<DOC>
[DOCID: f:wv9827.wais]

 
CONSOLIDATION COAL COMPANY
July 27, 1998
WEVA 98-27


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                          July 27, 1998

SECRETARY OF LABOR            :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),      :  Docket No. WEVA 98-27
               Petitioner     :  A. C. No. 46-01433-04242
          v.                  :
                              :
CONSOLIDATION COAL COMPANY,   :
               Respondent     :  Loveridge No. 22 Mine

                            DECISION

Appearances:  Lynn A. Workley, Conference & Litigation
              Representative, U.S. Dept. of Labor, Morgantown,
              West Virginia, on behalf of Petitioner;
              Elizabeth S. Chamberlin, Esq., Consol Inc.,
              Pittsburgh, Pennsylvania, on behalf of Respondent.

Before:  Judge Melick

     This case is before me upon a Petition for Civil Penalty
filed by the Secretary of Labor against the Consolidation Coal
Company (Consol) pursuant to Section 105(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. Section 801 et. seq.,
the "Act," seeking a civil penalty of $506.00, for one violation,
on September 10, 1997, of 30 C.F.R. Section 75.323(b)(2)(ii).
The general issue before me is whether Consol violated the cited
standard as alleged, and if so, what is the appropriate civil
penalty to be assessed considering the criteria under Section
110(i) of the Act.

     The citation at bar, Citation No. 3492989, as amended,
alleges as follows:

          In the number two bleeder entry off the number one
     entry of 4-Left, there is an accumulation of methane.  The
     No. 2 bleeder entry starts at station number 99 block of the
     4-Left number one entry.  When tested on the right side of
     the continuous miner, 1.5% methane was found in a measure-
     ment greater than 12 inches from the roof, face and ribs.
     The section foreman was notified and Mr. Pichardo did no
     [sic] remove the electrical power from the equipment in the
     affected area in a timely manner.

     The cited standard, 30 C.F.R. Section 75.323(b)(2),
provides in relevant part as follows:

          (2)  When 1.5 percent or more methane is present in a
     working place or an intake air course, including an air
     course in which a belt conveyor is located, or in an area
     where mechanized mining equipment is being installed or
     removed -

          (i)  Everyone except those persons referred to in �
     104(c) of the Act shall be withdrawn from the affected area;
     and
          (ii)  . . . electrically powered equipment in the
     affected area shall be disconnected at the power source.

     Thomas May, Sr., is an experienced coal mine inspector for
the Mine Safety and Health Administration (MSHA) with additional
industry experience and two years of college education.  On
September 1, 1997, at about 8 a.m., he began his inspection at
the Loveridge No. 22 Mine, accompanied by Consol safety inspector
Richard Moats and representative of miners, Carol Liston.  Later
in the morning as they approached the No. 2 entry, the mining
crew withdrew the continuous miner and began shutting down for
lunch.  May proceeded toward the face to check the airflow and
test for methane.  To perform these tests in a tight space he had
to move the ventilation tubing.  May detected 1.5% methane, again
repositioned the ventilation tubing and again detected 1.5%
methane.  May then informed Moats that he had encountered 1.5%
methane.

     According to May, Moats then proceeded to the face and
performed his own methane check.  He extended the ventilation
tube and held it on his shoulder.  May testified that he was
unable to see precisely where Moats obtained his methane reading
because his view was obstructed.  He later testified that Moat's
reading was not as close to the face as his own.  According to
May, Moats then momentarily left the area and returned, telling
Liston that he needed a ventilation tube at the face.  Sometime
during the course of these events, Moats told May that he had
obtained a 1.3% methane reading.  Moats then appeared to cut the
power on the miner.  May saw however, that a light was still
activated on the miner and told Moats that the power should be
cut at the power center.  Moats purportedly responded that
Pichardo, the section foreman, would take care of it.  Pichardo
then appeared, took his own methane test and told May that he had
obtained a .9% methane reading.  May maintains that he told
Pichardo that he had obtained a 1.5% reading and that he needed
to cut the power at the power center.  Pichardo then  immediately
walked to the power center and cut the power.

     Within this framework of credible evidence it is clear that
there was a violation of the cited standard when 1.5% methane was
discovered by Inspector May at the face, an agent of the operator
was notified of this and yet power at the power center was not
cut for a period of approximately 15 minutes.  While the
violation may indeed have been caused by the inspector himself
when admittedly moving the ventilation tubing at the face, it is
now well-established that operators are liable for violations of
the Act without regard to fault.  Sewell Coal Co. v. FMSHRC, 686
F.2d 1066, 1071 (4th Cir. 1982); Allied Products Co., v. FMSHRC,
666 F.2d 890 (5th Cir. 1982);  Fort Scott Fertilizer-Culler,
Inc., 17 FMSHRC 1112 (July 1995).


