<DOC>
[DOCID: f:kt99182.wais]
LODESTAR ENERGY, INC.
February 28, 2000
KENT 99-182
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041
February 28, 2000
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 99-182
Petitioner : A. C. No. 15-13920-03925
v. :
: Docket No. KENT 99-212
LODESTAR ENERGY, INC., : A. C. No. 15-13920-03927
Respondent :
: Wheatcroft Mine
DECISION
Appearances: J. Phillip Giannikas, Esq., Office of the
Solicitor, U.S. Department of Labor, Nashville,
Tennessee;
Richard M. Joiner, Esq., Mitchell, Joiner &
Hardesty, P.S.C., Madisonville, Kentucky, for
Respondent.
Before: Judge Hodgdon
These consolidated cases are before me on Petitions for
Assessment of Civil Penalty filed by the Secretary of Labor,
acting through her Mine Safety and Health Administration (MSHA),
against Lodestar Energy, Inc., pursuant to section 105 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 815.
The petitions allege two violations of the Secretary's mandatory
health and safety standards and seek penalties of $797.00. A
hearing was held in Evansville, Indiana. For the reasons set
forth below, I modify the two orders to citations and assess
penalties of $205.00.
Background
The Wheatcroft Mine is an underground coal mine owned by
Lodestar Energy, Inc., and located in Webster County, Kentucky.
The mine is operated by Green Pond Energy Corporation under
contract with Lodestar.
On November 24, 1998, MSHA Inspector Archie Coburn went to
the mine to conduct a quarterly inspection, customarily referred
to as a "Triple A" inspection. He accompanied Lodestar Fire Boss
Dennis Marsili to examine the air courses and seals in the
inactive area of the mine.[1] While they were crawling through
the cross-cut going toward the first seal of the No. 6 set of
seals, Marsili informed the inspector that the roof in that area
was getting heavy, that he had written in the mine book that
additional support was needed and that he had orally informed
Charlie Dame, the Safety Director for Green Pond, of the
situation.
On hearing this, Inspector Coburn examined the area after he
got through it. He observed that the roof was sagging six to
eight inches in various locations in an area that was
approximately 40 feet long and 20 feet wide. When he got back to
the surface, the inspector checked the weekly examination book
which had the following entry for the previous week:
Walked ret O/C[2] from #5 seals up to ret O/C
0.1% 20.6%; across and down through #4 seals
0% 20.7% 7:47 am/10:28 am 11-17-98. No
hazards observed. DFM
NOTE: The top in x-cut in front of #1 seals
#6 set, to next entry needs extra support -
top getting heavy. 11-17-98 DFM
(Govt. Ex. 5 at 4.) The initials DFM are Marsili's.
Inspector Coburn then asked Jess O'Rourke, Green Pond
General Superintendent, when they were going to add support to
the area. O'Rourke questioned Charlie Dame about the situation
and Dame advised him that he had told David Weinbarger, Lodestar
Mine Manager, and Kevin Vaughn, Lodestar Safety Director, about
the condition, but that Weinbarger was on vacation and nothing
had been done.
Based on these facts, Inspector Coburn issued Order No.
4274546 alleging a violation of section 75.364(d) of the
Secretary's regulations, 30 C.F.R. � 75.364(d), because:
The hazardous condition recorded in the
mine book provided for weekly examination has
not been corrected. The examiner recorded in
the mine book on 11/17/98 that additional
roof support was needed in the entry outby
the No. 1 seal in the No. 6 set of seals,
that the top was getting heavy. Several of
Lodestar management were informed of the
hazardous condition on 11/17/98. As of
11/24/98 no corrective action has been made.
Some draw rock has already fallen in the
area.
(Govt. Ex. 3.)
On January 19, 1999, MSHA Inspector Robert Simms was
conducting a ventilation review at the Wheatcroft Mine. While
going through the weekly examination books, he discovered
numerous record-keeping errors for which he issued citations not
involved in this proceeding. He returned the following day to
examine the books more thoroughly. In trying to match the areas
shown on the mine map with the notations in the examination
books, he discovered that entries were not being made for some
areas in the mine and that this had occurred for a period of
several weeks.
As a consequence, Inspector Simms issued Order No. 4275621
charging a violation of section 75.364(h), 30 C.F.R. � 75.364(h),
in that:
There is no record showing that the
return air course has been traveled from the
#2 seals to the #3 seal and from the #6 seal
toward the #2 belt entry. There is also no
record showing that the Intake and Return of
the Main North Parallels have been made. At
the completion of any shift during which a
portion of a weekly examination is conducted,
a record of the results of each weekly exam .
. . shall be made.
(Govt. Ex. 6.) The order was subsequently modified to delete the
first sentence concerning the "#2 seals to the #3 seal" and "the
#6 seal toward the #2 belt entry." (Id. at 2.)
Order No. 4274546 makes up Docket No. KENT 99-182 and Order
No. 4275621 is found in Docket No. KENT 99-212. Since the two
violations are not related, they will be discussed separately.
