.
CONSOLIDATION COAL COMPANY
February 27, 1995
WEVA 94-19
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
February 27, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 94-19
Petitioner : A.C. No. 46-01452-03957
:
v. : Arkwright No. 1
:
CONSOLIDATION COAL COMPANY, :
Respondent :
DECISION
Appearances: Robert Wilson, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for the
Petitioner; Elizabeth S. Chamberlin, Esq., Consol Inc.,
Pittsburgh, Pennsylvania, for the Respondent.
Before: Judge Fauver
This is an action for civil penalties for three alleged
violations of safety standards, under � 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, probative,
and reliable evidence establishes the following Findings of Fact
and further findings in the Discussion below:
FINDINGS OF FACT
Order No. 3118662
1. Inspector Richard McDorman issued � 104(d)(2) Order No.
3118662 on April 7, 1993, charging a violation of 30 C.F.R.
� 75.340(a). The inspector found that water pump No. 68 was
in a crosscut in an intake escapeway on the 2 South section
and was not in a noncombustible enclosure or equipped with a
fire suppression system, and the air ventilating the water
pump was not coursed into the return air entry but was used
to ventilate the working section.
2. The pump was placed there to pump water out of an
abandoned section of the mine adjacent to the 2 South
section. The pump was 14 to 16 inches high, 18 to 20 inches
wide, and 6 feet long. It weighed 300 to 350 pounds. The pump
was energized and ready to be operated. It was located about 20
crosscuts from the working face and 1800 feet from the
loading point. It was not moved as the working section
advanced or retreated.
Order No. 3118671
3. Inspector McDorman issued � 104(d)(2) Order No. 3118671
on April 21, 1993, charging a violation of 30 C.F.R. �
75.400.
4. Accumulations of fine coal, coal dust and float dust were
found on and around the 3 Right section belt line pony
drive. A pony drive is an auxiliary drive that helps to
drive a long belt line. As the conveyor belt comes to the
pony drive, it dumps the coal onto a lower part of the belt,
wraps around the pony drive, and comes back out where the
coal is dumped back onto the upper belt. The belt goes to
the mouth of the section where it dumps onto a main belt and
then returns to the working section.
5. A scraper on the pony drive was installed to prevent
coal from spilling off the belt. However, there was
substantial spillage. The inspector found accumulations
from 1/4 to 2 inches deep. They were packed under the belt,
which was rubbing against the accumulations. He found other
accumulations where coal had fallen off a pan under the
belt. These accumulations were 6 to 12 inches deep. Other
accumulations were near the end of the pan, measuring 8
inches deep.
6. To abate the cited condition, seven or eight men worked
about two hours to remove the combustible accumulations from
the area. About three tons of combustible materials were
cleaned up to abate the condition.
Order No. 3122509
7. Section 104(d)(2) Order No. 3122509 was issued by
Inspector Jerry Vance on April 20, 1993, for a violation of
30 C.F.R. � 75.370(a)(1).
8. Inspector Vance was traveling outby in the tailgate entry
on the 3 Right longwall section, moving toward the mouth of
the section, when he observed that the operator had erected
a stopping across the tailgate entry. When he went through
the door in the stopping, he took a smoke tube reading and
found there was no air movement. His methane detector
sounded an alarm and showed over one percent methane. There
was no air movement for about 600 feet in this entry.
DISCUSSION WITH FURTHER FINDINGS, CONCLUSIONS
Order No. 3118662
This order was issued because a pump in an intake escapeway
was not enclosed in a noncombustible enclosure and the air
ventilating the pump was not coursed into a return entry.
The inspector cited a violation of 30 C.F.R. � 75.340(a),
which provides:
Underground transformer stations, battery charging
stations, substations, rectifiers, and water pumps
shall be located in noncombustible structures or areas
equipped with a fire suppression system meeting the
requirements of � 75.1107-3 through � 75.1107-16. This
equipment also shall be ----
(1) ventilated by intake air that is coursed into a
return air course or to the surface and that is not used to
ventilate working places ***.
Section 75.340(a) is a part of new ventilation regulations
that took effect in November 1992. Its predecessor, � 75.1105,
required that certain electrical equipment, including "permanent
pumps," be housed in fireproof structures or areas, and that air
ventilating them be coursed into the return air entry. The new
regulations delete the reference to "permanent" pumps and apply
to all pumps unless they come under an exemption in � 75.340(b).
Respondent contends that its pump was exempt from � 75.340(a)
under either � 75.340(b)(4) or (6), which provide:
This section does not apply to *** (4) pumps located on
or near the section and that are moved as the working
section advances or retreats; *** [or] (6) small
portable pumps.
The preamble to � 75.340(b) states that "[s]mall portable pumps
are easily relocated without the aid of mechanized equipment;
capable of being moved frequently; and installed in such a manner
to facilitate such movement."
I find that the pump, which weighed 300 to 350 pounds, was
not a "small portable pump" within the meaning of � 75.340(b)(6).
