<DOC>
[DOCID: f:l97-46.wais]
PEABODY COAL COMPANY
April 14, 1998
LAKE 97-46
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
April 14, 1998
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION, (MSHA) : Docket No. LAKE 97-46
Petitioner : A.C. No. 11-02440-03776
v. :
: Marissa Mine
PEABODY COAL COMPANY, :
Respondent :
DECISION
Appearances: Gay F. Chase, Esq., Office of the Solicitor,
U. S. Department of Labor, Chicago, Illinois,
for the Secretary;
Caroline A. Henrich, Esq., Peabody Coal Company,
Charleston, West Virginia, for Respondent.
Before: Judge Weisberger
This civil penalty proceeding, commenced by the Secretary of
Labor (Petitioner) by the filing of a Petition for Assessment of
a Penalty, presents, as the only issue for resolution, whether an
MSHA inspector abused his discretion when he issued an order,
pursuant to Section 104b of the Federal Mine Safety and Health
Act of 1977 ("the Act") to Peabody Coal Company (Respondent)
based on his determination that a previously issued citation
alleging a violation of 30 C.F.R. Section 75.400 had not been
abated, and an extension in abatement time was not warranted.[1]
Subsequent to notice, the case was heard in St. Louis, Missouri,
on October 28-29, 1997. On February 27, 1998, the parties each
filed proposed findings of fact and a brief. On March 24, 1998,
reply briefs were filed by the parties.
**FOOTNOTES**
[1]: At the hearing, the parties advised that they had
reached a settlement regarding the remaining citation in this
case, No. 4575855. A motion to approve the settlement was filed
on February 27, 1998, along with Petitioner's brief.
Findings of Fact and Discussion
I. Petitioner's Evidence
Respondent operates the Marissa mine, an underground coal
mine. On November 25, 1996, Ronald Zara, an MSHA inspector,
inspected a No. 26 Simmons Rand Scoop that was located inby the
005 working section in the 3 West Section of the mine. At
approximately 6:00 p.m., he observed that there were various
permissibility violations on the scoop, and it was leaking oil in
several places. He issued citations for these conditions, and
these citations are not at issue herein. Upon closer
examination of the scoop, Zara found pooled hydraulic oil, as
well as oil saturated coal dust and gob up to 1 inch deep on the
valve bank compartment floor. He observed hydraulic oil running
off the scoop and pooling on the cab floor, as well as
accumulations of oil-soaked coal on the cab floor. In the pump
compartment he observed numerous oil leaks causing an
accumulation of oil. He said that the material that he observed
on the floor was primarily saturated gob with some coal, and coal
dust and oil "puddled up" (Tr. 37). He said that he measured the
accumulations with a 3-inch probe and it was found to be up to
2 inches deep. According to Zara, he reached into all these
three areas, felt the material that had accumulated, and
concluded it consisted of oil saturated coal, and coal dust.
Zara issued Citation No. 4575486 alleging a significant and
substantial violation of 30 C.F.R. 75.400. Respondent does not
contest these findings.
According to Zara, upon issuance of the permissibility,
leaking, and accumulation citations, he met with B.J. Williams,
the face boss. It was agreed that the permissibility and leaking
violations would be abated by midnight, and the accumulation
violation would be abated by 8:00 a.m., on November 26. Later on
that evening, Zara met with Melvin R. Kiehna the mine manager,
and informed him that the abatement for the accumulations had
been set for 8:00 a.m., and asked him to so inform the next shift
manager. According to Kiehna, he told Zara that the oil leaks
and the permissibility violations would be immediately worked on
to be abated, and that he would make every effort to clean the
accumulations by 8:00 a.m. There is no evidence that either
Kiehna, Williams, or any other of Respondent's agents sought an
abatement time beyond 8:00 a.m., or indicated that the 8:00 a.m.
deadline was not reasonable or feasible.
On the morning of November 26, Zara returned to the mine and
went underground. Zara was accompanied by William Mulholland,
the Union safety committee man, but was not accompanied by anyone
representing the Respondent. At approximately 8:30 a.m., he
observed that the subject scoop had been moved approximately
75 feet outby. No one was working on the scoop at the time. Two
miners, William Gibson and James Van Doren were in the area of
the scoop. When asked whether they were sent to wash the scoop,
they informed Zara that they were told only to put the scoop back
in service if he were to abate the violation. They also informed
him that after they arrived on the section at approximately
7:30 a.m., no one worked on cleaning the scoop.
Zara spent approximately 15 minutes examining the scoop. He
noted that the permissibility violative condition and the leaks
had been repaired, and he abated those citations. According to
Zara, there was evidence that the scoop had been washed and the
oil that had pooled was no longer present. However, he indicated
that, in general, the same accumulations still existed in the
same amounts as observed by him on November 25. Specifically, he
testified that up to 1 inch of the materials remained in the
valve bank compartment, that there was up to 1 inch of oil soaked
coal around the perimeter of the cab, and there was solid and
semi solid combustible material up to 2 inches deep in the pump
compartment. Zara reached into the scoop at the junction of the
cab and pump compartment, and took a large handful of material.
