.
ENERGY FUELS COAL INC.
February 16, 1996
WEST 93-642
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268
February 16, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 93-642
Petitioner : A.C. No. 05-03455-03626
:
v. : Docket No. WEST 93-643
: A.C. No. 05-03455-03627
ENERGY FUELS COAL INC., :
Respondent : Southfield Mine
DECISION
Appearances: Kristi Floyd, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Phillip D. Barber, Esq., Dufford & Brown, P.C.,
Denver, Colorado,
for Respondent.
Before: Judge Cetti
I
These consolidated cases are before me upon petitions for
assessment of civil penalties under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. � 801 et seq. (1988) ("Mine Act" or
"Act"). The Secretary of Labor (Secretary) seeks civil penalties
from Respondent, Energy Fuels Coal Inc. (Energy Fuels), pursuant
to section 105(d) of the Act for the alleged violation of three
regulatory safety standards found in Parts 75 and 77, Title 30,
Code of Federal Regulations.
STIPULATIONS
1. Energy Fuels is engaged in mining and selling of
bituminous coal in the United States and its mining operations
affect interstate commerce.
2. Energy Fuels is the owner and operator of Southfield
Mine, MSHA I.D. No. 05-03455.
3. Energy Fuels is subject to the jurisdiction of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et
seq. ("the Act").
4. The Administrative Law Judge has jurisdiction in this
matter.
5. The subject citations were properly served by a duly
authorized representative of the Secretary upon an agent of
respondent on the dates and places stated therein, and may be
admitted into evidence for the purpose of establishing their
issuance and not for the truthfulness or relevancy of any
statements asserted therein.
6. The exhibits to be offered by respondent and the Sec-
retary are stipulated to be authentic but no stipulation is
made as to their relevance or the truth of the matters asserted
therein.
7. The proposed penalties will not affect respondent's
ability to continue in business.
8. The operator demonstrated good faith in abating the
violations.
9. Energy Fuels is a mine operator with 330,568 tons of
production in 1993.
10. The certified copy of the MSHA Assessed Violations
History accurately reflects the history of this mine for the two
years prior to the date of the citations.
Citation No. 3589183
Ned Zamarripa, a federal mine inspector, issued this 104(a)
citation following his inspection of the mine site. The citation
reads as follows:
No guard was provided for the conveyor head
pulley that is located on the top floor of
the coal preparation plant. The conveyor
transports coal from the row coal storage
area to the prep plant.
The citation charges Energy Fuel with the violation of a
mandatory safety standard 30 C.F.R. � 77.400(c). That standard
reads as follows:
(c) Guards at conveyor-drive, conveyor-
head, and conveyor-tail pulleys shall extend
a distance sufficient to prevent a person
from reaching behind the guard and becoming
caught between the belt and the pulley.
Thus the standard not only requires a guard for the conveyor
head-pulley but specifically requires that the guard must "extend
a (sufficient) distance" that a person cannot reach behind the
guard and become caught between the contact or pinch-point be-
tween the belt to the pulley.
The guard observed by the inspector was, at best, in the
nature of a perimeter or area guard rather than one that extend-
ed a sufficient distance to guard the specific contact points
that a person could contact by reaching behind the guard.
It is undisputed that the purported guard consisted of a
single short length of chain with a hook at the end of the chain.
This unlocked chain was hooked across the 9-foot high access
ladder leading to the platform where the head-pulley is located.
The pulley-head is located four or five feet above the walkway of
the platform and four or five feet away from the chain that was
hooked across the access ladder. Wired at the middle of the
chain was a "Danger" sign.
On cross-examination, Mr. Acre, the mine manager, testified
that the duties of some employees requires that they get up into
the area of the head-pulley to adjust the pulley, lubricate bear-
ings and inspect or clean the area. The mine manager on cross-
examination also testified as follows:
Q. And there's nothing preventing someone from moving
the chain that's between the ladder and the pulley?
A. That is correct.
Q. There's not a lock on that, or anything like that?
A. There is not.
Q. Approximately how high is that chain?
A. The chain is approximately three feet high.
Q. So it would be possible for someone to even step
over that chain very easily?
A. Certainly would be.
Q. It would be possible for someone to stub their toe
while they were stepping over that chain and come
close to the pulley, wouldn't it?
A. That's a possibility.
Thus it is clear from the record that to access the head-
pulley a person could simply unhook the chain or just step over
it or under it without even bothering to unhook the chain.
