<DOC>
[DOCID: f:wv99156.wais]
Hiope Mining, Co.
June 22, 2000
WEVA 99-156
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
June 22, 2000
SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 99-156
Petitioner : A. C. No. 46-08707-03507
:
v. :
: Hiope No. 8
HIOPE MINING, INC., :
Respondent :
DECISION
Appearances: Robert S. Wilson, Esq., Office of the Solicitor,
U.S.
Department of Labor, Arlington, Virginia, for the
Petitioner,
Daniel R. Bieger, Esq., Copeland, Molinary &
Bieger, P.C.,
Abingdon, Virginia, for the Respondent.
Before Judge Zielinski
This case is before me on a Petition for Assessment of Civil
Penalty filed by the Secretary of Labor against Hiope Mining,
Inc.
pursuant to section 105 of the Federal Mine Safety and Health Act
of
1977 (the "Act"), 30 U.S.C. � 815. The petition alleges a
significant
and substantial violation of the Secretary's mandatory health and
safety standards attributable to Respondent's unwarrantable
failure
and proposes a civil penalty of $1,500.00. A hearing was held in
Abingdon, Virginia on March 13-14, 2000. Petitioner submitted a
brief on April 27, 2000. Following receipt of the hearing
transcript,
Respondent submitted a reply brief on June 15, 2000. For the
reasons
set forth below, I affirm the citation and assess a penalty of
$1,500.00.
Findings of Fact
On May 17-19, 1999, John B. Sylvester, Jr., an inspector
with
the Secretary of Labor's Mine Safety and Health Administration
(MSHA)
conducted an inspection of the Hiope mine, an underground coal
mine
located in McDowell County, West Virginia. Over the course of
the inspection he issued a total of 15 citations, four of which,
he
concluded were Significant and Substantial (S&S). Respondent did
not contest 14 of the citations. The only citation at issue here
was
written on May 19, 1999, at 8:55 p.m., when Inspector Sylvester
observed accumulations of coal and float coal dust that he
concluded violated 30 C.F.R. � 75.400.[1] He issued Citation
numbered
7183561, which identified the condition or practice as:
On the 001-0 section coal and float coal dust is being
allowed to accumulate on the mine floor and on the ribs. In
the No. 2 face coal is being allowed to accumulate for a
distance of 55 feet and the last line open cross-cuts from
No. 4 heading to No. 9 heading hasn't been cleaned up at all
for a distance of 250 feet. The accumulations range from 1
to 14 inches in depth. The section was producing coal at
the time the citation was issued. No one was in the process
of cleaning the section at this time. Citation No 7183548
was issued 5-17-99 for these same conditions.
The citation was issued pursuant to � 104 (d)(1) of the
Act[2]
because Inspector Sylvester determined that the violation was
significant and substantial and the result of the operator's
unwarrantable failure. As noted in the body of the citation,
the inspector's assessment of the operator's negligence as "high"
was based, in part, on the issuance of at least one prior
citation for similar conditions only two days earlier in the same
section of the mine. Upon issuance of the citation, the foreman,
the continuous miner operator and the two shuttle car drivers
directed their efforts to cleaning and the citation was
terminated at 10:50 p.m., slightly less than two hours after it
had been issued.
Subsurface coal extraction at the Hiope mine was conducted
on
three shifts. The first and second shifts actively mined coal.
The third, midnight or "hoot owl," shift was devoted to
maintenance
activities, described by Hiope's President, Ronald Combs, as in-
cluding cleaning, rock dusting and moving the conveyor belt. The
crews for the first and second shifts consisted of six men, a
foreman, a continuous miner operator, two shuttle car drivers and
two
roof bolters. According to the testimony of the mine (and #1
shift)
foreman, Gerald Tatum the #1 and #2 shifts were operating
"shorthanded"
with a "skeleton crew" of six men. The #2 shift foreman at the
time,
Raymond Poszich,[3] described a "normal" crew as consisting of at
least two more men, an electrician and a scoop operator who would
normally perform most of the cleaning and rock dusting duties.
