.
MINGO LOGAN COAL COMPANY
February 2, 1995
WEVA 94-247
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
February 2, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 94-247
Petitioner : A.C. No. 46-06958-03578
:
v. : Mountaineer Mine
MINGO LOGAN COAL COMPANY, :
Respondent :
DECISION
Appearances: Patrick L. DePace, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
Petitioner; David J. Hardy, Esq., Jackson & Kelly,
Charleston, West Virginia, for Respondent.
Before: Judge Fauver
This civil penalty case involves three citations issued
under � 104(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. � 801 et seq.
At the hearing the parties moved for approval of a
settlement of two of the citations. The motion is granted in the
Order below.
The case was heard on Citation No. 3966956.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial,
reliable and probative evidence establishes the Findings of
Fact and further findings in the Discussion below:
FINDINGS OF FACT
1. Mingo Logan is the owner and operator of the Mountaineer
Mine, which produces coal for sales in or substantially
affecting interstate commerce.
2. On December 6, 1993, during an inspection of the Mingo
Logan Mountaineer Mine, MSHA Inspector Robert A. Rose was
accompanied by Matt Murray, the safety coordinator for Mingo
Logan. Inspector Rose traveled to the 8 Left section. A
contractor of Mingo Logan, Golden Chance Mining, Inc., was
responsible for the mining activity in the 8 Left section,
which was operated entirely by employees of Golden Chance
Mining. Golden Chance was performing advance mining in the
conventional pillar and retreat mining cycle, and was
extracting coal. Inspector Rose met Kentucky Mine Inspector
Eugene White, who was also inspecting the mine. Inspector
White was accompanied by Phil Adkins, a safety
representative of Mingo Logan. No employee of Golden Chance
Mining accompanied either Inspector Rose or Inspector White.
3. Inspector White informed Inspector Rose that he had found
smoking materials on a Fletcher roof bolter in the 8 Left
section. The smoking materials were 13 cigarettes and one
butane lighter. Based on this information, Inspector Rose
issued � 104(a) Citation No. 3966956 to Mingo Logan Coal Company
for a violation of 30 C.F.R. � 75.1702.
4. Section 75.1702 forbids taking smoking materials into an
underground coal mine. It also requires the operator to
institute a smoking materials search program, approved by
the Secretary, "to insure that any person entering the
underground area of the mine does not carry smoking
materials, matches, or lighters." Mingo Logan's smoking
materials search program, approved by MSHA, provides in
part: "The search program is systematic and conducted at
least weekly on an irregular interval and as often as
necessary to ensure the effectiveness of the program."
Exhibit G-3.
5. Under its agreement with Mingo Logan, Golden Chance
followed Mingo Logan's approved search program to search its
own employees. In doing so, it made random searches by
having the miners empty their pockets and relying on their
honesty in representing that they were not carrying smoking
materials into the mine. The search program did not involve
patting down the employees.
6. Golden Chance was not issued an identification number by
MSHA and was not regarded by MSHA as being subject to the
regulation requiring an operator to submit a smoking
materials search program for approval by MSHA. MSHA held
Mingo Logan responsible for any violations committed by
Golden Chance or its employees.
7. Under its contract, Mingo Logan held Golden Chance
accountable for any civil penalties Mingo Logan was assessed
for violations committed by Golden Chance or its employees.
It deducted such civil penalties from its contract payments
to Golden Chance.
DISCUSSION WITH FURTHER FINDINGS, CONCLUSIONS
Liability
Section 75.1702 of the regulations repeats a statutory
mandatory safety standard, which provides:
No person shall smoke, carry smoking materials, matches, or
lighters underground, or smoke in or around oil houses,
explosives magazines, or other surface areas where such
practice may cause a fire or explosion. The operator shall
institute a program, approved by the Secretary, to insure
that any person entering the underground area of the mine
does not carry smoking materials, matches, or lighters.
The inspector issued Citation No. 3966956 alleging a
tion of 30 C.F.R. � 75.1702 as follows:
The company was not following their approved smoking program
in that while writer was on regular inspection he came in
contact with state inspector Eugene White that informed me
that he had found smoking material, cigarettes (13) and a
(1) lighter on the fletcher roof bolting machine on 8 left
section 006-0 MMU. He was accommened [sic] by Phil Adkins
company Safety. This smoking material was not observed by
writer but a citation was issued basic [sic] on the State
inspector findings. This is a contractor unit at this mine.
The Secretary contends that, since smoking materials were
found underground, Mingo Logan is strictly liable for a violation
of � 75.1702. He reasons that the regulation requires the
operator to follow a search program that insures that smoking
materials are not taken underground; therefore, finding smoking
materials underground "reveals the ineffectiveness of the
operator's searches . . . ." Reply Brief, p. 10.
Respondent argues that it is not responsible for violations
by its independent contractor, Golden Chance, and that, moreover,
the contractor was in compliance by making searches in accordance
with Mingo Logan's search program approved by the Secretary.
