<DOC>
[DOCID: f:p97-128.wais]
 
HOMER CITY COAL PROCESSING CORP.
February 11, 1998
PENN 97-128
         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                OFFICE OF ADMINISTRATIVE LAW JUDGES
                       2 SKYLINE, 10th FLOOR
                         5203 LEESBURG PIKE
                   FALLS CHURCH, VIRGINIA  22041
                        February 11, 1998
SECRETARY OF LABOR,             :   CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :   Docket No.  PENN 97-128
               Petitioner       :   A.C. No. 36-06475-03553
          v.                    :
                                :   Homer City Coal Processing Plant
HOMER CITY COAL PROCESSING      :
   CORP.,                       :
               Respondent       :
                             DECISION
Appearances:   Ronald M. Miller, Conference and Litigation
               Representative,
               U.S. Department of Labor, MSHA, Hunker,
               Pennsylvania for Petitioner;
               R. Henry Moore, Esq., Buchanan Ingersoll
               Professional Corporation, Pittsburgh, Pennsylvania
               for Respondent.
Before: Judge Weisberger:
     This case is before me based upon a petition for assessment
of penalty filed by the Secretary of Labor ("Secretary") alleging
a violation by Homer City Coal Processing Corp.,  ("Homer City")
of 30 C.F.R. Section 77.404(a).  Pursuant to notice, a hearing
was held in Johnstown, Pa., on November 13, 1997.  Each party
filed a brief on January 21, 1998.
                                I.
     Homer City operates the Homer City Coal Processing plant
located in Indiana County, Pa.  The plant processes coal for a
generating station.  Within the plant, coal is conveyed to
various points by conveyor belts.  A series V-shaped structures
("chairs") containing two-wing rollers, one located on the
walkway side of the belt and the other on the far side, and a
bottom roller, to support and guide the belt.
                               II.
     On November 13, 1996, John H. Kopsic, an MSHA coal mine
safety and health specialist, inspected the No. 5 conveyor belt
at the subject site.  He indicated that starting at the belt
tail, 16 of the first 23 chairs contained rollers that were
frozen or stuck.  He said that he observed a lot 
of material, most of it coal[1], on the rollers,
belt structures, frame, and under the belt.  He indicated that
the material was caked on some of the rollers.  According to
Kopsic, he observed flat spots on those rollers that were not
turning.  He indicated that the flat spots were created by the
belt rubbing on the rollers that did not turn.  According to
Kopsic, two rollers were warm to the touch.  One was under the
decant chute, and the other was approximately eight feet away
toward the head.  The belt was in contact with these warm
rollers, material was caked around them, and they were not
turning.  Kopsic indicated that he tested approximately a half
dozen wing-rollers on the walkway side and they would not turn.
According to Kopsic because rollers were not turning, when the
belt would slide over these rollers, it would create friction
which could lead to smoke.  He opined that employees working in
the upper floors of the plant could be overcome by the smoke.
     Kopsic issued a  104(a) citation alleging a violation of 30
C.F.R.  77.404(a) which provides as follows: "[m]obile and
stationary machinery and equipment shall be maintained in safe
operating condition and machinery or equipment in unsafe
condition shall be removed from service immediately."
                               III.
     David William Anderson, Homer City's health & safety
director and equipment supervisor, testified that he was with
Kopsic at the tail of the belt at approximately 7:50 a.m. on
November 13, and that the belt was in operation at that time.  He
said that he checked every wing-roller that was not turning, and
with the exception of two near the top, he was able to get the
rest to pivot with only "minimal force" (Tr. 138).  He indicated
that because the belt was not touching the rollers that did not
turn with the belt running, no friction was created.  He also
opined that the accumulations that were present were typical of
that belt, and did not present any hazards.  He indicated that he
did not see any flat spots on the rollers.