Findings of Fact and Conclusions of Law
Order No. 4274546
Section 75.364(d) provides, in pertinent part, that:
"Hazardous conditions shall be corrected immediately." It is the
company's position that the sagging roof was not a "hazardous
condition." I find that it was and that the company violated the
regulation by not adding additional roof support.
At the hearing, everyone agreed that there is no way to know
when a sagging roof is going to fall. It could fall sooner or
later, with later being months or years later.
Marsili testified that his main concern was that if the roof
did fall it would affect ventilation, not that he would be caught
in the fall. According to him, he did not consider this to be a
hazard, but was notifying management of the condition so they
could add the roof support and the ventilation system would not
be affected.[3] Dame testified that based on Marsili's entry in
the examination book, and his discussion with Marsili, he was of
the same opinion. On the other hand, Inspector Coburn testified
that the roof was hazardous because it could fall on a mine
examiner traveling through the area.
Section 75.364(d) does not define the term "hazardous
condition." Nonetheless, the Commission, in discussing the
same term concerning section 75.360(b), 30 C.F.R. � 75.360(b),[4]
noted that it had
recognized in National Gypsum [Cement
Division, National Gypsum Co., 3 FMSHRC 822
(April 1981)] that, based on its dictionary
definition, a "hazard" denotes a measure of
danger to safety or health. 3 FMSHRC at 827
& n.7. The Commission has approved the
definition of "hazard" as `a possible source
of peril, danger, duress, or difficulty,' or
`a condition that tends to create or increase
the possibility of loss.' Id. (citing
Webster's Third New International Dictionary
1041 (1971).
Enlow Fork Mining Co., 19 FMSHRC 5, 14 (January 1997).
While it may not have been likely that the roof would fall
on the examiner since he was only in the area once a week, it was
certainly a possibility. Thus, it was a possible source of
peril, danger, duress or difficulty as well as a condition that
tended to create or increase the possibility of loss and,
therefore, involved a measure of danger to safety. Consequently,
I conclude that the roof was a hazardous condition.
The regulation requires that hazardous conditions be
corrected "immediately." In this case, no one would be traveling
the area until the next week. Accordingly, I find that for this
violation, "immediately" means before anyone is in the area
again. Since no roof support had been added before Marsili and
the inspector went into the cross-cut, I conclude that the
company violated section 75.364(d).
Unwarrantable Failure
This order was issued under section 104(d)(2) of the Act, 30
U.S.C. � 814(d)(2). That section provides that:
If a withdrawal order with respect to
any area in a coal or other mine has been
issued pursuant to paragraph (1), a
withdrawal order shall promptly be issued by
an authorized representative of the Secretary
who finds upon any subsequent inspection the
existence in such mine of violations similar
to those that resulted in the issuance of the
withdrawal order under paragraph (1) until
such time as an inspection of such mine
discloses no similar violations. Following
an inspection of such mine which discloses no
similar violations, the provisions of
paragraph (1) shall again be applicable to
that mine.[5]
To establish that a violation comes within section
104(d)(2), the Secretary must prove three things: "(1) a valid
underlying section 104(d)(1) withdrawal order; (2) a violation of
a mandatory safety or health standard caused by unwarrantable
failure; and (3) the absence of an intervening clean inspection."
Cyprus Cumberland Resources Corp., 21 FMSHRC 722, 725 (July 1999)
(citation omitted); Kitt Energy Corp., 6 FMSHRC 1596, 1600 (July
1984). In this case, the Secretary did not present any evidence
concerning the absence of an intervening clean inspection. Nor
is there any evidence in the record from which such a finding can
be inferred. Consequently, I conclude that this violation does
not come within the purview of section 104(d)(2).
The order will be modified accordingly. In this regard, it
cannot be modified to a section 104(d)(1) order because there is
no evidence that this order was issued within 90 days of a
104(d)(1) citation. Indeed, the assumption is that it was not
since in that case it should have originally been issued as a
104(d)(1) order rather than a 104(d)(2) order. Nor can it be
modified to a 104(d)(1) citation inasmuch as the parties
stipulated that the violation was not "significant and
substantial." (Tr. 14-15.) Hence, it will be modified to a
104(a) citation, 30 U.S.C. � 814(a).
Order No. 4275621
Section 75.364(h) requires, in pertinent part, that: "At
the completion of any shift during which a portion of a weekly
examination is conducted, a record of the results of each weekly
examination, including a record of hazardous conditions found
during each examination and their locations, the corrective
action taken, and the results and location of air and methane
measurements, shall be made." The Respondent argues that the
regulation was not violated. I find that it was.
After the order was modified, the only violation alleged is
that there was "no record showing that the Intake and Return of
the Main North Parallels have been made." The parties agree that
the air courses had, in fact, been made. Thus, this violation
is, as depicted by Inspector Simms, a "bookkeeping" violation.
