Monterey Coal Company

Plain-English summary

MSHA cited Monterey Coal Company because its alternate escapeway passed nearby shafts and continued about two and one-half miles to the mine's main portal. The Secretary argued that the nearby shafts were suitable for evacuation and made the existing route less direct. Monterey showed that the nearby shafts were in return air, could use only a small escape capsule, and would take much longer to evacuate 60 to 120 miners than the main portal elevator. Judge Avram Weisberger found that the Secretary had not proved the nearby shafts offered a safer alternative or were suitable for safe evacuation. He sustained Monterey's contest, vacated the citation, and denied the Secretary's request to reopen the record for accident reports that had not yet been completed.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1704-2(a) and 75.380(d)(5)
• Outcome: Monterey's contest was sustained and Citation No. 7488388 was vacated.
• Key point: To prove an escapeway violation, the Secretary had to identify a specific alternative route that better satisfied the requirements for direct, practical, and safe evacuation.

Full text (FMSHRC public release)

FMSRHC ALJ DECISION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W. Suite 9500

Washington, DC 20001-2021

March 28, 2007

MONTEREY COAL COMPANY,

Contestant

v.

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Respondent

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CONTEST PROCEEDING

Docket No. LAKE 2007-49-R

Citation No. 7488388; 12/12/2006

No. 1 Mine
Mine ID 11-00726

DECISION

Appearances:  Thomas C. Means, Esq., Crowell & Moring LLP, Washington, D.C., Counsel for
the Contestant;

Christine M. Kassak-Smith, Esq., Office of the Solicitor, U.S. Department of
Labor, Chicago, IL, Counsel for the Respondent

Before:            Judge Weisberger

Statement of the Case

This case is before me based upon a Notice of Contest and Motion to Expedite filed by
Monterey Coal Company (“Monterey”) on February 2, 2007, challenging the issuance of Citation
No. 7488388, and contesting the extension of the abatement time that was served on Monterey by
the representative of the Mine Safety and Health Administration on January 4, 2007. On
February 5, 2007, in a telephone conference call, the parties indicated that they had not been able
to resolve the issues raised by the Notice of Contest, and it was agreed to schedule this case for
hearing on February 14 and 15, 2007.

On February 5, 2007, subsequent to the conference call,
the Secretary filed a Motion to Dismiss asserting that inasmuch as Monterey’s Notice of Contest
was filed thirty days beyond the issuance of the citation in violation of Section 105(d) of the
Federal Mine Safety and Health Act of 1977, it was untimely, and should be dismissed. On
February 7, 2007, Monterey filed its Opposition to the Motion.

In a telephone conference call with Counsel for both parties on February 8, 2007, the
Secretary’s motion was denied to the extent that it was held that the Notice of Contest was timely
filed regarding the modification of the abatement time served to Monterey by the Secretary’s
representative on January 4, 2007.

The parties were ordered to prepare for a hearing regarding
the validity of the underlying citation, and to file pre-hearing briefs setting forth, inter alia, their
arguments relating to the propriety of litigating this issue, or whether the Secretary should prevail
in the granting of its Motion to Dismiss in its entirety.

On February 12, 2007, the Secretary filed a Pre-Hearing Brief, and Monterey filed a Pre-Hearing Memorandum of Points and Authorities.

A hearing was held in St. Louis, Missouri on February 14, and 15, 2007. At the
commencement of the hearing, the Secretary’s Motion to Dismiss was denied in its entirety.
Subsequent to the hearing, Contestant filed a Post-Hearing Memorandum, and Respondent filed a
Post-Hearing Statement.

Introduction

Monterey operates an underground coal mine consisting of a longwall, and two
continuous miner working sections. Approximately 60 miners work underground on each shift.
However, during the change of the shifts there could be 120 miners underground.

The mine has two designated escapeways, a primary and an alternate, to evacuate mines
outby from the working sections to the surface.

