<DOC>
[DOCID: f:se94-667.wais]
JIM WALTER RESOURCES, INC.
January 16, 1996
SE 94-667-R
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
January 16, 1996
JIM WALTER RESOURCES, INC., : CONTEST PROCEEDING
Respondent :
v. : Docket No. SE 94-667-R
: Order No. 3184043
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : No. 5 Mine
ADMINISTRATION (MSHA), :
Petitioner :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. SE 95-131
Petitioner : A. C. No. 01-01322-03989
v. :
: Mine No. 5
JIM WALTER RESOURCES, INC., :
Respondent : Docket No. SE 95-140
: A. C. No. 01-01401-04058
:
: Docket No. SE 95-141
: A. C. No. 01-01401-04059
:
: Mine No. 7
DECISION
Appearances: William Lawson, Esq., Office of the Solicitor,
U.S. Department of Labor. Birmingham, Alabama,
for Petitioner;
R. Stanley Morrow, Esq., Jim Walter Resources,
Inc., Brookwood, Alabama, for Respondent.
Before: Judge Hodgdon
These consolidated cases are before me on a notice of
contest and petitions for assessment of civil penalty filed
by Jim Walter Resources, Inc., against the Secretary of
Labor, and by the Secretary of Labor, acting through his
Mine Safety and Health Administration (MSHA), against Jim
Walters, respectively, pursuant to Section 105 of the
Federal Mine Safety and Health Act of 1977, 30. U.S.C. � 815.
The company contests the issuance to it of Order No.
3184043 on September 1, 1994. The Secretary's petitions
seek $26,462.00 in penalties for eight violations of his
mandatory health and safety standards. For the reasons set
forth below, I approve the agreement of the parties settling
all but two orders in Docket No. SE 95-140, affirm the
two contested orders and assess civil penalties of $19,224.00.
A hearing was held on July 20, 1995, in Hoover, Alabama.
MSHA Coal Mine Inspector Kirby G. Smith, MSHA Supervisory Safety
and Health Specialist Kenneth Ely and miner Keith Plylar
testified for the Secretary. Longwall Face Foreman Henry
M. Thomas was a witness on behalf of Jim Walters. The
parties also submitted briefs which I have considered in my
disposition of these cases.
SETTLED ORDERS AND CITATIONS
At the beginning of the hearing, counsel for the Secretary
stated that Docket Nos. SE 94-667-R, SE 95-131, SE 95-141 and
two citations in Docket No. SE 95-140 had been settled. With
respect to Docket No. SE 95-131, the parties agreed to reduce
the proposed penalty for Order No. 3184043 from $5,000.00 to
$2,500.00 and Jim Walters agreed to withdraw its contest
of the order (Docket No. SE 95-667-R). For Docket No. SE 95-141,
the parties agreed to modify Order Nos. 3182603 and 3182618
by deleting the "significant and substantial" designations
and to reduce the proposed penalty for each from $903.00 to
$309.00, and to reduce the proposed penalty for Order No. 3183771
from $7,500.00 to $4,000.00. In Docket No. SE 95-140, the parties
have moved to vacate Citation No. 3189887 and the Respondent
has agreed to pay the proposed penalty of $506.00 for
Citation No. 3183885 in full.
After considering the parties' representations, I concluded
that the settlements were appropriate under the criteria set
forth in Section 110(i) of the Act, 30 U.S.C. � 820(i), and
informed the parties that I would approve the agreement.
(Tr. 364-72.) The provisions of the agreement will be carried
out in the order at the end of this decision.
ORDERS NO. 3189434 AND 3189435
The parties contested Orders No. 3189434 and 3189435 in
Docket No. SE 95-140. The orders were issued by Inspector
Kirby Smith on August 25, 1994, during his inspection of Jim
Walter's No. 7 Mine. While inspecting the No. 2 longwall, the
inspector observed that plastic line curtains had been placed on
the mine floor, from the longwall chain line, across the
longwall pontoons, to the place where the longwall shield
jacklegs joined the pontoons. He also saw line curtains hanging
from where the jacklegs joined the shield down to the pontoons.
The curtains extended for 20 or 25 shields, past shield 184, and,
consequently, past the methane monitor located at the tailgate.
