<DOC>
[DOCID: f:k94-944r.wais]

 
TOPPER COAL COMPANY, INC.
June 15, 1995
KENT 94-944-R


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041

                            June 15, 1995

TOPPER COAL COMPANY, INC.,      :  CONTEST PROCEEDING
               Contestant       :
          v.                    : Docket No. KENT 94-944-R
                                : Citation No. 4243301; 5/19/94
SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        : No. 9 Mine
  ADMINISTRATION (MSHA),        :
  Mine ID 15-17326              :
               Respondent       :
                                :
SECRETARY OF LABOR,             :
  CIVIL PENALTY PROCEEDING      :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION  (MSHA),       : Docket No. KENT 94-1052
              Petitioner        : A. C. No. 15-17326-03506 S
          v.                    :
                                : No. 9 Mine
TOPPER COAL COMPANY, INC.,      :
              Respondent        :

                             DECISION

Appearances:   Susan E. Foster, Esq., Office of the 
               Solicitor, U.S. Department of Labor, 
               Nashville, Tennessee for Petitioner;
               Billy R. Shelton, Esq., Baird, Baird, Baird &
               Jones, Pikeville, Kentucky, for Respondent.

Before:   Judge Hodgdon

     These cases are before me on a notice of contest and
petition for assessment of civil penalty filed by Topper 
Coal Company, Inc. against the Secretary of Labor and by 
the Secretary of Labor, acting through his Mine Safety and 
Health Administration (MSHA), against Topper Coal, 
respectively, pursuant to Section 105 of the Federal Mine 
Safety and Health Act of 1977, 30 U.S.C.  815.  The 
company contests the issuance of Citation No. 4243301 to 
it on May 19, 1994.  The Secretary's petition seeks a 
civil penalty of $8,500.00 for the violation alleged in 
the citation.  For the reasons set forth below, I affirm 
the citation, as modified, and assess a penalty of 
$5,000.00.
     The cases were heard on February 22 and 23, 1995, in
Pikeville, Kentucky.  MSHA Coal Mine Inspectors Howard 
Williams and Elmer Hall, Jr. and MSHA Coal Mine Safety and 
Health Specialist Cheryl S. McGill testified for the
Secretary. Mr. Gary D. Fields, MSHA Coal Mine Inspector 
Jerry D. Abshire and MSHA Conference Litigation 
Representative Gerald W. McMasters testified on behalf of 
Topper Coal.  The parties have also filed briefs which I 
have considered in my disposition of these cases.

                        FACTUAL BACKGROUND

     The facts surrounding this case are not disputed. On
May 19, 1994, Inspectors Williams, Hall and Ronald 
Honeycutt went to Topper Coal's No. 9 Mine to conduct a 
spot saturation inspection for smoking articles in the
mine. Inspector Hall informed Mr. Fields, President and 
owner of Topper Coal, that the inspectors were present to 
conduct an inspection, although he did not inform Mr. 
Fields that they were looking for smoking materials.  He 
also instructed Mr. Fields not to call into the mine to 
advise the miners underground that the inspectors were 
coming.  Hall and Honeycutt then went underground and 
Williams remained in the mine office with Fields.

     About 15 or 20 minutes after the inspectors had gone
into the mine, Mr. Fields went to the mine telephone, 
picked it up and, without saying anything to Williams, 
called into the mine and said "James, there are two 
federal inspectors in there.  Tell the men to watch out 
and be careful."  (Tr. 177.) On hanging up, Fields told 
Williams that he was afraid the men underground would not
see the inspectors and run over them with a shuttle car.

     As a result of this call, Inspector Williams issued
the citation in question.  It alleged a violation of 
Section 103(a) of the Act, 30 U.S.C.  813(a), and stated 
that: "Gary Fields - owner impeded a Saturation Spot 
Inspection (CAB) by calling underground on the mine phone 
notifying the miners [that] two Federal Inspectors [were] 
on their way inside, after being informed by Elmer Hall, 
Howard Williams and Ronald Honeycutt (federal inspectors) 
not to notify the miners underground of the inspectors' 
presence."  (Jt. Ex. 1.)
                     
