Lone Mountain Processing, Inc.

Plain-English summary

Lone Mountain Processing operated the underground Darby Fork No. 1 coal mine in eastern Kentucky. The Secretary alleged that the mine failed to follow its approved ventilation plan because a check curtain was missing, after an inspector found elevated methane in a roof cavity. Judge Jerold Feldman vacated that citation because the Secretary did not identify the required curtain clearly, prove that it was missing, or show that the plan applied to the isolated methane pocket. The judge also approved a settlement resolving two other citations, reducing their combined penalty from $925 to $600 and deleting the significant-and-substantial designation from one citation.

Decision snapshot

• Cited provision(s): 30 C.F.R. § 75.370, 30 U.S.C. § 811, 30 U.S.C. § 814(a), 30 U.S.C. § 863
• Outcome: Citation No. 4465629 was vacated. The settlement of Citation Nos. 4485356 and 9987989 was approved for a total penalty of $600.
• Key point: An isolated methane pocket did not establish a ventilation-plan violation where the Secretary failed to prove that a required curtain was missing or that the plan clearly covered the condition.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                         July 15, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 95-568
Petitioner : A.C. No. 15-02263-03520
v. :
: Darby Fork No. 1 Mine
LONE MOUNTAIN PROCESSING, INC., :
Respondent :

                             DECISION

Appearances: Charles H. Grace, Conference and Litigation
Representative, U.S. Department of Labor,
Mine Safety and Health Administration,
Barbourville, Kentucky, for the Petitioner;
Michael O. McKown, Esq., Robinson & McElwee,
Charleston, West Virginia, for the Respondent.

Before: Judge Feldman

 The above captioned proceeding is before me as a result of a

petition for civil penalty filed by the Secretary of Labor
pursuant to section 105(d) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. ' 801 et seq., (the Mine Act). This
case was called for hearing on March 27, 1996, in Pineville,
Kentucky.1 The parties stipulated the respondent is a
large operator subject to the jurisdiction of the Mine Act.
(Joint Ex. 1).

 1
   The March 27, 1996, hearing was initially scheduled for

November 14, 1995. The hearing was continued until January 11,
1996, due to an interruption in government operations as a
consequence of the budget impasse. The January 11, 1996, hearing
date was once again continued because of the government shutdown.

 At the hearing the parties moved to settle Citation

Nos. 4485356 and 9987989. The settlement terms include deleting
the significant and substantial (S&S) designation from Citation
No. 4485356, and reducing the total proposed civil penalty for
these two citations from $925.00 to $600.00. The terms of the
parties= settlement proposal were approved on the record and are
incorporated herein.

 Remaining Citation No. 4465629, issued by Mine Safety

and Health Administration Inspector (MSHA) Harold Scott on
March 1, 1995, concerns an S&S violation of the mandatory safety
standard in 30 C.F.R. ' 75.370 for the respondent=s alleged
failure to follow its approved ventilation plan. The parties=
post-hearing briefs with respect to this citation have been
considered in my disposition of this proceeding.

 Statement of the Case

 The operative ventilation plan dated September 13, 1994,

required the installation of numerous check curtains in entries
outby the last open crosscut in order to ventilate the working
faces. Inspector Scott testified there was no set way the
curtains had to be installed as long as Ayou get ventilation to
all [working] places.@ (Tr. 46-47). The issue to be decided is
whether the Secretary has established, by a preponderance of
the evidence, that one of the numerous required check curtains
was not installed at 8:30 a.m. on March 1, 1995.

 The Secretary contends Inspector Scott observed a missing

check curtain in the No. 4 entry at the No. 2 crosscut (also
referred to as the No. 2 Abreak@). Scott=s citation was issued on
the surface after Scott found excessive methane in a cavity
caused by a bleeder crack.2 However, there was no methane
detected at the roof line inby or outby the bleeder cavity.
Significantly, as discussed below, Scott did not specify which
required check curtain was missing in Citation No. 4465629. (See
Gov. Ex. 2).

 The respondent asserts that Scott=s detection of this

excessive methane from a bleeder crack in the roof cavity
motivated Scott to speculate that there was a missing check
curtain although all required curtains had been installed. The

 2
   A bleeder is an area in a coal seam where methane is

liberated causing a pocket of methane. (Tr. 100-01).

