<DOC>
[DOCID: f:l94-156.wais]
AMAX COAL COMPANY
January 17, 1995
LAKE 94-156
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
January 17, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 94-156
Petitioner : A.C. No. 11-00877-04042
v. :
: Docket No. LAKE 94-197
AMAX COAL COMPANY, : A.C. No. 11-00877-04049
Respondent :
: Docket No. LAKE 94-198
: A.C. No. 11-00877-04051
:
: Docket No. LAKE 94-222
: A.C. No. 11-00877-04054
:
: Wabash Mine
DECISION
Appearances: Miguel J. Carmona, Esq., Office of the
Solicitor, U.S. Department of Labor,
Chicago, Illinois, for Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll,
P.C., Pittsburgh, Pennsylvania, for
Respondent.
Before: Judge Amchan
Overview
These cases arise out of inspections conducted at
Respondent's Wabash Mine in southeastern Illinois. Docket
Nos. LAKE 94-156 and LAKE 94-222 each contain one citation
which was settled at the outset of the hearing. Citation
No. 4261640 in Docket No. LAKE 94-197 was also settled.
At issue in Docket No. LAKE 94-197 is Citation
No. 3845251 which alleges that Respondent violated
30 C.F.R. � 77.201 in that methane concentrations exceeded
one percent at the head house on the top of the No. 1 silo
at the preparation plant. Also unresolved is Citation No.
3536113 in Docket No. LAKE 94-198, which alleges that
Respondent violated 30 C.F.R. � 75.371(hh) in failing to
provide MSHA with the ambient carbon monoxide (CO) levels
in areas in which CO sensors are installed. For the
reasons stated below, I vacate both these citations and
the penalties proposed therefor.
Excessive Methane in the Head House
On February 2, 1994, MSHA representative Arthur
Wooten was inspecting the silo area of the Wabash Mine.
This is an area where clean coal is brought by conveyor
from the preparation plant and deposited prior to
shipping it to customers. At about 9:15 a.m., Wooten
entered the head house on top of silo No. 1 and his
methane detector activated, indicating a concentration
of methane in excess of one percent (Tr. 20-21, 90)[1].
Methane readings in the head house ranged from .4
percent to 1.4 percent. The highest readings were
detected near a light switch and near an opening where
the conveyor belt dumps coal into the silo (Tr. 59-60).
These areas were approximately 3 1/2 feet above the
floor and one foot away from the sides of the building
(Tr. 54, 60). Respondent's safety director, Charles
Burggraf, who was accompanying Wooten, immediately
diluted the methane by opening the one entrance door of
the head house and a set of double doors normally used
only to bring in equipment (Tr. 81-82). The methane
concentration then dropped below one percent (Tr. 69-70).
Inspector Wooten issued Citation No. 3845251
alleging a violation of 30 C.F.R. �77.201. The cited
regulation states that, "the methane content in the air
of any structure, enclosure or other facility shall be
less than 1.0 volume per centum."
Wooten required that the sides of the head house
be removed to assure that methane concentrations in the
head house remained below one percent (Tr. 90-91). He
further required that this be accomplished in a period
of two hours (Citation No. 3845251, blocks 2 and 18).
Respondent shut down its preparation plant and sent its
five day-shift employees to the top of the silo. The
sides were removed within the requested time period
(Tr. 98-100).
The citation was characterized as "significant and
substantial" (S & S) and MSHA subsequently proposed a
$595 civil penalty for this alleged violation. Among
the factors that led to the S & S designation was the
fact that the head house contained electrical equipment,
such as a 4,160 volt conveyor belt starter, a 220 volt
automatic lubrication system, and a 120 volt lighting
circuit (Tr. 30).
Another factor in the S & S designation was that
Respondent experienced a brief and self-extinguishing
ignition on January 13, 1994, at the bottom of Silo
No. 1, where coal was loaded into railroad cars
(Tr. 30-32, 59)[2]. On February 1, the day before the
instant citation was issued, 3.1 percent methane had
been detected by MSHA inspector Ron Stahlhut at the
train load-out, which is approximately 200 feet
directly below the head house (Tr. 26, 34-35)[3]. On
February 2, the methane concentration at the train
load-out was four percent (Tr. 42-44).
