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[DOCID: f:wv2002111.wais]
CANNELTON INDUSTRIES, INC.
Docket No. WEVA 2002-111-R
July 10, 2002
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041
July 10, 2002
CANNELTON INDUSTRIES, INC., : CONTEST PROCEEDINGS
Contestant :
: Docket No. WEVA 2002-111-R
: Citation No. 7191145; 5/15/2002
v. :
: Docket No. WEVA 2002-112-R
: Citation No. 7191146; 5/15/2002
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Shadrick Mine
ADMINISTRATION (MSHA) : Mine ID 46-08159
Respondent :
DECISION
Appearances: David J. Hardy, Esq., Heenan, Althen and Roles, LLP,
Charleston, West Virginia, for Contestant;
M. Yusuf M. Mohamed, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
Respondent.
Before: Judge Hodgdon
These consolidated cases are before me on Notices of Contest
brought by Cannelton Industries, Inc., against the Secretary of Labor,
acting through her Mine Safety and Health Administration (MSHA),
pursuant to section 105 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. � 815. The company contests Citation Nos. 7191145 and
7191146, which allege violations of the Secretary's mandatory health
and safety standards. A hearing was held in Charleston, West
Virginia, on June 12, 2002. For the reasons set forth below, I vacate
Citation No. 7191145 and affirm Citation No. 7191146.
Background
Cannelton Industries, Inc., operates the Shadrick Mine, an
underground coal mine, in Kanawha County, West Virginia. On May 3,
2002, the mine was idled and put into non- producing status because it
was unable to sell its coal and its stockpiles were growing too large.
All, or most, of the miners were laid off.
Since the mine is still capable of producing coal, the company
plans to reactivate it in the event that coal sales improve. To be
able to do this it is necessary to keep the pumps running or the mine
will flood. Consequently, beginning on May 6 or 7, the company
started having certified personnel, mostly management employees, go
into the mine on each shift to check the pumps. For example, on May
15 Jeff Styers, an electrician, was assigned to go underground with
Dan Baker, a foreman, to check "pemissibility," maintain the pumps and
test the circuit breakers on the transformers to make sure that they
were properly ground faulted.
On May 15, MSHA Inspector Gilbert L. Young went to the mine to
investigate a complaint that the mine was not conducting required
weekly examinations. After talking to Styers, Jimmy Nottingham, a
company safety engineer, and Baker, and examining the company's
preshift and on-shift examination books, Young issued two citations.
The first citation alleges a violation of section 75.360(a)(1) of
the Secretary's regulations, 30 C.F.R. � 75.360(a)(1), because: "A
pre-shift examination within 3 hours preceding the beginning of an 8
hour intervals [sic] was not conducted by a certified person during
which a person was schedule [sic] to work or travel underground."
(Govt. Ex. 1.) The second citation charges a violation of section
76.364(b), 30 C.F.R. � 75.364(b), in that: "An examination every 7
days for hazardous condition [sic] has not been conducted since
5-03-2002 as recorded in the approved recorded [sic] book, miners have
been working during this period of time." (Govt. Ex. 2.)
Cannelton contested the citations and requested an expedited
hearing on the matter. Cannelton contends that section 75.360(a)(2),
30 C.F.R. � 75.360(a)(2), the "pumpers exception," is applicable in
its case and that the company is complying with it. With regard to
the weekly examination, it believes that it does not have to conduct
one because its employees are not "working" in the mine, they are
"patrolling." On the other hand, it is the Secretary's position that
the "pumpers exception" does not apply in this case, or if it does,
that the company has not met the conditions for it to be pertinent.
The Secretary also contends that Cannelton's employees are "working"
in the mine.
Findings of Fact and Conclusions of Law
Citation No. 7191145
Section 75.360(a) requires that:
(1) Except as provided in paragraph (a)(2) of this
section, a certified person designated by the operator must
make a preshift examination within 3 hours preceding the
beginning of any 8-hour interval during which any person is
scheduled to work or travel underground. No person other
than certified examiners may enter or remain in any
underground area unless a preshift examination has been
completed for the established 8-hour interval. The operator
must establish 8-hour intervals of time subject to the
required preshift examinations.