Smith was accompanied on his inspection by Paul Phillips,
assistant mine foreman, Barry Hurst, longwall coordinator,
and Stan Odom, union representative. Near the midway point
of the longwall, the inspector took some methane readings.
He detected .4 percent methane 12 inches from the mine roof
and 1.1 percent methane 12 inches from the mine floor.
Inspector Smith took another reading behind the curtains
hanging from shield No. 184 and detected 2.2 percent methane.
As a result of these readings, the inspector issued the
orders in question. Order No. 3189434 alleges a violation
of Section 75.323 of the Regulations, 30 C.F.R. � 75.323, because
[m]ethane was allowed to accumulate along the Number Two Longwall
face in excess of 1.4% due to mine ventilation plastic curtain
being placed on the mine floor and supported as a line curtain
by the shields jack legs. This method was utilized to trap and
divert the methane bleeders that were encountered in the mine
floor to the Longwall gob and tailgate entry.
(Govt. Ex. 2.) The order was issued under Section 104(d)(2) of
the Act, 30 U.S.C. � 814(d)(2).[1]
Order No. 3189435 sets out a violation of Section 75.342 of
the Regulations, 30 C.F.R. � 75.342, in that "[l]ine curtain was
installed on the shield jack legs on the Number Two Longwall so
as to divert accumulations outby the tailgate methane sensor.
This action rendered the methane monitor's response to methane
along the longwall face to be inaccurate." (Govt. Ex. 5.) This
order was also issued under Section 104(d)(2).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The No. 7 mine is located in the Mary Lee Coalbed which, as
of a 1985 report by the Bureau of Mines, had the highest average
liberation of methane per mine of any coalbed in the United
States. (Govt. Ex. 7.) In that same report, the No. 7 mine was
shown to have the highest methane liberation of any mine in the
U.S. Methane liberation continues to be a problem at the mine.
As Mr. Thomas, the longwall face foreman stated, "I deal with it
every day." (Tr. 262.) In 1993, 15 methane ignitions occurred
in the mine. Fifteen more occurred in 1994, eight of those on
longwall sections.
Order No. 3189435
To avoid repeating the same evidence, the second order will
be discussed first. Section 75.342 requires that "MSHA approved
methane monitors shall be installed on all . . . longwall face
equipment," among other places, "at the return air end of the
longwall face." It further requires that the monitors "shall be
maintained in permissible and proper operating condition," so
that "[w]hen the methane concentration . . . reaches 1.0 percent
the monitor shall give a warning signal" that is "visible to a
person who can deenergize the equipment." Finally, it requires
that the monitor "shall automatically deenergize the machine"
when the methane concentration "reaches 2.0 percent" or the
"monitor is not operating properly."
The Respondent argues that there was no violation of this
regulation. At first blush, this argument appears to have some
merit. It is true that Jim Walter had a methane monitor located
in the proper place and there is no evidence that it was not
calibrated or in permissible condition or that it did not give a
visual warning signal at 1.0 percent methane or deenergize the
equipment at 2.0 percent methane. Indeed, there is no evidence
that the monitor was not in proper operating condition, if it had
been permitted to operate properly.
That it was not, however, is the difficulty. By placing a
line curtain on the floor and hanging it from the jacklegs of the
longwall shields so that the methane seeping from the "bleeder"
in the mine floor would be directed away from methane monitor,
Jim Walter did not "maintain" the monitor in "proper operating
condition."
Jim Walter clearly had a problem with methane seeping from a
bleeder in the floor. Even though there was 131,000 cfm of air
coursing from the headgate to the tailgate of the longwall, it
was not sufficient to reduce the concentration of methane below
1.0 percent. Since the velocity of the air could not be
increased further and could not be redirected, Jim Walter's only
alternative, according to ventilation specialist Kenneth Ely, was
to stop production until the methane bled off. Instead, the
Respondent elected to direct the methane along the floor and
behind the curtains hung from the shields. That way, it would
not be sensed by the monitor and production could be continued.
By directing the methane away from the monitor, the company
precluded the monitor from performing its function. The net
effect of this, as suggested by the Secretary's witnesses, was
the same as placing a plastic bag over the monitor so that it
could not sense the air passing around it. The deliberate
directing of the methane out of the flow of air which was
supposed to "dilute, render harmless, and carry [it] away,"
30 C.F.R. � 75.321, and past the tailgate methane monitor was the
equivalent of rendering the monitor inoperable. Accordingly, I
conclude that Jim Walter did not maintain the monitor in proper
operating condition and, therefore, violated Section 75.342.
