<DOC>
[DOCID: f:w-92-819.wais]

 
ENERGY WEST MINING COMPANY
March 9, 1995
WEST 92-819-R


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                      1244 SPEER BOULEVARD #280
                        DENVER, CO 80204-3582
                    303-844-3577/FAX 303-844-5268


                            March 9, 1995

ENERGY WEST MINING COMPANY,     :  CONTEST PROCEEDING
                 Contestant     :
                                :  Docket No. WEST 92-819-R
            v.                  :  Citation 3851235; 9/2/92
                                :
SECRETARY OF LABOR,             :  Cottonwood Mine
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Mine I.D. 42-01944
                 Respondent     :
                                :
SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. WEST 93-168
                 Petitioner     :  A.C. 42-01944-03613
                                :
            v.                  :  Cottonwood Mine
ENERGY WEST MINING COMPANY,     :
                 Respondent     :

                               DECISION

Appearances:  Timothy M. Biddle, Esq., Crowell & Moring, Washington,
              D.C. for Energy West Mining Company; Robert A. Cohen,
              Esq., Office of the Solicitor, U.S. Department of Labor,
              Arlington, Virginia, for the Secretary of Labor; Greg
              Hawthorne, Esq., United Mine Workers of America,
              Washington, D.C., for intervenor, United Mine Workers
              of America.

Before:  Judge Manning

     These cases are before me pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et
seq. (1988)("Mine Act" or "Act") following a remand from the Com-
mission.  16 FMSHRC 1414 (July 1994).  The Commission reversed
and remanded the decision of former Administrative Law Judge
Michael A. Lasher, Jr. on the basis that he improperly granted
the Secretary of Labor's motion for summary decision.  Id.  The
Commission concluded that summary decision was improper because
"central facts were disputed."  Id. at 1419.

     A hearing was held on November 30, 1994, in Salt Lake City,
Utah.  The parties presented testimony and documentary evidence,
and submitted post-hearing briefs.

                         I.  FINDINGS OF FACT

     On September 2, 1992, Fred Marietti, an inspector with the
Department of Labor's Mine Safety and Health Administration
("MSHA"), issued Energy West Mining Company ("Energy West") a
citation alleging a violation of 30 C.F.R. � 75.326[1] at its
Cottonwood Mine.  The citation, as modified, states as follows:

               The petition for modification, Docket
          No. 86-MSA-3, was not being complied with in
          the 9th left two entry panel.  The belt was
          in the No. 2 entry.  The longwall is being
          set up for pillar retreat.  9th left is the
          headgate entries.  There were three diesel
          Isuzu trucks that were not approved under 30
          C.F.R. Part 36.  This is required on page 41
          �(c)(4).

(Ex. G-1).  On the citation, the inspector stated that the
alleged violation was not significant and substantial and was
caused by Energy West's moderate negligence.  Energy West con-
tested this citation and the Secretary proposed a penalty of
$50.00.

A.  Background

     The Cottonwood Mine is a deep coal mine with a coal seam
that is between 700 feet and 2,100 feet beneath the surface.
(Tr. 157).  The mine's depth creates ground control
problems, including face and pillar bouncing, pillar bursts
and roof control problems.  Id.  Energy West extracts the coal
using the longwall method.  It develops entries around a large
block of coal using continuous mining machines, sets up the
longwall equipment at the inby end of the block of coal, and
then extracts this block with the longwall equipment by
retreating in an outby direction.  A block of coal typically
is between 4,000 to 5,000 feet in length and 700 to 750 feet
in width.  (Tr. 164).  The longwall equipment includes a
large sheering machine that cuts the coal, shields that
support the roof at the face, and a con-
veyor system that transports the coal out of the section.
The coal face, which is about 700 feet wide, is along the
inby side of the rectangular coal block.  The block of coal
is extracted over a period of between 3 and 12 months with
the longwall equipment.  Id.

