Southern Ohio Coal Company

Plain-English summary

Southern Ohio Coal operated the Meigs No. 2 underground coal mine. MSHA cited the company because its designated escapeway from a longwall section took a longer, indirect route to an air shaft, and separately issued a withdrawal order alleging inadequate abatement. Judge Avram Weisberger found that the escapeway was not the safest direct practical route and sustained the violation. He found, however, that the record did not show a reasonable likelihood of serious injury from the route or a reasonably likely fire or smoke condition, so he amended the citation to remove the significant-and-substantial designation. He dismissed the contests and denied temporary relief, while consolidating the two dockets.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1704-2(a)
• Outcome: The escapeway violation was sustained but amended to non-S&S. The related contest and temporary-relief applications were dismissed or denied.
• Key point: An indirect escapeway route can violate the direct-route requirement, but route length and general fire concerns alone did not establish S&S.

Full text (FMSHRC public release)

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Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, Virginia 22041

SOUTHERN OHIO COAL COMPANY, CONTEST PROCEEDINGS
CONTESTANT
v. Docket No. LAKE 91-650-R
Citation No. 3329922;
SECRETARY OF LABOR, 6/11/91
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. LAKE 91-664-R
RESPONDENT Citation No. 3329504;
7/16/91

Meigs No. 2

Mine ID 33-01173

DECISION

Appearances: David M. Cohen, Esq., Electric Power Service
Corporation, Lancaster, Ohio for Contestant;
Maureen M. Cafferkey, Esq., U.S. Department of
of Labor, Office of the Solicitor, Cleveland,
Ohio for Respondent.

Before: Judge Weisberger

STATEMENT OF THE CASE

On July 3, 1991, the Operator (Contestant), filed a Notice
of Contest contesting the issuance of Citation No. 3329922 which
alleges a violation of 30 C.F.R. 75.1704-2(a). Also on July 3,
1991, Contestant filed a Motion to Expedite.

On July 3, 1991, in a telephone conference call initiated by
the undersigned with counsel with both parties, it was agreed
that a hearing in this matter shall be held on July 11, 1991, in
Columbus, Ohio.

At the hearing on July 11, 1991, Charles Jones and Edwin P.
Brady testified for Respondent, and Nelson Kidder testified for
Contestant. Both parties waived their right to submit a post
hearing brief, but in lieu thereof each presented a closing
argument.

On July 11, 1991, at the hearing, Contestant filed an
Application for Temporary Relief, and the Secretary (Respondent)
reserved its right to file a reply to this application. The

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Secretary's Reply was filed July 16, 1991. On July 16, 1991,
Contestant filed a Reply to Secretary's Response. Both parties
waived their right to an additional hearing on the issues raised
by the Application for Temporary Relief.

FINDINGS OF FACT AND DISCUSSION

In Contestant's Meigs No. 2 Mine, prior to April 25, 1991,
the primary designated escapeway from the 3 South Longwall
Section, ran a distance of 16,200 feet to the No. 1 intake air
shaft, (air shaft No. 1) from which point miners exited
underground and went to the surface. In May 1990, Contestant
decided to install a new intake air shaft (air shaft No. 2), in
order to better ventilate the working sections in the southwest
area, and to ventilate the gob situated north of the southwest
working sections. Air Shaft No. 2 was placed on a ventilation map
in July of 1990, and was placed in operation on February 23.
1991. An escape capsule (hoist) was approved by MSHA on April 25,
1991. Hence on April 25, 1991, air shaft No. 2, became a mine
opening suitable for the safe evacuation of miners.

Upon the approval of the escape capsule, Contestant
designated a new primary escapeway to air shaft No. 2 to replace
the 16,200 foot escapeway to air shaft No. 1. The new designated
escapeway, on June 11, 1991, ran straight north from the face
approximately 2,500 feet to the mouth (neck). From that point it
ran approximately 2,000 feet east parallel and two entries south
of the entry containing the trolley and belt lines. It then
travelled 4 Entries North, and then turned west at the 4th entry
and travelled approximately 2,000 feet to air shaft No. 2. The
total distance the escapeway travelled from the mouth to the Air
Shaft No. 2 was 4,800 feet. The total distance of the escapeway
from the longwall face on June 11, 1991 to air shaft No. 2 was
7,700 feet.

