<DOC>
[DOCID: f:p97-81r.wais]

 
TANOMA MINING COMPANY
February 19, 1998
PENN 97-81-R


         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                OFFICE OF ADMINISTRATIVE LAW JUDGES
                       2 Skyline, Suite 1000
                         5203 Leesburg Pike
                    Falls Church, Virginia 22041

                        February 19, 1998


TANOMA MINING COMPANY,          :  CONTEST PROCEEDING
               Contestant       :
          v.                    :  Docket No. PENN 97-81-R
                                :  Order No. 3692732; 1/16/97
SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :  Tanoma Mine
  ADMINISTRATION (MSHA),        :  Mine ID 36-06967
               Respondent       :
                                :
SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
   MINE SAFETY AND HEALTH       :
   ADMINISTRATION (MSHA),       :  Docket No.  PENN 97-129
               Petitioner       :  A. C. No.   36-06967-03912
          v.                    :
                                :  Tanoma Mine
TANOMA MINING COMPANY,          :
               Respondent       :

                             DECISION

Appearances:  Pamela  W.  McKee,  Esq., Office of the Solicitor,
              U.S.    Department    of   Labor,    Philadelphia,
              Pennsylvania, for Petitioner;
              Joseph  A. Yuhas, Esq., Barnesboro,  Pennsylvania,
              for Respondent.

Before: Judge Hodgdon

     These consolidated  cases  are  before  me  on  a  Notice of
Contest  and a Petition for Assessment of Civil Penalty filed  by
Tanoma Mining  Company against the Secretary of Labor, and by the
Secretary,  acting   through   her   Mine   Safety   and   Health
Administration (MSHA), against Tanoma, respectively, pursuant  to
section 105 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C.  �   815.   The  company  contests the issuance to it of a
107(a)  order,  30  U.S.C. � 817(a).   The  Secretary's  petition
alleges three violations  of the Secretary's mandatory health and
safety standards and seeks a penalty of $951.00.  For the reasons
set  forth  below,  I affirm the  order  and  the  citations,  as
modified, and assess a penalty of $425.00.

     A  hearing  was  held   on  October  7,  1997,  in  Indiana,
Pennsylvania.  The parties also  submitted  posthearing briefs in
the cases.

                         Settled Citation

     At the beginning of the hearing, counsel  for  the Secretary
announced that the parties had settled Citation No. 3692439.  The
agreement provides that the citation be modified by deleting  the
"significant and substantial" designation and that the penalty be
reduced  from  $147.00  to $75.00.  After considering the parties
representations, I concluded  that the settlement was appropriate
under the criteria set forth in  section  110(i)  of  the Act, 30
U.S.C.  �  820(i), and informed the parties that I would  approve
the agreement.  (Tr. 12-18)  The provisions of the agreement will
be carried out in the order at the end of this decision.

                            Background

     The Tanoma  Mine  is  an  underground  coal  mine, owned and
operated   by   Tanoma   Mining   Company,   in  Indiana  County,
Pennsylvania.  At about 12:30 p.m. on January 15, 1997, miners in
the  E-4 section of the mine detected rising levels  of  methane.
The crew  was  removed from the section, power on the section was
turned off and ventilation changes were made in the section in an
attempt to correct  the problem.  By mid-afternoon methane levels
had been reduced below  1% and mining was resumed.  Nevertheless,
William Moyer, the mine foreman,  instructed  the afternoon shift
foreman to check the methane levels at Evaluation  Point E1-1 (EP
E1-1) periodically during the shift.

     That evening, the shift foreman called Moyer to  advise  him
that  methane in excess of 4% at been detected at EP E1-1.  Moyer
told the  foreman  to  remove  everyone  from the mine and to de-
energize  everything  except  the  fans.  He then  called  Robert
DeBreucq, Vice President of Operations,  to  inform  him  of  the
situation  and both men went to the mine.  After ascertaining the
situation, DeBreucq  called  the  supervisor  of  the  MSHA field
office  to  advise  him what was happening.  The supervisor  told
DeBreucq that he would send an inspector out in the morning.

