Freeman United Coal Mining Company

Plain-English summary

Freeman United Coal Mining Company contested a citation alleging that its underground Crown II Mine had failed to withdraw people after the mine fan stopped for at least 15 minutes. The judge found that the testimony did not reliably establish when the fan stopped or restarted, and that the pressure-recording chart could not prove the required stoppage duration. The Secretary therefore did not meet the burden of proving a stoppage lasting more than 15 minutes under 30 C.F.R. § 75.321. The citation was dismissed, with no penalty ordered in the decision.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.321
• Outcome: Citation No. 3218200 was dismissed.
• Key point: The evidence did not convincingly establish that the mine fan stopped for the period required to trigger the operator's withdrawal plan.

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

FREEMAN UNITED COAL MINING CONTEST PROCEEDING
COMPANY,
CONTESTANT Docket No. LAKE 91-746-R
v. Citation No. 3218200; 8/8/91
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH Crown II Mine
ADMINISTRATION (MSHA),
RESPONDENT Mine ID 11-02236

                               DECISION

Appearances: Richard R. Elledge, Esq., Gould & Ratner,
Chicago, Illinois for Contestant.
Lisa Gray, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Respondent;

Statement of the Case

 This case is before me based on a Notice of Contest filed by

Freeman United Coal Mining Company (Contestant), contesting the
issuance of Citation No. 3218200 which alleges a violation of 30
C.F.R. 75.321. Contestant also filed a Motion for Expedited
Hearing, and in a conference call initiated by the undersigned on
August 16, 1991, with counsel for both parties, counsel presented
oral argument on the merits of this motion. The motion was
granted, (Footnote 1) and the Secretary (Respondent), did not
object to Contestant's request that a hearing be held in Arlington,
Virginia.

 A hearing was held in Falls Church, Virginia, on August 19,

1991. At the hearing Lonnie Deon Conner, Tim Yakus, Kenneth Fox
      and Charles Dana Campbell testified for Respondent, and Patrick
      J. Peterson, Harry A. Schum, and Kenneth E. Miller testified for
      Contestant. The parties waived their right to submit written Post
      Hearing Briefs, and in lieu thereof presented closing arguments
      at the conclusion of the evidentiary hearing.

Findings of Fact and Discussion

 On June 15, 1991, the only fan providing ventilation at

Respondent's underground Crown II mine stopped during a
thunderstorm. It is uncontested that all persons were not
withdrawn from the mine as a consequence of the stoppage of the
fan.

 On August 8, 1991, Lonnie Deon Conner, an MSHA Inspector

issued Citation No. 3218200. The Citation alleges that "based on
information obtained from the main fan pressure recording gauge
chart, the main fan was stopped for more than 15 minutes during the
evening of June 15, 1991, between 6:00 p.m. and 7:00 p.m."
The citation alleges a violation of Section 75.321 supra, which
in essence, requires an operator to adopt a plan to provide ". .
. that when any mine fan stops," (emphasis added), immediate
action shall be taken by the operator to withdraw all persons
from the working sections. In this connection, the revised fan
stoppage plan (the Plan) in effect in June 1991 provides, as
pertinent, as follows: "All persons shall be withdrawn from the
mine to the surface after a fan stoppage of 15 minutes or
longer." (Joint Exhibit No. 2, page 2). The sole issue for
resolution herein is whether Respondent has proven that during
the evening of June 15, 1991, there was "a fan stoppage" of 15
minutes or longer. For the reasons that follows I conclude that
Respondent has not met this burden.

 The testimony adduced at the hearing is not sufficiently

convincing to establish the time the fan stopped, and the time it
restarted. Kenneth Fox, a miner operator, was working underground
on June 15, 1991. He indicated that he was wearing a watch and
noted that the power went off a little before 6:15 p.m. He did
not testify specifically as to the time that the fan went off.
Neither Fox, nor Tim Yakus Respondent's other witness who was
working in the hoist building on the shift in question on June
15, 1991, convincingly established that the fan went off the same
time the power went off and not later. Yakus in this connection
testified that the lights went off, but did not explicitly say
that the fan went off at the same time. I find more convincing
the explicit testimony in this regard by Contestant's witnesses.
Harry Schum a maintenance foreman testified that when he was at
the bottom shop the power went off, but that he could hear the
fan as there is a "tremendous" amount of air drawn there past a
stopping and "it's whistling very loud" (Tr. 206). Kenneth E.
Miller, Contestant's shift mine manager testified that at 6:00
p.m. on June 15, 1991, he was told that there was no power
underground. He then went to the power box and discovered that
the fan was off, as there was no air being drawn at the stopping.

