.
WINDSOR COAL COMPANY
October 20, 1997
WEVA 97-34


       FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                         October 20, 1997

SECRETARY OF LABOR,             :    CIVIL PENALTY PROCEEDING
      MINE SAFETY AND HEALTH    :
      ADMINISTRATION (MSHA),    :    Docket No.  WEVA 97-34
               Petitioner       :    A. C. No.  46-01286-03969
          v.                    :
                                :    Windsor Mine
WINDSOR COAL COMPANY,           :
               Respondent       :

                             DECISION

Appearances: Alan Paez, Esq. Office of the Solicitor, U. S.
             Department of Labor, Arlington, Virginia; 
             William Hulvey, Conference and Litigation
             Representative, Mine  Safety and Health
             Administration; Barbourville, Kentucky, for 
             the Secretary;
             David M. Cohen, Esq., American Electric Power,
             Lancaster, Ohio, for Respondent.

Before: Judge Fauver

     This is a civil penalty action under section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C.
 801et seq., involving a section 104(d)(1) citation.[1]

     Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the Findings of Fact and
further findings in the Discussion below:

                         FINDINGS OF FACT

      1.  Citation No. 4179895 was issued on June 21, 1996, by
MSHA Inspector Ronald G. Taylor, alleging a significant and
substantial (S&S) violation of 30 C.F.R.  75.400 due to an
unwarrantable failure to comply.

      2.  Inspector Taylor observed extensive accumulations of
loose coal and coal dust along the No. 9 conveyor belt, varying
from a few inches deep to as much as 54 inches deep and spread
out along the length of the No. 9 conveyor belt, which
approximately 3,000 feet long.

      3.  Tom Kacsmer, who was the UMWA escort, accompanied
Inspector Taylor on his inspection of the No. 9 belt and also
observed extensive accumulations of loose coal and coal dust
along both sides of the belt with coal piled up under the bottom
rollers.  In some areas Mr. Kacsmar observed bottom rollers
running in loose coal, stuck rollers and places where the belt
was turning in loose coal.  He noted that the belt was running in
dry, loose coal.

      4.  Inspector Taylor measured the accumulations with a 16-
foot retractable metal tape measure.  He was also familiar with
the distance between the belt structures, which was ten feet.

      5.  The No. 10 belt head conveys coal to the No. 9 belt
tail, at Crosscut No. 227.  The coal proceeds to the No. 9 belt
head, at Crosscut 191, which feed the No. 8 belt tail, and belt
No. 8 takes the coal out of the mine.

      6.  Inspector Taylor found accumulations of loose coal and
coal dust on the No. 9 belt head up to Crosscut 206.  In places,
the accumulation was up to the bottom of the belt with rollers
turning in coal dust and loose coal.  At Crosscut 204 and 205,
Inspector Taylor observed an accumulation 50 feet long, with
rollers and the belt running in the accumulation.  In places, the
bottom of the belt was turning in or rubbing on the loose coal
and coal dust.  In some areas the coal was packed up around the
rollers.

      7.  From the beginning of the No. 9 belt, at Crosscut 191,
to about Crosscut 194, the accumulations were dry.  The remaining
accumulations varied from wet to damp to dry.

      8.  At the tail of the No. 9 belt, Inspector Taylor
observed the deepest accumulation, which measured 54 inches deep,
12 feet long, and 75 inches wide and was higher than the belt.
The loose coal and coal dust had "humped up" and pushed the belt
up.

      9.  At Crosscut 201, Inspector Taylor observed a bottom
roller that was hot to the touch because the bearing was
defective.  There was loose coal and coal dust under that area.

     10.  Inspector Taylor observed no methane along the No. 9
belt at the time of the inspection.  However, Windsor Mine
liberated about 50,000 cubic feet of methane in a
24-hour period, subjecting the company to 15-day spot methane
checks under the Mine Act.

     11.  Inspector Taylor issued 11 citations charging a
violation of section 75.400 at the Windsor Mine between April 12
and June 5, 1996.  After the issuance of each citation, Inspector
Taylor discussed with mine management the problem of
accumulations and the need to maintain the belts free of loose
coal and coal dust.



     12.  Wayne Porter, the belt coordinator, was aware that
there were major spillage problems with the No. 9 belt prior
to the issuance of Citation No. 4179895.  A few days before
the citation, Larry Moore observed the No. 9 belt fabric had
a center tear, about 150 feet long, and a second tear along
the side of the belt about 5 inches wide and 500 feet long,
that caused major spillages.

