<DOC>
[DOCID: f:wv200050.wais]
CONSOLIDATION COAL COMPANY
WEVA 2000-50
March 6, 2001
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
March 6, 2001
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 2000-50
Petitioner : A. C. No. 46-01318-04419
v. :
:
CONSOLIDATION COAL COMPANY, :
Respondent : Robinson Run No. 95
DECISION
Appearances: Melonie J. McCall, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, on
behalf of Petitioner;
Robert M. Vukas, Esq., Consolidation Coal Company,
Pittsburgh, Pennsylvania, on behalf of Respondent.
Before: Judge Melick
This case is before me upon the Petition for Civil Penalty
filed by the Secretary of Labor pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801, et
seq. (1994), "the Act," charging the Consolidation Coal Company
(Consol) with one violation of the mandatory standard at 30
C.F.R. � 75.370(a)(1) and proposing a civil penalty of $5,000.00
for that violation. At hearings on November 14, 2000, Consol
admitted the violation as alleged and challenged only the
Secretary's "significant and substantial" and "unwarrantable
failure" findings. The general issues before me then are whether
the violation was "significant and substantial," whether it was
the result of the operator's "unwarrantable failure" and what is
the appropriate civil penalty to be assessed for the violation
considering the criteria under Section 110(i) of the Act.
The order at bar, number 4867384, issued October 6, 1999,
pursuant to Section 104(d)(2) of the Act, charges as follows:[1]
The currently approved mine ventilation plan is
not being complied with on the 084-0 mmu, 13-0 Longwall
section, in that only 435 fpm velocity was measured at
the No. 10 shield with a properly calibrated
anemometer. This is the fourth citation that has been
issued for inadequate air velocity on this section.
Citation No. 7142544 was issued on 08/25/1999.
Citation No. 4866439 was issued on 10/04/1999. A
methane/dust face ignition occurred on 09/16/1999.
Citation No. 7142156 was issued on 09/30/1999 for
failure to comply with the applicable respirable dust
standard.
The cited standard requires in essence that the operator
follow the ventilation plan that has been approved by the
District Manager for the Department of Labor's Mine Safety and
Health Administration (MSHA). In this case there is no dispute
that the relevant ventilation plan required that the air velocity
at the cited location be maintained at 500 feet per minute (Jt.
Exh. No. 1 Para. 10).
Gregory Fetty is Chief of the Health Section in MSHA
District 3. On October 6, 1999, he was working as an MSHA
inspector at the Robinson Run No. 95 Mine for the purpose of
abating a September 30, 1999, excessive dust violation. Fetty
took an air velocity reading at the No. 10 shield and found only
440 feet per minute (fpm) where 500 fpm was required by the
ventilation plan.[2] The violation was abated by placing a
curtain between the No. 1 shield and the headgate rib and by
tightening the gob check curtain in the No. 3 entry (Gov't Exh.
No. 1).
The Secretary 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 safety 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 Inc. 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)). The likelihood of such injury must be evaluated in terms
of continued normal mining operations without any assumptions as
to abatement. 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).
According to Inspector Fetty, several health and safety
hazards were presented by the violation at issue including the
inhalation of excessive respirable dust contributing to black
lung disease and the contribution to a fire or explosion
resulting from a face ignition because methane would not be
promptly removed from the longwall face. Fetty opined that, in
the latter cases, fatal injuries were reasonably likely. Fetty
also noted that the subject mine was under the "Section 103(i)"
gassy mine spot inspection program involving mines liberating
more than 1,000,000 cubic feet of methane in a 24-hour period.
He also noted that there had been an ignition on September 16,
1999, on the same 13D longwall face. Within this framework of
evidence and the reasonable inferences to be made therefrom, I
conclude that indeed, the violation was "significant and
substantial" and of high gravity.
In reaching this conclusion I have not disregarded Consol's
argument that, because the violation was quickly abated, it was
short lived and therefore, the hazard, if any, was minimized.
However, under present law, in determining whether a violation is
"significant and substantial" the likelihood of an injury must
be evaluated in terms of continued normal mining operations
without any assumptions as to abatement, U.S. Steel Mining Co.,
Inc., 6 FMSHRC at 1574. Consol also appears to argue that the
Secretary failed to prove that this violation "would necessarily
lead to an explosion, a fire or black lung." As previously
noted, however, the correct standard of proof requires only that
the Secretary establish by direct evidence or by reasonable
inference a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury or illness.
U.S. Steel Mining Co., at 1836. That standard of proof has been
met herein.
The Secretary also argues that the violation was the result
of Consol's "unwarrantable failure" and high negligence. In this
regard the Secretary argues that prior violations for inadequate
ventilation were issued at the same location on August 25, August
30, 1999, and, on September 30, 1999 (Gov't Exhs. No. 3 and
4).[3] The Secretary also argues that Inspector Fetty had
discussed with the operator at a closeout conference on October
4, the importance of compliance with the ventilation
requirements. The Secretary also alleged but failed to prove
that the anemometer utilized by the section foreman was not
properly calibrated and that he was not using any correction or
error factor in calculating air velocity. Fetty acknowledged
however, that he did not know how the section foreman actually
took his air readings for compliance purposes. Finally,
Inspector Fetty testified that he relied in part also upon what
he apparently believed was a serious deficiency in the air
velocity, i.e., 440 fpm when 500 fpm was required by the
ventilation plan.
