<DOC>
[DOCID: f:wv93129.wais]
DOSS FORK COAL COMPANY, INC.
April 5, 1996
WEVA 93-129
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
April 5, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 93-129
Petitioner : A.C. No. 46-07751-03542
:
v. : Seminole Mine
:
DOSS FORK COAL COMPANY, INC., :
Respondent :
DECISION
Appearances: Pamela Silverman, Esq., Office of the
Solicitor, U.S. Dept. of Labor, Arlington,
Virginia for Petitioner; David Hardy, Esq.,
Jackson & Kelly, Charleston, West Virginia
for Respondent.
Before: Judge Melick
This case is before me upon remand by the Commission,
18 FMSHRC 122, (February 1996) to determine whether the
violations charged in Order Nos. 3554292 and 3554293 were
the result of unwarrantable failure, and whether Order No.
3554294 should be sustained.
Order No. 3554292
The evidence established that on October 26, 1992, MSHA
Inspector James Graham, accompanied by MSHA Supervisor Clyde
Ratcliff, observed that loose coal, mixed with pieces of
rock, had been pushed into ten crosscuts in the right return
air course of the Doss Fork Seminole Mine. Inspector Graham
issued this order alleging a "significant and substantial"
violation of 30 C.F.R. � 75.400.[1] He also charged that
the violation was the result of Doss Fork's "unwarrantable
failure".
In the initial decision it was concluded that the cited
material constituted a violation but that the Secretary had
not proven the violation was "significant and substantial".
It was also found that section foreman Carl Dalton
entertained a good faith belief that the material was not a
violative accumulation. Primarily for this reason the
violation was not found to be the result of "unwarrantable
failure".
Unwarrantable failure is defined as aggravated conduct
constituting more than ordinary negligence. Emory Mining
Corp., 9 FMSHRC 1997 (December 1987). Unwarrantable failure
is characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference" or a "lack of
reasonable care." Id. at 2003-04; Rochester and Pittsburgh
Coal Company, 13 FMSHRC 189, 193-194 (February 1991). The
Commission has identified several factors to be considered
in analyzing whether a violation resulted from unwarrantable
failure. Among these are "the extensiveness of the violation,
the length of time that the violative condition has existed,
the operator's efforts to eliminate the violative condition,
and whether an operator has been placed on notice that greater
efforts are necessary for compliance." Mullins and Sons
Coal Company, 16 FMSHRC 192, 195 (February 1994). The
Commission has also noted that in order to serve as a
defense to a finding of unwarrantable failure an operator's
good faith belief that the cited conditions were not
violative must also be reasonable. Cyprus Plateau Mining
Corp., 16 FMSHRC 1610, 1615 (August 1994). The Commission
seeks on remand a determination of whether this operator's
belief that the cited conditions were not violative were
reasonable.
Upon examination of the record I must conclude that the
belief of the operator's agent in this regard was not, in
fact, reasonable. The violation was extensive in that there
were accumulations of up to 26 inches in depth in 10
crosscuts. Section Foreman Dalton also testified that the
material was pushed into the crosscuts during the last week
of September or the first week of October, thereby
acknowledging that the accumulations had existed for at
least three weeks. In addition, the record indicates that
the operator was on notice that the storing of coal, even
when mixed with rock and mud, was violative. Prior to
issuance of the subject order, the operator was cited on
June 3 and October 21, 1992, for three violations of the
same standard. The record also shows that MSHA had warned
the operator on October 15 about similar accumulations.
Under the circumstances I conclude that it was not
reasonable to believe that the cited conditions were not
violative. Since the operator has failed to sustain his
burden of proving this affirmative defense, I conclude that
the violation indeed resulted from "unwarrantable failure"
and high negligence.
In light of these findings, the previous determination
that the violation was not "significant and substantial" (and
accordingly of lessened gravity) and the other criteria
under Section 110(i), I find that a civil penalty of $800 is
appropriate.
Order No. 3554293
The record shows that on October 26, 1992, Inspector
Graham, accompanied by MSHA Supervisor Ratcliff, issued a
Section 104(d)(1) order[2] alleging a "significant and
substantial" violation of 30 C.F.R. � 75.202(a).[3]
Based on his observation of inadequate roof support in
the left return air course of the mine, Inspector Graham
charged that the violation was the result of Doss Fork's
unwarrantable failure. The violation was found to be
significant and substantial.
The Commission has remanded for evaluation of the
unwarrantability issue in light of appropriate testimony.
In this regard Inspector Graham testified that, during his
inspection of the left return air course, several places
existed where roof bolts were hanging down and exposing 24
inches between the roof and the plate. Graham also
described three particular areas where groups of six, 10,
and 12 adjacent defective bolts were observed.
Additionally, Graham testified that there were many other
damaged bolts throughout the area with cracked and loose
rock in the roof with much of the loose roof left hanging.
Graham concluded that the condition had existed for at least
several weeks because of the state of deterioration. He
disputed that the deterioration could have occurred within
the five days since the last weekly examination. MSHA
Supervisor Ratcliff testified that the conditions he
observed were similar to an earthquake, with fallen material
in any direction you looked. He observed areas of major
roof falls that he believed had existed for weeks because
"roof transition that excessive doesn't occur in a matter of
days."
