<DOC>
[DOCID: f:se94244y.wais]
JIM WALTER RESOURCES, INC.
January 7, 2000
SE 94-244-R
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
January 7, 2000
JIM WALTER RESOURCES, INC., : CONTEST PROCEEDING
Contestant :
v. : Docket No. SE 94-244-R
: Citation No. 3182848;
: 1/31/94
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : No. 7 Mine
ADMINISTRATION (MSHA), : Mine ID No. 01-01401
DECISION
Before: Judge Melick
This remanded contest proceeding under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. involves
a citation issued by the Department of Labor's Mine Safety and
Health Administration (MSHA), alleging a violation of 30 C.F.R.
� 75.400[1] because of a trash accumulation in an entry of the
No. 7 Mine of Jim Walter Resources, Inc. (JWR).
The factual and procedural background of the case was
set forth by the Commission in its decision on April 19, 1996,
(18 FMSHRC 508) as follows:
On January 24, 1994, MSHA Inspector Thomas
Meredith cited JWR for a violation of section 75.400
because of trash accumulations in the No. 2 entry of
JWR's No. 7 Mine. Tr. 29-30; Govt. Ex. 3. See 16
FMSHRC at 1514.
On January 31, 1994, the date of the citation at
issue, Meredith conducted a follow-up inspection and
confirmed that JWR had abated the conditions that led
to the issuance of the January 24 citations. Tr. 31.
During the inspection, he observed in the No. 3 entry
an accumulation of trash at the check curtain, which
directed ventilation across the longwall face and also
separated the active outby area from the inactive inby
area. Tr. 16; 64. The judge found that the trash in
the outby area consisted of "[a] garbage bag, one box
and one rock dust bag . . . ." 16 FMSHRC at 1513. Inby
the curtain, there was a larger accumulation of trash
that extended for 250 feet and included paper bags,
rags, rock dust bags, wooden pallets and large cable
spools. Tr. 21-24; Gov't Ex. 2. The materials on both
sides of the curtain were combustible. Tr. 24. See 16
FMSHRC at 1512.
Inspector Meredith issued a citation, which
charged a violation of section 75.400, and a withdrawal
order, pursuant to section 104(d)(2) of the Act, 30
U.S.C. � 814(d)(2). [fn 1, supra]. The inspector
designated the violation as S&S and alleged that it was
due to the operator's unwarrantable failure to comply
with the standard. 16 FMSHRC at 1511-13; Govt. Ex. 2.
JWR challenged the citation and, following
hearing, Judge Melick affirmed the violation. [fn. 1,
supra]. Although he noted that the existence of
accumulations inby and outby the check curtain was
undisputed, the judge concluded that "the inactive inby
area cited in the order was not within the `active
workings' and the accumulations located therein were
therefore not in violation of the cited standard." Id.
at 1512. He further concluded that the evidence
concerning combustible material outby the line curtain
was insufficient to establish that the violation was
S&S. 16 FMSHRC at 1512-13. The judge also determined
that the evidence was insufficient to establish that
the violation was due to the operator's unwarrantable
failure. Id. At 1513-14.
Subsequent events were reported by the Commission in
its August 16, 1997, decision as follows:
The Secretary petitioned the Commission to review
the S&S and unwarrantable determinations. A divided
Commission affirmed the judge's decision. 18 FMSHRC
508 (April 1996).
Subsequently, the Secretary filed a petition for
review in the U.S. Court of Appeals for the District of
Columbia Circuit. On May 2, 1997, the court issued its
decision, affirming in part and reversing and remanding
in part the decision of the Commission. Secretary of
Labor v. FMSHRC, 111 F.3d 913 (D.C. Cir. 1997). The
court affirmed the Commission's determination that the
section 7[5].400 violation was not S&S and rejected the
Secretary's argument that, in considering whether the
violation was S&S, the Commission should take account
of the seriousness of the nearby non-violative
accumulation. Id. at 917-18. Relying on the language
of section 104(d)(1), the court determined that
"Congress has plainly excluded consideration of
surrounding conditions that do not violate health and
safety standards" from the S&S determination. Id at
917.
