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[DOCID: f:pn94400.wais]
ENLOW FORK MINING COMPANY
April 6, 1995
PENN 94-400
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
April 6, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. PENN 94-400
Petitioner : A.C. No. 36-07416-03658
:
v. : Docket No. PENN 94-259
:
ENLOW FORK MINING COMPANY, : A.C. No. 36-07416-03651
Respondent :
: Enlow Fork Mine
DECISION
Appearances: Linda M. Henry, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner; Elizabeth S.
Chamberlin, Esq., Consolidation Inc., Pittsburgh,
Pennsylvania, for the Respondent.
Before: Judge Weisberger
These cases, consolidated for hearing, are before me based
upon Petitions for Assessment of Civil Penalty filed by the
Secretary (Petitioner) alleging violations by Enlow Fork Mining
Company (Respondent) of 30 C.F.R. � 75.360(b)(1), 30 C.F.R.
� 75.360(b)(c), and 30 C.F.R. � 75.400. Pursuant to notice,
the cases were heard in Steubenville, Ohio on January 10, 11 and
12, 1995. Respondent filed a Post Hearing Brief on March 28,
1995. Petitioner filed Proposed Findings of Fact and a
Memorandum of Law on March 29, 1995.
Findings of Fact and Discussion
1. Citation No. 3659960 and Order No. 3660021 (Docket No. PENN
94-400).
A. Introduction
1. Testimony of the Inspector
On November 15, 1993, MSHA Inspector Joseph Melvin Hardy
inspected the B-3 Longwall Section of the Enlow Fork Mine.
The section's tail drive, consisting of a gear box fluid
coupler and an electric motor, was located at the tailgate.
The tail drive was covered on top and also at the end
farthest away from the headgate, and at the side next to the
pan line. The side closest the tailgate and the end next to
the shields were not covered. After each pass of the
longwall shear, the shields were moved forward one at a
time.
Hardy indicated that approximately 9:05 a.m., he observed an
accumulation of float coal dust around the legs of the
shields, all the flat surfaces of the shields, and on the
diagonal lemniscates of shields numbered 148-152, which were
the shields closest to the tailgate. Hardy described coal
dust that was black in color, and "very dry to the touch"
(Tr. 34) on the electrical boxes and control units of
shields numbered 148-152. He said that the amount of coal
dust was more than normally seen on inspections.
Hardy indicated that he also saw loose coal scattered around
the shields, and on the gear case of the fluid coupler, and
the drive motor. He also said that there were "heavy
accumulations" (Tr. 25) of float coal dust, hydraulic oil
and coal, packed in and around the gear case and surrounding
areas. Hardy described the coal as saturated with hydraulic
gear oil. Hardy said that there was no evidence of water
mixed with the oil. He said that the material was loose on
the top but packed at the bottom. Hardy said that 90
percent of the housing of the fuel coupler was covered with
float dust and oil, and 95 percent of the entire gear box
was covered with float dust and oil. He said that there was
an accumulation of hydraulic oil under the motor fluid
coupler and gear box. He estimated that the area of the
accumulation was 4 feet by 10-15 feet. Hardy also observed
rags saturated with oil over the top of the fluid coupler.
He also indicated that there was coal packed on the floor to
a height of 2 1/2 feet. Hardy said that the hydraulic oil
is combustible. According to Hardy, the coal being mined
was part of the Pittsburgh Seam, which he described as being
highly violatile.
Hardy issued a section 104(d)(1) order alleging a violation
of 30 C.F.R � 75.400 which provides, as pertinent, as
follows: "Coal dust including float coal dust deposited on
rockdusted surfaces, loose coal, and other combustible
materials, shall be cleaned up and not be permitted to
accumulate in active workings . . . ."
A preshift examination of the area was performed at 5:06
a.m. on November 15, but none of the conditions testified to
by Hardy were noted or reported. In this connection, Hardy
issued a section 104(d)(1) citation alleging that an
adequate examination had not been performed in violation of
30 C.F.R. � 75.360(b)(3).
2. Testimony of Respondent's Witnesses
Timothy C. Ferrell, a shield-man who worked the day shift
on November 15, testified that there was a normal amount
of dust on the drive, and a normal accumulation of
loose coal between the legs of the shields. He
indicated that there was oil on the toes of the last
three shields. He said that at about 8:30 a.m., he
hosed the top of the tail drive, and under the tail
drive, and shields numbered 148-152. He said that
there was a film of oil that extended several inches
around the torque converter breather which he washed
down.