On the other hand Section Foreman Webb testified that he
made the last weekly examination on October 21, only five
days before the conditions were observed and cited by MSHA,
and that he did not observe any violative conditions at that
time. Based on the expert testimony of Graham and Ratcliff
and the significant factor that only five days had actually
elapsed between the date of the last weekly examination
reportedly conducted by Foreman Webb and the date the
conditions were discovered by MSHA, it is clear that at
least some of the violative conditions must have existed at
the time of the previous weekly examination on October 21.
In view of the circumstances, it may reasonably be inferred
that Webb must have known of these conditions at the time of
that weekly examination. With such notice to an agent of
the operator, the failure to have corrected those conditions
during the interim five days is clearly sufficient to find
the high degree of negligence necessary for a finding of
"unwarrantable failure." Accordingly, Order No. 3554293 is
affirmed with an appropriate civil penalty of $2,300.
Order No. 3554294
Order No. 3554294 alleged in part as follows:
Adequate weekly examinations for hazardous conditions
in the return air courses of this coal mine are not being
conducted. There were obvious violations that were observed
and there was no report made of these violations in the
weekly examination book.
The cited standard, 30 C.F.R. � 75.305 (1991) provided,
in part as follows:
Examinations for hazardous conditions . . . shall be
made at least once each week . . . . If any hazardous
condition is found, such condition shall be reported . . .
promptly . . . . A record of these examinations . . . shall
be recorded . . . in a book . . . and the record shall be
open for inspection . . . .
The underlying basis for this violation was the failure
to report in the weekly examination books roof conditions in
both the right and left return air courses and loose coal
stored in the right return as charged in Order No. 3554291,
discussed in the initial decision (16 FMSHRC 797 (April
1994)), and Orders No. 3554292, and No. 3554293, previously
discussed in that decision and herein. Inspector Graham
reviewed the weekly examination books for the right and
left return air courses after he arrived on the surface
of the mine on October 26, 1992. Significantly, when
Inspector Graham asked Foremen Webb and Dalton, the
weekly examiners, why these conditions had not been
reported in the weekly examination books, they
gave no answer. As discussed in the original decision
issued in this case, supplemented by the discussion herein
of the violations cited in Orders No. 3554292 and No.
3554293, the operator was clearly in a position from which
it may reasonably have been inferred that he knew of the
violative conditions.
The failure to have reported these conditions in the
weekly examination books constitutes a violation as charged.
The violation was also "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 (1981). In Mathies
Coal Co., 6 FMSHRC 1, 3-4 (1984), the Commission explained:
In order to establish that a violation of a
mandatory 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 Co. v. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (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
(1984), and also that the likelihood of injury be evaluated
in terms of continued normal mining operations. U.S. Steel
Mining Co., Inc., 6 FMSHRC 1473, 1574 (1984); see also
Halfway, Inc., 8 FMSHRC 8, 12 (1986) and Southern Oil Coal
Co., 13 FMSHRC 912, 916-17 (1991).
The failure to have reported in the weekly examination
books the serious conditions cited in the noted orders clearly
constituted a "significant and substantial" and serious
violation. Without the warning provided by such reports,
unsuspecting persons would likely be placed in hazardous and
potentially life-threatening situations -- particularly in
regard to the hazardous roof conditions.
The violation was also the result of "unwarrantable
failure". The failure to have reported these conditions,
and, in particular, the serious roof conditions, in the
weekly examination books was clearly inexcusable and the
result of an aggravated omission constituting high
negligence. Considering the criteria under Section 110(i)
of the Act, a civil penalty for this violation of $1,000 is
appropriate.
ORDER
Order Nos. 3554292, 3554293 and 3554294 are affirmed.
Doss Fork Coal Company is hereby directed to pay within 30 days
of the date of this decision civil penalties of $800, $2,300
and $1,000, respectively, for the violations charged in the
above orders.
Gary Melick
Administrative Law Judge
Distribution:
Pamela S. Silverman, Esq., Office of the Solicitor, U.S.
Dept. of Labor, 4015 Wilson Blvd., Room 516, Arlington, VA
22203 (Certified Mail)
David J. Hardy, Esq., Jackson & Kelly, 1600 Laidley Tower,
P.O. Box 555, Charleston, WV 25322 (Certified Mail)
/jf
**FOOTNOTES**
[1]: 30 C.F.R. � 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."
[2]: Order No. 3554293 stated in part:
The mine roof in the left return air course
is not adequately supported at spot locations
starting at crosscuts outby survey station number
65 and extended outby this point to within three
crosscuts of the surface portal. There were
several roof bolts at each location that were
damaged to a point they no longer adequately
supported the roof.
[3]: 30 C.F.R. � 75.202(a) provides:
The roof, face and ribs of areas where persons
work or travel shall be supported or otherwise
controlled to protect persons from hazards related
to falls of the roof, face or ribs and coal or rock
bursts.