     13.  Mr. Moore observed the coal rolling off the belt, and
he could hear the coal pinging against the rollers as it
went down the belt line.  Mr. Moore informed Foreman Barton
of this problem and the foreman said he would take care of
it.

     14.  The next day, Mr. Moore was assigned to clean up the
tail area along the No. 9 belt.  He observed that the tear
down the middle had been repaired.  However, the
accumulations from the 500-foot tear on the side caused most
of the spillage and that tear had not been repaired.  When
he told another foreman, Bob Talbert, about the problem, Mr.
Talbert said he already knew about it.

     15.  Inspector Taylor and Tom Kacsmar, the UMWA escort, were
informed on June 21, 1996, by Wayne Porter, belt
coordinator, and Bob Talbert, foreman, that a piece of the
No. 9 belt fabric, 5 inches wide and 500 feet long, had
ripped the week before the inspection, causing spillage, and
the company was trying to get by until vacation.

     16.  Larry Moore was assigned to help clean up the
accumulations along the No. 9 belt to abate the violation
cited by Inspector Taylor.  Mr. Moore saw coal packed up
around the tail roller and belt, and he could not see the
bottom of the belt when he arrived on the scene at 3:20 a.m.
The tail piece was completely covered with coal from the
tail roller out to the crossover, which was about 25 feet
away.  Another miner who was helping to abate the violation
arrived and had done a lot of shoveling on the walk side
where he could still not see halfway up the frame of the
tailpiece because of accumulations.  On the side opposite
the walk side he could not see the tailpiece because of the
accumulation.  Mr. Moore observed float coal dust on the
belt structure and rails, and the accumulations he shoveled
were comprised of loose coal and fine coal that did not
contain big lumps.  Mr. Moore observed rock dust on the ribs
in the area around the tailpiece but saw no rock dust on the
floor of the tailpiece, which sat on a cement slab.  He
observed coal all over the cement slab area with no rock
dust underneath it, and he did not find any rock dust mixed
in with the coal accumulations that he shoveled.

     17.  In order to abate Citation No. 4179895, Mr. Moore
worked with another miner to shovel the areas on both sides
and under the tailpiece for 20 to 25 feet.  Mr. Moore came
onto the section at about 3:20 a.m., and worked with the
other miner until about 6:25 a.m., until the
25-foot area around the tailpiece was cleaned up.  Both men
took a 25 minute lunch break.

     18.  Mr. Moore was also assigned to clean the area around
Crosscuts 195 and 196 near the No. 9 head drive, to abate
the violation.  He and another miner came from the tailpiece
and began working there at about 6:40 a.m.  They worked with
three other miners who had been on
the site already, and the five of them worked until
7:30 a.m., when the next shift came to relieve them.  These
miners were directed by Mr. Porter to continue shoveling
further up the belt line since Mr. Moore and the crew had
nearly cleaned up the accumulations around Crosscut 195 and
196.  Mr. Moore observed that the accumulations he shoveled
in the area from Crosscut 192 (the drive) to Crosscut 196
were fairly dry.

     19.  At 10:22 a.m., on June 21, 1996, Inspector Taylor
terminated Citation No. 4179895 after the cited
accumulations were cleaned up.  It took eight or more men on
the midnight shift and ten or more men on the day shift to
clean up the accumulations and abate the violation.

          DISCUSSION WITH FURTHER FINDINGS, CONCLUSIONS

                   Violation of Section 75.400

     The evidence shows a violation of the safety standard
involved, which provides:

          Coal dust, including float coal dust deposited on
     rock-dusted surfaces, loose coal, and other combustible
     materials shall be cleaned up and not be permitted to
     accumulate in active workings, or on electric equipment
     therein.

     Respondent does not contest that section 75.400 was
violated, but contends that the Secretary failed to prove that
the violation was "significant and substantial" ("S&S") and due
to an "unwarrantable failure" to comply within the meaning of
section 104(d)(1) of the Act.

                   Significant and Substantial

     The Commission has held that a violation is S&S 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 (1981).
In Mathies Coal Company, the Commission delineated a four-prong
test for determining whether a violation is S&S:

          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.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984); see also Austin Power,
Inc. v. Secretary of Labor, 861 F.2d 99, 103-04 (5th Cir.1988)
(approving the Mathies test).


