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[DOCID: f:k95-568.wais]
LONE MOUNTAIN PROCESSING, INC.
July 15, 1996
KENT 95-568
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
July 15, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 95-568
Petitioner : A.C. No. 15-02263-03520
:
v. :
: Darby Fork No. 1 Mine
LONE MOUNTAIN PROCESSING, INC., :
Respondent :
DECISION
Appearances: Charles H. Grace,Conference and Litigation Representative,
U.S. Department of Labor, Mine Safety and Health Administration,
Barbourville, Kentucky, for the Petitioner; Michael O. McKown, Esq.,
Robinson & McElwee, Charleston, West Virginia, for the Respondent.
Before: Judge Feldman
The above captioned proceeding is before me as a result of a
petition for civil penalty filed by the Secretary of Labor pursuant
to section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. �801 et seq., (the Mine Act). This case was called for
hearing on March 27, 1996, in Pineville, Kentucky.[1] The parties
stipulated the respondent is a large operator subject to the
jurisdiction of the Mine Act. (Joint Ex. 1).
**FOOTNOTES**
[1]: The March 27, 1996, hearing was initially scheduled for
November 14, 1995. The hearing was continued until January 11,
1996, due to an interruption in government operations as a
consequence of the budget impasse. The January 11, 1996, hearing
date was once again continued because of the government shutdown.
At the hearing the parties moved to settle Citation
Nos. 4485356 and 9987989. The settlement terms include
deleting the significant and substantial (S&S) designation
from Citation
No. 4485356, and reducing the total proposed civil penalty
for these two citations from $925.00 to $600.00. The terms
of the parties' settlement proposal were approved on the
record and are incorporated herein.
Remaining Citation No. 4465629, issued by Mine Safety
and Health Administration Inspector (MSHA) Harold Scott on
March 1, 1995, concerns an S&S violation of the mandatory
safety standard in 30 C.F.R. � 75.370 for the respondent's
alleged failure to follow its approved ventilation plan.
The parties' post-hearing briefs with respect to this
citation have been considered in my disposition of this
proceeding.
Statement of the Case
The operative ventilation plan dated September 13, 1994,
required the installation of numerous check curtains in
entries outby the last open crosscut in order to ventilate
the working faces. Inspector Scott testified there was no
set way the curtains had to be installed as long as "you get
ventilation to all [working] places." (Tr. 46-47). The
issue to be decided is whether the Secretary has
established, by a preponderance of
the evidence, that one of the numerous required check
curtains was not installed at 8:30 a.m. on March 1, 1995.
The Secretary contends Inspector Scott observed a missing
check curtain in the No. 4 entry at the No. 2 crosscut (also
referred to as the No. 2 "break"). Scott's citation was
issued on the surface after Scott found excessive methane in
a cavity caused by a bleeder crack.[2] However, there was
no methane detected at the roof line inby or outby the
bleeder cavity. Significantly, as discussed below, Scott
did not specify which required check curtain was missing in
Citation No. 4465629. (See Gov. Ex. 2).
The respondent asserts that Scott's detection of this
excessive methane from a bleeder crack in the roof cavity
motivated Scott to speculate that there was a missing check
curtain although all required curtains had been installed.
The respondent argues the ventilation plan was followed. It
maintains the bleeder crack in the roof cavity was a unique
condition that could not be ventilated by routine adherence
to the approved ventilation plan.
Preliminary Findings
The respondent's Darby Fork No. 1 Mine is an underground
coal site located in Eastern Kentucky. Work at the facility
is divided into three shifts -- 11:00 p.m. to 7:00 a.m. (owl
shift), 7:00 a.m. to 3:00 p.m., and 3:00 p.m. to 11:00 p.m.
The owl shift is the maintenance shift. The two other
shifts produce coal. Bernie Johnson was the supervisor when
the owl shift ended at 7:00 a.m. on March 1, 1995.