     No smoking materials were found.  However, two 
citations for other violations were issued as a result of
the inspection.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

     Section 103(a) of the Act provides, as pertinent to 
this case, that:

          Authorized representatives of the Secretary . . .
     shall make frequent inspections and investigations in
     coal or other mines each year for the purpose of . . .
     (4) determining whether there is compliance with the
     mandatory health or safety standards or with any
     citation, order, or decision issued under this title or
     other requirements of this Act.  In carrying out the
     requirements of this subsection, no advance notice of
     an inspection shall be provided to any person . . . .
     In carrying out the requirements of clause[ ] . . .
     (4) of this subsection, the Secretary shall make
     inspections of each underground coal or other mine in
     its entirety at least four time a year . . . .  The
     Secretary shall develop guidelines for additional
     inspections of mines based on criteria including, but
     not limited to, the hazards found in mines subject to
     this Act, and his experience under this Act and other
     health and safety laws.  For the purpose of making any
     inspection or investigation under this Act, the
     Secretary . . . or any authorized representative of
     the Secretary . . . shall have a right of entry to, 
     upon, or through any coal or other mine.
           
     On reading this section of the Act, it is apparent 
that it does not explicitly prohibit impeding or
interfering with an inspection.  Nevertheless, it is 
evident from the legislative history that Congress 
intended this section to give "a broad right-of-entry to 
the Secretaries or their authorized representatives to 
make inspections and investigations of all mines under" the 
Act.  S. Rep. No. 95-181, 95th Cong., 1st Sess. 27 (1977), 
reprinted in Legislative History of the Federal Mine Safety 
and Health Act of 1977, at 615 (1978).

     While Section 108(a)(1)(B) of the Act, 30 U.S.C.
 818(a)(1)(B), provides that the Secretary may seek an
"injunction, restraining order, or any other appropriate 
order" from a United States district court whenever an 
operator or his agent "interferes with, hinders, or delays 
the Secretary or his authorized representative . . . in 
carrying out the provisions of this Act," it is generally 
accepted that such conduct is also forbidden by Section 
103(a).  Thus, one treatise states "[i]n addition to 
seeking injunctive relief, the Secretary of Labor may
issue citations for interference with the conduct of an
inspection."  1 Coal Law and Regulation  8.04 (1983).  See 
also "103(a) Denials of Entry" I MSHA Program Policy Manual
 103(a) (1988)[instructing inspectors to cite operators 
under Section 103(a) for being "threatened or harassed" 
while making an inspection].

     In Waukesha Lime and Stone Co., 3 FMSHRC 1702 (July 
1981), the Commission held that a refusal to permit an 
inspection violated Section 103(a) of the Act.  In so 
doing, it rejected the company's argument that injunctive
relief under Section 108(a)(1) provided the Secretary's 
sole remedy when an operator engaged in the activities set 
out in that section,[1] holding:

          First, notwithstanding the absence of express
     statutory language, it is illogical to assume that
     Congress intended to mandate inspections and a right 
     of entry for the Secretary's authorized representative
     pursuant to section 103(a), without viewing the
     operator's denial of entry as a dereliction of its 
     duty under the Act. . . .  Second, we reject the 
     contention that a section 108(a)(1) injunction is the 
     Secretary's sole remedy if an operator denies entry 
     to his authorized representative.  Rather, dual 
     remedies exist:  an administrative remedy under 
     sections 104 and 110(a), and a civil injunctive 
     remedy under section 108(a)(1).  We believe that if 
     Congress had intended injunctive relief to be the 
     exclusive remedy, it would have stated so
     unequivocally.

Id. at 1704.

     Subsequently, the Commission has continued to 
construe Section 103(a) broadly.  In United States Steel 
Corp., 6 FMSHRC 1423 (June 1984), the Commission held that 
the failure to provide an inspector transportation to the 
site of an accident prevented him from inspecting the 
scene and was, therefore, a violation of Section 103(a).  
Id. at 1431.  With more significance to this case, the 
Commission also held that the company's insistence on the
presence of a company attorney at an interview during the
investigation of the accident, without specifying when the
attorney would be present, combined with the failure to 
produce an attorney, "had the effect of unreasonably 
delaying the accident investigation" and that this delay 
"impeded" the investigation in violation of Section 103(a).  
Id. at 1433.

