<DOC>
[DOCID: f:kt200079.wais]
LODESTAR ENERGY, INC.
KENT 2000-79
February 27, 2001
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041
February 27, 2001
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 2000-79
Petitioner : A. C. No. 15-14492-03802
v. :
: Baker Mine
LODESTAR ENERGY, INC., :
Respondent :
DECISION
Appearances: Donna E. Sonner, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
and Arthur J. Parks, Conference and Litigation
Representative, Mine Safety and Health
Administration, U.S. Department of Labor,
Madisonville, Kentucky, for Petitioner;
Richard M. Joiner, Esq., Mitchell, Joiner &
Hardesty, P.S.C., Madisonville, Kentucky, for
Respondent.
Before: Judge Hodgdon
This case is before me on a Petition for Assessment of Civil
Penalty brought by the Secretary of Labor, acting through her
Mine Safety and Health Administration (MSHA), against Lodestar
Energy, Inc., pursuant to section 105 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. � 815. The petition alleges
three violations of the Secretary's mandatory health and safety
standards and seeks a penalty of $165.00. A hearing was held in
Madisonville, Kentucky. For the reasons set forth below, I
vacate one citation, affirm the other two and assess a penalty of
$100.00.
Settled Citations
The parties reached a settlement with regard to Citation
Nos. 7641238 and 7641286. In accordance with the agreement, the
Secretary moved to vacate Citation No. 7641238 and the Respondent
agreed to pay the proposed penalty of $55.00 for Citation No.
7641286. (Tr. 5-6.) The agreement was approved and will be
carried out in the order at the end of this decision.
The remaining citation, No. 7640555, was contested at the
hearing.
Findings of Fact[1]
Lodestar Energy, Inc., owns and operates the Baker Mine, an
underground, bituminous coal mine, located in Webster County,
Kentucky. Although the initial entries in a mining section are
cut by a continuous mining machine, the main method of mining
coal is by longwall mining unit.
Three entries are cut by the continuous miner on each side
of a panel of coal that is to be mined by the longwall.
Typically, the entries are 10,000 feet long and the panel is
1,000 feet wide. While the first panel is being mined by the
longwall, a continuous miner is cutting three more entries along
the next panel to be mined. Thus, except for the first and last
longwall panels, the three intake entries on the right side of
the panel, become the tailgate entries on the left side of the
next panel. Of the three intake entries, the entry closest to
the panel, the No. 3 entry, is the belt line entry and also
serves as an alternate escape way. The Nos. 1 and 2 entries
carry intake air toward the face where it mixes with air coming
across the face and eventually exits the mine. The No. 2 entry
also serves as the primary escape way from the section.[2]
On October 26, 1999, MSHA Inspector Robert A. Sims, a
ventilation specialist, was assisting in a quarterly inspection
at the Baker Mine. Mining was taking place on longwall panel "K"
in the 11th East Gates section of the mine. At that time, intake
air entered the Nos. 1 and 2 entries from a common source outby
crosscut 10. At crosscut 10, a portable metal stopping, known as
a "Kennedy Stopping," partially blocked the No. 1 entry. While a
portion of the airflow passed through openings in the stopping
and continued down the No. 1 entry, the stopping directed most of
the airflow down the No. 2 entry.
From crosscut 10 to crosscut 73, a distance of about 6,615
feet, the No. 1 and No. 2 entries were separated by coal pillars
and permanent stoppings.
Inspector Sims determined that although the No. 2 entry had
been examined for hazardous conditions, by walking it at least
every seven days, the No. 1 entry had not been so examined.
Concluding that this was a violation of section 75.364(b)(1) of
the regulations, 30 C.F.R. � 75.364(b)(1), he issued Citation No.
7640555, which alleged that: "The #1 entry (intake) of the 11th
East Gates was not being examined from crosscut 10 to crosscut 73
at the Baker Mine." This was the first time that Lodestar had
been cited for failing to examine the No. 1 entry.
Conclusions of Law
Section 75.364(b)(1) requires that: "At least every 7 days,
an examination for hazardous conditions at the following
locations shall be made by a certified person designated by the
operator: (1) In at least one entry of each intake air course,
in its entirety, so that the entire air course is traveled."
Section 75.301, 30 C.F.R. � 75.301, defines "air course" as: "An
entry or a set of entries separated from other entries by
stoppings, overcasts, other ventilation control devices, or by
solid blocks of coal or rock so that any mixing of air currents
between each is limited to leakage."
The company argues that the Nos. 1 and 2 entries are a set
of entries making up a single air course and that by inspecting
the No. 2 entry they are complying with the regulation's
requirement that "at least one entry of each intake air course"
be examined. On the other hand, it is the Secretary's position
that the Nos. 1 and 2 entries are separate air courses and,
therefore, each one has to be examined in its entirety. I find
that the facts and the law support the Secretary's position.
The thing that distinguishes one air course from another,
whether it is one entry or a set of entries, is that it is
separated from other entries so that the only mixing of air
currents between the two is the result of leakage, not design.