Johnson's responsibilities included readying the section for
coal production on the next shift. As part of his duties,
Johnson conducted a preshift examination, including an
inspection of the check curtains, at approximately 6:00 to
6:30 a.m., on March 1, 1995. Johnson testified that his
preshift exam revealed a problem with the check curtain in
the No. 4 entry in that the curtain had been torn "about
halfway down." Johnson testified that he hung the curtain
back up sometime prior to 6:30 a.m.
At about the same time Johnson was conducting his preshift
exam at 6:30 a.m., Scott arrived at the Darby Fork facility
to perform an inspection and to conduct respirable dust
surveys.
Scott testified he entered the mine at approximately 7:00
a.m. with John Richardson, the respondent's Foreman. Scott
testified that as he and Richardson traversed the No. 2
crosscut proceeding towards the No. 5 entry, he observed a
curtain down in the
No. 4 entry. However, Scott did not advise Richardson of
any violative condition at that time.
Scott testified he proceeded to turn inby the No. 5 entry
off the No. 2 break. The No. 5 entry was approximately 56
inches from floor to roof requiring Scott and Richardson to
bend as they traveled the entry. As they turned into the
No. 5 entry, Scott observed a cavity between the No. 2 and
No. 1 breaks. The cavity area, which was properly
supported, was created by draw rock that had fallen during
the mining process. The cavity width was the full width of
the entry and it was approximately 20 feet long. Scott
estimated the highest part of the cavity was approximately
76 inches from the mine floor. The depth of the cavity
above the normal roof line ranged from approximately 13 to
24 inches.
Scott placed his methanometer approximately 12 inches from
the roof of the cavity and immediately obtained readings
above two percent. Scott withdrew the methanometer to avoid
causing damage to this sensitive instrument by this high
reading. In view of the high methanometer reading, Scott,
"remembering that the [No. 4 entry] curtain was down,"
ordered Richardson to "get that block curtain over there and
make the air shift over here to number five." (Tr. 29).
Scott remained in the cavity and took air bottle samples and
did not accompany Richardson to redirect the air flow. (Tr.
29, 109-10, 184). Scott took two bottle samples from
locations approximately 12 inches from the top of the cavity
which ultimately revealed high methane concentrations.[3]
Methane readings were negative for methane inby and outby
the cavity at the mine roof line. (Tr. 105-06). Scott
testified that methane gas is lighter than air. (Tr. 101).
Therefore, Scott conceded that a pocket of methane could
remain in a cavity for an extended period of time although
there continued to be negative methane readings at the roof
line. Id.
Richardson testified he took immediate steps to ventilate
the cavity. He went to the No. 4 entry but did not see any
problem. Richardson, with the assistance of employees
Jimmy Taylor and Roy Gibson, tore down the disputed curtain
in the No. 4 entry and rehung it from corner to corner
narrowing two curtains to one for better airflow. (Tr.
181). In order to better ventilate the cavity, Richardson
also installed a line curtain from the No. 4 entry across
the No. 2 break directing the intake air from the No. 4
entry into the cavity. (Tr. 183-89; See Ex. R-1). Scott
did not inspect the check curtains Richardson had installed
although they went through the curtains as Scott continued
his inspection. (Tr. 189). Richardson testified Scott
never identified any specific curtain that was missing and
that should have been installed. Id. Richardson stated he
did not know Scott was going to cite the respondent for a
missing curtain until they had exited the mine and arrived
on the surface. (Tr. 190).
Further Findings and Conclusions
Mandatory safety standards are promulgated through the
rulemaking process and apply to all similarly situated mine
operators. 30 U.S.C. � 811. However, such universal
applications of safety standards are ineffective in
addressing conditions that are unique to particular mines.
Consequently, Congress provided for MSHA to require mine
operators to adopt comprehensive plans tailored to each mine
that address specific areas of health and safety such as the
adequacy of mine ventilation systems. 30 U.S.C. � 863. The
plan adoption and approval process is flexible and
bilateral, requiring discussions and negotiations between
the operator and MSHA. The goal is approval of a
ventilation plan that is mutually agreeable and that
maximizes safety given the specific conditions that are
known to exist at a particular mine. Jim Walter Resources,
Inc., 9 FMSHRC 903, 907 (May 1987). A ventilation plan is
not intended to address future unanticipated conditions,
such as cavities and bleeders, that occur during the mining
process.
