.
CONSOLIDATION COAL COMPANY
December 12, 1996
weva 96-108


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, Suite 1000
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041

                          December 12, 1996


SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. WEVA 96-108
               Petitioner       :  A.C. No. 46-01433-04185
          v.                    :
                                :  Loveridge No. 22 Mine
CONSOLIDATION COAL COMPANY,     :
               Respondent       :

                             DECISION

Appearances: Melonie McCall, Esq., and Elizabeth Lopes Beason, Esq.,
             Office of the Solicitor, U.S. Dept. of Labor, Arlington,
             Virginia, for the Petitioner;
             Elizabeth Chamberlin, Esq., Consolidation Coal Company,
             Pittsburgh, Pennsylvania, for the Respondent.

Before: Judge Melick

     This civil penalty proceeding is before me pursuant to Section 
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
� 801 et. seq., the "Act," to challenge two withdrawal orders issued
by the Secretary of Labor to Consolidation Coal Company (Consol) and
to contest the civil penalties proposed for the violations charged
therein.  The general issue before me is whether Consol violated the
cited standards and, if so, what is the appropriate civil penalty to
be assessed considering the criteria under Section 110(i) of the Act.
Additional issues concerning the validity of Order No. 3321649 are 
addressed as noted.

     At hearing, a settlement motion was submitted with respect to 
Order No. 3717223.  Consol agreed to pay the proposed civil penalty 
of $1,800 in full.  I have considered the relevant representations
and documentation and I conclude that the proffered settlement is 
acceptable under the criteria set forth in Section 110(i) of the Act.
An order directing payment of the penalty will be incorporated in 
this decision.

     The one order remaining for disposition, Order No. 3321649,
issued pursuant to Section 104(d)(1) of the Act[1], alleges a 
"significant and substantial" violation of the standard at 30 C.F.R.
� 75.523-3(b) and charges as follows:

     On 5 right section, the S&S Scoop Serial No. 488-1253, Approval
No. 2G-2831-2, does not have operative emergency parking brakes. 
With DC power off and brakes set, the rear pad gapped 3/16 inch from
rotor, and front pad gapped 1/8 inch from rotor. When adjusting bolt
was turned to tighten brakes, bolt threads were very corroded and 
could barely be tightened, indicating brakes have been loose for a
long time.  Violation is very hazardous, requiring increased attention 
by operator to prevent its occurrence.  Violation is repetitious:
Citation No. 3717237 issued on 11-20-95 and Citation No. 3717238 
issued on 11-20-95, were for inoperative emergency parking brakes on
S&S scoops. Citation No. 3717239 was issued on 11-20-95 for 
inadequate weekly examination of electrical equipment, due to the 
continued existence of inoperative emergency parking brakes on these
scoops.  Operator therefore should have known that emergency parking 
brakes on the 5 right scoop should be checked and either corrected
or the scoop removed from service.  This scoop was listed in the 
record of weekly electrical examinations for 5 right on 11-27-95: 
Dangerous conditions - none found.  The Review Commission has 
determined that a rank-and-file miner acts as an agent of the
operator while conducting required electrical examinations in the
mine.  Since violation existed for a long time, was particularly 
serious, was repetitious, and operator should have known of its
existence, operator had aggravated conduct and violation is 
unwarrantable.

     The Secretary maintains that the order charges a violation
under four of the five subsections of 30 C.F.R � 75.523-3(b). In 
relevant part the standard provides as follows:

          Automatic emergency-parking brakes shall -

          (1) Be activated immediately by the emergency
          deenergization device required by 30 C.F.R.
               75-523-1 and 75.523-2;

          (2)  Engage automatically within 5.0 seconds when
               the equipment is deenergized;

          (3)  Safely bring the equipment when fully loaded
               to a complete stop on the maximum grade on which
          it is operated;

          (4) Hold the equipment stationary despite any
          contraction of brake parts, exhaustion of any non-
          mechanical source of energy, or leakage.

                               ***

     On November 28, 1995, experienced electrical engineer and
inspector for the Mine Safety and Health Administration
(MSHA), Spencer Alvin Shriver, was conducting an electrical
inspection at the Loveridge No. 22 Mine accompanied by Doug
McClure, Consol's maintenance supervisor and miner's
representative, Ted Tuttle.  At the 5 Right Section he
examined the cited scoop finding that indeed it did not have
an operative emergency parking brake.  The brake could not
function because, when engaged, there remained a significant
gap between the brake pad and the rotor estimated by
Shriver as 3/16 of an inch on the rear and 1/8 inch on the
front.  He used a feeler gauge to measure the gaps and found
them to be in excess of the .034-inch gauge.  While Shriver
was able to see, and his feeler gauge was able to reach,
only about one-half of surface of the rotors, he found no
evidence of warpage.  His conclusion, therefore, that the
described gaps existed over the entire area of the rotors,
is reasonable.  I also find Shriver's testimony to be
credible.  Under the circumstances the emergency parking
brake clearly could not function and therefore the violation
existed as charged.

