<DOC>
[DOCID: f:wst96-21.wais]
BASIN RESOURCES INCORPORATED
June 3, 1997
WEST 96-21
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
June 3, 1997
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 96-21
Petitioner : A.C. No. 05-02820-03768
:
: Docket No. WEST 96-123
: A.C. No. 05-02820-03776
v. :
: Docket No. WEST 96-134
: A.C. No. 05-02820-03782
:
BASIN RESOURCES INCORPORATED, : Docket No. WEST 96-180
Respondent : A.C. No. 05-02820-03784
:
: Docket No. WEST 96-195
: A.C. No. 05-02820-03785
:
: Golden Eagle Mine
DECISION
Appearances: Richard Bury, Conference and Litigation Representative,
Mine Safety and Health Administration, Price, Utah, and
Ned D. Zamarripa, Conference and Litigation Representative,
Mine Safety and Health Administration, Denver, Colorado,
for Petitioner;
Andrew Volin, Esq., Sherman & Howard, Denver, Colorado,
for Respondent.
Before: Judge Manning
These cases are before me on petitions for assessment of
civil penalties filed by the Secretary of Labor, acting through
the Mine Safety and Health Administration ("MSHA"), against Basin
Resources, Incorporated ("Basin Resources"), pursuant to sections
105 and 110 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. �� 815 and 820. The petitions allege 53 violations of the
Secretary's safety regulations. A hearing was held in Denver,
Colorado. The parties presented testimony and documentary
evidence, and Basin Resources filed a post-hearing brief. With
the exception of Order No. 4057563, all of the citations were
issued to Basin Resources under section 104(a) of the Mine Act.
I.
SECRETARY'S MOTION TO ADD ENTECH, INC., AND
MONTANA POWER COMPANY AS RESPONDENTS
At the time the citations and orders were issued in these
cases, Basin Resources operated the Golden Eagle Mine in Las
Animas County, Colorado. The mine is now closed. The mine was
an underground mine that used the longwall method to extract
coal. Basin Resources contested the penalties in these cases and
in other dockets because it believes that the penalties are
excessive especially since its only mine is closed and it is in
the process of winding down. It contends that the penalties
should be significantly reduced under the criteria set forth in
section 110(i) of the Mine Act, specifically the "effect on the
operator's ability to continue in business" criterion. 30 U.S.C.
� 820(i). The Secretary disagrees and argues that when an
operator is out of business, the "ability to continue in business
criteria" no longer applies and the penalties should not be
reduced.
The Secretary moved for partial summary decision on this
issue. By order dated January 7, 1997, I denied the Secretary's
motion. 19 FMSHRC 211. I held that if a mine operator
establishes that it is no longer in the mining business and does
not intend to reopen its mines or otherwise return to the mining
business, this fact should be taken into consideration when
assessing a civil penalty under the ability to continue in
business criterion. My reasons for this conclusion are set forth
in my order which I hereby incorporate by reference. To
summarize, I held that civil penalties are remedial, not
punitive, and are designed to "induce those officials responsible
for the operation of a mine to comply with the Act and its
standards." Id. at 212 (citation omitted). I indicated that I
would assess lower penalties against Basin Resources than
proposed by the Secretary because it was no longer a mine
operator.
The Secretary filed a motion to add Entech, Inc., and
Montana Power Company as respondents in these and the other Basin
Resources cases. The Secretary contends that these entities were
"operators" of the Golden Eagle Mine as that term is used in
section 3(d) of the Mine Act. 30 U.S.C. � 802(d). In my
decision issued on April 7, 1997, in Basin Resources, Inc.,
Docket No. WEST 95-104, 19 FMSHRC______ (April 1997), I addressed
this issue in detail and denied the Secretary's motion. I
incorporate my analysis of that issue into this decision by
reference. For the reasons set forth in that decision, the
Secretary's motion is denied.
II.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
WITH RESPECT TO THE CITATIONS AND ORDER AT ISSUE
A. Roof and Rib Support Citations
1. Citation No. 4058042
On July 20, 1995, MSHA Inspector Earl Simmons issued a
citation alleging a violation of 30 C.F.R. � 75.202(a). In
the citation, the inspector alleged that the roof in the 4-
Left 009-0 longwall was not being supported or controlled to
protect persons from falls of roof. The citation states
that the No. 4 shield was "down from the immediate roof
approximately 12 inches." He determined that the alleged
violation was not significant and substantial ("S&S"). The
Secretary of Labor proposes a civil penalty of $1,019.00 for
the alleged violation. Section 202(a) provides, in part,
that the roof and ribs of "areas where persons work or
travel shall be supported or otherwise controlled to protect
persons from hazards related to falls" of the roof or ribs.
Inspector Simmons stated that the condition was obvious and
could have been caused by a leak in the shield hydraulic
system or by a failure to make sure that the shield was
raised against the roof. (Tr. 123-24). He testified that
material could fall through the 12-inch opening and strike a
miner below. (Tr. 124). He was not sure if the shield was
in contact with the roof at some point along its length.
(Tr. 129).
Jim Peterson, a former safety supervisor with Basin
Resources, testified that loose material against the roof
prevented the shield from making full contact with the roof.
(Tr. 133). He believed that the condition observed by the
inspector did not violate the roof control plan. (Tr. 134-
35) He also believed that miners working under the shields
were protected from falling rock because there was very
little space between the shields. (Tr. 135-36). He
testified that only small pieces of material could fall
between the shield and the adjacent shields. Id.
I credit the testimony of Inspector Simmons and find that
the Secretary established a violation. I reject Basin
Resources' argument that the Secretary failed to introduce
evidence that the conditions were as described in the
citation. (B.R. Br. 10). I find, however, that only small
pieces of material could fall between the shield and
adjacent shields. Thus, I find that the violation was not
serious. A penalty of $200 is appropriate.
2. Citation No. 4057583
On July 6, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.202(a). In the
citation, the inspector alleged that loose ribs were present
that needed to be controlled between crosscut No. 20 and
crosscut No. 23 along the No. 8 belt conveyor. The
inspector estimated the distance to be about 300 feet.
Inspector Simmons determined that the alleged violation was
S&S. The Secretary of Labor proposes a civil penalty of
$2,072.00 for the alleged violation.
Inspector Simmons was concerned that the loose ribs could
fall and injure a miner. (Tr. 158). He testified that the
belt examiner and beltman were exposed to this hazard. Id.
The inspector believed that an injury was reasonably likely,
in part, because miners have been injured at the mine as a
result of rib falls. (Tr. 161). He stated that the
violation was S&S because it was reasonably likely that the
loose rib would fall and seriously injure a miner. (Tr.
162). He admitted that the roof was adequately supported in
the area. Inspector Simmons testified that he based his
citation solely on his visual observation of cracks in the
ribs and he did not test nor attempt to take down the ribs.
(Tr. 165-66). He had never inspected the Golden Eagle Mine
prior to this inspection. Id.
Mr. Peterson testified that the ribs along the No. 8 belt
conveyor had not changed much in the days prior to July 6
and the ribs did not present a hazard of falling. (Tr.
167). He further testified that one cannot determine
whether ribs are loose in the mine by visual observation
alone. (Tr. 168). He stated that when miners started
barring down the area cited by Inspector Simmons, they had
difficulty getting any material down. (Tr. 168-69). Mr.