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respondent argues the ventilation plan was followed. It
maintains the bleeder crack in the roof cavity was a unique
condition that could not be ventilated by routine adherence to
the approved ventilation plan.

 Preliminary Findings

 The respondent=s Darby Fork No. 1 Mine is an underground

coal site located in Eastern Kentucky. Work at the facility is
divided into three shifts -- 11:00 p.m. to 7:00 a.m. (owl shift),
7:00 a.m. to 3:00 p.m., and 3:00 p.m. to 11:00 p.m. The owl
shift is the maintenance shift. The two other shifts produce
coal. Bernie Johnson was the supervisor when the owl shift ended
at 7:00 a.m. on March 1, 1995. Johnson=s responsibilities
included readying the section for coal production on the next
shift. As part of his duties, Johnson conducted a preshift
examination, including an inspection of the check curtains, at
approximately 6:00 to 6:30 a.m., on March 1, 1995. Johnson
testified that his preshift exam revealed a problem with the
check curtain in the No. 4 entry in that the curtain had been
torn Aabout halfway down.@ Johnson testified that he hung the
curtain back up sometime prior to 6:30 a.m.

 At about the same time Johnson was conducting his preshift

exam at 6:30 a.m., Scott arrived at the Darby Fork facility to
perform an inspection and to conduct respirable dust surveys.
Scott testified he entered the mine at approximately 7:00 a.m.
with John Richardson, the respondent=s Foreman. Scott testified
that as he and Richardson traversed the No. 2 crosscut proceeding
towards the No. 5 entry, he observed a curtain down in the
No. 4 entry. However, Scott did not advise Richardson of any
violative condition at that time.

 Scott testified he proceeded to turn inby the No. 5 entry

off the No. 2 break. The No. 5 entry was approximately 56 inches
from floor to roof requiring Scott and Richardson to bend as they
traveled the entry. As they turned into the No. 5 entry, Scott
observed a cavity between the No. 2 and No. 1 breaks. The cavity
area, which was properly supported, was created by draw rock that
had fallen during the mining process. The cavity width was the
full width of the entry and it was approximately 20 feet long.
Scott estimated the highest part of the cavity was approximately
76 inches from the mine floor. The depth of the cavity above the
normal roof line ranged from approximately 13 to 24 inches.

 Scott placed his methanometer approximately 12 inches from

the roof of the cavity and immediately obtained readings above
two percent. Scott withdrew the methanometer to avoid causing

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damage to this sensitive instrument by this high reading. In
view of the high methanometer reading, Scott, Aremembering that
the [No. 4 entry] curtain was down,@ ordered Richardson to
Aget that block curtain over there and make the air shift over
here to number five.@ (Tr. 29).

 Scott remained in the cavity and took air bottle samples and

did not accompany Richardson to redirect the air flow. (Tr. 29,
109-10, 184). Scott took two bottle samples from locations
approximately 12 inches from the top of the cavity which
ultimately revealed high methane concentrations.3 Methane
readings were negative for methane inby and outby the cavity at
the mine roof line. (Tr. 105-06). Scott testified that methane
gas is lighter than air. (Tr. 101). Therefore, Scott conceded
that a pocket of methane could remain in a cavity for an extended
period of time although there continued to be negative methane
readings at the roof line. Id.

 Richardson testified he took immediate steps to ventilate

the cavity. He went to the No. 4 entry but did not see any
problem. Richardson, with the assistance of employees
Jimmy Taylor and Roy Gibson, tore down the disputed curtain in
the No. 4 entry and rehung it from corner to corner narrowing two
curtains to one for better airflow. (Tr. 181). In order to
better ventilate the cavity, Richardson also installed a line
curtain from the No. 4 entry across the No. 2 break directing the
intake air from the No. 4 entry into the cavity. (Tr. 183-89;
See Ex. R-1). Scott did not inspect the check curtains
Richardson had installed although they went through the curtains
as Scott continued his inspection. (Tr. 189). Richardson
testified Scott never identified any specific curtain that was
missing and that should have been installed. Id. Richardson
stated he did not know Scott was going to cite the respondent for
a missing curtain until they had exited the mine and arrived on
the surface. (Tr. 190).

 Further Findings and Conclusions

 Mandatory safety standards are promulgated through the

rulemaking process and apply to all similarly situated mine
operators. 30 U.S.C. ' 811. However, such universal
applications of safety standards are ineffective in addressing

 3
   Subsequent laboratory analysis revealed methane readings

of 5.780 percent and 2.730 percent.