In defense of the Secretary's allegations of "unwarrantable
failure" and high negligence Consol presented the reports for
the three pre-shift examinations preceding the issuance of the
order at bar performed at the No. 10 shield. The most recent
pre-shift examination prior to the issuance of the order showed a
reading of 605 (presumably feet per minute) at the No. 10 shield
measured during the examination between 5:00 a.m. and 7:15 a.m.,
on October 6, 1999 (Resp.'s Exh. No. 4). The examination
preceding that showed 612 (presumably feet per minute) at the No.
10 shield and the exam preceding that showed 730 (presumably feet
per minute) at the No. 10 shield. In addition, the pre-shift
examination for the preceding day, October 5, 1999, showed
readings at the No. 10 shield of 700, 600 and 625 (presumably
feet per minute). The uncontradicted and credible record thus
shows that for the six pre-shift examinations preceding the
issuance of the order at bar the air measurements at the No.
10 shield were well above the minimum required by the ventilation
plan.
In further defense of the unwarrantable failure allegations,
Consol cites the testimony of longwall section foreman Gary
Graham that he obtained an air reading on October 6, 1999, only
five or ten minutes before 9:00 a.m., and found 535 fpm at the
No. 10 shield. Since the order at bar was issued at 9:05 a.m.,
it is apparent that Graham's readings were obtained only 10 to 15
minutes before inspector Fetty found the air reading had dropped
to 440 fpm at the No. 10 shield. Graham also testified that it
required only five minutes to tighten the curtains necessary to
bring the air readings up to the requisite level. Graham also
observed that the curtains had been tight at that location when
he passed earlier around 9:00 that morning and noted that when he
later returned to that location after the order had been issued
he observed that the curtain had been torn out from the spad.
Graham opined that this could have been caused by someone passing
through the curtain in the interim. He noted that the other
curtain had been loosened by moving the shield.
Longwall section foreman Graham's testimony is not disputed
and his credibility is not otherwise challenged. Under the
circumstances I accord Graham's testimony significant weight and
conclude that indeed he checked the air velocity at the No. 10
shield only ten or fifteen minutes before the violative condition
was discovered by Fetty. Fetty's lower and violative air reading
was apparently the result of curtains becoming loosened
subsequent to their examination by Graham, thereby causing the
decrease in ventilation. Because of the extremely brief period
during which the violative condition therefore existed, the
permissible air reading obtained only shortly before the
violation was discovered and the fact that the six preceding pre-
shift reports showed air readings well above the requisite level,
I cannot find that the violation herein was a result of
"unwarrantable failure" or high negligence.
I do find however, that the violation was the result of
moderate negligence based on Graham's admission that they had
been having trouble keeping air at the face for several weeks
before the order in this case was issued. At the same time I
also note that the mine foreman had instructed Graham to take
four to five readings per shift to monitor the problem. Under
all the circumstances the order at bar must be modified to a
citation under Section 104(a) of the Act.
Civil Penalty
Under Section 110(i) of the Act, the Commission and its
judges must consider the following criteria in assessing a civil
penalty: the operator's history of previous violations, the
appropriateness of such penalty to the size of the business of
the operator charged, whether the operator was negligent, the
effect on the operator's ability to continue in business, the
gravity of the violation and the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.
Gravity has been found to have been high and negligence to
have been moderate. Respondent has a significant history of
violations as shown by Gov't Exh. No. 10. It has been stipulated
that Consol is a large mine operator. There is no dispute that
Consol demonstrated good faith in attempting to achieve rapid
compliance after notification of the violation. There is no
evidence that the penalty imposed herein would have any effect on
the operator's ability to continue in business. Within this
framework of evidence I find that a civil penalty of $2,500.00,
is appropriate.
ORDER
Order No. 4867384 is hereby modified to a citation pursuant
to Section 104(a) of the Act. Consolidation Coal Company is
hereby directed to pay a civil penalty of $2,500.00, for the
violation charged in Citation 4867384 within 40 days of the date
of this decision.
Gary Melick
Administrative Law Judge
Distribution: (Certified Mail)
Melonie J. McCall, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22202
Robert M. Vukas, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241
\mca
**FOOTNOTES**
[1]: Section 104(d) provides as follows:
(1) "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."
(2) If a withdrawal order with respect to any area in a coal or
other mine has been issued pursuant to paragraph (1), a
withdrawal order shall promptly be issued by an authorized
representative of the Secretary who finds upon any subsequent
inspection the existence in such mine of violations similar to
those that resulted in the issuance of the withdrawal order under
paragraph (1) until such time as an inspection of such mine
discloses no similar violations. Following an inspection of such
mine which discloses no similar violations, the provisions of
paragraph (1) shall again be applicable to that mine.
[2]: The parties apparently agree that Inspector Fetty found
440 cfm not the 435 cfm alleged in the order at bar.
[3]: At hearing the Secretary sought to amend the citation
at bar by also referencing a charging document issued October 4,
1999, for a similar violation of inadequate air in the cited
section. However, because the Secretary had failed to disclose
this information in a timely manner, the proposed amendment was
denied. The admission of that charging document was also barred
for purposes of establishing "unwarrantable failure" because the
Secretary's failure to disclose her intended use of that document
in a timely manner. In any event, even had that prior charging
document been admitted and considered, it would not have been
sufficient under all the circumstances to support a finding of
unwarrantability or greater negligence than found herein.