He characterized the material as being clay-like. Zara testified
that he formed a ball of the material and squeezed it. He said
that oil exuded out of the material, and ran down his arm. He
opined that the material was combustible based upon his
experience, and "the appearance of the material" (Tr. 55). He
said he had felt it, looked at it, and smelled it.
According to Zara, in essence, he decided to verbally issue
a section 104(b) order to Mulholland, as the abatement time
period had expired, and the combustible materials that he had
cited on November 25, still existed in the same amounts and in
the same areas. In this connection, he indicated that the same
fire hazards contributed to by the violative conditions on
November 25, still remained the next morning. He noted that the
presence of moving parts in the pump compartment in combination
with heat generated by the pump, constituted an ignition source.
He opined that since the accumulations contacted the drive shaft
motor, electrical conduits, and hydraulic hoses, all of which
generate heat " to some degree," the accumulations could have
ignited.
According to Zara, he considered granting an extension of
the abatement time but decided not to. This decision was based
on the following considerations: no one was working to abate the
violation when he arrived, and no abatement efforts were
performed subsequent to 7:30 a.m.[2] On November 26, none of
Respondent's agents requested an extension, none of Respondent's
agents informed him that there were any problems abating the
violation, and none of Respondent's agents explained to him why
the scoop had not been cleaned better.
According to Zara, when he was tagging the scoop after he
had orally issued the 104(b) order to Mulholland, Jeffrey Gurley,
the safety supervisor, approached him and said, ". . . you don't
have to do this. We will go ahead and finish cleaning this
machine" (Tr. 116). Zara testified that he asked Gurley why they
had not done the job correctly to begin with, and Gurley said
that he did not know.
II. Respondent's Evidence
At approximately 9:00 p.m., on November 25, Melvin R.
Kiehna, the mine manager of the 4 p.m. to 2 a.m. shift informed
Dennis Gladson, the third shift mine manager, that work was in
progress abating the permissibility and oil leak violations, but
that the scoop needed to be washed to abate the accumulation
violation. Gladson said he selected David Bottrell to clean the
scoop as he's "very very good at what he does" and "will spend
all day on whatever he's doing until it's done" (Tr. 356).
Gladson then informed James Park, the repair foreman, of the work
that had to be done. Park assigned Bobby Hicks, a repairman, to
work on abating the oil leaks and permissibility violations as a
priority. Hicks testified that when he observed the scoop at
approximately 10:35 p.m., on November 25, it contained dirt,
shale, slate, fine clay, "probably even some coal" (Tr. 298), and
oil leaks. Hicks finished abating the oil leaks and
permissibility violations at approximately midnight. He then
attempted to turn on the high pressure washer for Bottrell, but
the breaker did not stay on. Hicks then informed Park of the
problem, and told him that they needed another washer. Park, who
was then in another unit, checked out the washer located there,
and directed that it be hauled back to where the scoop was
located. The washer arrived at about 1:00 a.m. at which point
Bottrell commenced cleaning the scoop.
Bottrell described the scoop as being dirty, and greasy. He
said the scoop had oil and coal on it. Bottrell used a detergent
(swoop) to loosen the oil. According to Bottrell, he sprayed the
cab with a pressure washer until it was clean. He indicated that
after he finished, the area looked clean. He was asked whether
he saw any oil or grease on the floor and he said "not that I
remember" (Tr. 387). He indicated that there was no oil on the
hoses and conduits after he finished washing them. He stated
that after he cleaned the valve bank compartment no oil or coal
remained. According to Bottrell, he cleaned the scoop
continuously for 3 to 4 hours. He indicated that when he
finished cleaning the scoop it looked clean, and no additional
cleaning was necessary.
Gladson testified that at approximately 5:00 a.m., on
November 26, he checked the scoop and found that an area adjacent
to the valve bank compartment was not yet washed, and he told
Bottrell to wash it. Gladson indicated that he could see the
floor of the pump compartment, and did not see any oil or
combustible material. He indicated that he did not see oil or
grease in the cab. He said he was able to see the floor of the
valve compartment, and he did not see any oil coal or combustible
substances. According to Gladson, he saw the distinctive color
of the hoses, and there were no accumulations around them. He
told Bottrell he had done a good job.
Hicks saw the scoop again at approximately 5:30 a.m., and
indicated that it "looked a lot better" (Tr. 307). According to
Hicks, the coal, slate, and oil that he had previously observed
was no longer present. He indicated that he did not see 2 inches
of oil and coal, and the other conditions set forth in Zara's
section 104(b) order. However, on cross-examination, it was
elicited that when he looked in the scoop after it had been
washed, he could not see the floor of the valve bank and pump
compartments, as it was covered with water. He indicated that he
did not believe that he looked in the cab after Bottrell
completed cleaning the scoop.