The head house was constructed with tin sheeting
placed over a steel framework (Tr. 80-81). The floor
of the head house is six feet above the roof of Silo
No. 1 (Tr. 106-08). The roof of the silo has several
holes for ventilation and access (Tr. 105-06). In the
20 years in which it has been situated on top of Silo
No. 1, methane had apparently never been detected in
the head house prior to February 2, 1994, either by
Respondent, who tests for methane every shift
(Tr. 80-81, 87-88, 96-97) or by MSHA (Tr. 52).
Does a methane reading in excess of 1 percent
establish a violation of 30 C.F.R. �77.201?
The central issue with regard to this citation
is whether a valid methane reading of one percent or
higher establishes a violation of the cited regulation.
Although the language of the standard, standing alone,
would lead to an affirmative answer, I agree with
Respondent that the standard must be interpreted in the
context of other portions of subpart C of Part 77,
30 C.F.R., and MSHA's enforcement policy for similar
provisions relating to underground areas of coal mines.
**FOOTNOTES**
[1]:Respondent, in a letter dated January 10, 1995,
has noted a number of errors in the transcript. I hereby
correct the transcript as noted in this letter. There
are other transcript errors not noted by Respondent
[e.g. Tr. 226, lines 4 and 5 should read "slope heaters"
rather than "slope feeders"]. In most instances,
particularly those critical to the resolution of the case,
what was actually said at hearing can be determined from
the context of the testimony.
[2]:Respondent contends that this ignition was due
to coal dust rather than methane (Tr. 101).
[3]:MSHA issued Citation No. 4261637 for this methane
concentration. A citation was not issued on February 2,
because Respondent was in the process of installing an
exhaust system to abate the previous day's citation
Tr. 44, 87).
Section 77.201-2, with which Respondent clearly
complied, states:
If, at any time, the air in any structure, enclosure
or other facility contains 1.0 volume per centum or
more of methane, changes or adjustments in the venti-
lation of such installation shall be made at once so
that the air shall contain less than 1.0 volume
per centum of methane.
Respondent contends that compliance with this
provision negates any theoretical violation of section
77.201 in this case. In support of its position, the
company notes that MSHA's Program Policy Manual directs
that the mere presence of methane in excess of one percent
is not a violation of the corresponding MSHA standards for
underground coal mines.[4] Volume V of the current
Program Policy Manual states:
75.323 Actions for Excessive Methane
Section 75.323 specifies actions to be
performed for excessive methane. Neither the Act
nor the regulations provide that a mere presence of
methane gas in excess of 1.0 percent is per se a
violation. A violation would exist if a mine
operator, upon becoming aware of the presence of
excessive methane fails to perform the actions
specified in Section 75.323.
The wording of the corresponding underground standard,
section 75.323, is generally different than that of section
77.201. It provides that when 1.0 percent or more methane
is present in a working place, etc., certain corrective
actions are to be taken, such as de-energizing equipment
and adjusting the ventilation system. However, section
75.323(e) relating to bleeder and other return air courses
contains the same kind of categorical prohibition that is
present in section 77.201 [The concentration of methane ...
shall not exceed 2.0 percent].
Regardless of the differences between the text of
sections 75.323 and 77.201, I find any interpretation of
77.201 that makes a per se violation of a methane
concentration of one percent or more to be an unreasonable
one, to which I need not defer. I therefore conclude that
this record does not establish a violation of 30 C.F.R.
�77.201. There is no evidence that Respondent either
failed to act prudently to anticipate
**FOOTNOTES**
[4]:Part 77 rather than Part 75 is applicable to
surface work areas of underground coal mines, such as the
silo and head house in the instant case. the presence of
excessive methane or that it failed to take appropriate
and timely corrective action. Without such evidence I
vacate Citation No. 3845251.
Citation No. 3536113: Ambient Carbon Monoxide
Levels
On January 27, 1994, MSHA issued Respondent Citation
No. 3536113, alleging a non-significant and substantial
violation of 30 C.F.R. �75.371(h)(h). Section 75.370 of
MSHA's regulations requires that mine operators develop
and follow a ventilation plan. Section 75.371 states:
The mine ventilation plan shall contain the
information described below and any additional
provisions required by the district manager:
* * *
(hh) The ambient level in parts per million of
carbon monoxide, and the method for determining the
ambient level in all areas where carbon monoxide sensors
are installed.
Designation of the proper ambient carbon monoxide (CO)
level is important in setting the CO sensors. If they are
set far above the ambient CO level they may give
insufficient warning when CO levels rise due to fire. If
they are set too low, nuisance alarms may be so frequent
that miners will disregard the alarms when there is a fire
(Tr. 268-272).