Order No. 3189434
Section 75.323 requires that when "1.0 percent or more
methane is present in a working place . . . electrically powered
equipment in the affected area shall be deenergized, and other
mechanized equipment shall be shut off," that "[c]hanges or
adjustments shall be made to the ventilation system to reduce the
concentration of methane to less than 1.0 percent" and that "[n]o
other work shall be permitted in the affected area until the
methane concentration is less than 1.0 percent." The section
further requires that when "1.5 percent or more methane is
present in a working place . . . [e]veryone except those persons
referred to in section 104(c) of the Act shall be withdrawn from
the affected area; and . . . electrically powered equipment in
the affected area shall be disconnected at the power source."
The Secretary argues that Jim Walter violated this section
by not deenergizing the longwall equipment until after Inspector
Smith advised the longwall coordinator that he was going to issue
the orders in this case. On the other hand, Jim Walter alleges
that they did not become aware that methane in excess of 1.0
percent was present until the inspector informed them that he was
issuing the orders and that then they deenergized the
machinery.[2] I find that Jim Walter should have known that
methane of 1.0 percent or more was present in the working area
and, therefore, did not comply with the regulation.
There were two ways that the miners at the longwall could
have determined that 1.0 percent or more of methane was present:
(1) someone with a methane detector could have taken a reading,
or (2) one of the monitors on the longwall could have sensed it.
However, Jim Walter had rendered its tailgate monitor inoperable
by directing the methane away from it. But for this action, the
tailgate monitor would have detected the methane, just as
Inspector Smith's detector did, would have given a warning signal
to alert the crew, if between 1.0 and 1.9 percent methane was
detected, or would have deenergized the machinery, if 2.0 percent
methane was detected.
Having taken steps to make the methane monitor not operate
properly, Jim Walter cannot now claim that it did not comply with
Section 75.323 because it did not know that methane was present.
The fact is that it would have but for its actions to avoid
knowing. Consequently, I conclude that the company violated the
regulation.
Significant and Substantial
The inspector found both violations to be "significant and
substantial violations" of the regulations. A "significant and
substantial" (S&S) violation is described in Section 104(d)(1) of
the 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." A violation is properly
designated S&S "if, based upon the particular facts surrounding
that 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 set out four criteria that have to be met for a
violation to be S&S. See also Austin Power, Inc. v. Secretary,
861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin Power, Inc.,
9 FMSHRC 2015, 2021 (December 1987)(approving Mathies criteria).
Evaluation of the criteria is made in terms of "continued normal
mining operations." U.S. Steel Mining Co., Inc., 6 FMSHRC 1573,
1574 (July 1984). The question of whether a particular violation
is significant and substantial must be based on the particular
facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 1007
(December 1987).
Applying the Mathies criteria, I have already found, (1)
that the company violated two mandatory safety standards. I
further find: (2) That these violations contributed to a measure
of danger to safety, i.e. a methane ignition, or in the worst
case, a methane explosion; (3) That there is a reasonable
likelihood that an ignition or an explosion would result in an
injury; and (4) That there is a reasonable likelihood that the
injury would be reasonably serious in nature, i.e. burns or
death. Accordingly, I conclude that the violations were
"significant and substantial."
Unwarrantable Failure
The inspector also found that these violations resulted from
Jim Walter's "unwarrantable failure" to comply with the
regulations. The Commission has held that "unwarrantable
failure" is aggravated conduct constituting more than ordinary
negligence by a mine operator in relation to a violation of the
Act. Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 (December
1987). "Unwarrantable failure is characterized by such conduct
as `reckless disregard,' `intentional misconduct,' `indifference'
or a `serious lack of reasonable care.' [Emery] at 2003-04;
Rochester & Pittsburgh Coal Corp. 13 FMSHRC 189, 193-94 (February
1991)." Wyoming Fuel Co., 16 FMSHRC 1618, 1627 (August 1994).
