Southern Ohio Coal Company

Plain-English summary

MSHA cited Southern Ohio Coal Company for using an underground escapeway that was not the safest direct practical route to a mine opening. An ALJ found a violation and sustained a section 104(b) withdrawal order after the operator did not make the changes MSHA sought. The Commission reversed, holding that MSHA had to identify a specific safer and more practical alternative route and had not met that burden. The Commission vacated both the citation and the withdrawal order, and found the request for temporary relief moot.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1704-2(a) and 75.1707; 30 U.S.C. § 814(b)
• Outcome: The section 104(a) citation and section 104(b) withdrawal order were vacated.
• Key point: MSHA had to prove a specific alternative escapeway that was safer, more direct, and practical.

Full text (FMSHRC public release)

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                           November 23, 1992

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket Nos. LAKE 91-650-R
: LAKE 91-664-R
SOUTHERN OHIO COAL COMPANY :

BEFORE: Holen, Chairman; Backley, Doyle and Nelson, Commissioners

                                DECISION

BY THE COMMISSION:

  This consolidated contest proceeding arises under the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (1988)(the "Mine Act"
or "Act"). The Secretary of Labor alleges that Southern Ohio Coal Company
("SOCCO") violated 30 C.F.R. 75.1704-2(a), a mandatory underground coal mine
safety standard requiring that escapeways follow "the safest direct practical"
route out of the mine(Footnote 1) and failed to abate the violation, which
resulted in a section 104(b) order.(Footnote 2) SOCCO contested the citation
and order, and sought

1 Section 75.1704-2(a) provides:

              In mines and working sections opened on and
        after January 1, 1974, all travelable passageways
        designated as escapeways in accordance with    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 the safe evacuation of miners.
        Escapeways from working sections may be located
        through existing entries, rooms, or crosscuts.

2 Section 104(b) of the Mine Act provides, in pertinent part:

              Follow-up inspections; findings; orders. If,
        upon any follow-up inspection of a ... mine, an
        authorized representative of the Secretary finds
        (1) that a violation described in a citation issued
        pursuant to [section 104(a)] has not been totally
        abated within the period of time as originally fixed
        therein or

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temporary relief from the order.

  Commission Administrative Law Judge Avram Weisberger concluded that

SOCCO violated section 75.1704-2(a), sustained the Secretary's section 104(b)
failure to abate order, and denied SOCCO's application for temporary relief.
13 FMSHRC 1149 (July 1991)(ALJ). The Commission granted SOCCO's petition for
discretionary review, which challenges (1) whether the Secretary had proved a
violation of 30 C.F.R. 75.1704-2(a), (2) whether, in order to reduce the
length of an escapeway, SOCCO can be required to construct an overcast, and
(3) whether the judge erred in dismissing SOCCO's application for temporary
relief. The Commission subsequently heard oral argument.

  For the reasons set forth below, we reverse the judge's conclusion that

SOCCO violated section 75.1704-2(a) and vacate the Secretary's section 104(b)
order. We find the denial of SOCCO's application for temporary relief to be
moot.

                                     I.

                     Factual and Procedural Background

  SOCCO owns and operates the Meigs No. 2 Mine. On June 11, 1991, Mine

Safety and Health Administration ("MSHA") Inspector Charles Jones walked the
designated primary escapeway from the mouth of the 3-South longwall section
(the "mouth") to Air Shaft No. 2 (the "air shaft").(Footnote 3) From the
mouth, the escapeway ran east parallel to the track and belt line entry for
approximately 2,300 feet. The escapeway then turned north and traversed four
entries by

2(...continued)
as subsequently extended, and (2) that the period of time for the
abatement should not be further extended, he shall determine the
extent of the area affected by the violation and shall promptly
issue an order requiring the operator of such mine or his agent to
immediately cause all persons, except those persons referred to in
[section 104(c)] to be withdrawn from, and to be prohibited from
entering, such area until an authorized representative of the
Secretary determines that such violation has been abated.

30 U.S.C. 814(b).

3 Air Shaft No. 2 was placed in operation on February 23, 1991 and it was
constructed, on SOCCO's own initiative, in order to improve ventilation to the
working faces. It became a mine opening suitable for the safe evacuation of
miners when an escape capsule (hoist) was approved by MSHA on April 25, 1991,
thus reducing the designated primary escapeway from the 3-South longwall
section from 16,200 feet to 7,300 feet.

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means of an overcast,(Footnote 4) then turned west to the air shaft, a
distance of approximately 2,500 feet. The length of the escapeway from the
mouth to the air shaft was about 4,800 feet.(Footnote 5) Jones found the
escapeway in good condition but was concerned about its length. Tr. 41, 113.
Jones determined that the mouth was approximately 200 to 300 feet directly
south of the air shaft and that a more direct route existed.

  Jones issued a section 104(a) citation alleging a violation of section

75.1704-2(a) 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).

The violation was designated as being of a significant and substantial nature.