I also find that the pump was not "moved as the working
section advances or retreats" within the meaning of
� 75.340(b)(6). The term "working section" is defined as "All
areas of the coal mine from the loading point of the section to
and including the working faces." 30 C.F.R. � 75.2. The pump
was about 1800 feet outby the loading point and did not advance
with the working section.
The pump was nonexempt and therefore in violation of
� 75.340(a).
The inspector found that the pump was in good condition at
the time the order was issued and was not likely to catch on
fire. For those reasons, he cited the violation as not
"significant and substantial" within the meaning of � 104(d)
of the Act. However, this was still a serious violation.
In the event of a fire reaching the pump's fuel tank, the
resulting smoke would have contaminated the intake entry and
escapeway with a reasonable likelihood of serious injuries.
The inspector found that the violation was due to high
negligence and therefore was an "unwarrantable" violation
within the meaning of � 104(d) of the Act. The Commission
has defined an unwarrantable violation as one due to
"aggravated conduct, constituting more than ordinary
negligence" (Emery Mining Corp., 9 FMSHRC 1997 (1987)).
Respondent contends that the violation was not unwarrantable
because Respondent held a good faith belief that the pump
was in compliance with the regulations. To be a mitigating
factor, the operator's belief must be reasonable. Wyoming
Fuel, 16 FMSHRC 1618, 1628 (1994). I do not find that the
exemptions claimed by Respondent were reasonable grounds for
assuming, without first inquiring into MSHA's enforcement
position, that the pump qualified for an exemption. The
pump was too heavy to lift to be considered a "small
portable pump," and since it was not moved as the working
section advanced or retreated, it could not reasonably be
considered exempt under � 75.340(b)(6).
Moreover, the operator's claims of exemption under
� 75.340(b)(4) and (6) appear to be after-the-fact
litigation positions, not the actual reason for the
operator's contention that the pump was not covered by �
75.340(a). The actual reason appears to be the contention
that the pump was not a "permanent" pump within the meaning
of the old regulation. Thus, Respondent's safety compliance
representative, Michael Jackson, testified that at the time
of the order he believed the pump "met the criterion of law
of . . . not being a permanent pump." Tr. 84. This indicates
that Respondent did not keep up with the change in the law.
Respondent is responsible for knowing the change in the
safety standard after its publication in the Federal
Register, which occurred about five months before the
violation. The importance of safety standards places a high
duty on an operator to keep abreast of the law and to be
sure that it complies with all changes in safety standards
that are duly published. "Ignorance of the law" does not
lower the operator's negligence from high to ordinary in
this case. The evidence sustains the inspector's allegation
of an "unwarrantable" violation.
Order No. 3118671
This order was issued for a violation of 30 C.F.R. � 75.400.
Respondent concedes that this was a "significant and
substantial" violation, but challenges the inspector's
findings of high negligence and an unwarrantable violation.
Section 75.400 provides that "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." Order No. 3118671 was issued because
fine coal, coal dust and float dust had been allowed to
accumulate on and around the 3 Right section belt line pony
drive. A pony drive is an auxiliary drive that helps to
drive a long belt line. As the belt comes to the pony
drive, it dumps the coal onto a lower part of the belt,
wraps around the drive, and comes back out where the coal is
dumped back onto the upper belt. The belt goes to the mouth
of the section where it dumps onto a main belt.
A scraper was installed on the pony drive to scrape coal off
the bottom belt. However, there was substantial spillage.
Some of the accumulations measured 1/4 to 2 inches deep.
The accumulations were packed between the pan and the belt
and the belt was rubbing against the accumulations. Other
accumulations were on the mine floor, where combustible
material had fallen off the pan. The accumulations under
the pan were 6 to 12 inches deep. Other accumulations were
found near the end of the pan, measuring 8 inches deep.
To abate the violation, it took seven or eight men up to two
hours to remove the combustible accumulations from the area.
Inspector McDorman testified that he and the company
representative, Clifford Cutlib, agreed that about three
tons of coal were cleaned up to abate the violation. This
figure is reflected in Inspector McDorman's notes. Company
witnesses disputed this figure. However, in addition to
Inspector McDorman's notes, it is reflected in the order
itself, and Mr. Cutlib said nothing about that to Inspector
McDorman when the order was issued. On balance, I credit
the Inspector's testimony and his notes as the locations and
quantities of the accumulations.
After some abatement efforts were made, the mine
superintendent asked the inspector to terminate the order.
The inspector refused to terminate the order until all the
accumulations had been removed. The mine superintendent
stated that the order had shut down a million dollar piece
of equipment which the company needed to get running. This
is consistent with the inspector's opinion that the company
practice was to clean up accumulations only partially, just
so that the belt would not rub against combustible
accumulations.
The company's preshift and onshift reports for March 21 to
April 21, 1993, show 43 reports of coal spillage at the
location where Order No. 3118671 was issued. Also, the mine
history shows seven citations for violative accumulations
along belt lines from April 1992 through April 1993. Two of
those citations were issued for accumulations at the pony
drive on the 2 Right section.
