A judge has complied with a Federal Mine Safety and Health Review Commission order to reinstate the significant and substantial (S&S) designation on an MSHA violation, but has voiced disagreement with the Commission's remand order.

Administrative Law Judge (AU) David Barbour had held that Knox Creek: Coal Corp. violated MSHA's accumulations standard (75.400) when in late 2009 an inspector cited the operator after observing a conveyor belt turning in dry combustible coal fines, coal and float coal dust at the operator's mine in Virginia. But he disagreed with the inspector's characterization of the infraction as S&S that is, reasonably likely to lead to serious injury, and changed it to non-S&S instead.

He reasoned that there had been no coal production during the two days leading up to the inspection. As a result. there were no ignition sources present to create a fire and/or explosion hazard inside the mine, which is classified as gassy because it liberates large amounts of explosive methane. In addition, Barbour noted that the condition had been found on a pre-shift examination and that. because miners were en route to clean up the material at the time of the inspection, it would have been removed before long.

MSHA argued, and the commissioners agreed, that Barbour erred in assuming the accumulations would have been abated.  In the context of continued mining operations, the commissioners said, no miners were working to remove the accumulations when the inspector observed the violation.  Nor was there an order directing that production be halted until the accumulations were resolved, and no evidence that miners had made any efforts to abate the violation during the preceding maintenance shift, the Commission noted in a decision released in May.

In his Oct. 7 order restoring the S&S classification and the original $3,396 fine, Barbour interpreted the Commission's decision as instructing AUs to disregard evidence of whether accumulations would be abated as mining continued. Ina footnote, he added, "[i]n so doing, the Commission seems to endorse the use of different standards" regarding whether, in the course of continued mining operations, an accumulations violation is S&S.

Seeming to wam mine operators regarding future challenges to accumulations violations, the Judge wrote, "Because it [the Commission's decision] excludes from consideration evidence logically leading to the conclusion that as mining continues the violative accumulations be eliminated before harm is done, analysis of the S&S nature of a violation of section 75.400 as mining continues, can fairly be said to weigh heavily in favor of the Secretary:

The Commission also overturned non-S&S determinations Barbour had rendered for three other S&S citations against Knox Creek: involving alleged permissibility violations.  In restoring those citations as written, Barbour also accepted MSHA's proposed fines, which totaled $7,228. The commissioners split on a fifth S&S citation for a trailing cable violation Barbour had downgraded to non­ S&S. The majority accepted Barbour's decision, but Commissioners Robert Cohen, Jr. and Michael Young said they would have left the citation as written.