     Inspector William Sparvieri was called by his supervisor and
told to go to the mine  in  the  morning.   Sometime  later,  the
inspector  received  another call from his supervisor instructing
him  to go to the mine  that  night.   He  arrived  at  the  mine
sometime   between   11:00  p.m.  and  midnight.   By  then,  all
production personnel had  been  sent  home  from  the mine by the
operator  and all power in the mine had been turned  off,  except
for the fans.

     After  being  advised  by  mine  management  about  what had
occurred  and  the  steps  that  had  been  taken  to correct the
problem, Inspector Sparvieri began an inspection of  the  mine in
the early morning hours of February 16.  While traveling the main
E left return he detected concentrations of methane ranging  from
2.4% to over 5%.  Concluding that an imminent danger existed, the
inspector verbally issued a 107(a) order for the area between E-1
and  C-12 in the mine.  The order was reduced to writing as Order
No. 3692732  when the inspector exited the mine and served on the
company's superintendent  at  3:30  a.m.   The order stated that:
"2.4% to 5.2% of methane was detected in the  Main  E left return
between C-12 and where the E1 bleeder entry enters the  return, a
distance of 2300 feet.  The methane being liberated from  the  E4
pillar  gob  where severe bottom heave has occurred."  (Govt. Ex.
2.)  The order  was  modified  4 hours later to include the whole
mine as the area closed.

     Inspector  Sparvieri  issued   Citation   No.   3692733   in
conjunction  with  the  107(a)  order.  It alleged a violation of
section 75.323(e), 30 C.F.R. � 75.323(e), because:  "2.4% to 5.2%
of methane was detected in the Main  E  left  return between C-12
section  and where the E1 bleeder entry enters the  Main  E  left
return."  (Govt. Ex. 3.)

     Although  the 107(a) order was subsequently modified several
times to permit  the  company to attempt to solve the problem, it
was not terminated until  January 23, 1997.  While inspecting the
mine on that date to determine  if the order could be terminated,
the inspector issued Citation No.  3692734,  also for a violation
of  section  75.323(e),  since:   "Methane  at the  EP  4-2   was
measured at 3.4% at a point just before it enters the Main E left
return."  (Govt. Ex. 6.)

             Findings of Fact and Conclusions of Law

     The Respondent argues that there was no imminent danger when
the inspector issued the order and that, therefore,  it should be
vacated.  This argument is premised on the belief that  a methane
ignition  could not occur because no ignition source was present.
The  evidence   in  the  case,  however,  does  not  support  the
Respondent's argument.   I  find  that  it was reasonable for the
inspector to conclude that an imminent danger existed.

     Section 107(a) of the Act states:

               If, upon any inspection or investigation
          of a coal or other mine which is  subject  to
          this Act, an authorized representative of the
          Secretary   finds  that  an  imminent  danger
          exists, such  representative  shall determine
          the   extent   of  the  area  of  such   mine
          throughout which the danger exists, and issue
          an order requiring  the operator of such mine
          to cause all persons,  except  those referred
          to  in section 104(c), to be withdrawn  from,
          and to be prohibited from entering, such area
          until  an  authorized  representative  of the
          Secretary   determines   that  such  imminent
          danger and the conditions  or practices which
          caused such imminent danger no longer exist.

Section  3(j) of the Act, 30 U.S.C. � 802(j),  defines  "imminent
danger" as  "the existence of any condition or practice in a coal
or other mine  which  could reasonably be expected to cause death
or serious physical harm before such condition or practice can be
abated."