The alternate escapeway proceeds south, in
intake belt air, outby the working sections approximately 1,600 feet, to a point approximately
400 feet west of one of the East Hornsby shafts. After proceeding 330 feet beyond the shaft it
becomes ventilated by fresh air. The alternative escapeway then travels outby another 200 feet
where it makes a 45-degree diagonal turn southwest across a 70-foot entry and then proceeds
west ventilated by fresh air. Approximately 200 feet after the alternate escapeway turns west, it
passes within approximately 100 feet north of the other East Hornsby shaft. The escapeway
continues heading west in fresh air, approximately 13,500 feet to the Main Portal.

The East Hornsby Shaft No. 1 has a diameter of eight feet, and is approximately 308 feet
vertically from the bottom to the surface. The East Hornsby Shaft No. 2 has a diameter of 20 feet
and is approximately 307 feet vertically from the bottom to the surface. The parties stipulated
that “[a] Dover escape capsule . . . that can accommodate between two and four persons . . . is
commercially available for use in either of the East Hornsby shafts, assuming it would meet all
applicable MSHA standards.” Joint Stipulation, Par. 15, (“Jt. Stip.”).

The Main Portal shaft is approximately 296 feet from the surface, and served by an
elevator which miners use every day to enter and exit the mine.

The elevator is equipped with
two-way communication equipment, and can accommodate approximately 25 people per trip.

On December 12, 2006, MSHA mining engineer, Jason Robert Stoltz examined
Monterey’s mine map located on the surface of the mine. Based on his examination of the map
relating to the location of the alternate escapeway, he issued a citation alleging a violation of 30
C.F.R. § 75.380(d)(5). Section 75.380(d) provides that “[E]ach escapeway shall be–

xxx

(5) [l]ocated to follow the most direct, safe and practical route to the nearest mine opening
suitable to the safe evacuation of miners[.]”

Findings of Fact and Discussion

The Secretary’s Case

The Secretary, in her Post-Hearing Statement, takes the position that the issue presented
is not the route to the openings to the surface, but whether the nearest opening is suitable for the
safe evacuation of miners. It is argued that the escapeway at issue violated Section 75.380(d)(5),
because its route to the mine Main Portal, which bypassed the East Hornsby shafts, was not to the
nearest mine opening suitable for the safe evacuation of the miners.

The Secretary’s argument appears to be predicated upon the testimony of Inspector Stoltz,
who indicated that he cited Monterey because the alternate escapeway does not travel to either of
the East Hornsby shafts which, until August 2006, had been used as the primary escapeway
evacuation route to the surface by way of electrically operated escape facilities that transported
miners up the shaft to the surface. Instead, the alternate route comes within a few hundred feet of
these shafts, and then continues 13,500 feet to the Main Portal where miners are evacuated to the
surface.

According to Stoltz, in essence, the East Hornsby shafts were suitable to accommodate an
escape facility, and the East Hornsby No. 2 shaft was used as the primary escapeway when the
shafts were previously ventilated by intake air. Also, according to Stoltz, a non-electrical escape
capsule could be used in the return air in the East Hornsby shafts. In addition, he alleged that
three stoppings could be installed to direct intake air “to within maybe 75 feet of the bottom of
shaft.” (emphasis added) (Tr. 95). Also, Self Contained Self Rescuers Units (SCSRs) are
available to the miners and are “scattered” throughout the escape route. (Tr. 164).

Mark Owen Eslinger, a supervisory mining engineer and a qualified professional
engineer, agreed with Stoltz that the alternate escapeway was not the most direct route because it
by-passed the East Hornsby shafts, and continued two and one-half miles further to the Main
Portal. He opined that if a mine opening can be equipped with an escape facility to hoist miners
up to the surface, it is “suitable” as this term is used in Section 75.380(d)(5), supra. Eslinger
indicated that he is aware of mines that use non-electric capsules as escape facilities in return air
shafts.

He also indicated that capsules could be built big enough to hold a stretcher and four
persons to carry it. (Tr. 270).