On June 11, 1991, Charles Jones an MSHA Inspector walked the
escapeway from the mouth of the 3-South longwall section to air
shaft No. 2. He said that the escapeway was in good condition
except for its distance. He estimated that it took 25 minutes to
walk from the mouth to air shaft No. 2.

The mouth is approximately 200 to 300 feet south of air
shaft No. 2. It is physically possible to traverse this distance
from the mouth by taking a route which runs one crosscut through
a track-door, then goes diagonally to the north east one
crosscut, and continues west one crosscut through a man-door,
then goes west one crosscut to air shaft No. 2 (See joint Exhibit
1). Another path from the mouth to air shaft No. 2 covering
approximately the same distance and located in approximately the
same area is illustrated in Joint Exhibit No. 2. These paths are
in intake air. However, the air in these paths mixes with air
from the belt entry that also contains trolley wires.

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Jones issued Citation No. 3329922 alleging a violation of
Section 75.1704-2(a) supra. This Citation as pertinent, provides
as follows:

The most direct practical route to the nearest
mine opening was not provided from the 3rd South
Longwall section in that miners were required to travel
an additional 4,800 feet by traveling outby from the
mouth of the section for 2,300 feet and traveling inby
for about 2,500 feet. The emergency escape shaft is
located at the mouth of the 3 south Longwall section
(across the track and belt entry).

Section 75.1704-2(a) supra, provides as follows:

In mines in working sections opened on and after
January 1, 1974, all travelable passageways designated
as escapeways in accordance with section 75.1704 shall
be located to follow, as determined by an authorized
representative of the Secretary, the safest direct
practical route to the nearest mine opening suitable
for safe evacuation of miners. Escapeways from working
sections may be located through existing entries,
rooms, or crosscuts (emphasis added).

Section 1704-2(a) supra, thus provides that a designated
escapeway shall be located to follow the route determined by the
Secretary's representative to be the "safest direct practical
route". Hence, section 1704-2(a) is violated where the operator's
designated escapeway is located along a route that has not been
determined by the Secretary representative to be the safest
direct practical route.

The cited escapeway, designated by Contestant in accordance
with 30 C.F.R. 1704 was determined by Jones, the Secretary's
authorized representative to not have been the safest direct
practical route. Hence, the utilization by Contestant of its
designated escapeway is a violation of Section 75.1704, supra, if
it is established that Jones' determination was proper i.e., that
the designated route was not the safest direct practical route.

Inasmuch as the escapeway in question turns east for 31
crosscuts, then makes a 90 degree turn to go north for 4
crosscuts, then makes another 90 degree turn and goes east for 23
crosscuts, then makes another 90 degree turn to go south for 1
crosscut, then makes another 90 degree turn for 9 crosscut
through air shaft No. 2, it clearly cannot be found to be a
"direct" route. As was stated in Rusthon Mining Co. 10 FMSHRC
713, 716 (aff'd on other grounds) 11 FMSHRC 1432 (1989) "To find
otherwise would violate the clear meaning of the word "direct" as
defined in Webster New Collegiate Dictionary, (1979 Edition), as:
1a: proceeding from one point to another in time or space

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without deviation or interruption: straight b: proceeding by the
shortest way . . . " Hence, the record establishes that Jones
properly determined that the designated escapeway was not
"direct".