Peterson stated that the fact that material could not be
barred down establishes that the ribs were not loose. Id.
Kay Hallows, the former safety director at the mine,
testified that the people responsible for abating the
citation tried to find loose material in the cited area and
could not get a significant amount of material down because
the ribs were not loose. (Tr. 172).
I find that the Secretary failed to establish a violation.
I credit the testimony of Messrs. Peterson and Hallows that,
upon closer examination, the ribs were not loose. The
citation is vacated.
3. Citation No. 4057964 and Order No. 4057203
On November 14, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.202(a). In the
citation, the inspector alleged that loose roof was not
controlled in the No. 3 entry of 3-left tailgate beginning
20 feet inby crosscut 25 and extending 50 feet outby the
crosscut. The citation states that roof cutters have broken
the roof in the cited travelway. He determined that the
alleged violation was S&S. The Secretary of Labor proposes
a civil penalty of $4,600.00 for the alleged violation.
Inspector Simmons testified that the weekly examiner must
travel through the cited entry at least once a week. (Tr.
174). He stated that "cutters" are areas in the roof where
pressure causes the roof to break up along weak zones. (Tr.
175). The cutter he observed was running through the cited
entry. Id. Broken rock was hanging over the area where
people would travel. Inspector Simmons testified that roof
bolts were present and cribs had been set in the area. (Tr.
176). He stated that these supports were not controlling
the loose roof created by the cutter. Inspector Simmons
further testified that it was reasonably likely that a
person walking through the area would be seriously injured
by falling roof. (Tr. 176-77).
In the citation, Inspector Simmons established a termination
due date of November 17, 1995. On November 22, 1995,
Inspector Simmons issued Order No. 4057203 under section
104(b) of the Mine Act alleging that no apparent effort had
been made to correct the cited condition. He stated that he
did not observe any materials in the area to abate the
condition and did not observe any changes in the roof
support. (Tr. 181). A company representative did not
accompany the inspector on his inspection, so he did not
know why the condition had not been corrected. (Tr. 179).
He stated that abatement would require the installation of
planks, steel rails, or J-channels. (Tr. 182-83).
Jeffrey Salerno, a former safety inspector with Basin
Resources, testified that at the time the citation was
issued the roof was supported by roof bolts and straps.
(Tr. 262). He stated that there was some loose material
above the straps down the center of the entry. Id. He
testified that Inspector Simmons wanted the area above the
straps to be barred down. Mr. Salerno believed that barring
down the area would increase the risk of a roof fall. Jack
Schuster, a former miner and fireboss with Basin Resources,
was with Inspector Simmons as a UMWA representative when the
section 104(b) order was issued. He testified that planks
had been installed above the straps where coal and rock had
fallen out. (Tr. 281). This testimony was supported by Mr.
Hallows. (Tr. 295). He further testified that he did not
believe that the roof presented a hazard on November 22.
Id. Mr. Schuster testified that Inspector Simmons wanted
the mine to install more planks or J-channels. He stated
that it would not have been practical to install additional
planks or J-channels. (Tr. 283).
The Commission has held that the "adequacy of particular
roof support or other control must be measured against the
test of whether the support or control is what a reasonably
prudent person, familiar with the mining industry and
protective purpose of the standard, would have provided in
order to meet the protection intended by the standard."
Cannon Coal Co., 9 FMSHRC 667, 668 (April 1987). I find
that the Secretary established that additional support was
necessary to protect persons from falling material, taking
into consideration the reasonable prudent person test.
I find, however, that the section 104(b) order should be
vacated. I credit the testimony of UMWA walkaround
representative Schuster that additional planks had been
installed before November 22. He believed that the roof did
not present a hazard on that date. I credit this testimony.
I find that the violation described in the underlying
citation had been abated and no longer existed at the time
the section 104(b) order was issued. See Mid-Continent
Resources, Inc., 11 FMSHRC 505, 509 (April 1989).
Accordingly, Order No. 4057203 is vacated.
I find that the Secretary established the four elements of
the Commission's S&S test. Mathies Coal Co., 6 FMSHRC 1, 3-
4 (January 1984). The third element of the test is the key
element in this situation: whether it was reasonably likely
that the hazard contributed to would result in an injury.
It is important to recognize that this element does not
require the Secretary to establish that it was more probable
than not that an injury will result from the hazard
contributed to by the violation. U. S. Steel Mining Co.,
Inc., 18 FMSHRC 862, 865 (June 1996). The test is whether
such an injury is reasonably likely. Assuming continued
normal mining operations, it was reasonably likely that the
conditions would result in a serious injury.
I further find that Basin Resources' negligence was
moderate. Although extensive roof support had been placed
in the area, there was loose material down the center of the
entry. (Tr. 262). Basin Resources should have known that
this condition needed to be taken care of. A penalty of
$1,200 is appropriate.
4. Citation No. 4057201
On November 22, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.202(a). In the
citation, the inspector alleged that additional roof support
was required in the headgate area of mechanized mining unit
("MMU") 009-0 about 30 feet inby crosscut 29 in the No. 1
entry, 4-left panel. The citation states that the rib on
the travelway side had rolled away from the solid pillar so
that the row of roof bolts adjacent to the rib was about 6
to 7 feet from the rib for a distance of about 18 feet. The
citation further states that cap coal about 12 inches thick
was loose in the cited area where persons normally travel.
Inspector Simmons determined that the violation was S&S.
The Secretary of Labor proposes a civil penalty of $1,450.00
for the alleged violation.
Inspector Simmons stated that pressure in the roof caused
the rib to fall. (Tr. 186). The rib had recently fallen at
the time the inspector observed it. (Tr. 189-90). This
condition left the roof adjacent to the rib unsupported.
Roof bolts are required to be within five feet of the ribs.
He testified that additional support had not been provided
in the area and barricades or warning devices were not
present. Inspector Simmons further stated that persons
entering the longwall section would have to pass by the
cited area. (Tr. 187-88; Ex. P-5). He testified that it
was reasonably likely that someone would be seriously
injured if the roof was not supported. (Tr. 188-89).
Mr. Hallows testified that the preshift and onshift reports
indicate that the rib must have fallen immediately prior to
Inspector Simmons' inspection. (Tr. 195-96; Ex. R-8). He
also testified that he talked to Mr. Schuster, the UMWA
walkaround representative, after the citation was issued.
Mr. Schuster advised Mr. Hallows that the rib had only
recently fallen. (Tr. 197). Mr. Schuster told Hallows that
the fallen coal looked black and fresh. Id. He also stated
that rock dust and footprints were not on the fallen coal.
Mr. Schuster testified that he was with Inspector Simmons at
the time he issued this citation. (Tr. 287). The citation
was issued at 2:55 pm, during the shift change. He said
that the day crew had already left the section and the
swing shift crew had not arrived. Id. Mr. Schuster
testified that in his opinion the rib fell between the two
shifts, because the coal was fresh. (Tr. 288). He said
that the oncoming miners traveled through the area but that
they walked under supported roof. (Tr. 289). Once the
swing shift crew arrived, the condition was abated.
Basin Resources contends that the citation should be vacated
because there was no indication that additional roof support
was necessary prior to the rib fall. (B.R. Br. 17). The
Commission considers the reasonable prudent person test when
analyzing alleged violations of this safety standard.