In addition, according to Eslinger, since the north/south portion of the alternate
escapeway is in a belt intake entry, it could become full of smoke as a result of a belt fire. He
noted that belts are sources of fire due to friction that results when they rub against metal
surfaces, or stuck rollers. Eslinger indicated that the danger of a fire is increased due to the
presence of dust that comes off the belt during its operation. He stated that based on his review
of MSHA documents, he concluded that belt fires in coal mines outnumber explosions. He also
indicated that a secondary explosion resulting after an explosion inby at the working faces, could
bypass the East Hornsby shafts and send contaminates directly towards the Main Portal. In this
connection, he asserted that the escapeway route contains a transition zone where fresh air
flowing east along the west-east portion of the secondary escapeway mixes with intake air
flowing outby in the north/south section of the escapeway. Thus, according to Eslinger, if a fire
were to occur in the transition zone, “smoke and contaminates would flow towards the main shaft
and it would flow up the elevator shaft. ... and it would also flow up the slope.” (Tr. 272).

Discussion of the Secretary’s Case

The weight to be accorded the Secretary’s case is diluted by various facts elicited on
cross-examination. Although Stoltz testified on direct examination that he found the alternate
escapeway to be not as safe or suitable as one utilizing the East Hornsby’s shafts, he conceded on
cross-examination that he did not take into account that the East Hornsby’s shaft were in return
air. Nor did he consider the comparative time needed to escape via the East Hornsby shafts or
the route via the Main Portal. Specifically, that he did not consider the relative time that it would
take an escape facility to travel from the bottom of the Main Portal and East Hornsby shafts to
the surface, and then return to the bottom to evacuate more miners.

Nor did he consider the
number of miners who could escape from either opening at one time. Also, Stoltz conceded that
should there be a fire in the inby working sections, resulting smoke and contaminates would go
into the return air, which could result in limited visibility. As a consequence, miners traveling in
return air to the East Hornsby shafts could become disoriented. Further, he conceded that in the
event of a fire inby at the working faces, the presence of carbon monoxide and the risk of
asphyxiation would be higher in return air. Also, he conceded that even with the construction of
stoppings to vent intake air to the East Hornsby shafts, it is not possible to totally avoid return air
in that area.

In the same fashion, Eislinger’s opinion that the East Hornsby shafts were “suitable
openings” is diluted because it disregards the last phrase of Section 75.380(d)(5) which requires,
by its plain language, that the nearest opening be suitable for “the safe evacuation of miners”. It
is significant to note that these shafts were in return air, and Eslinger agreed on cross-examination, that “ ... the preferred choice is to have an escape facility in intake air, or at least not
in return air”. (Tr. 126). Further, due to the lack of a proper foundation, not much weight was
accorded his opinion that a capsule could be built to accommodate a stretcher and four persons.
Also, he did not testify to the minimum size of such capsule as compared to the diameter of the
East Hornsby shafts.

Monterey’s Case

Monterey’s evidence, which in the most part has not been impeached or contradicted,
indicates that the route via the East Hornsby openings is not as safe as the present alternate route.

Donald Stewart is presently retired, but worked at the subject mine for thirty-one years
and still visits the mine weekly in his capacity as President of the Local United Mine Workers.
He indicated that, in general, he has sided with MSHA in disputes with the Monterey. He
indicated that, in testifying at the hearing, he was presenting the position of the miners that he
represents. In this connection, he expressed their concern to evacuate approximately 60 people
from the section in fresh air as is utilized in the present alternate escapeway. In contrast, he
opined that evacuation via the East Hornsby shafts could expose miners to smoke and
contaminates, as a fire or an explosion would be more likely to occur at the face where coal is
extracted, rather then at the Main Portal. He opined that the capsule proposed for use at the East
Hornsby shafts is not large enough to accommodate a stretcher, especially in a horizontal
position. On the other hand, the Main Portal elevator, which he approximated as either ten feet
by ten feet, or eight feet by ten feet, can accommodate a stretcher.

Stewart indicated that the Main Portal elevator has a capacity to carry 25 miners at a time,
and is used daily by miners to enter and exit the mine. Additionally, he stated that the Main
Portal is examined three times daily, whereas the return areas are only examined once a week.

