<DOC>
[DOCID: f:kt99129.wais]
WILLIAMS BROTHERS COAL CO., INC.
January 19, 2000
KENT 99-129
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041
January 19, 2000
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 99-129
Petitioner : A. C. No. 15-16666-03539
v. :
: Mine No. 3
WILLIAMS BROTHERS COAL CO., INC., :
Respondent :
DECISION
Appearances: J. Phillip Giannikas, Esq., Office of the
Solicitor, U.S. Department of Labor, Nashville,
Tennessee, for Petitioner;
Hufford Williams, President, Williams Brothers
Coal Company, Inc., Mouthcard, Kentucky, Pro Se.
Before: Judge Hodgdon
This case is before me on a Petition for Assessment of Civil
Penalty filed by the Secretary of Labor, acting through her Mine
Safety and Health Administration (MSHA), against Williams
Brothers Coal Company, Inc., pursuant to section 105 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 815. The
petition alleges eight violations of the Secretary's mandatory
health and safety standards and seeks a penalty of $642.00. A
hearing was held in Pikeville, Kentucky. For the reasons set
forth below, I modify four citations, affirm all of the citations
and assess a penalty of $561.00.
Background
The No. 3 Mine is a small, underground coal mine operated by
Williams Brothers Coal Company in Pike County, Kentucky. Coal is
mined by continuous miner and is removed from the mine by a 6,000
foot conveyor belt-line. The height of the coal seam, and thus
the height of the mine, is approximately 35 inches.
On Monday, September 21, 1998, MSHA Inspector, and
electrical specialist, Kedrick Sanders began a quarterly
inspection of the No. 3 mine. On that day, Sanders observed
what he considered to be two violations of the Secretary's
regulations. One concerned the failure to properly ground a
battery charging system for the mine personnel carrier and the
other dealt with a failure to keep records of inspections of
surface electrical installations. However, rather than issue
citations, Sanders merely advised Hufford Williams what he
should do to comply with the regulations.
Sanders returned to the mine on Thursday, September 24, to
continue the inspection. He determined that neither of the
electrical violations had been corrected and issued a citation
for the battery charger. Sanders then accompanied Terry
Williams, the mine foreman and Hufford Williams' nephew,
underground. On arriving at the working section, Sanders noticed
an employee lying in the conveyor boom of a continuous miner.
Concluding that the continuous miner had not been properly de-
energized, Sanders informed Terry Williams that he was issuing a
citation for the violation. A heated conversation followed, the
result of which was that Terry Williams refused to give the
inspector a ride out of the mine, forcing him to have to crawl
along the entire belt-line to the mine's surface.
When the MSHA Sub-District Manager learned of the tensions
developing at the mine, he sent MSHA Electrical Engineer and
Inspector Mark Bartley to attempt to defuse the situation. One
of the first things that he did was to send Sanders home for the
day.
On Friday, Sanders, MSHA Inspector Tommy Caudill and MSHA
Supervisor Sam Harris returned to the mine to continue the
inspection. Sanders and Caudill again inspected the belt-line.
At the end of the day, Sanders issued citations for the failure
to record examinations of surface electrical installations that
he had observed the day before, for failure to properly maintain
the No. 1 belt-line, for accumulations along the entire belt-
line, which he had observed while crawling out the day before,
and for a guarding violation at the No. 3 belt head drive.
Caudill issued citations for failure to have an up-to-date mine
map and for a non-functioning fire sensory system.
A total of eight citations were issued by Sanders and
Caudill. The Respondent has contested all of them. They will
be discussed seriatim in this decision.
Findings of Fact and Conclusions of Law
Citation No. 4515012
This citation alleges a violation of section 77.701 of the
Secretary's regulations, 30 C.F.R. � 77.701, because: "Suitable
frame grounding is not being provided for the Damascus Pneumatics
Corp. personnel carrier. No frame grounding conductor is
connected from the metallic frame of the unit to the 110 VAC
1-phase battery charger while the batteries are being charged."
(Govt. Exs. 2 & 3.) Section 77.701 requires that: "Metallic
frames, casings, and other enclosures of electric equipment that
can become `alive' through failure of insulation or by contact
with energized parts shall be grounded by methods approved by an
authorized representative of the Secretary."