  Jones suggested that, in order to abate the violation, SOCCO could

construct an overcast over the track and belt entry between the mouth and the
air shaft, which would permit SOCCO to designate a more direct
escapeway.(Footnote 6) Use of an overcast would reduce the length of the
escapeway to approximately 200 to 300 feet from the mouth. Tr. 65-66, 304-05.

  On July 3, 1991, SOCCO contested the citation and requested an expedited

hearing, which was held on July 11.(Footnote 7) Prior to the hearing, SOCCO
attempted

4 An overcast is "[a]n enclosed airway to permit one air current to pass
over another one without interruption." Bureau of Mines, U.S. Dept. of
Interior, Dictionary of Mining, Mineral and Related Terms at 780 (1968).

5 The designated escapeway contained four ninety degree turns but was
roughly configured as three sides of a rectangle.

6 Under 30 C.F.R. 75.1707, the escapeway required to be ventilated with
intake air must be separated from the belt and track haulage entries for their
entire length to the beginning of each working section, except as permitted by
the Secretary or her authorized representative. The purpose of the overcast
was to separate the track and belt entry air from the intake air, allowing the
track and belt entry air to pass under, and the intake air to pass through the
overcast. Thus, a person walking the escapeway from the mouth to the air
shaft could travel in intake air at all times.

7 At the July 11, 1991, hearing, SOCCO also filed an application for
temporary relief, in which it requested that it be relieved from abatement
until issuance of a decision as to the validity of the section 104(a)
citation. The Secretary had modified the citation to extend the abatement
date until July 16, 1991. The judge denied the motion.

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to abate the citation. SOCCO rerouted the escapeway and reduced its length by
approximately 30 percent.

  On July 16, 1991, MSHA Inspector Ronald Taylor issued to SOCCO a section

104(b) withdrawal order alleging that "little effort" had been made to abate
the section 104(a) citation. On that same day, SOCCO filed a notice of
contest and application for temporary relief seeking vacation of the section
104(b) order unless and until it was determined by the Commission that the
citation was validly issued and that the time permitted for abatement was
proper.

  MSHA modified the withdrawal order on July 17 to permit mining on the 3-

South longwall section based upon SOCCO's commitment to construct an overcast
during the July 20 weekend. On July 19, the judge sua sponte consolidated the
contest of the withdrawal order with the contest of the citation and issued
his decision.

  The judge determined that section 75.1704-2(a) is violated when the

escapeway designated by the operator follows a route "that has not been
determined by the Secretary's representative to be the safest direct practical
route." 13 FMSHRC at 1151. Relying on his earlier decision in Rushton Mining
Co., 10 FMSHRC 713, 716 (June 1988)(ALJ) aff'd on other grounds, 11 FMSHRC
1432 (August 1989), the judge held that, because the cited escapeway was not a
"direct" route, SOCCO violated section 75.1704-2(a). 13 FMSHRC at 1151-52.

  The judge noted Inspector Jones' suggestion that SOCCO construct an

overcast so the escapeway could proceed more directly from the mouth to the
air shaft. 13 FMSHRC at 1152. The judge also noted SOCCO's argument that
section 75.1704-2(a) does not require an operator to engage in construction in
order to designate a conforming escapeway and that it was not "practical" for
the overcast to be constructed. Id. The judge concluded, however, that
SOCCO's arguments concerned abatement, not the fact of violation. The judge
reasoned that, since the Secretary had not mandated a specific escapeway route
for abatement purposes, questions concerning the overcast, including its
practicality, were beyond the scope of the proceeding. 13 FMSHRC at 1152 n.1.
Consequently, the judge denied SOCCO's contest of the violation. 13 FMSHRC at
1152, 1154. He found, however, that the violation was not significant and
substantial. 13 FMSHRC at 1153. The Secretary did not request review of that
finding.

  The judge also denied SOCCO's contest of the section 104(b) order and

its July 16, 1991, application for temporary relief, reasoning that SOCCO's
position was predicated on its argument that the cited escapeway was not
violative of section 75.1704-2(a). 13 FMSHRC at 1153 n.2.

                                  II.

                         Disposition of Issues

  A.    Section 104(a) Citation

  The Secretary asserts that she is not required to designate a specific

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escapeway route in order to establish a violation of section 75.1704-2(a).
See O.A. Tr. 25, 29-30. See also S. Br. 8-9. The Secretary argues further
that it was SOCCO's burden not only to prove what it considers to be the
safest direct practical route but also to prove, in the negative, that all
other routes fail to meet those criteria. O.A. Tr. 25, 29-30; S. Br. 8-9.
The Mine Act imposes on the Secretary the burden of proving a violation of a
safety standard. See Garden Creek Pocahontas Company, 11 FMSHRC 2148, 2152
(November 1989); Consolidation Coal Company, 11 FMSHRC 966, 973 (June 1989).
The Secretary's position evades her fundamental obligation in a contest
proceeding to prove a violation by the operator.

