<DOC>
[DOCID: f:s95-178.wais]
JIM WALTERS RESOURCES, INC.
November 29, 1995
SE 95-178
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
November 29, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. SE 95-178
Petitioner : A.C. No. 01-01247-04185
v. :
: Docket No. SE 95-185
JIM WALTERS RESOURCES, INC., : A.C. No. 01-01247-04159
Respondent :
: No. 4 Mine
:
: Docket No. SE 95-256
: A.C. No. 01-01401-04071
:
: No. 7 Mine
DECISION
Appearances: Carla J. Gunnin, Esq., Office of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama,
for the Petitioner;
R. Stanley Morrow, Esq., Jim Walter Resources, Inc.,
Brookwood, Alabama, for the Respondent.
Before: Judge Feldman
These matters are before me as a result of petitions for civil
penalties 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., (the Act). The hearing in these proceedings was conducted
on October 18, 1995, in Hoover, Alabama. Pertinent stipulations
concerning jurisdiction and statutory civil penalty criteria are of
record.
At the hearing, the parties moved to settle the citations
associated with Docket Nos. SE 95-178[1] and SE 95-185 in their
entirety. Remaining Docket No. SE 95-256 concerns 18 citations
issued under 104(a) of the Act, and, 104(d)(2) Order No. 3184069.
The parties moved to settle all 18 of the citations issued in Docket
No. SE 95-256. However, the parties failed to reach agreement on
Order No. 3184069. (Tr. 10-19).
The parties' settlement motions were presented and approved
on the record after the settlement terms were determined to be
consistent with the civil penalty criteria in section 110(i) of the
Act, 30 U.S.C. � 820(i). A summary of the approved settlement terms
is incorporated in this decision.
The only matter heard was 104(d)(2) Order No. 3184069. At the
conclusion of the hearing, the parties elected to make closing
statements in lieu of filing post-hearing briefs. This decision
formalizes the bench decision issued at the conclusion of the parties'
closing presentations.
Order No. 3184069 was issued on August 31, 1994, by Mine Safety
and Health Administration (MSHA) Inspector John Terpo. Terpo issued
the Order as a result of a 103(g) complaint by Keith Plylar who is
the UMWA Chairman of the Health and Safety Committee at the
respondent's No. 7 Mine.[2] The Order was issued after Terpo,
consistent with Plylar's complaint, observed extensive coal dust
accumulations at the West B belt header extending inby approximately
7,000 feet in violation of the mandatory safety standard in section
75.400, 30 C.F.R. � 75.400. This mandatory standard provides:
Coal dust, including float coal dust deposited on
rock-dusted surfaces, loose coal, and other combustible
materials, shall be cleaned up and not be permitted to
accumulate in active workings, or on electric equipment
therein.
At trial, the respondent stipulated to the fact of occurrence
of the cited section 75.400 violation. (Tr. 100-01). Therefore,
the outstanding issues are whether the violative condition was
properly designated as significant and substantial, and, whether
the violation was attributable to the respondent's unwarrantable
failure.
The essential facts are not in dispute and can be briefly
stated. For approximately one month prior to the August 31,
1994, issuance of the subject Order, Plylar complained to mine
officials including foreman Larry Morgan, and deputy manager
Charlie Beasley, about malfunctions in the West B belt. The
malfunctions consisted of misalignments in the beltline that
caused the belt to cut into the belt structure resulting in
significant coal dust accumulations and float coal dust.
Plylar testified mine management ignored his verbal complaints
despite acknowledging that the beltline was defective. The
safety committee subsequently performed its bi-monthly inspection
on August 18, 1994, at which time committee members provided
each shift foreman and the deputy mine manager with a written
inspection report that noted the West B belt malfunctions and
coal dust accumulations.