Once a ventilation plan is adopted, its provisions are
enforceable as mandatory safety standards. Id. However,
the Secretary bears the burden of proving that the provision
allegedly violated is part of the approved plan, and, that
the cited condition or practice violates the provision. Id.
The Commission has stated that a violation cannot be
established when "the disputed language of the plan
provision is ambiguous" and the Secretary cannot "dispel the
ambiguity." Id. at 906-07.
In this case, the closest operative provisions in the
subject ventilation plan consist of a diagram on page 7 of
the plan that depicts curtains outby the last open crosscut
in all entries except the first and last entry. (Gov Ex. 4
at p. 7; Tr. 45). While the diagram is clear, for the
reasons discussed below, the Secretary's application of the
diagram to the facts of this case is ambiguous and
inconsistent.[4]
Section 104(a) of the Mine Act, 30 U.S.C. � 814(a),
specifies "[e]ach citation shall be in writing and shall
describe with particularity the nature of the violation . .
." However, Inspector Scott's citation, as well as his
testimony, reflects his uncertainty about the precise nature
of the alleged violation of the approved ventilation plan.
For example, Citation No. 4465629 only contains the general
conclusion that "[t]he approved ventilation plan was not
being followed in the 002 section in that block curtains
were not installed to direct a volume and velocity of air
current thru (sic) the No. 5 working place in the 002
section, sufficient to dilute, render harmless and to carry
away explosive gasses [confined to the cavity]." Thus,
Citation No. 4465629 is lacking in specificity in that it
fails to identify the missing curtain or curtains that
caused the alleged violation.
Even if Scott had identified the missing curtain in Citation
No. 4465629, Scott's testimony reflects the curtain
requirements in the approved plan were vague and subject to
different interpretations. In this regard, Scott stated:
There's no set way that you could say this is exactly,
it has to be done exactly like this because you can do
it different ways and still get the same effect. But
you still would have to use the same amount of check
curtains in order to do it. You could -- I'm sure
there's -- as sure as I sit here and tell you two ways,
someone else can tell me three others. But the basic
thing on the ventilation plan is so that you get
ventilation to all the [working] places. (Emphasis
added) (Tr. 46-47; See also Tr. 102).
Although Scott based his citation on inadequate ventilation,
Scott testified that all working places were indeed being
ventilated. He admitted there was no evidence of methane at the
mine roof line immediately inby the cavity indicating the
bleeding methane in the cavity was being effectively ventilated
and carried away through the air course. (Tr. 105-06). Scott
also believed there was no methane at the face, with or without
the disputed curtain. (Tr. 102-03, 120).
These inconsistencies in the Secretary's case are reflected
by Scott's testimony:
Q. However, if you put aside the cavity for a moment,
without the [No. 4] curtain, it was ventilating the
entries. There was no methane in the entries . . . If
it was ventilating the entries . . . would the
assumption be that the ventilation plan was being
complied with because the result was there was no
methane?
A. If the cavity hadn't been there, it would have been
being complied with. But I'm sure there was movement
of air through there somewhere, but not by eliminating
a curtain.
Q. But there was enough movement inby and outby the
cavity because there was no methane at the normal roof
height; is that correct?
A. Right.
Q. So in essence installing the curtain was -- solely
the routine as far as you know was to clear the cavity?
A. Yes, sir.
Q. Given the fact that there was no methane inby the
cavity, would that give you any reason to draw
conclusions with regard to whether or not there was
methane at the face before the curtain was installed?
A. No, sir. I don't think there was any methane at
the face.
Q. Before the curtain was installed?
A. Before or after, neither one. (Tr. 119-20).
Albert McFarland, an MSHA ventilation supervisor, also testified
he did not know whether the respondent was violating the plan's
minimum air velocity requirements in the last open crosscut and
at the face, with or without the disputed curtain.[5] (Tr.149-
50).