     The Secretary further maintains that the violation was
"significant and substantial."  A violation is properly
designated as "significant and substantial" if, based on 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, 3-4
(January 1984), the Commission explained:

          In order to establish that a violation of a
     mandatory standard is significant and substantial
     under National Gypsum the Secretary must prove:
     (1) the underlying violation of a mandatory safety
     standard, (2) a discrete safety 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.

See also Austin Power Co. V, Secretary, 861 F.2d 99, 103-04 (5th 
Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987) (approving
Mathies criteria).

     The third element of the Mathies formula requires that the
Secretary establish a reasonable likelihood that the hazard 
contributed to will result in an event in which there is an injury 
(U.S. Steel Mining Co., 6 FMSHRC 1834, 1836  (August 1984), and 
also that the likelihood of injury be evaluated in terms of 
continued normal mining operations.U.S. Steel Mining Co., Inc.,
6 FMSHRC 1573, 1574 (July 1984); See also Halfway, Inc., 8 FMSHRC 8,
12 (January 1986) and Southern Ohio Coal Co., 13 FMSHRC 912, 916-17
(June 1991).

     Inspector Shriver credibly described the basis for his findings
in the following colloquy:

          JUDGE MELICK: Why did you label that a S and S
     violation?

          THE WITNESS: I considered that there was the
     possibility of an accident from two ways.  One, the scoop
     could be traveling and in an emergency need to stop
     suddenly, and without the automatic parking brakes, that the
     scoop could not be stopped.

          JUDGE MELICK: What about the service brakes?  Couldn't
     you use the service brakes?

          THE WITNESS: The service brakes, if they are working,
     is a viable way to stop the scoop.  There are, however,
     problems that can develop with the service brakes.

          They have a hydraulic line or hose which can burst. The
     parts of the linkage in the service brakes can break. If
     there is an accumulation of material in the operator's
     compartment, it can wedge under the service brakes and the
     pedal can't be depressed.


          JUDGE MELICK: All right.

          THE WITNESS: The other way would be if a person stopped
      the scoop, set the emergency parking brakes, got out of it,
      and the scoop then started rolling, it could roll over him.

          We had some fatalities throughout the country from that
      source. It could also, if it decided to run very far, could
      run into electrical equipment, start a fire.

          There are several possibilities taken altogether that
      in my judgment represented a reasonable likelihood of a
      serious accident occurring.

          JUDGE MELICK: Which several possibilities taken together
      would result in a reasonable likelihood of an accident?

          THE WITNESS: The possibility if the scoop is in operation
      that an emergency would arise and the scoop could not be 
      stopped if the service brakes didn't work.

          The other would be if the scoop were parked and the
      power was turned off, assuming the parking brakes would
      sit, and they did not, and then the scoop would run
      away.

          Also, the tram pedal of the scoop, if it sticks in for
      any reason, then the service brakes are really not able
      to stop the scoop.  If the panic bar is then operated,
      it would stop the drive to the wheels, but if the
      parking brakes don't set then the scoop won't stop, and
      when the panic bar is operated, the scoop does not have
      any steering.  It loses steering capability (Tr. 47-
      49).

     Within the above framework it is clear that this violation
was "significant and substantial".  In reaching this conclusion
I have not disregarded Respondent's arguments that the cited 
defects would have been discovered during the required pre-
operational checks of the brakes, that the scoop had operational 
service brakes, and that it was the practice to leave unattended
scoops with their buckets on the ground. While these factors do
tend to mitigate the gravity of the violation I find them 
insufficient to negate the findings herein.

     The Secretary also maintains that the violation was the
result of "unwarrantable failure". Unwarrantable failure is defined
as aggravated conduct constituting more than ordinary negligence.
Emery Mining Corp., 9 FMSHRC 1997 (December 1987). Unwarrantable
failure is characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference" or a "lack ofreasonable 
care."  Id. at 2003-04; Rochester and Pittsburgh Coal Company, 13
FMSHRC 189, 193-194 (February 1991).  Relevant issues therefore 
include such factors as the extent of a violative condition, the 
length of time that it existed, whether an operator has been placed
on notice that it existed, whether an operator has been placed on 
notice that greater efforts are necessary for compliance and the
operator's efforts in abating the violative condition.  Mullins and 
Sons Coal Company, 16 FMSHRC 192, 195 (February 1994).