(2) Preshift examinations of areas where pumpers are
scheduled to work or travel shall not be required prior to
the pumper entering the areas if the pumper is a certified
person and the pumper conducts an examination for hazardous
conditions, tests for methane and oxygen deficiency and
determines if the air is moving in its proper direction in
the area where the pumper works or travels. The examination
of the area must be completed before the pumper performs any
other work. A record of all hazardous conditions found by
the pumper shall be made and retained in accordance with �
75.363.
The operator sends a certified pumper into the mine on all three
shifts. According to the company, the pumper's main function is to
maintain the pumps so the mine does not flood. MSHA's position is that
a preshift examination must be performed before the pumper can go into
the mine. Cannelton argues that section 75.360(a)(2) permits the
pumper to conduct an examination for hazardous conditions, test for
methane and oxygen deficiency and determine if the air is moving in
the proper direction as he goes into the mine because that is the area
in which he is working or traveling, and no one else is going into the
mine. While it is a close question, I find that the "pumpers
exception" is applicable to this situation and, thus, the company is
not in violation of the regulation.
Section 75.360(a)(2) did not exist until the rule was amended in
March 1996. In adopting the change, MSHA stated, in the preamble to
the regulation, that: "This standard recognizes that pumpers travel to
remote areas of the mine to check on water levels and the status of
pumps, making regular preshift examinations impractical." Section
75.360 Preshift Examination, 61 Fed. Reg. 9790, 9792 (Mar. 11, 1996).
It went on to state:
Under a previous standard replaced in 1992, persons such as
pumpers, who were required to enter idle or abandoned areas
on a regular basis in the performance of their duties, and
who were trained and qualified, were authorized to make
examinations for methane, oxygen deficiency and other
dangerous conditions for themselves. Under the final rule,
either a preshift examination must be made in accordance
with paragraph (a)(1) before a pumper enters an area, or
certified pumpers must conduct an examination under
paragraph (a)(2).
Id. (emphasis added).
In this case, where the whole mine has been idled, and the pumper
is the only one going into the mine, he will be examining the area
where he travels and works. As MSHA indicated when the rule was
promulgated, in such a situation either type of examination is
satisfactory. Furthermore, from a practical standpoint, it makes
little sense to double the exposure to possible hazards in the mine,
by requiring another examiner to preshift those areas where the pumper
is going to travel and work. See Rawl Sales & Processing Co., 23
FMSHRC 463, 471 (May 2001) (Commissioner Verheggen, concurring).
Counsel for the Secretary and the inspectors who testified
expressed concern that all of the records resulting from a preshift
examination, such as the locations of air and methane measurements and
the results of methane tests, would not be logged by the pumper.
However, MSHA rejected the same concern when it adopted the rule by
stating that: "In the case of the pumper-examined area, the records
required under paragraph (a)(2) will assure that mine management is
made aware of any condition which results in a hazardous condition and
will facilitate corrective action being taken." 61 Fed. Reg. at 9792.
In a case such as this, where the mine has been idled and the
only person entering the mine is examining the places he travels as he
goes in, and the places he works, as he gets to them, it is apparent
that the "pumpers exception," as described by MSHA when it enacted the
rule, provides the safeguards that a preshift examination would
provide. Accordingly, the citation will be vacated.
Citation No. 7191146
There is no similar exception to the required weekly examination
for hazardous conditions. Section 75.364(b) requires that: "At least
every 7 days, an examination for hazardous conditions. . . shall be
made by a certified person designated by the operator . . . ."
Nevertheless, the company argues that this examination need not be
made based on an excerpt from an MSHA training manual, concerning
section 75.364(f), 30 C.F.R. � 75.364(f), which states that, "the
entrance of examiners or other certified persons, into the mine for
the purpose of examination or patrol does not require a weekly
examination." (Cont. Ex. 3.) This document was faxed by Inspector
Jerry Richards, to Jack Hatfield, Cannelton's Safety Manager, as a
result of questions by mine management concerning what examinations
had to be performed at the idled mine. (Tr. 311.) The Respondent
reads more into this language than it says.