Thus, for a set of entries to be an air course, they would have
to mix air currents and be separated from other entries. In this
case, the two entries are separated from each other by stoppings
and solid blocks of coal for over a mile and there is no mixing
of the air between the two except by leakage.
The Respondent asserts that because common air enters the
two entries at crosscut 10 and again becomes common air after
leaving the entries at crosscut 73, the entries are part of the
same air course. However, if this contention is taken to its
logical conclusion it would mean that only one entry in the
entire mine, or at least one entry for each outside air source,
would have to be examined, because the same air comes into the
mine at one place, proceeds down numerous entries and eventually
joins back together to exit the mine.
The operator also maintains that the Secretary's
interpretation of the regulation is determined by the distance
over which crosscuts between entries are blocked. This is based
on the inspector's testimony that if only crosscut 11 were
blocked between the two entries, so that common air entered the
entries at crosscut 10 and became common again at crosscut 12,
the two entries would be one air course. Clearly, a rule of
reason applies here. At some point the blocking of crosscuts
between entries to seal the air within them changes them from one
air course to two. While that may not occur if only two or three
crosscuts are blocked, it undoubtedly has occurred when 63
crosscuts are blocked. Since that is what the facts are in this
case, it is not necessary, for this decision, to determine
exactly when one air course becomes two.
Inspector Sims testified that among the hazards that could
take place in the No. 1 entry are roof falls and methane
accumulations. While it is arguable that methane levels could be
discovered by monitoring the air as it exits the entry, the only
way that roof falls or potential roof falls can be discovered is
by walking the entry. The fact that the roof in the entry may be
exceptionally well secured, as the No. 1 entry appears to be,
does not change this fact.
Accordingly, I find that the Nos. 1 and 2 entries are
separate air courses under the regulations and that they must
both be examined for hazardous conditions. Since the No. 1 entry
was not being examined, I conclude that Lodestar violated section
75.364(b)(1) of the regulations.
Civil Penalty Assessment
The Secretary has proposed a penalty of $110.00 for the two
remaining citations. However, it is the judge's independent
responsibility to determine the appropriate amount of penalty in
accordance with the six penalty criteria set out in section
110(i) of the Act, 30 U.S.C. � 820(i). Sellersburg Stone Co. v.
FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984); Wallace Brothers,
Inc., 18 FMSHRC 481, 483-84 (April 1996).
In connection with the civil penalty criteria, the parties
have stipulated, and I so find, that: (1) the Baker Mine
produced 4,398,310 tons of coal in 1999, making it a large mine;
(2) Lodestar Energy, Inc. mined 9,387,053 tons of coal in 1999,
making it a large operator; (3) the proposed penalty will not
affect Lodestar's ability to remain in business; and (4) Lodestar
demonstrated good faith in abating the cited violations. (Jt.
Ex. 5, Tr. 13-14.) Based on the Assessed Violation History
Report, (Jt. Ex. 1), I find that neither the mine's nor the
operator's history of violations is very good.
The inspector found that neither of the citations was
"significant and substantial" and that in the unlikely event that
an accident occurred the expected injury would result in lost
workdays or restricted duty. Therefore, I find that the gravity
of the violations was not very serious.
Finally, the inspector alleged that both of the violations
resulted from "moderate" negligence on the part of the operator.
In accordance with the settlement agreement, I find that the
company's negligence in Citation No. 7641286 was "moderate."
However, concerning Citation No. 7640555, the evidence is that
the company had never been cited for this violation before and
that even subsequent to the issuance of the citation at least one
MSHA inspector did not inspect the No. 1 entry during a quarterly
inspection. Accordingly, I find that the negligence for that
violation was "low."
Taking all of these factors into consideration, I assess a
penalty of $55.00 for Citation No. 7641286 and a penalty of
$45.00 for Citation No. 7640555.
**FOOTNOTES**
[1] The parties have stipulated to most of the facts in
this case. (Jt. Ex. 5, Tr. 10-13.) The facts that have not been
stipulated to are not in dispute.
[2] The No. 1 entry serves no apparent purpose on the right
side of the longwall panel. When it is on the left side, it
takes air down to and then across the mining face.
Order
Citation No. 7641238 is VACATED and Citation No. 7641286 is
AFFIRMED, in accordance with the settlement agreement, and
Citation No. 7640555 is MODIFIED by reducing the level of
negligence from "moderate" to "low" and AFFIRMED as modified.
Lodestar Energy, Inc. is ORDERED TO PAY a civil penalty of
$100.00 within 30 days of the date of this decision.
T. Todd Hodgdon
Administrative Law Judge
Distribution: (Certified Mail)
Donna E. Sonner, Esq., U.S. Department of Labor, Office of the
Solicitor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215
Arthur J. Parks, Conference and Litigation Representative, MSHA,
100 YMCA Drive, Madisonville, KY 42431
Richard M. Joiner, Esq., Mitchell, Joiner & Hardesty, P.S.C., 113
East Center Street, P.O. Drawer 659, Madisonville, KY 42431
nt