Both Mr. Tatum and Mr. Poszich testified that the other
five members of their crews were fully occupied operating
equipment
that was actively engaged in the production of coal and were
available for cleaning only if their piece of equipment was
inoperable. As a consequence, cleaning duties were generally the
responsibility of the foreman, who had many other duties,
including providing supplies to the roof bolter, making
inspections
of the mine every two hours and hanging centerlines and line
curtains. While Mr. Tatum testified that he performed some of
these duties while operating a scoop and doing cleaning and
that he and his crew tried to clean as much as they could, Mr.
Poszich testified that they simply didn't clean unless
equipment broke down. I find that Mr. Poszich's testimony,
based upon his lack of a current employment relationship with
Respondent and the findings of Inspector Sylvester, more
accurately described the cleaning effort during the production
shifts. In actual practice, if mining operations were unin-
terrupted by equipment breakdowns, very little cleaning
was performed on the first and second shifts.
At the time the citation was issued, the mine's posted
cleanup program called for cleaning and rock dusting to
be performed "after each work cycle." A work "cycle"
consisted of the continuous miner making a cut 15-20 feet
deep - the fresh cut was then to be roof bolted and
cleaned, with loose coal being removed or "pushed up" to
the face where it would be loaded out when the continuous
miner returned to make another cut. After the citation
was issued, Inspector Sylvester observed that Hiope was
violating its own cleanup program. Within a month of the
issuance of the citation, Hiope's president amended the
program to specify that cleaning was required to be done
after each 16 hour "producing period." It also provided
that: "During the producing period a scoop will be
utilized as much as possible to do cleaning." The
change, in essence, brought the written cleanup program
into conformance with the existing cleaning practice and
was intended, in part, to assure that an inspector would
not be able to refer to a failure to follow an
established cleanup program in support of a citation.
Hiope cannot strenuously dispute inspector Sylvester's
description of the accumulations as noted in the citation. Mr.
Poszich, the foreman on duty at the time, testified that he did
not disagree with that description. The primary defense is that
the citation was issued "prematurely" because, due to delays in
roof bolting, cleaning could not have been done in the subject
areas[4] and that there is no reliable evidence that cleaning was
not being done on cycle.
The mine was developed with nine entries, each 20 feet wide
and spaced 50 feet apart on center. Cross cuts connecting the
entries were made on centerlines spaced 80 feet apart. The
mine was developed in the following sequence: cuts were made
first in the #9 entry, followed by #8 and, in order, down to
#5, where the conveyor belt was located. That process was
repeated until those entries were mined up to where the next
cross cut would be located. Cross cuts were then made,
turning right, i.e. from #8 entry toward #9 entry. Each cross
cut through 30 feet of coal had to be made with 2 cuts of the
continuous miner. When the cross cuts from #5 to #9 had been
completed, mining began on the left side and the #4 through
#1 entries were cut and connected with cross cuts which became
an extension of the #5 to #9 cross cut. When the second shift
started work on May 19, 1999, the #4 through #9 entries had
been mined up to the next cross cut and cross cuts had been
made completely through from the #4 to the #9 entry. The Pre-
shift report for the second shift, which was done between 2:00
and 3:00 p.m on May 19, 1999, by Mr. Tatum, described the
condition of the mine as, "needs bolted" for entries #1,
#2, #3, #4, #6 and #8 and "needs cleaned" for entries #5, #7
and #9. "Needs bolted" means that the continuous miner had made
a
15-20 foot cut and that it had not yet been roof bolted. Such
areas are "dangered off", by hanging a reflector warning that
no one can enter the area where the roof is unsupported.
"Needs cleaned" means that the area had been roof bolted and
could then be cleaned. No distinction was made between entries
and cross cuts in the report because the cross cut was viewed as
a continuation of the entry. For example, the cross cut
from #6 to #7 was made by bringing the continuous miner
up entry #6, where it would make a right turn toward entry #7.
Two more cuts would be made, completing the cross cut between #6
and #7 � all of which would be referred to as mining in the
#6 entry. Consequently, the preshift report entry that #6
"needs bolted" means that the final cut of the cross cut
from #6 to #7 had been made and needed to be roof bolted.
