing, the parties agreed to settle the violation
charged in Citation No. 4225596 and Respondent agreed to pay the
proposed penalty of $309.00, in full. The settlement was
accepted at hearing and that determination is here confirmed.
Remaining at issue are eight "Section 104(a)" citations. At
hearing, Respondent admitted that, with the exception of
Citations No. 4229803 and 4229804, the violations existed as
charged (Tr. 6-7).[1]
Respondent has challenged the "significant and substantial"
findings associated with all of the citations.
Citation Nos. 4225600 and 4229801
Citation No. 4225600 alleges a "significant and substantial"
violation of the operator's ventilation plan and charges as
follows:
Operator failed to follow the approved ventilation
plan in the No. 4 entry of the 003-0 mmu where the
continuous mining machine was operating. The air
quantity when measured near the inby end of the
exhausting line curtain using an approved Calibrated
Anemometer was 1,584 CFM. The approved ventilation
plan, date 4-18-96, requires a minimum 6,500 CFM to be
maintained at faces where coal is being mined, cut,
loaded or drilled for blasting.
It is not disputed that the operator's ventilation plan
required 6,500 cubic feet of air per minute as noted in the
citation. Respondent has admitted the existence of the violation
but maintains that it was duplicative of Citation No. 4229801 and
should therefore be dismissed. I do not find that Respondent has
waived his right to raise this issue by its admission that both
violations had occurred (Tr. 6-7).
Citation No. 4229801 alleges a "significant and substantial"
violation of the standard at 30 C.F.R. � 75.326, and charges as
follows:
Operator failed to maintain a minimum mean entry
velocity of 60 FPM, in the No. 4 entry of the 003-0
mmu, where the continuous mining machine was operating.
The air quantity, when measured near the inby end of
the exhausting line curtain using an approved
calibrated Anemometer, was calculated to be 15.64 FPM.
The cited standard, 30 C.F.R. � 75.326, provides as follows:
In exhausting face ventilation systems, the mean
entry air velocity shall be at least 60 feet per
minute reaching each working face where coal is
being cut, mined, drilled for blasting, or loaded,
and to any other working places as required in the
approved ventilation plan. A lower mean entry air
velocity may be approved in the ventilation plan
if the lower velocity will maintain methane and
respirable dust concentrations in accordance with
the applicable levels. Mean entry air velocity
shall be determined at or near the inby end of the
line curtain, ventilation tubing, or other face
ventilation control devices.
The relevant ventilation plan provides that "the minimum
mean-entry air velocity in working places where coal is
being cut, mined, loaded, or drilled for blasting shall be:
60 fpm when exhausting, N/A where blowing."
According to MSHA Inspector Roger Williams, the mean-entry
air velocity is a measurement of the "air velocity which is
taken up the broad side of the entry to contain dust in the
face area and remove the dust from the face behind the
exhausting line curtain." (Tr. 40). Mean-entry air is
calculated by "utilizing the quantity of air in cubic feet
per minute divided by the square foot of the area which is
on the broad side of the curtain." (Tr. 40-41). The mean-
entry air velocity cited herein is therefore, a function of
the same quantity of air which was the subject of the prior
citation (Citation No. 4225600). It is undisputed that both
violations were based upon the same air reading, in the same
location and at the same time.
Under the unique facts of this case, wherein the identical
air reading provided the basis for both violations and
there is a direct correlation between the quantity of air
and velocity of air, I find that the violation charged in
Citation No. 4225600 merges into Citation No. 4229801, as a
lesser included violation and the former citation must be
vacated. The charges are duplicative as the duties imposed
under the cited provisions of the ventilation plan are
effectively the same. Secretary v. Cypress Tonapah Mining
Corp., 15 FMSHRC 367, 378 (March 1993). Accordingly,
Citation No. 4225600, is vacated and dismissed.
The violation charged in Citation No. 4229801 was however,
also "significant and substantial." A violation is
properly designated as "significant and substantial" if,
based on 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 explained:
In order to establish that a violation of a
mandatory standard is significant and
substantial under National Gypsum the
Secretary 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 injury in question will be of a
reasonably serious nature.