     A minimum of three entries are required to be developed
along each side of the block of coal when a conveyor belt is
used to remove the coal.  An MSHA safety standard provides,
in part, that "entries used as intake and return air courses
shall be separated from belt haulage entries."  30 C.F.R. �
75.326.[2]  These entries provide separate air courses for
intake and return ventilation, safe access to the working
face through the intake entry, and a separate route for the
coal conveyer belt.

     Because the depth of the overburden was causing ground con-
trol problems at the Cottonwood Mine, Energy West filed a
petition for modification with MSHA pursuant to Section
101(c) of the Mine Act, 30 U.S.C. � 811(c), seeking
permission to develop two rather than three entries along
the sides of each block of coal.[3]  The petition was
required because Energy West planned on using a belt to
remove the coal and the belt entry would also have to be
used for intake or return air, thereby violating the safety
standard.  The petition was granted by the Assistant
Secretary for Mine Safety and Health on July 14, 1989,
following administrative litigation before the Department of
Labor.  (Ex. G-7).  The Assistant Secretary's Decision and
Order ("D&O") granting the petition contains a number of
terms and conditions not contained in Energy West's
petition.  As discussed below, one of these conditions is
the subject of this proceeding.

     Two-entry mining in longwall sections has been a subject of
considerable discussion at MSHA and a task force was formed
to study it.  In 1985, the MSHA task force issued its report
entitled Two-Entry Longwall Mining Systems - A Technical
Evaluation.  (Ex. G-6).  As a result of their study, the
task force reached the following conclusion:

          After a through analysis of technical
     data, review of available "bump" and roof
     fall records, extensive review of in-mine
     conditions, and deliberations among all Task
     Force members, the Task Force concluded that
     the 2-entry technique for developing longwall
     panels can be a justifiable mining procedure.
     The Task Force, however, recognizes that
     emergency evacuation is limited when using
     this technique and, therefore, recommends
     that it be permitted only after the safe-
     guards contained in this report have been
     considered.

Id. at 2-3.  The task force reached this conclusion because
technical and historical data establish that the "2-entry tech-
nique, under adverse geologic conditions, has reduced the occur-
rence of pressure `bumps,' roof falls, and other ground control
problems during mining operations."  Id. at 11.

     Safeguard No. 6 in the task force report states:  "All
diesel-powered equipment, operated on any longwall development or
longwall panel where both the intake and alternate escapeways are
ventilated with the same continuous split of air, be approved
under the provisions of 30 C.F.R. Part 36 and be provided with a
fire-suppression system."  Id. at 58.  The report concludes that
because diesel equipment creates additional fire hazards not
present with electrical equipment, the use of diesels is "too
hazardous for use in areas of a mine with limited escape routes."
Id.  Accordingly, the report recommends that only diesel equip-
ment approved under Part 36 be permitted because "such equipment
has been designed to reduce the likelihood of a machine fire."
Id.[4]

     The Assistant Secretary's D&O accepted Safeguard No. 6, as
recommended by the task force.  (Ex. G-7 at 34, 41).  Under the
heading "Requirements Applicable to Both Development and Retreat
Mining Systems," the D&O provides, at paragraph III(c)(4):

          No later than two years from the date of this
          order, and pursuant to a schedule developed
          by the petitioner and approved by the Dis-
          trict Manager, all diesel-powered equipment
          operated on any two-entry longwall develop-
          ment or two-entry longwall panel shall be
          equipment approved under 30 C.F.R. Part 36.

Id. at 41.  Paragraph III(c)(5) of the D&O states that such
diesel equipment "operated on any longwall development or long-
wall panel shall be provided with a fire suppression system."
Id.[5]

     In explaining this provision, the Assistant Secretary
stated:

          As noted earlier, one of the ... recommenda-
          tions of the MSHA Task Force on longwall
          mining was that only diesel equipment ap-
          proved under 30 C.F.R. Part 36 and equipped
          with a fire suppression system be used on
          two-entry panels.  The evidence before me
          establishes that this recommendation should
          be imposed as a requirement in this case.

Id. at 41 n. 16 (citations omitted).

