<DOC>
[DOCID: f:s95-459.wais]
JIM WALTER RESOURCES, INC.
June 14, 1996
SE 95-459
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
June 14, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. SE 95-459
Petitioner : A.C. No. 01-01401-04102
v. :
: No. 7 Mine
JIM WALTER RESOURCES, INC., :
Respondent :
DECISION
Appearances: William Lawson, Esq., U.S. Department of Labor,
Office of the Solicitor, Birmingham, Alabama for
Petitioner;
R. Stanley Morrow, Esq., Jim Walter Resources,
Inc., for Respondent.
Before: Judge Fauver
This is a civil penalty case under � 105(d) of the Federal
Mine Safety and health Act of 1977, 30 U.S.C. � 801, et seq.
The central issues are the validity of a � 104(d)(2) order
and the appropriate civil penalty if a violation is found. The
order alleges accumulations of combustible materials in a 3,500
foot belt entry and charges a significant and substantial violation
of 30 C.F.R. � 75.400 and an unwarrantable failure to comply with
the standard.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the Findings of Fact and further
findings in the Discussion below:
FINDINGS OF FACT
1. Respondent operates No. 7 mine, which produces coal for
sales in or substantially affecting interstate commerce.
2. On June 8, 1995, MSHA Inspector John Terpo inspected the
West A belt line of the No. 7 mine. Inspector Terpo
observed substantial accumulations of loose coal, coal dust
and float coal dust. At least 32 rollers were turning in
combustible accumulations, and 12 of them were totally
submerged in coal dust. Three other rollers were locked up
and "extremely hot to the touch." Tr. 96-99. At the
section's 7th discharge point, the accumulations averaged 2
feet deep for about 300 feet. The bottom belt was running
on top of the accumulations at this location. Two bottom
rollers were missing between the No. 26 and No. 28
brattices, allowing the belt to run on the belt's metal
structure, which was "extremely hot with the [accumulations]
present." Tr. 96-99.
3. Inspector Terpo observed that no one was doing cleaning
work on the belt line and the book entries for the pre-shift
examination stated that the belt line was clear for work.
The two previous pre-shift entries indicated that the area
needed cleaning and rock-dusting.
4. Inspector Terpo issued four citations for accumulations
of combustible material on the two section belts that dumped
onto the West A belt, for failing to maintain the West A
belt line in safe operating condition, and for failing to
conduct an adequate pre-shift examination. Govt. Exhibits
1, 2, 3, and 6.
5. The four citations are final. In a settlement, the
citations in Exhibits 1 and 3 were modified to reflect that
"four" persons were affected by the violative conditions.
6. Inspector Terpo also issued Order No. 3194917, under �
104(d)(2) of the Act, charging a violation of 30 C.F.R. �
75.400 for extensive combustible accumulations in the West
A belt entry and preventing operation of the West A belt
line until the cited violative condition was abated.
Respondent assigned about 20 miners to clean up the
accumulations. The abatement work was completed in about
seven hours and the order was terminated.
DISCUSSION WITH FURTHER FINDINGS, AND CONCLUSIONS
Respondent called no witnesses, and offered no exhibits.
There is no dispute of the violative accumulations of
combustible materials at the cited locations in the West A
belt line entry. The case turns on the sufficiency of the
government's evidence to prove that the accumulations
constituted a "significant and substantial" violation and an
"unwarrantable" failure to comply with � 75.400 within the
meaning of � 104(d) of the Act.
The safety standard involved, 30 C.F.R. � 75.400, is a
reprint of a statutory standard, which 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.
As the Commission has recognized, this standard was enacted
to prevent the well-recognized hazards of accumulations of
combustible materials in coal mines:
***The goal of reducing the hazard of fire or
explosions in a mine by eliminating fuel sources is
effected by prohibiting the accumulation of materials
that could be the originating sources of explosions or
fires and by also prohibiting the accumulation of those
materials that could feed a fire originating elsewhere
in the mine.
Black Diamond Coal Co., 7 FMSHRC 1117, 1120 (1985) (citing Old
Ben Coal Co., 1 FMSHRC 1954, 1957 (1979); and Old Ben Coal Co.,,
2 FMSHRC 2806, 2808 (1980)). The hazards associated with mine
fires and explosions are well documented and actually
precipitated the enactment of the Mine Act. See H.R. Rep. No.
95-312, 95th Cong., 1st Sess. 6 (1977), reprinted in Legislative
History at 361362; and S.Rep. No. 95-181, 95th cong., 1st Sess.
(1977), reprinted in Legislative History at 592.
A Significant and Substantial Violation
The Commission has held that a "significant and substantial
violation," as used � 104(d) of the Act, is a violation that
presents a "reasonable likelihood that the hazard contributed to
will result in an injury of a reasonably serious nature."
Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (1981);
Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984).
Respondent contends that, since there is no evidence of an
injury resulting from a belt fire at this mine, the violation was
not "significant and substantial." However, the Secretary is not
required to prove an actual injury. "Reasonable likelihood" of
injury is sufficient, and this is satisfied by the "common sense
conclusion that a fire burning in an underground coal mine would
present a serious risk of smoke and gas inhalation to miners who
are present." Buck Creek Coal, Inc. v. Secretary of Labor, 52
F.3d 133, 135 (7th Cir. 1995). The Secretary is not required
to show that a mine fire was probable, but need only show
that the violation provided substantial fuel to propagate a mine
fire or explosion should one occur and that such propagation
would be "reasonably likely" to result in injury. The
uncontested evidence shows substantial combustible accumulations
that could propagate a mine fire or explosion and cause death or
serious injury. In addition, the evidence of ignition sources,
such as hot rollers and hot rubbing points against a steel
structure, shows that if the violative conditions continued
unabated they were reasonably likely to result in a fire and
injury. For both reasons, I find that the accumulations
constituted a "significant and substantial" violation.
