.
PLATEAU MINING CORPORATION
June 5, 2000
WEST 99-17
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268
June 5, 2000
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 99-17
Petitioner : A.C. No. 42-00171-03759
:
v. :
: Star Point No. 2
PLATEAU MINING CORP., :
(formerly CYPRUS PLATEAU MINING :
CORPORATION) :
Respondent :
DECISION
Appearances: Ann M. Noble, Esq., U.S. Department of Labor,
Denver, Colorado, for Petitioner,
R. Henry Moore, Esq., Buchanan Ingersoll,
Pittsburgh, Pennsylvania, for Respondent.
Before: Judge Cetti
This case is before me upon a petition for assessment
of civil penalties under section 105(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801 et seq.,
the "Mine Act." The Secretary of Labor, on behalf of the
Mine Safety and Health Administration (MSHA), charged
Plateau Mining Corp. (Plateau) in Citation No. 7611140
with the violation of the mandatory preshift examination
safety standard 30 C.F.R. � 75.360(b)(3). At the hearing
the Secretary, over the objection by Plateau, was
permitted to amend the citation to allege, in the
alternative, a violation of 30 C.F.R. � 75.360(f)
concerning record keeping of the results of the preshift
examination. No change was made in the description of
the alleged violation.
The Citation
Citation No. 7611140 the only citation at issue in this
case reads as follows:
An inadequate preshift was conducted for the afternoon
shift for Unit #1 working section due to the following
conditions: Loose and fine coal was allowed to accumulate
in the following areas: (1) No. 6 entry which measured 5-15
inches in depth, 1-4 feet in width and extended for approx-
imately 40 feet in length, (2) In the No. 5 entry which
measured 2-4 feet in depth, 7-8 feet wide and approximately
20 feet in length. (3) In the No. 4 entry, the accumulations
measured 2-4 feet in depth, 7-8 feet wide and approximately
30 feet in length. (Refer to citation No. 7611138) and the
Approved Roof Control Plan was not being complied with
in the following locations (1) A rib had blown out which
left an area of approximately 15 feet in length and up to
6-8 feet in width between the roof bolts and the rib, (2)
In the No. 3 entry the ribs had sloughed which left an
area of approximately 9-10 feet in length and up to 7
feet in width between bolts and rib, (3) In the No. 4
entry the ribs had sloughed out which left an area of
approximately 10 feet in length and up to 7 feet in width
between the roof bolts and the rib, (4) In the No. 5 entry
the ribs had sloughed out which left an area of approximately
15 feet in length and 7 feet in width between the roof
bolts and the rib. (Refer to citation No. 7611139). None
of the above hazardous conditions had been entered in the
preshift record book.
The citation alleged that an injury or illness was
"reasonably likely," that it could be expected to be "permanent-
ly disabling," and that negligence was "high." It also
alleged that the condition resulted from an "unwarrantable
failure" and that it was significant and substantial.
Stipulations
At the hearing the parties agreed on stipulations as
follows:
1. Plateau Mining Corp. is engaged in mining and selling
of coal in the United States and its mining operations
affect interstate commerce.
2. Plateau Mining Corp. is the owner and operator of
Star Point Number 2 Mine, MSHA ID Number 42-00171.
3. Plateau Mining Corp. is subject to the jurisdiction
of the Federal Mine Safety and Health Act of 1977, 30 USC
Sections 801, et seq.
4. The Administrative Law Judge has jurisdiction in this
matter.
5. The subject Citation 7611140 was properly served by a
duly authorized representative of the Secretary upon an agent
of Respondent on the date and place stated therein and may
be admitted into evidence for the purpose of establishing
its issuance and not for the truthfulness or relevancy of
any statements asserted therein.
6. The exhibits to be offered by Respondent and the
Secretary are stipulated to be authentic, but no
stipulation is made as to their relevance or the truth of
the matters asserted therein.
7. Payment of the proposed penalty will not affect
Respondent's ability to continue in business.
8. The Respondent demonstrated good faith in abating the
violation.
9. Plateau is a coal-mine operator with 1,391,173 tons
of production at this mine and 70,986,776 tons of
production for the company in 1997. The certified copy
of the MSHA assessed violations history accurately
reflects the history of this mine for the two years prior
to date of the citation and order.
10. Although Citation Number 7611140 indicates that it
was issued at 0915, it was actually issued at 2115.
Issues
At the hearing the issues were stated as follows:
1. Whether a violation of 30 C.F.R. � 75.360(b)(3)
and/or 30 C.F.R. � 360(f) occurred when a preshift
examination of Unit 1 failed to note the accumulation of
loose and fine coal-dust accumulation.
2. If a violation of a mandatory standard existed under
one of the Secretary's theories of liability, whether it
significantly and substantially contributed to the cause
and effect of a mine safety or health hazard.
3. If a violation of a mandatory standard existed under
one of the Secretary's theories of liability, whether it
resulted from an unwarrantable failure to comply with the
cited standard.