There are factual disputes about the exact state of
development of the mine on May 19, 1999, both at the beginning
of the second shift and when the inspector arrived on section 1
at about 8:35 p.m. I find that at the time the inspector arrived
the mine was developed as depicted in Government's Exhibit
#18, a copy of which is attached as Appendix I, with the
exception that the #5 through #9 entries were advanced no
more than a few feet beyond the cross cut. I also find that
at the beginning of the second shift the cross cuts from
#4 to #9 had been cut through. There is no dispute that
by the time Inspector Sylvester arrived the cross cuts
from #4 through #9 had been cut through. Mr. Poszich
testified that his shift did no mining on the right side
(#5-#9) and mined only on the #3, #2 and #1 entries. The
only witness that testified to the contrary was Walter
McGlothlin, a shuttle car operator who stated that the
continuous miner started in the #6-#7 cross cut. However,
he was impeach with his deposition testimony that mining
was done only in the #4 through #1 entries on the
second shift.
I find, as Mr. Poszich testified, that mining on the
second shift occurred only in the #3, #2 and #1 entries.
Critically, when Inspector Sylvester arrived, the #2
entry had been driven in approximately 70 feet, the last
cut of which had not been roof bolted. The first 55 feet
of entry #2, however, had been bolted and should have
been cleaned prior to the next cut being made. The
inspector found excessive accumulations throughout the
first 55 feet of the entry, accumulations that he was
certain did not result from the last cut because of their
extensiveness and location. There was a suggestion, in
Mr. McGlothlin's testimony, that the accumulations may
have been of recent origin because there may have been a
cross cut started with a left hand turn from the #2 entry
and that substantial spillage occurs when turns are made.
I reject that suggestion because neither the #2 nor the
#1 entry had been driven to the point where a cross cut
would have been made and other testimony was uniformly to
the effect that cross cuts were made by turning to the
right.
There were also excessive accumulations throughout the
length of the cross cuts from #4 entry to #9 entry.
Respondent is correct in its contention that cleaning
could not be done under unsupported roof and areas "in-
by" unsupported roof. However, that would excuse the
failure to clean only in the second cut that had not been
roof bolted. At the start of the second shift the #4-#5
and #5-#6 cross cuts had been cut though and bolted, as
indicated on the preshift report and the testimony of
Scott Honaker, one of the roof bolters. I reject the
contrary testimony of Steve Blackwell, the other roof
bolter, that bolting was done in the #5-#6 cross cut on
that shift. There is a dispute in the testimony as to
the location of the roof bolter when the inspector
arrived. He testified, consistent with his notes, that
the bolter was at the last row of bolts in the #7-#8
cross cut. The roof bolters testified that they were
working in the #6-#7 cross cut at the time. While I find
that it is unlikely that the roof bolter was in the #7-#8
cross cut,[5] its location when the inspector arrived is
of little significance. Even if the roof bolter was in
the second cut of the #6-#7 cross cut, such that cleaning
could not have been done there or in the area of the second
cuts of the #7-#8 and #8-#9 cross cuts, there were
excessive accumulations that should have been cleaned
previously in the entire cross cut from #4 through the first
cut of the cross cut in #6-#7 and the first cuts of the
cross cuts in #7-#8 and #8-#9.
With respect to possible ignition sources, Inspector
Sylvester testified that there were several present, includ-
ing sparks from the continuous miner, worn or damaged
insulation on electrical cables and improperly maintained
permissible equipment. In addition to the combustible
accumulations, the mine liberated methane. While the
Hiope mine was not a particularly gassy mine, mining oper-
ations were, at the time, occurring only 20-30 feet above
an abandoned mine where serious methane problems and
several ignitions had been experienced. Test results
in the record generally show zero or very low concen-
trations in areas where coal was not actually being cut.
However, as Inspector Sylvester testified, methane concen-
trations are not predictable and he had been told by
the continuous miner operator that concentrations at
or above 2% had been encountered.[6] Mr. Poszich tes-
tified that he had experienced methane concentration
sufficient to shut down the continuous miner the same
day that the subject citation was issued. Sparks are
produced when the continuous miner's bits strike roof
material and provide an efficient ignition source at
the very location that methane is likely to be liberated.
Other ignition sources include the equipment, which is
powered by electricity. Wear and damage to trailing
cables supplying 480 volts of electricity is not
uncommon. In fact, Inspector Sylvester issued a citation
on May 17, 1999, having found worn insulation in five
locations on the trailing cables of the continuous miner.
Sparks or flames in electrical controls also can provide
an ignition source if the equipment is not maintained in
"permissible" condition. Inspector Sylvester also issued
a citation on May 17, 1999, for failure to maintain the
continuous miner in permissible condition.