                            4

conditions that are unique to particular mines. Consequently,
Congress provided for MSHA to require mine operators to adopt
comprehensive plans tailored to each mine that address specific
areas of health and safety such as the adequacy of mine
ventilation systems. 30 U.S.C. ' 863. The plan adoption and
approval process is flexible and bilateral, requiring discussions
and negotiations between the operator and MSHA. The goal is
approval of a ventilation plan that is mutually agreeable and
that maximizes safety given the specific conditions that are
known to exist at a particular mine. Jim Walter Resources, Inc.,
9 FMSHRC 903, 907 (May 1987). A ventilation plan is not intended
to address future unanticipated conditions, such as cavities and
bleeders, that occur during the mining process.

 Once a ventilation plan is adopted, its provisions are

enforceable as mandatory safety standards. Id. However, the
Secretary bears the burden of proving that the provision
allegedly violated is part of the approved plan, and, that
the cited condition or practice violates the provision. Id.
The Commission has stated that a violation cannot be established
when Athe disputed language of the plan provision is ambiguous@
and the Secretary cannot Adispel the ambiguity.@ Id. at 906-07.

 In this case, the closest operative provisions in the

subject ventilation plan consist of a diagram on page 7 of the
plan that depicts curtains outby the last open crosscut in all
entries except the first and last entry. (Gov Ex. 4 at p. 7; Tr.
45). While the diagram is clear, for the reasons discussed
below, the Secretary=s application of the diagram to the facts of
this case is ambiguous and inconsistent.4

 Section 104(a) of the Mine Act, 30 U.S.C. ' 814(a),

specifies A[e]ach citation shall be in writing and shall
describe with particularity the nature of the violation . . .@
However, Inspector Scott=s citation, as well as his testimony,
reflects his uncertainty about the precise nature of the alleged
violation of the approved ventilation plan. For example,
Citation No. 4465629 only contains the general conclusion that
A[t]he approved ventilation plan was not being followed in the

 4
   Of necessity, I have considered page 7 of the approved

plan as the operative provisions for the purpose of clarity. I
note, however, the Secretary has not even shown that page seven
constitutes the alleged violative provision. When asked Awhich
portion of the plan, if any, was violated by the condition
[Scott] observed,@ Scott replied, Athe closest one to it is page
seven.@ (Tr. 45).

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002 section in that block curtains were not installed to direct a
volume and velocity of air current thru (sic) the No. 5 working
place in the 002 section, sufficient to dilute, render harmless
and to carry away explosive gasses [confined to the cavity].@
Thus, Citation No. 4465629 is lacking in specificity in that it
fails to identify the missing curtain or curtains that caused the
alleged violation.

 Even if Scott had identified the missing curtain in Citation

No. 4465629, Scott=s testimony reflects the curtain requirements
in the approved plan were vague and subject to different
interpretations. In this regard, Scott stated:

 There=s no set way that you could say this is exactly,
 it has to be done exactly like this because you can do
 it different ways and still get the same effect. But
 you still would have to use the same amount of check
 curtains in order to do it. You could -- I=m sure
 there=s -- as sure as I sit here and tell you two ways,
 someone else can tell me three others. But the basic
 thing on the ventilation plan is so that you get
 ventilation to all the [working] places. (Emphasis
 added) (Tr. 46-47; See also Tr. 102).
 Although Scott based his citation on inadequate ventilation,

Scott testified that all working places were indeed being
ventilated. He admitted there was no evidence of methane at the
mine roof line immediately inby the cavity indicating the
bleeding methane in the cavity was being effectively ventilated
and carried away through the air course. (Tr. 105-06). Scott
also believed there was no methane at the face, with or without
the disputed curtain. (Tr. 102-03, 120).

 These inconsistencies in the Secretary=s case are reflected

by Scott=s testimony:

 Q. However, if you put aside the cavity for a moment,
 without the [No. 4] curtain, it was ventilating the
 entries. There was no methane in the entries . . . If
 it was ventilating the entries . . . would the
 assumption be that the ventilation plan was being
 complied with because the result was there was no
 methane?

 A. If the cavity hadn=t been there, it would have been
 being complied with. But I=m sure there was movement
 of air through there somewhere, but not by eliminating
 a curtain.


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 Q. But there was enough movement inby and outby the
 cavity because there was no methane at the normal roof
 height; is that correct?

