<DOC>
[DOCID: f:p96-221.wais]
LION MINING COMPANY
March 31, 1997
PENN 96-221
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
March 31, 1997
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION, (MSHA), : Docket No. PENN 96-221
Petitioner : A. C. No. 36-02398-03756
v. :
: Docket No. PENN 96-248
LION MINING COMPANY, : A. C. No. 36-02398-03759
Respondent :
: Grove No. 1 Mine
DECISION
Appearances: Andrea J. Appel, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania,
for the Petitioner; Joseph A. Yuhas, Esq.,
Barnesboro, Pennsylvania, for the Respondent.
Before: Judge Feldman
These consolidated civil penalty proceedings concern
petitions for assessment of civil penalties filed by the
Secretary of Labor against the respondent pursuant to section
110(a) of the Federal Mine Safety and Health Act of 1977 (the
Act), 30 U.S.C. � 820(a). These matters were called for hearing
on January 15, 1997, in Somerset, Pennsylvania.
The petition in Docket No. PENN 96-248 sought to impose a
total civil penalty of $1,128.00 for two alleged violations of
mandatory safety standards in Part 75 of the regulations.
At the hearing, the parties advised they had reached settlement
in PENN 96-248. The record was left open to enable the parties
to file a motion for approval of their agreement. The motion was
filed on January 29, 1997. The respondent has agreed to pay a
reduced civil penalty of $733.00 in satisfaction of 104(d) Order
No. 4387378 and 104(a) Citation No. 4387380. The reduction in
penalty is based on reduction in the gravity and degree of the
respondent's negligence with respect to the cited violations,
although the 104(d) Order remains unmodified. I have considered
the representations submitted in support of their agreement, and
I conclude the proffered settlement in Docket No. PENN 96-248 is
appropriate under the criteria set forth in
Section 110(i) of the Act, 30 U.S.C. � 820(i). Thus, the motion
for approval of settlement in Docket No. PENN 96-248 shall be
granted.
The petition in Docket No. PENN 96-221 seeks to impose total
civil penalties
of $1,795.00 for five alleged violations of mandatory safety
standards in Part 75 of the regulations, 30 C.F.R. Part 75.
This docket concerns four 104(a) citations and a 104(d) order.
At the hearing, the parties moved to settle the four 104(a)
citations. The settlement terms included reducing the proposed
civil penalty for the four 104(a) citations from $595.00 to
$471.00. The reduction in penalty is based on the deletion of
the significant and substantial designation for Citation Nos.
4387717 and 4387660. The parties' settlement with respect to
these four citations shall be approved.
The parties failed to reach an agreement with respect to the
remaining $1,200.00 civil penalty in Docket No. PENN 96-221
proposed by the Secretary for 104(d) Order No. 4387711. Thus,
the evidentiary hearing was limited to the propriety of Order No.
4387711. The parties' post-hearing Proposed Findings of Fact and
Conclusions of Law regarding this Order are of record.
Order No. 4387711 presents the issue of whether depositing
piles of gob, taken by scoop from the face, in unused crosscuts
off a return entry, a common and permissible industry practice,
constitutes a violation of the mandatory safety provisions of
section 75.400, 30 C.F.R. � 75.400. This mandatory standard
states:
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. (Emphasis added).
While, as alleged by the Secretary, the cited, stored
deposits may not have been adequately rock-dusted in accordance
with the provisions of section 75.403, 30 C.F. R. � 75.403, the
issue in this case is whether the cited gob material was a
prohibited accumulation under section 75.400. As discussed
below, the respondent's permissible storage of the cited piles of
gob, euphemistically characterized as by the Secretary as
"accumulations," is in glaring contradiction to the provisions of
section 75.400 that prohibit accumulations in active workings.
Consequently, Order No. 4387711 shall be vacated.
Statement of the Case
The pertinent facts in this matter are not in dispute
and can be briefly stated. Mine Safety and Health
Administration (MSHA) Inspector Rudy Kotor inspected the
respondent's Grove No. 1 Mine on April 10, 1996. Kotor was
accompanied by Mine Superintendent Russell Lambert and
Shift Foreman Kevin Sleasman. The three men traversed
the 1st Left (017) Section Immediate Return in the L2
return entry. The Immediate Return is examined weekly,
requiring an employee to travel the entire length of the
return entry. At the time of the inspection, the floor of
the L2 entry was white with rock dust.
