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[DOCID: f:se91-97.wais]

 
FAITH COAL COMPANY
November 4, 1997
SE 91-97


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10TH FLOOR
                          5203 LEESBURG PIKE
                     FALLS CHURCH, VIRGINIA 22041

                           November 4, 1997


SECRETARY OF LABOR,             :    CIVIL PENALTY PROCEEDINGS
     MINE SAFETY AND HEALTH     :
     ADMINISTRATION (MSHA),     :    Docket No. SE 91-97
               Petitioner       :     A. C. No. 40-02755-03525
          v.                    :
                                :    Docket No. SE 91-533
FAITH COAL COMPANY,             :     A. C. No. 40-02755-03527
               Respondent       :
                                :    Docket No. SE 92-315
                                :     A. C. No. 40-02755-03536
                                :
                                :    Docket No. SE 92-316
                                :     A. C. No. 40-02755-03537
                                :
                                :    Docket No. SE 92-343
                                :     A. C. No. 40-02755-03538
                                :
                                :    Docket No. SE 92-372
                                :     A. C. No. 40-02755-03540
                                :
                                :    Docket No. SE 92-373
                                :     A. C. No. 40-02755-03541
                                :
                                :    Docket No. SE 92-375
                                :     A. C. No. 40-02755-03542
                                :
                                :    Docket No. SE 92-463
                                :     A. C. No. 40-02755-03543
                                :
                                :    Docket No. SE 92-464
                                :     A. C. No. 40-02755-03544
                                :
                                :    Docket No. SE 92-488
                                :     A. C. No. 40-02755-03545
                                :
                                :    Docket No. SE 93-78
                                :     A. C. No. 40-02755-03547
                                :
                                :    Docket No. SE 93-79
                                :     A. C. No. 40-02755-03548
                                :
                                :    Docket No. SE-93-194
                                :     A. C. No. 40-02755-03549
                                :
                                :    Docket No. SE-93-195
                                :     A. C. No. 40-02755-03550
                                :
                                :    Docket No. SE 93-257
                                :     A. C. No. 40-02755-03552
                                :
                                :    Docket No. SE 93-300
                                :     A. C. No. 40-02755-03553
                                :
                                :    Docket No. SE 93-348
                                :     A. C. No. 40-02755-03555
                                :
                                :    Docket No. SE 93-365
                                :     A. C. No. 40-02755-03556
                                :
                                :    Docket No. SE 93-366
                                :     A. C. No. 40-02755-03557
                                :
                                :    Docket No. SE 93-411
                                :     A. C. No. 40-02755-03558
                                :
                                :    Docket No. SE 94-42
                                :     A. C. No. 40-02755-03561
                                :
                                :    Docket No. SE 94-75
                                :     A. C. No. 40-02755-03562
                                :
                                :    Docket No. SE 94-96
                                :     A. C. No. 40-02755-03563
                                :
                                :    Docket No. SE 94-256
                                :     A. C. No. 40-02755-03564
                                :
                                :    Docket No. SE 94-257
                                :     A. C. No. 40-02755-03565
                                :
                                :    No. 15 Mine


                          DECISION ON REMAND

BEFORE:  Judge Barbour

     This  remand involves one citation (Citation No. 3202337) in
one  docket  (Docket   No.  SE 94-256).   In  the  citation,  the
Secretary alleged a violation  of  30 C.F.R. � 75.313 because the
methane monitor on a scoop loader was inoperable (Joint Exh. 62).
Section  75.313  relates  to  fan  stoppages   while  miners  are
underground,  not to methane monitors on loading  machines.   The
latter requirements  are  found  in  30 C.F.R.  � 75.342  and its
subsections.   Therefore,  in  my  original decision, I found the
Secretary cited the wrong standard,  and  I  vacated the citation
(17 FMSHRC 1146, 1183 (July 1995)).

     The Commission reversed.  It held I should  have  issued  an
order  directing  the  Secretary  to  show cause why the citation
should not be amended to conform to the  evidence and to charge a
violation  of  section 75.342(a)(4).   Because   the   Commission
concluded  Faith  Coal  Company  understood  the  nature  of  the
violation   charged   and  was  not  prejudiced,  the  Commission
reinstated the citation  and  directed  me  to find whether Faith
violated  section 75.342(a)(4) (19 FMSHRC 1357,  1360-62  (August
1997)).

     After  the case was returned to me, I ordered the parties to
determine if  they could settle the matter.  If they could not, I
ordered them to  submit  briefs or statements regarding whether a
violation of section 75.342(a)(4)  occurred  and,  if so, what an
appropriate  civil  penalty  should  be, taking into account  the
criteria set forth in section 110(i) of  the  Mine Act (30 U.S.C.
 820(i)).