 According to Fox when he heard Yakus tell Miller that the

fan had restarted, he looked at his watch and it was 6:35 p.m.
However, as noted above, he did not state explicitly the time
according to his watch when the fan stopped working. Yakus who
was only 15 to 20 yards away from the fan, noted when the fan
stopped, as he heard the alarm go off. He also heard the fan
restart. However, he was not wearing a watch at the time, and had
no personal knowledge of the time of the stoppage of the fan.
Yakus testified that he asked Tom Crays who was present with him
on June 15, 1991, the time when the fan stopped, and Crays told
him 6:20 p.m., and he reported this to Miller. Also Yakus
testified that when the fan restarted he asked Crays the time,
and Crays told that it was 6:40 p.m. I find this hearsay
testimony inherently unreliable to establish the time of the
stoppage of the fan, as Crays did not testify and thus the record
does not contain any basis to evaluate the probative value of the
out of court conclusionary declarations he made to Yakus when
asked the time.

 Respondent also relies on the pressure recording gauge chart

of the fan as interpreted by Charles Dana Campbell an MSHA Senior
Mining Engineer, and who is a professional engineer, and works in
a ventilation division technical support group. The chart was
made by a Bristol Babcock serial 500 pressure recorder (the
recorder) which is designed to record negative air pressure
created by the exhaust fan in question over a 7 day period. As
the chart rotates indicating a passage of time, pressure is
recorded by way of an ink stylus. It thus is possible to
correlate the negative pressure created by the fan, to a specific
hour in a 7-day cycle (See Government Exhibit No. 1).

 Campbell examined a copy of the chart, and with the use of a

protractor located the center of the chart. He calculated the
angle of the arc denoting the distance on the chart between the
point in time on Saturday, June 15, when the pressure started to
go down, to the point in time where the pressure returned to the
level it was at before the fan lost power. He then translated the
degree of this angle into minutes, and arrived at a figure of
19.6 minutes, with a margin of error of plus or minus 2.8
minutes. He opined that once the fan is re-energized it would
take 1 or 2 seconds to regain its operating negative pressure.

 According to the plan the key element for analysis is the

time of the fan's "stoppage". This would appear to call for a
measurement of the time interval during which time the fan had
stopped. Patrick J. Peterson, a Senior Mining Engineer employed
by Contestant, testified that he observed the stylus on the
recorder to take several minutes to go from 0, its position when
the fan is not on, back to negative 6. I place more weight on his
testimony in this regard rather than that of Campbell, inasmuch
as it was based on his observations, whereas Campbell never
observed the recorder in operation. Also, Peterson testified
that, by comparing the regular upward slope of the stylus from
zero up to maximum pressure, to the upward stroke in

that direction indicated on the chart for Saturday, June 15, it
can be seen that the latter stroke did not follow the regular
slope. According to Peterson this indicates that the return to
maximum pressure once the fan was restarted took more time than
it took to go from maximum pressure to zero when the fan was
turned off by the storm.

 Further, Peterson indicated that it takes less time for the

pressure to go down to zero once the fan is shut off, then it
does for the pressure to go back to the maximum level once the
fan is turned on, as in the former situation there are three
sources for air to enter to stabilize the pressure (the fan
shaft, man and material shaft, and track slope shaft), whereas
when the fan restarts only the man and material shaft and track
slope shaft are available, and hence the quantity of air entering
is less.

 Also, as testified to by Peterson, due to the small scale of

the chart, the width of the ink line makes it very difficult to
perform precise measurements, and is thus inherently unreliable.

 Peterson also indicated that the recorder is not designed to

chart the loss of power to a fan.

 In the main, Peterson's testimony has not been rebutted or

impeached and I accept it. I find his opinions to be well
supported.

 Taking into account all of the above I conclude that

Respondent has failed to establish, by way of convincing evidence
that, on June 15, 1991, there was a stoppage of the fan in
question that lasted for more than 15 minutes. Accordingly the
Notice of Contest is sustained.

                                 ORDER

It is ORDERED that Citation No. 3218200 be DISMISSED.

                                 Avram Weisberger
                                 Administrative Law Judge

Footnote starts here:-

 1. In order to expedite the decisional process, the

reporting service contracted to transcribe the hearing, was
required to file the transcript within 3 days after the hearing.
The transcript was not filed until September 3, 1991.