     B.  The two-entry longwall mining process

     Under the petition for modification, as granted, Energy West
develops two headgate entries along one side of the block of
coal.  Tailgate entries are usually present on the other
side from mining the adjacent block of coal.  As the two
headgate entries are advanced, one entry is used as the air
course for intake ventilation, and the other entry is used
for belt haulage and return air.  (Ex. C-4).  After the
entries are developed, and the longwall mining equipment has
been set up, longwall retreat mining begins.  As the
longwall retreats, one of the headgate entries is used as
the primary air course for intake air and the other entry is
used for belt haulage and as a secondary intake air course
on the same split of air.  Id.  The tailgate entries are
used for return air.   In general terms, return air is air
that has ventilated the last working place.  30 C.F.R. �
75.301.

     During the time that the longwall equipment is being set up,
after the headgate entries have been developed but before
longwall retreat mining begins, there is no return air.
(Tr. 38).  The circulating air does not ventilate a working
place.  (See, 30 C.F.R. �� 75.2 and 75.301).  The
ventilation system is modified during the longwall
installation period in preparation for retreat mining.

C.  The citation

     Inspector Marietti issued the citation on September 2 and no
coal production had taken place at the panel since August
18.  The two headgate entries (9th Left) had been completed
with continuous mining machines on August 18.  (Ex. C-8, C-9).
The tailgate entries had been previously developed.
Miners were installing the longwall equipment in the "setup"
entries that connect the headgate and tailgate entries along
the inby (face) side of the block of coal.  (See Ex. J-1).
These activities are summarized in Ex. C-8.  The belt, which
had been used when the headgate entries were advanced, was
being modified so that it could be used with the longwall
equipment on retreat.  The belt structure was still present,
but the belt had been cut, sections of the belt removed, and
splices were being completed.  These activities are
summarized in Ex. C-9.  (See generally Tr. 244-50).  The
belt was not trained and ready for use in conjunction with
the longwall until September 17.  (Ex. C-8).  Longwall
retreat mining commenced on September 18.

     Inspector Marietti issued the citation because he observed
three nonpermissible trucks in one of the headgate entries.
He believes that the D&O allows only permissible diesel
trucks in the longwall panel from the start of longwall
panel development until longwall retreat mining is
completed.  At the time the citation was issued air was
moving in an inby direction in the headgate entry containing
the trucks and was moving inby at a slower rate in the entry
containing the belt conveyor system.  This intake air was a
single split and the air in the belt entry was mixing with
air in the intake entry containing the trucks.  (Tr. 223).
The air was exiting the panel through one of the tailgate
entries and the bleeders.  Additional air was entering the
panel through two of the tailgate entries.[6]

                II.  SUMMARY OF THE PARTIES' ARGUMENTS

     A.  Secretary and UMWA[7]

     The Secretary argues that Energy West cannot accept the
broad benefits of the D&O while limiting its applicability
to those times when coal is being extracted.  The Assistant
Secretary made clear in his D&O that he could consider
safety factors that do not directly relate to the purpose of
the standard being modified.  By limiting the petition's
terms to those periods when coal is being extracted, Energy
West ignores safety hazards that are present at other times
during longwall mining cycle.  The D&O does not include any
language limiting its application to production periods.
Many activities were occurring in the headgate and setup
entries between August 18 and September 18, and Condition
III(c)(4) should protect miners performing those tasks.
Finally, the Secretary maintains that correspondence between
MSHA and Energy West establish that Energy West recognized
before the citation was issued that the D&O required it to
use permissible diesel equipment during the longwall
installation period.[8]

B.  Energy West

     Energy West argues that because a functioning coal conveyer
belt was not present at the time the citation was issued,
there was no "belt haulage entry," as that term is used in
30 C.F.R. � 75.326.  Accordingly, Section 75.326 did not and
could not apply at that time.  Because Section 75.326 did
not apply, it follows a fortiori that neither the petition
for modification nor the D&O applied.  Therefore, Condition
III(c)(4) of the D&O does not pertain to longwall
installation and the citation is invalid.  It maintains that
the petition cannot apply to longwall installation, as a
matter of law, because there is nothing to modify.