James Park, a repair foreman, testified that when he was in
the area of the scoop sometime around 5:30 a.m., on November 26,
Bottrell told him that he had finished washing the scoop and he
(Park) checked it out. He indicated that the hoses on the valve
bank compartment floor were visible and clean, and he did not see
oil or grease on the floor. He told Bottrell that he had done a
good job. He indicated that he did not see the pump motor
compartment.
Gurley, who was present on November 26, testified that he
saw Zara pick up some material from the area at the junction
between the cab and the pump compartment, and it looked like mud.
According to Gurley, he saw muddy water run down the arm of Zara,
and he did not see any oil or coal. Gurley indicated that after
the section 104(b) order was issued, he examined the scoop
before it was cleaned by Dale Harstick. He was asked if he saw
2 inches of oil soaked coal and hydraulic oil on the compartment
floor. He answered as follows: "If there had been two inches
there, those half inch hoses would have been covered by an inch
and a half" (Tr. 249). He also indicated that he did not see
coal or oil soaked gob in the pump and valve bank compartments.
Before Respondent cleaned the scoop to abate the
section 104(b) order, Gurley took photographs of the affected
areas. He testified that the pictures depict, inter alia, hoses
that were not covered with accumulations (Ex. R2-9).
Melvin R. Kiehna, the mine manager of the
4:00 p.m. to 2:00 a.m. shift, observed the accumulations on
November 25, but not on November 26. He compared the conditions
he had observed to photographs of the cab (Ex. R2), taken on
November 26, prior to the cleaning of the scoop. According to
Kiehna, there were accumulations in the cab on November 25, which
do not appear in the photograph.
Hicks compared a picture of the pump compartment taken on
November 26, to what he had observed on November 25, before the
scoop was washed. He stated that in contrast to the picture, on
November 25, there was a lot of oil at the bottom of the
compartment and the hoses could not be seen. He also stated that
on November 25, when he observed the area across from the
operator's cab before it was washed, he "couldn't hardly see any
hoses" (Tr. 313), and there was "a lot" of coal and "quite a bit
of oil," especially on the floor (Tr. 313). In contrast he said
that a photograph taken on November 26, shows hoses that appear
to had been cleaned. Hicks examined a photograph, taken on
November 26, of the valve bank compartment that he had observed
on November 25. He indicated that the loose material consisting
of coal, fine clay, slate, and oil which he had noted then was
not present in the picture. Similarly, he testified that on
November 25, he observed oil, and accumulations on hoses and
components under the valve bank, which were not apparent in the
pictures taken on November 26.
**FOOTNOTES**
[2]: On cross examination, Zara indicated that when he
issued the 104(b) order he did not know what action Respondent
took after he had written the original citation on the evening of
November 25. Only after he issued the 104(b) order, on the
afternoon of November 26, he was informed that a miner had worked
approximately 4 hours after midnight November 26 cleaning the
scoop, and that this worker had to obtain a washer from another
section as there were problems with the washer on the subject
section.
Dale Harstick, a roof bolter, cleaned the scoop after the
section 104(b) order was issued. He indicated that he spent most
of his time cleaning the cab and the pump compartments with a
high pressure washer. He described the materials located there
as a mixture of fire clay, wet rock dust, and a black substance
that could have been coal or slate. He said that he worked on
the scoop for about 3 to 4 hours.
III. Discussion
A. Applicable Law
Section 104(b) of the Act provides as pertinent, as follows:
If, upon any follow-up inspection of a coal or
other mine, an authorized representative of the
Secretary finds (1) that a violation described in a
citation . . . has not been totally abated within the
period of time as originally fixed therein or as
subsequently extended, and (2) that the period of time
for the abatement should not be further extended, he
shall determine the extent of the area affected by the
violation and shall promptly issue an order requiring .
. . all persons . . . to be withdrawn from . . . such
area. . . .
In Mid-Continent Resources, Inc., 11 FMSHRC 505, 509 (1989)
the Commission held, in interpreting section 104(b), supra, as
follows:
When the validity of a section 104(b) order is
challenged by an operator, it is the Secretary, as the
proponent of the order, who bears the burden of proving
that the violation described in the underlying citation
has not been abated within the time period originally
fixed or as subsequently extended. We hold, therefore,
that the Secretary establishes a prima facie case that
a section 104(b) order is valid by proving by a
preponderance of the evidence that the violation
described in the underlying section 104(a) citation
existed at the time the section 104(b) withdrawal order
was issued. The operator may rebut the prima facie
case by showing, for example, that the violative
condition described in the section 104(a) citation had
been abated within the time period fixed in the
citation, but had recurred.