Plylar's testimony was corroborated by the preshift
examination book. Pertinent coal dust accumulations were
repeatedly noted in the preshift examination book prior to
Terpo's inspection during the period from August 25 through
August 31, 1994. (Ex. R-1). For example, the preshift book
reflects the following number of people were assigned to clean
the West B belt on the days preceding Terpo's inspection: two
people on August 25, 1994; five people on August 26, 1994;
five people on August 28, 1994; four people on August 30,
1994; and five people on August 31, 1994. The evening
preshift notation reflects 39 people were assigned to clean
the West B belt for eight hours on August 31, 1994, after
Terpo issued Order No. 3184069. Id.
On the morning of August 31, 1994, Terpo arrived at the
respondent's No. 7 mine to conduct a routine inspection.
Terpo was approached by Plylar and given a written complaint
concerning hazardous accumulations along the West B belt.
Terpo provided copies of Plylar's complaint to mine management
and proceeded to inspect the subject area in the presence of
Plylar, day shift foreman Paul Phillips and deputy mine
manager Beasley. They began at the West B belt discharge point
and walked the entire 7,000 feet length of the belt from the
header to the tail.
The West B belt is located in the No. 3 entry. The
No. 3 entry is 24 feet wide from the left to right rib. The
West B belt is 54 inches wide and runs on lower rollers that
vary in height from four to 12 inches form the surface
depending upon the pitch of the mine floor. The back side of
the West B belt is between 24 and 36 inches away from the left
rib. The front side of the belt is approximately four feet
from the No. 3 track and 10 to 12 feet from the right rib.
(Joint Ex. 1). Thus, dust accumulations are more accessible,
for cleaning purposes, on the front side rather than the back
side of the belt. In this regard, accumulations can be
shoveled from the front side without deenergizing the belt.
In contrast, cleanup of accumulations under the back side of
the belt requires deenergizing the belt.
As a general proposition, Terpo testified the majority
of the cited accumulations were located under the back side
of the belt. Terpo observed coal dust and float coal dust
accumulations approximately 24 inches in depth at the
discharge point. Terpo also observed airborne float coal dust
traveling approximately 350 feet downwind (in intake air) from
the discharge point. The airborne float coal dust was created
by bottom rows of rollers at the discharge point that were
turning in coal dust. Terpo noted this float coal dust was
accumulating on the belt drive motor and transmission case.
The transmission case was extremely hot to the touch.
Terpo proceeded inby and at the No. 59 brattice where he
observed two bottom rollers in coal dust 12 inches deep for a
distance of 20 feet. These accumulations were under the back
side of the belt. These rollers created very fine airborne
float coal dust transported inby via the intake air. Terpo
continued down the belt and noted four bottom rollers in
accumulations 16 inches deep for 40 feet at the "F" track
location between the 59th and 75th brattice. Further along
the beltline, at the 75th brattice, Terpo observed four
rollers in accumulations 14 inches in depth. One of these
rollers was locked up which generated significant heat from
the friction of the belt sliding on the stationary roller.
(Tr. 130-31).
Terpo continued down the belt and observed four bottom
rollers turning in 12 inches of accumulations for a distance
of 40 feet at the G drop belt area; three bottom rollers turning
in coal dust between the 80th and 81st brattices; two bad
(stationary) rollers in coal dust 12 inches in depth for a
distance of 60 feet between the 82nd and 83rd brattices; four
rollers turning in ten inch deep coal dust for a distance of
40 feet at the 84th brattice; three rollers in 12 inches of
coal for 30 feet at the 87th brattice; four rollers in 14
inches of coal dust for a distance of 100 feet at the 88th
brattice; three rollers in 12 inches of coal for 20 feet at
the 93rd brattice; and nine rollers in ten to 16 inches of
coal dust for 100 feet two crosscuts inby the No. 2 belt
discharge point.
Terpo testified that he considered the hot transmission box,
and the locked up rollers, as significant ignition sources.