Respondent asserted (and also presented some evidence) that
it complied with a mandated lock-out procedure in its maintenance
of the head-pulley.
Even assuming full compliance with mandated lock-out proce-
dures when work of any kind is done on the head-pulley, such
compliance does not relieve an operator from full compliance with
the provision of the cited guarding standard. Compliance with
both safety standards is required.
On review and evaluation of the evidence presented and the
provisions of the cited standard, I find that the unlocked chain,
with a cautionary danger sign strung across the access ladder,
is insufficient to meet the requirements of the cited safety
standard.
The mitigating factors, such as the remote
location of the head-pulley, the chain with a danger
sign strung across the access ladder, and the asserted
compliance with lock out proce-dures have been taken
into consideration by MSHA by its modifi-cation of the
citation. Prior to the hearing, MSHA modified the
citation by changing the injury finding "reasonably
likely" to "unlikely", and deleting the significant and
substantial finding. MSHA also reduced the proposed
penalty to a single assessment penalty of $50.00.
I conclude that a violation of the cited safety standard was
established. Upon taking into consideration the statutory criteria
in section 110(i) of the Act, I find the MSHA proposed $50.00
penalty is appropriate for this violation.
Citation No. 2930830
This citation is the first of three citations issued
concerning the preshift examinations of the mine. This
citation was issued on June 22, the first day of the
inspection. It alleges a non-significant and substantial
104(a) violation of 30 C.F.R. � 75.360(a). MSHA proposed
a $50.00 civil penalty. The cited safety standard reads as
follows:
Within 3 hours preceding the beginning of any
shift and before anyone on the oncoming
shift, other than certified persons conduct-
ing examinations required by this subpart,
enters any underground area of the mine, a
certified person designated by the operator
shall make a pre-shift examination.
(Emphasis added).
Clearly and plainly this regulatory safety standard requires
a certified person to make the preshift examination within three
hours "preceding the beginning of any shift".
Upon evaluation of the conflicting evidence, I find that at
the Southfield Mine on June 22, the beginning of the day shift
was 5 a.m. and at that time the men entered the mine. (Tr. 139).
The preponderance of the evidence also established that the pre-
shift examination required by 30 C.F.R. � 75.360(a) was not com-
pleted until 6:20 a.m. (Resp. Ex. 2A, Tr. 138-139).
I do not question the fact that the pre-shift examination
was performed by John Gribben, a certified person, nor the fact
that a certified person is permitted to perform a supplemental
examination of his own working areas after the beginning of a
shift, as long as no other person is scheduled to enter that area
before this supplemental examination occurs. One difference
between the two types of examinations is that a preshift examina-
tion, unlike a supplemental examination, must be recorded in a
book on the mine surface before a non-certified person may enter
the inspected underground area. [75.360(g)]. It is also undis-
puted that there is no need to require inspections of areas of
the mine where persons are not scheduled to work or travel.
In this case I am persuaded by the documentary evidence,
Resp. Ex. 2A, and my evaluation of the testimony of the certified
examiner, that on the day the citation was issued the preshift
examination required by 30 C.F.R. � 75.360(a), was not completed
before the "beginning of the shift".
The 104(a) non-S&S violation of the cited safety standard
was established. Taking into consideration the criteria of
section 110(i) of the Act, I find the $50.00 civil penalty
proposed by MSHA is appropriate for this violation and it is
affirmed.
Citation No. 2930831
This citation was vacated by MSHA at the beginning of the
hearing. (Tr. 6).
Docket No. WEST 93-643
Citation No. 3077128
This 104(a) S&S citation charges the operator with inade-
quate preshift examination of the mine on June 23, the second day
of the inspection. It alleges that the examiner performing the
preshift examination on June 23 should have "detected" an improp-
er direction of an air current.
The citation reads as follows:
An inadequate pre-shift examination was
conducted for the day shift of 6-23-93, on
the 2-North "d" east working section. The
air current (coursed) through the belt haul-
age entry was being used to ventilate the
working faces at a rate of 9000 cfm. This
violation was obvious in the area of the
feeder breaker and should have been detected
and immediately corrected, prior to mining
coal at the working faces. (See also
citation no. 3077127). [1]
The cited safety standard 30 C.F.R. � 75.360(b) reads as
follows:
The person conducting the pre-shift
examination shall examine for hazardous
conditions, test for methane and oxygen
deficiency, and determine if the air is
moving in its proper direction.
