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[DOCID: f:p94-259.wais]
ENLOW FORK MINING COMPANY
April 18, 1997
PENN 94-259
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
April 18, 1997
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. PENN 94-259
Petitioner : A. C. No. 36-07416-03651
:
v. :
: Docket No. PENN 94-400
ENLOW FORK MINING COMPANY : A.C. No. 36-07416-03658
Respondent :
: Enlow Fork Mine
DECISION ON REMAND
Before: Judge Weisberger
On January 15, 1997, the Commission issued a decision,
19 FMSHRC 5, in which it, inter alia, reversed my initial
determinating that the violation of 30 C.F.R. � 75.400[1] by
Enlow Fork Mining Company ("Enlow Fork") was not
significant and substantial ("S&S"), and not the result of
its unwarrantable failure. The Commission remanded this matter
to me for evaluation of all the material record evidence
relating to S&S, and for reanalysis of the issue of
unwarrantable failure.
On March 27, 1997, Enlow filed a Brief on Remand. On
April 3, 1997, Petitioner's
Brief on Remand was received.
I. Significant and Substantial
As analyzed by the Commission, the issue presented is
whether there was a reasonable likelihood that the hazard
contributed to by the accumulation violation would
result in an injury. The Commission 19 FMSHRC supra, at
9, set forth the controlling case law as follows:
An evaluation of the reasonable likelihood of
injury should be made assuming continued normal
mining operations. U.S. Steel Mining Co., 7
FMSHRC 1125, 1130 (August 1985). When evaluating
the reasonable likelihood of a fire, ignition, or
explosion, the Commission has examined whether a
"confluence of factors" was present based on the
particular facts surrounding the violation.
Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1988).
Some of the factors include the extent of
accumulation, possible ignition sources, the
presence of methane, and the type of equipment in
the area. Utah Power & Light Co., 12 FMSHRC 965,
970-71 (May 1990) ("UP&L"); Texasgulf, 10 FMSHRC
at 500-03.
In analyzing this issue, I am constrained to follow the
determination of the Commission that substantial
evidence does not support my initial finding that there
was no evidence that liberation of methane in explosive
concentrations was reasonably likely to have occurred.
The Commission's determination was based on the
inspector's testimony that the Enlow Mine is object to
a 5-day spot inspection, as it liberates more than
2,000,000 cubic feet of methane in a 24-hour period.
The Commission also indicated that I did not analyze
the inspector's testimony "that, because any methane
liberated from the face will pass through this area,
the tailgate area was a likely spot for an explosion"
(Tr. 92-93). Since this testimony was not
contradicted, I accept it.
Considering the Commission's determinations set forth
above, and the Commission's determination that, my
initial finding was not supported by substantial
evidence, I am constrained to find, upon reevaluation,
that liberation of methane in explosive concentrations
was reasonably likely to have occurred.
Further, in considering the effect of continued mining
operations, I note, the inspector's uncontradicted
testimony as follows which tends to indicate that
continued mining would create more coal dust: "When
you have loose coal established in those toes and the
shields are moving, it grinds the coal up, pulverizing
it...it's more readily put into atmosphere or
suspension . . ." (Tr. 115).
I note the confluence of the following: the existence
of accumulation of coal dust, loose coal, and oil, the
liberation of methane in the mine, the presence of rags
over the top of the fluid coupler, dry coal dust on
electrical boxes, and ignition sources including
bearings on the drive shaft, gear case, and a 4160-volt
drive motor.
Hence, upon reconsideration, and for all the above
reasons, I find that it has been established that there
was a reasonable likelihood that the hazard contributed
to by the accumulation violation would result in an
injury. Further, considering the nature of the hazard
i.e., a fire or explosion, I find that there was a
reasonably likelihood that resulting injuries would be
of a reasonably serious nature. For these reasons I
find that the violation was S&S.
II. Unwarrantable Failure
The Commission, in its decision, 19 FMSHRC supra at 12
directed as follows:
On remand, the judge should evaluate all the
evidence related to prior warnings, including the
three citations for accumulation in other areas of
the mine that were issued on October 6, 7, and 28,
1993, approximately 1 month prior to the violation
(Govt. Exs. 7, 8, 9), and Enlow's 2-year violation
history (Govt. Ex. 12). He should also discuss
all relevant evidence relating to the operator's
compliance efforts and the extensiveness of the
violation.
The Commission reiterated the applicable law as follows (19
FMSHRC, supra at 11):
In Emery Mining Corp., 9 FMSHRC 1997 (December
1987), the Commission determined that
unwarrantable failure is aggravated conduct
constituting more than ordinary negligence. Id. At
2001. Unwarrantable failure is characterized by
such conduct as "reckless disregard," "intentional
misconduct," "indifference," or a "serious lack of
reasonable care." Id.; at 2003-04; Rochester &
Pittsburgh Coal Company, 13 FMSHRC 189, 193-94
(February 1991); see also Buck Creek, 52 F.3d at
136 (approving Commission's unwarrantable failure
test). The Commission examines various factors in
determining whether a violation is unwarrantable,
including the extent of a violative condition, the
length of time that it has existed, whether the
violation is obvious, whether the operator has
been placed on notice that greater efforts are
necessary for compliance, and the operator's
efforts in abating the violative condition.