Ferrell indicated that he did not notice any oily rags
wedged on top of the hydraulic coupler, or anywhere
around the tailpiece. He said that after he washed the
various pieces of equipment, he did not see any dust or
oil on top of the housing.
Ferrell indicated that when the cover was removed from the
drive unit, he observed coal and rock packed on the
face and tailgate end of the gear box. He said that the
material was "mostly rock" (Tr. 326). He said the
material was wet, but not oil soaked.
He indicated that no mining took place between the time he
finished washing the equipment at 8:30 a.m., and 9:00
a.m.
Tim Keen, Respondent's Safety Inspector, was with Hardy on
November 15. He noted oil on top of water
accumulations between the toes of the shields, and a
film of oil on the gear case and torque converter.
Keen observed some dust in the rear of shields numbered
148-152 between their legs. He said that he saw rock
dust on the lemniscates, but no coal dust.
Keen indicated that he did not consider any of the oil or
coal that he observed to be a hazard. He indicated
that he could not recall seeing any oil soaked rags.
He said that when the cover of the tail drive was
removed, he saw some coal, and a lot of rock dust
between the face plate and the end plate. He said that
the material looked wet, but he did not handle it. He
did not consider that any of the conditions observed
presented any fire or explosion hazard. He indicated
that Hardy had pointed out float coal dust mixed with
oil in the gear case.
William K. Stewart, was the longwall maintenance
coordinator on November 15. In essence, he indicated that he
did not see the conditions observed by Hardy.
B. Discussion
1. Violation of 30 C.F.R. � 75.400
I note the conflict in the testimony between Hardy and
Respondent's witnesses who were present in the area in
question at the time of the inspection on November 15,
regarding the existence of the conditions testified to by
Hardy. I observed Hardy's testimony and found him to be a
credible witness. There is no evidence in the record of any
improper motive on the part of Hardy. (See, Texas Industry,
Inc., 12 FMSHRC 235 February 1990 (Judge Melick).
Importantly, Hardy's testimony finds support in notes taken
by him contemporaneously with the inspection (GX-3). In
contrast, the testimony of Respondents' witnesses as to
conditions observed on the day shift November 15, was based
upon their recollection of conditions they observed more
than a year prior to their testimony. None of Respondent
witnesses' proffered any contemporaneous written notes to
support their testimony.[1] For these reasons, I accept
Hardy's testimony and find that on 9:00 a.m., November 15,
there existed accumulations of coal dust, loose coal, and
oil, that had not been cleaned up. I thus find that
Respondent violated Section 75.400, supra.
2. Violation of 30 C.F.R. � 75.360
In essence, Hardy opined that it definitely took more than a
shift for the material to have become packed on the gear
box. He further indicated that the oil under the floor of
the gear case was very obvious, and could be seen without
bending down. Hardy said that the coal mixed with the oil
on the drive motor was visible from the walkway. According
to Hardy, loose coal, dust, and oil were visible when he
first entered the area at issue, and he did not have to lift
anything, or bend down to observe these conditions. He
reasoned that these conditions would had been observed,
reported, and noted in the preshift examination four hours
prior to the time the conditions were cited.
William W. Young, worked the midnight to 8:00 a.m. shift on
November 15, 1993. He indicated that he started his
preshift examination at the tailgate at 5:00 a.m., and
observed a film of oil on the toes of shields numbered 148-
152. He indicated that he did not see any float coal dust
or loose coal between the shields on the lemniscates. Nor
did he see any layer of float coal in that area. According
to Young, he did not see any accumulation of oil soaked coal
in and around the tailpiece, and did not see material behind
the gear box. He indicated that he did not see any oil
soaked rags. He indicated that he did not consider "the
conditions around the tailpiece to be hazardous" (Tr. 236).
He also opined it does not take more than one shift for
packed coal to be created.
According to Young, at 3:30 a.m., on November 15, he
cleaned the light film of oil that he had observed on the
motor drive and gear box with a "degreaser", (Tr. 206) and
he also hosed off the motor, tensioning unit, and gear box.
