<DOC>
[DOCID: f:kt2000188.wais]

 
PREMIER ELKHORN COAL CO.
KENT 2000-188
March 16, 2001


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                         March 16, 2001


SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
     MINE SAFETY AND HEALTH     :
     ADMINISTRATION (MSHA),     : Docket No. KENT 2000-188
               Petitioner       : A.C. No. 15-17360-03523
          v.                    :
                                :
PREMIER ELKHORN COAL CO.,       :
               Respondent       : PE Southern Pike County


                            DECISION

Appearances: Mary Sue Taylor, Esq., Office of the Solicitor,
             U.S. Department of Labor, Nashville, Tennessee,
             for the Petitioner;
             Billy R. Sheldon, Esq., Baird, Baird, Baird &
             Jones, Lexington, Kentucky for the Respondent.

Before: Judge Weisberger

     This case is before me based upon a Petition for Assessment
of Civil Penalty filed by the Secretary of Labor (Secretary)
alleging violations by Premier Elkhorn Coal Company (Premier) of
various mandatory safety standards set forth in Title 30 of the
Code of Federal Regulations.  Pursuant to notice, a hearing was
held in Louisa, Kentucky on December 13, 2000.  On February 20,
2001, the parties filed post hearing briefs.  On March 1, 2001,
Premier filed a reply brief.

     Findings of Fact

     1.   Introduction

     Nicholas Rasnick, an MSHA electrical inspector, testified
that on January 24, 2000, he traveled along a roadway, that
commenced at its intersection with highway Ky 3414, and extended
until it intersected with another road known as the Green Road.
According to Rasnick, the initial section of the road, from its
intersection with Ky 3414 until the entrance to the Garrett Mine,
a distance of approximately 1-1/2 miles, was covered with snow
and ice, and was very slick.  He issued a citation alleging a
significant and substantial violation of 30 C.F.R. Section
77.205(d) which provides as follows: "[r]egularly used travelways
shall be sanded, salted, or cleared of snow and ice as soon as
practicable."

     Premier does not contest the observations of Rasnick
regarding the conditions of the surface of the travelway. It is,
in essence ,the position of Premier that it was improperly cited,
as its employees did not contribute to the violation, nor were
they exposed to its hazards.  In contrast, in essence, the
Secretary argues that the cited travelway was owned by Premier,
and under its control.

      2.  Premier was Properly Cited

     Section 104(a) of the Federal Mine Safety and Health Act of
1977 ("the Act"), 30 U.S.C. Section 814(a) provides that if upon
inspection of a mine, the Secretary identifies a violation of the
Act or of a health or safety standard promulgated under it, he is
required to issue a citation "to the operator," (Emphasis added.)
The Act defines the term "operator" as "any owner, lessee, or
other person who operates, controls, or supervises a ... mine ...
."  30 U.S.C. Section 802(d).  Section 3h(1) of the Act defines a
mine as follows: ... "(A) an area of land from which minerals are
extracted ... (B) private ways and roads appurtenant to such
area, ... ."

     As stipulated to by the parties, Premier is an operator
subject to the jurisdiction of the Act, and has a valid MSHA mine
identification number for a coal pit, (job 21) located in part,
immediately adjacent to the roadway at issue which was included
within Premier's surface mining permit.[1]  Also, one of Premier
settling ponds is located adjacent to the travelway.  It thus is
clear that the cited travelway is appurtenant to areas considered
mines, and thus it fits within the definition of a mine set forth
in Section 3H(1) of the Act, supra.

     Premier argues, in essence, that it was an abuse of
discretion for the Secretary to have cited it since (1) their
employees did not cause or contribute to the violation, (2) their
employees were not exposed to the hazards sited in the violation,
(3) independent contractor were contractually obligated to
maintain the cited road, (4) Premier had not performed
maintenance on the road for two years and, (5) Premier provided
alternate access to the contractor's mines by way of a road it
maintained.[2]

     I have considered Premier assertions, but find, assuming
these assertions are factually correct, that there is not any
binding authority mandating a decision that the Secretary abused
her discretion in citing Premier given these condition.