     With regard to what  constitutes  an  imminent  danger,  the
Commission  follows  the  law  as  set  out by the U.S. Courts of
Appeals.  In Rochester & Pittsburgh Coal  Co.,  11  FMSHRC  2159,
2163 (November 1989) the Commission stated:

               In  analyzing  this definition, the U.S.
          Courts  of  Appeals have  eschewed  a  narrow
          construction  and  have  refused to limit the
          concept of imminent danger  to  hazards  that
          pose  an immediate danger.  See e.g., Freeman
          Coal Mining  Co.  v. Interior Bd. of Mine Op.
          App., 504 F.2d 741  (7th  Cir.  1974).  Also,
          the  Fourth  Circuit has rejected the  notion
          that a danger  is imminent only if there is a
          reasonable likelihood  that if will result in
          an injury before it can  be  abated.  Eastern
          Associated Coal Corp. v. Interior Bd. of Mine
          Op. App., 491 F.2d 277, 278 (4th  Cir. 1974).
          The  court  has adopted the position  of  the
          Secretary that  "an  imminent  danger  exists
          when the condition or practice observed could
          reasonably  be  expected  to  cause  death or
          serious  physical  harm  to a miner if normal
          mining operations were permitted  to  proceed
          in the area before the dangerous condition is
          eliminated."   491  F.2d at 278 (emphasis  in
          original).  The Seventh  Circuit adopted this
          reasoning in Old Ben Coal  Corp.  v. Interior
          Bd.  of Mine Op. App., 523 F.2d 25,  33  (7th
          Cir. 1975).

In applying this  definition,  the Commission has held that:  "To
support a finding of imminent danger,  the  inspector  must  find
that  the hazardous condition has a reasonable potential to cause
death or  serious  injury  within  a short period of time."  Utah
Power & Light Co., 13 FMSHRC 1617, 1622  (October  1991).  Accord
Blue Bayou Sand and Gravel, Inc., 18 FMSHRC 853, 858 (June 1996).

     Turning to the facts of this case, the Respondent  does  not
dispute  that  the  inspector  detected methane at over 5% in the
Main E left return.  Indeed, the  analysis  of the bottle samples
of the air he took at the time indicates methane  of  5.220%  and
5.260%,  respectively.   (Govt.  Ex. 4.)   Nor  does  the company
dispute  that,  as  testified to by Expert Witness Clete Stephan,
methane is explosive  in concentrations between 5% and 15%.  What
it does dispute is whether  an  explosion was imminent.  Although
Tanoma presented no evidence on the  issue,  it  argues  that  an
explosion  was  not imminent because there was no ignition source
for such an explosion.

     When the inspector  issued  the  imminent  danger order, the
were  no  miners  in the mine except those permitted  by  section
104(c) of the Act,  30  U.S.C. � 814(c).[1]  Therefore, the order
was not issued to withdraw persons from the mine, but to prohibit
them from entering the mine  "until  an authorized representative
of the Secretary determine[d] that such  imminent  danger and the
conditions  or  practices  which  caused such imminent danger  no
longer exist."  Assuming an imminent  danger,  this was clearly a
proper issuance of an imminent danger order.  Eastern  Associated
Coal  Corp.  v. Interior Bd. of Mine Op. App., 491 F.2d 277,  278
(4th Cir. 1974).

     Mr. Stephan  testified  as an expert in fires and explosions
in underground mining.  He testified  that  under  normal  mining
conditions  in  the  Tanoma  Mine  at the time that the inspector
issued his order, the following potential  ignition  sources were
present:   (1)  frictional heating developed during a roof  fall,
(2)  electrical discharges  associated  with  a  roof  fall,  (3)
lightening,  (4)  defective  flame safety lamps, (5) pin holes in
compressed air lines, (6) roof  bolts  broken in a roof fall, (7)
non-permissible   electrical   equipment,  and   (8)   improperly
maintained permissible electrical equipment.  (Tr. 202-03.)

     Tanoma argues that these ignition  sources are not pertinent
because "normal mining conditions," i.e., production of coal, was
not going on at the time the order was issued.   This is the same
argument  Eastern Associated Coal made in the case  cited  above.
The court rejected this argument when it held:

          Eastern  asserted  that  a danger is imminent
          only if there is a reasonable likelihood that
          it  will result in injury before  it  can  be
          abated,  and  that  the  admittedly dangerous
          conditions   here   did  not  constitute   an
          "imminent   danger"   because   Eastern   had
          voluntarily   withdrawn   miners   from   the
          affected area prior to issuance of the order.
          The  Secretary  determined,  and   we   think
          correctly,  that  "an  imminent danger exists
          when the condition or practice observed could
          reasonably  be  expected to  cause  death  or
          serious physical  harm  to  a miner if normal
          mining operations were permitted  to  proceed
          in the area before the dangerous condition is
          eliminated."  (Emphasis added).