     Under the third element of the Mathies test, evaluation of
the likelihood of an injury is made assuming continued normal
mining operations.  (U. S. Steel Mining Co., Inc., 7 FMSHRC 1125,
1130 (1985)) and the relevant time frame includes both the time
that the violative condition existed prior to the citation and
the time that it would have existed if normal mining operations
had continued.  (Halfway, Inc., 8 FMSHRC 8, 12, (Jan 1986)).
"Reasonable likelihood" as used in the Mathies test does not mean
"a probability greater than 50 percent" or that the Secretary
must prove that it was "more probable than not" that the
violation would result in injury.  It simply means that the
violation was "reasonably likely" to result in injury.
U. S. Steel Mining Co., Inc., 18 FMSHRC 865 (1996).

     The extensive accumulations in this case presented discrete
safety hazards of causing a fire or propagating a fire.
Inspector Taylor observed stuck and broken rollers along the
No. 9 belt in the areas of the cited accumulations.  These could
reasonably act as ignition sources.  He also observed a hot
bottom belt roller with a missing bearing underneath the No. 9
conveyor belt in the area of the accumulations at Crosscut 201,
as noted in the body of Citation No. 4179895 and listed in
Citation No. 4179894.  Citation No. 4179894, issued by Inspector
Taylor on the same day, and not contested, indicates that
approximately 18 top and bottom rollers were either broken or
stuck along the No. 9 belt.  Other citations issued on the same
day by Inspector Taylor and not contested add to the hazards of
the loose coal and coal dust accumulations cited in Citation
No. 4179895.  (See Gov. Exhs. 2, 3, 4, 5, 6.)  The conditions
cited in Citation No. 4179893, issued that morning, increased the
hazard of a belt fire along the No. 9 belt because holes in five
permanent stoppings along the adjacent intake aircourse track
entry would allow smoke from a fire to travel to the other
sections.[2]

     The evidence amply supports Inspector Taylor's opinion that
in the event of a fire serious injury was likely due to
inhalation of smoke and fire contaminants, and possibly death due
to asphyxiation.  As the Court of Appeals for the Seventh Circuit
observed in considering a similar case:

          Nor was anything more than [the inspector's]
     opinion necessary to support the common sense
     conclusion that a fire burning in a coal mine would
     present a serious risk of smoke and gas inhalation to
     miners who are present.  Indeed, a brief review of the
     legislative history of the 1977 Act makes clear that
     fire is one of the primary safety concerns that has
     motivated federal regulation of the coal mining
     industry. [Citations omitted.]

Buck Creek Coal, Inc. v. Secretary of Labor, 52 F.3d 133, 135
(7th Cir. 1995)).


     I find that the violation was reasonably likely to result in
a fire or the propagation of a fire causing death or serious
injuries.   The violation was therefore S&S under the Mathies
test.

                      Unwarrantable Failure

     The Commission has held that a violation is "unwarrantable"
within the meaning of section 104(d)(1) of the Act if it is due
to "aggravated conduct" constituting more than ordinary
negligence.  Emory Mining Corp., 9 FMSHRC 1997, 2001-2004 (1987).
"Unwarrantable failure" is characterized by conduct such as
"reckless disregard," "intentional misconduct," "indifference,"
or "a serious lack of reasonable care."  Rochester & Pittsburgh
Coal Co., 13 FMSHRC 189, 194 (1991).

     In considering a violation of section 75.400, the
extensiveness and duration of the  combustible accumulations,
prior notices to the operator, and the operator's efforts to
clean up and prevent accumulations are all important factors in
determining whether the violation was due to an unwarrantable
failure to comply.  Jim Walter Resources, Inc., 19 FMSHRC 480,
485 (1997); and Doss Fork Coal Co., 18 FMSHRC 122, 125 (1996).

     The preshift reports revealed significant accumulations
along the No. 9 belt from June 13 until June 21, 1996 - the day
Inspector Taylor issued Citation No. 4179895.  The on-shift
records revealed that only some of the areas had been cleaned.
Inspector Taylor's visual inspection of the belt line on June 21,
1996, revealed significant accumulations along the No. 9 conveyor
belt, varying from a few inches deep to as much as 54 inches and
spread out along the length of the No. 9 belt.  The evidence
shows that Respondent failed to take adequate measures to clean
up and prevent the extensive and widespread combustible
materials, and that the violative accumulations existed for a
substantial period before the date of the citation.