Inspector Sanders testified, as set out in the citation,
that there was no frame grounding extending from the battery
charger to the personnel carrier. He stated that this grounding
was necessary "because in case of a fault condition, the metallic
frame can become alive. In other words, it can be energized.
The person who would come in contact with that metallic frame
could receive electric shock and could be seriously injured."
(Tr. 222.) His opinion was corroborated by Inspector Bartley.
It is the Respondent's position that no additional grounding
was necessary. Mr. Williams argues that the battery charger is
"protected by the manufacturer's safeguards . . . [and] [t]here
is no safety hazard present in using this charger in it's
original condition." (Resp. Br. at 1.)
There is no dispute that there was no frame grounding
between the charger and the carrier. As to whether the grounding
is required by the regulation, I accept the opinions of Inspector
Sanders, who has a bachelor's degree in Industrial Education with
a specialization in industrial electricity and who is an
electrical specialist, and Inspector Bartley, who has a degree in
Electrical Engineering, that it is, over the opinion of Mr.
Williams.[1] Accordingly, I conclude that the company violated
the regulation as alleged.
Citation No. 4515013
This citation charges a violation of section 75.1725(c), 30
C.F.R. � 75.1725(c), since: "A person was observed working on
the water sprays in the throat of the Joy continuous miner. The
person was lying in the conveyor. The conveyor was not blocked
against motion and the power to the unit was not de-energized and
disconnected from the section power center." (Govt. Ex. 4.)
Section 75.1725(c) provides that: "Repairs or maintenance shall
not be performed on machinery until the power is off and the
machinery is blocked against motion, except where machinery
motion is necessary to make adjustments."
The facts surrounding this violation are not disputed. A
miner was lying in the conveyor of the continuous miner working
on the water sprays. The circuit breaker on board the continuous
miner was in the "off" position, but the power cable for the
continuous miner had not been disconnected from the power center.
The inspector testified that the regulation requires "that the
power be de-energized with a visible disconnect at the section
power center." (Tr. 275.) The Respondent argues that when the
circuit breaker is in the "off" position, the power is "off."
Inspector Sanders testified that a circuit breaker is not
a suitable means of disconnecting power "[b]ecause you cannot
visibly see the contacts. The lever could . . . be in the off
position, but the contacts could still be in the closed
position." (Tr. 277-78.) Inspector Bartley concurred in this
assessment and added that "carbon tracking" from repetitive use
could occur, which could conduct electricity. (Tr. 295.)
Further, this has been the position of the Secretary since at
least April 1990 as evidenced by the statement in MSHA's Program
Policy Manual that: "The trailing cable shall be disconnected
from the source of power before repairs are made on portable or
mobile equipment, except when the equipment must be operated for
making adjustments." Department of Labor, Mine Safety and Health
Administration, Program Policy Manual, Vol. 5, 159 (04/01/90)
(Govt. Ex. 7.)
A circuit breaker is: "An overload protective device
installed in the positive circuit to interrupt the flow of
electric current when it becomes excessive or merely exceeds a
predetermined value." Bureau of Mines, U.S. Department of
Interior, Dictionary of Mining, Mineral and Related Terms, 210
(1968). Since a circuit breaker is designed to interrupt the
flow of excessive current, it is apparent that it is not designed
to be an "on/off" switch under normal conditions. Thus, the
inspectors' testimony that the contacts in the circuit breaker
could still be in the closed position, and conduct normal
current, even when it is set in the "off" position, is not
inconsistent with the purpose of a circuit breaker. Indeed,
even Mr. Williams admitted that in his 33 years in mining, he
had seen "circuit breakers burn in." (Tr. 301.)
Therefore, I accept the inspectors' opinion, which is
corroborated by the Program Policy Manual, that the only way to
be sure that the power is off is to disconnect it at the power
source. Since the Respondent did not do this, I conclude that
it violated section 75.1725(c) as alleged.
Significant and Substantial
The Inspector found this violation to be "significant and
substantial." A "significant and substantial" (S&S) violation is
described in Section 104(d)(1) of the Act as a violation "of such
nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health
hazard." A violation is properly designated S&S "if, based upon
the particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature." Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission set out four criteria that have to be met for a
violation to be S&S. See also Buck Creek Coal, Inc. v. FMSHRC,
52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v.
Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin
Power, Inc., 9 FMSHRC 2015, 2021 (December 1987)(approving
Mathies criteria). Evaluation of the criteria is made in terms
of "continued normal mining operations." U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a
particular violation is significant and substantial must be based
on the particular facts surrounding the violation. Texasgulf,
Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Co.,
9 FMSHRC 1007 (December 1987).
In order to prove that a violation is S&S, the Secretary
must establish: (1) the underlying violation of a safety
standard; (2) a distinct safety hazard, 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 will be
of a reasonably serious nature. Mathies, 6 FMSHRC at 3-4.
Inspector Sanders testified that he believed that the
violation was S&S because "with the position that this person was
on the continuous miner, should there be a failure of a circuit
breaker and should a person inadvertently hit the start switch on
this or should a fault occur in the start switch, this conveyor
could be started, the man could be crushed to death." (Tr. 282.)
It is apparent that a confluence of factors would have to occur
before this violation could result in a serious injury.
The Secretary did not present any evidence that the circuit
breaker was faulty. In fact, in checking the continuous miner
for permissibility the next day, the inspector was satisfied for
his own safety when only the circuit breaker was placed in the
off position; he did not disconnect the trailing cable from the
power source. (Tr. 304.) In addition, while the miner, who was
the continuous miner operator, was working on the sprays, the
remote control for the continuous miner had been disconnected
from his cap light battery, the circuit breaker had been placed
in the "off" position and the machines headlights had gone out.
All of this indicated that the continuous miner was not powered.
Finally, Inspector Bartley testified that the motor on the
machine would "typically not" start under the circumstances
apparently present at the time of the inspection. (Tr. 297-98.)
Turning to the second factor suggested by the inspector,
that someone could inadvertently hit the start switch, it is
apparent from the picture of a continuous miner submitted by the
Secretary, that the operator was not working anywhere near the
start switch. (Govt. Ex. 6 at 3.) Thus, it is unlikely that he
would inadvertently hit it. According to the evidence, the only
other people present while these repairs were taking place were
the inspector and the section foreman accompanying him. They
were not likely to accidentally hit it. Likewise, the Secretary
did not present any evidence that the start switch was faulty.
Based on the Secretary's evidence, I find that it is
unlikely that the circuit breaker had a fault in it, it is
unlikely that someone would inadvertently hit the start switch
and it is unlikely that the start switch had a fault. I find it
even more unlikely that all of these problems would occur in such
a way as to start the continuous miner. Consequently, I conclude
that the violation was not "significant and substantial" and will
modify the citation accordingly.
Citation No. 4515014
This citation presents a violation of section 75.400, 30
C.F.R. � 75.400, stating:
Based on conditions observed 09-24-98,
combustible material in the form of loose
coal, coal fines and coal dust is present in
numerous intermittent locations along side,
and under the conveyor belts nos. one through
no. 4. The accumulation is present in depths
from � inch to approximately 6 inches. The
accumulation apparently occurred over a
period of time. The material is dry and
dusty in some locations.
(Govt. Ex. 11.) Section 75.400 provides that: "Coal 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."
Inspector Sanders testified that he first observed these
accumulations while crawling the length of the belt-line on
September 24. Then he and Inspector Caudill traveled the entire
belt-line from the outside on the next day. They both testified
that the accumulations were worst along the No. 1 belt, in some
instances being so high that the belt rollers were turning in the
accumulations. They agreed that there were accumulations
situated at various locations along the remaining belt-lines, so
that approximately 50 percent of the belt-lines, other than No.
1, had accumulations along them.
The operator did not present any evidence that there were no
accumulations. Its only witness, Mr. Williams, testified that he
did not travel any of the belt-lines. In fact, the company's
main defense is that the accumulations were too wet to burn.
This defense, in turn, is based on a laboratory analysis of
four buckets of material that the company submitted to Standard
Laboratories, Inc. The lab report states that: "The following
analysis does not indicate that this particular coal sample is a
fire hazard, due to high moisture & ash content & low BTU value."
(Resp. Ex. B.) It is apparent, however, that the sample did not
present the accumulations as they existed when observed by the
inspectors. Mr. Williams testified that to clean up the
accumulations, he turned off the belts and had his miners shovel
the accumulations onto the belts. Then he had the belts started
and he took a sample of the material that was on each belt, four
in all, and placed it in a bucket.