Mr. Thomas testified that curtains were put on the floor and
hung from the shields because "we'd had it [methane] every day,
it wasn't just that day. You know, you can look back on the
reports and see where we'd wrote [sic] it up. But on this date
we had some and we'd pulled the power, knocked the power off and
hung curtain and did whatever we could do to get the power back
on." (Tr. 271, emphasis added.) Plainly, this was an
intentional act. The velocity of the air could not be increased
to render the methane harmless, so the methane was routed past
the monitor so the longwall could be kept running.
While Mr. Thomas stated that he had frequently placed
curtains on the floor and hung them from the longwall shields to
deal with methane problems, I find it significant that neither of
the MSHA officials had ever heard of such a practice. Nor had
Mr. Plylar, a miner who had worked on the No. 2 longwall and was
a member of the safety committee, the last four years as
chairman. Perhaps Mr. Thomas was exaggerating to try to justify
what appears to be a very dangerous practice evidencing, at best,
an indifference to the safety of miners.
Whether this was the first time or not, I find that the
Respondent acted intentionally and with a serious lack of
reasonable care. Accordingly, I conclude that the violations
were the result of Jim Walter's unwarrantable failure to follow
the regulations.
CIVIL PENALTY ASSESSMENT
The Secretary has proposed a civil penalty of $11,600.00 for
these two violations. However, it is the judge's independent
responsibility to determine the appropriate amount of a penalty,
in accordance with the six criteria set out in Section 110(i) of
the Act. Sellersburg Stone Co. v. Federal Mine Safety and Health
Review Commission, 736 F.2d 1147, 1151 (7th Cir. 1984).
In connection with the six criteria, the parties have
stipulated that Jim Walter is a large mine operator and that any
penalty imposed in this case will not affect its ability to
continue in business. (Tr. 8.) I further note that the No. 7
mine is a large mine with a fairly large number of violations for
the two years preceding the violations. (Govt. Ex. 10.) The
evidence in the case demonstrates that the Respondent was highly
negligent and that the gravity of the violations is very serious.
The citations indicate that the company demonstrated good faith
in abating the violations. Considering all of this, I conclude
that the proposed penalty of $11,600.00 is appropriate.
ORDER
Order No. 3184043 in Docket No. SE 95-131 is AFFIRMED and
the Respondent's notice of contest in Docket No. SE 94-667-R
concerning that order is DISMISSED; Order Nos. 3189434 and
3189435 and Citation No. 3183885 are AFFIRMED and Citation No.
3189887 is VACATED and DISMISSED in Docket No. SE 95-140; Order
No. 3183771 is AFFIRMED and Order Nos. 3182603 and 3182618 are
MODIFIED by deleting the "significant and substantial"
designations and AFFIRMED as modified in Docket No. SE 95-141.
Jim Walter Resources, Inc., is ORDERED TO PAY civil penalties of
$19,224.00 within 30 days of the date of this decision. On
receipt of payment, these proceedings are DISMISSED.
T. Todd Hodgdon
Administrative Law Judge
Distribution:
William Lawson, Esq., Office of the Solicitor, U.S. Department of
Labor, Highpoint Office Center, Suite 150, 100 Centerview Dr.,
Birmingham, AL 35216 (Certified Mail)
R. Staley Morrow, Esq., Jim Walter Resources, Inc., P.O. Box 133,
Brookwood, AL 35444 (Certified Mail)
/lt
**FOOTNOTES**
[1]: Section 104(d)(2) provides:
If a withdrawal order with respect to any area in
a coal or other mine has been issued pursuant to
paragraph (1), a withdrawal order shall promptly be
issued by an authorized representative of the Secretary
who finds upon any subsequent inspection the existence
in such mine of violations similar to those that
resulted in the issuance of the withdrawal order under
paragraph (1) until such time as an inspection of such
mine discloses no similar violations.
[2]: Jim Walter also questions whether the equipment
was energized at the time the orders were issued.
Inspector Smith said that it was. Mr. Thomas said he
thought that it was not, but that he could not be sure.
Based on the Longwall Section Report, (Govt. Ex. 12),
which indicates that the power was on between 8:50 a.m.
and 9:19 a.m., and Mr. Thomas's testimony that the
shutdown occurred at 9:19 a.m., (Tr. 327), I find that
the equipment was energized when the inspector took his
methane readings and issued the orders.