Section 75.364(f)(1), 30 C.F.R. � 75.364(f)(1), provides that:
"The weekly examination is not required during any 7 day period in
which no one enters any underground area of the mine." Since someone
is entering the mine three times a day during the workweek, this
section clearly does not apply in this case. Section 75.364(f)(2), 30
C.F.R. � 75.364(f)(2), states that: "Except for certified persons
required to make examinations, no one shall enter any underground area
of the mine if a weekly examination has not been completed within the
previous 7 days." Thus, it is apparent that, if a weekly examination
has not been performed, the only person who can go into the mine is
the person who is performing the examination. The company does not
contend that that is what they are doing.
Instead, the operator claims that they are "patrolling." The
term "patrol" does not appear in the regulation. Since it is not in
the regulation and is not further defined in the training excerpt, it
is not clear exactly what "patrol" was intended to convey. While
there are several definitions in the dictionary, the only one that
appears pertinent to this situation is to "make routine observations
of for purposes of defense or protection." Webster's Third New
International Dictionary 1656 (1993). Consequently, I find that
"patrol" refers to making routine observations of the mine for the
purposes of protecting it, in this case, from flooding.
I further find that Cannelton was doing more than making routine
observations. It is clear that pumps were being turned on or off,
pumps were being moved on occasion and electrical examinations were
being performed on the power centers which powered the pumps. While
this may not seem to be much, it is significant. Any one of those
activities could precipitate a dangerous situation, a spark, a shock
or a methane explosion, just to name a few possibilities, for the
miner performing them. If the intake and return air courses or the
escapeways are not examined for hazardous conditions, and hazardous
conditions had developed in them, such as bad air, roof or rib falls,
flooding or other blockages, a dangerous situation could turn into a
fatal one.
Therefore, I conclude that even though the mine was idled, since
the operator had three people going into the mine every day, not just
to make an examination or to make routine observations, but to
activate and move pumps and to perform electrical tests on power
centers, the weekly hazardous condition examination was required to be
performed. Since it was not being performed, I conclude that the
Respondent was in violation of section 75.364(b).
Significant and Substantial
The Inspector found this violation to be "significant and
substantial." A "significant and substantial" (S&S) violation is
described in Section 104(d)(1) of the Act, 30 U.S.C. � 814(d)(1), as a
violation "of such nature as could significantly and substantially
contribute to the cause and effect of a coal or other mine safety or
health hazard." A violation is properly designated S&S "if, based
upon the particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the Commission
set out four criteria that have to be met for a violation to be S&S.
See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir.
1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir.
1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (December 1987)
(approving Mathies criteria). Evaluation of the criteria is made in
terms of "continued normal mining operations." U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a
particular violation is significant and substantial must be based on
the particular facts surrounding the violation. Texasgulf, Inc., 10
FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007
(December 1987).
In order to prove that a violation is S&S, the Secretary must
establish: (1) the underlying violation of a safety standard; (2) a
distinct safety hazard, 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 will be of a reasonably serious nature.
Mathies, 6 FMSHRC at 3-4.
Taking the Mathies criteria in order, a violation of a safety
standard has been found. On the second issue, Inspector Young
testified that failure to conduct the weekly hazardous condition
examination could result in the failure to detect dangerous roof
conditions, blocked or improperly maintained air courses and
escapeways and bad air, among other things. (Tr. 184- 87.)
Accordingly, I find that the violation created a distinct safety
hazard. With regard to the third and fourth requirements, the
inspector testified that these hazards were reasonably likely to
result in head injuries or broken bones. (Tr. 184.) Clearly, they
could also result in death. Therefore, I find that the third and
fourth criteria are present.
Finding that all of the Mathies criteria have been met, I
conclude that the violation is "significant and substantial."
Order
Based on the above, it is ORDERED that the contest in Docket No.
WEVA 2002-111-R is GRANTED and Citation No. 7191145 is VACATED and
that the contest in Docket No. WEVA 2002-112-R is DENIED and Citation
No. 7191146 is AFFIRMED.
T. Todd Hodgdon
Administrative Law Judge
Distribution: (By Fax and Certified Mail)
David J. Hardy, Esq., Heenan, Althen & Roles, LLP, P.O. Box 2549,
Charleston, WV 25349
M. Yusuf M. Mohamed, Esq., Office of the Solicitor, U.S. Department of
Labor, 1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209