However, the court determined that section
104(d)(1) was ambiguous on the question whether the
non-violative accumulation could be considered for the
unwarrantable determination. Id. at 919-20. The court
noted that, when the Mine Act is ambiguous on a point
in question, a court is required to apply the analysis
set forth in Chevron U.S.A. Inc., v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842-45 (1984), and
defer to a reasonable interpretation of the Secretary.
111 F.3d at 914-15, 919-20.
The court agreed with the Secretary's interpretation of
Section 104(d) of the Act, which had not been advanced at the
trial below, that, in determining unwarrantable failure,
consideration must also be given to the surrounding non-violative
conditions. The Secretary argued before the circuit court, for
the first time before any tribunal, that the existence of inby
trash, although not violating any health or safety statute or
regulation, demonstrated negligence rising to unwarrantability.
The court accordingly remanded this case to the Commission to
determine whether, "applying the Secretary's interpretation of
the statute, the record contains sufficient evidence of causation
and culpability to support an `unwarrantable failure' finding."
In its subsequent remand order the Commission directed that "non-
violative accumulations in the inactive area of the mine"
therefore be considered "in light of the other factors that the
Commission may examine in determining whether a violation is
unwarrantable, including the extent of the violative condition,
the length of time that the violative condition has existed,
whether the violation is obvious or poses a high degree of
danger, whether the operator has been placed on notice that
greater efforts are necessary for compliance and the operator's
efforts in abating the violative condition made prior to the
issuance of the citation or order."
In the instant remand the divided Commission held that the
primary issue in this case is the "extent to which the non-
violative accumulations [can] be considered in conjunction with
the violative accumulations to ascertain unwarrantability" and
directed that consideration be given to the factors set forth in
Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (February 1994),
including "the extent of [the] violative condition, the length of
time that it has existed, whether the violation is obvious or
poses a high degree of danger, whether the operator has been
placed on notice that greater efforts are necessary for
compliance and the operator's efforts in abating the violative
condition made prior to the issuance of the citation or order."
[emphasis added]
19 FMSHRC at 1379.
Since it is the Secretary who has the burden of proving
unwarrantable failure and since it is the Secretary who has the
responsibility of advancing and providing the necessary legal
analysis to support her theories of unwarrantability, the
Secretary (as well as JWR) was provided the opportunity to submit
a brief in this regard following the instant remand.
Unfortunately, the Secretary has largely squandered this
opportunity by premising her brief largely upon the false
assumption that the inby trash accumulations constituted
violations of the cited standard and that the trial judge erred
in finding that they were not violative. This issue was, of
course, never raised by the Secretary in her initial petition for
review. Moreover, the Secretary acknowledged before the circuit
court, and it is clearly now the established law of the case,
that the inby trash was not in violation of the cited standard.
The "Mullins" Case Factors:
1(a) The extent of the violative condition. The Secretary has
failed to sustain her burden of proving that this condition was
extensive. Indeed, according to MSHA ventilation specialist
Thomas Meredith, the trash in the active outby area consisted of
only a few items:
"some paper bags from the rock dusting operations.
There was [sic] sandwich bags. There was some
cardboard boxes. There was a garbage bag that was half
under the curtain, half out burst open at that point.
(Tr. 18).
The garbage bag was plastic and contained paper sandwich bags and
some oily rags (Tr. 20). As depicted on the Secretary's own
exhibit, the area in which they were located was also quite small
(See Gov't Exh. No. 1). It may reasonably be inferred from this
evidence that the violative condition was therefore not extensive
and not, in itself, an aggravating factor justifying an
unwarrantable failure finding.