In a written statement prepared by Young on November 16, he
indicated that at 12:45 a.m., on November 15, he had
instructed a shield-man, Terry Pozum, to wash the oil film
off the "toes of shields at the tailgate and tailgate drive
area". Both Posum and Raymond L. Touvell, another shield-
man, who worked primarily at the headgate, testified to
having washed shields numbered 148-152 and the tail drive,
at various times during the night. Touvell indicated that
the last time he was at the tailgate, he did not see any
hydraulic fluid covering the floor, and did not see dry
float dust covering the shield plates or the lemniscates.
He also indicated that there was no coal dust black in color
and hydraulic oil on the gear case, fluid coupler or drive
motor. He stated that he also did not observe hydraulic oil
on the cover of the drive box, and did not notice material
packed in the rear of the gear case.
I find Young's testimony credible, based upon my
observations of his demeanor, that he did perform a preshift
examination at approximately 5:00 a.m., in the area in
question on November 15. In essence, Hardy opined that the
conditions that he observed had existed four hours prior at
the preshift examination, because the packed accumulations
definitely had not occurred in one shift. However, he did
not elaborate upon the basis for this conclusion. Coal dust
is produced in the areas in question by the normal longwall
mining process. The section continued to produce coal
subsequent to the preshift examination, but there is no
documentary evidence or eyewitness testimony of the number
of passes made by the shear between the preshift
examination, and 9:00 a.m., when the area was cited by
Hardy. Touvell indicated that in general the shear makes
six passes over a three hour period, and Young estimated
that the shear had made six passes between 5:00 a.m., and
the end of the shift. The record does not convincingly
establish when the accumulations of oil observed by Hardy
occurred. Both the gear case and tensioning unit are
equipped with oil breathers which are designed to expel oil
if pressure builds up in these items. Oil can be expelled
when the equipment is started and stopped. William K.
Stewart, the longwall maintenance coordinator, opined that
if the belt "is shutting off and on, you could have as much
as a gallon (of oil) on top of the unit" (Tr. 361).
Based on this record, I conclude that it has not been
established that it was more likely than not that the
accumulations observed by Hardy were in existence at the
time of Young's preshift examination. I thus find that it
has not been established that Young's examination was
inadequate. I thus find that it has not been established
that Respondent violated Section 75.360(b), supra.
3. Unwarrantable Failure
According to Hardy, in essence, the conditions that he
observed were obvious and easily seen without even bending
down. For the reason set forth above, I have concluded that
these conditions were not in existence at the time of the
preshift examination. Hardy indicated that he did not see
anyone cleaning the accumulations when he made his
inspection. On the other hand, Ferrell, who testified later
on at the hearing, stated that when Hardy arrived at the
tailpiece, "I believe I had a shovel and was cleaning the
loose coal out from underneath the drive motor" (Tr. 321).
Hardy, who testified on rebuttal, did not contradict this
testimony of Ferrell.
Hardy indicated that, prior to the issuance of the citation
and order at issue, he had discussed preshift procedures
with various management officials. In the same connection,
MSHA Supervisory Inspector Robert W. Newhouse, testified
that on October 7, 1993, he discussed with management the
basic elements of a preshift examination, and the proper
course of action to be taken when it is determined that a
hazard exists. He said they also had a discussion about
what constitutes a hazard. Newhouse stated that in the
first quarter of 1993, he discussed with Mine Management the
need to clean accumulations.
Hardy indicated that on October 7, 1993, he met with mine
management. He told them that he was not satisfied with the
cleanup including the areas in question.
I do not find this testimony not probative of the degree of
Respondent's negligence in allowing the specific materials
at issue to have accumulated. Within this context, I find
that the level of Respondent's was ordinary, and did not
reach the level of aggravated conduct. (See, Emery Mining
Corp., 9 FMSHRC 1997, 2203-2204 (1987). I thus find that
the violation found, herein, was not the result of
Respondent's unwarrantable failure.
4. Significant and Substantial
A "significant and substantial" violation is described in
section 104(d)(1) of the Mine 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." 30 C.F.R. � 814(d)(1).
A violation is properly designated significant and
substantial "if, based upon the particular facts
surrounding the 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 explained its interpretation of the term
"significant and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, 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 in question will be of a reasonably serious
nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d)(1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
The critical element for analysis is whether the evidence
establishes that there was a reasonable likelihood of an injury
producing event, ie, a fire or explosion contributed to by the
violation of Section 75.400, supra. According to Hardy, the
materials that had accumulated were combustible. Also, he noted
the presence of ignition sources including the bearings on the
drive shaft and gear case, and a 4160 volt drive motor connected
to the drive case. However, the record does not establish that
the physical condition of these or other potential ignition
sources would have made the event of ignition reasonably likely
to have occurred. The mine does liberate methane. However,
there is no evidence that methane was present in an explosive
range. Nor is there evidence that liberation of methane in
explosive concentrations was reasonably likely to have occurred.