     Energy West maintains that at no time during the protracted
modification proceedings before the Department of Labor did
anyone suggest that the petition would cover longwall
installation.  It emphasizes that neither the task force
report nor the D&O discuss longwall installation.  As
discussed in more detail below, it argues that the specific
language of the D&O, including Condition III(c)(4), supports
its position that longwall installation was not included.

     Finally, Energy West argues that Condition III(c)(4) was
included because of the dangers inherent when miners are
working in an area ventilated by a single split of air with
limited escape routes.  It points out that at the time the
citation was issued, 9 Left was ventilated by two separate
spits of air and that there were five escape routes.  It
maintains that the trucks did not present a fire hazard.

                III.  DISCUSSION WITH FURTHER FINDINGS
                                 AND
                          CONCLUSIONS OF LAW

     Energy West makes several compelling arguments that
Condition III(c)(4) should not apply during longwall
installation.  I find, however, that Energy West's factual
assumptions, as described below, do not support its legal
arguments.

     Energy West's reasoning in this case is dependent on its
contention that the Assistant Secretary's D&O is not
applicable to the process of installing the longwall
equipment and modifying the belt ("longwall installation").
It bases this argument on two underlying factual
assumptions.  First, it maintains that a belt haulage entry
does not exist during longwall installation because the
miners are modifying the belt and its structure at that time
for use with the longwall equipment and the belt is,
therefore, inoperable.  Second, Energy West contends that
the language in the D&O, including the language in Condition
III(c)(4), excludes longwall installation.  I find that the
evidence does not support Energy West's position.

     It is undisputed that the one of the two entries in 9 Left
contained the belt structure, rollers, and other equipment
necessary for the operation of the belt, designated as the B
entry on Ex. J-1.  It is also not disputed that the belt was
not in use on the date of the inspection and could not be
used because it was being modified for use with the longwall
equipment.  Splices were being vulcanized, rollers added and
other changes made.  (Tr. 244-50).  Energy West argues that
the term "belt haulage entry" in Section 75.326 "does not
refer to an entry in which no belt haulage occurs."  (E.W.
Br. 4).  On this basis, it maintains that because there was
no belt haulage entry on September 2, Section 75.326 would
not have applied and, consequently, the D&O did not apply.

     In spite of the fact that the belt was not in use and could
not have been used on September 2, 1992, I find that the
entry containing the belt and belt structure was a belt
haulage entry on that date, as that term is used in Section
75.326.  That entry was a belt haulage entry during the
development of the longwall panel.  The entry was a belt
haulage entry when the longwall was mining coal after
September 17.  I do not believe that this entry ceased being
a belt haulage entry during the 30-day period that the belt
and its structure were being modified for longwall retreat
mining.  I find that the term "belt haulage" refers to a
belt conveyer system, and a belt haulage entry is an entry
that contains a belt haulage system.[9]   The entry in
question contained a belt haulage system and, therefore, was
a belt haulage entry.[10]

     If a longwall panel is put on inactive status after the
headgate entries are developed, the entry containing the
belt conveyer system would, perhaps, no longer be deemed a
"belt haulage entry."  Under the facts of this case,
however, Energy West was proceeding directly through the
mining cycle in order to start retreat mining.  The fact
that longwall installation is a complex process that takes
30 days, as opposed to a shift or two, does not change this
fact.[11]

     Energy West also argues that the language of the D&O
precludes the application of Condition III(c)(4) to the period
of longwall installation.  I disagree.  I believe that the
language of the D&O makes clear that the Assistant Secretary
intended that the terms of Condition III(c)(4) apply during
the entire mining cycle, from the time that development of a
new longwall panel commences until retreat mining has been
completed.  There is no language in the D&O that excludes
the longwall installation process from the requirements of
the condition or any other provisions of the D&O.  In its
brief, Energy West lists a number of conditions under
paragraph III that it believes demonstrates that the
longwall installation process was excluded.  (E.W. Br. 13-
14).  Some of these provisions, by their very nature, may be
inapplicable during longwall installation because there is
no working place or working section.  Condition III(c)(4),
however, does not limit its application to periods when
there is a working place or working section.