     In Calvin Black Enterprises, 7 FMSHRC 1151 (August 
1985), the Commission found that when inspectors were told 
that they were trespassing and needed written permission 
from the operator to inspect they were effectively 
prevented from entering the mine.  Stating that "MSHA 
inspectors are not required to force entry or to subject 
themselves to possible confrontation or physical harm in 
order to inspect," the Commission affirmed a violation of
Section 103(a).  Id. at 1157.

     In Sanger Rock & Sand, 11 FMSHRC 403 (Judge Cetti, 
March 1989), a Commission judge found a violation of 
Section 103(a) when the operator refused to cooperate in 
an inspection by delaying in furnishing records the 
inspector needed to see and by calling the inspector a 
"liar."  Just recently, another Commission judge concluded,
in another case involving an inspection for smoking
materials, that calling into the mine after being 
instructed not to by MSHA inspectors was a violation of 
Section 103(a).  Cougar Coal Co., 17 FMSHRC 628 (Judge 
Amchan, April 1995).

     Based on the legislative history and the case law, I
conclude that the "broad right-of-entry" in Section 103(a)
includes a prohibition against the operator impeding or
interfering with the inspection.  Consequently, I conclude 
that the citation in this case describes a violation of 
the Act.

     Turning to the facts in this case, I find that Mr. 
Fields obstructed the inspection.  As he admitted, he 
"thought [Hall] was just going in there and just sneak up
on them [the miners underground] and just see what he 
could catch them doing." (Tr. 196-97.)  He further 
admitted that he understood that the inspectors did not 
want him to call underground and let his men know that the 
inspectors were coming into the mine.  (Id.) Knowing this, 
and without further questioning the inspectors or 
explaining to them any concerns he might have had about 
this plan, he proceeded to call into the mine and alert 
his men that "two federal inspectors" were coming into 
the mine.  (Tr. 177.)

     Fields claim that the call was made purely for safety
reasons is not accepted.  He did not express any such 
safety concerns when the inspectors initially explained to 
him what they wanted to do.  He did not express any safety 
concerns to Inspector Williams when he decided to make the 
call.  It appears that his concern for safety was an 
attempt to rationalize the call after he made it.  
Furthermore, if he was only concerned that the inspectors 
not be run over, he did not have to identify the people 
entering the mine as "federal inspectors."  Finally, he
stated at the hearing that when he called into the mine, 
he "figured they were there," that is, that the inspectors 
were already on the section.  (Tr. 199.)  If he believed 
that, the safety claim makes no sense, since the miners 
would presumably have already observed the inspectors.

     Based on this evidence, I conclude that Mr. Fields 
impeded the inspection.  Accordingly, I conclude that 
Topper Coal violated Section 103(a) of the Act as 
alleged.[2]

     Significant and Substantial

     The violation in this case was declared to be 
"significant and substantial."  A "significant and 
substantial" (S&S) violation is described in Section 
104(d)(1) of the Act, 30 U.S.C.  814(d)(1), 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 (January 1984), the
Commission set out four criteria that have to be met before
a violation can be found to be S&S.  The criteria are:  (1)
violation of a mandatory safety standard; (2) contribution
to a  safety hazard by the violation; (3) a reasonable
likelihood that the hazard will result in an injury; and 
(4) a reasonable likelihood that the injury will be of a
reasonably serious nature.  Id. at 3-4.  See also 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).

     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).

     Rather than address this violation in terms of the 
Mathies criteria, the Secretary states that:

          It is the Secretary's position that where the
     operator denies or otherwise interferes with the
     Secretary's right of entry under section 103(a) of the
     Act, this violation should be presumed to be
     significant and substantial.  The Secretary's right 
     of entry is the mechanism by which the entire Act is
     enforced.  If the Secretary is denied entry, directly
     or indirectly, he is unable to determine the number 
     and the type of violative conditions which pose 
     serious hazards to miners working underground and to 
     ensure that these hazards are eliminated.