4. If a violation of a mandatory standard existed under
one of the Secretary's theories of liability, what
penalty is appropriate.
Finding of Facts
On April 28, 1998, the day-shift section face boss
Miles David Frandsen was supervising a crew of miners in the
Unit No. 1 production section of the Star Point No. 2
mine. A continuous miner was used in the section to mine
the coal.
At 12:16 p.m. Mr. Frandsen performed an "onshift"
examination of the section pursuant to 30 C.F.R. �
75.362. During his examination of the section, he
observed no hazards in the eight faces that were being
mined in any part of the section. He completed the
examination at 12:46 p.m. He called out the results of
his preshift examination of the section at 2:26 p.m.
Later on that same shift, after completion of his
preshift examination of the section, a bounce occurred
approximately 240 feet, outby the working faces.
Frandsen immediately had his crew stop mining and move
needed equipment to the area of the bounce. He had his
crew take the necessary action to start correcting the
conditions created by the bounce. He stayed late at the
end of his shift in order to report the bounce and
conditions it caused to the oncoming foreman, Carl
Martinez. He showed Martinez what had been done and what
still needed to be done to complete the correction of the
condition caused by the bounce. This included the
accumulations and other hazardous conditions that later
that evening were observed by Inspector Passarella and
described by her in the citation at issue and as well in
Citation Nos. 7611138 and 7611139 which were received
into evidence as Petitioner's Exhibits 7 and 8. The
latter two citations are not at issue but describe the
hazardous conditions caused by the coal burst or bounce
that occurred after completion of the preshift
examination. The accumulations were approximately two
crosscuts outby the working face and thus were not in
locations which would indicate that they resulted from
the mining process. They were in locations which
indicate they had been caused by coal coming off the ribs
as a result of the bounce.
It was later that same day, April 28th, at approxi-
mately 8 p.m. that Inspector Lana Passarella accompanied by
Clifford Snow first entered the area of the mine where
the bounce occurred. Upon observing the accumulations
and other conditions caused by the bounce which she
believed at the time constituted the hazardous conditions
that should have been observed and noted in the preshift
examination, she issued Citation No. 7611140 at 2115.
(Stipulation No. 10).
Discussion
The citation alleges a violation of 30 C.F.R. � 75.360(b)(3)
which provides in relevant part as follows:
(b) The person conducting the preshift examination
shall examine for hazardous conditions, test for
methane and oxygen deficiency, and determine if
the air is moving in its proper direction at the
flowing locations.
* * *
(3) Working sections and areas where mechanized
mining equipment is being installed or removed, if
anyone is scheduled to work in the section or
in the area during the oncoming shift. The
scope of the examination shall include the
working places, approaches to worked-out areas
and ventilation controls in these sections and
in these areas, and the examination shall include
tests of the roof, face and rib conditions
on those sections and in these areas.
The only time requirement for preshift examination is set
forth in 30 C.F.R. � 75.360(a) which specifies that the
preshift examination is to be performed during some part
of the three hour period before the beginning of the next
shift. The next shift in this case started at 3 p.m.
The preshift examination was performed between 12:16 and
12:46 p.m. Thus the preshift examination was clearly
performed within the three hour period before the next
shift began.
Since the hazardous conditions described in the citation
in question did not exist at the time the preshift
examination was performed and were caused by the later
bounce some 240 feet from the face, there was no
violation of the cited standard 30 C.F.R. � 75.360(b)(3),
New Warwick Mining Co., 18 FMSHRC 1568; 1575 (Rev. Comm.
Sept. 1996); Enlow Fork Mining Co., 19 FMSHRC 5; (Rev.
Comm. January 1997).
The Secretary under the alternative theory of liability
charges Plateau with the violation of 30 C.F.R. �
75.360(f) which in relevant part provides:
A record of the results of each preshift examination,
including a record of hazardous conditions and their
locations found by the examiner during each exami-
nation and of the results and locations of an end
methane measurements, shall be made on the surface
before any persons, other than certified persons
conducting examinations required by this subpart,
enter any underground area of the mine. A record
shall also be made by a certified person of the
action taken to correct hazardous condition
found during the preshift examination. (Emphasis
added).
Clearly, the only record of the preshift examination is
of the conditions found or corrected during the preshift exami-
nation. No record of conditions found at other times is
required under 30 C.F.R. � 75.360(f). Since the hazardous
conditions observed by the inspector did not exist at the
time of the preshift inspection, no violation of the recording
requirement occurred. The citation should be vacated.
Conclusion
Plateau Mining Corporation did not violate 30 C.F.R.
� 75.360(b)(3) nor 30 C.F.R. � 75.360(f). Citation No. 7611140
and its corresponding proposed penalty are VACATED.
August F. Cetti
Administrative Law Judge
Distribution:
Ann M. Noble, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716 (Certified
Mail)
R. Henry Moore, Esq., BUCHANAN INGERSOLL, One Oxford Centre, 301
Grant St., 20th Floor, Pittsburgh, PA 15219-8800 (Certified
Mail)
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