.
CONSOLIDATION COAL COMPANY
October 27, 1995
WEVA 95-44
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
October 27, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 95-44
Petitioner : A.C. No. 46-01968-04165
v. :
: Docket No. WEVA 95-95
CONSOLIDATION COAL COMPANY, : A.C. No. 46-01968-04169
Respondent :
: Blacksville No. 2 Mine
:
: Docket No. WEVA 95-96
: A.C. No. 46-01455-04040
:
: Osage No. 3 Mine
:
: Docket No. WEVA 95-117
: A.C. No. 46-01452-04001
:
: Arkwright No. 1 Mine
DECISION
Appearances: Elizabeth Lopes, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
Elizabeth S. Chamberlin, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for Respondent.
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 Consolidation Coal Company (Consol) pursuant to Section
105 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
� 815. The petitions allege several violations of the Secretary's
mandatory health and safety standards and seek penalties of
$14,050.00. For the reasons set forth below, I affirm all
citations and orders, modifying two of them pursuant to a
settlement agreement, and assess civil penalties of
$10,050.00.
A hearing was held on July 18, 1995, in Morgantown, West
Virginia. MSHA Coal Mine Inspector Edwin W. Fetty, Fred D. Smith,
David B. Myers, and MSHA Conference and Litigation Representative
Lynn A. Workley testified for the Secretary. Michael L. Cole,
Larry J. Johnson, William A. Runyan, David R. Pile, Charles Clark,
Carl G. Weber, Sr., and Clifford J. Cutlip were witnesses for
Consol. The parties also submitted briefs which I have considered
in my disposition of these cases.
SETTLED DOCKETS
At the beginning of the hearing, counsel for the Secretary
stated that they had settled Docket Nos. WEVA 95-44, WEVA 95-95
and WEVA 95-96. With respect to Docket No. 95-44, the agreement
provides that Consol will pay the proposed penalty of $50.00 for
Citation No. 3319362 in full and that the penalty for Order
No. 3318854 will be reduced from $1,500.00 to $1,000.00. For
Docket No. WEVA 95-95, Order No. 3319349 will be modified to
delete the "significant and substantial" designation and the
penalty reduced from $3,000.00 to $1,500.00. In Docket No.
WEVA 95-96, the degree of negligence in Citation No.
3319345 will be reduced from "moderate" to "low" and the
penalty reduced from $4,000.00 to $2,000.00.
After considering the parties' representations, I concluded
that the settlement was appropriate under the criteria set
forth in Section 110(i) of the Act, 30 U.S.C. � 820(i), and
informed the parties that I would accept the agreement. (Tr.
9-13.) The provisions of the agreement will be carried out in
the order at the end of this decision.
DOCKET NO. WEVA 95-117
Inspector Fetty was driving on I-79 past Consol's Arkwright
No. 1 mine on July 6, 1994, when his attention was attracted
to a crane boom that he believed was too close to some high
tension lines. He pulled onto the mine property to
investigate the situation. Once he arrived at the scene, he
concluded that there was no problem. Unfortunately, for
Consol, however, while on the property he noticed a coal
feeder on an equipment carrier parked on a spur track in the
post pile area. The inspector observed what appeared to be
accumulations of coal, coal dust, oil and grease on the feeder
and went to inspect it.
Inspector Fetty testified that:
On July 6 when I observed the feeder, there was
accumulation of coal on the sides and the angles of the
feeder. There was [sic] accumulations of oil and grease in
the deck where the motor had been removed. And coal and
coal dust was also present there.
And on the trolley and feeder wire side, around the
operating controls, there was an excessive amount of fine,
loose, dry coal accumulated there.
. . . .
There was accumulation of the coal through the entire
throat of the machine, in between each flight, ranging from
one to three inches deep.
. . . .
Like I said, the accumulation existed down on the
inside, between the conveyor flights, in the feeder. Also,
on the left-hand edge, there was coal around -- accumulated
on the sides. Coming up to the next piece there, . . . is
your electrical box.
Accumulations was [sic] on top of that box and around
the other controls, on up, and coming up into the front
where you can see the drive motor that drives the conveyor,
which had been removed, there was accumulation of oil and
grease over the entire area.