Cannon Coal Co., 9 FMSHRC at 668 (April 1987). I believe
that a reasonably prudent person would have recognized that
the support observed by Inspector Simmons was inadequate.
Prior to the rib fall, on the other hand, such person would
not have known that additional roof support was required.
I find that the Secretary established a violation. The fact
that the rib fall occurred just before the citation was
issued does not negate the fact that additional support was
necessary. The Mine Act imposes strict liability on mine
operators. Based on the testimony of Messrs. Hallows and
Schuster, I find that Basin Resources was not negligent with
respect to the violation. I credit their testimony that the
ribs fell during the shift change. I also find that the
violation was not S&S because, assuming continued normal
mining operations, it is highly likely that supplemental
roof support would have been installed before miners were
exposed to the hazard. Thus, it was not reasonably likely
that anyone would be injured by the violation. A penalty of
$100 is appropriate.
5. Citation No. 4057352
On December 21, 1995, MSHA Inspector Melvin Shiveley issued
a citation alleging a violation of 30 C.F.R. � 75.202(a).
In the citation, the inspector alleged that the mine roof
was not supported or controlled in crosscut No. 27 between
entry Nos. 2 and No. 4, 5-Left section. The citation states
that the coal rib had sloughed exposing the roof in an area
seven feet long by six feet wide from nearest permanent roof
support. No equipment or material was located in the
crosscut. Inspector Shiveley determined that the alleged
violation was not S&S. The Secretary of Labor proposes a
civil penalty of $1,019.00 for the alleged violation.
Inspector Shiveley testified that the ribs at the Golden
Eagle Mine slough easily exposing unsupported roof. (Tr.
50-51). The roof is made up of shale that cracks easily and
falls if not supported. (Tr. 51). At the time he observed
the roof, it was stable but subject to change. (Tr. 52).
He believed that miners travel through the area frequently.
He did not know how long the condition had existed. (Tr.
53-54).
For the reasons set forth above, I find that the Secretary
established a violation. An area of roof was exposed by the
sloughage but was not supported. Because it is likely that
the rib fell a short time before the citation was issued,
Basin Resources's negligence is low. A penalty of $200 is
appropriate.
6. Citation No. 4057588
On July 7, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.202(a). In the
citation, the inspector alleged that Basin Resources failed
to support or control loose coal ribs on the 011-0 working
section. He determined that the alleged violation was S&S.
The Secretary of Labor proposes a civil penalty of $1,450.00
for the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was serious and S&S. A
penalty of $1,200 is appropriate.
7. Citation No. 4057351
On December 21, 1995, Inspector Shiveley issued a citation
alleging a violation of 30 C.F.R. � 75.202(a). In the
citation, the inspector alleged that Basin Resources failed
to support or control the roof on the east mains. He
determined that the alleged violation was S&S. The
Secretary of Labor proposes a civil penalty of $1,450.00 for
the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was serious and S&S. A
penalty of $1,200 is appropriate.
8. Citation No. 4057589
On July 7, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.211(d). In the
citation, the inspector alleged that a bar for taking down
loose material was not provided for the roof bolting machine
operating on the 011-0 MMU in the No. 5 entry. The citation
states that loose ribs were present in the area. Inspector
Simmons determined that the alleged violation was S&S. The
Secretary of Labor proposes a civil penalty of $1,450.00 for
the alleged violation. The safety standard provides, in
part, that a "bar for taking down loose material shall be
available in the working place or on all face equipment
except haulage equipment."
Inspector Simmons testified that a bar was not available in
the working place or in the last open crosscut. (Tr. 60).
He stated that it was his understanding that the bar was
subsequently found at the tailpiece on the section. Id.
Inspector Simmons was not present when the scaling bar was
found. (Tr. 64).
Mr. Peterson was with Inspector Simmons when he issued the
citation. (Tr. 74). He testified that a mechanic had the
scaling bar where he was working on a shuttle car in the
working place. (Tr. 75). The mechanic used the bar to pry
down loose material near the shuttle car. Id. He testified
that although the bar was in the same entry as the
tailpiece, it was not at that location. He further stated
that it would take a miner about ten minutes to get the
scaling bar and return to the area where Inspector Simmons
issued the citation. (Tr. 77).
The safety standard provides that a scaling bar must be made
available in the working place. It does not require that
the bar be in any particular location within the working
place. I credit the testimony of Mr. Peterson that the bar
was being used at another location in the working place.
While it might be advisable to have several bars available,
the regulation does not include such a requirement.
Accordingly, the citation is vacated.
9. Citation No. 4057590
On July 7, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.220(a)(1). In the
citation, the inspector alleged that the mine failed to
follow the approved roof control plan because the last row
of roof bolts was more that five feet from the face in the
No. 5 entry of MMU 011-0. The distance measured between
five feet eight inches and six feet. He determined that the
alleged violation was not S&S. The Secretary of Labor
proposes a civil penalty of $1,019.00 for the alleged
violation.
Basin Resources does not contest the basic facts set out in
the citation, but argues that the roof bolter put the roof
bolts as close as he could to the face. (Tr. 86-87). Mr.
Peterson testified that muck is often present at the face
and the bolting machine could not get close enough to the
face to place the roof bolts within five feet of the face.
Id. He also stated that the presence of the muck prevented
anyone from going under the cited area.
I find that the Secretary established a violation. It is
clear the Basin Resources violated the plan provision. I
find that the gravity was low because of the location of the
unsupported roof. A penalty of $200 is appropriate.
10. Citation No. 4057269
On July 6, 1995, Inspector Shiveley issued a citation
alleging a violation of 30 C.F.R. � 75.208. In the
citation, the inspector alleged that Basin Resources failed
to post a sign warning miners of unsupported roof at the
last row of roof support in the 3rd north mains. He
determined that the alleged violation was S&S. The
Secretary of Labor proposes a civil penalty of $1,450.00 for
the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was serious and S&S. A
penalty of $1,000 is appropriate.
B. Ventilation Citations
1. Citation No. 4057800
On June 8, 1995, MSHA Inspector Jeffrey Fleshman issued a
citation alleging a violation of 30 C.F.R. � 75.360(f). In
the citation, the inspector alleges that an adequate
preshift examination was not performed in the 4-Left active
longwall section where miners were scheduled to work. The
citation states that the date, time, and initials were not
present where miners were observed working at the following
locations: (1) 4-Left kitchen, crosscut No. 56, between
entry Nos. 1 and 2; (2) 4-Left tool room, crosscut No. 56,
between entry Nos. 2 and 3. Inspector Fleshman determined
that the alleged violation was not S&S. The Secretary of
Labor proposes a civil penalty of $1,450.00 for the alleged
violation. Section 75.360(f) is now at 75.360(e) and
provides, in part, that "at each working place examined, the
person doing the preshift examination shall certify by
initials, date, and time, that the examination was made."
The standard further provides that in areas outby a working
section, the preshift examiner "shall certify by initials,
date, and the time at enough locations to show that the
entire area had been examined."
Inspector Fleshman testified he observed miners working in
the cited area. (Tr. 21-23). He stated that there were date
boards inby the cited area that showed that a preshift
examination had been made in those areas and that there were
date boards outby the cited area that showed that a preshift
examination had been made all along the intake roadway.
