<DOC>
[DOCID: f:w-93-375.wais]

 
C.W. MINING COMPANY
August 25, 1995
WEST 93-375


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                      1244 SPEER BOULEVARD #280
                        DENVER, CO 80204-3582
                    303-844-3577/FAX 303-844-5268


                           August 25, 1995
                                      
SECRETARY OF LABOR,         :  CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH    :
  ADMINISTRATION (MSHA),    :  Docket No. WEST 93-375
Petitioner                  :  A.C. No. 42-01697-03653
          v.                :
                            :
C.W. MINING COMPANY,        :  Bear Canyon No. 1 Mine
               Respondent   :
                            :
                            :
SECRETARY OF LABOR,         :  Docket No. WEST 94-399
  MINE SAFETY AND HEALTH    :  A.C. No. 42-01697-03667 A
  ADMINISTRATION (MSHA),    :
               Petitioner   :
          v.                :
                            :  Bear Canyon No. 1 Mine
CYRIL JACKSON, employed by  :
  C.W. MINING COMPANY,      :
               Respondent   :
                           
                               DECISION
                           
Appearances:   Kristi Floyd, Esq., Office of the Solicitor, 
               U.S. Department of Labor, Denver, Colorado, 
               for Petitioner;
               Carl E. Kingston, Esq., Salt Lake City, Utah,
               for Respondents.

Before:   Judge Manning
          
     These cases are before me on petitions for assessment 
of civil penalty filed by the Secretary of Labor, acting 
through the Mine Safety and Health Administration ("MSHA"), 
against C.W. Mining Company ("C.W. Mining") and Cyril 
Jackson, pursuant to sections 105 and 110 of the Federal 
Mine Safety and Health Act of 1977, 30 U.S.C. 
�� 815 and 820 ("Mine Act").  The petitions allege that 
each respondent violated the mine's ventilation plan.  For
the reasons set forth below, I find that C.W. Mining 
violated the ventilation plan, that the violation was of a 
significant and substantial nature, but that it was not
caused by C.W. Mining's unwarrantable failure.  I assess a
civil penalty in the amount of $2,000.  I find that Cyril
Jackson did not knowingly violate the ventilation plan and 
I dismiss the proceeding filed against him.

     A hearing was held in these cases on February 7, 1995,
in Salt Lake City, Utah.  The parties presented testimony 
and documentary evidence and filed post-hearing briefs.

                         I.  FINDINGS OF FACT

     The Bear Canyon No. 1 Mine is an underground coal 
mine in Sevier County, Utah.  On January 20, 1993, MSHA 
Inspector Fred Marietti issued C.W. Mining an order of 
withdrawal (the "order") under section 104(d)(2) of the 
Mine Act alleging a violation of 30 C.F.R. � 75.370(a)(1) 
at its Bear Canyon No. 1 Mine.[1]  The order states the 
following:

          The continuous mining machine was cutting and 
     loading coal in the pillar split between No. 4 and 
     5 rooms.  There appeared to be little air over the 
     machine.  The air was measured with an anemometer, 
     and no movement was indicated.  The split was broke 
     through on the right corner about a 3 feet X 3 feet 
     opening to the gob.  The hole was partially blocked 
     off by cave gob.  The section foreman was observing 
     the mining standing next to the writer.  It was 
     obvious that there was little air.  The dust was 
     boiling back towards the operator's compartment.  
     This machine was in the east bleeder section, 
     MMU006.

     In the order the inspector indicated that the alleged 
violation was significant and substantial and was caused 
by C.W. Mining's high negligence.  The Secretary assessed 
a penalty of $2,500 against C.W. Mining under section 
110(a) of the Act and a penalty of $3,000 against Cyril 
Jackson under section 110(c).