Id.   Accordingly, I also reject the argument and  conclude  that
Inspector  Sparvieri did not abuse his discretion in finding that
an imminent  danger  existed  in this situation necessitating the
issuance of an imminent danger  order.   See  VP-5 Mining Co., 15
FMSHRC 1531, 1536-37 (August 1993).  In reaching this conclusion,
I give great weight to the unrebutted testimony  of  Mr.  Stephan
and   William   Francart,   an   MSHA   ventilation  expert,  who
corroborated the inspector's judgment.

     I affirm Order No. 3692732.  In doing this, I understand the
feeling of management in this case, as expressed by Mr. DeBreucq,
that  they  did  everything  that they were supposed  to  do,  by
evacuating the mine and shutting  off  the  power,  and  yet they
still have an imminent danger order on their record.  They did do
everything  that  they were supposed to do and the company should
be commended for it.   Tanoma  was  obviously looking out for the
safety of its miners.  On the other hand, the inspector was faced
with what was clearly an imminent danger under the law.  He would
have been remiss in his duties if he  had  not  issued the order.
While I am not aware of any particular stigma that attaches to an
imminent danger order, it appears that both the company  and MSHA
acted  as  they  should  have,  and  by  affirming the order I am
certainly not concluding that the Respondent  was  in the "wrong"
in this instance.

Citation Nos. 3692733 and 3692734

     In  its brief, the company has conceded that the  conditions
in  these  two   citations  violated  section  75.323(e).[2]   It
contests, however,  the  inspector's finding that both violations
were "significant and substantial" and the level of negligence he
attributed  to  the  violations.   I  agree  that  the  level  of
negligence in the citations  should  be  reduced, but I find that
both violations were "significant and substantial."

Significant and Substantial

     The Inspector found both violations to  be  "significant and
substantial."  A "significant and substantial" (S&S) violation is
described in Section 104(d)(1) of the Act as a violation "of such
nature as could significantly and substantially contribute to the
cause  and  effect  of  a  coal  or  other mine safety or  health
hazard."  A violation is properly designated  S&S "if, based upon
the particular facts surrounding that violation,  there  exists a
reasonable likelihood that the hazard contributed to will  result
in  an injury or illness of a reasonably serious nature."  Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

     In  Mathies  Coal  Co.,  6 FMSHRC 1, 3-4 (January 1984), the
Commission set out four criteria  that  have  to  be  met  for  a
violation  to  be S&S.  See also Buck Creek Coal, Inc. v. FMSHRC,
52  F.3d  133,  135  (7th  Cir.  1995);  Austin  Power,  Inc.  v.
Secretary, 861 F.2d  99,  103-04  (5th  Cir.  1988), aff'g Austin
Power,  Inc.,  9  FMSHRC  2015,  2021 (December 1987)  (approving
Mathies criteria).  Evaluation of  the  criteria is made in terms
of "continued normal mining operations."   U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574 (July 1984).  The question of whether a
particular violation is significant and substantial must be based
on  the  particular facts surrounding the violation.   Texasgulf,
Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Co., 9
FMSHRC 1007 (December 1987).

     Relying  on  its  arguments that in this case "normal mining
operations" were that the mine was evacuated and de-energized and
for that reason there was no ignition source, Tanoma asserts that
the third element of the  Mathies  test[3]  was not met by either
cited violation and, therefore, they were not S&S.  This argument
is  rejected  in  the  S&S  context  for the same reason  it  was
rejected  when  discussing the imminent  danger  order.   "Normal
mining operations"  means  operations  during which coal is being
produced, not periods during which, for whatever reason, the mine
is idle.  In this case it is unrebutted  that  numerous  ignition
sources  were  present  during  normal mining operations and that
this mine liberated in excess of  800,000 cubic feet of methane a
day.   Thus,  there was a reasonable  likelihood  that  the  high
concentrations  of  methane  would result in an explosion causing
serious injuries or death.  Accordingly,  I conclude that both of
these  violations  were  "significant  and substantial."   United
States Steel Mining Co., 7 FMSHRC 1125, 1130-31 (August 1985).