See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-04
(5th Cir. 1988), aff'g
9 FMSHRC 2015, 2021 (December 1987) (approving Mathies
criteria).
The third element of the Mathies formula requires that the
Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an
injury. U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984), and also that the likelihood of injury be evaluated
in terms of continued normal mining operations. U.S. Steel
Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984); See also
Halfway, Inc., 8 FMSHRC 8, 12 (January 1986) and Southern
Ohio Coal Co., 13 FMSHRC 912, 916-917 (June 1991).
The testimony of inspector Williams on this issue is
undisputed. Visible dust was present in the No. 4 entry
when the citation was issued and indeed, according to the
inspector, the dust was "rolling back" over the continuous
miner and shuttle cars. Four miners were working in the No.
4 entry, including the continuous miner operator, two
shuttle car operators and a person conducting a time study.
None of these employees were wearing a respirator. Williams
opined that the failure to maintain adequate ventilation
therefore posed a health hazard namely, black lung and other
respiratory ailments, to these miners. It may also be
inferred that such a quantity
of dust affected visibility thereby posing an independent
hazard of accident with such mobile equipment.
Inspector Williams also noted that the subject mine had a
history of liberating large amounts of methane, i.e.,
576,928 cubic feet of methane during a 24-hour period. The
mine therefore, was on a "spot inspection cycle" mandated by
Section 103(i) of the Act. Williams noted that it is
possible to hit bleeders of high methane anytime at the face
leading to explosive levels. Within this framework of
evidence alone it may reasonably be inferred that the
violation was indeed "significant and substantial," and of
high gravity. Operator negligence may also be inferred
since the dust was so visible.
Citation No. 4229802
This citation alleges a "significant and substantial"
violation of the standard at 30 C.F.R. Section 75.206(b),
and charges as follows:
The conventional roof support materials (wood
timber) being installed on the 001-0 mmu, did not
meet the minimum cross-sectional area of wooden
posts. Timbers installed as breaker posts,
roadway posts, and two posts averaged a cross-
sectional area of 4.7425 sq. inches. The mining
height on the 001-0 measured
90 inches.
The cited standard, 30 C.F.R. Section 75.206(b), provides in
relevant part that the minimum cross-sectional area of
wooden posts between 84 inches and 108 inches longer, is 28
square inches. As previously noted, the operator admitted
that the violation existed as charged and challenged only
the Secretary's finding that the violation was "significant
and substantial" (Tr. 6-7).
According to the undisputed testimony of Inspector Williams,
using wooden timbers during retreat mining provides warning
of an impending roof fall and protects miners from dry rock
in the existing shale roof. Williams noted that the shale
roof in the cited area was not of good quality and was
subject to falling-out between the bolts. Six or seven
miners were working on the section who could have been
exposed to a roof fall hazard including those installing
timbers, the shuttle car operators, the miner operator, the
section foreman and the section mechanics. Sufficient
evidence exists from which a "significant and substantial"
and serious violation may be inferred.
The Secretary offers no theory, however, to support a
negligence finding. I note that Inspector Williams opined
at hearing that the mine foreman or mine superintendent
should have observed even on the surface that the timbers
were inadequate. However, since the violation was in fact
abated by clustering timbers, the dimension of the timbers
alone apparently would not provide warning of their
inadequacy. The fact that the timbers, as they were
actually installed, were obviously inadequate according to
the undisputed testimony of the issuing inspector suggests
however that the operator is chargeable with at least
moderate negligence.
Citations No. 4229803 and 4229804
The captioned citations both allege violations of the
standard at 30 C.F.R. � 75.203(e). That standard provides
as follows:
Additional roof support shall be installed where -
- (1) the width of the opening specified in the
roof control plan is exceeded by more than 12
inches; and, (2) the distance over which the
excessive width exists is more than 5 feet.
Citation No. 4229803 alleges a "significant and substantial"
violation of the above standard and charges as follows:
[e]xcessive width, measuring 21 ft. to 36 ft. over
a distance of 19 ft., is present in the track
entry where the track serving the mantrip station
junctions with the main line track. No additional
roof support was installed in the area."