Section 75.400 is "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 Coal Company, 1 FMSHRC 1954 (1979)). The primary
Congressional intent in passing the Mine Act was to prevent
mine explosions and fires and � 75.400 is central to that
purpose. Black Diamond Coal Company, 7 FMSHRC 1117 (1985).
The inspector's findings of high negligence and an
unwarrantable violation are amply supported by the evidence.
Respondent knew that it had major spillage problems but did
not correct them. The preshift and onshift reports showed
repeated entries of spillage at the cited location. Also,
Respondent had a number of prior citations for violative
accumulations, including two at the cited pony drive.
Despite this notice that there was a persistent problem of
combustible accumulations, Respondent did not assign anyone
to this area to prevent violative accumulations. The
operator's primary concern appears to have been production
rather than preventing combustible accumulations. The
evidence shows aggravated conduct beyond ordinary
negligence.
Order No. 3122509
This order was issued for a violation of 30 C.F.R.
� 75.370(a)(1), which requires the operator to develop and
comply with a ventilation plan approved by the Secretary.
Once the operator's ventilation plan is approved, its
provisions and revisions are enforceable as mandatory
standards. See, UMWA v. Dole, 870 F.2d 662, 671 (D.C. Cir.
1989); and Jim Walter Resources, 9 FMSHRC 903, 907 (1987).
Respondent's ventilation plan provides that the "mine is
constantly patrolled by fire bosses to insure that no dead
areas or areas of no air movement occur." Exhibit G-16,
p.2. Order No. 3122509 was issued because there was no air
movement for about 600 feet in the tailgate entry of a
longwall section.
Inspector Vance was traveling the tailgate entry on the 3
Right longwall section from the face toward the mouth of the
section when he encountered the violation. He was traveling
with a company representative, Bobby Gross, and a miner's
representative, Alex Petrosky. The operator had erected a
stopping across the tailgate entry. Outby that point, there
was no air movement for about 600 feet. When the inspector
went through the door in the stopping, he took a smoke tube
reading. There was no air movement. His methane alarm went
off, indicating over one percent methane. He took smoke
tube readings at various locations in the entry. All
readings showed no air movement.
The dead air space was caused by the stopping across the
tailgate entry. With the stopping there, the air in the
tailgate entry had nowhere to go.
Respondent contends that the dead air space was caused by
"certain changes that occur in mine conditions and that they
occurred between the time of the last examination and the
time that the Inspector wrote the Order." Tr. 234.
However, there is no evidence of any specific changes that
would have accounted for the dead air after the stopping had
been erected. The reliable evidence indicates that the dead
air space was caused by the stopping across the tailgate
entry, which had been erected about four weeks before the
order was issued.
Since this entry is required to be walked by a fireboss
weekly, this condition should have been detected and
corrected by the operator prior to Inspector Vance's
inspection. Also, when the stopping was installed, the
operator should have made sure that there was positive air
movement in the entry. It was obvious to Inspector Vance
when he reviewed the mine map that the stopping presented a
problem. It should have been just as obvious to the
operator.
Finally, the violation was the direct result of actions
taken by management. The stopping across the tailgate entry
was installed at the direction of management, which has a
duty to evaluate the consequences of its actions. The
company's failure to prevent, detect, and correct the
violation of its ventilation plan constitutes more than
ordinary negligence. I find that the evidence supports the
inspector's findings of high negligence and an unwarrantable
violation.
Although the violation was not designated "significant and
substantial," it was a serious violation. As a direct
result of the violation, there was a build up of more than
one percent methane in the tailgate entry.
Civil Penalties
Section 110(i) of the Act provides six criteria for
assessing civil penalties:
The Commission shall have authority to assess all civil
penalties provided in this Act. In assessing civil
monetary penalties, the Commission shall consider 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. In proposing civil
penalties under this Act, the Secretary may rely upon a
summary review of the information available to him and
shall not be required to make findings of fact
concerning the above factors.
Respondent is a large operator. After notification of the
violations involved, Respondent made a good faith effort to
achieve rapid compliance. The factors of gravity and negligence
have been discussed as to each violation.
Considering all of the criteria in � 110(i), I find that the
following civil penalties are appropriate:
Order Civil Penalty
No. 3118662 $ 2,400
No. 3122509 $ 2,400
No. 3118671 $ 4,800
$ 9,600
CONCLUSIONS OF LAW
1. The judge had jurisdiction.
2. Respondent violated the safety standards as alleged in
Orders Nos. 3118662, 3122509 and 3118671.
ORDER
WHEREFORE IT IS ORDERED that:
1. Order Nos. 3118662, 3122509 and 3118671 are AFFIRMED.
2. Respondent shall pay civil penalties of $9,600 within
30 days of this Decision.
William Fauver
Administrative Law Judge
Distribution:
Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Elizabeth S. Chamberlin, Esq., Consol Inc., Consol Plaza, 1800
Washington Road, Pittsburgh, PA 15241-1421 (Certified Mail)
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