(Tr. 39-41.)
The inspector further testified that he "observed two
pieces of conveyor belting, one on the right side, and one on
the left side. And the area between the conveyor for
approximately 20 inches wide, there was nothing, or nothing
down the trolley wire side." (Tr. 50.) He stated that he
believed that the feeder had not been covered as required
because of this opening and because "[t]here was a mark on
top of the metal, on top of the feeder, that indicated that
at one time the trolley or trolley feeder had contacted
this portion of the feeder" and that the mark "was fresh,
because it was still shiny." (Tr. 51.)
Finally, the inspector testified that the feeder was not
properly grounded for the move "[b]ecause the only method of
grounding that was provided, that I observed at the time I was
there, there was a piece of track bond twisted around a
portion of the feeder and just twisted around the frame of the
lowboy." (Tr. 55.)
As a result of his observations, Inspector Fetty issued
order No. 3122362 under Section 104(d)(2) of the Act, 30 U.S.C.
� 814(d)(2),[1] alleging a violation of Section 75.1003-2 of
the Secretary's Regulations, 30 C.F.R. � 75.1003-2. The order
alleges that:
A coal feeder was observed setting [sic] on a spur
track of the main track haulage between the hills of the
Arkwright No. 1 Mine. The feeder had been moved from
underground under energized 300 vdc trolley wire and
trolley feeder wire on a previous shift. The feeder was
not cleaned and there were accumulations of fine dry coal
and coal dust, oil, grease and wooden material on the coal
feeder. The coal feeder was not properly covered on the
top and trolley wire side. There was evidence that the
energized trolley wire or trolley feeder wire had contacted
the center support of the coal feeder, leaving indications
of arcing for 9 inches and molten metal splatter. Electrical
contact was not maintained between the coal feeder being
transported and the rail-mounted low boy barrier. According
to a company foreman, the equipment was being moved under
the direction of a certified foreman and with a qualified
electrician. The condition was observed by at least two
foremen. A fire could have occurred causing injuries from
smoke inhalation, asphyxiation or burns. Proper safety
precautions should have been provided prior to and during
equipment move.
(Govt. Ex. 1.)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Section 75.1003-2 requires, in pertinent part:
(a) Prior to moving or transporting any unit of off-
track mining equipment in areas of the active workings
where energized trolley wires or trolley feeder wires are
present:
(1) The unit of equipment shall be examined by a
certified person to ensure that coal dust, float coal dust,
loose coal oil, grease, and other combustible materials
have been cleaned up and have not been permitted to
accumulate on such unit of equipment;
. . . .
(d) The frames of off-track mining equipment being
moved or transported, in accordance with this section,
shall be covered on the top and on the trolley wire side
with fire-resistant material . . . .
(e) Electrical contact shall be maintained between the
mine track and the frames of off-track mining equip ment
being moved in-track and trolley entries . . . .
As a preliminary matter, Consol argues that this regulation
does not apply to the coal feeder in question. It bases this
contention on Southern Ohio Coal Co., 3 FMSHRC 1449 (Judge
Koutras, June 1981), where the judge held "that section
75.1003-2 only applies to complete or reasonably complete
pieces of off-track mining equipment." Id. at 1455. At issue
in that case was whether the boom of an off-track shuttle car
being transported on a low-boy was covered by Section 75.1003-
2. The case does not support the Respondent's position.
The boom of a shuttle car is a small part of the shuttle
car, while in this case it is the small parts, such as the motor,
which have been removed leaving a reasonably complete feeder.
Further, as Consol admits in its brief, at a minimum the frame
of the feeder was involved in this move. In that connection,
the judge noted in Southern Ohio, "[s]ince subsection (d)[also
alleged to have been violated in this case] mentions only
frames, it is evident that the drafters were considering only
large, nearly complete, or complete pieces of machinery." Id.
at 1456. Clearly, Judge Koutras considered a frame to be a
complete or reasonably complete piece of equipment. I concur,
and conclude that Section 75.1003-2 applies to the move of the
coal feeder in this case.