     It may reasonably be inferred from the existence of a 
significant gap between the rotor and the brake pads found on 
November 28 and the fact that the brake adjustment screw had been
so significantly corroded that the cited condition had indeed 
existed for days or even weeks - - just as Inspector Shriver credibly
opined.  This evidence alone supports a finding of high negligence 
and "unwarrantable failure".

     The Secretary also observes that Inspector Shriver himself had
cited similar conditions on the same type of equipment on November 
20, 1995, only eight days before the instant violation was 
discovered. (Government Exhibits 3 and 4).  In addition Shriver 
had also cited Consol on November 20 for an inadequate examination 
of electrical equipment and, in particular, the failure to report
defective emergency parking brakes on battery powered scoops. 
According to Inspector Shriver, corroborated by Consol maintenance
superintendent Donald Bucklew, following the issuance of the 
November 20 citations and in connection with the abatement of 
those violations, the persons who perform the weekly electrical
inspections were re-instructed regarding the necessity to check 
the emergency parking brakes during such inspections. Inspector
Shriver noted that the scoop at issue herein was the subject of
such a weekly electrical examination on the midnight shift on
November 27, 1995, the day before the order at bar was issued.
Accordingly the cited defective brake should clearly have then been
discovered and corrected.  This evidence also independently supports
findings of high negligence and "unwarrantable failure".

     Consol nevertheless maintains that the prior citations were
issued to scoops in a geographically separate area of the mine and 
were the responsibility of a separate maintenance group.  It 
implicitly argues, therefore, that the prior negligence, notice 
and heightened awareness provided by the prior citations cannot be
attributed to Consol herein.  Operator responsibility cannot however
be so compartmentalized as to limit liability for negligence and
unwarrantable failure. Clearly the prior negligence, notice and
heightened awareness from the prior citations is chargeable to the
operator as a whole and is not limited to only those employees who 
may have participated in the violation or to a portion of the mine
where they work.  This argument also ignores the evidence that all 
persons at the mine who perform weekly inspections were purportedly 
"re-instructed" following the issuance of these citations regarding 
the necessity of inspecting the emergency parking brakes during such
inspections.

     Consol further argues that, because the citations issued the
prior week for inoperative automatic emergency parking brakes 
originated from a different problem i.e. they were damaged in moving
the scoops, the operator was not placed on notice that greater efforts
were necessary for compliance with Section 75.523-3(b) on the 5 Right 
Section.  This argument overlooks however that regardless of the
underlying cause of the earlier defects notice was thereby in fact 
provided to the operator that greater attention needed to be given
the inspection of the emergency parking brakes.

     Under the circumstances I agree that the violation was the result
of high negligence and "unwarrantable failure" and Order No. 3321649 
must be affirmed.  Considering the criteria under Section 110(i) of 
the Act, I further find that the proposed civil penalty of $2,200 is 
appropriate.

                              ORDER

     Order Nos. 3717223 and 3321649 are affirmed and Consolidation 
Coal Company is hereby directed to pay a civil penalty $4,000 within
30 days of the date of this decision.


                           Gary Melick
                           Administrative Law Judge


Distribution:

Melonie McCall, Esq., Elizabeth Lopes Beason, Esq., Office of the 
Solicitor, U.S. Dept. of Labor, 4015 Wilson Blvd., Suite 516, 
Arlington, VA 22203

Elizabeth Chamberlin, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241

/jf


**FOOTNOTES**

     [1]: Section 104(d)(1) of the Act reads as follows:

     If, upon any inspection of a coal or other mine, an
     authorized representative of the Secretary finds that there
     has been a violation of any mandatory health or safety
     standard, and if he also finds that, while the conditions
     created by such violation do not cause imminent danger, such
     violation is of such nature as could significantly and
     substantially contribute to the  cause and effect of a coal
     or other mine safety or health hazard, and if he finds such
     violation to be caused by an unwarrantable failure of such
     operator to comply with such mandatory health or safety
     standards, he shall include such finding in any citation
     given to the operator under this Act.  If, during the same
     inspection or any subsequent inspection of such mine within
     90 days after the issuance of such citation, an authorized
     representative of the Secretary finds another violation of
     any mandatory health or safety standard and finds such
     violation to be also caused by an unwarrantable failure of
     such operator to so comply, he shall forthwith issue an
     order requiring the operator to cause all persons in the
     area affected by such violation, except those persons
     referred to in subsection (c) to be withdrawn from, and to
     be prohibited from entering, such area until an authorized
     representative of the Secretary determines that such
     violation has been abated.