(b) The extent of the non-violative condition. Non-violative,
i.e. lawful, accumulations existed in the inby area of the No. 3
entry over a distance of approximately 250 feet and included
approximately 100 to 250 empty rock dust bags that had been piled
2 or 3 feet high along the rib, five wooden pallets and a five-
foot diameter wooden cable spool (Tr. 22-23 and 44). These
lawful accumulations may reasonably be characterized as
extensive. Under the circumstances it may also reasonably be
inferred that the operator on the date of the instant violation
"knew or should have known" that trash, not in violation of the
Secretary's regulations, existed in the inby area. However,
since the Secretary by her own regulations imposed no duty to
clean up this lawful inby trash the operator here can be charged
with but little negligence. No inference of unwarrantability can
be made from the extent of the lawful trash condition alone. In
any event this Commission has rejected the use of a "knew or
should have known" standard alone for determining
unwarrantability. Virginia Crews Coal Co., 15 FMSHRC 2103
(October 1993).
(c) The relationship between the extent of the non-violative
condition and the extent of the violative condition. In this
regard it has been suggested that the operator must have been
aware of the violative trash accumulation because of the
extensive, albeit lawful, inby conditions.
19 FMSHRC at 745 n.7. Such a conclusion depends however upon
proof that the outby trash existed at the same time that an agent
of the operator could have seen the inby trash. Indeed, the
outby trash could very well have came into existence only shortly
before it was cited. Thus, even assuming, arguendo, that an
agent of JWR had known of the extensive inby trash at some point
in time, if the outby trash did not yet exist, then the inby
trash could hardly have placed JWR on notice of any outby trash.
The Secretary has simply not sustained her burden of proof that
the lawful inby trash thereby provided notice to an agent of the
operator of the existence of any violative outby trash.
**FOOTNOTES**
[1]: 30 C.F.R. � 75.400 provides as follows:
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.
" Active workings" is defined in 30 C.F.R. � 75.2 as "[a]ny place
in a coal mine where miners are normally required to work or
travel."
The Commission majority in the aforementioned footnote
specifically stated as follows:
The evidence suggests that, because of the inby
conditions, the violation was obvious and JWR must have
been aware of it. For instance, the inspector
testified without contradiction that the operator had
placed a ventilation curtain on top of the trash
accumulation, splitting open a garbage bag and spilling
its contents on the outby side of the curtain. Tr. 19-
20, 65. The inspector testified that the accumulation
that was outby the curtain was "just the continuation
of everything that was inby the curtain." Tr. 19.
The cited transcript pages are set forth below:
Q. (By Mr. Lawson) Was the material you observed out
by the check curtain,
was this simply the remains of a lunch or was it more
extensive than that?
JUDGE MELICK: Is there any objection to him
leading the witness?
MR. TRUITT: Yes, Your Honor.
JUDGE MELICK: I think that would have to be
sustained.
Q. (By Mr. Lawson), Describe the accumulations out by
the curtain as far as
the extent of them.
A. [Inspector Meredith] Out by the curtain?
Q. Right
A. It was just the continuation of everything that
was in by the curtain.
JUDGE MELICK: Well, we don't know what was in by
yet. So, you'll have to say exactly what was out by.
THE WITNESS: I've stated all I can remember that
was out by. If I say anything else, it would not be
factual. I cannot testify to things that factual.
JUDGE MELICK: You say that there was a plastic
garbage bag beneath the curtain itself?
THE WITNESS: Yes, there was a plastic garbage bag
on this corner over here that had trash in it. It was
burst open and just laying all through here like
something had ran over it and burst it open.
JUDGE MELICK: You were pointing to the in by side
of the curtain.
THE WITNESS: The corner of the bag when I first
noticed it was on this side where the paper bags were.
JUDGE MELICK: The out by side?
THE WITNESS: Yes, sir.
JUDGE MELICK: Where were the contents of that
plastice bag spilled out?