An Unwarrantable Violation
The Commission has held that an "unwarrantable" violation,
as used in � 104(d) of the Act, is a violation due to "aggravated
conduct constituting more than ordinary negligence." Emery
Mining Corp., 9 FMSHRC 1977 (1987). Relevant issues include such
factors as "the extent of a violative condition, or the length of
time that it existed, whether an operator has been placed on
notice that greater efforts are necessary for compliance, and the
operator's efforts in abating the violative condition." Peabody
Coal Company, 14 FMSHRC 1258, 1261 (1992).
Inspector Terpo identified in the order and in his notes the
numerous areas in which he observed combustible accumulations
along the 3,500 foot belt line. At one location, the
accumulations averaged about 2 feet deep for 300 feet, with 32
rollers turning in coal dust and 12 of those rollers being
totally submerged in coal dust. The bottom belt was rubbing on
the top of the accumulations and the bottom rollers were running
totally submerged in coal dust. The accumulations cited can
only be described as extensive, and obvious to anyone concerned
with safety.
Inspector Terpo and UMWA Safety Committee Chairman Phylar
testified that the accumulations were so extensive that they
probably existed for at least several shifts. Respondent offered
no evidence disputing their testimony, which is supported by the
extent of work needed to abate the violation, i.e., about 20
miners doing clean up work for 7 hours.
The abatement work was prompt, but this must be considered
in relation to the withdrawal order, which stopped the belt line
until the accumulations were removed. There was no evidence of
clean up work at the time the order was issued.
Respondent had received repeated notices that greater
efforts were necessary to comply with � 75.400. In numerous
contacts with Respondent, MSHA had discussed the continuing
problem of its failure to comply with � 75.400. Many of those
discussions had occurred in the same quarter in which the subject
order was issued. The UMWA, as well, brought the continuing
problem of accumulations to management's attention. The repeated
prior notices of violations of �75.400 are also shown by
Respondent's compliance history, which shows that in the two
years preceding the subject order Respondent was issued 291
citations and orders charging violations of � 75.400. As of
March 27, 1996, nearly all of the citations and orders had become
final (by payment of the penalties or by becoming uncontested,
final penalty orders).
The facts fully sustain the inspector's finding of an
"unwarrantable failure" to comply with � 75.400.
Civil Penalty
Section 110(i) of the Act provides the following six
criteria for assessing civil penalties:
(1) Operator's history of previous violations
The No. 7 mine has a very poor record of violations of
�75.400. Its two year history prior to the subject
order indicates that violations of � 75.400 actually
increased. From June 8, 1993, through June 7, 1994,
Respondent was issued 123 citations and orders charging
violations of � 75.400. The number of charges
increased to 168 for the subsequent year. In nearly
all of the cases, the charging citations and order have
become final.
Respondent's repeated violations of � 75.400 is consistent
with its overall compliance history under the Mine Act,
which is very poor.
(2) Whether the operator was negligent
Respondent's repeated violations of � 75.400, the numerous
complaints and bi-monthly reports made by the UMWA to
management regarding the belt lines, the frequent
discussions MSHA had with mine management prior to issuing
the subject order, and the on-going litigation resulting
from violations on the belt lines "should have engendered in
the operator a heightened awareness of a continuing
accumulation problem." Mid-Continent Resources, Inc., 16
FMSHRC 1226, 1232 (1994). Instead, Respondent showed no
improvement.
The accumulations in the instant case were obvious,
extensive, and dangerous and no one was working on the
violative conditions at the time the inspector examined the
area. I find that Respondent's negligence was high, and
demonstrates a serious disregard for the safety of its
miners.
(3) The gravity of the violation
The seriousness of the violation is underscored by the
fact that 32 rollers were turning in coal dust accumulations
up to two feet deep. Twelve of the 12 rollers were
totally submerged in the accumulations. Three rollers were
locked up creating friction sources, and in places the
conveyor belt was rubbing against the steel belt structure.
The stuck rollers and rubbing points on the structure were
"extremely hot" to the touch. I find that the gravity of
the violation was high.
Assessment of a Penalty
Respondent's prior history and the instant violation
demonstrate a serious disregard for the safety requirement
to prevent combustible accumulations in an underground coal
mine. Respondent's repeated violations of � 75.400 indicate
that there has been no deterrent effect from prior civil
penalties.
Considering Respondent's very poor compliance history, the
need for an effective deterrent, and the six statutory
criteria as a whole, I find that a civil penalty
significantly greater than the $7,000 proposed by the
Secretary should be assessed. Accordingly, I find that a
civil penalty of $15,000 is appropriate for the violation
proved in this case.
CONCLUSIONS OF LAW
1. Respondent's No. 7 mine is subject to the Act.
2. Respondent violated 30 C.F.R. � 75.400 as charged in
Order No. 3194917.
ORDER
1. Order No. 3194917 is AFFIRMED.
2. Respondent shall pay a civil penalty of $15,000 within
30 days of this Decision.
William Fauver
Administrative Law Judge
Distribution:
William Lawson, Esq.,
U.S. Department of Labor,
Office of the Solicitor,
Suite 150, Chambers Building,
High Point Office Center,
100 Centerview Drive,
Birmingham, AL 35216
(Certified Mail)
R. Stanley Morrow, Esq.,
Jim Walter Resources, Inc.,
Mining Division,
P.O. Box 830079,
Birmingham, AL 35283-0079
(Certified Mail)
nt