39.       The take-up track existed in the escapeway since on or about January 6, 2009 when the regulator was created through February 12, 2009 when the subject citations were issued.

 

            40.       The pallet of crib ties existed in the escapeway since on or about January 6, 2009 when the regulator was created through February 12, 2009 when the subject citations were issued.

 

            41.       Mine Examiner Adams last conducted a weekly exam of the primary escapeway prior to the issuance of Cit. No. 8414211 on or about February 9, 2009.

 

            42.       The concrete blocks outby, pile of gob, take-up track, and pallet of crib ties were present in the primary escapeway at HG#4 since January 6, 2009 when the regulator was created through February 12, 2009 when the subject citations were issued.

 

            43.       Mine Examiner Dave Adams did, in fact, conduct weekly examinations for hazardous conditions at the primary escapeway at HG #4 from January 8, 2009 through February 12, 2009.

 

            44.       Mine Examiner Dave Adams did not note nay hazardous conditions in the weekly examination records for the primary escapeway at HG #4 during the period from January 8, 2009 through February 12, 2009.

 

            III.      Mach’s Case

 

            Essentially it is Mach’s position that HG #4 was not a working section when cited by Jones. According to Anthony Webb, Mach’s mine manager, HG # 4 was producing coal from January 9 through February 9, 2009. On February 9, 2001, HG # 4 was idled, and power was removed from the HG # 4 power center and the belt drive. The miners working on the section were assigned to provide assistance to a crew that was setting up a longwall section approximately one mile from HG # 4. Webb indicated that Mach intended that HG # 4 would remain idled for a minimum of approximately four weeks. Production was resumed at HG #4 about the first week of March 2009.

 

            Webb explained that before production could be resumed in the cited area, Mach had to return power to the belt drive, and make sure the area was safe. He indicated that on February 12, 2009, the crew working on moving the longwall would have used the Tailgate #1 escapeway, which was “a distinct separation” from the primary escapeway at HG #4. (Tr. 156) He opined that had there been an emergency on February 12, 2009, the men would not have traversed the cited area to get to the escapeway. Rather, “the lifeline directs them to the shortest distance to the capsule and the lifeline would prevent them from traveling towards Headgate 4 which would actually take them further away from the escape capsule.” (Tr. 159) Webb further stated that on the date cited, HG #4 did not have a designated working face, or a designated loading point.

 

            IV.      Discussion

 

                        Introduction

 

            Section 317(f) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 877(f), imposes a requirement of escapeways from each “working section.” Title 30, Code of Federal Regulations, reiterates this requirement (See 30 C.F.R. § 75.380(b)(1)), and requires further that the escapeways shall be maintained in a safe condition to always assure passage. (See 30 C.F.R. § 380(d)(1)).

 

            30 C.F.R. § 75.2 defines working section as follows: “all areas of the coal mine from the loading point of the section to and including the working faces.” Working face is defined as “any place in a coal mine in which work of extracting coal from its natural deposit in the earth is performed during the mining cycle.” Id.

 

            In BethEnergy Mines, Inc., 11 FMSHRC 1445 (1989), an issue before the Commission was whether the cited areas were “working sections,” and thus subject to the requirement of providing mandatory escapeways. The Commission set forth the following “chief” broad factors as being among those suggested by the record before it as bearing on whether an area of a mine is a “working section:” “the hazards associated with the work being done in the area (hazards); the geographical components of the area (location); the physical components of the area and their functional readiness (capability); and the development of the area with respect to the actual production (timeliness).” 11 FMSHRC at 1453.