     More importantly, I believe that the language of the D&O
supports the Secretary's position.  Condition III(c)(4) is
included under the heading:  "Requirements Applicable to
Both Development and Retreat Mining Systems."  Two of the
Secretary's witnesses testified that longwall installation
is part of longwall development.  Robert Ferriter, chief of
the ground support division of MSHA's Denver Safety and
Health Technology Center, was Chairman of the MSHA task
force.  He testified that during the task force's
deliberations they discussed the longwall installation phase
and considered it to be "part of the development of the
longwall panel."  (Tr. 57).  He testified that the task
force recommendation concerning permissible diesel equipment
applies to the entire mining cycle and that there is no
"time-out period."  (Tr. 59).  Allyn Davis, Chief of MSHA's
Division of Coal Mine Safety, testified that the Assistant
Secretary "intended ... that [the permissibility
requirement] apply throughout the use of the two-entry
system..."  (Tr. 85).  He reached this conclusion based on
the language of the D&O and the fact that he believes that
the hazards associated with using diesel trucks continue to
exist while the longwall equipment is being moved in and set
up.  Id.  I credit this testimony and find that longwall
installation is part of "longwall development," as that term
is used in the D&O.

     Condition III(c)(4) provides that "all diesel-powered
equipment operated on any two-entry longwall development or
longwall panel shall be equipment approved under 30 C.F.R.
Part 36."  Given my finding that longwall installation is a
part of longwall development, I find that the condition
applied at the time the citation was issued.  There is no
dispute that the diesel trucks in question did not meet
these requirements.

     Energy West is correct in stating that the panel was venti-
lated by two separate splits of intake air and that there
were more than two escape routes out of the panel.  As
Energy West states, the primary reason that the condition
was included in the D&O is because the number of escape
routes is limited in two-entry mining.  During longwall
installation more escape routes are available than when the
headgate entries or the longwall panel are being mined.
(Tr. 46, 97-98).  Nevertheless, I find that the record
establishes that nonpermissible diesel trucks present a
hazard in the longwall panel even under these circumstances.
(Tr. 33, 85).  The hazard is the risk of fire caused by
nonpermissible diesel equipment.  The trucks' catalytic
converters, the presence of diesel fuel and the risk that
adequate escapeways will not be available create hazards to
miners in the panel.  (Tr. 26, 33, 85).  There would be more
escape routes available in the event of an emergency if the
headgate and tailgate entry sets were comprised of three
entries each.  In an emergency one or more of the escape
routes could be blocked.  I find, however, that the safety
hazards are considerably less during longwall installation
than at other times.  (Tr. 57-58, 75-76, 97-98).

     Finally, Energy West states that Condition III(c)(4) was not
proposed in its petition for modification and was not
included in the proposed decision and order of the
Administrator but was "imposed on Energy West sua sponte by
the Assistant Secretary."  (E.W. Br. 5).  Energy West
contends that the Secretary's unreasonable interpretation of
Condition III(c)(4) has likewise been imposed on it without
any prior notice.  In a letter to David Lauriski of Energy
West, dated March 23, 1987, John W. Barton, MSHA District
Manager, made it clear that MSHA considers longwall
installation to be a part of development mining.  (Ex. G-2).
Although this letter was in reference to interim relief
granted by MSHA under a petition for modification at Energy
West's Deer Creek Mine, the principles are the same.  Thus,
Energy West cannot claim that it did not know that MSHA
considered longwall installation to be a part of longwall
development and that MSHA might apply Condition III(c)(4)
during that period.  (See also Tr. 20, 226).

     I recognize that Energy West has been unable to find the
equipment necessary to make the Isuzu trucks permissible or
find other small permissible diesel powered vehicles.  I
also recognize that these trucks have served as an important
means of transportation for men and materials in and out of
longwall panels during installation.  Energy West believes
that switching to battery-powered vehicles or requiring
miners to walk in and out of the panel would result in a
diminution of safety.  (Ex. C-7).  I do not have the
jurisdiction to consider this issue.