     Mine management was well aware of the accumulations along
the No. 9 belt prior to the issuance of Citation No. 4179895.
Larry Moore was assigned to do clean up work along the No. 9 belt
on two occasions several days before Citation No. 4179895 was
issued.  On the first occasion, he observed that the
accumulations were extensive and widespread and that major
spillage problems were caused by two tears in the conveyor belt.
One tear was in the center of the belt.  The other tear, which
was much longer, was about 5 inches wide, 500 feet long, on one
side of the belt.  He reported the accumulations and belt tears
to a supervisor on his assignment to clean up accumulations;
second, before the date of the citation, Mr. Moore observed that
the center tear had been repaired, but the 500 foot tear had not
been repaired and that the accumulations were extensive and
widespread.  He reported these conditions to a supervisor, Bob
Talbert, but Respondent decided to delay repairing the belt until
the belt was shut down during the miners' 2-week vacations, which
was to begin July 1.

     When Inspector Taylor and Mr. Kacsmar met with Supervisor
Porter after the issuance of the citation, Mr. Porter told them
that a rip in the belt fabric about 5 inches wide, 500 feet long
caused excessive spillage of loose coal, but that the company was
trying to "get by" until the belt would be shut down for repairs
during the upcoming vacation period.  Thus, even after its own
employee, Larry Moore observed the excessive accumulations and
belt problems on two separate shifts a few days before the
issuance of Citation No. 4179895, and reported the conditions to
two supervisors, Respondent failed to take the necessary measures
to clean up the violative accumulations and prevent further
accumulations.  See:  Quinland Coals, Inc., 10 FMSHRC 705, 709
(1988) (unwarrantable failure where violative conditions were
obvious and extensive, and operator had knowledge of conditions
and history of similar conditions); and Peabody Coal Co.,
14 FMSHRC 1258, 1262-1263 (1992) (unwarrantable failure where the
violative accumulations were "obvious" and "extensive").  The
detailed description of the coal dust and loose coal
accumulations in the body of the citation, in Inspector Taylor's
notes, and in the testimony of Inspector Taylor and other
government witness establishes that these were extensive and
obvious accumulations.  Indeed, the accumulations observed by
Inspector Taylor at the tailpiece alone (70 inches wide, 12 feet,
6 inches long, and 45 inches deep) are similar to the
accumulations in Jim Walter Resources, Inc., 19 FMSHRC 480, 487-
88 (1997), where the Commission reversed an administrative law
judge's finding of no unwarrantable failure concerning an
accumulation 20 feet by 15 feet and nearly 4 feet deep, which the
Commission observed to be both substantial and extensive.

     In addition, before the instant citation was issued,
Respondent assigned only one miner (Larry Moore) to clean up
around the No. 9 tailpiece and he had to cover several other
belts as well.  The efforts of this one person could be nothing
more than an empty gesture in light of the major accumulations at
the tailpiece and the number of man-hours actually required for
abatement of the violative accumulations.  See: Peabody Coal Co.,
14 FMSHRC at 1262.

     I find that Respondent's violation of section 75.400 was due
to aggravated conduct beyond ordinary negligence.  It was
therefore an "unwarrantable" violation within the meaning of the
Act.

                      Civil Penalty Criteria

     Under section 110(i) of the Act, the Commission and its
judges assess all civil penalties under the Act.  The Commission
or judge is not bound by the penalty proposed by the Secretary.
Penalties are assessed de novo based upon the six criteria
provided in section 110(i).[3]  Secretary of Labor v. Sellersburg
Stone Co., 5 FMSHRC 287 (1983), aff'd Sellersburg Stone Co. v.
FMSHRC, 736 f.d 1147 (7th Cir. 1984).

     The purpose of civil penalties is to deter violations of
the Act and safety and health standards.  To be successful in
inducing effective and meaningful compliance, "a penalty
should be of an amount which is sufficient to make it more
economical for an operator to comply with the Act's
requirements than it is to pay the penalties assessed and
continue to operate while not in compliance."
S. Rep. No. 181, 95th Cong., 1st Sess. 40-41 (1977),
reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong. 2d Sess., Legislative History of
the Federal Mine Safety and Health Act of 1977, at 628-29
(1978).

                       Size of the Operator

     Respondent is a large operator.

                      History of Violations

     In the 24-month period before the inspection, Respondent's
overall history of violations was moderate.  However, its
history of violations of 30 C.F.R.  75.400 was poor.

                             Gravity

     The gravity of the violation was very serious.  The
violation was S&S within the meaning of the Act.

                       Good Faith Abatement

     After the citation was issued, Respondent made a good faith
effort to achieve rapid compliance.