     After arriving at the mine, Inspector Marietti 
proceeded to the east bleeder section.  On his way to the 
face area he observed Cyril Jackson, a section and
production foreman, in Room 4 setting a breaker row with 
other miners.[2]  (Tr. 61-62, 84, 170, 218).  The inspector 
was accompanied by Ken Defa, the mine superintendent.  
Marietti and Defa then proceeded to Room 5. (Tr. 85, 109).  
In this area, the inspector observed a shuttle car.  Id.
He later returned to the shuttle car and issued a 
citation because it was not in permissible condition.  
(Tr. 163, 260; Ex. G-8).  Marietti and Defa then proceeded 
to the face area. (Tr. 171).  In the meantime, Jackson had
walked past Marietti and Defa to the face and arrived in 
that area before they did. (Tr. 171, 219-220).

     At the face, Ryan Thompson was operating a continuous 
mining machine.  C.W. Mining was retreating from the east 
bleeder section and was, therefore, removing the pillars.  
The pillar between crosscut 4 and 5 had been split on a 
previous shift.[3]  For reasons that are not clear, the 
entire split was not cut and a wall of coal was left at 
the back.  A hole about three by five feet in diameter was 
cut on the right side of this wall. (Tr. 58, 156). The gob 
was behind this wall and the hole was partially blocked 
because the roof had caved in the gob.  Id.  Thompson was 
cutting into the pillar of coal to the right of the split, 
called a fender, when Jackson arrived.  Coal dust was 
blowing back over the continuous miner.  
(Tr. 59-60, 81-82, 124). The parties offered conflicting 
testimony as to the events that followed.  C.W. Mining's 
witnesses testified that Thompson had just started mining 
the fender and had not completely filled the first shuttle
car with coal when Jackson arrived.  (Tr. 159).  In 
addition, they testified that Jackson arrived at the face 
less than a minute before the inspector. 
(Tr. 171-172, 220-222).  Jackson stated that he immediately
saw that there was a ventilation problem and attempted to
signal Thompson to stop mining.  (Tr. 220-222).  Defa
testified that when he saw the dust, he started examining 
the curtains to find the problem.  (Tr. 87, 173).  When 
the inspector told Defa and Jackson that he was issuing 
an order, they replied that they saw the violation, but 
that they did not understand why an order was being 
issued.  (Tr. 68, 177, 222).

     The Secretary takes the position that Jackson arrived
at the face several minutes before the inspector and he 
made no attempt to stop Thompson from mining. 
(Tr. 60-61, 77-78, 255). Inspector Marietti testified that 
he waited a short time for Jackson to take some action and,
when he did not, he told Jackson that he was going to issue 
an order.  Id.  The inspector testified that Jackson then 
asked him if Thompson could finish loading the shuttle car 
before he shut down. (Tr. 101).  When the inspector refused
this request, Jackson shut down the continuous miner.  
(Tr. 100-101, 108).

     Inspector Marietti issued the unwarrantable failure 
order based on the conditions he observed and the events 
that occurred at the face.  (Tr. 60-61).  The violation 
was abated a few hours later by tightening existing 
curtains and installing a line curtain brought in from 
another section. (Tr. 69, 70-71, 128, 201).

                II.  SUMMARY OF THE PARTIES' ARGUMENTS

     C.W. Mining does not dispute that the conditions 
observed by Inspector Marietti violated the mine's 
ventilation plan.  It contends, however, that the 
violation was not S&S, was not caused by its unwarrantable
failure, and that Jackson did not knowingly authorize the 
violation.

     A.  Secretary

     The Secretary contends that the violation was S&S 
because, if left unabated, the condition "would reasonably 
likely result in an accident, resulting in an injury of a 
very serious nature."  (S. Br. 6).  He argues that C.W. 
Mining was grossly out of compliance with its ventilation 
plan because the inspector detected no air movement with 
his anemometer. The Secretary maintains that the 
conditions presented three distinct hazards:  inhalation 
of respirable dust, ignition or explosion of coal dust, 
and methane accumulations.  He further argues that there 
were a number of ignition sources in the area that could 
ignite the coal dust or methane.