     A video of the cited area, was taken a few weeks after
November 13, 1996.  According to Anderson, the condition of the
cited area in the video is the same as seen by him on November 13
with the exception of two chairs that had been replaced the
Saturday after November 13.  The video indicates some rollers
that were not turning.  However, the moving belt was not in
contact with these, or other rollers.  He opined that there was
no danger of fire or smoke inasmuch as the belt was not in
contact with any of the rollers that were not turning on November
13.  Anderson also indicated that under normal operations the
belt does not touch the rollers.  He also noted the presence of a
fire hydrant and fire extinguishers in the areas.
     In the same fashion, Donald J. Farabaugh, the midnight shift
maintenance foreman who was present with Kopsic on November 13,
indicated that the belt was not running on the rollers.  He said
that he did not see any condition that led him to an opinion that
the belt was unsafe.
     Frank LoPresti, the shift foreman, indicated that on
November 13, Kopsic pointed out to him the rollers that were not
turning, and a "couple of little" flat spots (Tr. 224).  He
indicated that there was not anything that he thought was
significant.  LoPresti opined that in normal operation the belt
does not come in contact with the rollers due its curvature and
that it is normally approximately 18 inches above the rollers.
He indicated that based on his experience, the belt that he saw
on November 13 did not present a hazard.
                               IV.
     I accept the testimony of Homer City's witnesses that in
normal operations the belt does not touch the rollers and runs
above the rollers.  Also, I note Anderson's specific testimony
that, the morning the belt was cited, when he was not in the
presence of Kopsic, he noted rollers that were not turning with
the belt running, as they were located in areas where the belt
ran above the rollers.  Homer City refers to Anderson's testimony
that two of these rollers would not turn by hand, and argues that
since they were not in contact with the belt, no violation
existed.  I reject Homer City's argument and testimony for the
reasons that follow.
     I observed Kopsic's demeanor and found his testimony
credible that, as observed by him, on November 13 the belt was
riding on the flat spots of rollers, and was in contact with two
rollers.  Robert G. Nelson, a supervisor inspector who
accompanied Kopsic in his inspection of the belt at issue,
corroborated that "the belt was touching the rollers" (Tr. 120).
John Bencic, the union representative who accompanied Kopsic
indicated in response to a leading question that he observed
"rollers that were not turning that had the belt running over top
of the rollers that's in contact with these rollers that were not
running (sic)" (Tr. 92).  None of Homer City's witnesses were
with Kopsic at the time he made his observations, and thus could
not contradict his eyewitness testimony as to what he observed at
the time that he made his inspection.  Also, since Kopsic did not
point out the warm rollers to Homer City's agents, they could not
contradict his testimony that two rollers that he touched were
warm.  Further, although Anderson indicated that he did not see
any flat spots, LoPresti noted a couple of little spots.
Moreover, since Anderson conceded that Kopsic did not point out
flat spots to him, it was not possible for him to contradict
Kopsic's testimony regarding the specific flat spots that he had
observed.  Based on these reasons, and my observations of the
inspectors' demeanor, I accept their testimony regarding their
observations.  Based on the inspectors' testimony, I find that,
when cited, there was coal material on some rollers, that the
belt was in contact with rollers that were not turning, that some
rollers had flat spots, and two rollers were warm to the touch.
It now must be resolved whether these conditions constituted a
violation of Section 77.404(a) on the ground that the belt was
not longer "in safe operating condition"[2].
                                V.
     In Alabama By-Products Corporation, 4 FMHSRC 2128, 2129
(December 9, 1982), the Commission held that the following
standard is to be used in deciding whether equipment is in safe
or unsafe operating conditions[3], ". . . the alleged violative
condition is appropriately measured against the standard of
whether a reasonably prudent person familiar with the factual
circumstances surrounding the allegedly hazardous condition,
including any facts peculiar to the mining industry, would
recognize a hazard warranting corrective action within the
purview of the applicable regulation."  Essentially, according to
Kopsic, approximately 16 chairs contained rollers that were not
turning, and the belt was riding on rollers that had flat spots.