Conclusions of Law
Significant and Substantial
A "significant and substantial" (S&S) violation is
described in Section 104(d)(1) of the Act 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, 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 of Labor 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 contrib-
uted to will result in an injury; and (4) a reason-
able likelihood that the injury in question will be
of a reasonably serious nature. (footnote omitted)
See also, Buck Creek Coal, Inc. v. MSHA, 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).
In United States Steel Mining Co., Inc., 7 FMSHRC 1125,
1129 (August 1985), the Commission stated further as follows:
We have explained further that 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).
We have emphasized that, in accordance with the
language of section 104(d)(1), it is the contribution
of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining
Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
This evaluation 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 1007 (December 1987).
The Violation
The conditions found to exist, as described above,
violated � 75.400. While they were the product of normal
mining operations, the extensive accumulations existed at
the time of the citation because Hiope failed to clean as
part of the normal mining cycle. Any argument that the
areas in question could not have been cleaned because
they had not been roof bolted is unavailing because the
great majority of the areas noted in the citation had
been roof bolted. As the inspector noted, the #2 entry
had not been cleaned for a distance of 55 feet to the
last row of bolts. That distance would have been mined
in three cycles, with a continuous miner making cuts of
15-20 feet. Those cuts had been roof bolted and should
have been cleaned prior to the next cut being made.
Similarly, there is no viable excuse for allowing
accumulations to exist in the cross cuts from #4 to #6
and in the area of the first cuts in the other cross cuts
from #6 to #9.
Hiope argues that the only evidence that clean up was not
being done on cycle was testimony from Raymond Poszich
who was referring to a later time period when the mine
was operating under the new cleanup plan. However, Mr.
Poszich's testimony quite clearly was directed to the
time frame of May 19, 1999, not a later period.[7] The
excessive accumulations found by Inspector Sylvester are
also ample proof that cleaning was not being done on
cycle. Hiope also contends that Inspector Sylvester's
testimony is unreliable for a number of reasons,
including his lack of recollection of the exact status of
roof bolting and the mining sequence. However, as noted
previously, there is little dispute as to the accuracy of
Inspector Sylvester's description of the excessive
accumulations. Those accumulations existed in areas that
clearly had been roof bolted and should have been
cleaned.
The Commission's decisions long ago made clear that
� 75.400 is directed at preventing accumulations � not to
cleaning them up within a reasonable time. As stated in
Utah Power and Light Co., 12 FMSHRC 965, 968 (May 1990):
In defining a prohibited "accumulation" for section
75.400 purposes, the Commission explained [in Old Ben Coal
Co., 2 FMSHRC 2806 (October 1980)] that "some spillage
of combustible materials may be inevitable in mining
operations. However, it is clear that those masses
of combustible materials which could cause or propagate
a fire or explosion are what Congress intended to
proscribe." Old Ben II, 2 FMSHRC at 2808. The Commission
emphasized that the legislative history relevant to
the statutory standard that section 75.400 repeats
"demonstrates Congress' intention to prevent, not merely
to minimize, accumulations. The standard was directed at
preventing accumulations in the first instance, not
at cleaning up the materials within a reasonable period
of time after they have accumulated." Old Ben I, 1
FMSHRC [1954 (December 1979)] at 1957. .
. . . . .
Here, Hiope allowed lose coal, float coal dust and
related combustible materials to remain in the active
workings of the mine in numerous areas that had been roof
bolted and should have been cleaned. These were clearly
"accumulations" as defined in, and in violation of,
� 75.400.
Likelihood of Injury
There can be little dispute that combustible
accumulations contribute to the hazard of ignition or
propagation of a fire and that any injury resulting from
such a hazard could be serious and possibly fatal. The
critical factor in the S&S determination, therefore, is
whether there was a reasonable likelihood that the hazard
would result in an injury. There were several ignition
sources in the area and the mine was known to liberate
methane. Sparks from the continuous miner, damaged
trailing cables from the miner and other equipment and
improperly maintained equipment were potential ignition
sources. Inspector Sylvester had cited Hiope because
insulation on the trailing cable of the continuous miner
was worn in five places. Concentrations of methane
sufficient to shut down the continuous miner had been
encountered the same day that the citation was issued.
