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[DOCID: f:kt200165.wais]
OHIO COUNTY COAL COMPANY
September 19, 2001
KENT 2001-65
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
September 19, 2001
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 2001-65
Petitioner : A. C. No. 15-17587-03571
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, 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 a 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
(1994) et seq., the "Act," charging the Ohio County Coal Company
(Ohio County) with six violations of mandatory standards and
proposing civil penalties of $330.00 for those violations.
At hearings the Secretary vacated two citations, Citations
No. 7644854 and 7644856, and Ohio County agreed to pay the
proposed penalty of $55.00 in settlement of Citation No. 7644863.
I have considered the representations and documentation submitted
with the respect to the latter citation and I conclude that the
proferred settlement is acceptable under the criteria set forth
in Section 110(i) of the Act. An order directing payment of the
agreed amount will accordingly be incorporated in this decision.
The general issue before me with respect to the remaining three
citations 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. 7644862 alleges a violation of the standard at
30 C.F.R. � 75.342(a)(4) and charges as follows:
The methane monitor installed on the left side Joy
miner, Company No. M-1 was not maintained in proper
operating condition. The monitor would only go up to
2.2% when checked with 2.5% methane.
The cited standard, 30 C.F.R. � 75.342(a)(4), provides in
relevant part that "methane monitors shall be maintained in
permissible and proper operating condition." Archie Colburn, an
inspector for the Department of Labor's Mine Safety and Health
Administration (MSHA) testified that on August 1, 2000, he was
performing a regular inspection of the Freedom Mine accompanied
by another MSHA employee and James Nichols, Ohio County's Safety
Director. In testing the methane monitor installed on the left
side of the Joy miner with a 2.5% methane sample, the monitor
registered only 2.2%. The test was performed at least twice and
Ohio County acknowledges that indeed, the methane monitor
registered only 2.2% when tested with a known sample of 2.5%
methane. Under the circumstances the violation is proven as
charged.
The Secretary alleges that the violation was the result of
moderate operator negligence. It is noted in this regard that
although the cited standard requires the calibration of methane
monitors at least once every 31 days the record herein shows
that Ohio County was recalibrating its methane monitors on
almost a weekly basis. The most recent testing on the monitor
at issue was performed only four days before the violation
herein. Nichols acknowledged that the monitors must be checked
regularly because they are not reliable. Under the
circumstances I accept the Secretary's assessment of moderate
negligence.
Inspector Colburn found that "injury or illness" was
"unlikely" and that any such "injury or illness" would not
reasonably be expected to involve any lost workdays. These
findings of low gravity by the Secretary are not disputed and
are accepted for purposes of assessing a civil penalty.
Citation No. 7644864 was issued by Inspector Colburn on the
following day, August 2, 2000, and charges as follows:
The approved ventilation, methane and dust control
plan in effect at this time was not being complied with
on the OO1-O MMU. The required 5,000 cfm was not
present behind the line curtain in the No. 3 room where
the miner was loading coal. Only 3,910 cfm could be
measured.
Inspector Colburn testified that, as he approached the No. 3
room where the continuous miner was loading coal, the miner
operator suddenly shouted to shut down the miner and the miner
was shut down. Colburn, intending to take air readings,
requested that brattice curtains not be hung before he performed
his testing. In spite of this request the miner operator rehung
the brattice curtains that had been lying on the mine floor.
Nichols also began hanging brattice curtains. Colburn
nevertheless took his air readings after these additional
curtains had been hung and found only 3910 cfm behind the line
curtain in the No. 3 room where the miner had been loading coal.
The cited standard, 30 C.F.R. � 75.370(a)(1), requires that
the mine operator follow its approved ventilation methane and
dust control plan, "Plan." See Zeigler Coal Co. V. Kleppe, 536
F.2d 398 (D.C. Cir. 1976). The Plan then in effect provided that
"in entries or rooms, there shall be a minimum of 5,000 cfm or
[sic] air reaching each working face where coal is being mined by
continuous mining machine" (Gov't Exh. No. 3, Pg. 3, Par. 2).
Respondent argues, based on this portion of the Plan, that there
was no violation because at the time Inspector Colburn took his
air measurement the continuous miner had shut down and was not
mining coal.