(Tr. 25-26). Inspector Fleshman testified that he did not
know whether the cited areas had been preshifted, but he was
sure that the examiner did not enter his initials, date, and
the time on the boards in the cited areas. (Tr. 26).
Mr. Hallows testified that he spoke with the miner who
performed the preshift examination. That miner advised Mr.
Hallows that he examined the cited areas but that he did not
enter his certification on the board at the kitchen or the
tool room. (Tr. 31). Mr. Hallows testified that the
examiner did not think that his initials were necessary
because he entered the required certification at numerous
other locations throughout the area. Id.
The safety standard specifically provides that in outby
areas, such as the cited locations, the examiner must enter
his certification "at enough locations to show that the
entire area had been examined." The Secretary did not
establish that Basin Resources violated this requirement.
Inspector Fleshman stated that certifications were present
throughout the area. (Tr. 25-26). Accordingly, the
citation is vacated.
2. Citation No. 4058041
On July 20, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.370(a)(1). In the
citation, the inspector alleged that the mine failed to
follow the approved ventilation plan in the 4-Left 009-0
longwall because only 348 feet per minute ("fpm") of air was
passing by shield No. 15 on the intake side. The plan
requires 450 fpm at that location. (Tr. 106; Ex. P-3). He
determined that the alleged violation was not S&S. The
Secretary of Labor proposes a civil penalty of $1,779.00 for
the alleged violation.
Mr. Peterson testified that an air measurement of 480 fpm
was taken at shield No. 15 at the beginning of the shift and
a reading of 511 fpm was obtained on the previous shift.
(Tr. 113; Ex. R-2). He also testified that methane was not
present at the time Inspector Simmons took his reading. He
stated that as the shields on a longwall are pulled in, the
gob behind the shields may not immediately cave in and the
air velocity will drop. (Tr. 114). Once the area caves,
the velocity increases again. The shields in the cited area
had recently been advanced.
Basin Resources argues that the citation should be vacated
because the inspector did not testify that the air reading
was 348 fpm. (B.R. Br. 9). It states that the parties
stipulated that the contents of the citations were not
admitted for the truth of the matters asserted therein.
Although it is true that Inspector Simmons did not state
that his measurement was 348 fpm, he was asked how he
obtained the 348 fpm reading. (Tr. 105).
I find that the Secretary established a violation. Although
I recognize that the velocity may fluctuate over the mining
cycle, the plan establishes the minimum amount of air that
is required. The violation was not serious because the
reading was obtained while the shields were moved. The
shear was not cutting coal at that location and methane was
not present. A penalty of $200 is appropriate.
3. Citation No. 4057978
On November 28, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.380(d)(1). In the
citation, the inspector alleged that the primary escapeway
in the No. 4 entry, 3rd north panel, for 011-0 MMU was not
maintained in a safe condition. The citation states that
water had accumulated to a depth of 20 inches beginning
about 10 feet inby crosscut No. 66 and extending inby to
crosscut No. 67, a distance of about 100 feet. He
determined that the alleged violation was not S&S. The
Secretary of Labor proposes a civil penalty of $1,450.00 for
the alleged violation. The safety standard requires
escapeways to be maintained in a safe condition to assure
passage of persons.
Inspector Simmons testified that the water presented an
unsafe condition in the escapeway. (Tr. 230). The water was
murky and the bottom could not be seen. He determined that
an injury was unlikely because miners could exit the section
through the alternate escapeway. (Tr. 231).
Mr. Hallows testified that a pump was running in the cited
area at the time of Inspector Simmons' inspection. (Tr.
232; Ex. R-14). Mr. Salerno confirmed that the mine had at
least one pump running in the area to remove the water.
(Tr. 276).
I find that the Secretary established a violation. There is
no dispute that there was a significant amount of water in
the escapeway. The violation was not particularly serious
because there was at least one alternate route out of the
section. Basin Resources' negligence was low because it was
attempting to remove the water at the time the citation was
issued. A penalty of $100 is appropriate.
4. Citation No. 4057229
On February 20, 1996, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.312(g)(3). In the
citation, the inspector alleged that the examinations of
automatic fan signal devices for three fans had not been
recorded since December 31, 1995. He determined that the
alleged violation was not S&S. The Secretary of Labor
proposes a civil penalty of $1,019.00 for the alleged
violation. The safety standard requires automatic fan
signal devices to be checked at least once a month.
Inspector Simmons testified that the purpose for testing
automatic fan signal devices and recording the results of
the test is to determine if the fans are functioning
properly. (Tr. 234). He determined that it was unlikely
than anyone would be injured as a result of this violation.
Mr. Hallows testified that the mine was shut down at the
time Inspector Simmons issued the citation. (Tr. 236). No
coal was being produced and all miners had been terminated
from employment at the mine. He further testified that the
disputed examinations were performed, but were not entered
in the record book. (Tr. 236-37; Ex. R-15).
I find that the Secretary established a violation. The mine
was still being ventilated at the time the citation was
issued. The mine was closed but had not been sealed at that
time. I reject Basin Resources' argument that the Secretary
failed to introduce evidence in support of the allegations
in the citation. The violation was not serious. A penalty
of $100 is appropriate.
5. Citation No. 4057798
On June 8, 1995, Inspector Fleshman issued a citation
alleging a violation of 30 C.F.R. � 75.340(a)(1). In the
citation, the inspector alleged that the power center in 4-
left, crosscut No. 36, was not ventilated into return air.
He determined that the alleged violation was not S&S. The
Secretary of Labor proposes a civil penalty of $2,606.00 for
the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was serious. A penalty
of $500 is appropriate.
6. Citation No. 4057799
On June 8, 1995, Inspector Fleshman issued a citation
alleging a violation of 30 C.F.R. � 75.333(b)(3). In the
citation, the inspector alleged that the stopping in 4-left,
crosscut 56, between the belt and intake entries was not
coated in its entirety on the belt side with a flame
retardant material. Wood was exposed along the top of the
stopping. He determined that the alleged violation was not
S&S. The Secretary of Labor proposes a civil penalty of
$1,019.00 for the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was not serious. A
penalty of $200 is appropriate.
7. Citation No. 4057748
On October 10, 1995, Inspector Shiveley issued a citation
alleging a violation of 30 C.F.R. � 75.360(c). In the
citation, as modified, the inspector alleged that the
preshift examiner did not take his air measurements in the
proper location, the last open crosscut of the working
section. He determined that the alleged violation was not
S&S. The Secretary of Labor proposes a civil penalty of
$1,019.00 for the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was serious. A penalty
of $500 is appropriate.
8. Citation No. 4057425
On January 10, 1996, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.351(f). In the
citation, the inspector alleged that the AMS sensors that
monitor the mine atmosphere in the NW 1 through 6 bleeders
had not been calibrated since November 17, 1995. He
determined that the alleged violation was not S&S. The
Secretary of Labor proposes a civil penalty of $1,019.00 for
the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. A penalty of $200 is appropriate.