Terpo also stated the numerous rollers turning in coal dust
ground the coal dust into very fine particles which became
airborne by the intake air. The suspension of float coal dust
traveled down the entire length of the belt along the air
course as it split to the working sections. Terpo characterized
the violative coal dust accumulations as significant and
substantial in nature because of the likelihood of combustion due
to the suspended float coal dust and combustible accumulations
in the presence of multiple ignition sources along the entire
length of the intake belt entry. In the event of fire, Terpo
opined that the 21 persons who worked in the two working sections
ventilated by the West B belt entry would be exposed to significant
fire or smoke inhalation hazards.
**FOOTNOTES**
[1]: Docket No. SE 95-178 only concerns 104(d)(2) Order
No. 3183836. Two other unrelated citations were erroneously
included in the proposed assessment and were subsequently
deleted.
[2]: Section 103(g)(2)of the Act, 30 U.S.C. � 813(g)(2),
authorizes any miner, or, a miner's representative, to
provide written notification of an alleged violation of a
mandatory safety standard to an MSHA inspector prior to or
during an inspection.
Terpo issued 104(d)(2) Order No. 3184069 for the loose coal,
coal dust and float coal dust accumulations that were present
from the West B belt header inby approximately 7,000 feet. The
Order noted these accumulations were previously noted in the
preshift examination book.
Day shift assistant mine foreman Paul Phillips, who
accompanied Terpo during his inspection, estimated coal
accumulations over a total length of between 800 and 900 feet
along the West B belt in addition to approximately 20 rollers
that were turning in coal. (Tr. 196-97). Phillips and Terpo
stated the accumulations were located primarily under back
rollers and along the back side of the belt. Phillips testified
25 or 26 people were assigned to clean the West B belt from
8:50 a.m. until 11:00 p.m. on August 31, 1994, to abate Order
No. 3184069. As noted above, the preshift examination book
reflects 39 people were assigned to clean the West B belt for
eight hours on August 31, 1994. The cleanup occurred while
the belt was deenergized.
Based upon the testimony and exhibits in this matter, I
issued the following bench decision which is edited with
non-substantive changes:
The issues in this proceeding concern a violation of
section 75.400 which prohibits the accumulation of
combustible coal dust. Section 75.400 provides: "Coal
dust, including float coal dust deposited on rock dusted
surfaces, loose coal dust and other combustible materials
shall be cleaned up and not be permitted to accumulate in
active workings or on electrical equipment therein."
Thus, the dispositive issue is whether the respondent
permitted the coal dust to accumulate. Mr. Morrow has
stipulated to the fact of occurrence of the section 75.400
violation. Thus, the remaining questions are whether the
violation was significant and substantial in nature,
whether it was attributable to Jim Walter Resources'
unwarrantable failure, and, the appropriate civil penalty
to be assessed.
Addressing the first issue, to prevail on the significant
and substantial question, the Commission's decision in
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), requires
the Secretary to establish a reasonable likelihood that the
hazard contributed to by the violation will result in an
event in which there is a serious injury. This issue must
be viewed in the context of continued mining operations in
the face of these continued violative accumulations.
Halfway Incorporated, 8 FMSHRC 8, 13 (January 1986).
Viewing this issue in its component parts, the hazard
contributed to by the violation is the danger of combustion
and the event is explosion and fire. The initial question
is whether there was a reasonable likelihood that the
violation would result in the event, i.e., fire.
The elements of combustion are suspension, fuel, oxygen and
an ignition source. Here, there was significant airborne
float coal dust (suspension) created by a combination of
the numerous rollers operating in coal dust accumulations
(fuel) and the intake air (oxygen) carrying the float coal
dust suspension along the
West B belt entry. With respect to the remaining element
of an ignition source, the evidence reflects the coal
suspensions and accumulated coal were in close proximity to
heat generated from the belt cutting into the structure, as
well as heat generated from the transmission box and
tailpiece motor. In addition, these accumulations were
also present near heat caused by belt movement over locked
up rollers and heat resulting from completely worn bearings
in inoperable rollers. When viewed in the context of
continued mining operations, there was a reasonable
likelihood that the presence of combustible fuel in contact
with sources of heat along the West B beltline would result
in an explosion or fire.
