<DOC>
[DOCID: f:va95-17.wais]
GARY WAYNE CRABTREE
September 18, 1995
VA 95-17
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
September 18, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 95-17
Petitioner : A. C. No. 44-06240-03590 A
v. :
: Mine No. 1
GARY WAYNE CRABTREE, :
Employed by :
J&E COAL COMPANY :
INCORPORATED, :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 95-18 Petitioner
: A. C. No. 44-06240-03591 A v.
:
: Mine No. 1
DANNY KEITH CRABTREE, :
Employed by :
J&E Coal Company :
INCORPORATED, :
Respondent :
DECISION
Appearances: Colleen A. Geraghty, Esq., Office of the
Solicitor, U.S. Department of Labor,
Arlington, Virginia, for Petitioner;
Gary Wayne Crabtree, Honaker, Virginia,
Pro Se; Danny Keith Crabtree, Honaker,
Virginia, Pro Se.
Before: Judge Hodgdon
These consolidated cases are before me on petitions
for assessment of civil penalty filed by the Secretary of
Labor, acting through his Mine Safety and Health
Administration (MSHA), against Gary Wayne Crabtree and
Danny Keith Crabtree pursuant to Sections 105 and 110 of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
�� 815 and 820. The petitions allege that each of the
respondents knowingly authorized, ordered or carried out,
as an agent of J&E Coal Company, violations of Sections
75.400 and 75.403 of the Secretary's mandatory health and
safety standards, 30 C.F.R. �� 75.400 and 75.403, and seek
penalties of $1,400.00 against each Respondent. For the
reasons set forth below, I find that Danny Keith Crabtree
knowingly violated the regulations and assess a penalty
of $400.00, and that Gary Wayne Crabtree knowingly
violated Section 75.403, but did not knowingly violated
Section 75.400, and assess a penalty of $400.00.
A hearing was held on July 11, 1995, in Abingdon,
Virginia. MSHA Coal Mine Inspector Vearl Hileman, MSHA
Supervisor Larry A. Coeburn, MSHA Special Investigator
Michael D. Clements and miner Roy W. Honaker testified for
the Secretary. Respondent Gary Wayne Crabtree was called
as a witness by the Secretary and testified further at
the request of the judge.
DANNY KEITH CRABTREE
At the start of the hearing, counsel for the
Secretary stated that the Secretary and Danny Keith
Crabtree had reached a settlement in his case. The
agreement provides for a reduction in penalty from
$1,400.00 to $400.00 and payment of the penalty by Mr.
Crabtree in two monthly installments of $200.00 each.
Having considered the representations of the parties,
(Tr. 5-9), I conclude that the settlement is appropriate
under the criteria set forth in Section 110(i) of the Act,
30 U.S.C. � 820(i), and approve the settlement. The
agreement's provisions will be carried out in the order at
the end of this decision.
GARY WAYNE CRABTREE
On May 9, 1994, Inspector Hileman issued Citation No.
3770559 and Order No. 3770560 to J&E Coal Company. The
citation alleged a violation of Section 75.400 because an
[a]ccumulation of loose coal and coal dust was allowed to
accumulate in depths of 1 inch to 18 inches along the Long
John belt on the 001 section, on the mine floor for a
distance of approximately 300 feet, and into x cuts right
and left. Accumulations were on the mine floor over the
entire section in depths of 1 inch (approximately). A
large quantity was present at Survey Section No. 2831 and
outby in several locations.
(Govt. Ex. 1.) The citation was modified on June 8,
1994, to include "the area of the conveyor belt drive on
the No. 3 conveyor belt and extending inby for a distance
of 900 feet. Accumulations of 1 inch to 5 inches were
present along the off side of the conveyor belt, on the
mine floor." (Id.)
The order was for a violation of Section 75.403,
stating that "[r]ock dust has not been applied to the mine
roof on the 001 section[.] [A]dequate rock dust has not
been applied to the mine floor as indicated by samples
collected on this date[.] [T]he area affected is aprox.
[sic] 300 feet in each of the 5 entrys [sic]. Also bare
power wire was found at the battery charging station
(energized) in dry powdery coal dust." (Govt. Ex. 2.)