The active workings in question were also located
approximately 20-30 feet above an abandoned mine that had
far more significant methane problems, including several
ignitions. These factors give rise to a reasonable
likelihood that the hazard contributed to by the
accumulations would result in an injury. Accordingly, I
find that the violation was significant and substantial.
Unwarrantable Failure
In Windsor Coal Co., 21 FMSHRC 997, 1000 (Sept. 1999),
the Commission reiterated the law applicable to deter-
mining whether a violation was the result of an unwarran-
table failure.
The unwarrantable failure terminology is taken from
section 104(d) of the Act, 30 U.S.C. � 814(d), and refers
to more serious conduct by an operator in connection with
a violation. In Emery Mining Corp., 9 FMSHRC 1997
(Dec. 1987), the Commission determined that unwarrantable
failure is aggravated conduct constituting more
than ordinary negligence. Id. at 2001. Unwarrantable
failure is characterized by such conduct as "reckless
disregard," "intentional misconduct," "indifference,"
or a "serious lack of reasonable care." Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194
(Feb. 1991); see also Buck Creek Coal, Inc. v. FMSHRC, 52
F.3d 133, 136 (7th Cir. 1995) (approving Commission's
unwarrantable failure test). The Commission has
recognized that a number of factors are relevant in
determining whether a violation is the result of an
operator's unwarrantable failure, such as the extensiveness
of the violative condition, the length of time that the
violative condition has existed, the operator's efforts
to eliminate the violative condition, and whether an op-
erator has been placed on notice that greater efforts are
necessary for compliance. Mullins & Sons Coal Co. , 16
FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC
1258, 1261 (Aug. 1992). The Commission also considers
whether the violative condition is obvious, or poses
a high degree of danger. BethEnergy Mines, Inc., 14
FMSHRC 1232, 1243-44 (Aug. 1992) (finding unwarrantable
failure where unsaddled beams "presented a danger" to
miners entering area); Warren Steen Constr., Inc., 14
FMSHRC 1125, 1129 (July 1992) (finding violation ag-
gravated and unwarrantable based on "common knowledge
that power lines are hazardous, and . . . that pre-
cautions are required when working near power lines
with heavy equipment"); Quinland Coals, Inc., 10 FMSHRC
705, 709 (June 1988) (finding unwarrantable failure
where roof conditions were "highly dangerous"); Kitt
Energy Corp., 6 FMSHRC 1596, 1603 (July 1984) (con-
spicuous nature of the violative condition supports
unwarrantable failure finding).
A consideration of the above factors compels a con-
clusion that the violation was the result of Hiope's
unwarrantable failure. The accumulations were extensive
and existed in several areas that should have been
cleaned, had proper effort been devoted to cleaning in
the normal mining cycle, i.e. after roof bolting had been
completed. The record of prior violations by Hiope
indicates that it had been cited for violations of
� 75.400 seven times in the six months preceding the
issuance of the instant citation. With one exception,
the circumstances of those violations have not been
explained and I do not consider that they should have put
Hiope on a heightened alert for such violations. The
� 75.400 violation cited in May 17, 1999, however, resulted
from the same practice that prompted the violation at
issue here, and clearly put Hiope on notice that delaying
cleaning efforts and allowing accumulations to exist in
the active workings was a violation of a mandatory health
and safety standard. Nevertheless, Hiope did not change
its ways. No cleaning had been done on the #2 shift and
no cleaning was being done when the inspector arrived in
the area despite the fact that the need for cleaning had
been noted on the preshift inspection report and
additional areas had been roof bolted and should have
been cleaned. Cleaning was not initiated until the
citation was issued, some five hours after the shift had
begun. At that point, four miners worked two hours to
abate the conditions cited. It is apparent that, had the
inspection not taken place, substantial accumulations
would have been allowed to remain in the active workings
until the midnight shift began.
Hiope places significance on the fact that, on May 18,
1999, Inspector Sylvester found the mine clean and
observed some cleaning being done during the #1 shift.
However, Inspector Sylvester arrived at the mine
virtually at the beginning of the #1 shift that day.
Under the cleaning process actually followed by Hiope,
the mine would normally have been clean by the end of the
midnight shift. Attention to cleaning in the presence of
an inspector who had issued a citation for excessive
accumulations during the same shift the previous day is
hardly indicative of a proper ongoing cleaning program.