Having determined there was a reasonable likelihood of the
occurrence of an explosion or fire as a result of this
violation, we turn to whether it was reasonably likely that
this event would cause serious injury. I credit Inspector
Terpo's testimony that, in the event of fire, considering
the amount of accumulations along the entire belt and the
significant amounts of airborne float coal dust, the fire
would spread very rapidly, particularly because it would be
fed with high velocity intake air. The flames and smoke
would follow the intake air path down the beltline and then
split to the continuous mining and longwall working
sections.
In such an event, it is reasonably likely that personnel in
these working sections would sustain serious smoke
inhalation or burn injuries. Consequently, the evidence
demonstrates that the cited violation was properly
characterized as significant and substantial.
With regard to the next issue, an unwarrantable failure is
evidenced by aggravated conduct that is unjustifiable or
inexcusable, as distinguished from ordinary negligence
which is characterized by inattentiveness or carelessness.
Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007, 2010
(December 1987). The Commission's leading case on the
question of unwarrantable failure as it applies to a
section 75.400 infraction for violative coal dust
accumulations is Peabody Coal Company, 14 FMSHRC 1258
(August 1992).
In Peabody, the Commission set forth four tests for
resolving the unwarrantable failure issue. These tests
are: (1) the extent of the violative condition; (2) the
length of time that it has existed; (3) whether the
operator had been placed on notice that greater efforts
were necessary for compliance; and (4) the adequacy of the
operator's efforts in abating the violative condition after
the operator's awareness of the problem. 14 FMSHRC at
1261.
It is evident that all of the Peabody criteria establish an
unwarrantable failure in this case. With respect to the
first element, while denying accumulations existed along
the entire 7,000 foot beltline, even assistant mine foreman
Phillips, who accompanied Terpo during the inspection,
admitted the accumulations totaled a distance of
approximately 900 feet along the beltline in addition to 20
rollers that were turning in coal. Such accumulations can
only be described as extensive.
The second test in Peabody addresses the length of time the
accumulations existed. The preshift examination book
reflects notations of this condition at the
West B belt for the six days that preceded Terpo's August
31, 1994, inspection. These preshift entries confirm the
testimony of safety committeeman Plylar that he provided
written notice of the condition to mine management on
August 18, 1994, during his bimonthly safety inspection.
These facts, as well as the extent of the accumulations,
manifest by the 25 to 39 people required to clean for up to
14 hours in order to abate the 104(d)(2) Order, support
Plylar's testimony that the condition existed for at least
one month.
The third Peabody element concerns whether the operator had
notice of the violation. Once again, the evidence supports
Plylar's reported repeated complaints to mine management
over a period of at least one month. The respondent's
awareness of the problem is further demonstrated by its
inadequate efforts to clean the area by assigning only
several people to clean the track side of the belt while
beltline operations continued. Thus, the third test in
Peabody is clearly satisfied.
Having been aware of the condition, the final Peabody
criterion relates to the respondent's efforts to remedy the
problem. As previously noted, mine management responded by
assigning an inadequate number of people to address the
problem by cleaning only the track side of the belt while
the beltline continued to operate. For example, the
preshift entries reflect that several people were assigned
to clean the West B belt on several occasions during the
period August 25 through August 30, 1994. This cleaning
did not address the accumulations under the back side of
the belt, between the belt and the rib, that could only be
accessed if mine production was interrupted and the
beltline was deenergized. The inadequacy of the
respondent's efforts is reflected by the 25 people reported
by Phillips, or, the 39 people noted in the preshift book,
that were required to work approximately 14 hours, while
the beltline was inoperable, to clean the cited violative
accumulations. There was also unrefuted testimony from
Plylar that the West B belt structure was ultimately
repaired to correct the alignment of the belt.
Thus, it is obvious that the respondent's efforts to
address the problem were woefully inadequate.