He opined, that due to the presence of coal material, this
condition presented a friction source as further indicated by the
presence of two warm rollers.  I conclude that a reasonably
prudent person, familiar with the violative conditions that I
have found, would recognize that the belt was in an unsafe
condition (See, Alabama By-Products, 4 FMSHRC supra).  As stated
by the Commission in Alabama By-Products, 4 FMSHRC supra, at
2131, as follows:
     The danger posed in underground coal mining by a
     friction source that will lead to a heat buildup in an
     area where coal accumulations could occur is obvious.
     Where such dangers are present due to defects in the
     operating condition of equipment, that equipment cannot
     be considered in safe operating condition.
     I take cognizance of Anderson's testimony regarding the
presence of extinguishers and fire hydrants in the area.  I also
note Kopsic's testimony that the area was very wet, and that he
did not observe any smoke, fire, or hot rollers, and that any
smoke produced by friction of the rollers of the belt can be seen
or smelled by miners who would then extinguish the fire with the
fire extinguishers and hoses in the area.  In this connection, I
note the Commission's discussion in Alabama By-Products, 4 FMSHRC
supra, at 2131, as follows:
     In light of the nature of the danger, the evidence
     relied upon by the operator concerning other conditions
     in the area, i.e., that the belt was wet and fire-
     resistant, the area was adequately rock-dusted and
     ventilated, and coal accumulations were not then
     present, is not controlling as to whether an unsafe
     condition existed.
     In the same fashion, I find that the lack of presence of
smoke, fire, or hot rollers, to be not controlling as to whether
an unsafe condition existed.
     For all the above reasons, I find that it has been
established that Homer City did violate Section 77.404(a), supra.
                               VI.
     According to Kopsic the violation was significant ans
substantial due to the presence of stuck rollers and flat spots,
and the amount of material on the stuck rollers, and on the belt
structures.
     A "significant and substantial" violation is described in
section 104(d)(1) of the Mine Act as a violation "of such nature
as could significant and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."  30
C.F.R.  814(d)(1).  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 822, 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 be 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, the Commission stated further as follows:
     We have explained further that the third element of the
     Mathies formula required that the Secretary establish
     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 continuation 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 Co., Inc., 6 FMSHRC 1573, 1754-75 (July
     1984).
     I note the presence of stuck rollers, flat spots, and two
warm rollers. However, aside from Kopsic's conclusion that there
was "a lot of material" on the rollers, belt structures, frames,
and under the belt, there is no evidence in the record to make a
specific finding of the amount of coal material present.  Also,
it would appear that in normal operations the belt is not in
contact with the rollers.  I thus find that the third element in
Mathies has not been established and that the violation is not
significant and substantial.
                               VII.
     Taking into account the presence of extinguishers and
hydrants in the area, as well as the fact that the area was wet,
and considering the fact that in normal operations the belt does
not come in contact with the rollers, I find that the gravity of
the violation herein was low.  It has been stipulated that the
level of Homer City's negligence was low.  Considering also the
history of violations as well as the good faith efforts expended
to abate the violation, I find that a penalty of $20 is
appropriate.
                              ORDER
     It is ordered that, within 30 days of this decision, Homer
City pay a civil penalty of $20.
                                Avram Weisberger
                                Administrative Law Judge
Distribution:
Ronald M. Miller, Conference and Litigation Representative, U.S.
Department of Labor, MSHA, RR 1,Box 736, Hunker, PA 15639
(Certified Mail)
R. Henry Moore, Esq., Buchanan  Ingersoll Professional
Corporation, One Oxford Centre, 301 Grant Street, 20th Floor,
Pittsburgh, PA 15219-1410
(Certified Mail)
/lt
**FOOTNOTES**
     [1]: He indicated that there could be other material mixed
in with it.
     [2]: Homer City argues that Section 77.404(e), supra, is
violated only if it is established that an operator does not
maintain the equipment in a safe operating condition and fails to
remove it     from service.  Based on Ambrosia Coal &
Construction Co., 18 FMSHRC 1552, 1556 (1996), I reject this
argument and find that, to prevail herein, the Secretary need
establish only the equipment was not maintained in safe operating
condition.
     [3]: Alabama By-Products supra involves 30 C.F.R 
75.1725(a) whose wording is the same as that set forth in Section
77.404(a) supra.