Inspector Hileman testified that Danny Keith Crabtree
was foreman on the day shift and was present on the
morning of May 9 when the inspector observed the
violations. The inspector stated that "there was quite an
accumulation of coal along the [No. 3] belt line . . . one
inch up to maybe 10 . . . [for] approximately 600 feet,"
(Tr. 20-21.), "there was extreme accumulations of coal
. . . 18 inches of coal" in a large dip in the coal bed in
the conveyor belt entry, (Tr. 22-23), in the No. 2 entry
he "found the same conditions as I found along the belt,"
(Tr. 24), and that in all the entries he found "[t]he
same conditions that I had found in the No. 2 entry and
the No. 3 entry," (Tr. 25).
It was the inspector's opinion that "it would have
taken several weeks" for the accumulations to have
developed. (Tr. 26.) He believed that the accumulations
had occurred:
By not being properly cleaned up as they mined daily.
. . . There was other factors. The bridge system has
junctions where the coal dumps from one bridge to the
other, and at the junction points there is supposed
to be adequate skirting there to keep the spillage
from spilling. This skirting had become deteriorated
to quite an extent. It was causing a lot of spilling.
(Tr. 26-27.) He further related that the
accumulations were very black in appearance, and dry.
With regard to the failure to rock dust, Inspector
Hileman testified that for "300 feet in each of the five
entries" the roof was "[d]ark. Actually it was -- it
looked gray because you don't usually have any coal dust
on the mine roof to an extreme, but still have to rock
dust it." (Tr. 34-35.) He also said that in the same
areas the mine floor and the ribs were "black." (Tr. 35.)
To confirm his opinion, he took dust samples in the No. 3
and No. 4 entries which were determined to be 37 percent
and 28 percent incombustible, respectively. (Govt. Ex. 4.)
Gary Wayne Crabtree testified that he was the foreman
on the evening shift, 3:00 PM to 11:00 PM. He stated that
the duties of the evening shift were: "Well, we were
mostly maintenance, and then we done what cleanup, if
there was some cleanup needed to be done we done cleanup,
and we did mostly -- well, I can't really say all the rock
dusting, but generally most of the rock dusting." (Tr. 79.)
He asserted that he saw "nothing unusual" in the way
of coal accumulations while performing his on-shift
examination on May 6, 1994, although he did see some
accumulations because "there's coal in the coal mines.
. . . And you will see coal, you know, when you're in the
coal mines. You'll see some coal." (Tr. 81.) Mr.
Crabtree testified that the floor and ribs of the mine
were rock dusted by hand using the following method: "You
just open up a bag, and you just spread it out on the
ribs, you know. And on the bottom, you kind of bust them
up and then just kick them around." (Tr. 82.) He agreed
that there "most definitely" is a visual difference
between ribs and floor that have been rock dusted and ones
that have not. (Tr. 85.)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This case was brought under Section 110(c) of the Act,
30 U.S.C. � 820(c) which provides:
Whenever a corporate operator violates a mandatory
health or safety standard . . . any director,
officer, or agent of such corporation who knowingly
authorized, ordered, or carried out such violation
. . . shall be subject to the same civil penalties
. . . that may be imposed upon a person under
subsections (a) and (d).
Therefore, in order to find Gary Wayne Crabtree
personally liable for the two violations in this case, the
Secretary must prove that the violations occurred and that
Mr. Crabtree knowingly authorized, ordered, or carried
them out.
In this case, there is no doubt that the company
violated Sections 75.400[1] and 75.403[2] of the
Secretary's Regulations. However, while I find that Gary
Wayne Crabtree knowingly violated Section 75.403, I find
that the Secretary has not proven that he knowingly
violated Section 75.400.
The Commission set out the test for determining
whether a corporate agent has acted "knowingly" in Kenny
Richardson, 3 FMSHRC 8, 16 (January 1981), aff'd,
689 F.2d 623 (6th Cir. 1982), cert. denied, 461 U.S. 928
(1983) when it stated: "If a person in a position to
protect safety and health fails to act on the basis of
information that gives him knowledge or reason to know of
the existence of a violative condition, he has acted
knowingly and in a manner contrary to the remedial nature
of the statute."
In Roy Glenn, 6 FMSHRC 1583 (July 1984), the
Commission explained that this test also applies to a
situation where the violation does not exist at the time
of the agent's failure to act, but occurs after the
failure. It said:
Accordingly, we hold that a corporate agent in a
position to protect employee safety and health has
acted `knowingly', in violation of Section 110(c)
when, based on the facts available to him, he either
knew or had reason to know that a violative
condition or conduct would occur, but he failed to
take appropriate preventive steps.