This case turns on the credibility of the witnesses. There
is no dispute that the feeder was moved out of the mine in three
separate moves over the period from July 2 through July 6,
1994. Nor is there any dispute that when Inspector Fetty
observed the feeder on the morning of July 6, it was located
where the last move had parked it during the early morning
hours of that day. However, there is a dispute as to whether
the move complied with Section 75.1003-2.
Claiming that it did, Consol's witnesses testified that the
feeder was carefully cleaned before the move on the first day,
that it was rock dusted and then completely covered with
pieces of conveyor belt which were laced together. They
testified that the required, certified person checked the
feeder to ensure that it was clean before the move was
commenced. The witnesses maintained that it was not uncovered
while stopped twice before being moved again and that it was
grounded with a clamp attached to the feeder frame and to the
"low-boy" carrier.
While admitting that two incidents of arcing occurred
during the move, they deny that the wire came in contact with
the feeder, claiming that on one occasion a trolley wire hanger
came loose and swung down hitting the side of the "low-boy"
and on the other occasion the belting on the feeder pushed up,
causing the trolley wire to contact a metal ceiling beam.
Consol's miners averred that what appeared to Inspector Fetty
to be an area on the feeder where the feeder contacted the
trolley wire was, in fact, a place where an L-shaped bracket
had been cut off of the feeder with an acetylene torch.
The Consol witnesses hypothesized that the accumulations
observed on the feeder by Inspector Fetty resulted from roof
and rib sloughage, as well as accumulations knocked off of
water pipes, during the move. Finally, they assert that the
reason the feeder was not completely covered by conveyor
belting when observed by the inspector was that the movers
started to remove the belting on completing the move before
deciding to leave that task to the day shift.
I find the testimony of the inspector to be the most
believable in this case. Generally, there has been no showing
that Inspector Fetty had any reason or motive to make up what
he observed. In fact, while the conclusions that he drew from
his observations are clearly challenged by Consol, his
observations are not. On the other hand, the Respondent's
employees, who were involved in committing a violation, if one
is found, had an obvious reason for shading the truth.
Furthermore, Fetty's observations are corroborated by a
disinterested witness.
Section 75.1003-2(a)(1)
Turning first to the accumulations of coal, coal dust, oil
and grease and wood material observed by the inspector, his
description is very detailed and describes accumulations in
places and to extents that could not have resulted from
sloughage and dislodgements onto a covered feeder during the
move. This testimony was supported by the testimony of Fred
Smith, a retired miner who had no apparent motive to
dissemble.
Mr. Smith testified that he saw the feeder on July 6 when
he moved it from the track spur to the No. 8 shop and "[i]t had
a heavy debris, like bug dust, coal and oil, all over the
equipment, all over the whole machine." (Tr. 117.) He
further stated that "it didn't look like it had been hosed off
like the other machines I have hauled out of that mines [sic]
and other mines" and that in his opinion "[w]ith the fine dust
and accumulation of the oil, it would have to be accumulated
where it was in operation." (Tr. 117.) Finally, he said that
it was unlikely that the accumulations had occurred while the
feeder was being moved because they were under sloped parts of
the feeder.
In addition, the Respondent took some pictures of the
feeder the next day at the shop. (Jt. Exs. A-L.) Although both
the inspector and Mr. Smith testified that the feeder had been
cleaned up by July 7 and appeared cleaner than when they saw
it on July 6, it is apparent from these pictures that there
were still accumulations of combustible materials on the
feeder. Consequently, I conclude that the Respondent violated
subsection (a)(1) of the regulation by not ensuring that the
feeder had been cleaned up prior to the move.
Section 75.1003-2(d)
The evidence concerning whether the feeder was properly
covered during the move is not as explicit. The inspector
based his conclusion on this issue on his observation of the
gap in the covering and the presence on the feeder of an area
in the gap which appeared to have come in contact with the
wire. Mr. Smith agreed with Inspector Fetty that the shiny
area appeared to be a place where the feeder contacted the
wire. Conversely, the Respondent explains the gap as being an
unfinished attempt to uncover the feeder after the move was
completed and the shiny area as being the result of a brace
being cut off of the feeder.