Sec. Br. at 10.

     The Respondent, apparently following Mathies, argues 
that the violation is not "significant and substantial" 
because no smoking materials were found during the 
inspection and the mine does not have a history of methane 
liberation, "so there is no way that an explosion could 
have been reasonable likely to have occurred as a result 
of this violation."  Resp. Br. at ll.  The company also 
points out that when the inspector issued the citation 
in this case, he found that the violation was not
"significant and substantial."

     The problem with trying to assess this violation under 
the traditional criteria is that there is no way of knowing
what the inspectors would have found if the miners had not 
been alerted to their presence.  Since neither Mr. Fields 
nor the miners were aware of the specific purpose of the 
inspection, the fact that no smoking materials were found 
does not necessarily indicate that those miners who did 
have smoking materials somehow disposed of them.  On the 
other hand, the logical consequence of warning underground 
miners that inspectors are on their way underground would 
be for the miners to attempt to cover-up, dispose of, or
even correct any violations of which they are aware.

     Although there is no evidence that that happened in 
this case, there is also no evidence that violations were 
not covered-up.  Generally speaking, I find that when an 
inspection is interfered with in this manner, it is 
reasonably likely that an S&S violation would have been 
discovered.  Therefore, I conclude that when an inspection
is impeded there is a presumption that the violation is S&S.

     In this case, the Respondent has not presented any 
evidence that would rebut such a presumption.  Accordingly, 
I find that the violation of Section 103(a) was 
"significant and substantial."

                         Degree of Negligence

     A week after the citation was issued in this case, the
degree of negligence was modified from "moderate" to 
"reckless disregard."  Moderate negligence is defined in 
the Regulations as:  "The operator knew or should have 
known of the violative condition or practice, but there 
are mitigating circumstances." 30 C.F.R.  100.3(d)(Table 
VIII).  Reckless disregard is defined as:  "The operator 
displayed conduct which exhibits the absence of the 
slightest degree of care."  Id.  Reckless disregard is
also the type of conduct which characterizes a finding of
"unwarrantable failure" under Section 104(d)(1) of the 
Act, 30 U.S.C.  814(d)(1).[3]  Wyoming Fuel Co., 
16 FMSHRC 1618, 1627 (August 1994); Rochester & Pittsburgh 
Coal Corp., 13 FMSHRC 189, 193-94 (February 1991); Emery 
Mining Corp., 9 FMSHRC 1997, 2003-04 (December 1987).

     The Secretary argues that Mr. Fields actions 
constituted reckless disregard because he "deliberately 
disregarded the inspectors' instructions and telephoned 
underground personnel to warn them that inspectors were 
traveling to the section."  Sec. Br. at 11.  It is the 
Respondent's position that this conduct "did not 
constitute reckless disregard since the operator did not
even know the purpose of this investigation prior to 
phoning underground."  Resp. Br. at 11.

     The fact that Mr. Fields did not know the specific 
purpose of the inspection does not reduce the degree of 
negligence in view of the fact that he did know that the 
inspectors did not want him to call into the mine and he 
understood their reason for directing him not to do so.  
However, the evidence does not support a finding that he 
exhibited a total absence of care. His concern for safety, 
even if expressed only in a last minute attempt to 
justify his actions, removes his conduct from the reckless
disregard definition.

     Fields' conduct is better described as that he knew 
of the violative condition or practice and there are no 
mitigating circumstances, which happens to be the 
definition of "high" negligence in the Regulations.  
30 C.F.R.  100.3(d)(Table VIII). This finding is also 
consistent with the Secretary's modification of the 
citation from one under Section 104(d)(1) to one under to
one under Section 104(a).  Consequently, I conclude that
the degree of negligence for this violation was "high" 
rather than "reckless disregard" and will modify the 
citation accordingly.