C. Accumulation and Rock Dusting Citations
1. Citation No. 4058025
On August 1, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.400. In the
citation, the inspector alleged that loose coal and coal
fines were allowed to accumulate on the 011-0 MMU. The
citation states that the accumulations extended from
crosscut 64 in entry Nos. 1 through 3 and extended inby to
crosscut 65. It states that the accumulations measured up
to 18 inches in depth. He determined that the alleged
violation was not S&S. The Secretary of Labor proposes a
civil penalty of $1,019.00 for the alleged violation. The
safety standard provides that coal dust, including float
coal dust, loose coal, and other combustible materials shall
be "cleaned up and not be permitted to accumulate in active
workings, or on electric equipment therein."
Inspector Simmons testified that he was concerned that if an
ignition occurred, the accumulations could enhance a fire.
(Tr. 138). Grab samples of the accumulations revealed that
the accumulated material was 77 percent combustible in one
sample and 88 percent combustible in the other. (Tr. 140;
Ex. P-4). Inspector Simmons determined that the condition
was not S&S because he did not observe an ignition source in
the area. (Tr. 141). No mining was taking place at the
time the citation was written because of a vacation
shutdown. (Tr. 143). Mr. Hallows testified that the mine
was shut down for vacation at the time the citation was
issued and that the accumulation would have been cleaned up
before production resumed. (Tr. 144-45; Ex. R-3).
The Secretary established a violation of the safety
standard. The fact that the mine was not producing coal at
the time the citation was issued is not controlling. The
accumulation was created while the mine was producing coal
and still existed when miners re-entered the mine to resume
operations. Inspector Simmons took into consideration the
fact that ignition sources were not present when he
determined that the violation was not S&S. The violation
was serious. A penalty of $500 is appropriate.
2. Citation No. 4057977
On November 28, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.400. In the
citation, the inspector alleged that loose coal and coal
fines were allowed to accumulate on the 011-0 MMU in the No.
1 entry between crosscut Nos. 67 and 68 for a distance of
about 120 feet. The citation states that the accumulations
were in the roadway and along both ribs to a depth of 18
inches. It further states that similar accumulations were
present in crosscut No. 68 between the Nos. 1 and 2 entries
for a distance of about 70 feet. The citation states that
an energized machine was in the area. He determined that
the alleged violation was S&S. The Secretary of Labor
proposes a civil penalty of $1,450.00 for the alleged
violation.
Inspector Simmons testified that he was concerned that these
accumulations could enhance a fire. (Tr. 220). He stated
that if a fire started, the accumulations could develop into
a major fire or explosion, especially if methane were
present. Grab samples of the accumulations revealed that
the accumulated material was 86 percent combustible in one
sample and 85 percent combustible in the other. (Tr. 222;
Ex. P-8). Inspector Simmons further testified that it was
reasonably likely that the accumulations would help
propagate a fire and a miner would be seriously injured
because at least one ignition source was present. (Tr.
224).
Mr. Hallows testified that a miner was cleaning up the
accumulations at the time the citation was issued. (Tr.
226). He stated that the cleaning operation took longer
than usual because a hole had to be filled to get a scoop
into the area. (Tr. 226; R-13). He also stated that there
was no production on the section when the citation was
issued or during the two previous shifts. (Tr. 227). Mr.
Salerno testified that the section contained a "horrendous
amount of water" so that cleaning the accumulations took
longer than usual. (Tr. 269). He stated that one miner was
using a scoop to clean the area at the time the citation was
issued. (Tr. 270).
I find that the Secretary established the violation. I
reject Basin Resources' argument that the Secretary failed
to introduce evidence of a violative condition. I also find
that the Secretary established the four elements of the
Commission's S&S test. Mathies, 6 FMSHRC at 3-4 (January
1984). Assuming continued normal mining operations, it was
reasonably likely that the conditions would result in a
serious injury.
I also find that Basin Resources' negligence was moderate.
I have considered its evidence that the cited accumulations
were particularly difficult to clean up because of the
problems encountered on the section and the fact that
cleanup operations had commenced. A penalty of $1,200 is
appropriate.
3. Citation No. 4057265
On July 6, 1995, Inspector Shiveley issued a citation
alleging a violation of 30 C.F.R. � 75.400. In the citation
the inspector alleged that combustible material, hydraulic
oil, and motor oil were allowed to accumulate in the engine
compartment on a mantrip. He determined that the alleged
violation was not S&S. The Secretary of Labor proposes a
civil penalty of $1,019.00 for the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was serious. A penalty
of $500 is appropriate.
4. Citation No. 4057271
On July 6, 1995, Inspector Shiveley issued a citation
alleging a violation of 30 C.F.R. � 75.400. In the citation
the inspector alleged that hydraulic oil was allowed to
accumulate on a roof bolter in the 3rd north mains. He
determined that the alleged violation was S&S. The
Secretary of Labor proposes a civil penalty of $1,457.00 for
the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was serious. A penalty
of $1,200 is appropriate.
5. Citation No. 4057564
On July 6, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.400. In the citation
the inspector alleged that damp loose coal and coal fines
were allowed to accumulate under the bottom rollers of the
No. 8 conveyor, for a distance of about 1,900 feet. He
determined that the alleged violation was not S&S. The
Secretary of Labor proposes a civil penalty of $1,019.00 for
the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was serious. A penalty
of $500 is appropriate.
6. Citation No. 4057272
On July 7, 1995, Inspector Shiveley issued a citation
alleging a violation of 30 C.F.R. � 75.400. In the citation
the inspector alleged that combustible material, loose coal,
and coal fines were allowed to accumulate at the tail of the
No. 11 belt and in entry No. 3 on the 3rd north mains. He
determined that the alleged violation was not S&S. The
Secretary of Labor proposes a civil penalty of $1,019.00 for
the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was serious. A penalty
of $500 is appropriate.
7. Citation No. 4057679
On November 11, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.400. In the citation
the inspector alleged that loose coal and coal dust were
allowed to accumulate in the 4th left section, No. 2 intake
travelway at two locations. He determined that the alleged
violation was not S&S. The Secretary of Labor proposes a
civil penalty of $1,019.00 for the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was serious. A penalty
of $500 is appropriate.
8. Citation No. 4057202
On November 22, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.400. In the citation
the inspector alleged that loose coal and coal fines were
allowed to accumulate on the working 009-0 longwall section
in the No. 1 entry of the 4 left panel. He determined that
the alleged violation was S&S. The Secretary of Labor
proposes a civil penalty of $1,450.00 for the alleged
violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was serious. A penalty
of $1,200 is appropriate.
9. Citation No. 4058092
On December 12, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.400. In the citation
the inspector alleged that loose coal and coal fines were
allowed to accumulate on the 011-0 MMU in the No. 3 entry of
the 4 left panel. He determined that the alleged violation
was not S&S. The Secretary of Labor proposes a civil
penalty of $1,019.00 for the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was serious. A penalty
of $500 is appropriate.
10. Citation No. 4057208
On December 5, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.400. In the citation
the inspector alleged that loose coal and coal fines were
allowed to accumulate on and around the energized 009-0
stageloader power cables and electrical components on the
working MMU. He determined that the alleged violation was
S&S. The Secretary of Labor proposes a civil penalty of
$1,450.00 for the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was serious. A penalty
of $1,200 is appropriate.
11. Citation No. 4057434
On January 22, 1996, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.400. In the citation
the inspector alleged that loose coal and coal fines were
allowed to accumulate in the travelway of the No. 2 intake
entry of the 5 left panel. He determined that the alleged
violation was not S&S. The Secretary of Labor proposes a
civil penalty of $1,019.00 for the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was serious. A penalty
of $500 is appropriate.