Citation No. 4229804 alleges a "significant and substantial"
violation of the above standard and charges as follows:
[e]xcessive widths, measuring 21 ft. to 44 ft.
over a distance of 35 feet is present in the track
entry where the track serving the slope junctions
with the main line track. No additional support
was installed in the area.
According to Inspector Williams, the two cited areas were
"pretty much the same, just different locations." (Tr. 124-
125). While the Respondent does not deny that the relevant
roof control plan provides for a maximum entry width of 20
feet and that there were areas in excess of 20 feet, it
nevertheless argues that, contrary to the allegations,
additional roof support had in fact been installed as
required. Inspector Williams himself conceded that both
areas had "additional roof support in the form of resin
bolts" (Tr. 90, 92, 104). He also acknowledged that the
additional spot roof bolts exceeded what is required in the
normal pattern and that, indeed, the bolting was "fairly
extensive."
Inspector Williams also testified, however, that it was
recognized in the mining industry that timbers and not
additional roof bolts are to be used to provide the
requisite additional support when the width of an entry is
exceeded. Respondent provided no contrary evidence. I
equate the inspector's testimony to that of the reasonably
prudent person familiar with the factual circumstances
surrounding the allegedly hazardous condition, including any
facts peculiar to the
mining industry. See Alabama By-Products Corp., 4 FMSHRC
2128 (December 1982). Under the circumstances, I find that
both violations are proven as charged.
I do not, however, find that the violations were
"significant and substantial" or serious. While the
operator did not provide additional roof support in the form
of timbers, it did provide extra resin grouted roof bolts
beyond what was required. Additional expert testimony would
be required to determine whether the additional support
provided by extra roof bolts was inadequate and the extent
of the inadequacy. In addition, Inspector Williams
testified in support of his findings only that "I think it
is reasonably likely that should a roof failure occur, that
quite possibly would affect everyone on the mantrip." This
testimony is not sufficient to sustain a "significant and
substantial" finding. Under the circumstances, the
Secretary has failed to sustain her burden of proving that
the violation was either "significant and substantial" or of
high gravity. In addition, in light of the additional roof
bolt support provided in this case, I find that operator
negligence is somewhat reduced.
Citation No. 4225590
This citation alleges a violation of the standard at 30
C.F.R. Section 75.1722(a) and charges that "the discharge
roller, serving the No. 10 belt conveyor was not provided
with a mechanical guard, on the left side (facing outby), to
prevent accidental contact with the live roller." At
hearing, the Respondent admitted to the existence of the
violation (Tr. 6-7). According to Inspector Williams, the
discharge roller is some 4 feet long and 15 inches in
diameter. When he issued the citation, the conveyors were
operating and the roller was moving. He noted that a guard
had not been provided and the unguarded area was 3 feet by
46 inches. He also noted that the mine floor in the area
was wet and slick. The area of the violation would be
periodically visited by cleanup crews and supervisory
personnel as well as weekly electrical examiners. Chief
Electrician Blackburn was in fact observed working only 10-
12 inches from the pinch point. Inspector Williams opined
that fatal injuries or dismemberment could result from the
hazard.
The cited standard, 30 C.F.R. Section 75.1722, provides that
"[g]ears; sprockets; chains; drive, head, tail, and take-up
pulleys; flywheels; couplings, shafts; saw blades; fan
inlets; and similar exposed moving machine parts which may
be contacted by persons, and which may cause injury to
persons shall be guarded."
I agree with the assessment of Inspector Williams that the
violation was "significant and substantial" and serious. I
also conclude that the violation was the result of high
operator negligence in light of the fact that the operator's
agent was working only 10-12 inches from the exposed
condition.
Citation No. 4225592
The above citation also alleges a violation of the standard
at 30 C.F.R. Section 75.1722(a). It charges that a
"mechanical guard was not provided for the pump motor
coupling serving the Stampler coal feeder located on the
003-0 mmu."
The violation was not disputed by Respondent at hearing (Tr.
6-7). Inspector Williams noted that the Stampler coal
feeder distributes coal to the conveyor. It is 15 feet
wide, has a conveyor chain and crushes large rock. It is in
operation whenever coal is being dumped on the conveyor.