     In reaching these conclusions, I have not disregarded the
testimony of Consol's witnesses, Moats, Pichardo and Richardson.
Their testimony does not, however, negate the existence of the
violation.  For example, Moats admits that he did not cut the
power at the power center when informed of the existence of 1.5%
methane and only attempted to cut the power to the continuous
miner.  However, Moats claims he tried to tell Pichardo to remove
the power at the power center but Pichardo, who is hard of
hearing, apparently did not hear him.  Moats also  promptly
attempted to remove the methane by having additional tubing
installed and, according to Moats, the methane level was thereby
reduced to 1.1% within one to two minutes.  The testimony of
Pichardo and Richardson also mitigates operator negligence and
gravity.  After being informed of a potential problem, Pichardo
checked the left side of the miner for methane and obtained only
a .9% reading.  Pichardo also noted that accumulations of methane
would likely be on the left side since the ventilation tubing
pulls the air out of the right side.  In addition, Pichardo
testified that when Inspector May told him that he had obtained a
1.5% methane reading and wanted the power off, he in fact cut the
power within two minutes - - the time it took him to walk to the
power center.  Assistant Mine Superintendent Richardson
corroborated that once Richardson told Pichardo that he needed to
remove the power at the power center he  did so.

     In evaluating the evidence I conclude that the Secretary's
evidence regarding the amount of time between the inspector's
notification of the violative condition to the operator's agent,
Richard Moats, and the action by Pichardo to cut the power at the
power center is the more credible.  The inspector estimated that
time to have been about 15 minutes.  (Gov. Exh. No. 2, Pg. 5).  I
do, however, credit the operator's testimony that the inspector
had adjusted the ventilation tubing before taking his methane
tests, and that their own readings were below 1.5%.  Thus, Consol
officials could reasonably have believed the inspector's readings
were not valid and that the methane level was actually below the
1.5% threshold set forth in the cited standard.  Their prompt
efforts to obtain additional ventilation tubing to clear the
methane should also be considered in evaluating negligence.
Nevertheless, it is clear that once methane at 1.5 % was found
and Consol was informed of this through its agent Richard Moats,
the power should have immediately been cut at its source.

     The Secretary also maintains that the violation was
"significant and substantial" and of high gravity.  A violation
is properly designated as "significant and substantial" if, based
on 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 explained:

          In order to establish that a violation of a mandatory
     standard is significant and substantial under National Gypsum
     the Secretary must prove:  (1) the underlying violation of
     a mandatory safety standard, (2) a discrete safety hazard --
     that is, a measure of danger to safety -- contributed to by
     the violation, (3) a reasonable likelihood that the hazard
     contributed to will result in an injury, and (4) a reasonable
     likelihood that the injury in question will be of a reasonably
     serious nature.

     See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-04
(5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987)
(approving Mathies criteria).

     The third element of the Mathies formula requires that the
Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an
injury (U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984)), and also that the likelihood of injury be evaluated in
terms of continued normal mining operations.  U.S. Steel Mining
Co., Inc., 6 FMSHRC 1573, 1574 (July 1984); See also Halfway,
Inc., 8 FMSHRC 8, 12 (January 1986) and Southern Ohio Coal Co.,
13 FMSHRC 912, 916-17 (June 1991).

     On this issue, as with all issues, I am constrained by the
evidence of record.  In this regard, I find the record evidence
inadequate to establish the third element of the Mathies test.
Critical parts of the inspector's testimony in this regard were
ambiguous and somewhat confusing.  Moreover, his use of the terms
"possibly" and "possibilities" where the standard is "reasonable
likelihood" makes it impossible to meet the third element.  See
Amax Coal Company, 18 FMSHRC 1355 (August 1996).  His testimony
on this issue was in part as follows:

          The fact of having the methane accumulation in the
     face, the auxiliary fan for one is still running.  In
     changing the tube, when you increase the distance from
     the face to the ventilation device from the end of the
     tubing, you also increase the possibility of methane
     accumulation.  You use the spad gun which can create
     a spark.  You're working with tubing that has dust in it.
     You're dragging the tubing, carrying it up there, you
     get coal, rock inside the tubing.  When you put it on
     the existing tubing, that sucks it back into the fan.
     Possibilities of spark from the fan itself.

     Considering all of the criteria under Section 110(i) of the
Act, I find that a civil penalty of $100.00, is appropriate.

                              ORDER

     Citation No. 3492989 is AFFIRMED without a "significant and
substantial" designation and the Consolidation Coal Company is
directed to pay a civil penalty of $100.00 within 30 days of the
date of this decision.


                              Gary Melick
                              Administrative Law Judge


Distribution:

Lynn A. Workley, Conference & Litigation Representative, U.S.
Dept. of Labor, Mine Safety and Health Administration (MSHA),
5012 Mountaineer Mall, Morgantown, WV 26505
(Certified Mail)

Elizabeth S. Chamberlin, Esq., Consol Inc., Consol Plaza, 1800
Washington Road, Pittsburgh, PA 15241-1421 (Certified Mail)

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