 

            The Commission went on to elaborate as follows:

 

            For example, the hazards associated with the work being done in the area include the increased dangers associated with the ongoing activities in a section. As acknowledged by counsel for the Secretary at oral argument, the activities associated with reasonably imminent coal production introduce increased hazards to the particular area of the mine where production takes place. Oral Arg. Tr. at 12. It is the presence of the increased hazards to miners attendant to actual or reasonably close coal production that form a pragmatic basis for the two escapeways requirement of section 75.1704. It is then that methane is more likely to be released in larger quantities during extraction of coal at the face. Also at this time, there may be an increase in the generation of suspended coal dust, an increase in the possibility of sparking, and an increased possibility of exposure to unsupported roof. The geographical components of a working section, as delineated in section 75.2(g)(3), are the existence of an identifiable face from which coal is or will be extracted, as well as a section loading point. The physical components of an area and their functional readiness relate to the presence of those mechanical mining components integral to the method of extraction contemplated in the identified location. In this regard, the presence of a functioning power center, a functional loading point connected to the mine's main haulage system, and necessary roof support equipment (such as shields where longwall mining is involved) are appropriate indicators of a section s capability. On the other hand, the location of equipment that merely has to be trammed into position--such as a continuous mining machine, roof bolter or shuttle car--is not necessarily dispositive of the "capability" of a section to extract coal. Timeliness is linked to capability and refers to the imminence of production. We agree with the judge that while actual production is not necessary, the term "working section" is inextricably linked to the term "working face" and that term, we conclude, implies coal production that is reasonably close in time. Once production is reasonably close, mechanical and electrical problems that temporarily interrupt the otherwise established capability of a section to produce coal do not relieve the operator from compliance with the mandates of section 75.1704. Other relevant factors also include the status of the mine's operations at the time of the alleged violation and any evidence as to the operator's plan for establishing unobstructed escapeways prior to the start of production activities. See Oral Arg. Tr. at 23-24.

 

BethEnergy, 11 FMSHRC at 1453-54.

 

                        Further Findings and Discussion

 

            I take cognizance of Webb’s testimony that when HG #4 was cited on February 12, 2009, it had been idled since February 9, 2009, and Mach “had planned” for it to remain idle for approximately four weeks. However, there is not any evidence in the record that any equipment had to be moved to HG #4, in order for production to be resumed, nor is there any evidence that any construction or repairs were necessary for the resumption of production. Indeed, the following testimony by Webb is the only evidence adduced by Mach as to what was necessary in order to resume production:

 

Q. What steps had to be taken before production could resume in Headgate #4?

 

A. We had to put the power back into the section. We had to –

JUDGE WEISBERGER: Just go slowly here.

 

A. Okay. We had to put power on the belt drive. We had to make sure that the area was safe. We did an exam where we are required to carry that exam outside by the State of Illinois, and then we were able to resume production.

 

 (Tr. 154) (Emphasis added).

 

                        Thus I find that resumption of coal production in HG #4 depended not upon removal of physical obstructions, the return to the area of any equipment, or any repair or construction. Indeed, the cause for the idle state of HG #4 was a decision by Mach to remove the crew from HG #4 in order to assign it to assist in the development of another longwall section. Hence, the resumption of production depended solely on a management decision to return miners back to the area, and to return power to it by turning on a switch. Under these circumstances, clearly the return to production, with all its attendant hazards, for all intents and purposes, is to be considered imminent. Accordingly, I conclude that the situation at bar involved only a temporary interruption by Mach of the established capability of the section to produce coal. As such, I find that it was not incapable of functioning as a working section. Thus, I find that Mach should not be relieved from its obligation to maintain a safe escapeway.

 

                        For all of the above reasons, I find that the facts in the case at bar are to be distinguished from those presented in BethEnergy, 11 FMSHRC 1445 (1989). I further find, applying the broad factors set forth in BethEnergy, that the cited area was a working section.

 

ORDER

 

                        It is Ordered that, no later that ten days after the issuance of this partial decision, contestant shall convene a conference call. The agenda for the call is the status of the disposition of all remaining issues posed by the two notices of contest at issue in these proceedings.

 

 

 

                                                                                                                      Avram Weisberger

                                                                                                                      Administrative Law Judge

 

 

 

Distribution: (Certified Mail) 

 

Christopher D. Pence, Esq., and David J. Hardy, Esq., Allen, Guthrie, McHugh & Thomas, PLLC, 500 Lee Street, East, Suite 800, P.O. Box 3394, Charleston, WV 25333

 

Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St., 8^th Floor, Chicago, IL 60604

 

/lp