12. Citation No. 4057268
On July 6, 1995, Inspector Shiveley issued a citation
alleging a violation of 30 C.F.R. � 75.402. In the citation
the inspector alleged that rock dust was not applied to coal
ribs in entry No. 4, 3rd north mains. He determined that
the alleged violation was not S&S. The Secretary of Labor
proposes a civil penalty of $1,019.00 for the alleged
violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was not serious. A
penalty of $200 is appropriate.
D. Electrical Citations
1. Citation No. 4057565
On July 6, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.512. In the
citation, the inspector alleged that the energized 480-volt
electrical control box for the No. 8 belt line was not
maintained in a safe operating condition because there was a
�-inch hole at the end of the box. He states that this hole
allowed coal dust and moisture to enter the box. He
determined that the alleged violation was not S&S. The
Secretary of Labor proposes a civil penalty of $1,019.00 for
the alleged violation. The safety standard provides that
when a potentially dangerous condition is found on electric
equipment, it shall be removed from service until the
condition is corrected.
Inspector Simmons stated that he looked into the box and did
not observe any coal dust. (Tr. 154). He was concerned
that coal dust in the electrical box could burn, creating a
smoke inhalation hazard, and that moisture in the box could
create a shock hazard. He agreed that MSHA does not require
such control boxes to be permissible or air tight. (Tr.
155-56). I find that the Secretary established a violation
because the hole presented a potentially dangerous
condition. The violation was not serious and Basin
Resources' negligence was low. A penalty of $100 is
appropriate.
2. Citation No. 4058022
On July 20, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.1002-1(a). In the
citation the inspector alleged that a non-permissible
mantrip was 95 feet from the operating longwall pillar line
of the 009-0 MMU. He determined that the alleged violation
was not S&S. The Secretary of Labor proposes a civil
penalty of $1,019.00 for the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was not serious. A
penalty of $200 is appropriate.
3. Citation No. 4057270
On July 6, 1995, Inspector Shiveley issued a citation
alleging a violation of 30 C.F.R. � 75.503. In the citation
the inspector alleged that a roof bolter was not maintained
in permissible condition in the 3rd north mains. He
determined that the alleged violation was not S&S. The
Secretary of Labor proposes a civil penalty of $1,019.00 for
the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was serious. A penalty
of $500 is appropriate.
4. Citation No. 4057586
On July 6, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.512. In the citation
the inspector alleged that the 480-volt take-up control box
for the No. 11 belt was not maintained in a safe operating
condition. The citation indicates that because of a defect
in the control switch, a miner would not know whether the
switch was on or off. He determined that the alleged
violation was S&S. The Secretary of Labor proposes a civil
penalty of $1,450.00 for the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. A penalty of $800 is appropriate.
5. Citation No. 4057587
On July 6, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.515. In the citation
the inspector alleged that the power cable for the No. 2
belt conveyor motor for the No. 8 belt was not adequately
bushed. He determined that the alleged violation was not
S&S. The Secretary of Labor proposes a civil penalty of
$1,019.00 for the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was not serious. A
penalty of $200 is appropriate.
6. Citation No. 4057749
On October 11, 1995, Inspector Shiveley issued a citation
alleging a violation of 30 C.F.R. � 75.900. In the citation
the inspector alleged that a 480-volt power cable circuit in
entry No. 9 for the east mains was not protected by a
suitable circuit breaker. He determined that the alleged
violation was not S&S. The Secretary of Labor proposes a
civil penalty of $1,019.00 for the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was not serious. A
penalty of $200 is appropriate.
E. Fire Protection Citations
1. Citation No. 4057467
On June 15, 1995, Inspector Fleshman issued a citation
alleging a violation of 30 C.F.R. � 75.1100-2(f). In the
citation the inspector alleged that a portable fire
extinguisher was not provided in the 4-left section where
six 5-gallon drums of hydraulic oil were stored. He
determined that the alleged violation was not S&S. The
Secretary of Labor proposes a civil penalty of $1,019.00 for
the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was not serious. A
penalty of $200 is appropriate.
2. Citation No. 4057267
On July 6, 1995, Inspector Shiveley issued a citation
alleging a violation of 30 C.F.R. � 75.1104. In the
citation the inspector alleged that hydraulic oil in
crosscut No. 59, 3rd north mains, was not being kept in
fireproof, closed metal containers. He determined that the
alleged violation was not S&S. The Secretary of Labor
proposes a civil penalty of $1,019.00 for the alleged
violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was not serious. A
penalty of $200 is appropriate.
3. Citation No. 4057560
On July 6, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.1107-16(b). In the
citation the inspector alleged that fire suppression device
for a tractor at the underground mantrip station was not
being maintained. He determined that the alleged violation
was not S&S. The Secretary of Labor proposes a civil
penalty of $1,019.00 for the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was not serious. A
penalty of $200 is appropriate.
4. Citation No. 4057230
On February 5, 1996, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.1106-3(a)(2). In the
citation the inspector alleged that an oxygen cylinder was
not placed securely in a designated storage area but was
loose in a pickup truck. He determined that the alleged
violation was not S&S. The Secretary of Labor proposes a
civil penalty of $1,019.00 for the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was not serious. A
penalty of $200 is appropriate.
F. Machinery and Equipment Citations
1. Citation No. 4058021
On July 20, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.1725(a). In the
citation, the inspector alleged that the front left
headlight was not working on a mantrip. He determined that
the alleged violation was not S&S. The Secretary of Labor
proposes a civil penalty of $1,019.00 for the alleged
violation. Section 75.1725(a) requires, in part, that
mobile equipment be maintained in safe operating condition.
There is no dispute that the headlight was not working. Mr.
Hallows testified that it was his understanding that a
safeguard issued at the mine in 1989 required only one
headlight be provided for mantrips. (Tr. 102). He stated
that the safeguard was not violated and that Basin Resources
should not be cited for a violation of section 75.1725(a) if
it complies with the safeguard. Inspector Simmons
understood that the safeguard only concerned the need for a
single light at the rear of each mantrip. (Tr. 93). The
safeguard was not produced at the hearing.
I find that the Secretary established a violation. A
safeguard is issued when an inspector observes a
transportation hazard that is not being addressed at a mine.
30 C.F.R. � 75.1403. He issues a notice that establishes a
mine-specific safety standard. In this instance, it is not
clear what the safeguard notice required. In any event, the
cited mantrip was equipped with dual headlights. One of the
headlights was not working. Inspector Simmons determined
that the condition created a safety hazard. I credit his
testimony. A penalty of $200 is appropriate.
2. Citation No. 4057266
On July 6, 1995, Inspector Shiveley issued a citation
alleging that a mantrip was not maintained in a safe
condition in violation of 30 C.F.R. � 75.1725(a). The
citation states that because the right front headlight was
not working and the windshield was dirty, the operator of
the mantrip could not see clearly. Inspector Shiveley
determined that the alleged violation was S&S. The
Secretary of Labor proposes a civil penalty of $2,384.00 for
the alleged violation.