THE WITNESS: Some of it was underneath the
curtain. Some of it was out from underneath the
curtain, and some of it was in by the curtain because
it had been burst.
JUDGE MELICK: You were able to identify what was
out by the curtain?
THE WITNESS: Yes, sir.
JUDGE MELICK: What exactly was out by the curtain
that had spillled from that garbage bag?
THE WITNESS: That was sandwich bags and paper bags
and some oily rags that was out by this area.
JUDGE MELICK: Are these plastic sandwich bags?
THE WITNESS: No, sir.
JUDGE MELICK: What were they?
THE WITNESS: They were some paper bags. The only
plastic I observed was the plastic bag itself.
(Tr. 19-21).
* * * *
Q. Can you tell me specifically what items were out
by the check curtain
marked 1-31-94?
A. There were rock dust bags. There was the busted
garbage bag with other
bags that came out of it, and I know there was a
cardboard box, but I can't remember if there was two at
that point or the other one was behind the curtain.
Q. How many rock dust bags, do you remember?
A. I do not know the exact quantity. I did not count
bags.
Q. Would it have been less than five?
A. I didn't count them. I couldn't testify one way
or the other to be honest
with you.
Q. It would be a small number?
A. I don't recall exactly how many bags it was
because they were piled up on
the rib. They were two or three foot high and they
came all the way through the curtain there. They could
have been stacked up two or three foot high. They
could be 20 or 25 bags, and if they're not mashed down,
there could be four or five. I didn't count bags.
Q. You just can't say how many bags were there?
A. Specifically I can't in that one location.
(Tr. 65).
From this testimony it is clear that it was Inspector
Meredith's opinion that the plastic garbage bag had been burst
open, not by the placement of the ventilation curtain onto the
garbage bag, but from something running over it (Tr. 19 L.23 -
Tr. 20 L.2). Indeed, Meredith subsequently opined that the scoop
had run over this bag of garbage (Tr. 25 L. 22-23). According to
the inspector's testimony some of the trash from that garbage bag
was found beneath the check curtain and outby the curtain and,
indeed, a portion of the bag itself was lying beneath the
curtain. The inspector did not however testify that the operator
had placed the ventilation curtain on top of the garbage bag.
From the record it may reasonably be inferred that the trash had
been forced or pushed under the curtain by the same equipment
that the inspector thought had initially burst the garbage bag
open. There is, moreover, no clear evidence to suggest that any
agent of the operator had any knowledge of the violative ouby
trash either at the time the check curtain was hung or at any
later time.
The inspector also contradicts himself in his testimony that
the outby accumulations "were just a continuation of everything
that was inby the curtain" (Tr. 19). When the inspector was
asked to itemize the specific materials outby the check curtain
he did not include some of the materials he claims to have found
inby the check curtain. There is no mention, for example, of any
wooden pallets or spools outby. No inference that the outby
accumulations were in fact a continuation of "everything" inby
the curtain can therefore properly be drawn from such
contradictory testimony. Moreover, even assuming, arguendo, that
the same type of trash was found in both locations it cannot, in
any event, thereby be inferred that it was placed there at the
same time, or that the outby material was present at the time the
check curtain was hung.
Under all the circumstances I cannot conclude that, because
of the existence of the obvious but lawful inby trash, an agent
of the operator must have been aware of the small amount of
outby trash. Indeed, it is just as likely as not that the small
amount of outby trash accumulated only after the accumulation of
inby trash and only shortly before its discovery by the
inspector. Moreover, the inspector himself seemed to express
reservations as to whether that small amount of trash even
constituted a violation.
2(a) The length of time the violative condition existed. It is
undisputed that the violative condition came into existence
sometime after January 24, 1994 and before the date the violation
was discovered, January 31, 1994. Inspector Meredith observed no
accumulations in the cited area on January 24, 1994. He
acknowledged that he had no idea how long some of the materials
had been present. Indeed, no direct evidence has been presented
to show more precisely when each item of outby trash was placed
in the entry. Accordingly, because of the inadequacy of the
Secretary's proof, it may be inferred that the few items found in
the outby area by Meredith on January 31, 1994, may have been in
existence only briefly. No inference of unwarrantability can
therefore be made.