The company argues that because no hazardous conditions were
observed and no measurements of air and methane were required in
these areas, the examiner had not failed to follow the regulation
when he did not make any entry for the intake and return air
courses in the Main North Parallel. However, the regulation
requires that the "results" of the examination be recorded. The
fact that no hazardous conditions were observed is a result of
the examination. Therefore, it should have been recorded.
Additionally, as Inspector Simms testified, making such an entry
allows someone reading the examination book to verify that the
required examinations were being performed.
For these reasons, I conclude that the Respondent violated
section 75.364(h) when the examiner did not record the results of
his examination of the intake and return air ways in the Main
North Parallel.
Unwarrantable Failure
Like the previous order, this one was lodged under section
104(d)(2). For the same reason that I found that the Secretary
did not demonstrate that the other order was properly issued
under that section, that there is no evidence of the absence of
an intervening clean inspection, I conclude that this order was
not properly issued under section 104(d)(2). Accordingly, as
with the previous order, this violation will be modified to a
104(a) citation.
Civil Penalty Assessment
The Secretary has proposed penalties of $797.00 for these
two 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 penalty criteria, the parties have
stipulated that a reasonable penalty will not affect the ability
of Lodestar to remain in business, that the Wheatcroft mine
produces 342,117 tons of coal per year and that Lodestar produces
9,387,053 tons of coal per year. (Tr. 14.) From this I conclude
that Lodestar's ability to remain in business will not be
adversely affected by the penalties in these cases and that the
mine is a medium size mine, while Lodestar is a large operator.
Based on the company's Assessed Violation History Report and
the Proposed Assessment documents in this case, I find that
Lodestar has an average history of prior violations. (Govt. Exs.
1 & 2.) I further find from the evidence of record that the
company demonstrated good faith in attempting to achieve rapid
compliance after being notified of the violations.
As previously noted, the parties stipulated that neither of
these violations were "significant and substantial." (Tr. 14-
15.) Therefore, I find that the gravity of these violations is
not very high.
Finally, with regard to the negligence involved in these
violations, I find that the company was moderately negligent in
not adding roof support in the cross-cut before the No. 1 seal in
the No. 6 set of seals. I make this finding based on the fact
that the violation was not S&S, that the area was only traveled
once a week, and that Marsili apparently indicated to the company
that the matter was not urgent. I find that the negligence
involved in the bookkeeping violation was low in view of the
facts that the decision not to enter negative findings was not an
unreasonable interpretation of the regulation and that several
other inspectors had reviewed the examination books and had not
alerted the company to the deficiency.
Taking all of these factors into consideration, I conclude
that a penalty of $150.00 is appropriate for Citation No.
4274546. I find a penalty of $55.00 to be appropriate for
Citation No. 4275621.
Order
Order No. 4274546 in Docket No. KENT 99-182 is MODIFIED to a
104(a) citation by deleting the "unwarrantable failure"
designation and by reducing the level of negligence from "high"
to "moderate," and is AFFIRMED as modified; Order No. 4275621 in
Docket No. KENT 99-212 is MODIFIED by deleting the "unwarrantable
failure" designation and reducing the level of negligence from
"high" to "low," and is AFFIRMED as modified.
Lodestar Energy, Inc. is ORDERED TO PAY a civil penalty of
$205.00 within 30 days of the date of this decision.
T. Todd Hodgdon
Administrative Law Judge
Distribution:
J. Phillip Giannikas, Esq., Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215-2862 (Certified Mail)
Richard M. Joiner, Esq., Mitchell, Joiner & Hardesty, P.S.C.,
113 East Center Street, P.O. Box 659, Madisonville, KY 42431
(Certified Mail)
/nj
**FOOTNOTES**
[1] The responsibility for maintaining the inactive areas
was Lodestar's rather than Green Pond's. (Tr. 123.)
[2] O/C stands for "overcast."
[3] I find it curious that Marsili made it a point of
informing the inspector of the situation, if this was his only
concern.
[4] 75.360(b) states: "The person conducting the preshift
examination shall examine for hazardous conditions . . . ."
[5] Section 104(d)(1), 30 U.S.C. � 814(d)(1), states:
If, upon any inspection of a coal or
other mine, an authorized representative of
the Secretary finds that there has been a
violation of any mandatory health or safety
standard, and if he also finds that, while
the conditions created by such violation do
not cause imminent danger, such violation is
of such nature as could significantly and
substantially contribute to the cause and
effect of a coal or other mine safety or
health hazard, and if he finds such violation
to be caused by an unwarrantable failure of
such operator to comply with such mandatory
health or safety standards, he shall include
such finding in any citation given to the
operator under this Act. If, during the same
inspection or any subsequent inspection of
such mine within 90 days after the issuance
of such citation, an authorized
representative of the Secretary finds another
violation of any mandatory health or safety
standard and finds such violation to be also
caused by an unwarrantable failure of such
operator to so comply, he shall forthwith
issue an order requiring the operator to
cause all persons in the area affected by
such violation, except those persons referred
to in subsection (c) to be withdrawn from,
and to be prohibited from entering, such area
until an authorized representative of the
Secretary determines that such violation has
been abated.