     The Secretary maintains that the violation was the 
result of C.W. Mining's unwarrantable failure to comply 
with the ventilation plan because the violation was 
"extremely obvious." (S. Br. 8).  He argues that C.W.
Mining should have been aware that the area was not 
adequately ventilated because there was only a small, 
partially blocked hole at the back of the split.  He 
contends that Jackson should have addressed the problem 
before the fender was cut.  The Secretary further 
maintains that Jackson arrived at the face well before the
inspector and that his failure to take corrective action,
either before or after the inspector arrived at the face,
constituted aggravated conduct.  Finally, the fact that
Jackson asked the inspector to delay shutting down the 
continuous miner until the shuttle car was loaded 
demonstrates C.W. Mining's lack of concern about the 
inadequate ventilation.

     The Secretary argues that Cyril Jackson knowingly 
authorized, ordered, or carried out the violation.  The 
Secretary contends that Jackson knew that his crew was 
mining the right fender of the split, that there was only 
a small hole at the back of the split, and that it was his 
responsibility to assure adequate ventilation.  Despite 
this knowledge, the Secretary contends that Jackson did 
nothing to correct the situation and, in addition, asked 
the inspector if he could continue mining to finish 
loading the shuttle car.

     A.  C.W. Mining

     C.W. Mining contends that the Secretary did not 
establish that the violation was S&S.  It states that the 
condition existed for a few minutes at the most, and that 
Mr. Jackson stopped the continuous miner once he observed 
the dusty conditions. C.W. Mining states that the 
inadequate ventilation would not have continued once the 
shuttle car was loaded.  Thus, it maintains that the 
Secretary failed to establish that there was a reasonable 
likelihood that the dusty conditions would have caused an 
injury or illness.

     C.W. Mining also contends that, because the 
     inadequate ventilation observed by the inspector had 
existed only for a few minutes and Jackson started taking 
remedial steps as soon as he became aware of it, the 
violation was not the result of its unwarrantable failure 
and Mr. Jackson did not knowingly authorize, order, or 
carry out the violation.  C.W. Mining also argues that it
has a good history of compliance with its ventilation plan
and it regularly instructs its continuous miner operators 
to stop mining if the ventilation is not sufficient.

                III.  DISCUSSION WITH FURTHER FINDINGS
                                 AND
                          CONCLUSIONS OF LAW

     A.  Significant and Substantial

     The Commission has established a four-part S&S test, 
as follows:

     In order to establish that a violation of a mandatory 
     safety standard is significant and substantial ..., 
     the Secretary of Labor must prove:  (1) the 
     underlying violation of a mandatory safety standard; 
     (2) a discrete hazard -- that is, a measure of danger 
     to safety -- contributed to by the violation; (3) a 
     reasonable likelihood that the hazard contributed to 
     will result in an injury; and (4) a reasonable
     likelihood that the injury in question will be of a
     reasonably serious nature.

     Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984).  An
evaluation of the reasonable likelihood of an injury 
should be made assuming continued normal mining operations. 
U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985).

     I find that the Secretary established that the 
violation was S&S. C.W. Mining does not seriously dispute 
that the Secretary established the first two elements of 
the Mathies test.  It contends, however, that the third 
and fourth elements were not met.  I agree with C.W. 
Mining that the continuous miner had been cutting into the 
fender for only a minute or so when Jackson arrived at the 
face.[4]  Assuming continued normal mining operations, 
however, the condition would likely have continued for a 
longer time.

     The hazards of coal dust are well known.  Although 
MSHA did not take a dust survey at the time, I believe that 
the evidence establishes that a significant amount of coal 
dust was boiling back over the continuous miner and was not 
being carried away by the ventilation system.  (Tr. 73).  
Inspector Marietti could detect no perceptible movement of 
air in the area.

     The miners in the area were not wearing respirators 
and were exposed to the coal dust.  (Tr. 76).  
Pneumoconiosis is a progressive disease that can afflict 
coal miners who are exposed to dust over a period of 
years.  Apparently, no miner who has worked at the Bear 
Canyon No. 1 Mine has ever filed a claim for black lung 
benefits.  (Tr. 185).  That fact, however, does not lessen 
the hazard.