Inspector Shiveley testified that the rubber-tired mantrip
normally carries up to ten people into the mine. He stated
that the route it travels includes many turns and that it
was reasonably likely that someone would be injured if the
condition was not corrected. (Tr. 41-43). He testified
that the operator of the mantrip would not be able to see
very well and he could hit an object in the road or possibly
a miner. (Tr. 43-44). He stated that the condition was
obvious.
Basin Resources does not deny the condition of the mantrip,
but alleges that only one headlight was required. For the
reasons, set forth above, the fact that a safeguard was
issued does not invalidate the citation. In this instance,
the inspector determined that the condition of the mantrip
created a safety hazard in violation of section 75.1725(a).
The Secretary established a violation.
I also find that the Secretary established that the
violation was S&S. Basin Resources points to the fact that
Inspector Simmons issued a citation for a similar violation
and determined that the violation was not S&S. (Tr. 46-47;
Ex. R-1). In that instance, however, the windshield was
clean. (Tr. 97). In the citation at issue, Inspector
Shiveley considered the fact that the windshield was dirty,
the roadways were wet and heavily traveled, the mantrip was
required to go around corners, and rib falls are relatively
common. (Tr. 41-44). He also stated that the mantrip
operator could inadvertently run over an object and the
passengers could jam their heads against the canopy. (Tr.
44).
I find that the Secretary established the four elements of
the Commission's S&S test. Mathies, 6 FMSHRC at 3-4
(January 1984). I find that the factors set forth by
Inspector Shiveley establish that an injury was reasonably
likely and that any injury would be of a reasonably serious
nature. A penalty of $500 is appropriate.
3. Citation No. 4058111
On August 16, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.1725(a). In the
citation, the inspector alleged that the coal feeder on the
011-0 MMU was not being maintained in a safe operating
condition. He alleged that hydraulic oil was leaking into
the motor compartment from the hose connected to the pump
motor. He determined that the alleged violation was not
S&S. The Secretary of Labor proposes a civil penalty of
$1,019.00 for the alleged violation.
Inspector Simmons testified that the condition created a
fire hazard. (Tr. 147-48). He was concerned about smoke
inhalation. Mr. Hallows testified that the condition was
abated by tightening the fitting and that the employee who
examined the equipment failed to fix the condition. (Tr.
151-52; Ex. R-4). The Secretary established a violation.
Basin Resources' negligence was low because the miner
operating the equipment failed to take action to correct an
obvious safety hazard. A penalty of $100 is appropriate.
4. Citation No. 4058043
On July 20, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.1725. In the
citation the inspector alleged that the energized 4-left
longwall machine (009-0 MMU) was not maintained in safe
operating condition because of a number of tripping hazards.
He determined that the alleged violation was S&S. The
Secretary of Labor proposes a civil penalty of $1,450.00 for
the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. A penalty of $500 is appropriate.
5. Citation No. 4057581
On July 6, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.1722(b). In the
citation the inspector alleged that the guard for the rear
take-up roller was not large enough to prevent a person from
reaching behind the guard and becoming caught in the roller
and belt. He determined that the alleged violation was S&S
and could result in a permanently disabling injury. The
Secretary of Labor proposes a civil penalty of $2,173.00 for
the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was serious. A penalty
of $800 is appropriate.
6. Citation No. 4057584
On July 6, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.1722(a). In the
citation the inspector alleged that the guard for the No. 8
belt conveyor tail rollers was inadequate because it
contained a 34-inch opening. He determined that the alleged
violation was S&S and could result in a permanently
disabling injury. The Secretary of Labor proposes a civil
penalty of $1,450.00 for the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was serious. A penalty
of $800 is appropriate.
7. Citation No. 4057585
On July 6, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.1722(b). In the
citation the inspector alleged that the guard for the head
roller of the No. 11 belt conveyor was not large enough to
prevent a person from reaching behind the guard and becoming
caught in the roller and belt. He determined that the
alleged violation was S&S and could result in a permanently
disabling injury. The Secretary of Labor proposes a civil
penalty of $2,173.00 for the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was serious. A penalty
of $800 is appropriate.
8. Citation No. 4057582
On July 6, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 75.1403-5(g). In the
citation the inspector alleged that a clear travelway was
not provided along the No. 8 belt in certain areas. Loose
rock and coal were present on both sides of the belt. He
determined that the alleged violation was S&S. The
Secretary of Labor proposes a civil penalty of $1,450.00 for
the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was serious. A penalty
of $800 is appropriate.
G. Surface Citations
1. Order No. 4057563
On July 6, 1995, Inspector Simmons issued an order under
section 104(d)(2) of the Mine Act alleging a violation of 30
C.F.R. � 48.31(a). In the order the inspector alleged that
Basin Resources failed to provide hazard training for two
technicians from Wagner Rents. The inspector observed the
technicians performing work near the surface maintenance
shop. The order states that Basin Resources' employees did
not check to see if they had been given hazard training.
The inspector determined that the alleged violation was not
S&S. The Secretary of Labor proposes a civil penalty of
$3,000.00 for the alleged violation. The regulation
requires that specified persons be provided with surface
hazard training.
Inspector Simmons testified that he observed the technicians
working in an area that was somewhat isolated from mining
hazards. (Tr. 239). The inspector determined that the
violation was unwarrantable because the technicians were
working at the mine and nobody from Basin Resources checked
to see if they had been trained. (Tr. 240-41). The
inspector apparently talked to the technicians and Mr.
Peterson. (Tr. 243). Inspector Simmons did not ask the
security guard at the mine entrance whether he inquired
about the technicians' training. (Tr. 244).
Mr. Hallows testified that the two Wagner Rents technicians
were given their job assignments over the phone. (Tr. 245-
46). Mr. Hallows further testified that the security guard
at the mine entrance asked the technicians whether they had
received hazard training. (Tr. 248; Ex. R-16). He
testified that the technicians told the security guard that
they had received hazard training. Id. Apparently,
employees of Wagner Rents frequently worked at the mine and
were generally trained. Mr. Hallows also stated that if
either of the technicians had stated that he had not
received surface hazard training, such training would have
been provided before he proceeded to work. (Tr. 250-51).
Basin Resources does not contest the violation, but contends
that it was not the result of its unwarrantable failure.
Unwarrantable failure is aggravated conduct constituting
more than ordinary negligence. Emery Mining Corp., 9 FMSHRC
1997 (December 1997). Unwarrantable failure is
characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference," or "a serious lack
of reasonable care." Id. at 2001-04; Rochester & Pittsburgh
Coal Co., 13 FMSHRC 189, 194 (February 1991).
I find that the Secretary did not establish aggravated
conduct. The security guard inquired about the technicians'
hazard training. Apparently, the technicians pointed to
some papers in the truck as if to indicate that they had
their training cards. (Tr. 248, 254-55, Ex. R-16). Mr.
Hallows' testimony is supported by company records. (Ex. R-
16). I find that Basin Resources' negligence was moderate.
The service technicians were at the mine to repair equipment
owned by Wagner Rents and were familiar with the equipment.
The violation was not serious. Order of Withdrawal No.
4057563 is modified to a section 104(a) citation. A penalty
of $200 is appropriate.
2. Citation No. 4057970
On November 20, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 77.408. In the citation
the inspector alleged that the maintenance shop was not
ventilated while welding was being conducted in the shop.