According to Hardy, there were rags over the top of the fluid
coupler and dry coal dust on electrical boxes. Although these
conditions contributed to the possibility of an ignition, there
is insufficient evidence to conclude that such an event was
reasonably likely to have occurred. Hardy indicated that the
gear box was very hot to touch and he could not keep his hand on
it. There is no evidence of the specific temperature of the gear
case, especially in relation to the flash point and autoignition
temperature of the oils at issue. Hardy opined that because the
accumulations on the gear box were packed, the cooling effect of
air passing over the gear box would be impeded. He concluded
that it was reasonably likely that the temperature of the gear
box would reach the flash point of the oil issue of 325 degrees,
and reach the autoignition temperature of 650 degrees. However,
he did not provide any basis for these conclusions.
Stewart indicated that the gear box is cooled internally by
water, and that this cooling system runs constantly. He also
indicated that he takes the temperature of the gear box, and he
has never seen it register a temperature of more than 197 degrees
Fahrenheit.
Within the context of the above evidence, I find that it has
not been established that a fire or ignition was reasonably
likely to have occurred as a consequence of the accumulation of
materials noted by Hardy. I thus find that it has not been
established that the violation was significant and substantial
(See, Mathies, supra; U.S. Steel, supra).
Taking into account the amount of the accumulations found by
Hardy, and the presence of shield-men regularly working in
the area, I find that should a fire or explosion have
occurred, these persons could have suffered serious
injuries. I thus find that the gravity of violation was
relatively high. I find that a penalty of $2,000 is
appropriate.
II. Section 104(d)(1) Order No. 3660375
(Docket No. PENN 94-400) and Section 104(a)
Citation No. 3660374, (Docket No. PENN 94-259).
A. Petitioner's Evidence
In normal operations in the 2N belt entry, a scoop dumps
coal on the feeder unit. Coal is then transported to
the crusher where is crushed. The coal then is moved
to the tailpiece and transported and dumped on the B-6
belt. In all these processes fine coal is created
which falls on the belt structures and the floor.
On December 8, 1993, Joseph F. Reid, an MSHA Inspector,
inspected the 2N belt feeder outby to the B-6 belt. He
indicated that starting at the belt feeder, and
extending 200 feet outby, there was an accumulation of
dry black coal dust. Reid indicated that there was dry
loose coal on the mine floor, and very dry, fine, black
float coal dust that was on and around the belt feeder
unit. He described a pile of fine float coal dust on
the floor that measured 4 feet by 16 feet, and 5 inches
deep. Reid also observed a pyramid shaped pile of coal
dust that, at the deepest point, was 18 inches deep,
and was 2 feet long, and 3 feet wide. He said that the
edge of this pile was under the belt, and was 6 inches
removed from the belt. Reid also observed coal dust on
the cross members of the belt. He said these
accumulations were black and very dry. According to
Reid, there was coal dust on the belt structure that
varied between an eighth of an inch to 2 inches deep.
On direct examination he termed some of these materials
float coal dust, but on cross examination indicated
that the materials were a mixture of float coal and
coal dust. Reid indicated that he touched all the
areas that he cited and that none of the cited areas
were wet "to my recollection". (Tr. 673). He also
indicated that he examined the preshift examiner's
records which indicated that a preshift examination was
made of the area in question between 5 a.m. and
7 a.m., on December 8, and no hazards were noted.
Reid issued an order alleging a violation of Section
75.400 supra, and a citation alleging a violation of 30 C.F.R.
� 75.360(b)(1).
B. Respondent's Evidence
Donald E. Watson, a safety supervisor, was with Reid during
the inspection. Watson testified that he did not find any
accumulation of dust on the cross-members and bedrail of the belt
structure that Reid wanted cleaned. He indicated that Reid also
wanted an 18-inch pile of float coal dust cleaned. Watson
testified that the material was fine coal. He said that only
the top was dry, but the bottom was wet. He indicated that he did
not observe any float dust in the entry that was "distinctively"
black in color. (Tr. 605).
