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[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.