The instant citation was the culmination of a months-
long dispute between MSHA and Respondent as to whether the
company had satisfied the requirements of the standard.
On August 26, 1993, MSHA approved Respondent's ventilation
plan, which was submitted pursuant to the agency's new
ventilation regulations (Tr. 142, Exh. P-6). The plan
approval followed several dis-cussions between MSHA
officials and the company, which resulted in modifications
to the original submission, unrelated to the issue in this
case (Tr. 201-213). Paragraph H of the new plan noted that
it allowed the use of carbon monoxide (CO) sensors in lieu
of point-type heat sensors for an automatic conveyor belt
warning system[5]. It went on to state:
**FOOTNOTES**
[5]:The parties agree that CO monitors are superior
to point-type heat sensors in alerting miners to a fire
along the belt line (Tr. 168). Use of such sensors are
optional and Respondent would not have to designate an
ambient CO level if it did not use a CO monitoring
system (Tr. 174-75). 3. The alarm level of carbon
monoxide will be set at 10 ppm above the ambient level of
the area of the mine in which the sensors are installed.
The ambient level will be determined using properly
calibrated dihand-held detectors. (Exh. P-6, page 7.)
On September 27, 1993, MSHA inspector Michael Bird
informed Respondent that the approved ventilation plan
required additional revisions, including specification of
the ambient level of carbon monoxide (Tr. 215, Exh. R-75).
This was followed by a letter from MSHA, dated December 15,
1993, requesting corrections to the plan, including
providing MSHA with the ambient CO level (R-76).
In response, Respondent, through Terry Theys, the
supervisor of engineering at the Wabash Mine, proposed
that the company provide MSHA with a range of ambient
levels between 0 - 15 ppm based on hand-held detector
samples taken every 30 days (Tr. 203, 220). Respondent's
hesitancy to designate a single number was based on its
sampling results showing that ambient CO levels
fluctuated, even at the same location during the same
shift (Tr. 220, Exh. R-90).
Neither the company nor MSHA realized in the fall
of 1993 that there were much greater fluctuations in
ambient CO levels at a single location depending on
whether slope heaters were being employed (Tr. 260-61).
The company's initial proposal would have resulted in
nuisance alarms when the slope heaters were running if
the sensors were set on the basis of ambient CO levels
when the heaters were not running. Conversely, if the
sensors were set when slope heaters were running, they
may have been set too high to provide an adequate early
warning of a fire when the heaters were not operating.
MSHA rejected Respondent's proposal and asked the
company to specify a single CO ambient level that was "in
the 70, 75 percentile plus or minus the standard deviation
(Tr. 220)." On January 12, 1994, Respondent submitted a
revised proposal, which stated in pertinent part:
In addition to the point-type sensors, mine
atmosphere sensors (CO, ...) may be installed at various
locations to facilitate additional monitoring of
atmospheric conditions in locations selected by company
representatives.
When CO sensors are installed for additional
atmospheric monitoring at company selected locations, the
alarm level of carbon monoxide will be set a 10 ppm above
the ambient level (normally from 4 - 8 ppm along the
belt/haulroad entries) of the area of the mine in which
the sensors are installed. The ambient level will be
determined using properly calibrated hand-held detectors.
(Exh R-80, p. 4).
On January 18, 1994, MSHA acknowledged receipt of the
revised ventilation plan (Exh. R-81). The next
communication between MSHA and Respondent was the issuance
of the citation on January 27, 1994 (Tr. 233, Exh. R-82).
On February 26, 1994, Respondent submitted another
revision to MSHA which was approved on March 29, 1994
(Exh. R-85, 86, and 88)[6]. The approved language was as
follows:
The ambient CO level at all sensors will be set
at 5 ppm with no slope heaters operating. During the
periods of slope heater operation, the CO ambient
levels will be set at 35 ppm for the slope sensors,
30 ppm for sensors from the slope to the fault cross-
ing, 30 ppm from the slope to the Portal 2 area of
Main South, at 10 ppm from Portal 2 area inby, and 10
ppm from the fault crossing inby. The ambient levels
will be returned to the minewide ambient level of 5
ppm within eight (8) hours following the shutdown of
the slope heaters. The method used to determine the
ambient CO level was statistically valid sampling
occurring over a period of four days during heater
operation and four days without heater operation
using an MSA-DAN system for data collection.
(Exh. R-88, p. 7.)
Was a Citation appropriate?