As noted by the Secretary, this method of collecting samples
made the samples unrepresentative because, "it is clear that any
dry coal accumulations--dry accumulations that both Inspectors
Sanders and Caudill testified existed in the midst of
predominately moist accumulations--would have been mixed with the
wet accumulations such that they would lose their distinct
identities as dry materials." (Sec. Br. at 10.) Thus, I find
that this evidence fails to refute the testimony of the
inspectors that at least some of the accumulations were dry.
The Commission has held that a construction of section
75.400 "that excludes loose coal that is wet or that allows
accumulations of loose coal mixed with noncombustible materials,
defeats Congress' intent to remove fuel sources from mines and
permits potentially dangerous conditions to exist." Black
Diamond Coal Mining Co., 7 FMSHRC 1117, 1121 (August 1985).
Accordingly, I conclude that Williams Brothers violated section
75.400.
Significant and Substantial
Over the objection of the Respondent, I granted the
Secretary's motion to amend this citation to allege that the
violation was "significant and substantial."[2] As is usual in
S&S cases, the issue is whether a reasonably serious injury would
be reasonably likely to result from this violation. For this
citation, the specific issue is whether the accumulations were
combustible.
Both inspectors testified that there were several rollers in
the No. 1 belt-line that were stuck and would not turn. They
contended that the friction of the belt passing over the stuck
rollers would create enough heat to ignite the accumulations,
particularly in those areas where the rollers were actually in
the accumulation. As noted above, they also testified that there
were areas where the accumulations were dry enough to ignite.
While some of the accumulations were dry and combustible,
most of the accumulations were wet. However, the fact that some
of the coal accumulations were wet is not determinative of
whether the violation is S&S, because "damp coal dries in the
presence of fire." Utah Power & Light Co., 12 FMSHRC 965, 970
(May 1990). Therefore, taking into consideration the ignition
source from the rollers, the fact that in some places the rollers
were actually in the coal accumulations, the extent of the
accumulations and the fact that some of them were dry, I conclude
that this violation was "significant and substantial."
Citation No. 4515015
A violation of section 77.502-2, 30 C.F.R. � 77.502-2, is
alleged in this citation, which states: "The operator has no
record of having made an examination of the surface electrical
installations within the past month." (Govt. Ex. 1.) Section
77.502-2 requires that: "The examinations and tests required
under the provision of this � 77.502 shall be conducted at least
monthly." Section 77.502, 30 C.F.R. � 77.502, provides that:
"Electric equipment shall be frequently examined, tested, and
properly maintained by a qualified person to assure safe
operating conditions. When a potentially dangerous condition is
found on electric equipment, such equipment shall be removed from
service until such condition is corrected. A record of such
examinations shall be kept."
Inspector Sanders testified that when he asked the
Respondent to show him the electrical inspection records, he was
shown a book which contained records of the monthly examinations
of the high-voltage circuit breakers located on the mine surface.
He stated that he advised Mr. Williams that the regulations also
required examinations of other electrical equipment such as belt
drives, stacker belts, charging stations, pump station facilities
and other electrical facilities on the surface. The inspector
related that he told Williams that a lot of operators were
unaware of the requirement, so he was putting him on notice so he
could start keeping the records.
Sanders said that when he returned three days later, the
company had not recorded any examinations and Mr. Williams told
him that he did not think that he was required to. As a
consequence, the inspector issued the citation in question.
At the hearing, Mr. Williams reiterated his position that
examination of the circuit breakers is all that he is required
to do. (Tr. 214-18.) However, his argument is not persuasive.
Sections 77.800-1 and 77.800-2, 30 C.F.R. �� 77.800-1 and
77.800-2, set out a specific requirement for examining circuit
breakers and keeping a record of those examinations.[3] Plainly,
section 77.502-2 is a different requirement. Accordingly, I
conclude that the company violated the regulation by not having
a record of the monthly examinations of the other surface
electrical installations.
Citation No. 4515016
This citation alleges a violation of section 75.1725(a),
30 C.F.R. � 75.1725(a), because:
Approximately 20 conveyor idler
assemblies are defective on the No. 1 belt
flight. There are approximately 30
individual idlers stuck and they are worn
from the conveyor belt rubbing them. Damp
coal and coal dust is deposited around the
return idlers. The operator removed the
belts from service.
(Govt. Ex. 10.) Section 75.1725(a) provides that: "Mobile and
stationary equipment shall be maintained in safe operating
condition and machinery or equipment in unsafe condition shall
be removed from service immediately."