  Section 75.1704-2(a) requires that designated escapeways "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 the
safe evacuation of miners." Accordingly, it is the Secretary's burden to
prove that, as compared to the designated route, there is at least one other
escapeway route that she has determined more closely complies with the
standard's requirement of "the safest direct practical route." Thus, in order
for the Secretary to establish a prima facie case of violation, she must show
that the operator's designated escapeway is deficient because it is not "the
safest direct practical route." It is insufficient for the Secretary to
merely cite the designated route as being out of compliance with the
regulation. She must present a specific escapeway alternative that she
believes is more appropriate. The language of the regulation, "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 those criteria than does
the cited route. The judge therefore erred when he found a violation absent
proof of a specific safer direct practical route. See 13 FMSHRC at 1152 n. 1.

  The Secretary also asserts that a violation was established by the very

configuration of the cited escapeway. O.A. Tr. 42-43, S. Br. 8. Essentially,
the Secretary is suggesting that for the purposes of this proceeding, the
configuration of SOCCO's escapeway is a per se violation of section 75.1704-
2(a). The Secretary's interpretation is clearly at odds with the wording of
the standard and loses sight of the fact that directness is not the only
factor to be considered in the designation of an escapeway. See Rushton
Mining Co., supra, 11 FMSHRC at 1437.

  Focusing on the language of the regulation, there are three con-

siderations in designating escapeway routes: (1) "safest," (2) "direct", and
(3) "practical." Accordingly, in the Secretary's determination of what is
"the safest direct practical route" there must be a consideration of all three
factors. No one factor may be used exclusively to determine the designated
escapeway without taking into account the other two factors. The judge
therefore erred when he based his finding of violation solely on his
determination that "the escapeway was not `direct'" (13 FMSHRC at 1152)
without giving due regard to its practicality and its safety relative to other
possible routes.

  While the Secretary "suggested" the construction of an overcast over the

belt and track entry, she failed to prove that there was a specific better

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route.(Footnote 8) The judge found that neither Jones nor any other
representative of the Secretary mandated a particular route that was
designated as an escapeway for the purpose of abating the violation. 13
FMSHRC at 1152 n.1. Jones conceded that he never gave SOCCO a specific
escapeway route. Tr. 49. When asked to mark on a map an alternative for the
safest direct practical route, he did not do so. Jones merely responded that
"[a]nything can be used as an alternate route either inby or outby the mouth."
Tr. 49, 50. Nor does the citation itself indicate a particular escapeway that
Jones believed was the safest direct practical route.

  Furthermore, the Secretary has taken the position throughout this

proceeding that she has only suggested, but not required, construction of an
overcast.(Footnote 9) See S. Br. 10-11; Tr. 14-15, 21, 23, 49, 51, 104, 132,
305, 307; O.A. Tr. 25, 29. If, indeed, construction of an overcast was not
required, a route containing the overcast could not have been determined to be
the safest direct practical route.(Footnote 10) We conclude that the judge
erred in finding that the Secretary established a violation of section
75.1704-2(a).

  B.    Section 104(b) Failure to Abate Order and Application for
        Temporary Relief

  Prior to the expedited hearing in this matter, SOCCO attempted to abate

the violation alleged in the citation by designating a shorter route as its
primary escapeway. In addition, SOCCO requested that the judge extend the
time for abatement until after he issued his decision on the merits. SOCCO
complied with the section 104(b) order, shut down the longwall, and
constructed the "suggested" overcast. Under these circumstances, we vacate
the section 104(b) order.

8 The record does not address whether the shorter escapeway designated by
SOCCO after the citation was issued met the requirements of section 75.1704-
2(a).

9 Even if the Secretary's "suggestion" is construed to have required the
construction of an overcast, the Secretary at oral argument was equivocal as
to her authority to require such construction. See O.A. Tr. 31-32, 35-36, 37-

38. See also S. Br. 11-12 n.4. Counsel for the Secretary suggested that if
    "there was no other direct, safe and practical way out of the mine ... the
    Secretary under those circumstances could require construction to some
    extent." O.A. Tr. 32. When asked what the Secretary's position was on
    construction, counsel responded that she was "not going to totally preclude
    that possibility." O.A. Tr. 35-36. Pressed further, she responded that "we
    are not taking the position that the Secretary could never require
    construction." O.A. Tr. 37-38.

10 Finally, we note that SOCCO, on its own initiative, constructed the air
shaft and the hoist. As a result, SOCCO was able to reduce its primary
designated escapeway from the 3-South longwall section from 16,200 feet to
7,300 feet. It is noteworthy that, prior to voluntary action by SOCCO, which
reduced the escapeway distance by 8,900 feet, the much longer escapeway was
approved by the Secretary.

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SOCCO also asserted that the judge erred in denying its request for
temporary relief from the section 104(b) failure to abate order. Since we
have vacated the order, SOCCO's assertions with respect to the application for
temporary relief are rendered moot.

                                 III.

                              Conclusion

  For the foregoing reasons, we reverse the judge's finding that SOCCO

violated section 75.1704-2(a) and vacate the citation. We also reverse the
judge's decision sustaining the section 104(b) failure to abate order and
vacate that order.

                                Arlene Holen, Chairman

                                Richard V. Backley, Commissioner

                                Joyce A. Doyle, Commissioner

                                L. Clair Nelson, Commissioner