It was the respondent's practice to deposit fallen rock and
other gob material removed from the face in unused crosscuts
off the return entry, moving in an inby direction as the
section developed. Kotor testified that gob material
deposited in crosscuts is a valid procedure that is not
prohibited by MSHA. (Tr. 154). Kotor observed a pile of
accumulations, consisting of coal dust, coal dirt and rock
in each of nine crosscuts off the L2 entry. Specifically,
Kotor observed piles of gob in the third, fifth, sixth,
seventh, eighth, ninth, tenth, eleventh and thirteenth
crosscuts. There were footprints, presumably left by the
weekly mine examiner, and scoop tire tracks on the rock
dusted floor in proximity to the nine gob piles observed by
Kotor. Based on his observations, which included
observations of dry gob piles, black in color, Kotor
concluded that, with the exception of a small portion of the
gob pile in the thirteenth crosscut, none of the gob piles
had been rock dusted.
The respondent admits that there was some coal dust content
in the gob material that was scooped up with the fallen rock
at the face. However, the respondent asserts that Kotor's
observations with respect to the degree of combustible
material was misleading because the roof rock is blackish-
grey in color. (Tr. 156).
Kotor took spot samples, consisting of several shovels of
material from various places from each of the gob piles in
the third, fifth, sixth, eighth, ninth and thirteenth
crosscuts. The samples from each gob pile were sifted
through a 20-mesh wire screen. The sifted samples were then
placed in different tagged plastic bags. The plastic bags
containing the samples were placed in the trunk of Kotor's
car on April 10, 1996, where they remained for approximately
nine months until January 6, 1997, when, in preparation for
this January 15, 1997, hearing, Kotor sent them to the
Department of Labor's laboratory for combustible content
analysis. (See Gov. Ex. 5, p.2). Kotor testified that he
had forgotten that the samples were in his automobile trunk.
Kotor issued 104(d) Order No. 4387711 on April 10, 1996,
citing a significant and substantial (S&S) violation of
section 75.400. At the hearing, the Secretary moved to
modify Order No. 4387711 by deleting the S&S designation.
(Tr. 22). Order No. 4387711 was abated by Kotor on April
12, 1996. In abating the Order, Kotor noted:
A heavy application of rock dust was applied to all (9)
gob piles[1] to maintain the accumulations to a (sic)
incombustible content along the first left (017)
Section Immediate Return air course. (Emphasis added).
(Gov. Ex. 2, p.2).
**FOOTNOTES**
[1]: Kotor repeatedly refers to the cited accumulations as
"gob piles." (See, e.g., Gov. Ex 2, Gov. Ex. 3 pp. 14(a), (b),
(c), 15, 18, 19, 20; Tr. 37, 40, 48, 49, ).
The belated laboratory results revealed incombustible
content in the seven samples varying from 14.9 per cent to
25.9 per cent. Section 75.403, not cited by Kotor, requires
incombustible content of materials in return aircourses to
be no less than 80 per cent.[2]
Findings of Fact and Conclusions
At the outset, it is important to focus on the two materials
extracted or dislodged in underground coal mining -- coal
and everything else (gob). Whether accumulations are
primarily gob, or, prohibited combustible accumulations
under Section 75.400, must be decided on a case-by-case
basis. For only combustible accumulations of coal that are
by-products of the coal extraction process, such as
accumulations of coal dust and float coal dust, are
prohibited by section 75.400. These by-products, when
"permitted to accumulate" over a period of time, in mine
areas such as the floor and ribs, without "being cleaned up"
constitute a violation of Section 75.400. Similarly, coal
dust accumulations and loose coal spillage on equipment,
such as a continuous miner, or around beltlines and rollers,
that remain unaddressed, constitute section 75.400
violations. Such combustible accumulations of coal dust and
loose coal are violative accumulations under section 75.400
regardless of whether they are permitted to remain at their
original location, or whether they are transported for
storage by scoop into crosscuts off of a return entry.