The citation states that smoke was settling throughout the
shop. The inspector determined that the alleged violation
was not S&S. The Secretary of Labor proposes a civil
penalty of $1,019.00 for the alleged violation. The safety
standard provides that welding operations shall be shielded
and well-ventilated.
Inspector Simmons was concerned that the welder would
breathe the smoke and damage his lungs. (Tr. 201). The
inspector observed the smoke during his inspection. He
stated that a vacuum had been provided to eliminate the
smoke, but it was not operating at the time of the
inspection because the filters were clogged up. (Tr. 203).
He did not test the vacuum to see if it worked. (Tr. 205-
06). Inspector Simmons did not detect any carbon monoxide
in the area.
Mr. Hallows testified that Basin Resources had purchased
equipment to alleviate any problems created by welding
fumes, including a vacuum collector. (Tr. 212; Exs. R-10,
R-11, & R-12). Filters for the vacuum were stocked in the
warehouse. He further testified that when the vacuum was
tested the next day, it was working properly. (Tr. 216).
He believes that the welder did not have the vacuum turned
on when the welding was performed. Mr. Salerno testified
that the vacuum operated without any problems when it was
tested the following day. (Tr. 266).
I find that the Secretary established a violation. I find
that the violation was not serious. Based on the testimony
of Messrs. Hallows and Salerno, I find that Basin Resources'
negligence was low. A penalty of $100 is appropriate.
3. Citation No. 4057264
On July 6, 1995, Inspector Shiveley issued a citation
alleging a violation of 30 C.F.R. � 77.408. In the citation
the inspector alleged that shielding was not provided at the
mine shop where welding was being performed. It states that
persons were traveling in the area. He determined that the
alleged violation was not S&S. The Secretary of Labor
proposes a civil penalty of $1,019.00 for the alleged
violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. Based on the language of the
citation, I find that the violation was not serious. A
penalty of $200 is appropriate.
4. Citation No. 4058000
On July 20, 1995, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 77.205. In the citation
the inspector alleged that stumbling and slipping hazards
were present in the maintenance shop work area and travelway
to the tool room. He determined that the alleged violation
was S&S. The Secretary of Labor proposes a civil penalty
of $1,450.00 for the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. A penalty of $500 is appropriate.
5. Citation No. 4057426
On January 10, 1996, Inspector Simmons issued a citation
alleging a violation of 30 C.F.R. � 77.400(d). In the
citation the inspector alleged that the guard provided for
the bottom take-up pulley for the load-out belt was not
secured in place. He determined that the alleged violation
was S&S. The Secretary of Labor proposes a civil penalty
of $1,450.00 for the alleged violation.
Basin Resources does not contest the violation or the
inspector's other determinations. It only contests the
amount of the penalty. A penalty of $500 is appropriate.
III.
APPROPRIATE CIVIL PENALTIES
Section 110(i) of the Mine Act sets out six criteria to be
considered in determining appropriate civil penalties. I
find that Basin Resources was issued 888 citations and
orders in the 24 months preceding July 5, 1995, and that
Basin Resources paid penalties for 816 of these citations
and orders during the same period. (Ex. P-10). I also find
that Basin Resources was a rather large mine operator with
23,505,829 tons of production in 1994 and 15,002,375 tons of
production in 1995. (Stipulation). The Golden Eagle Mine
shut down in December 1995 and is no longer producing coal.
Basin Resources has been unable to sell the mine. Its
unaudited balance sheet for April 30, 1996, shows that
shareholders' equity was minus about 23 million dollars and
its income statement for the year ending April 30, 1995,
shows a net loss of $325,000. 18 FMSHRC 1846, 1847 (October
1996). I have taken Basin Resources' financial condition
into consideration and find that the civil penalty assessed
in this decision would not have affected its ability to
continue in business. With one exception, the Secretary has
not alleged that Basin Resources failed to timely abate the
citations and order. Unless otherwise noted above, all of
the violations were serious and the result of Basin
Resources' moderate negligence. Based on the penalty
criteria, I find that the penalties set forth below are
appropriate for the violations.
IV.
ORDER
Based on the criteria in section 110(i) of the Mine Act, 30
U.S.C. � 820(i), I assess the following civil penalties, as
discussed above:
Citation No. 30 C.F.R. � Penalty
WEST 96-21
4057798 75.340(a)(1) $500.00
4057799 75.333(b)(3) 200.00
4057800 75.360(f) vacated
4057467 75.1100-2(f) 200.00
4057588 75.202(a) 1,200.00
4057589 75.211(d) vacated
4057590 75.220(a)(1) 200.00
4058000 77.205(b) 500.00
4058021 75.1725(a) 200.00
4058022 75.1002-1(a) 200.00
4058041 75.370(a)(1) 200.00
Citation No. 30 C.F.R. � Penalty
4058042 75.202(a) 200.00
4058043 75.1725(a) 500.00
4058025 75.400 500.00
4058111 75.1725(a) 100.00
WEST 96-123
4057264 77.408 200.00
4057265 75.400 500.00
4057266 75.1725(a) 500.00
4057267 75.1104 200.00
4057268 75.402 200.00
4057269 75.208 1,000.00
4057270 75.503 500.00
4057271 75.400 1,200.00
4057560 75.1107-16(b) 200.00
4057564 75.400 500.00
4057565 75.512 100.00
4057581 75.1722(b) 800.00
4057582 75.1403-5(g) 800.00
4057583 75.202(a) vacated
4057584 75.1722(a) 800.00
4057585 75.1722(b) 800.00
4057586 75.512 800.00
4057587 75.515 200.00
4057272 75.400 500.00
WEST 96-134
4057748 75.360(c) 500.00
4057749 75.900 200.00
4057679 75.400 500.00
4057964 75.202(a) 1,200.00
4057201 75.202(a) 100.00
4057202 75.400 1,200.00
4058092 75.400 500.00
4057351 75.202(a) 1,200.00
4057352 75.202(a) 200.00
Citation No. 30 C.F.R. � Penalty
WEST 96-180
4057970 77.408 100.00
4057977 75.400 1,200.00
4057978 75.380(d)(1) 100.00
4057208 75.400 1,200.00
4057425 75.351(f) 200.00
4057426 77.400(d) 500.00
4057434 75.400 500.00
4057229 75.312(g)(3) 100.00
4057230 75.1106-3(a)(2) 200.00
WEST 96-195
4057563 48.31(a) 200.00
Total Penalty $24,400.00
Accordingly, the Secretary's motion to amend the petitions
for assessment of penalty is DENIED, the citations and order
listed above are hereby VACATED, AFFIRMED, or MODIFIED as set forth
above, and Basin Resources, Inc., is ORDERED TO PAY the Secretary of
Labor the sum of $24,400.00 within 40 days of the date of this
decision.
Richard W. Manning
Administrative Law Judge
Distribution:
Richard Bury, Conference and Litigation Representative, Mine Safety
& Health Administration, Wix Plaza, 215 East Main, Price, UT 84501
(Certified Mail)
Ned D. Zamarripa, Conference and Litigation Representative, Mine Safety
and Health Administration, P.O. Box 25367, Denver, CO 80225-0367
(Certified Mail)
Andrew Volin, Esq., SHERMAN & HOWARD, L.L.C., 633 17th Street, Suite 3000,
Denver, CO 80202 (Certified Mail)