     Counsel for the Secretary filed a response  advising  me the
parties  were  unable to settle their differences.  She argued  a
violation of section 75.342(a)(4)  occurred,  and  she  requested
Faith  be  assessed  a civil penalty of $4,000 for the violation.
Also,  she  included in  her  response  a  statement  by  Faith's
representative  maintaining  the  company  did  not  violate  the
standard and requesting he be allowed more time to respond to the
Secretary's  response  (Response  to  Order  On  Remand  2).  The
request  is denied.  The representative has had ample opportunity
to make known  the  company's  position  regarding  the issues on
remand, and it is time to end this matter.

                            THE VIOLATION

     Section 75.342(a)(4) requires "Methane monitors  . . .  [to]
be maintained in permissible and proper operating condition."   I
fully  set  forth the relevant testimony in my pervious decision,
and it need not  be  repeated  here  (17  FMSHRC at 1182).  It is
sufficient to note the inspector testified  that he saw the scoop
operating, he tested the scoop's methane monitor, and the monitor
did  not  deenergize  the scoop (Vol. II Tr. 413-414).   He  also
testified the company's  representa-tive  was  not present at the
time  the  scoop was operating, but later arrived  and  told  the
inspector that  he,  the  representative,  had  "jumped  out" the
monitor   (meaning   the  monitor  mechanism  had  been  bypassed
electrically  so  that  the   scoop  would  continue  to  operate
regardless of the presence of methane) (17 FMSHRC at 1182).

     The  representative  acknowledged   the   monitor  had  been
bypassed.  He testified he bypassed it because he  was  going  to
use  the  scoop  as  a  means  of transportation rather than as a
mechanism to load coal.  He maintained  the  monitor  was working
when the scoop was loading coal and it did not need to  work when
the scoop was used for transportation (Vol. II Tr. 428).

     I   find   the  Secretary  proved  a  violation  of  section
75.342(a)(4).  The  testimony  of  the  inspector  regarding  the
conditions  he observed was entirely credible and not overcome by
the representative.   Although  the  representative  asserted the
scoop was not loading coal with an inoperable monitor, he was not
on  the  section when the inspector saw the scoop.   Nor  was  he
there when  the inspector tested the monitor and found it did not
work  (Vol. II  Tr.  413-414,  417).   In  short, the inspector's
testimony   conclusively   establishes   the  monitor   was   not
"maintained in permissible and operating condition,"  as required
by the standard (30 C.F.R. � 75.342(a)(4)).

     Even if the scoop was not loading coal but was used  or  was
going  to  be  used  for  transportation  purposes, I would still
conclude  its  lack  of  a functioning methane  monitor  violated
section 75.342(a)(4).  The  standard  is  directed  at  detecting
methane in working places, that is at detecting methane inby  the
last open crosscut (30 C.F.R. � 75.2).  The standard's goal is to
prevent potentially disastrous explosions and fires by warning of
the  presence  of gas before it reaches dangerous concentrations.
Interpreting the  standard  to  allow  removal of this protection
when  use  of  the  equipment  is  altered  temporarily  but  its
functional capabilities remain the same, would  not  promote  the
protective purpose of the Act or the standard.  I suspect this is
why  the  standard does not, as it might, require a monitor to be
present and  functioning only when the equipment is in use within
a working place.

                               GRAVITY

     The inspector determined the violation was not a significant
and  substantial  contribution  to  a  mine  safety  hazard  (S&S
violation)  because  the  mine normally does not liberate methane
and no methane was detected  at  the time the violation was cited
(Vol. II Tr. 419).  The inspector  testified  that if methane was
detected   at   the  mine  it  was  in  "very  small  quantities"
(Vol. II Tr. 419).    These   factors   properly  influenced  the
inspector's assessment of the S&S nature  of  the    violation --
 that  is,  whether  the  hazard  created  by  the violation  was
reasonably likely to result in a reasonably serious injury.

     However,  the  same  factors do not compel a conclusion  the
violation  was  none serious.  The  violation  consisted  of  the
company's deliberate  failure  to maintain the methane monitor in
proper operating condition.  Because methane's past is not always
its prologue, proper maintenance  of  a methane monitor is one of
the  Act's  most  important  protections.    An  operator  cannot
unilaterally   remove  the  protection.   While I  recognize  the
gravity of the violation was mitigated by the  lack  of  past and
present methane, nevertheless, it was a serious violation.