Negligence

     The  inspector  found  the level of negligence  involved  in
Citation  No.  3692733  to  be "low."   His  testimony,  however,
indicates that there was no operator  negligence  connected  with
this  violation.   When  asked  why  he  marked the negligence as
"low," he stated:

               I  come [sic] to the conclusion  of  low
          negligence   due   to   the  fact  that  this
          condition occurred through  no  fault  of the
          operator.   It  was a condition that occurred
          in the [g]ob area.   He  had  no control over
          the hea[ve] of the bottom and the  release of
          methane.  However, low is checked due  to the
          fact  that  this  is an ongoing problem since
          approximately  12:30   p.m.   on   the  15th,
          therefore, we couldn't say that there  was no
          negligence    involved.    That's   how   the
          evaluation of low was determined.

(Tr. 87.)  He later explained:   "I would say for me to make that
no negligence, they would have had  to  show  me  a  little  more
effort  than  saying that we're going to idle that section, we're
not going to send people in there to load."  (Tr. 125.)

     I agree with  the inspector that the operator had no control
over the bottom heave  in  the gob and the release of methane.  I
do  not  agree  that the mere passage  of  time  is  evidence  of
negligence.  Nor  do  I  agree  that  the  only  thing  that  the
Respondent  did  when  the problem was discovered was to evacuate
the  section.  The company  also  made  ventilation  adjustments,
which  reduced  the  level  of  methane  below  1%.   Further, no
evidence  was  presented to suggest what else Tanoma should  have
done.

     I find that  when  confronted  with the methane problem, the
company  properly  evacuated  the section  and  made  ventilation
adjustments  which appeared to have  solved  the  problem.   When
greater  concentrations  of  methane  were  detected,  it  became
apparent  to   management   that   more  than  minor  ventilation
adjustments would be necessary and they  began  taking  steps  to
confront  that  problem.  The entire mine was evacuated, MSHA was
notified, and steps  were  being  taken to identify the extent of
the   problem   when   the   inspector  arrived.    Under   these
circumstances, I cannot conclude  that  Tanoma acted negligently.
Consequently,  I  will reduce the level of  negligence  for  this
violation from "low" to "none."

     With respect to  Citation  No.  3692734, the inspector found
the level of negligence to be "moderate."   He  testified that he
made this finding because:

          During  the  source  of this entire  situation
          back  to  January  15th,   there   was   [sic]
          ventilation   changes  made  throughout   this
          entire   area.    And   at   this   particular
          location, initially when the air  was  changed
          we experienced methane as high  as ten, 12, 14
          percent the night of the original change. . . .

          . . . .

          And  the  operator  had certified people  who
          were agents of the operator, the mine foreman
          himself,  the superintendents  were  in  here
          daily and sometimes  as  much as two shifts a
          day.    They  were  patrolling   this   area,
          examining  this area, walking this area.  And
          the fact that methane was present or going to
          be present at  this  location, you know, just
          moderate --- they knew  it  was  going  to be
          there.    It's  obvious  it's  not  going  to
          disappear all  at  once  over night, and just
          about everybody that was there was aware that
          this  problem would probably  arise  at  that
          location.

          . . . .

               [The  ventilation] was working properly,
          it just wasn't adequate in the E4 gob area to
          rid that of the methane in that area.

(Tr. 102-03.)  (Emphasis added.)

     When he issued the  citation,  the  inspector directed that:
"This  area shall be monitored by a certified  person  until  the
methane is less than 2.0%."  (Govt. Ex. 6.)  The citation and the
above testimony  constitute all of the evidence on this issue.  I
find  the  emphasized   testimony   revealing  on  the  issue  of
negligence.  There was an unknown concentration of methane in the
gob caused by the bottom heave.  Significant ventilation changes,
approved by MSHA, reversed the flow of  air  in the mine.  It was
expected  that  the  level  of  methane  would increase  at  this
evaluation  point  until  the  methane was diluted  in  the  gob.
Everyone knew this would occur.   But that does not mean that the
operator was negligent when it did  happen,  any  more  than  the
company  was  negligent  when  the  change was first made and the
level was 14%.