Consequently, applying the Peabody criteria, it is clear
that the respondent's conduct in this matter was aggravated
in nature justifying the Secretary's assertion that the
cited condition was attributable to the respondent's
unwarrantable failure. Accordingly 104(d)(2) Order No.
3184069 is affirmed.
Finally, with respect to the appropriate penalty to be
assessed, the Secretary seeks to impose a civil penalty of
$9,500. In considering the appropriate penalty, I note
that even Inspector Terpo conceded the respondent was
conscientious enough to adequately clean the more readily
accessible front side of the belt. This is a mitigating
factor in favor of the respondent. On the other hand, the
respondent was not diligent enough to shut down the belt to
clean under the back rollers which would result in an
interruption of production. This is an unfavorable factor
in considering the penalty.
I am also mindful that this 7,000 foot beltline is
approximately 1 1/2 miles long with very large numbers of
rollers. Thus, the accumulations in this matter, while
clearly extensive, must be kept in perspective.
Accordingly, on balance, I have concluded that $6,500 is
the appropriate penalty considering the degree of
negligence, gravity and other pertinent statutory penalty
criteria in section 110(i) of the Act.
(Tr. 252-68).
The penalty assessment decided on the merits for
Order No. 3184069 as well as the civil penalties provided
in the parties' settlement of the other citations in these
proceedings are as follows:
DOCKET NO. SE 95-178
Citation Or Proposed Settlement Modification
Order No. Assessment
3183836 $5,500.00 $3,500.00
DOCKET NO. SE 95-185
Citation Or Proposed Settlement Modification
Order No. Assessment
3184179 $8,000.00 $1,000.00 104(d) to 104(a)
DOCKET NO. SE 95-256
Citation Or Proposed Settlement Modification
Order No. Assessment
3184069 $9,500.00 $6,500.00[3]
3184051 $1,155.00 $ 150.00 Delete S&S
3183877 $ 362.00 $ 150.00 Delete S&S
4484467 $ 50.00 $ 50.00
3194259 $ 50.00 $ 50.00
4484542 $ 903.00 $ Vacated
4484301 $ 362.00 $ 362.00
4484275 $ 362.00 $ 362.00
4484737 $ 506.00 $ 506.00
4484738 $ 50.00 $ 50.00
4484739 $ 50.00 $ 50.00
4484280 $ 506.00 $ 125.00 Delete S&S
4476181 $ 309.00 $ 309.00
4476182 $ 50.00 $ 50.00
4476183 $ 362.00 $ 362.00
4476185 $ 362.00 $ 100.00 Delete S&S
4476187 $ 309.00 $ 309.00
4476189 $ 50.00 $ 50.00
2807519 $ 235.00 $ 235.00
Subtotal $15,533.00 $9,770.00
Total $29,033.00 $14,270.00
ORDER
This decision formalizes the bench decision with respect to
Order No. 3184069 and constitutes the approval of the parties'
settlement motions with respect to the remaining citations and
orders in issue. Accordingly, 104(d)(2) Order No. 3184069
IS AFFIRMED. The respondent SHALL PAY a total civil penalty
of $14,270 within 30 days of the date of this decision. This
total penalty consists of the $6,500 penalty for Order No.
3184069, in addition to the $7,770 agreed upon total settlement
for all of the other matters in issue. Upon timely receipt of
payment, Docket Nos. SE 95-178, SE 95-185, and SE 95-256 ARE
DISMISSED.
Jerold Feldman
Administrative Law Judge
Distribution:
Carla J. Gunnin, Esq., Office of the Solicitor, U.S. Department
of Labor, Suite 150, Chambers Building, Highpoint Office Center,
100 Centerview Drive, Birmingham, AL 35216
R. Stanley Morrow, Esq., Jim Walter Resources, Inc., Post Office
Box 133, Brookwood, AL 35444
/rb
**FOOTNOTES**
[3]: As reflected in this decision, 104(d)(2) Order No.
3184069 was affirmed and assessed a civil penalty of $6,500. All
other penalties noted above are the settlement amounts agreed
upon by the parties.