     Inspector Marietti testified that he discovered a 
permissibility violation on a shuttle car in the section 
and an accumulation of coal on one part of continuous 
miner.  (Tr. 103-104).  This evidence is not contested by 
C.W. Mining. (Tr. 163-164, 182).  The permissibility 
violation was a potential ignition source for the dust and 
the accumulation could help spread a fire.  Although the 
coal seam does not contain large amounts of rock, the bits 
of the continuous miner could, nevertheless, strike a rock 
and create a spark causing an ignition of the coal dust.  
(Tr. 29, 74, 103). Finally, although excessive amounts of 
methane are not emitted at the mine, methane could be 
released at the face and mix with the coal dust thereby 
increasing the likelihood of an ignition.  (Tr. 75).  In 
order for an ignition to occur, there must be a confluence 
of factors.  Texasgulf, Inc., 10 FMSHRC 498, 501 (April 
1988).  In the present case, the shuttle car with 
impermissible gaps would have traveled to the dusty area,
assuming continued normal mining operations.

     Taking into consideration the health risk and 
ignition hazard posed by the violation, I find that there 
was a reasonable likelihood that the hazard contributed to 
would have resulted in an injury.[5]  I also find that the 
Secretary established the fourth element of the Mathies 
S&S test.  If there was an ignition in the area, miners 
could be burned or killed.  In addition, black lung
disease is a serious progressive disease.

     B.  Unwarrantable Failure

     In Emery Mining Corp., 9 FMSHRC 1997, 2001 (December 
1987), the Commission determined that unwarrantable 
failure is aggravated conduct constituting more than 
ordinary negligence. Unwarrantable failure is 
characterized by such conduct as "reckless disregard," 
"intentional misconduct," "indifference," or "serious lack 
of reasonable care."  Id. at 2003-04; Rochester & 
Pittsburgh Coal Corp., 13 FMSHRC 189, 193-194 (February 
1991).

     I find that the Secretary did not establish that the 
violation was caused by C.W. Mining's unwarrantable 
failure to comply with the ventilation plan.  The 
Secretary is asking that I conclude that C.W. Mining 
engaged in aggravated conduct based on inferences drawn 
from events and conversations that occurred at the face in 
a very short period of time.  As discussed below, I 
believe during this period there was a breakdown in 
communications and that this breakdown is the primary 
source of the con-flicting testimony.

     I credit the testimony of Defa and Jackson that 
Jackson arrived at the face only moments before the 
inspector.  (Tr. 171-172, 220).  Jackson walked from 
Room 4 to the face via the same route as the inspector.  
Inspector Marietti also proceeded to the face with only a 
momentary stop at a shuttle car.  Jackson could not have 
been at face very long before the inspector arrived.

     I also credit the testimony of Defa and Jackson that 
Jackson attempted to signal Thompson to stop the 
continuous miner. (Tr. 172, 178-179, 220-221).  Jackson 
is an experienced miner and is familiar with the MSHA 
inspection process.  It is hard to believe that he would 
stand there, knowing that Inspector Marietti was on the 
way, and do nothing about the violation that everyone said 
was obvious.  Apparently, Thompson did not see his signal 
and kept mining.  (Tr. 126).  The dark, noisy environment 
of underground coal mining makes communication difficult.

     I believe that Inspector Marietti perceived that 
Jackson was not doing anything to correct the violation 
because the continuous miner operator was still mining 
when he arrived. (Tr. 59, 76-77).  The inspector did not 
see Jackson's signal. Inspector Marietti testified that 
Jackson asked him if the operator could finish filling 
the shuttle car before he shut down.  (Tr. 76, 101).  
Jackson denied making this statement and testified that 
the inspector told him that if he had stopped the 
continuous miner before the shuttle car was loaded, then 
a citation would have been issued, rather than an order.
(Tr. 222).  A shuttle car is usually filled in about a
minute.  (Tr. 99, 126, 146, 159).  Accordingly, this
discrepancy is not particularly sig-nificant.[6]  I cannot
assume that Jackson was disregarding the hazard presented
by the violation based on the inspector's testimony about 
this conversation.