As note in the discussion concerning Citation No. 4515014,
supra, Inspectors Sanders and Caudill traveled the length of the
No. 1 belt-line. Inspector Sanders was on the "off" side of the
belt and Inspector Caudill was on the "travel" side. They
testified that they counted 30 rollers on the belt that would not
turn and that some of the rollers had a flat space worn into them
from the rubbing of the belt.
Mr. Williams testified that he did not examine the belt-
line. (Tr. 183.) He did, however, offer two pages from the belt
examiner's book which showed that on September 22 and September
25, the belt examiner noted that the No. 1 belt "needs structure
replaced" and "needs structure changed."[4] (Resp's Ex. D.) No
one else from the company testified.
Based on the evidence, I conclude that the Respondent
violated section 75.1725(a) by not maintaining the No. 1 belt in
safe operating condition.
Significant and Substantial
The inspector found this violation to be "significant and
substantial." For the reasons enumerated in finding the
violation in Citation No. 4515014 S&S, supra, I conclude that
this violation was "significant and substantial."
Citation No. 4515017
This citation charges a violation of section 75.1722(a), 30
C.F.R. � 75.1722(a), because:
Suitable mechanical guarding is not
being provided at the No. 3 belt head drive.
A hole approximately 2 inches by 18 inches is
present where the sprocket chain has worn
through the existing guarding. A hole
approximately 4 inches in diameter is present
in the gear covers where a person can come in
contact with moving mechanical parts. The
cover is missing from the coupling between
the motor and speed reducer.
(Govt. Ex. 13.) Section 75.1722(a) requires that: "Gears;
sprockets; chains; drive, head, tail, and takeup pulleys;
flywheels; couplings, shafts; sawblades; fan inlets; and similar
exposed machine parts which may be contacted by persons, and
which may cause injury to persons shall be guarded."
Inspector Sanders testified that in inspecting the guarding
around the No. 3 belt's head drive, he observed that there was a
hole in the guarding approximately 18 inches long and two inches
high. The hole had apparently been worn through by the sprocket
chain. He stated that there was another hole on the other side
of the guard that measured approximately four inches in diameter.
He believed that the holes were large enough that a miner could
inadvertently slip his hand through them and come in contact with
the moving machinery. Inspector Caudill corroborated this
testimony.
The company did not present any evidence on this citation.
It relies on an ambiguous comment of MSHA Supervisor Sam Harris,
in a statement he made prior to the hearing, to show that there
was no violation. Mr. Williams asked him "regarding Citation
number 4545017--about measuring a hole at the No. 3 belt," if
that was a violation in his opinion. (Jt. Ex. 1 at 7.) Harris
responded: "If there is a pinch point they are regulated [sic]
to guard it. Couldn't get a finger let alone a hand through the
opening." (Id.)
I accept the testimony of Inspectors Sanders and Caudill on
this citation. Based on their description of the size of the two
holes, it is apparent that a miner's hand could fit through the
openings. If the Respondent believed that the holes were not as
large as described by the inspectors, it should have measured the
holes or otherwise presented evidence to rebut the inspectors'
testimony. Mr. Harris' statement fails to do that. In the first
place, he only mentions one opening. In the second place, it is
not clear whether he is talking about the holes in the guard or
the guard that was missing from the coupling that connected the
electric motor to the speed reducer. Finally, he provided no
description of the openings.
With respect to the missing coupling cover, the Secretary's
evidence is not sufficient to establish that this was a
violation. However, since the two holes in the guarding are
clearly violations, I conclude that the company violated section
75.1722(a).
Significant and Substantial
Both inspectors testified that the area around the head
drive was wet and slippery, that the drive required daily
maintenance, necessitating someone to be in close proximity to it
every day, and that a slip, fall or stumble could result in a
hand going through the opening and being seriously injured by
being caught in the moving machinery. On the other hand, as
pointed out by the Respondent, the miners in this mine are
working in "low coal" and both of the holes in the guarding are
small. This means that the miners are working on their hands and
knees, or their backs, and are, therefore, not as likely to slip
and fall as someone working on his feet. In addition, while a
hand could fit through the holes in the guarding, the chances of
sticking a hand directly through the hole by inadvertence appears
improbable.