Gob is defined as material "store[d] underground, as along
one side of a working place, the rock and refuse encountered
in mining." Dictionary of Mining, Mineral and Related
Terms, U.S. Department of the Interior, 1968, p. 497.
Although gob may contain particles of coal, accumulations of
gob material are not prohibited. While the mandatory
standard in section 75.403 may require gob, depending on its
combustible content, to be rock dusted, gob, by its nature,
is not amenable to clean-up and removal.
In the instant case, by his own admission, Kotor observed
gob piles that, consistent with industry practice, were
stored in crosscuts. Kotor conceded that the roof, floor
and ribs in the immediate area in the L2 entry were rock
dusted. Although Kotor opined that the gob piles consisted
of "over half" combustible coal material, he also stated the
piles contained "some rock," including "large pieces of
rock." (Tr. 64-67).
I am unpersuaded by the Secretary's apparent reliance on
the inert laboratory analysis to support her assertion that the
cited "extensive accumulations" were coal dust accumulations
contemplated by section 75.400. With regard to
extensiveness -- there is nothing unusual about extensive
gob piles that contain large pieces of rock. Although I am
cognizant of the laboratory results that suggest an
incombustible content of approximately 20 per cent, the
validity of these samples in this case must be placed in
context. This procedure is intended to achieve a
representative sample of the percentage of rock dust in a
given accumulation of coal dust and float coal dust. This
procedure is not designed to obtain a representative sample
from a gob pile. For when one sifts coal dust and rock
through a 20-mesh screen, a resultant sample containing
primarily coal dust is not surprising. Consequently, these
sample results do not establish that the cited
"accumulations" were 80 per cent coal. Thus, I remain
unconvinced that Kotor's samples accurately reflect the
percentage of combustible material in these gob piles. In
any event, while these gob piles may have required
additional rock dusting, notwithstanding the chain of
custody problem and the validity of the rock pile sampling
method, the respondent was not charged with a rock dusting
violation. Finally, in discussing the evidentiary value of
these sample results, I would be remiss if I did not note
that the laboratory analysis, that occurred only one week
before this hearing, was untimely in that it interfered with
the respondent's ability to prepare for this case. See
Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 379 (March 22,
1993).
At the hearing, the Secretary was requested to cite case law
to support her position that section 75.400 is applicable to
gob piles. In her post-hearing brief, the Secretary relies
on the Commission decision in Mid-Continent Resources, Inc.,
16 FMSHRC 1226 (June 1994) for the proposition that section
75.400 applies to "relocated" accumulations. However, the
Secretary's reliance on Mid-Continent begs the question.
"Relocated" accumulations constitute a violation of section
75.400 only if they are prohibited accumulations. In Mid-
Continent, the cited accumulations had been transported to a
crosscut off an intake roadway. The subject of the section
75.400 violation in Mid-Continent "was mostly full of
material consisting of timbers, lump coal, very dry coal
dust, float coal dust and coal fines." Id. at 1228. The
accumulations were extensive and combustible, and they were
noted in various pre-shift examination reports. Id. at
1229, 1233.
The Secretary also relies on the Commission's holding in
Doss Fork Coal Company, 18 FMSHRC 122 (February 1996). In Doss
Fork, the operator had been issued citations on several previous
occasions for storing "dirty coal," consisting of mud, rocks and
coal, in crosscuts. Consequently, in Doss Fork, the Commission
concluded the operator was on notice and affirmed the ALJ
decision that the cited "dirty coal" condition constituted a
violation of section 75.400.
This case concerns gob piles that were stored in crosscuts.
Unlike Doss Fork, where the operator had a history of
citations for the same condition, Kotor's testimony
reflects the cited gob piles were stored in accordance with
industry practice. Moreover, unlike the cited condition in
Mid-Continent that dealt with extensive, combustible
accumulations, the alleged section 75.400 violation in this
case is characterized as non-significant and substantial.
Significantly, both Mid-Continent and Doss Fork dealt with
prohibited accumulations that were required to be removed.
In fact, in Mid-Continent, the operator's defense was that
"it was impossible to remove the [cited] accumulations from
the mine via the conveyor belts due to unexpected mechanical
problems . . . ." 16 FMSHRC at 1233. In the instant case,
the Secretary does not argue that the gob piles should have
been removed from the mine.