B. Analysis
1. Abatement of the violative conditions described in the
citation issued on November 25
I observed Bottrell's demeanor and found his testimony
credible that he spent approximately 4 hours after 1:00 a.m.,
November 25, cleaning the accumulations in the scoop with a high
pressure washer and a detergent solution. Since Petitioner did
not proffer any direct testimony to contradict Bottrell, nor did
Petitioner impeach or rebut this testimony, I accept it.
Further, Respondent's witnesses who observed the scoop after it
was cleaned testified that there were no accumulations of oil
saturated material in the areas cited by Zara on November 25.
However, it is significant to note that Kiehna, Hicks, and Park
did not inspect all of the areas that were cited by Zara. On the
other hand, on November 26, Zara spent approximately 15 minutes
inspecting the areas he previously cited. Further, his opinion
that the material that remained was still saturated with oil, was
based upon the fact that he reached into the material squeezed it
and noted that oil ran out of it. He further explained that his
conclusion that it was oil, was based on his experience and the
fact that he smelled it. Mulholland essentially corroborated
Zara's observations. Also, he took a sample of the material and
rubbed it between his fingers. He stated that ". . . it was
obvious to see that there was oil running out of it" (Tr. 165).
In contrast, Gurley, who opined that the liquid that ran out of
the material when squeezed by Zara was water and not oil, neither
touched nor smelled the material. I thus do not accord much
wieght to his testimony, and give more weight to Zara's testimony
based on the extent of his observations and examinations of the
conditions at issue.
On November 26, Gurley took photographs of the conditions in
the scoop at the areas cited by Zara on November 25. Gurley,
Kiehna, Hicks, and Bottrell all interpreted the photographs and
indicated that the accumulations observed on November 25, could
not be seen in these pictures. However, I do not assign much
probative weight to the pictures due to their lack of depth, and
the presence of shadows which obfuscates the clarity of the
photographed items. Further, it is significant that whereas Zara
was convincing in his testimony regarding accumulations that were
still present on the floor in the three compartments cited, the
pictures do not depict the floor. For all these reasons, I find
that although Respondent clearly acted in good faith, not all the
accumulations cited by Zara on November 25, were eliminated by
9:00 a.m., on November 26. I conclude that the violative
conditions described in the underlined citations were not
completely abated within the time originally set for abatement
i.e., 8:00 a.m. See, Martinka Coal Co., 15 FMSHRC 2452 (1993).
2. Extension of the abatement.
At issue is whether Zara acted unreasonably on November 26,
in not extending the time for abatement. Fore the reasons
that follow, I find that Zara's failure to extend the time
for abatement was reasonable.
The original time set for abatement i.e., 8:00 a.m.,
November 26, was set by Zara upon talking with Kiehna and
Gurley. Neither of them, nor any other representative, or
Respondent requested that the abatement should be set for a
later time. When Zara arrived at the section at
approximately 9:00 a.m., on November 26, and observed
accumulations that had not been abated, no one was engaged
in washing the scoop. Also, Zara had been told by Gibson
and VanDoren that no one washed the scoop subsequent to
their arrival on the section at approximately 7:30 a.m., on
November 26. Further, based upon this information, when
Zara determined to issue a section 104(b) order, none of
Respondent's agents had requested an extension, informed him
that there were any problems with abating the violative
conditions, or explained to him why the scoop had not been
cleaned better. Moreover, according to Zara, when he was
tagging out the scoop he asked Gurley "why they had not done
the job correctly" (Tr. 116), and Gurley said he did not
know.
The failure to timely completely clean the accumulations
posed a hazard to miners. In essence, according to Zara,
the continued existence of combustible materials on
November 26, presented a fire hazard. I accept this opinion
having found above, III(B)(1), supra, that oil saturated
material still remained.
For all the above reasons, I conclude that the time set for
abatement was reasonable, and that Zara acted reasonably in
determining not to extend the time to abate the violation
previously cited on November 25.
IV. Citation No. 4575855
Petitioner filed a motion to approve a settlement agreement
regarding this citation. A reduction in penalty from $431
to $259 is proposed. I have considered the representations
and documentation submitted, and I conclude that the
proffered settlement is appropriate under the criteria set
forth in Section 110(i) of the Act. I therefore approve the
settlement and grant the motion.
ORDER
It is ORDERED that, within 30 days of this Decision,
Respondent shall pay a total civil penalty of $1,716.
Avram Weisberger
Administrative Law Judge
Distribution:
Gay F. Chase, Esq., Office of
the Solicitor, U. S. Department
of Labor, 230 South Dearborn
Street, 8th Floor, Chicago, IL
60604 (Certified Mail)
Caroline A. Henrich, Esq.,
Peabody Coal Company, P. O. Box
1233, Charleston, WV 25324
(Certified Mail)
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