Robert K. Price, the section foreman who was present on
December 8, noted the presence of loose coal in front
of the feeder, under the feeder, and behind the tail
roller. According to Price, he said he did not see any
hazardous float dust on the belt. He also indicated
that he did not see any dust that was black. He
describe the entry as being off-white. Price was asked
to describe the thickness of the float dust on top of
the feeder. He said "there was just like a haze going
across it" (Tr. 625). He indicated that he could see
the white color of the feeder through the "haze". He
said that in order to abate the violation the float
dust on the feeder was hosed off, "and the rest of the
stuff was broomed . . . wiped off or hit with a
broom real quick" (Tr. 624).
Howard A. McDaniel, was the belt foreman on the shift at
issue. He indicated that the belt had been rock dusted
on November 17. He described the area as being off-
white. According to McDaniel, the bottom of the entry
contained rock dust to a depth of 2 to
4 inches. He said that there were only 4 or 5
shovelfuls of material present behind the tailpiece.
McDaniel said that he did not see any float dust that
was dark in color. He said that he walked the tight
side, and did not see any black material. He said that
it took about 10 minutes to clean up the spillage
material on the walk side.
C. Discussion
1. Violation of 30 C.F.R. � 75.400
I find the testimony of Respondent's witnesses insufficient
to contradict the testimony of Reid that there was a pile of
coal dust, 2 feet by 3 feet, approximately 18 inches deep,[2]
and another pile on the floor 4 feet by 16 feet, 5 inches deep,
and other accumulations, 200 feet outby the tail on the belt
structure. I thus find that Respondent violated Section 75.400,
supra.
2. Violation of 30 C.F.R. � 75.360(b)(1)
Essentially, Reid opined that an 18 inch pile of coal dust
takes 1 to 2 shifts to accumulate, but he did not provide
any basis for this opinion. He further opined that the the
accumulations occurred over more than 1 shift because (1)
the materials that had accumulated in various areas were
very black, (2) there were "heavy" (Tr. 474) accumulations
on the floor, and belt structures, and (3) there was dust on
the electric box, and on and around the feeder. He also
indicated that the float dust on the belt structures and the
side of the feeder unit "was very visible all the way to the
B-6 transfer area.
(Tr. 464). In essence, it is Petitioner's position that
these conditions existed at the time of the preshift
examination, and should have been noted by the preshift
examiner. There is no conclusive evidence as to how long
the conditions noted by Reid had existed. Reid opined that
it took more than one shift for the materials to have
accumulated, but did not provide any basis for his opinion.
In the same fashion, Watson opined that he did not think
that the conditions were present "very long" (Tr. 589). He
said "It could have been one shuttle car. It could have
been two shuttle cars" (Tr. 589). However, he did not
provide any basis for that opinion. Price estimated that
the conditions had been in existence for 1 to 2 hours, but
did not provide any basis for that opinion.
Weaver was asked whether he saw any float coal dust that was
black in color. He stated that he did not notice any that
was "clear black" (Tr. 534). Weaver stated that he could
not recall seeing "black accumulations" (Tr. 548) on the
belt structures, but that there may have been areas that
were gray. He was asked whether the cross-members of the
belt structure had "a dark deposit" on them (Tr. 546), and
he answered that there may have been some gray material
deposited. Weaver stated that he did not see any of the
conditions noted by Reid, and did not feel that there were
any hazards present.
Due to the extent of the accumulations observed by Reid, I
conclude that it is more likely than not that at least some
of them, in the condition observed by Reid, had existed
4 hours earlier during the preshift examination. Since
these accumulations were not reported, I find that preshift
examination was not adequate, and hence that Respondent did
violate Section 75.360(b)(1), supra.
3. Unwarrantable Failure
According to Reid, he had previously issued a citation,
alleging a violation of Section 75.400 supra, and at that
time had discussions with management concerning the hazards
of not recording an examination, and the necessity to clean
the belts. I accept Reids testimony that the material on
the belt structure, and left side of the feeder unit was
visible all the way to B-6. I find that Respondent's
conduct constituted more than ordinary negligence, and
reached the level of aggravated conduct. Accordingly, I
find that it has been established that the violation herein
resulted from Respondent's unwarrantable failure. (See
Emery, supra).
4. Significant and Substantial
According to Reid, the material that had piled up to 18
inches adjacent to the belt could, with continued operation,
continue to grow, and then come in contact with the rollers.