In short, regulations must be interpreted to harmonize with
their intended purpose. Emery Mining Corp. V. Sec'y of
Labor, 744 F.2d 1411, 1414 (10th Cir. 1984). Section 75.400
requires the clean-up of the cited combustible
accumulations. The notion that gob in an underground mine
should be cleaned up and not be permitted to accumulate is,
indeed, strange. Rather, the mandatory standard in section
75.403 concerning rock dusting is the appropriate standard
to address the potential hazards associated with combustible
material in gob. In this regard, Kotor admitted that he
normally does not take samples to support a section 75.400
violation. (Tr. 156).
The Secretary's interpretation of section 75.400, as it
applies to the facts of this case, is not entitled to deference as
the meaning of the "clean-up requirements" is neither doubtful
nor ambiguous. Pfizer Inc. v. Heckler, 735 F.2d 1502, 1509
(D.C. Cir. 1984). Here the cited accumulations constituted
gob that was permissibly stored in crosscuts. Thus, in the
final analysis, the Secretary's interpretation of section
75.400 "is at odds with the plain meaning of the standard."
Sunny Ridge Mining Company et al., 18 FMSHRC 254, 258
(February 1997). Since storage is permitted, clean-up and
removal cannot be required under section 75.400. Accordingly,
Order No. 4387711 is hereby vacated.
ORDER
Accordingly, IT IS ORDERED that, consistent with the
parties' settlement agreements, the respondent shall pay civil
penalties of $733.00, in Docket No. PENN 96-248, and $471.00
in Docket No. PENN 96-221. IT IS FURTHER ORDERED that Order
No. 4387711 issued in Docket No. PENN 96-221 IS VACATED.
Consequently, the respondent shall pay a total civil penalty
of $1,204.00 in these matters. Payment is due within 30
days of the date of this decision. Upon timely receipt of
payment, these proceedings ARE DISMISSED.
Jerold Feldman
Administrative Law Judge
Distribution:
Andrea J. Appel, Esq., Office of the Solicitor, U.S. Dept.
of Labor, Gateway Bldg., Rm. 14480, 3535 Market St., Philadelphia,
PA 19104 (Certified Mail)
Joseph A. Yuhas, Esq., 1809 Chestnut Ave., P.O. Box 25,
Barnesboro, PA 15714 (Certified Mail)
/mca
**FOOTNOTES**
[2]: Section 75.403 provides:
Maintenance of incombustible content of rock dust
Where rock dust is required to be applied, it shall be
distributed upon the top, floor, and sides of all
underground areas of a coal mine and maintained in
such quantities that the incombustible content of the
combined coal dust, rock dust, and other dust shall not
be less than 65 per centum, but the incombustible
content in the return aircourses shall be no less than
80 per centum. Where methane is present in any
ventilating current, the per centum of incombustible
content of such combined dust shall be increased 1.0
and 0.4 per centum for each 0.1 per centum of methane
where 65 and 85 per centum, respectively, of
incombustibles are required.
There was no evidence of methane in the cited 1st Left (017)
Section Immediate Return. (Tr. 124, 198-9; Gov. Ex 3, Kotor's
notes at p.4).
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF MINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
April 2, 1997
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION, (MSHA), : Docket No. PENN 96-221
Petitioner : A. C. No. 36-02398-03756
:
v. :
: Docket No. PENN 96-248
LION MINING COMPANY, : A. C. No. 36-02398-03759
Respondent :
: Grove No. 1 Mine
ORDER CORRECTING DECISION
Before: Judge Feldman
The decision in these proceedings was issued on March 31,
1997. The last sentence in the first paragraph on the last page
of the decision omitted the word "not." The sentence is hereby
corrected to read as follows: In the instant case, the Secretary
does not argue that the gob piles should have been removed from
the mine.
Jerold Feldman
Administrative Law Judge
Distribution:
Andrea J. Appel, Esq., Office of the Solicitor, U.S. Dept.
of Labor, Gateway Bldg., Rm. 14480, 3535 Market St., Philadelphia,
PA 19104 (Certified Mail)
Joseph A. Yuhas, Esq., 1809 Chestnut Ave., P.O. Box 25,
Barnesboro, PA 15714 (Certified Mail)
/mca