Essentially, according to Jones he "suggested" to Respondent
that an overcast be constructed in the "area" of the mouth, to
allow miners to continue the escape from that point directly to
the air shaft No. 2, utilizing a path that would be in intake air
separated from the belt and track haulage entries. It appears to
be Contestant's position that section 75.1704-2(a) supra, does
not require an operator to engage in any construction in order to
have an escapeway in conformity with its provisions. Contestant
also argues that it is not "practical" for the overcast to be
constructed, as miners engaged in the construction would be
exposed to the hazards inherent in the construction and its
attendant clean up. In addition, construction of the overcast
requires excavation of a supported roof which could weaken the
roof in other areas. Contestant also asserts that construction of
the overcast requires interruption of cable, telephone, belt and
trolley service inby. Contestant argues that, accordingly,
construction of an overcast would curtail production at Meigs No.
2 Mine to a significant degree, as 50 percent of its production
occurs in the southwest portion inby the overcast. All of these
allegations of Respondent are borne out in the testimony of its
witness Nelson Kidder an engineering superintendent for the Meigs
division. However, the ultimate issue before me is not the
property of a "suggested" abatement, but rather whether the
record supports a determination that the cited escapeway was not
the safest direct route. (Footnote 1) I find that the record
establishes that the escapeway was not "direct". Accordingly
Jones' determination is supported by the record. Since Contestant
designated an escapeway which was determined by Jones to not be
direct, I conclude that Contestant herein did violate Section
75.1704-2(a). In light of this conclusion Contestant's

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Application for Temporary Relief must be denied.(Footnote 2)

According to Jones and Edwin P. Brady an MSHA Chief of the
Office of the Engineering Service, the violation herein is
significant and substantial. According to Jones fire is always
possible in a coal mine, and, given the added distance of the
cited escapeway, and the fact that it parallels and surrounds a
belt entry which also contains trolley wires, smoke could get
into the escapeway. However, he agreed on cross examination that,
essentially, there were no particular conditions in the area in
question that would make it reasonably likely for the hazard of
smoke to exist, but that there was a "general concern" about
airtightness of stoppings.

In Rusthon Mining Co., 11 FMSHRC 1432 (1989), the Commission
held that the length of a mine escapeway in and of itself is not
dispositive of the existence of a discrete safety hazard."
(Rusthon supra. at 1436). Here, as in Rusthon, I conclude that
Contestant has failed to show that the length of the cited
escapeway and its non direct route per se posed a threat
involving a reasonable likelihood of a reasonably seriously
injury in the event of a fire. Nor has the Respondent shown that
the occurrence of a fire and smoke was reasonably likely to have
occurred, as its witnesses have not indicated the existence of
any specific conditions that would have been likely to have
caused a fire, or leakage of smoke into the escapeway. For all
these reasons I conclude that the violation herein has not been
established to be significant and substantial. (See Mathies Coal
Co., 6 FMSHRC 1 (1984).

ORDER

It is ORDERED that Docket No. LAKE 91-664-R be consolidated
with Docket No. LAKE 91-650-R.

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It is ORDERED that the Notice of Contests filed July 3 and
July 16, be DISMISSED, and the Applications for Temporary Relief
filed July 11 and July 16 be DENIED.

It is further ORDERED the Citation No. 3329922 be Amended to
reflect the fact that the violation cited therein is not
significant and substantial.

Avram Weisberger
Administrative Law Judge

1. According to Jones' uncontradicted testimony, in
   discussing abatement he "suggested" that an overcast to
   constructed in the area between the mouth and air shaft No. 2.
   Neither Jones nor any other representative of the Secretary
   mandated a specific route that shall be designated on escapeway,
   in order to abate the violation cited herein. Nor has the
   Secretary expressly designated any route as the safest direct
   practical route from the mouth to air shaft No. 2. Accordingly,
   it is beyond the scope of these proceedings to resolve the issues
   raised by Contestant i.e., whether an escapeway route requiring
   the construction of an overcast is "practical".

2. On July 16, 1991, the Operator filed a Notice of Contest
   and Application of Temporary Relief seeking the vacation and
   dismissal of a Section 104(b) order issued on July 16, 1991,
   which alleges that since the last extension "little effort" has
   been made to abate Citation No. 3329922, which is the subject of
   the Contest Proceeding which was heard on July 11, 1991. (Docket
   No. LAKE 91-664-R) It is ordered that Docket No. LAKE 91-664-R be
   consolidated with Docket No. LAKE 91-650-R.

It appears that Contestant's basis for the Notice of
Contest and the Application for Temporary Relief is its position,
in essence, that the cited escapeway was not violative of Section
75.1704-2(a) supra. Inasmuch as it has been found infra that
Citation No. 3329922 was properly issued, the Notice of Contest
and Application for Temporary Relief filed July 16, 1991 are
denied and ordered dismissed.