                 Ability to Continue in Business

     Payment of the penalty assessed will not adversely affect
Respondent's ability to continue in business.

                            Negligence

     The evidence shows that the violation was due to a high
degree of negligence and an unwarrantable failure to comply.

                      Assessment of Penalty

     The Secretary submits that her proposed penalty of $1,200 is
inadequate to effectuate the intent and purpose of the Act
with respect to the last factor discussed, negligence.  The
Secretary points out that, prior to the issuance of Citation
No. 4179895, Inspector Taylor spoke to mine management not
once but nearly a dozen times about the need to clean up
accumulations around the mine's conveyor belts.  This last fact,
which would not have been known to MSHA's assessments office when
it was proposing a penalty, is a factor that must be taken into
consideration in assessing a penalty.

     Respondent clearly was on notice about the problem but chose
to ignore the accumulations and treat the violation as part
of the cost of doing business.  As shown in the Findings of
Fact, above, Respondent chose to delay belt repairs and
clean up work necessary to abate the violation until the
vacation period began, i.e., when production of coal would
cease.  This calculated business decision demonstrates
aggravated conduct far beyond ordinary negligence.
Negligence was high and the violation was "unwarrantable"
within the meaning of the Act.

     The record shows that section 75.400 violations began rising
well before the issuance of Citation No. 4179895, nearly
doubling from the 2nd to 3rd quarter of Fiscal Year 1995.
Furthermore, all 11 of the recent section 75.400 citations
were for coal dust and float dust accumulations along belt
lines (Gov. Exh. Nos. 9-19), and 2 of the 11 were for
violations specifically along the No. 9 belt
(Gov. Exh. Nos. 13, 14).

     Exhibit R-17 shows that three other section 104(d)(1)
citations (unwarrantable violations) were issued to Windsor
Coal Company in the last 24 months for section 75.400
violations.  Two were assessed at $2,000 and one at $1,500.
The proposed penalty of $1,200 for the instant
section 104(d)(1) citation is low and out of line with the
others when all the relevant factors of this case are taken
into consideration, especially where the inspector
repeatedly spoke to mine management about the need to
prevent belt accumulations and management decided to
continue using the defective belt and not abate the instant
violation until an upcoming vacation period, when production
would cease.

     Based upon the six statutory criteria, I find that a civil
penalty of $4,000 is appropriate for the violation found
above.

                        CONCLUSIONS OF LAW

     1.  Respondent's Windsor Mine is subject to the Act.

     2.  Respondent violated 30 C.F.R.  75.400 as alleged in
Citation No. 4176895.


**FOOTNOTES**

     [1]: Section 104(d)1) Citation No. 4179895 was originally
issued as a section 104(d)(1) order.  The Mine Act provides for
increasingly severe enforcement sanctions under section 104(d) of
the Act so that some violations hinge on the issuance of a prior
citation.  In this case, the section 104(d)(1) citation on which
Order No. 4179895 was based subsequently was reduced to a section
104(a) citation.  This had the effect of changing Order No.
4179895 to a section 104(d)(1) citation.

     [2]: Although Inspector Taylor did not detect methane during
his inspection of the No. 9 belt, he testified that methane
emitted at the Windsor Mine was 521, 562 cubic feet per 24-hour
period for the 3rd Quarter of FY 1996, and this placed the
company on 15-day methane spot checks, pursuant to section 103(i)
of the Act.

     [3]: Section 110(i) provides: "The Commission shall have
authority to assess all civil penalties provided in this Act.  In
assessing civil monetary penalties, the Commission shall consider
the operator's history of previous violations, the
appropriateness of such penalty to the size of the business of
the operator charged, whether the operator was negligent, the
effect on the operator's ability to continue in business, the
gravity of the violation, and the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.  In proposing civil penalties under
this Act, the Secretary may rely upon a summary review of the
information available to him and shall not be required to make
findings of fact concerning the above factors."

                              ORDER

     WHEREFORE IT IS ORDERED that:

     1.  Citation No. 4179895 is AFFIRMED.

     2.  Respondent shall pay a civil penalty of $4,000 within 30
days of the date of this Decision.


                                William Fauver
                                Administrative Law Judge


Distribution:

Alan G. Paez, Esq., Office of the Solicitor, U. S. Department of
Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)

David M. Cohen, Esq., American Electric Power, Service
Corporation, Fuel Supply Department, One Memorial Drive,
P. O. Box 700, Lancaster, OH 43130-0700 (Certified Mail)

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