Mullins & Sons Coal Co., 16 FMSHRC 192, 195
(February 1994); Peabody Coal Company, 14 FMSHRC
1258, 1261 (August 1992); Quinland Coals, Inc., 10
FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6
FMSHRC 1596, 1603 (July 194). Repeated similar
violations may be relevant to an unwarrantable
failure determination to the extent that they
serve to put an operator on notice that greater
efforts are necessary for compliance with a
standard. Peabody, 14 FMSHRC at 1263-64.
A. Prior Warnings
Sixty-two citations or orders were issued to Enlow for
violations of Section 75.400 for the 2-year period
December 8, 1991 to December 7, 1993. Citations were
issued on October 6, 7, and 28, 1993 for accumulations
of combustible materials. MSHA Inspector Hardy
testified that after the issuance of each citation
"[w]e discussed the severity--the consequences of not
having an adequate clean-up program, mine fires,
exposure, et cetera" (Tr. 87). According to Hardy, he
told mine management on
October 7, 1993 that he was "not satisfied with the
clean-up program of the face equipment" (Tr. 88). He
testified that he told the operator that "...if
compliance wasn't gained by the citations being issued,
I would have to increase my enforcement." (Tr.88).
According to Hardy, Enlow was responsive to his
concerns, and made appropriate responses to his
citations.
MSHA supervisor Robert Newhouse stated that prior to
the issuance of the orders at issue, he had instructed
mine management on the hazards of dust accumulation.
The Commission is analyzing my initial evaluation of
the testimony of Hardy and Newhouse relating to their
discussions with management regarding inadequate clean-
up procedures stated as follows:
We agree with the Secretary that the judge
employed an incorrect legal analysis with respect
to the factor of repeated similar violations and
past warnings. The judge, discounting the
testimony of MSHA Inspectors' Hardy and Robert
Newhouse that they had met with mine management to
discuss inadequate clean-up and preshift
procedures, incorrectly characterized their
testimony as "not probative of the degree of
[Enlow's] negligence in allowing the specific
materials at issue to have accumulated." 17
FMSHRC at 568 (emphasis in original). In
evaluating evidence of prior warnings as part of
the unwarrantable failure analysis, the Commission
has not required the previous condition to involve
materials identical to those involved in the
condition at issue. (19 FMSHRC supra, at 11).
The Commission concluded as follows:
Thus, to the extent that the inspectors'
discussions with management placed Enlow on notice
of its need for greater compliance efforts with
Section 75.400, those discussions were relevant to
the unwarrantable failure evaluation and should
have been considered by the judge. (19 FMSHRC
supra, at 12).
Following the dictates of the Commission not to
discount the testimony of Hardy and Newhouse, I find that
their testimony indicates that they did put Enlow on notice
of the need for greater compliance efforts with Section
75.400, which is a factor to be considered in evaluating
unwarrantable failure.
B. Compliance efforts
Petitioner argues that Enlow did not present any
testimony that its clean-up program of hosing the
longwall area was "changed or was increased after the
inspector's original warnings in October." However, it
is significant to note that Hardy, on cross examination
indicated that once management understood what his
concerns were, they did "take steps to address those
conditions" (Tr. 146). He also indicated that after he
issued citations for accumulations in October 1993,
management did "make changes to their clean-up program"
(Tr. 146). He did not issue any subsequent
accumulation citations for the equipment cited in
October 1993. I thus find there was no aggravated
conduct involved in Enlow's compliance efforts.
C. Extensiveness of the violation
In directing me to discuss all relevant evidence
relating to the extensiveness of the violation, the
Commission indicated that I failed to consider "that it
took three to four miners 2 � hours to clean up the
accumulation" (19 FMSHRC supra at 12). This finding by
the Commission becomes the law of the case. Taking
this finding into consideration along with Hardy's
testimony that the area of accumulation of hydraulic
oil on the floor was 4 feet by 10-15 feet, that there
was coal packed on the floor to a height of 2� feet,
and that over 90 percent of the housing fuel coupler
and gear box were covered with floor dust and oil, I
find that the accumulation was extensive.
Based on all the above, upon reevaluation, and taking
into account the dictates of the Commission, I conclude
that the violation was the result of Enlow's
unwarrantable failure.
III. Penalty
In my initial decision I found that a penalty of $2,000
was appropriate, based, inter alia, upon a finding that
the gravity of the violation was relatively high. This
finding is essentially consistent with my findings
herein that the violation was S&S. Hence, the original
penalty is not to be increased due to the factor of
gravity. However, considering the degree of Enlow's
negligence, as discussed above (II, infra), I find that
the penalty I initially assessed shall be increased to
$3,000.
ORDER
It is ordered that, within 30 days of this decision, Enlow pay a
total civil penalty of $3,000 for the violation set
forth in Order No. 3660021.
Avram Weisberger
Administrative Law Judge
Distribution:
Linda Henry, Esq., U.S. Department of Labor, Office of
the Solicitor, Room 14480- Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
Elizabeth S. Chamberlin, CONSOL Inc., 1800 Washington Road,
Pittsburgh, PA 15241 (Certified Mail)
nt
**FOOTNOTES**
[1]:Section 75.400, entitled "Accumulation of combustible
materials," provides:
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 electric
equipment therein.