As the inspector testified; "If I was there [on the
18th], they were doing cleanup, I guarantee it."
The situation presented here is comparable to that in
Utah Power and Light Co., supra, where an operator made a
conscious decision to mine in a manner that allowed
accumulations to exist. While the unwarrantable failure
finding in that case was reversed, the reversal was
predicated on the operator's good faith belief that its
cleanup plan was consistent with applicable regulations
and that its cleanup methods were safer than alternative
procedures. In addition, the operator there had been
cited in the past for deviating from its cleanup plan and
was understandably reluctant to change its procedures.
Those factors stand in sharp contrast to the situation
presented in this case. Here, Hiope's conscious decision
to mine in a manner that allowed unlawful accumulations
to exist was a deviation from its cleanup program, a
deviation for which it had been issued a citation only
two days earlier. Hiope's response to the May 17 and May
19, 1999 citations was not to conform to its cleanup
program and eliminate the accumulations. Rather, Hiope
determined to change its cleanup program to formalize its
deficient cleaning procedures. Under the Commission
precedent discussed above, it was long ago made clear
that deferring cleanup efforts and allowing accumulations
to exist for even one shift, much less two shifts, was a
violation of � 75.400. The citation is affirmed as
significant and substantial and due to Hiope's unwar-
rantable failure to comply with a mandatory health and
safety standard.
The Appropriate Penalty
Hiope Mining Inc. is a relatively small operator, with
production of 56,060 tons of coal in 1998. It has a
relatively good history of violations, having been cited
for violations of the Act forty-five times, including the
instant violation, during fifty-one inspection days in
the two year period ending on May 19, 1999. Thirty-seven
of the violations involved single penalty assessments and
none of those finally adjudicated was specially assessed.
The parties have stipulated that the proposed penalty of
$1,500.00 would not affect Hiope's ability to continue in
business and that the violation cited was abated timely
and in good faith. The gravity of the violation was
serious in that six miners were exposed to a reasonable
likelihood of serious injury. The operator's negligence
was high. Although Hiope's subsequent amendment of its
cleanup program raises concern about future compliance
with the standard, it did promptly abate the violation in
this case. Weighing these factors, which are required to
be considered under � 110(i) of the Act, I find that the
proposed penalty of $1,500.00 would properly effectuate
the deterrent purposes underlying the Act's penalty
assessment scheme.
ORDER
Based upon the foregoing, citation number 7183561 is
Affirmed and Hiope Mining Inc. is Ordered to pay a civil
penalty of $1,500.00 within 30 days.
Michael E. Zielinski
Administrative Law Judge
Distribution:
Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Suite 516, Arlington, VA 22203
(Certified Mail)
Daniel R. Bieger, Esq., Copeland, Molinary & Bieger, P.C., 212
West Valley Street,
P. O. Box 1296, Abingdon, VA 24212 (Certified Mail)
/mh
[1] 30 C.F.R. � 75.400, entitled Accumulation of
Combustible Materials, provides:
Coal dust, including float coal dust deposited on rock-
dusted surfaces, loose coal, and other combustible ma-
terials, shall be cleaned up and not be permitted to
accumulate in active workings, or on diesel-powered
and electric equipment therein.
[2] Section 104(d)(1), 30 U.S.C. � 814(d)(1),provides
in pertinent part:
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. . . .
[3] Mr. Poszich no longer worked at the Hiope mine
at the time of hearing.
[4] Mandatory Safety Standards for underground coal
mines provide that "[n]o person shall work or travel under
unsupported roof * * * ." 30 C.F.R. � 75.202(b).
[5] As noted above, the preshift report indicates
that that cross cut had been bolted at the start of the second
shift and no additional mining had been done on that side.
[6] Methane is a highly combustible gas. Continuous
mining machines are equipped with methane monitors that sound a
warning when methane concentration reaches 1% and automatically
shut the machine down at concentrations of 2%.
[7] See, e.g., transcript pages 113 ("that was an
accepted plan when we got there") and 155 (the cited
accumulations would not have been cleaned up until the midnight
shift, had the inspector not arrived). While he did refer to the
amended cleanup plan, it appears to have been for illustration
purposes. No attempt was made on cross examination to establish
that he was referring to a time frame other than when the
citation was issued.