This contact could produce friction. However, Watson indicated
that belt material used as a guard separated the accumulated
coal dust from the rollers. Reid, on rebuttal, did not
specifically rebut the positive testimony of Watson. Reid
indicated on rebuttal that this guard would not have protected
the fine coal from contacting the tail roller. His
explanation is as follows:
Q. So where you have this 18-inch pile located, would
the guard that is enclosed in blue have protected that
18-inch pile from contacting the tail roller?
A. No.
Q. Why is that?
A. Well, it was at the outby right side of the rubber
guarding, which it only extended--
Q. What only extended?
A. The rubber guarding only extended to that point.
This pile, which from previous testimony I heard, these
piles normally occur on both sides.
Q. When you say the guarding only extends to "that
point," what point are you referring to?
A. Where the pile of coal was.
Q. So are you saying that the rubber guarding is
extended to the point where the pile of coal was and
did not extend behind the pile of coal?
A. No--yes.
Ms. Henry: It's confusing.
Judge Weisberger: The Witness' testimony is not clear.
Don't lead him.
Ms. Henry: Yes, you're right.
BY MS. HENRY:
Q. Where this rubber guarding was, the point where
this pile of coal fines was, where was it in
relationship to the rubber guarding?
A. It was a little past the end, the right end of the
rubber guarding.
Q. So when you say it was "a little past" the right end
of the rubber guarding, was there rubber guarding
behind this coal pile?
A. No. (Tr. 672-673).
I find that this testimony is unclear and cannot be relied
upon.
There is no evidence of any frozen rollers. Nor is there
any evidence that the belt was not aligned properly, and was
rubbing the vertical structures of the belt. Nor is there
any evidence that any float coal dust was in suspension.
Although the existence of frozen rollers, hot rollers, and
friction caused by the belt rubbing against the support legs
are all possible, I find that it has not been established
that such conditions were reasonably likely to have
occurred. I thus find that it has not been established that
there was a reasonable likelihood of an injury producing
event, i.e., a fire or explosion occurring as a consequence
of the accumulation of coal herein. I thus find that it has
not been established that the violation was significant and
substantial (See, Mathies, supra;
U.S. Steel, supra).
III. Penalty
I find that since it was possible that as a result of the
violations a fire or explosion could have occurred that the
violations were of a high level of gravity. I find that a
penalty of $500 is appropriate for Citation No. 3660374 and
that a penalty of $5000 is appropriate for Order No.
3660375.
IV. Order
It is hereby ORDERED that Citation No. 3569960 be dismissed.
It is FURTHER ORDERED that Order No. 3660021 be amended to
indicate a violation that was not significant and
substantial and not the result of Respondent's unwarrantable
failure. It is further ORDERED that Citation No. 3660374
and Order No. 3660375 be amended to reflect the fact that
the violations cited were not significant and substantial.
It is further ORDERED that Respondent pay a total civil
penalty of $7,500 within 30 days of this decision.
Avram Weisberger
Administrative Law Judge
Distribution:
Linda M. Henry, Esq., Office of the Solicitor, U.S. Department
of Labor, 3535 Market Street, Room 14480, Gateway Building,
Philadelphia, PA 19104 (Certified Mail)
Elizabeth S. Chamberlin, Esq., Consol Inc., Consol Plaza, 1800
Washington Road, Pittsburgh, PA 15241-1421 (Certified Mail)
/ml
**FOOTNOTES**
[1]: Section Foreman William Young prepared a statement on
November 16, 1993, setting forth his actions relating to the
cleaning of the area in the midnight shift November 15. It does
not set forth in any detail the conditions observed by him on the
shift, with the exception of some oil on the bottom mixed with
water, and "oil film" on the toes of shields.
[2]: Watson testified that he was standing with Reid "side-
by-side" (Tr. 588) when the latter examined the pyramid-shaped
pile he cited. Watson indicated that Reid did not measure the
pile. Watson was asked whether Reid could have taken various
measurements and not have been observed by him. Watson responded
by stating that by Reid "was never out of my sight that day".
(Tr. 611). It was elicited from Watson that at one point during
the inspection he left Reid's presence in order to get the
foreman, Robert Price. In response Watson testified that he did
not go very far.
Based on my obervation of his demeanor, I find Reid's
testimony credible regarding the various measurement, he took of
the cited accumulations. I find that the testimony of Watson is
insufficient to rebutt Reid's testimony as to measurements
actually taken by him.