     It is clear that the Secretary has "broad discretion" to
cite either the operator or the independent contractor for
violations committed at a mine (see, W. P. Coal Co., 16 FMSHRC
1407, at 1411 (July 1994)).  In evaluating whether the Secretary
abused her discretion in citing Premier, as an operator, I place
most weight upon evidence in the record of Premier's involvement
with the cited road, which is appurtenant to its pit and pond.

     John David Blankenship, the director of safety and
environmental affairs for TECO Coal Corporation, Premier's
parent, testified that No Trespassing and Permit signs located on
the road on question contain Premier's name, phone number,
address and permit number.  Further, two years ago, when the job
21 site was active and producing coal, Premier maintained,
widened, and placed asphalt on the road in question.  On the date
cited, Premier was not longer removing coal from the pit at job
21, and had notified MSHA that it was abandoning the pit.
However, when reclamation is required at that site it is
performed by Premier's employees.  In such an event, its
certified personnel ensure that proper inspections are performed,
and that the site is safe for employees.  Further, once a
quarter, Premier's employees access the pond appurtenant to the
cited road to obtain samples.

     I note the testimony of Blankenship that Premier entered
into contracts with two non-related mines in the area, Garrett
Mine and Ember Mining Company, who deliver their coal to
Premier's preparation plant, requiring these corporations to
clean and maintain the roads at issue.[3]  The contractual
obligation of these corporations are best evidenced by the
specific language in the contracts.  Neither of these contracts
were proffered in evidence.  Also, it is clear that an operator
may not be relieved of its obligations under the Mine Act and
regulations promulgated thereunder by virtue of any contract.

     It also appears to be Premier's position that the regular
means of access to job 21 is by way of approaching it by the road
at issue from the opposition direction, thus avoiding the
specific area cited.  However, it is clear that the road which
intersects with road KY 3414, provides access from that road to
the pond, as well as to job 21.

     Within the above context, I conclude that it has not been
established that it was an abuse of discretion for the Secretary
to cite Premier.  I also find that since Premier did not rebut or
impeach the inspector's testimony regarding the condition of the
road, it has been established that the road had not been sanded
or cleared of snow and ice.  Further, the record establishes that
on the date cited the road was open to traffic, as it was not
blocked by signs or any physical barrier.  Also, Premier did not
rebut or contradict the inspector's testimony that snow had
fallen the day before his inspection, and on the date of
inspection he had observed car tracks in the snow on the roadway.
I thus find that the road was regularly used.  I conclude that it
has been established that Premier did violate Section 77.205
supra.

           2.  Significant and Substantial

     A "significant and substantial" violation is described in
section 104(d)(1) of the Mine Act 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."
30 U.S.C.  814(d)(l).  A violation is properly designated
significant and substantial "if based upon the particular facts
surrounding the 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 825 (April 1981).

     In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:

          In order to establish that a violation of a
     mandatory safety standard is significant and
     substantial under National Gypsum the Secretary of
     Labor 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.

     In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129 (August 1985), the Commission stated further as follows:

     We have explained further that 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 (August
     1984).  We have emphasized that, in accordance with the
     language of section 104(d)(1), it is the contribution
     of a violation to the cause and effect of a hazard that
     must be significant and substantial.  U. S. Steel
     Mining Company, Inc., 6 FMSHRC 1866, 1868 (August
     1984); U. S. Steel Mining Company, Inc., 6 FMSHRC 1573,
     1574-75 (July 1984).