Accordingly, I find that there was not a reasonable
likelihood that a serious injury could result to a miner, in the
normal course of mining, from this violation and that the
violation is, therefore, not "significant and substantial." The
citation will be modified appropriately.
Citation No. 7349834
This citation charges a violation of section 75.1200, 30
C.F.R. � 75.1200, because: "The 75-1200 mine map that was posted
in the mine office for the purpose of showing the active
workings, ventilation controls, and worked out areas, was not
accurate. This was due to the certified map did not show
pillared out areas, nor approved mp's. on this map." (Govt. Ex.
8.) Section 75.1200 requires, in pertinent part, that:
The operator of a coal mine shall have
in a fireproof repository located in an area
on the surface of the mine chosen by the mine
operator to minimize the danger of
destruction by fire or other hazard, an
accurate and up-to-date map of such mine
drawn on scale. Such map shall show:
(a) The active workings;
(b) All pillared, worked out, and
abandoned areas . . . .
Inspector Caudill testified that when he asked Mr. Williams
to show him on the mine map hanging on the mine office wall where
the active section was, Mr. Williams pointed to an area that was
not marked on the map. He related that Mr. Williams showed him
three different maps and not one of them accurately reflected
where the active mining was taking place or reflected areas where
pillaring had been completed.
Mr. Williams admitted that the top map did not show all of
the areas in which pillaring had been completed. He testified
that: "[I]n replacing this map to satisfy the state, I had to
get a new map to put up and the map - it took a certain amount of
time to have the map printed up and so on. And so we pulled some
pillars during that time which were not shown on the map, which I
would have had to have marked on myself." (Tr. 339-40.)
Finding that the Respondent did not have an "up-to-date"
mine map as required by the regulation, I conclude that the
company violated section 75.1200.
Citation No. 7349838
This citation alleges a violation of section 75.1103-1, 30
C.F.R. � 75.1103-1, because: "The fire sensor system that was
provided for the company - 1, 2, 3, and 4 belt lines would not
work when tested." (Govt. Ex. 12.) Section 75.1103-1 requires
that: "A fire sensor system shall be installed on each
underground belt conveyor. Sensors so installed shall be of a
type which will (a) give warning automatically when a fire occurs
on or near such belt; (b) provide both audible and visual signals
that permit rapid location of the fire."
Inspectors Caudill and Sanders testified that Caudill tested
the fire sensor system several times by placing a magnet on the
sensor mechanism at the No. 2 belt head drive. Nothing happened.
No warning signal occurred at their location and no telephone or
other communication was received from the surface to alert them
to the danger.[5]
Both inspectors reported seeing wires on the floor of the
mine, which they believed to be part of the system, that had been
severed in several places. Inspector Caudill also testified that
when he arrived at the surface, he observed that the key to the
sensor system was "turned off." (Tr. 113.)
The Respondent contends that wires are frequently severed in
the mine and are replaced, but not removed, and that there was an
active wire for the system. He also maintains that the key that
Caudill observed to be off, does not turn off the system, but
only turns off the sirens.
Inherent in section 75.1103-1 is a requirement that the
system be functional. Cf. Western Fuels-Utah, Inc., 19 FMSHRC
994, 998 (June 1997) (requirement that conveyor belt be equipped
with slippage and sequence switches means functional switches);
Fluor Daniel, Inc., 18 FMSHRC 1143, 1145-46 (July 1996)
(requirement that self-propelled mobile equipment be equipped
with a service brake system means functioning system); Mettiki
Coal Corp., 14 FMSHRC 760, 768 (May 1991) ("switches to be used
to lock out electrical equipment must be equipped with
functioning lockout devices") (emphasis added). For whatever
reason, when tested, the system did not function.
Consequently, I conclude that the Respondent violated
section 75.1103-1.
Significant and Substantial
The inspector found this violation to be "significant and
substantial." Considering the accumulations along the belt lines
and the ignition sources present, it takes little imagination to
find that this violation was reasonably likely to result in a
serious injury, in the normal course of mining. Therefore, I
conclude that the violation was "significant and substantial."
Civil Penalty Assessment
The Secretary has proposed a penalty of $642.00 for these
violations. However, it is the judge's independent
responsibility to determine the appropriate amount of penalty in
accordance with the six penalty criteria set out in section
110(i) of the Act, 30 U.S.C. � 820(i). Sellersburg Stone Co. v.
FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984); Wallace Brothers,
Inc., 18 FMSHRC 481, 483-84 (April 1996).
In connection with the civil penalty criteria, the parties
have stipulated, and I so find, that: (1) The Respondent
"demonstrated good faith in abating" the violations; (2)
"Reasonable penalties will not affect the ability of [the
company] to remain in business;" (3) The "No. 3 Mine is a small
size coal mine;" and (4) "Williams Brothers Coal Company is a
small size mine operator." (Jt. Ex. 3.) Based on the
Respondent's Assessed Violation History Report, (Jt. Ex. 2), I
find that the Respondent has a good previous violation history.
I agree with the inspectors that the operator's negligence
for all of the violations was "moderate," with the exception of
Citation No. 7349834, the mine map violation, where I find that
it was "low." With regard to gravity, I find that the gravity of
Citation Nos. 4515014, 4515016 and 7349838 was serious and with
regard to the remaining citations it was not so serious.
Taking all of these criteria into consideration, I assess a
civil penalty of $561.00, broken down as follows:
Citation No. Penalty
4515012 $ 55.00
4515013 $ 55.00
4515014 $ 97.00
4515015 $ 55.00
4515016 $ 97.00
4515017 $ 55.00
7349834 $ 50.00
7349838 $ 97.00
Total $561.00
Order
Citation Nos. 4515012, 4515015, 4515016 and 7349838 are
AFFIRMED; Citation No. 4515014 is MODIFIED, in accordance with
the motion of the Secretary granted at the hearing, in section
10, to state that an injury is "reasonably likely" and that the
violation is "significant and substantial" and is AFFIRMED as
modified; Citation Nos. 4515013 and 4515017 are MODIFIED by
deleting the "significant and substantial" designations and are
AFFIRMED as modified; and Citation No. 7349834 is MODIFIED by
reducing the level of negligence from "moderate" to "low" and is
AFFIRMED as modified.
Williams Brothers Coal Co., Inc., is ORDERED TO PAY a civil
penalty of $561.00 within 30 days of the date of this decision.
T. Todd Hodgdon
Administrative Law Judge
Distribution:
J. Phillips Giannikas, Esq., Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215 (Certified Mail)
Hufford Williams, President, Williams Brothers Coal Company,
Inc., 258 Cantrell Road, Mouthcard, KY 41548 (Certified Mail)
/nj
**FOOTNOTES**
[1] In support of his opinion, the Respondent submitted a
copy of a January 2, 1979, letter from the Administrator for Coal
Mine Safety and Health to J. and R. Manufacturing, Inc. (Resp's
Ex. A.) However, since the letter concerns the propriety of
using the connector housing between male and female battery
connectors for grounding purposes, it is not relevant. Moreover,
to the extent that it deals at all with grounding between the
charger and the carrier, the diagram on page 4 indicates that
there should be a "[g]rounding conductor from the battery charger
frame to battery tray(s)." (Id.)
[2] Mr. Williams admitted that he would not have presented
any different evidence than he did, if the citation had
originally alleged that the violation was S&S. (Tr. 189.) As
the company clearly suffered no prejudice by amending the
citation, I granted the motion. Cyprus Empire Corporation, 12
FMSHRC 911, 916 (May 1990).
[3] Section 77.800-1 requires, in pertinent part, that:
"(a) Circuit breakers and their auxiliary devices protecting
high-voltage circuits to portable or mobile equipment shall be
tested and examined at least once each month . . . ." Section
77.800-2 provides that: "The operator shall maintain a written
record of each test, examination, repair, or adjustment of all
circuit breakers protecting high-voltage circuits. Such record
shall be kept in a book approved by the Secretary."
[4] The operator questions whether as many rollers as
claimed by the inspectors were defective. He never asserted,
however, that none were defective, and the examination book
pages, as well as his testimony, indicate that the company was
aware that some were bad. The exact number makes no difference
in whether this was a violation.
[5] Section 75.1103-5, 30 C.F.R. � 75.1103-5, provides, in
pertinent part, that:
(a) Automatic fire sensor and warning
device systems shall upon activation provide
an effective warning signal at either of the
following locations:
(1) At all work locations where men may
be endangered from a fire at the belt flight;
or
(2) At a manned location where
personnel have an assigned post of duty and
have telephone or equivalent communication
with all men who may be endangered.