The Act imposes strict liability on mine operators for
violations of safety or health standards at the mine regardless
of fault and regardless whether the violation was committed by an
independent contractor engaged by the mine operator. Western
Fuels - Utah, Inc. v. FMSHRC et al, 870 F.2d 711, 716 (D.C. Cir.
1989); Bulk Transportation Services, Inc., 13 FMSHRC 1354, 1359
(1991); Republic Steel Corp., FMSHRC 5, 8-10 (1979).
The first sentence of � 75.1702 is a strict prohibition:
No person shall . . . carry smoking materials . . .
underground . . . .
If smoking materials are found underground, there is a
violation of � 75.1702 and the operator is liable without regard
to fault. Thus, it is not relevant in determining an operator's
liability whether an independent contractor committed the
violation and could also be found liable. A mine operator may
not shield itself from liability by contracting with another to
carry out part of the mining activity at its mine.
The second sentence of the safety standard is a separate
requirement:
The operator shall institute a program, approved by the
Secretary, to insure that any person entering the mine does
not carry smoking materials, matches, or lighters.
Citation No. 3966956 alleges a violation of � 75.1702 in a
somewhat round-about way:
The company was not following their approved smoking program
in that [smoking materials were found underground]. * * *
This amounts to a charge of strict liability for the act of
allowing smoking materials to be carried underground. That is,
the Secretary is saying that finding smoking materials under-
ground means, per se, that the operator was not following its
search program because under � 75.1702 the program must "insure
that any person entering the underground area of the mine does
not carry smoking materials . . . ." I find this reasoning to be
round-about and unnecessary. The violation proved in this case
is simply the act of allowing smoking materials to be carried
underground. Questions of the adequacy of the search program,
how it was carried out, and the reasonableness of the operator's
reliance on an independent contractor to make the searches,
relate to the factor of negligence in assessing a civil penalty.
They are not relevant to the question of the operator's liability
for allowing smoking materials to be carried underground.
The strict liability of � 75.1702 imposes an obligation on
the operator to keep smoking materials out of its mine. It has a
duty to submit a search program to the Secretary for approval.
However, it may enhance this program in any way it sees fit,
e.g., by searching miners every shift, patting them down, using a
dog to sniff for tobacco, paying a reward for reporting
violations, etc. Such decisions are left up to the operator.
I conclude that the citation, while somewhat awkwardly
written, sufficiently charges a violation of the first sentence
of � 75.1702. That issue was adequately and fairly tried at the
hearing. Mingo Logan is therefore liable for the violation of
� 75.1702.
Civil Penalty
Section 110(i) of the Act provides six criteria for
assessing a civil penalty:
The Commission shall have authority to assess all civil
penalties provided in this Act. In assessing civil monetary
penalties, the Commission shall consider the operator's
history of previous violations, the appropriateness of such
penalty to the size of the business of the operator charges,
whether the operator was negligent, the effect on the
operator's ability to continue in business, the gravity of
the violation, and the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after
notification of a violation. In proposing civil penalties
under this Act, the Secretary may rely upon a summary review
of the information available to him and shall not be
required to make findings of fact concerning the above
factors.
Mingo Logan is a large operator. In the two-year period
before the instant violation, it had 393 violations of mine
safety and health standards of which 167 were significant and
substantial within the meaning of the Act.
The operator demonstrated good faith in an effort to achieve
rapid compliance after the instant citation was issued. Whether
it succeeds in maintaining compliance will depend on future
events.
The violation was very serious, since the presence of
smoking materials in an underground coal mine is highly
dangerous.
I find that the violation was due to ordinary negligence.
Mingo Logan had at least one prior occurrence of finding smoking
materials underground. Its method of executing its approved
search program was not thorough. For example, it did not pat
down the miners and it relied upon their honesty in
representing[1] that they were not carrying smoking materials
underground. Since a prior infraction was known by Mingo Logan,
there was a duty to increase the effectiveness of its search
program (which was used by Golden Chance as an agent).
Considering the criteria for civil penalties in � 110(i), I
find that a civil penalty of $1,800 is appropriate for this
violation.
CONCLUSIONS OF LAW
1. The judge has jurisdiction.
2. Respondent, Mingo Logan Coal Company, violated 30 C.F.R.
� 75.1702 by allowing smoking materials to be carried into
the underground area of its Mountaineer Mine.
ORDER
1. Citation No. 3966956 is AFFIRMED.
2. The motion to approve settlement of Citation Nos. 3973786
and 3973787 for $100 in penalties is GRANTED.
3. Respondent, Mingo Logan Coal Company, shall pay total
civil penalties of $1,900 within 30 days of this Decision.
William Fauver
Administrative Law Judge
Distribution:
Patrick L. DePace, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Suite 516, Arlington,
VA 22203 (Certified Mail)
David J. Hardy, Esq., Jackson & Kelly, P.O. Box 553, Charleston, WV
25322 (Certified Mail)
/lt
**FOOTNOTES**
[1]: A miner's representation could be verbal or by gesture
(emptying pockets to represent that no smoking materials are on
the miner's person).