The coupler is located on the left side of the feeder 5 to 6
feet from the discharge end and rotates at 1750 RPM.
Williams testified that the metal guard that was furnished
was not present leaving an opening 7 inches high, 3 � inches
wide and about 30 inches above floor level.
I find that the coupling at issue was one that "may be
contacted by persons and which may cause injury to persons"
and was not guarded as required by the standard. I find,
however, that the exposed opening was so small, i.e., 3 �
inches wide, that it is unlikely for there to have been any
injury. Indeed, the inspector himself testified only that
it was "conceivable" that someone could stumble and fall and
stick his hand through the opening (Tr. 162). Under the
circumstances, I find that the violation was not
"significant and substantial" nor of high gravity.
The Secretary does not cite any evidence or theory of
negligence in regard to this violation and indeed, because
of the small size of the exposed opening, I find that the
operator is chargeable with but little negligence in regard
to this violation.
Citation No. 4225593
This citation alleges a "significant and substantial"
violation of the standard at 30 C.F.R. Section 75.604(b),
and charges as follows:
[a] permanent type splice, located in the
energized trailing cable serving the light side,
continuous mining machine on the 003-0 mmu, is not
effectively insulated and sealed so as to exclude
moisture. The cutter jacket was damaged so as to
expose the base ground and insulated conductors."
The cited standard, 30 C.F.R. Section 75.604(b), provides
that "when permanent splices in trailing cables are made,
they shall be: . . . (b) effectively insulated and sealed
so as to exclude moisture . . . .
The violation is not disputed (Tr. 6-7). The subject
trailing cable is between 500-650 ft. long and provides 995
volts to the continuous miner. It has an outer jacket and
insulated copper wires inside. The outer jacket is about
one 1/8 of an inch to 3/16 of an inch thick. Williams found
the splice to be defective because of the general wear and
damage to the outer jacket. There was only "wrap type"
insulation over the splice and, although the conductor wires
were insulated, you could see the copper ground wire exposed
inside. Williams noted that the cable may be lifted by hand
to hang it or move it from exposure to other equipment.
Williams further observed that the ground was wet and water
is a good conductor. He opined that at some point, the
condition could have resulted in a fatality by
electrocution. He felt that the violation should have been
known because the cable is required to be examined on a
weekly basis. Williams subsequently opined that the
violation could have existed as briefly as one shift.
Clearly, the violation was "significant and substantial" and
serious. The Secretary in her brief again failed to address
the issue of negligence so her theories are unknown. Since
the issuing inspector conceded however, that the cited
condition could have existed for as briefly as one shift, I
do not find that the Secretary established significant
negligence.
ORDER
Citation No. 4229801 is vacated. Considering all of the
criteria under Section 110(i) of the Act, I find the
following civil penalties appropriate and must be paid
within 30 days of the date of this decision: Citation No.
4225596-$309.00; Citation No. 4225600-$1,100.00; Citation
No. 4229802-$200.00; Citation No. 4229803-$400.00; Citation
No. 4229804-$400.00; Citation No. 4225590-$300.00; Citation
No. 4225592-$75.00; Citation No. 4225593-$500.00.
Gary Melick
Administrative Law Judge
703-756-6261
Distribution:
Susan E. Foster, Esq., Office of
the Solicitor, U.S. Dept. of Labor,
2002 Richard Jones Road, Suite B-
201, Nashville, TN 37215 (Certified
Mail)
William Miller, Esq., Jackson &
Kelly, P.O. Box 553, Charleston, WV
25322 (Certified Mail)
\mca
**FOOTNOTES**
[1]: This admission at hearings constituted a knowing
waiver of the right to dispute the violations. Respondent's
subsequent attempt in its post-hearing brief to retract its
admission comes too late and is accordingly disregarded. Once
the Secretary had completed her case and the evidentiary record
was closed, such a waiver becomes irrevocable and, absent fraud
or other compelling circumstances warranting a new trial, cannot
be retracted. See Rule 60(b), Federal Rules of Civil Procedure.