Stewart noted that miners daily travel along the two and a half-mile alternate escapeway
on diesel cars.

He opined that if the cars failed to operate, it would be still faster to have 60 to
120 miners walk two and a half-miles to be evacuated, rather than to wait in return air at the East
Hornsby shafts for a capsule that has a capacity limited to four miners. Since Stewart represents
miners, and in this capacity has “always” opposed Monterey’s position in disputes with MSHA
and the State of Illinois on safety issues (Tr. 143-144), I find him an objective witness and accord
considerable weight to his testimony.

Donald McBride is a mine inspector and supervises other inspectors for the Office of
Mines and Materials, Department of Natural Resources, State of Illinois. He testified on behalf
of the state to assist Monterey in its defense against the citation. McBride indicated that the
Director of his office considers it unsafe to put an escapeway in return air, as it is a gathering
place for gases. For the same reason, it is the position of the State of Illinois that it is not safe for
miners to gather in return air awaiting evacuation by a capsule via an East Hornsby shaft.

McBride indicated that he is not aware of any mine using a capsule as an escape facility
in return air. He opined that although the East Hornsby shaft opening is closer to the present
alternate escape route than the Main Portal, it is not safe or suitable due to the limited capacity of
the capsule, and the possibility of persons waiting in contaminated air to be evacuated. He
opined that accordingly, it is safer to travel a longer distance to be evacuated by an elevator that
has a significantly shorter cycle time and much larger capacity. McBride stated that it is safe to
enter return air as part of an escapeway, only for the limited purpose of going around a blockage
and then returning to intake air. Since McBride is not employed by either party, and is
responsible for enforcing miner safety, considerable weight is placed on his testimony.

John Lanzerotte, Monterey’s safety manager, indicated that the diesel vehicles that travel
the alternate escapeway have a capacity of 20 people. Also, a slope located a couple of hundred
feet from the Main Portal elevator shaft is in fresh air. Thus, miners can escape from the mine by
walking out the slope at a seventeen degree grade, or riding a slope car which has the capacity to
transport 20 people. Since it is approximately ten feet by six feet, it thus can accommodate a ten
foot by two foot stretcher. According to Lanzerotte, it takes the Main Portal elevator 25 seconds
to go from the bottom to the surface, 20 seconds to unload, and then 45 seconds to return to the
bottom. Since Lanzerotte’s testimony was not impeached or contradicted by any of the
Secretary’s evidence or cross-examination, it is accorded considerable weight.

Gary Hartzog, a mining consultant, who has a bachelor’s and master’s degree in mining
engineering is experienced in the areas of ventilation, and the design of mines and escapeways.
He indicated that whereas all the entries outby the active sections carry contaminated air to the
East Hornsby shafts, the present alternate escapeway is ventilated by three separate splits of
intake air.

Hartzog indicated that it takes approximately ten minutes to travel by diesel from the area
of the East Hornsby shafts to the Main Portal shafts. Hartzog, estimated that the cycle time for a
capsule operating in the East Hornsby shafts is approximately ten to 15 minutes. Therefore, it
would take approximately six hours to evacuate 60 miners, and twice that time should the shifts
overlap, requiring the evacuation of a 120 miners.

In general, Hartzog opined that routing the alternate escapeway to the East Hornsby shafts
rather than to the Main Portal, would expose miners to hazards to which they are presently not
exposed.

Further Discussion and Conclusion

In Southern Ohio Coal Company, 14 FMSHRC 1781 (November 1992), the Commission
analyzed the language set forth in the requirements of 30 C.F.R. § 75.1704(2)(a).

The
Commission reasoned that “[t]he language of [Section 75.1704(2)(a), supra], ‘safest direct
practical route’, implies that there is one best route. Accordingly, the Secretary, in order to prove
a violation, must show that there is a specific escapeway alternative that more fully complies
with this criteria than does the cited route.” 14 FMSHRC, supra, at 1785. Since Section
75.380(d)(5) contains the exact language as the wording quoted from Section 75.1704-2(a), I
conclude that the Commissions’ analysis is applicable to the case at bar.

