<DOC>
[DOCID: f:wv9795x.wais]
WINDSOR COAL COMPANY
March 24, 2000
WEVA 97-95
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
March 24, 2000
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 97-95
Petitioner : A.C. No. 46-01286-03985
v. :
: Windsor Mine
WINDSOR COAL COMPANY, :
Respondent :
DECISION ON REMAND
Before: Judge Weisberger
This civil penalty proceeding is before me based upon a
decision by the Commission in this matter, 21 FMSHRC 997
(September 19, 1999), which vacated the decision of Judge George
A. Koutras[1] (19 FMSHRC 1694 (October 27, 1997)) that the
violation by Windsor Coal Company (Windsor) of 30 C.F.R. � 75.400
was not the result of its unwarrantable failure, and remanded
this proceeding for further consideration.[2] Subsequent to
the issuance of the Commission's decision, the undersigned
conferred with counsel for both parties in a telephone conference
call and suggested that the parties attempt to negotiate to
settle the issues raised by the Commission's remand. The parties
subsequently indicated that they were unable to reach a
settlement, and counsel were allowed until January 28, 2000 to
file briefs. Pursuant to the parties' request the time to file
briefs was extended, and the parties filed their briefs on March
6, 2000.
In its remand, the Commission, directed a reconsideration of
the issue of unwarrantable failure. Compliance with the
Commission's decision requires analysis of the circumstantial
evidence regarding the duration of the cited conditions, along
with an analysis of the evidence of record regarding notice of
the need for greater compliance efforts, efforts to eliminate the
violative conditions, and the danger and obviousness of the cited
accumulations. (21 FMSHRC supra, at 1004, 1006-1007).
1. Duration
On September 19, 1996, MSHA inspector Lyle Tipton inspected
the No. 10 belt. The Commission, 21 FMSHRC supra at 998, set
forth Tipton's observations of the violative conditions, and the
description of the violative conditions as set forth in his order
as follows:
Tipton observed an `accumulation of combustible
material consisting of float coal dust, ... loose coal
spillage, spillage of fine dry loose coal and coal dust
in contact with the conveyor belt and bottom roller
structure[.]' Id. at 1697. Tipton's order states that
`the total distance of this 6,000 foot entry containing
float coal dust was 3,600 feet' and that spillage of
`coal and fine dry loose coal was present under the
majority of the bottom belt and in contact with the
bottom rollers.' Id. The order indicated that
Inspector Tipton observed accumulations of float coal
dust from the belt drive (227 crosscut) to the 260
crosscut; accumulations of loose coal beneath the
majority of the bottom belt and in contact with the
bottom rollers; spillage in contact with rollers and
visual signs that a roller had heated up at the 254
stopping; an 80-foot long, 1-foot wide, and 1-foot deep
spillage at the 248 stopping; a 50-foot long, 1-foot
wide, and 1-foot deep spillage at the 268 stopping; a
20-foot long, 3-foot wide, and 2-foot deep spillage at
the 275 stopping; and a 10-foot long, 3-foot wide, and
2-foot deep spillage at the 276 stopping. Ex. P-3 at
2. He concluded that the cited conditions `for the
most part were being carried as reported in the mine
record books and would have taken days to accumulate to
the degree described in this action.' 19 FMSHRC at
1698.
Generally, the testimony of miners Cox and Welch
corroborated Tipton's opinion that the accumulations developed
over a period of several shifts. On the other hand, Porter
indicated that in his preshift examination of September 18, he
had not observed any hazardous conditions, and that specifically
the conditions noted in Tipton's order were not present in his
preshift examination made on September 18. Also, there is no
specific reference in Windsor's pre-shift and on-shift reports
prior to September 19, relating to the violative conditions
described in Tipton's order at the following stoppings: 248,
254, 268 and 275.
However, most importantly, as noted by the Commission, (21
FMSHRC supra at 1001) the September 19 preshift report showed
that the area between crosscuts 227 and 253 needed cleaning.
Also, on September 19, the midnight pre-shift report listed
accumulations on both sides of stopping 276, but the midnight on-
shift report showed that only the right side of the belt was
cleaned i.e., "the left side of stopping 276 still needed
cleaning by the time the day preshift report was written" (21
FMSHRC supra at 1002) I thus find that the preponderance of the
evidence establishes that float cut accumulations from crosscut
227 to 260, and accumulations along the left side of the belt at
the 276 stopping had existed for at least one shift prior to
Tipton's inspection.