(b) The length of time the non-violative condition existed. As
noted above, the Secretary established only that these materials
came into existence sometime between January 24, 1994 and January
31, 1994. Inspector Meredith opined that "[i]t was over a period
of time that all this stuff had to accumulate in there on each
shift" (Tr. 55). From the quantity of inby trash it may indeed
reasonably be inferred that it had taken more than one shift to
accumulate. Indeed, from Inspector Meredith's observations on
January 24, it may be inferred that some of the same rock dust
bags and wooden pallets may have remained since that date.
However, as long as those materials were in an the inactive area,
they were lawful and the operator had no statutory or regulatory
duty to remove them. In addition, a portion of the trash could
have come into existence only shortly before it was discovered
by Inspector Meredith. Under the circumstances unwarrantability
cannot be inferred.
(c) The relationship between the length of time the violative
condition existed and the length of time the non-violative
condition existed. Inasmuch as the Secretary failed to establish
the length of time that either the violative or non-violative
conditions existed (other than within the broad parameters
between January 24 and January 31, 1994) no clear inferences or
conclusions can be reached in this regard. More specifically, no
relationship has been established because there is no clear
evidence as to how long the outby trash had existed.
3(a) Whether the violative condition was obvious. The Secretary
has failed to sustain her burden of proving that the violative
condition was obvious. It consisted of a relatively small number
of items in a small area (See Gov't Exh. No. 1) and included an
uncertain number of paper bags (rock dust bags), some sandwich
bags, a cardboard box or boxes and a plastic garbage bag
containing some oily rags and sandwich wrappers. The size of the
cardboard boxes, sandwich bags and plastic garbage bag was not
established by the Secretary nor their color, nor other
information such as whether they were covered by coal dust, the
lighting conditions, or whether they were in open view in a well
traveled area or hidden in a crevice or corner.
(b) Whether the non-violative condition was obvious. The non-
violative accumulations extended throughout the No. 3 entry over
a distance of 250 feet and included approximately 100-250 empty
rockdust bags that had been piled 2 or 3 feet high along the rib,
five wooded palettes and a number of wooden cable spools. While
it is not known how long these accumulations had existed, it is
clear that they would have been obvious to anyone inby the check
curtain on January 31, 1994.
(c) The relationship between the violative and non-violative
conditions. The suggestion that the obvious nature of the non-
violative accumulations must have made management aware of the
violative accumulations has previously been discussed and
rejected.
4(a) The degree of danger posed by the violative condition. The
Secretary failed in this case to sustain her burden of proving
that the few combustible items found in the active area at issue
were, in themselves, hazardous. The testimony of Inspector
Meredith regarding the nature of the hazard included both the
non-violative and violative trash (Tr. 51). Indeed, Inspector
Meredith opined that one garbage bag, one box and one rockdust
bag would not even constitute a violation of the cited standard
(Tr. 66). The initial findings in this case that the violation
was not "significant and substantial," are, moreover, now the
established law of the case.
(b) The degree of danger posed by the non-violative conditions.
Inspector Meredith testified that the accumulations were
hazardous in that they "increased the possibility of fires - -
more fuel for a fire if we had one on a longwall face" (Tr. 51).
It was "very combustible." One should be skeptical of such
testimony however in light of the fact that neither by statute
nor by the Secretary's regulations are such accumulations
prohibited in inactive areas. It is also noteworthy that while
the Secretary has acknowledged the fact that such accumulations
were lawful, the Secretary has not seen fit even after 5 � years
to yet proscribe such conditions by regulation, as one would
expect if they were indeed as hazardous as she claims.