 A.   Right.

 Q. So in essence installing the curtain was -- solely
 the routine as far as you know was to clear the cavity?

 A.   Yes, sir.

 Q. Given the fact that there was no methane inby the
 cavity, would that give you any reason to draw
 conclusions with regard to whether or not there was
 methane at the face before the curtain was installed?

 A. No, sir. I don=t think there was any methane at
 the face.
 Q. Before the curtain was installed?

 A.   Before or after, neither one.   (Tr. 119-20).

Albert McFarland, an MSHA ventilation supervisor, also testified
he did not know whether the respondent was violating the plan=s
minimum air velocity requirements in the last open crosscut and
at the face, with or without the disputed curtain.5 (Tr.149-50).

 With respect to bleeders in cavities, Scott conceded that a

ventilation plan Adoesn=t contemplate anything on bleeders unless
we have a mine that specifically has a problem with bleeders.@6
(Tr. 108). However, the Secretary does not contend the
respondent=s mine has a bleeder problem. Thus, the respondent=s
approved ventilation plan was not intended to address future
isolated pockets of methane caused by unanticipated bleeder
problems. Nevertheless, Scott opined that he would not have
cited the respondent for violating its ventilation plan if there
was no methane in the cavity. (Tr. 93-94, 95, 116). This is the
essence of Secretary=s problem. The lynchpin of the Secretary=s
case, i.e., the methane confined to the cavity, is not a material

 5
   The ventilation plan requires a minimum of 4,500 cubic

feet per minute (CFM) at the working face and 15,000 CFM at the
last open crosscut. (Tr. 147-48; Gov Ex. 4 at pp. 6-7).
6
McFarland testified ventilation plans are Ageneric in
nature@ and specify minimum ventilation requirements at a
particular mine. (Tr. 122, 146).

                             7

factor in determining whether the respondent complied with its
ventilation plan.

 In summary, the record is unclear as to whether the No. 4

curtain was down when Scott commenced his inspection. Scott did
not initially believe there was a violation. It was only after
he discovered methane in the cavity that he Aremembered@ seeing
the missing curtain. (Tr. 29). Moreover, Scott did not
accompany Richardson to observe the curtain conditions before
Richardson took remedial measures to redirect air into the
cavity. Even if the disputed curtain was not in place, the
effective ventilation of methane at the faces, in conjunction
with Scott=s testimony that there are many permissible
alternative methods of curtain placement under the plan, leads me
to conclude that the Secretary has not established the alleged
condition violated the plan=s provisions.

 In conclusion, an isolated pocket of methane, alone, is not

evidence of a ventilation plan violation. When asked if Scott
would have issued the citation absent the methane in the cavity,
Scott replied, AI may have, and then I may not.@ (Tr. 116).
Such indecision does not satisfy the Secretary=s burden of
proof.7 Accordingly, Citation No. 4465629 citing a violation of
section 75.370(a) for the respondent=s alleged failure to follow
its approved ventilation plan is vacated.

                         ORDER

 In view of the above, IT IS ORDERED that Citation

No. 4465629 IS VACATED. IT IS FURTHER ORDERED that the motion
for approval of settlement with respect to Citation Nos. 4485356
and 9987989 IS APPROVED. Consistent with the settlement terms,
the respondent shall pay a total civil penalty of $600.00 to the
Mine Safety and Health Administration within 30 days of the date
of this decision. Upon timely receipt of payment, this case
IS DISMISSED.

 7
   This decision should not be construed as a finding that

excessive methane is a prerequisite to a ventilation plan
violation. On the contrary, I agree with McFarland that a
required missing curtain, absent methane concentrations, still
constitutes a plan violation. (Tr. 150). Here, however, the
Secretary failed to demonstrate the disputed curtain was missing,
or, that it was required under the provisions of the plan.

                            8



                          Jerold Feldman
                          Administrative Law Judge

Distribution:

Charles H. Grace, Conference and Litigation Representative,
Mine Safety and Health Administration, U.S. Department of Labor,
HC 66 Box 1762, Barbourville, KY 40906-9206 (Certified Mail)

Mary Beth Bernui, Esq., Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215-2862 (Certified Mail)

Michael O. McKown, Esq., Robinson & McElwee, P.O. Box 1791,
Charleston, West Virginia 25326 (Certified Mail)

/mca

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