<DOC>
[DOCID: f:kt2001142.wais]
OHIO COUNTY COAL COMPANY
KENT 2001-142
December 11, 2001
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
December 11, 2001
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 2001-142
Petitioner : A. C. No. 15-17587-03572
v. :
:
OHIO COUNTY COAL COMPANY, :
Respondent : Freedom Mine
DECISION
Appearances: Arthur J. Parks, Conference & Litigation
Representative, U.S. Department of Labor,
Mine Safety and Health Administration,
Madisonville, Kentucky, and J. Phillip
Giannikas, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
on behalf of Petitioner;
Flem Gordon, Esq., Gordon & Gordon, P.S.C.,
Madisonville, Kentucky, on behalf of Respondent.
Before: Judge Melick
This case is before me upon the Petition for Civil Penalty
filed by the Secretary of Labor pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801, et
seq. (1994), the "Act" charging the Ohio County Coal Company
(Ohio County) with three violations of mandatory standards and
proposing civil penalties of $423.00 for those violations. The
general issue before me is whether Ohio County violated the cited
standards as alleged and, if so, what is the appropriate civil
penalty to be assessed considering the criteria under Section
110(i) of the Act.
Citation No. 7645093 alleges a violation of the standard at
30 C.F.R. � 75.1725(a) and charges that "[t]he belt was running
into the framing and was hot to the touch in the following
locations along the No. 4 belt entry at spad number 3+30, 4+90,
13+30, 14+00, 19+60, 23+10 and crosscut No. 17 the company
removed from service immediately." The cited standard, 30 C.F.R.
� 75.1725(a), provides that "[m]obile and stationery machinery
and equipment shall be maintained in safe operating condition and
machinery or equipment in unsafe condition shall be removed from
service immediately."
Inspector Charles Jones of the Department of Labor's Mine
Safety and Health Administration (MSHA), has been a coal mine
inspector since September 1999. He has 21 years underground coal
mine experience and for 14 of those years he served as a safety
committeeman. Jones testified that on October 19, 2000, he was
inspecting the No. 4 belt entry accompanied by miner's
representative Chris Johnson. He found that at seven locations
the belt was running into and cutting into the bottom of the
metal belt framing. At those locations the frame was too hot to
hold. While Jones opined that the violation was not "significant
and substantial" and that injuries and illnesses were unlikely,
he nevertheless believed that if the belt would cut further into
the frame there was a possibility of coal spillage and, because
of the heat generated by belt friction, there could be fire or
smoke from burning coal. He believed that the described hazard
was unlikely, however, because the area had been rock dusted and
there was no loose coal. Based on the credible testimony of
Inspector Jones, I find that indeed, there was a violation of the
cited standard of low to moderate gravity.
Inspector Jones found moderate negligence basing his
conclusion on the fact that none of the seven violative
conditions had been reported in the belt examiner's book. He
noted however that the belt had cut about one inch into the steel
framing so he concluded that the belt had been misaligned for at
least a week. Jones also opined that there had been at least two
previous belt examinations during which the violative condition
should have been observed. Indeed, the belt had already cut
through the support bracket and had already cut into the frame
itself about one inch at the time of its discovery. Under these
circumstances I agree that the operator is chargeable with
moderate negligence.
In reaching these conclusions I have not disregarded the
testimony of mine superintendent Ricky Brown. However, for the
reasons stated below, I find his testimony to be entitled to but
little weight. Brown was not present at the time the citations
were issued and only later appeared at the scene to realign the
belt. Brown did not deny that the belt was cutting into the
metal frame as described by Inspector Jones and testified only
that he did not notice it. Brown readjusted the belt with
"cowhide" gloves and did not, with such gloved hands, find the
frame to be hot at the locations he held it. This qualified
testimony accordingly does not negate the affirmative testimony
of Inspector Jones.