Only Mr. Clark and Mr. Weber testified concerning uncovering
the feeder. Mr. Clark stated: "We just started to peel back
one piece. That was it." (Tr. 322.) Mr. Weber related: "I
moved one piece and I think the motorman and Chic Martin
started to take another piece off, moved it around." (Tr.
362.) However, none of this explains the 20 inch gap observed
by the inspector. If one piece were partly peeled back, it
would have been obvious to the inspector. Further, if one
piece had been removed and another moved, the gap would have
been larger than 20 inches and presumably the piece that had
been removed would have been present in the area.
With regard to the shiny area, both Inspector Fetty and
Mr. Smith testified that this was different in appearance from
areas that had been cut with a torch and they were able to
point out the difference in the photographs where there is no
dispute that a part had been cut off of the feeder. While
Consol's witnesses all maintained that a part had been cut off
at the shiny spot, they did not attempt to explain why there
was a difference in the appearance of the cuts. In fact,
there is an observable difference. (Jt. Exs. E and L.)
Based on the evidence available, there are only two
explanations for the shiny area. Either a part was removed
from the area, or the feeder came in contact with the wire.
Based on the difference between the areas known to have been
cut and the area in question, I find that the shiny area
resulted from contact with the wire. Based on all of the
evidence on this issue, I conclude that the feeder was not
covered as required by subsection (d).
Section 75.1003-2(e)
Inspector Fetty did not see a proper ground on the feeder
at the time he observed it. At that time, no explanation was
given to him of the reason the feeder did not appear to be
properly grounded. However, the next day he was informed that
a ground clamp had been used and he was provided with the
clamp that was allegedly used. On receiving the clamp, the
inspector tested it with his equipment for continuity.
Continuity was not obtained.
Mr. Cutlip testified that the clamp did maintain continuity
when tested by the inspector. However, I do not credit this
testimony. Mr. Cutlip made extensive contemporaneous notes at
the time the order was issued, (Govt. Ex. 5 and Resp. Ex. 10),
yet this incident, which if true demonstrates that the company
did properly ground the feeder and that the inspector was
lying, is not mentioned. Further, although several other
people were present when the test was made, none testified to
corroborate this claim.
I find it suspicious that no mention was made of the clamp
until the next day and am not convinced that one was used.
Nevertheless, even if the one given to the inspector the next
day was, in fact, used, it obviously did not provide a proper
ground based on the inspector's testing. Therefore, I conclude
that Consol violated subsection (e).
Based on a preponderance of the evidence, I find that Consol
did not ensure that the feeder had been cleaned of combustible
materials prior to moving it, did not completely cover the top
and trolley wire side of the feeder with fire-resistant
material while it was being moved, and did not maintain
electrical contact between the mine track and the feeder
during the move. Accordingly, I conclude that the company
violated Section 75.1003-2 of the regulations as alleged.
Significant and Substantial
The inspector determined that this violation was
"significant and substantial." A "significant and substantial"
(S&S) violation is described in Section 104(d)(1) of the Act as
a violation "of such nature as could significantly and
substantially contribute to the cause and effect of a coal or
other mine safety or health hazard." A violation is properly
designated S&S "if, based upon the particular facts
surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature." Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the
Commission set out four criteria that have to be met for a
violation to be S&S. See also Austin Power, Inc. v. Secretary,
861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin Power, Inc.,
9 FMSHRC 2015, 2021 (December 1987)(approving Mathies
criteria). Evaluation of the criteria is made in terms of
"continued normal mining operations." U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of
whether a particular violation is "significant and
substantial" must be based on the particular facts surrounding
the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 1007 (December 1987).
Inspector Fetty testified that the widespread accumulations
on the feeder were dry and combustible. He further testified
that it was reasonably likely that if a trolley wire came in
contact with the feeder it would cause arcing that would
ignite the accumulations resulting in a fire. The evidence
indicates that at least twice during the move contact with the
trolley wire or a wire hanger resulted in arcing, although
fortunately there was no ignition. The inspector also
testified that if a fire occurred, serious injuries such as
burns and smoke inhalation were likely to occur.