However, as I have previously noted, even though the inby
accumulations were lawful I agree that this trash presented some
degree of hazard and that the operator had some duty to clean it
up. The failure to have cleaned up those lawful accumulations
therefore does demonstrate some degree of negligence. However,
because they were not violative and the operator's duty to clean
them up was not clearly stated by statute or regulation, such
negligence was not so aggravated or of such a gross nature as to
constitute the high degree of negligence necessary for an
unwarrantable failure finding.
(c) The relationship between the degree of danger posed by the
violative condition and the degree of danger posed by the non-
violative condition. I do not find that the danger posed by the
non-violative trash and the negligence of the operator in failing
to have cleaned up that trash warrants a finding of negligence
justifying unwarrantable failure findings transferrable to the
violative condition. While the relatively small hazard of the
violative trash could have been enhanced by the larger hazard of
the lawful trash, because of the lack of proof as to length of
time they co-existed no firm conclusions can be made in this
regard.
5. Whether the operator had been placed on notice that greater
efforts were necessary for compliance. In this regard, the
Secretary argues that seven days before the order in this case
was issued another withdrawal order had been issued for
accumulations in an adjacent entry, presumably in an active area
of the mine. The Secretary was unable to represent however that
it was then a final order and was not therefore subject to being
vacated. It was therefore admitted into evidence for a very
limited purpose, not to show that a violative condition had in
fact existed as alleged, but only to show that the Secretary
believed a violative condition had existed. (Tr. 58-59). Thus,
that order cannot ethically be used to show that the operator was
thereby placed on notice by a similar previous violative
condition.
In any event, since this previous order was apparently
issued to an active area of the mine where the accumulations
could very well have been violative, that order would not in
itself have provided notice that the non-violative trash in the
inactive area of the mine at issue herein was unlawful or had to
be promptly removed. Finally, as I have previously found, "on
the facts of this case, wherein only a few combustible items were
found in the active area of a different entry and which could
have been placed there inadvertently without the knowledge of a
responsible official only a short time before discovery, no
inference can be drawn from this prior condition alone sufficient
to support a finding of gross negligence or unwarrantable
failure."
6(a) The operator's efforts in abating the violative condition
made prior to the issuance of the citation or order. No evidence
has been presented to show that the operator made any effort to
clean up the outby trash before the order was issued. However,
it is not known how long this small amount of trash existed or
whether any agent of the operator was aware of this trash.
(b) The operator's efforts in abating the non-violative condition
prior to the issuance of the citation or order. There is no
evidence that the operator attempted to abate or clean up the
non-violative condition prior to the issuance of the order
herein. As I have previously noted, the operator had some duty
to clean up even this lawful accumulation and I have recognized
that its failure to do so constituted a lesser degree of
negligence not amounting to unwarrantable failure.
(c) The relationship between 6(a) and 6(b). There is
insufficient evidence to establish any relationship between 6(a)
and 6(b) because of the absence of a statutory or regulatory duty
to clean up the lawful inby trash and because of the lack of
evidence as to how long the outby trash had existed.
Under all the circumstances I do not find that the Secretary
has sustained her burden of proving that the violation herein was
the result of the operator's "unwarrantable failure."
ORDER
Order No. 3182848 is hereby modified to a citation under
Section 104(a) of the Act without "significant and substantial"
findings.
Gary Melick
Administrative Law Judge
Distribution: (Certified Mail)
David M. Smith, Esq., J. Alan Truitt, Esq., Maynard, Cooper &
Gale, P.C., 1901 Sixth Avenue North, 2400 AmSouth/Harbert Plaza,
Birmingham, AL 35203-2602
Guy Hensley, Esq., Jim Walter Resources, Inc., P.O. Box 133,
Brookwood, AL 35444
William Lawson, Esq., Office of the Solicitor, U.S. Dept. of
Labor, Chambers Building, Highpoint Office Center, Suite 150, 100
Centerview Drive, Birmingham, AL 35216
\mca