Citation No. 7645100 alleges a "significant and substantial"
violation of the standard at 30 C.F.R. � 75.400 and charges as
follows:
Loose coal and float coal dust 0 to 1 ft. deep, 5
ft. wide, and for a distance of 8 ft. was allowed to
accumulate under the takeup located at the No. 6
header. The belt and header was [sic] energized and
this mine deliberates [sic] 19,634 cubic feet of
methane in a 24 hours [sic].
The cited standard, 30 C.F.R. � 75.400, provides that
"[c]oal dust, including float coal dust deposited on rock-dusted
surfaces, loose coal, and other combustible materials shall be
cleaned up and not be permitted to accumulate in active
workings, or on diesel-powered and electric equipment therein."
On October 30, 2001, Inspecto Jones, accompanied by Andy
Schultz, a miner's representative and belt examiner,
observed loose coal and float coal dust under the take-up
located at the No. 6 header. Coal and float coal dust was,
according to Jones, 1 foot deep and 5 feet wide for a distance
of 8 feet. He measured the accumulation with a measuring
stick. The condition was particularly hazardous according
to Jones because the belt was running in the coal dust and
indeed, the dust at that location had begun to crystallize.
The material was black in color. The take- up was also kicking
up dust and coal dust was being suspended in the air. Jones
noted on the face of the citation that "injury or illness" was
"reasonably likely" and could reasonably be expected
to cause "lost workdays or restricted duty." He opined at
hearing that the belt running against the coal accumulation
with sufficient heat to cause crystallization, could result
in smoke and fire. Jones opined that even should the
accumulation have been wet it would have made no difference
under the circumstances presumably because the heat generated
would have dried the coal. He further opined that one person
would likely have been affected. He opined that the carbon
monoxide monitor would trigger an alarm outside and that a
person would enter the mine to locate the cause thereby becoming
exposed to the smoke. Within this framework of evidence I find
that indeed the violation has been proven as charged and
was "significant and substantial" and of high gravity.
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 safety 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 hazard contributed to
will result in an injury, and (4) a reasonable
likelihood that the injury in question will be of a
reasonably serious nature.
See also Austin Power Inc. 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)). The likelihood of such injury must be
evaluated in terms of continued normal mining operations
without any assumptions as to abatement. 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, 916-17 (June 1991).
Jones opined that the violation was the result of only
moderate negligence because the condition had not been listed
in the belt examiner's books as a hazard. Jones also opined
however that the condition should have been discovered
during a proper pre-shift examination, noting that the condition
had existed for at least 48 hours - - sufficient time for the
coal dust to become crystallized. Based on this credible
evidence I agree that the operator is chargeable with moderate
negligence.
In reaching these conclusions I have not disregarded the
testimony of pre-shift and belt examiner Andrew Schultz who
accompanied Jones on his inspection. Schultz had initially
agreed with Jones that the materials cited were in fact coal
and coal dust but testified that he later changed his
mind after the inspector had departed and as he cleaned up the
material. He then purportedly concluded that the material
was not coal at all but only mud and fire clay. I find for
several reasons however that this testimony is entitled to but
little weight. First, I note that Schultz, as the belt
examiner, was a person responsible for reporting violative
conditions in the examination books. Since the violative
condition alleged herein had not been reported, he would have
been motivated not to find the cited condition to be
violative. Second, it is undisputed that the take-up was
"kicking up" coal dust and that coal dust was being placed
in suspension. Schultz did not deny or otherwise account
for this in his testimony. Third, Inspector Jones has
21 years of underground coal mining experience, 14 of which
as a safety committeeman. Clearly he is well qualified to
ascertain the identity of coal, crystallized coal and coal
dust. His expert testimony in this regard is entitled to
significant weight and I find in this case that it is
controlling.
Citation No. 7645101 charges a "significant and substantial"
violation of the standard at 30 C.F.R. � 75.1725(a) and charges
as follows:
The No. 7 belt was not being maintained. The belt
was rubbing and cutting into the wood timbers located
at crosscut No. 19. These wood timbers were hot and
there was loose coal and coal float dust 0 to 4 inch
[sic] deep on top of rock dust surface in the immediate
area. Company removed this belt from service
immediately.