     The Secretary also contends that Jackson should have 
known, before Thompson started mining, that the 
ventilation would not be sufficient because there was only 
a small hole at the back of the pillar split and it was 
partially blocked.  Jackson examined the split about 30 
minutes before Thompson started mining the fender, but he 
did not measure the air flow.  (Tr. 216, 247; Ex. G-9).   
Nevertheless, I believe that Jackson's failure to adjust 
the ventilation earlier in the shift constitutes, at most, 
ordinary negligence, not aggravated conduct.  First, the 
configuration of the pillar split with the hole in the 
back was somewhat unusual.  (Tr. 90, 243). There is no 
indication that a line curtain is usually needed when 
making the first cut into a fender.  (Tr. 35-36, 156).
Second, it is not clear when the gob caved behind the 
split and partially blocked the hole.  It is common for 
the roof in the gob to cave during retreat mining and the 
resulting bump can affect ventilation.  
(Tr. 91, 174-175, 223, 229).  Defa and Jackson testified 
that they heard the roof cave a few minutes before they 
were at the face.  (Tr. 174, 176, 218, 223-224, 238).  
They thought the hole was clear before that time.  Id.  
Thompson, on the other hand, testified that the hole was 
partially blocked when he arrived at the split.  
(Tr. 122, 126, 132-133).  Finally, there were curtains in 
the area to direct air into the split.  
(Tr. 55-58, 92-94; Exs. G-4, G-6).  Apparently, C.W. 
Mining was having difficulty keeping the curtains tight, 
in part because of the bumps.  (Tr. 80, 94, 174, 198, 223).
Inspector Marietti tes-tified that if all of the curtains 
that were in place had been tight, the ventilation at the 
face may have been adequate. (Tr. 98).

     C.  Liability of Cyril Jackson under Section 110(c)

     Section 110(c) of the Mine Act provides that, 
whenever a corporate operator violates a mandatory health 
or safety standard, any agent of such corporate operator 
who "knowingly authorized, ordered, or carried out such 
violation" shall be subject to a civil penalty.  
30 U.S.C. � 820(c).  The Commission has held that a 
"violation under section 110(c) involves aggravated 
conduct, not ordinary negligence." BethEnergy Mines, Inc.,
14 FMSHRC 1232, 1245 (August 1992).

     C.W. Mining is a corporate operator and Mr. Jackson 
was an agent of the corporation.  In addition, as 
discussed above, the corporate operator violated the 
mine's ventilation plan and, as a consequence violated 
30 C.F.R. � 75.370(a)(1).  I find, however, that Jackson 
did not knowingly authorize, order, or carry out the 
violation.  I reach this conclusion for the same reasons 
that I concluded that the violation was not unwarrantable, 
as discussed above.  I find that Jackson was somewhat 
negligent by not checking the air flow before Thompson 
started cutting.  I conclude, however, that he did not
knowingly violate the ventilation plan.  Based on the 
facts available to him, Jackson did not have "reason to 
know that a violative condition or conduct would occur" 
and he did not fail "to take appropriate preventive
steps."  Roy Glenn, 6 FMSHRC 1583, 1586 (July 1984).  He 
believed that there was sufficient air in the split.  He 
also took steps to stop production once he saw that the 
ventilation was inadequate. Inspector Marietti assumed 
that because he did not see Jackson try to stop the 
continuous miner, Jackson had not, in fact, done so.  
(Tr. 108, 222, 257).

     The Secretary bases its 110(c) allegation, in large 
measure, on the events that took place at the face in the 
first few moments after the inspector arrived.  (Tr. 221).
I have determined that there was a miscommunication 
between Inspector Marietti and Jackson at that time.  As 
discussed above, I find that Jackson tried to signal 
Thompson to stop mining, but the inspector did not see him 
do so.  When Jackson stood there a few moments without 
taking any action, Inspector Marietti concluded that 
Jackson was indifferent to the violation and issued the 
withdrawal order.  (Tr. 60-61, 257-258).