The approved plan, however, also provides as follows:
Before this cut is started, a measurement of the
volume of air passing by the proposed cut shall be
made. The volume of air shall be 5,000 cfm or greater.
After the cut has progressed to 20 feet and the line
brattice has been installed, the volume of air at the
inby end of the line brattice shall be maintained to at
least 5,000 cfm. While the scrubber is in operation,
6,000 cfm shall be maintained at the end of the line
brattice.
Since it is not disputed that the cut at issue had
progressed to 20 feet and line brattice had been installed, it
appears from the above language that the volume of air at the
inby end of the line brattice must be maintained to at least
5,000 cfm whether or not the continuous miner is in operation.
Accordingly, when Inspector Colburn obtained a reading of 3,910
cfm at that location, there was a violation of those Plan
provisions. It may also reasonably be inferred, since Colburn
obtained his air reading of only 3,910 cfm after the brattice had
been reinstalled, that coal was being mined with less than 5,000
cfm just before the miner was shut down and with the brattice
lying on the mine floor. A violation of the cited standard was
accordingly also proven under this alternative theory.
Inspector Colburn found that the operator was only
moderately negligent because he assumed that before the
continuous miner had begun operating there was at least 5,000 cfm
as required by the Plan. In this regard I note the testimony of
the continuous miner operator that one of the brattice curtains
only moments earlier had been torn down by a ram car. He
explained that that was the reason he called for the shut down.
It is also noted however that not only was that curtain rehung
but another separate curtain was also hung to improve ventilation
and Inspector Colburn was nevertheless able to obtain only 3,910
cfm.
Colburn also found with respect to the violation that
"injury or illness" was "unlikely" and that if an "injury or
illness" occurred it would not involve lost work days. These
findings of low gravity are not disputed and are accepted for
purposes of assessing a civil penalty.
Citation No. 7644873 alleges a violation of the standard at
30 C.F.R. � 75.523-3(b)(1) and charges that "the automatic
emergency parking brake installed on the SNS 270 Tractor, Company
No. S-7, would not set up the brakes immediately when tested."
The cited standard, 30 C.F.R. � 75.523-3(b)(1), provides that
"automatic emergency-parking brakes shall - (1) be activated
immediately by the emergency deenergization device required by
30 C.F.R. �� 75.523-1 and 75.523-2." Inspector Colburn testified
that after at least three tests it was determined that once the
panic bar (emergency deenergization device) was activated it
required three seconds to "set up." However after adjustments
were made to abate the citation it required only about one second
to engage the brakes.
The maintenance coordinator for Ohio County, Barry Nelson,
testified that they had intentionally delayed the brake
activation mechanism to avoid injuries to persons from
inadvertently hitting the panic bar. This delay was accomplished
by widening the gap before the piston would engage the brake
mechanism. Particularly in light of the fact that the operator
was able to adjust the parking brake mechanism to activate within
about one second, I conclude that a three second activation would
not be "immediate" within the meaning of the cited standard.
Accordingly, I find that the violation is proven as charged.
I accept the Secretary's findings of moderate negligence.
The violation was caused by the coordinator's intentional
adjustment. The inspector's findings that "injury or illness"
was "unlikely" and that any such injury or illness would not
involve lost work days is not disputed and is accepted as a
finding of low gravity for purposes of assessing a civil penalty.
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
affect 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.
The gravity and negligence relating to each violation have
previously been discussed. Respondent has a significant history
of violations as shown by Gov't Exh. No. 5, however, only eight
of those violations were designated as "significant and
substantial." It has been stipulated that Ohio County produced
684,797 tons of coal in the year preceding the proposed
assessment, thereby placing the mine in a moderately large
category. It has also been stipulated that the penalties
proposed by the Secretary are appropriate to the size of the
operator's business. It has been further stipulated that the
penalties would not affect the operator's ability to continue in
business and that the operator demonstrated good faith in
attempting to achieve rapid compliance after notification of the
violations.
ORDER
Citations No. 7644854 and 7644856 are vacated. Citations
No. 7644862, 7644863, 7644864 and 7644873 are hereby affirmed and
the Ohio County Coal Company is hereby directed to pay the same
$55.00 penalty as proposed by the Secretary for each such
citation 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
Flem Gordon, Esq., Gordon & Gordon, P.S.C., 1822 North Main
Street, P.O. Box 1305, Madisonville, KY 42431-1305
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