There is no dispute that the time the air current reversal
was first detected by the inspector and mine management was just
after midday on June 23. At that time a citation was issued for
an obvious air current flowing in the wrong direction. The
operator agreed, accepted and paid the MSHA penalty assessment
for that violation. That citation was never contested. The
instant citation that the operator is contesting is the addi-
tional citation issued for the alleged failure to detect the
obvious wrong direction of the air current at the time of the
June 23 preshift examination.
As I will discuss in more detail below, I find the prepon-
derance of the evidence failed to establish that the air current
in question was moving in the wrong direction at the time of the
preshift examination which was conducted 4 a.m. to 5 a.m. on June
23.
On June 23 the second day of his inspection, the inspector
arrived at feeder-box area about 12:30 p.m. He testified that
"as soon as I got there, it was immediately obvious" that the air
current (9000 cfm) was moving in the wrong direction (belt air
going inby to the face). The inspector testified "The air was
coming at me. It was in my face and I could feel the air cur-
rent." The inspector assumed that this obvious wrong direction
of air current had existed for several days. (Tr. 175, 183).
On cross examination the inspector admitted that on the day
before (June 22) he and others stood at the same place for 10 to
20 minutes where on June 23, he "immediately" noticed the "quite
obvious" air current reversal. (Tr. 188). With the inspector on
his earlier inspection of June 22 at the same identical location
was MSHA's Bill Reitze, the supervisor in charge of the ventila-
tion group in the MSHA district office, and Andy Franklin,
production superintendent. Neither the inspector, Reitze nor
Franklin noticed any air reversal at that time. (Tr. 183, line
16-19).
The preshift examination on June 23 was conducted by Mr.
Randy Acre, mine manager of the Southfield Mine. Mr. Acre has
had "boss papers" continuously since 1978 which allows him to
make preshift examinations. On June 23 he conducted the preshift
examination between 4 a.m. and 5 a.m. He traveled to the Feeder
Breaker area and did not detect any air current traveling in the
wrong direction. Air traveling at 9000 cubic feet per minute is
a significant volume of air. Mr. Acre testified, if the air had
been traveling in a reverse direction at that time, he would have
noticed it just as Inspector Zamarripa and others immediately
noticed it later that same day. Inspector Zamarripa conceded on
cross-examination that Mr. Acre was a prudent, competent miner,
who takes his job seriously.
Andrew Franklin, production superintendent, has fire boss
papers. He was with Inspector Zamarripa and Mr. Acre at the
feeder box on June 22 and again on June 23. He testified there
was no air reversal on June 22 but on June 23 at the time of
further inspection of the area, it was obvious there was an air
reversal. He stated, "You could feel it on your face."
I credit the testimony of the mine manager, Randy Acre. On
the basis of his testimony, I find that the cited "obvious" air
reversal of 9000 cubic feet of air did not exist at the time of
the preshift examination conducted by Mr. Acre at 4 a.m. to 5
a.m. on June 23.
I find the air reversal was indeed obvious and would have
been detected by Mr. Acre during his preshift examination if it
had existed at that time. I credit Mr. Acre's testimony and
vacate the citation.
Conclusion
In view of the foregoing, I affirm the two 104(a) Citation
Nos. 3589183 and 2930830. Upon consideration of the statutory
criteria in section 110(i) of the Act, I find that the MSHA
proposed penalty of $50.00 is the appropriate penalty for each of
the affirmed citations.
**FOOTNOTES**
[1]: Citation No. 3077127 (Govt. Ex. 6B) issued for air not
moving in its proper direction was accepted by Energy Fuels and
never contested.
ORDER
It is ORDERED that:
Docket No. WEST 93-642
Citation No. 2930831 be VACATED as requested by Petitioner
at the hearing.
Citation No. 3589183 and its related $50.00 proposed civil
penalty are AFFIRMED.
Citation No. 2930830 and its related $50.00 proposed civil
penalty are AFFIRMED.
It is further ORDERED that the RESPONDENT SHALL PAY a civil
penalty assessment of $100.00 to MSHA within 30 days of the
date of this decision and order, in satisfaction of the two
established violations in this docket, and upon receipt of
payment, Docket No. WEST 93-642 is dismissed.
Docket No. WEST 93-643
Citation No. 3077128 and its related proposed penalty are
VACATED and Docket No. WEST 93-643 is DISMISSED.
August F. Cetti
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)
Phillip D. Barber, Esq.,
DUFFORD & BROWN, P.C.,
1700 Broadway, Suite 1700,
Denver, CO 80290-8013
(Certified Mail)
/sh