With respect to bleeders in cavities, Scott conceded that a
ventilation plan "doesn't contemplate anything on bleeders unless
we have a mine that specifically has a problem with bleeders."[6]
(Tr. 108). However, the Secretary does not contend the
respondent's mine has a bleeder problem. Thus, the respondent's
approved ventilation plan was not intended to address future
isolated pockets of methane caused by unanticipated bleeder
problems. Nevertheless, Scott opined that he would not have
cited the respondent for violating its ventilation plan if there
was no methane in the cavity. (Tr. 93-94, 95, 116). This is the
essence of Secretary's problem. The lynchpin of the Secretary's
case, i.e., the methane confined to the cavity, is not a material
factor in determining whether the respondent complied with its
ventilation plan.
In summary, the record is unclear as to whether the No. 4
curtain was down when Scott commenced his inspection. Scott did
not initially believe there was a violation. It was only after
he discovered methane in the cavity that he "remembered" seeing
the missing curtain. (Tr. 29). Moreover, Scott did not
accompany Richardson to observe the curtain conditions before
Richardson took remedial measures to redirect air into the
cavity. Even if the disputed curtain was not in place, the
effective ventilation of methane at the faces, in conjunction
with Scott's testimony that there are many permissible
alternative methods of curtain placement under the plan, leads me
to conclude that the Secretary has not established the alleged
condition violated the plan's provisions.
In conclusion, an isolated pocket of methane, alone, is not
evidence of a ventilation plan violation. When asked if Scott
would have issued the citation absent the methane in the cavity,
Scott replied, "I may have, and then I may not." (Tr. 116).
Such indecision does not satisfy the Secretary's burden of
proof.[7] Accordingly, Citation No. 4465629 citing a violation
of section 75.370(a) for the respondent's alleged failure to follow
its approved ventilation plan is vacated.
ORDER
In view of the above, IT IS ORDERED that Citation
No. 4465629 IS VACATED. IT IS FURTHER ORDERED that the
motion for approval of settlement with respect to Citation
Nos. 4485356 and 9987989 IS APPROVED. Consistent with the
settlement terms, the respondent shall pay a total civil
penalty of $600.00 to the
Mine Safety and Health Administration within 30 days of the
date of this decision. Upon timely receipt of payment, this
case
IS DISMISSED.
Jerold Feldman
Administrative Law Judge
Distribution:
Charles H. Grace, Conference and Litigation Representative, Mine
Safety and Health Administration, U.S. Department of Labor, HC 66 Box 1762,
Barbourville, KY 40906-9206 (Certified Mail)
Mary Beth Bernui, Esq., Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215-
2862 (Certified Mail)
Michael O. McKown, Esq., Robinson & McElwee, P.O. Box 1791,
Charleston, West Virginia 25326 (Certified Mail)
/mca
**FOOTNOTES**
[2]: A bleeder is an area in a coal seam where methane is
liberated causing a pocket of methane. (Tr. 100-01).
[3]: Subsequent laboratory analysis revealed methane
readings of 5.780 percent and 2.730 percent.
[4]: Of necessity, I have considered page 7 of the approved
plan as the operative provisions for the purpose of clarity. I
note, however, the Secretary has not even shown that page seven
constitutes the alleged violative provision. When asked "which
portion of the plan, if any, was violated by the condition
[Scott] observed," Scott replied, "the closest one to it is page
seven." (Tr. 45).
[5]: The ventilation plan requires a minimum of 4,500 cubic
feet per minute (CFM) at the working face and 15,000 CFM at the
last open crosscut. (Tr. 147-48; Gov Ex. 4 at pp. 6-7).
[6]: McFarland testified ventilation plans are "generic in
nature" and specify minimum ventilation requirements at a
particular mine. (Tr. 122, 146).
[7]: This decision should not be construed as a finding that
excessive methane is a prerequisite to a ventilation plan
violation. On the contrary, I agree with McFarland that a
required missing curtain, absent methane concentrations, still
constitutes a plan violation. (Tr. 150). Here, however, the
Secretary failed to demonstrate the disputed curtain was missing,
or, that it was required under the provisions of the plan.