     Taking into consideration the criteria of Section 110(i) of
the Act, 30 U.S.C. � 820(i), I find that a civil penalty of
$50.00 is appropriate.  I find that the violation did not
create a serious safety hazard because coal was not being
extracted, there were more that two escape routes out of the
panel, and the risk of fire was low.  I also find that the
violation was not significant and substantial because there
was not a reasonable likelihood that the hazard will result
in the injury.  I agree with the inspector's determination
that the violation was the result of Energy West's moderate
negligence.

                              IV.  ORDER

     Accordingly, Citation No. 3851235 is AFFIRMED and Energy
West Mining Company is directed to pay a civil penalty of
$50.00 within 30 days of the date of this decision.


                               Richard W. Manning
                               Administrative Law Judge


Distribution:

Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)

Timothy Biddle, Esq., CROWELL & MORING, 1001 Pennsylvania Avenue,
NW, Washington, DC 20004-2595 (Certified Mail)

Greg Hawthorne, Esq., United Mine Workers of America, 900 - 15th
Street, NW, Washington, DC 20005 (Certified Mail)

/RWM

**FOOTNOTES**

     [1]:  The cited safety standard provided, in pertinent part,
that "the entries used as intake and return air courses shall be
separated from belt haulage entries..."  This safety standard was
superseded by 30 C.F.R. � 75.350, effective November 16, 1992.
For purposes of this proceeding, the two standards are identical
and I refer to the old standard in this decision.

     [2]:  See note 1, supra.

     [3]:  Since August 23, 1985, the date the petition was
filed, the Cottonwood Mine has been operated by Emery Mining
Corporation ("Emery"), Utah Power and Light ("UP&L"), and Energy
West.  Emery operated the mine until 1986 for the owner, UP&L.
In 1990, UP&L merged with Pacific Corp.  Energy West is a
subsidiary of Pacific Corp. (Tr. 152-3).  In this decision, I
refer to the operator as Energy West without regard to the
corporate identity.

     [4]:  Part 36, of 30 C.F.R. sets forth "requirements for
mobile diesel-powered transportation equipment to procure their
approval and certification as permissible for use in gassy
noncoal mines..."  30 C.F.R. � 36.1.  There are no similar
procedures for obtaining the approval and certification of
permissible diesel transportation equipment in coal mines.
Apparently, MSHA uses these noncoal mine certification procedures
to certify permissible diesel transportation equipment in coal
mines where such certification is deemed necessary.  (Tr. 41).

     [5]:  The trucks cited by MSHA in this case were equipped
with fire suppression systems.

  On this particular panel, there were three tailgate entries.

     [7]:  The United Mine Workers of America did not file a
brief but stated in a letter that it "concurs with" the
Secretary's brief.

     [8]:  The Secretary also argues that the conclusions of
former Administrative Law Judge Lasher are still valid.  He
states that "nothing has changed [since] Judge Lasher originally
weighed the evidence."  S. Br. 5.  Judge Lasher, however, did not
"weigh the evidence" because he granted the Secretary's motion
for summary decision.  I have not considered Judge Lasher's
analysis or conclusions in reaching my decision in this case.

     [9]:  The term "haulage" refers to a track haulage system or
a belt conveyer system.  See, Bureau of Mines, U.S. Department of
the Interior, Dictionary of Mining, Mineral, and Related Terms,
at 530 (1968).

     [10]:  In support of its position, Energy West points to the
testimony of Inspector Marietti that section 75.326 did not apply
at the time.  (E.W. Br. 9; Tr. 39).  I interpret the inspector's
testimony to mean that the safety standard did not apply to the
Cottonwood Mine at all because it had been superseded by the D&O.
(See also Tr. 18).  This interpretation is consistent with the
testimony of MSHA witness Davis (Tr. 86, 106).

     [11]:  Energy West states that it has used shuttle cars for
haulage in two entry longwall panels and argues that such a
system would not violate the safety standard.  (E.W. Br. 4 n.3).
I agree that such a haulage system would not have violated the
safety standard and would not violate the D&O because a belt
haulage entry would not exist.  This argument, however, does not
support its position in this case.