Id. at 1586. The Commission has further held,
however, that to violate Section 110(c), the corporate
agent's conduct must be "aggravated," i.e. it must involve
more than ordinary negligence. Wyoming Fuel Co.,
16 FMSHRC 1618, 1630 (August 1994); BethEnergy Mines,
Inc., 14 FMSHRC 1232, 1245 (August 1992); Emery Mining
Corp., 9 FMSHRC 1997, 2003-04 (December 1987).
In this case, the evidence does not support a finding
of aggravated conduct on the part of Mr. Crabtree with
respect to the accumulations. In the first place, there
is no direct evidence what accumulations, if any, there
were on the second shift the Friday before the inspector
inspected the mine. Mr. Crabtree says there was nothing
unusual. In the second place, it appears that the worst
accumulations were along the belt lines, which Mr.
Crabtree says he did not inspect. Finally, since the first
shift had already been working for about two hours when
Inspector Hileman entered the mine, there is no way to
determine how much of the accumulations had occurred that
morning.
Ultimately, whether Gary Wayne Crabtree knowingly
violated Section 75.400 depends on whether one accepts his
opinion or the inspector's opinion. In view of the
factors set out in the preceding paragraph, I will give
Mr. Crabtree the benefit of the doubt and resolve the
issue in his favor. Consequently, I conclude that he did
not knowingly authorize, order or carry out the violation.
The same cannot be said, however, for the violation
of Section 75.403. This violation occurred in the entries,
an area the foreman was supposed to examine, not along the
beltlines. As Mr. Crabtree admitted, one of the main jobs
of the second shift was to rock dust. Furthermore, his
testimony was less precise than about the accumulations in
that he talked about rock dusting in general and not with
regard to the specific occurrence. Finally, his
description of how the second shift rock dusted shows that
the job was not taken seriously, but was performed only
half-heartedly. When this is considered against the
description by Inspector Hileman of the color of the
entries that he observed on Monday morning, as well as
against the results of the dust samples, taken 90 to 100
feet outby the working faces, which showed a significant
deficiency of rock dust in the entries, it is apparent
that little or no rock dusting had been done recently.
As Mr. Crabtree acknowledged, it is easy to tell an area
of the mine that has been rock dusted from one that has
not.
All of this establishes that Gary Wayne Crabtree knew
or should have known that proper rock dusting was not
being performed and took no action to correct it. Since
one of his main functions was to see that this was done,
I conclude that he knowingly authorized the violation of
Section 75.403.
CIVIL PENALTY ASSESSMENT
The Secretary has proposed a penalty of $600.00 for
the violation of Section 75.403. 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). While all
of the criteria are not directly applicable to an
individual, they can be applied by analogy.
In this case, there is evidence that Gary Wayne
Crabtree has not worked in a coal mine for a year. As of
the day of the hearing, he was self-employed in the
logging and sawmill business and had earned about
$6,800.00 for the year. He has three children to support.
Factoring all of this into the six criteria, I conclude
that a penalty of $400.00 is appropriate for this
violation.
ORDER
I conclude that Danny Keith Crabtree, in accordance
with the settlement agreement, knowingly authorized
violations of Sections 75.400 and 75.403 at the J&E Coal
Company Mine No. 1 on May 9, 1994. I further conclude
that Gary Wayne Crabtree knowingly authorized a violation
of Section 75.403, but did not knowingly authorize a
violation of Section 75.400. Accordingly, Danny Keith
Crabtree is ORDERED TO PAY a civil penalty of $400.00, in
two monthly installments of $200.00,[3] and Gary Wayne
Crabtree is ORDERED TO PAY a civil penalty of $400.00. On
receipt of payment, these proceedings are DISMISSED.
T. Todd Hodgdon
Administrative Law Judge
Distribution: Colleen A. Geraghty, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015
Wilson Blvd., Arlington, VA 22203
(Certified Mail)
Gary Wayne Crabtree, Route 1, Box 89-A,
Honaker, VA 24260 (Certified Mail)
Danny Keith Crabtree, Route 1, Box 161,
Honaker, VA 24260 (Certified Mail)
/lsb
**FOOTNOTES**
[1]: Section 75.400 states: "Coal dust, including
float coal dust 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."
[2]: Section 75.403 states:
Where rock dust is required to be applied, it
shall be distributed upon the top, floor, and
sides of all underground areas of a coal mine and
maintained in such quantities that the incombustible
content of the combined coal dust, rock dust, and
other dust shall be not less than 65 per centum, but
the incombustible content in the return aircourses
shall be no less than 80 per centum.
[3]: Evidence received since the hearing from MSHA's
Civil Penalty Compliance Office indicates that Danny
Keith Crabtree has already made one $200.00 payment.