     Significantly, the inspector did not state what the operator
should have done about this situation.   It appears from the fact
that he directed that the area be monitored,  that the only thing
that  could  be  done  was to wait for the problem  to  abate  by
itself.  It apparently did so on January 26 when the citation was
terminated because methane  concentrations were below 2%.  (Govt.
Ex. 6.)  Just as the operator  had  no  control over the cause of
the heavy methane concentrations, it apparently  had  no  control
over  the  length  of  time  it would take to reduce the level of
methane going into the return to workable levels.  Accordingly, I
conclude that the company was  not negligent in this instance and
will modify the citation to reduce  the  level of negligence from
"moderate" to "none."

                     Civil Penalty Assessment

     The Secretary has proposed penalties of $442.00 and $362.00,
respectively, for the contested citations  and  the  parties have
agreed on a penalty of $75.00 for the settled citation.  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.  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  penalty  criteria,  the  parties
stipulated  that  the  Tanoma Mine produces approximately 506,620
tons of coal per year and the company 622,000, that imposition of
the  proposed civil penalties  will  not  affect  the  operator's
ability  to remain in business and that the operator demonstrated
good faith  in  abating  the citations.  (Tr. 19.)  The company's
history of violations indicates a low number of prior violations.
(Govt. Ex. 1.)  Therefore,  I  find that the Respondent's history
of prior violations is good.  I find that the gravity of Citation
Nos. 3692733 and 3692734 was serious,  but  that  the company was
not negligent in either instance.

     Taking  all  of this into consideration, I conclude  that  a
penalty of $225.00  is appropriate for Citation No. 3692733 and a
penalty of $125.00 is  condign  for  Citation  No. 3692734.  As I
have already indicated, I conclude that the agreed  upon  penalty
of $75.00 for Citation No. 3692439, as modified, is appropriate.

                              ORDER

     Accordingly, Order No. 3692732 in Docket No. PENN 97-81-R is
AFFIRMED and Citation Nos. 3692733, 3692734 and 3692439 in Docket
No.  PENN 97-129 are MODIFIED by reducing the level of negligence
from "low" to "none" for Citation No. 3692733 and from "moderate"
to  "none"   for   Citation  No.  3692734  and  by  deleting  the
"significant  and  substantial"   designation  for  Citation  No.
3692439, and are AFFIRMED as modified.

     Tanoma Mining Company is ORDERED  TO  PAY a civil penalty of
$425.00 within 30 days of the date of this decision.   On receipt
of payment, these cases are DISMISSED.



                              T. Todd Hodgdon
                              Administrative Law Judge

Distribution:

Joseph   A.   Yuhas,   Esq.,   1809 Chestnut   Avenue,   P.O.  Box  25,
Barnesboro, PA 15714 (Certified Mail)

Pamela  W. McKee, Esq.,  Office  of the Solicitor,  U.S.  Department of
Labor, 14480 Gateway Building, 3535 Market  Street,  Philadelphia,   PA
19104 (Certified Mail)

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**FOOTNOTES**

     [1]:  Section  104(c)  provides,  in  pertinent  part:  "The
following persons shall not be required to be withdrawn  from, or
prohibited from entering, any area of the coal mine or other mine
subject  to  an  order issued under this section:  (1) any person
whose presence in  such area is necessary, in the judgment of the
operator or an authorized  representative  of  the  Secretary, to
eliminate the condition described in the order . . . ."

     [2]:  Section 75.323(e) states:  "Bleeders and other  return
air courses.   The concentration of methane in a bleeder split of
air immediately  before  the air in the split joins another split
of air, or in a return air  course  other  than  as  described in
paragraphs  (c)  and  (d)  of this section, shall not exceed  2.0
percent."

     [3]: The third element  is "a reasonable likelihood that the
hazard contributed to will result in an injury."  Mathies at 3-4.