As previously noted, the cited standard requires that mobile
and stationary machinery and equipment be maintained in safe
operating condition and machinery or equipment in unsafe
condition be removed from service immediately.
According to Inspector Jones, the No. 7 belt was in fact
rubbing and cutting into wood timbers located at crosscut No. 19,
where there was also loose coal and float coal dust. The top
belt was cutting into several timbers when coal was off the belt
and the timbers were scorched and hot to the touch. Inasmuch as
there was up to 4 inches of loose coal in the vicinity, Inspector
Jones concluded that should the timbers catch fire from the
friction then coal nearby could also ignite resulting in smoke
and fire. On the face of the citation he opined that "injury or
illness was reasonably likely" and could reasonably be expected
to result in "lost work days or restricted duties." He also
concluded therefore that the violation was "significant and
substantial." I find that the credible evidence supports these
findings and that the violation was of high gravity.
Jones opined that the violation was a result of moderate
negligence because the hazardous condition was not listed on the
belt examiner's report. Jones also opined that the condition had
existed for at least two days and that the scorched timbers were
obvious. Indeed, according to Jones, he smelled wood burning
from the scorched timbers several crosscuts from the cited
condition. Within this framework of credible evidence I conclude
that the violation was the result of moderate negligence.
In reaching these conclusions I have not disregarded the
testimony of belt examiner Schultz. Schultz maintains that
Inspector Jones failed to mention to him that there were hot
timbers and accumulations. Schultz admits however that there
was in fact evidence that the belt had been rubbing on the
timbers. Schultz claimed that he did not in fact remove the
timbers and claimed that he did not know whether they were in
fact ever removed. Inspector Jones credibly testified in
rebuttal however that he observed Schultz himself remove the
timbers and loose coal after Schultz was told that a citation
would be issued. I also note that Schultz did not deny that the
cited loose coal existed in proximity to the cited timbers.
Under the circumstances I do not find reason to discount the
inspector's testimony.
Civil Penalties
Under Section 110(i) of the Act, the Commission and its
judges must consider the following criteria in assessing a civil
penalty: the operator's history of previous violations, the
appropriateness of such penalty to the size of the business of
the operator charged, whether the operator was negligent, the
effect on the operator's ability to continue in business, the
gravity of the violation and the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.
Gravity and negligence findings have been previously noted
in this decision. Respondent has a significant history of
violations but the great majority of those violations were not
deemed "significant and substantial" and were subject to minimal
$55.00 penalties. As a result I find that the operator had a
moderate history of violations. It has been stipulated by the
parties that the operator produced 684,797 tons of coal.
Presumably this is the annual tonnage for a recent year and would
place the operator in a medium to large size category. It has
been further stipulated that the penalties proposed by the
Secretary "are appropriate to the size of this operator's
business and will not affect its ability to continue in
business." It has also been stipulated that the operator
"demonstrated good faith in attempting to achieve rapid
compliance after being notified of the violation." Under the
circumstances the following civil penalties are found to be
appropriate: Citation No. 7645093 - $55.00, Citation No. 7645100
- $200.00, Citation No. 7645101 - $200.00.
ORDER
Citations No. 7645093, 7645100 and 7645101 are hereby
affirmed as written and the Ohio County Coal Company is directed
to pay civil penalties of $455.00, within 40 days of the date of
this decision.
Gary Melick
Administrative Law Judge
Distribution: (Certified Mail)
Arthur J. Parks, Conference & Litigation Representative, U.S.
Department of Labor, Mine Safety and Health Adm. (MSHA), 100 YMCA
Drive, Madisonville, KY 42431
J. Phillip Giannikas, Esq., Office of the Solicitor, U.S. Dept.
of Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN
37218
Flem Gordon, Esq., Gordon & Gordon, PSC, 1822 C North Main St.,
P.O. Box 1305, Madisonville, KY 42431
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