                 UNWARRANTABLE FAILURE AND NEGLIGENCE

     In  her  initial  brief  the  Secretary's counsel argued the
representative's testimony he intentionally  bypassed the monitor
should   result   in   a   finding   of   unwarrantable   failure
(Sec. Br. 150).   I  did  not  reach the issue, because I did not
find a violation.  However, in dicta,  I  stated if I had found a
violation, I would not have found it the result  of unwarrantable
failure.   ("The  original  citation did not charge unwarrantable
failure and Faith was not given  notice  such . . . an allegation
was at issue" (17 FMSHRC at 1183)).

     On  remand,  counsel  renews  her argument.   She  asks  the
citation "be modified to conform to  the  proof; i.e., that it be
modified  to  a  [s]ection  104(d)  citation  to   reflect   [the
representative's]   unwarrantable  failure  to  comply  with  the
regulation" (Response  to  Order  on Remand 5).  Again, she cites
the  representative's  testimony  he intentionally  bypassed  the
monitor (Id. 5-6).

     Counsel's request comes much too late.  While it is true the
representative testified he intentionally  bypassed  the monitor,
he did so without knowing unwarrantable failure was at issue.  As
the  Commission noted in reversing in part my original  decision,
the Federal  Rules  of  Civil  Procedure  are  applied  so far as
practicable   on   procedural   questions  not  governed  by  the
Commission's rules or the Act (19  FMSHRC  at  1352  n.10).  Rule
15(b)  of  the  Federal  Rules  provides  for conformance of  the
pleadings to the evidence adduced at trial,  but  the  Commission
has  stated  that when determining whether a Rule 15(b) amendment
is to be allowed,  "emphasis  [is] upon the parties understanding
that the unpleaded claim is, in fact, being litigated" (19 FMSHRC
at 1362 n.10 (citing to Magma Copper  Co.,  8 FMSHRC 656, 659 n.6
(May 1986)).

     Here, the representative did not know, nor  should  he  have
know,  the government would charge the company with unwarrantable
failure.   No  such charge was on the citation, in the pleadings,
or  mentioned during  the  hearing.   The  only  issue  regarding
culpability  of  which  the representative had notice was that of
the company's negligence.   Under  the  Mine Act the con-cepts of
negligence and unwarrantable failure are not identical.  To allow
modification of the citation at this point  would be to eliminate
the distinction between them and to prejudice the representative,
who, had he known unwarrantable failure was an  issue, might well
have presented  the company's case and his testimony differently.

     Finally,  there  is  a  fundamental  statutory problem  with
counsel's request.  To issue a citation under  section 104(d)(1),
the  inspector  must  make  an  S&S  as  well as an unwarrantable
finding  (30  U.S.C.  � 814(d)(1)).   In  issuing   Citation  No.
3202337, the inspector did not find the violation was  S&S,   nor
did  the  Secretary  allege such was its nature (Vol. II Tr. 419;
Response to Order on Remand 3).

     Turning to the criteria  of  negligence, the inspector's and
representative's testimony establishes  that  the  representative
intentionally  bypassed  the  monitor  (Vol.  II  Tr. 417,  425).
Therefore,  I  find  the  representative,  and  through  him  the
company,  exhibited high negligence in allowing the violation  to
exist.

                         GOOD FAITH ABATEMENT

     The violation  was  abated  when  the scoop was removed from
service and not returned to the mine (Vol.  II  Tr.  420).   This
constituted good faith abatement.

                     OTHER CIVIL PENALTY CRITERIA

     My  findings regarding the civil penalty criteria of ability
to continue in business, size, and history of previous violations
were not disturbed  on  review and are applicable here (17 FMSHRC
at 1208-10).

                          PENALTY ASSESSMENT

     Counsel requested a  civil  penalty  of  $4,000 (Response to
Order on Remand 7).  The request is highly excessive,  especially
in   view   of   my   previous  findings  regarding  the  adverse
consequences  of  the  Secretary's   proposed  penalties  on  the
company's ability to continue in business (17 FMSRHC at 1208-10),
and in view of the mitigated gravity of  the  violation.  A civil
penalty of $150 is consistent with penalties previously  assessed
and  settlements  previously  approved,  and  is  in  accord with
criteria  particularly applicable to the violation.  Accordingly,
Faith is ORDERED   to  pay  such  a penalty, along with all other
penalties assessed in these proceedings,  within  30  days.  Upon
payment of the penalties, these proceedings are DISMISSED.

                                          David F. Barbour
                                          Administrative Law Judge

Distribution:

Anne. T. Knauff, Esq., Office of the Solicitor,
U. S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215-2862 (Certified Mail)

Mr. Lonnie Stockwell, Faith Coal Company, Route 1, Box 196,
Palmer, TN 37365 (Certified Mail)

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