                    IV.  CIVIL PENALTY ASSESSMENT

     Section 110(i) of the Mine Act, 30 U.S.C. � 820(i), 
sets out six criteria to be considered in determining the 
appropriate civil penalty.  Based on this criteria, I 
assess a penalty of $2,000 for the violation.  I find that
C.W. Mining was issued 148 citations and orders in the 24 
months preceding the inspection in this case.  (Ex. G-1).  
I also find that C.W. Mining is a medium-sized operator 
that produced between 300,000 and 400,000 tons of coal in 
1992.  I find that the civil penalty assessed in this 
decision would not affect C.W. Mining's ability to 
continue in business.  The violation was timely abated by 
C.W. Mining.  I further find that the violation was very 
serious, and that C.W. Mining's negligence was moderate.  
In assessing the penalty, I gave special consideration to 
the violation's high level of gravity.

                              V.  ORDER

     In WEST 93-375, Order No. 3852378 is MODIFIED to a 
section 104(a) citation by deleting the unwarrantable
failure designation and reducing the level of negligence 
to moderate. As modified, the citation is AFFIRMED and 
C.W. Mining Company is ORDERED TO PAY Secretary of Labor 
the sum of $2,000.00 within 40 days of the date of this 
decision.

     In WEST 94-399, Order No. 3852378 is VACATED against
Cyril Jackson and the civil penalty proceeding is 
DISMISSED.


                              Richard W. Manning
                              Administrative Law Judge


Distribution:

Kristi Floyd, Esq., Office of the Solicitor, U.S.
Department of Labor, 1999 Broadway, Suite 1600, Denver, CO
80202-5716 (Certified Mail)

Carl E. Kingston, Esq., 3212 South State Street, P.O. Box 
15809, Salt Lake City, UT 84115 (Certified Mail)

RWM


  **FOOTNOTES**

       [1]:  The cited safety standard provides that all 
  coal mine operators "shall develop and follow a 
  ventilation plan approved by the district manager."  The 
  order alleges that C.W. Mining was not following its 
  approved ventilation plan.

       [2]:  Inspector Marietti apparently used incorrect 
  numbers when referring to various rooms on the section.  
  (Tr. 85, 171). I have used his numbering system because 
  his numbers were used by all witnesses throughout the 
  hearing.

       [3]:  Mr. Thompson testified that he mined part of 
  the split earlier on the same shift.  (Tr. 121).  I have 
  not relied upon this testimony because it is contrary to 
  the testimony of Defa and Jackson and because it would 
  have been difficult, if not impossible, for Thompson to 
  have finished cutting the split that morning.  
  (Tr. 203, 237-238).  C.W. Mining is required to cut 
  pillars in an approved pattern and bolt the roof after 
  each cut. (Tr. 51; Ex. G-3).  There was no dispute that 
  the pillar split was bolted and clean at the time 
  Inspector Marietti arrived at about 9:45 a.m.  Earlier 
  in the shift, Thompson had been removing the stump from 
  another pillar.  (Tr. 121, 215-216).  There was not 
  enough time after the start of the shift, 6:00 a.m., for 
  him to have removed the stump, mined the last section of
  the split, and for the crew to have cleaned and bolted 
  the area.  (Tr. 66).

       [4]:  Mr. Thompson testified that he had been
  mining in the fender for 15 or 20 minutes and that he 
  had cut about 20 feet. (Tr. 128-129).  I have not relied 
  upon this testimony because it is contrary to the 
  testimony of the inspector, Defa, and Jackson. 
  (Tr. 65, 77, 159, 225, 231).  In addition, the metal 
  surfaces of the continuous miner were clean of coal dust.
  (Tr. 182-183; Ex. R-1).  Given the amount of dust that 
  was being produced, the machine would have been dusty if 
  Thompson had been mining for 15 or 20 minutes.

    In addition, I find that the violation was S&S 
  considering the ignition and fire hazard alone.

       [6]:  The shuttle car that Thompson was loading was
  the first shuttle car to be filled on that shift. 
  (Tr. 172, 224). As a consequence, it is unlikely that 
  Jackson was motivated by production concerns.  For the 
  reasons set forth in footnote 4, I have not given any 
  weight to Thompson's testimony that he had loaded eight 
  to ten shuttle cars.  (Tr. 136-137).