Accordingly, to establish a violation herein, the Secretary must prove that an escape route
to one of the East Hornsby shafts more fully complies with the criteria of Section 75.380(d)(5),
supra, than the cited route to the Main Portal shaft. As set forth in Southern Ohio, Id., the
Secretary’s route must be the “best route.” Thus, the Secretary has the burden of establishing
that an escapeway route via the East Hornsby shaft is safer than the longer route to the Main
Portal, and that the East Hornsby shafts were the nearest openings “suitable for the safe
evacuation of miners.” Section 75.380(d)(5), supra.

Taking into account the evidence adduced as analyzed above (infra, p. 3-6), I conclude
that the Secretary has failed to establish, by a preponderance of evidence, that the longer alternate
escapeway route to the elevator shaft at the Main Portal is not safer than an escapeway
terminating at the nearer East Hornsby shaft. In summary, inter alia, I note that the latter are
located in return air, which is subject to contamination and resultant visibility. Also, the
Secretary did not adduce evidence to contradict Monterey’s evidence that the East Hornsby
escape facility is significantly slower and has far less capacity then the elevator located at the
terminus of the present alternate escapeway at the Main Portal.

For all these reasons, I conclude that the Secretary has failed to establish, by a
preponderance of evidence, that the present alternate escapeway is not “ ... the most direct, safe
and practical route to the nearest mine opening suitable for the safe evacuation of miners ...”.
Section 75.380(d)(5), supra. Thus, the Secretary has failed to establish a violation of Section
75.380(d)(5), supra.

The Secretary’s Post-Hearing Motion

On March 5, 2007, after the Parties filed a Post-Hearing Memorandum and/or Statement,
the Secretary filed a Motion to Hold Issuance of Decision in Abeyance and Hold Record Open.
In support of its motion to hold the record open 90 days, the Secretary asserts

as follows:

During this time period, the Secretary will be issuing three major accident reports.
The accident reports in the Sago, Aracoma and Darby mine explosions and fires
will be published most likely within the next thirty days. In all three cases mine
evacuations were undertaken and crews were evacuated. All three reports will
make findings regarding how crews were evacuated and will describe inability to
evacuate portions or all of the mine except on foot, how the low levels of visibility
prevents a miners (sic) from continuing forward on mantrips and in some cases
that air reversals caused previous intake air courses to be filled with smoke and
CO. This is directly material to the issue in this case. The mine operator contends
that the distant mine portal is the only suitable mine opening for the escape of
miners, but the Secretary expects that the Judge will have a better sense of the
strength of these claims in light of the experiences of three major mine emergency
evacuations in 2006.

At the conclusion of the expedited hearing, both parties rested, and the proceedings were
concluded. (Tr. 278). In numerous conferences with counsel during the hearing, both parties
requested an interest that a decision be rendered as soon as practical, due to the closeness of the
time set for abatement. After both parties filed memorandum and/or a statement, the record was
evaluated, and a decision was reached. In a telephone conference call on February 23, 2007, the
parties were advised that a decision had been reached sustaining the Notice of Contest.

Thus, since the record was closed after the hearing, and the parties subsequently filed a
Post-Hearing Memorandum and/or Statement based on the existing record, it would not be in the
interests of justice to re-open the record. Further, I note that any reports the Secretary wishes to
proffer have not been completed, and thus their contents are speculative. Moreover, even if the
reports will consist of findings as summarized by the Secretary, these are not of significant
relevance or weight to cause me to keep the record open, or to reconsider my decision.
Therefore, the Secretary’s post-hearing motion is denied.

Order

It is Ordered that the Notices of Contest be sustained, and that Citation No. 7488388 be
vacated.

Avram Weisberger

Administrative Law Judge

Distribution:

Thomas C. Means, Esq., Crowell & Moring LLP, 1001 Pennsylvania Avenue, N.W.,
Washington, D.C. 20004-2595

Christine M. Kassak-Smith, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S.
Dearborn St., Room 844, Chicago, IL 60604

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