I conclude that MSHA cannot issue a citation for
violation of section 75.371(hh). The MSHA Program Policy
Manual, Chapter V, (Exh. R-91, p. 3c) states that if the
operator and the agency can not agree with regard to
MSHA-initiated changes to the operator's ventilation plan,
revocation of the ventilation plan and a citation for
operating without an approved plan in violation of
section 75.370(a)(1) is the appropriate procedure to be
followed.
Although the Program Policy Manual is not binding on
MSHA, the structure of the agency's ventilation
regulations mandates such a process. Section 75.371
merely lists the items that must be satisfactorily
addressed in a ventilation plan to secure MSHA approval.
The penalty for failure to satisfy the requirements of
75.371 is non-approval or revocation of the plan, rather
than a citation.
I therefore vacate Citation No. 3536113 and the $50
civil penalty proposed for this alleged violation.
Vacating the citation on this basis is not merely a
matter of placing form over substance. Had MSHA revoked
Respondent's ventilation plan and proceeded under
section 75.370(a)(1), it would not have necessarily been
successful.
MSHA may not have been able to satisfy its burden of
proving that Respondent's ventilation plan was no longer
suitable for the Wabash Mine and that the plan with MSHA-
initiated changes was suitable, Peabody Coal Company,
15 FMSHRC 628 (April 1993). Given the fact that prior to
January 27, 1994, neither MSHA nor Respondent was aware
of the impact of the slope heaters on ambient CO levels,
it is not certain that either plan was suitable to the
Wabash Mine.
Respondent's primary arguments in support of
vacation of the citation are: (1) that it complied with
�75.371(h)(h) and (2) assuming that it did not, the
citation should be vacated because MSHA failed to
negotiate in good faith, or comply with the requirements
of �75.370(b)(1) and (2). Despite my grounds for
vacating the citation, the first argument deserves
comment because it relates to the questionable
suitability of the plan as approved in August 1993 and
with the ambient level demanded by MSHA prior to the
issuance of the citation.
It appears to me that the standard demands something
more than what was contained in the plan as approved in
August, 1993 [monitors to be set 10 ppm above CO levels
detected]. However, the standard may allow for something
other than a single number--given the variation in CO
levels from location to location, and at the same location
depending on whether diesel equipment and/or slope heaters
were in operation (Tr. 225-26, Exhs. R-89, R-90). In view
of my disposition of this citation and the fact that
both parties missed the significance of the slope heaters
at the time the citation was issued, I decline to rule on
whether Respondent complied with requirements of
�75.371(h)(h).
MSHA's compliance or non-compliance with �75.370(b)(1)
and (2) is also sufficiently ambiguous that I decline to
rule upon this issue given my disposition on other grounds.
One could regard the agency's December 15, 1993, letter
(Exh. R-76) as compliance with these procedural
requirements. Rather than deciding whether the company's
January 12, 1994, response (Exh. R-80) required further
written notifications from MSHA, I have determined that
the issue should have been decided through the mechanism
of plan revocation rather than citation.
**FOOTNOTES**
[6]:Although approval of the provisions regarding
CO sensors was tentative for a period of 90 days, there
is nothing in the record that indicates that MSHA has
required further changes from Respondent.
Citation No. 3843883 (Docket No. LAKE 94-156),
Citation No. 4261640 (Docket No. LAKE 94-157),
and Citation No. 3845974 (Docket No. LAKE 94-222)
The parties have settled these items on the
following terms:
Citation No. 3843883 is modified to a non-significant
and substantial violation and the penalty is reduced from
$2,173 to $500.
Citation No. 4261640 is modified to a non-significant
and substantial violation and the penalty is reduced from
$903 to $100.
The penalty for Citation No. 3845974 is reduced from
$950 to $650.
I have considered the representations made and
conclude that the above settlement is consistent with the
criteria set forth in section 110(i) of the Act.
ORDER
Citation No. 3845251 (Docket LAKE 94-197) is VACATED.
Citation No. 3536113 (Docket LAKE 94-198) is VACATED.
Respondent shall pay the penalties agreed to in the
aforementioned settlement agreement within 30 days of this
order.
Arthur J. Amchan
Administrative Law Judge
Distribution:
Miguel J. Carmona, Esq., Office of the Solicitor, U.S.
Department of Labor, 230 S. Dearborn St., 8th Floor,
Chicago, IL 60604 (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, P.C., USX Tower,
57th Floor, 600 Grant St., Pittsburgh, PA 15219
(Certified Mail)
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