     According to the inspector, the violation was significant
and substantial.  Premier did not rebut or contradict the
inspector's testimony that the roadway was not straight, that
portions of it were at an incline, that it was covered with ice
and snow, and was "very slick", that he observed tire tracks at a
right angle to the road and debris in a ditch, and that portions
of the road were wide enough to accompany vehicles traveling in
opposite directions.  He opined that due to the road conditions
and the presence of ice and snow, an accident was reasonably
likely to have occurred involving a collision between two cars or
one car going off the embankment, causing injuries.  Within the
context of this record, and considering the specific nature of
the cited conditions, I conclude that it has been established
that the existent conditions satisfy the requirements set forth
in Mathis supra.  Accordingly, I find that the violation was
significant and substantial.

           3.  Penalty

     I find that the level of gravity of this violation was
relatively high.  I have considered Premier's claim that the
roadway was a county road, but find that it did not adduce any
evidence of sufficient probative value to establish ownership of
the road by the county and the county's responsibility to clear
the road.  However, the level of Premier's negligence is
mitigated by the following, there is no evidence as to how long
the hazardous ice and snow on the road had been in existence;
there is no evidence that Premier had notice of these conditions
prior to the inspection; there is no evidence regarding the last
time, prior to the inspection, that Premier's employees were at
the site; that Premier had notified MSHA that job 21 was
abandoned; and that, according to Blankenship's uncontradicted
testimony, the only time Premier had been asked by MSHA to
perform on site inspections of the cited road was when it had
"people that are exposed" (Tr. 60). Taking into account the
remaining factors set forth in Section 110(i) of the Act I
conclude that a penalty of $150.00 is appropriate.

           4.  Citation Nos. 7366499 and 7366498

     At the commencement of the hearing the parties agreed that
should the decision relating to Citation No. 7366374 sustain the
position of the Secretary, then Premier would no longer contest
the remaining two citations, and would consent to a judgment in
favor of the Secretary regarding these two citations.  Based upon
this agreement , I find that citation Nos. 7366499 and 7366498
shall be affirmed, and that Premier pay a penalty of $55.00, as
assessed, for each of these violations.


     Order

     It is ORDERED that, within 30 days of this Decision, Premier
shall pay a total civil penalty of $260.00.


                              Avram Weisberger
                              Administrative Law Judge


Distribution List: (Certified Mail)

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215

Billy R. Sheldon, Esq., Baird, Baird, Baird & Jones , PSC, 841
Corporate Drive, Suite 101, Lexington, KY 40503

/sct


**FOOTNOTES**

     [1] The  pit,  formerly  had  been assigned mine ID. No. 15-
17360.   At the date cited there were  no  ongoing  coal  removal
operations  at  the  site.   When  employees  and  equipment from
Premier's  Burke Branch tipple, I.D. No. 15-16470, were  assigned
to job 21 site,  to  perform mine reclamation work, that site was
included under mine ID No. 15-16470.  On January 8, 1999, Premier
notified MSHA that it was abandoning pit 21.

     [2] Since Premier  sets  forth in its reply brief that it is
not asserting that it was improperly cited based on the fact that
the cited road was a county road, it is not necessary to evaluate
the evidence regarding whether,  in  fact  the  road  is a county
road.   In  this  connection  I  note  that  Premier's  witnesses
testified that the roadway is a county road.  However, no  weight
was  accorded  their testimony in the absence of a foundation  to
establish their  personal  knowledge  of this fact.  Premier also
relies  on a map, Premier Exhibit No. 5,  which  depicts  a  line
under which  contain  the  following  two  words  are  set  forth
"bucklick  fork",  which  according  to  the  testimony  of David
Wilder,  Premier's  manager  of safety and environmental affairs,
indicates the road at issue which  is  a  county  road.  There is
nothing  to indicate that this map is an official publication  of
Pike County.   Nor  is  there  any  legend on the map to indicate
whether the lines on the map are meant  to represent state roads,
county roads, or private thoroughfares.   The best evidence as to
whether  the  road  is  a  county  road,  are  official  records.
However, none were adduced by either party.

     [3] Inspector Resnick did not issue a citation  to  Ember or
Garrett because his primary concern was to get the road condition
corrected  as  soon  as  possible.   He felt that Premier had the
ability and equipment to clear the road.