2. Notice of the Need for Greater Compliance Efforts.
Windsor, in asserting that it lacked notice of a greater
need for compliance, argues that annotations in the pre-shift
book reflecting that coal had accumulated and some of the
accumulations remained for several shifts without abatement, does
not demonstrate that Windsor was on notice. In this connection,
Windsor argues that none of the specific conditions set forth by
the Commission 21 FMSHRC supra at 1004, were cited by Tipton, and
that many of the conditions that were recorded do not amount to
violative conditions. Also, Windsor argues that its two-year
history of Section 75.400 violations fails to show that it was on
notice of a greater need for compliance. In this connection,
Windsor refers to the record as establishing that only two-
violations, both issued in 1995, were viewed by the Secretary to
be the result of indifference or serious lack of reasonable care,
that these violations were spread out over 14 miles of belt
haulage, that in the three month period preceding the issuance of
the order at issue Windsor had received only three section 75.400
violations, and that during the inspection at issue, the 14 mile
haulage was inspected, and only one violation was issued.
However, the record establishes that float coal dust existed
along 3,600 feet of the 6,000 foot belt in question. Further, 15
to 20 miners worked over a two-shift period to correct the
violative accumulations. Hence, I find that, when cited by
Tipton, the accumulations were extensive. Considering the extent
of the accumulations as well as the history of 98 section 75.400
citations in a two-year period which the Commission considered to
be a "high number of violations during this time period" (21
FMSHRC supra at 1004, I conclude that, within the framework of
evidence in this case, Windsor was on notice that greater
efforts were necessary for compliance with Section 75.400, supra.
3. Efforts to Eliminate the Violative Conditions.
The Secretary argues, in essence, that Windsor's efforts to
correct the violative conditions were incomplete and ineffective.
In this connection the Secretary argues that not withstanding
Windsor's efforts to clean up the violative conditions, it took
nearly 30 employees working over a period of two shifts to abate
the violation. On the other hand, I am cognizant of the
Commission's findings, that prior to the order's issuance,
"....the record contains evidence of Windsor's abatement efforts
on the number 10 belt and elsewhere in the mine... ." 21 FMSHRC
supra at 1005). Further, on the September 18, afternoon shift
six miners were assigned to work on the No. 10 belt. The on-shift
report indicated that these miners "corrected" conditions at the
head to drive, 269 to 272, 238 to 271. The on-shift report for
the midnight shift September 19, 1996 indicated that the
following areas were cleaned: 282 to 260, 278 and 276. The
work assignment record for September 19, 1996 indicates the
completion of the following: "cleaning and dusting 265 to 260
crosscut, cleaning 272 to 278, changing 23 rollers, changing bad
stands 262 to 263".
4. Danger and obviousness.
Judge Koutras, in addition to finding the existence of a
section 75.400 violation, also found that the violation was
significant and substantial. He specifically found that "...the
presence of float coal dust on a running belt with potential
ignitions sources such as hot defective rollers, rollers turning
in loose dry coal accumulations, and a belt dragging and/or in
contact with loose dry accumulations and/or spillage presented
serious potential fire and explosive hazards" (19 FMSHRC at supra
1715). No appeal was taken regarding Judge Koutras' finding of
significant and substantial. Accordingly his conclusion in this
regard as well as the underlying facts he cited in support of his
conclusion becomes the law of the case. However, there is no
evidence in the record that Windsor either knew or reasonably
should have known of the specific defective hot rollers, and
rollers turning in loose dry coal accumulations cited by the
inspector.
Within the framework of the above discussed factors, I find
that it has been established that the violation herein was as a
result of more than ordinary negligence, reached the level of
aggravated conduct, and hence constituted an unwarrantable
failure (See: Emery Mining Corporation 9 FMSHRC 1997 (Dec
1997)).
5. Penalty
Judge Koutras, in his decision, 19 FMSHRC supra at 1728 made
findings, pursuant to section 110(i) of the Act, regarding the
size of Windsor's business and the effect of a penalty on its
ability to continue in business, its history of its prior
violations, good faith abatement, and gravity. None of these
findings have been appealed, and they become the law of the case.
Regarding negligence, as discussed above (infra 4), I find that
the level of negligence was more than ordinary and reached the
level of aggravated conduct.
Taking into account all the above factors, I find that a
penalty of $2,500.00 is appropriate.
ORDER
It is ORDERED that within 30 days of this decision, Windosr
shall pay a total civil penalty of $2,500.
Avram Weisberger
Administrative Law Judge
Distribution: (Certified Mail)
Howard Berliner, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 400, Arlington, VA 22203
David A. Laing, Esq., Porter, Wright, Morris & Arthur, 41 South
High Street, Columbus, OH 43215
nt
**FOOTNOTES**
[1] Judge Koutras is presently retired.
[2] This case was subsequently assigned to me by former
Chief Judge Paul Merlin.