Based on this evidence, I find that the Mathies criteria
have been met. The failure to clean, cover and ground the feeder
for the move contributed to the danger of a fire in the mine.
A fire was reasonably likely, assuming normal mining
operations, and if a fire occurred it could be expected to
result in reasonably serious injuries. Accordingly, I
conclude that the violation was "significant and substantial."
Unwarrantable Failure
Inspector Fetty also found that this violation resulted
from Consol's "unwarrantable failure" to comply with the
regulation. The Commission has held that "unwarrantable
failure" is aggravated conduct constituting more than ordinary
negligence by a mine operator in relation to a violation of
the Act. Emery Mining Corp., 9 FMSHRC 1997, 2004 (December
1987); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010
(December 1987). "Unwarrantable failure is characterized by
such conduct as `reckless disregard,' `intentional
misconduct,' `indifference' or a `serious lack of reasonable
care.' [Emery] at 2003-04; Rochester & Pittsburgh Coal Corp.
13 FMSHRC 189, 193-94 (February 1991)." Wyoming Fuel Co., 16
FMSHRC 1618, 1627 (August 1994).
In this case the accumulations were widespread and readily
apparent to Inspector Fetty and Mr. Smith and, according to
the inspector's notes made at the time of his inspection,
members of Consol's management also. (Govt. Ex. 2.) Indeed
they are readily apparent in the photographs taken a day
later. Despite this, the move was carried out after a
certified person indicated that he had examined the feeder and
it was "cleaned and covered." (Resp. Ex. 5.)
Clearly, Consol knew what Section 75.1003-2 required for
the move of the feeder. Just as clearly, the company made only
a superficial attempt to comply with those requirements. At
best this resulted from "indifference," at worst it was
"intentional misconduct." Consequently, I conclude that this
violation resulted from Consol's "unwarrantable failure" to
comply with the regulation.
CIVIL PENALTY ASSESSMENT
The Secretary has proposed a civil penalty of $5,500.00
for this violation. 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).
In connection with the six criteria, the parties have
stipulated that Consol is a large mine operator, that the
maximum penalty permissible for this violation will not affect
its ability to remain in business and that the company
demonstrated good faith in abating the violation. (Tr. 21-
22.) For the two years preceding this violation, the company
received a moderate number of violations for a mine of this
size, including seven for violation of the same regulation.
(Govt. Ex. 7.) The evidence in this case demonstrates that
the Respondent was highly negligent and that the gravity of
the violation was very serious. Considering all of this
together, I conclude that the proposed penalty of $5,500.00 is
appropriate.
ORDER
Order No. 3318854 and Citation No. 3319362 in Docket No.
WEVA 95-44 are AFFIRMED, Order No. 3319349 in Docket No. WEVA
95-95 is MODIFIED by deleting the "significant and
substantial" designation and AFFIRMED as modified, Citation
No. 3319345 in Docket No. WEVA 95-96 is MODIFIED by reducing
the degree of negligence from "moderate" to "low" and AFFIRMED
as modified and Order No. 3122632 in Docket No. WEVA 95-117 is
AFFIRMED. Consolidation Coal Company is ORDERED TO PAY civil
penalties of $10,050.00 within 30 days of the date of this
decision. On receipt of payment, these proceedings are
DISMISSED.
T. Todd Hodgdon
Administrative Law Judge
Distribution:
Elizabeth Lopes, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
Elizabeth S. Chamberlin, Esq., Consol, Inc., 1800 Washington Rd.,
Pittsburgh, PA 15241-1421 (Certified Mail)
/lt
**FOOTNOTES**
[1]: Section 104(d)(2) states:
If a withdrawal order with respect to any area in
a coal or other mine has been issued pursuant to
paragraph (1), a withdrawal order shall promptly be
issued by an authorized representative of the Secretary
who finds upon any subsequent inspection the existence
in such mine of violations similar to those that
resulted in the issuance of the withdrawal order under
paragraph (1) until such time as an inspection of such
mine discloses no similar violations.