                     CIVIL PENALTY ASSESSMENT

     The Secretary has proposed a civil penalty of 
$8,500.00 for this violation.  The Respondent argues that 
if it did violate the Act, a penalty of $250.00 is 
appropriate.  It is the judge's independent responsibility 
to determine the appropriate amount of penalty, in 
accordance with the six criteria set out in Section
110(i) of the Act, 30 U.S.C.  820(i).  Sellersburg Stone 
Co. v. Federal Mine Safety and Health Review Commission,
736 F.2d 1147, 1151 (7th Cir. 1984).

     A computer printout of Topper Coal's violation 
history indicates that it was assessed 141 penalties in 
the two years preceding this violation, 115 of which were
S&S.  (Govt. Ex. 1.) Although the allied papers indicate 
that this is a small company (135,401 production tons per 
year) and a small mine (29,716 production tons per year), 
it cannot be said that this company's violation history 
warrants increasing the penalty.

     The parties have stipulated that "[p]ayment of a 
reasonable penalty will not have an adverse effect on the 
ability of the operator to continue in business."  
(Jt. Ex. 2.)  Since the proposed penalty was $8,500.00 
when this stipulation was entered into, I conclude that a
penalty of that amount is considered reasonable and will 
not have an adverse effect on the company's ability to 
continue operating.

     Once committed, this violation could not be abated.  
I note, however, that there is no evidence that the either 
the company or any of its personnel had interfered with 
inspections before or since this violation, nor had the 
company been cited for any smoking violations.  
(Govt. Ex. 1.)

     The gravity of this violation is very serious.  The
Secretary's right to inspect mines without obstruction or
interference goes to the heart of the Mine Act and such 
actions cannot be permitted.  Furthermore, the Respondent 
was highly negligent in this case and there are no factors 
which mitigate Mr. Fields' conduct.

     Accordingly, taking all of this into consideration,
including the reduction in the company's degree of 
negligence, I conclude that a penalty of $5,000.00 is 
appropriate for this violation and a company the size of 
Topper Coal.

                              ORDER

     Citation No. 4243301 is MODIFIED to reduce the level 
of negligence from "reckless disregard" to "high" and 
AFFIRMED as modified.  Topper Coal Company, Inc. is 
ORDERED to pay a civil penalty of $5,000.00 within 30 days 
of the date of this decision. On receipt of payment, this 
proceeding is DISMISSED.


                                 T. Todd Hodgdon
                                 Administrative Law Judge


Distribution:

Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, 
P.S.C., 415 Second Street, P.O. Box 351, Pikeville, KY  
41502 (Certified Mail)

Susan E. Foster, Esq., Office of the Solicitor, Department 
of Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, 
TN 37215-2862 (Certified Mail)

/lbk


**FOOTNOTES**

     [1]: Section 108(a)(1) provides:

          The Secretary may institute a civil action for
     relief, including a permanent or temporary injunction,
     restraining order, or any other appropriate order in
     the district court of the United States for the 
     district in which a coal or other mine is located or 
     in which the operator of such mine has his principal
     office, whenever such operator or his agent--
               (A)   violates  or fails or refuses to
          comply with any order or decision issued under 
          this Act,
               (B)  interferes with, hinders, or delays 
          the Secretary or his authorized representative  
          .  . . in carrying out the provisions of this 
          Act,
               (C)  refuses to admit such representatives 
          to the coal or other mine,
               (D)  refuses to permit the inspection of 
          the coal or other mine, or the investigation of
          an accident or occupational disease occurring 
          in, or connected with, such mine, (E) refuses 
          to furnish any information or report requested
          by the Secretary  .  .  .  in furtherance of the
          provisions of this Act, or (F) refuses to permit 
          access to, and copying of, such records as the
          Secretary  .  .  . determines necessary in 
          carrying out the provisions of this Act.

     [2]: Respondent's arguments that the inspection was
     not conducted "within reasonable limits and in 
     reasonable manner," Resp. Br. at 9-10, has been 
     considered and rejected as unpersuasive.

     [3]: Curiously, while the citation was modified from
     alleging a violation under Section 104(a), 30 U.S.C.
      814(a), to allege an "unwarrantable failure" under  
     Section 104(d)(1) when the degree of negligence was 
     modified, it was subsequently modified again back to
     a Section 104(a) violation.