Cumberland Coal Resources, LP.

Plain-English summary

MSHA cited Cumberland Coal for failing to properly test for methane near the roof of a high spot in an intake entry. The Judge found that preshift examiners routinely used a probe that could reach only about 15 to 16 feet in an area that rose as high as 21 feet, rather than testing within 12 inches of the roof. He affirmed the violation and found high negligence, but rejected the S&S designation because methane readings were only trace amounts, ventilation was not shown to be inadequate, and the untested area was limited to the upper portion of the high spot. The proposed $5,800 penalty was reduced to $1,000.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.360(b)(8)
• Outcome: The citation was affirmed as non-S&S, and a $1,000 penalty was assessed.
• Key point: Incomplete methane testing established a violation, but S&S was not proven without evidence that methane was reasonably likely to accumulate and cause an injury.

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

202-434-9981/ TELE FAX: 202-434-9949

September 30, 2008

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Contestant

v.

CUMBERLAND COAL RESOURCES, LP.

Respondent

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CIVIL PENALTY PROCEEDING

Docket No. PENN 2007-325

A.C. No. 36-05018-122224

Mine: Cumberland

DECISION

Appearances:  Jessica R. Brown, Esq., Office of the Solicitor, U.S. Department of Labor,

Philadelphia, Pennsylvania, on behalf of the Secretary of Labor;

Ralph Henry Moore, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania,

on behalf of Cumberland Coal Resources, LP.

Before:            Judge Zielinski

This case is before me on a Petition for Assessment of a Civil Penalty filed by the
Secretary of Labor pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, U.S.C. § 815. The petition alleges that Cumberland Coal Resources, LP, is liable for one
significant and substantial (“S&S”) violation of the Secretary’s Mandatory Safety Standards for
Underground Coal Mines, and proposes the imposition of a civil penalty in the amount of
$5,800.00. A hearing was held in Pittsburgh, Pennsylvania, and the parties filed briefs after
receipt of the transcript. For the reasons set forth below, I find that Cumberland committed the
violation, but that it was not S&S, and impose a civil penalty in the amount of $1,000.00.

Findings of Fact - Conclusions of Law

On September 22, 2006, MSHA coal mine safety and health inspector, Barry Radolec,
was conducting a quarterly inspection of Respondent’s Cumberland mine. In the No. 2 entry of
the East Mains section, also referred to as the 54 tailgate section, he observed that the roof of the
mine had been raised to allow for the future installation of a conveyor belt system. Normal
mining height was approximately eight feet. The “high spot” extended some 200 feet, from the
section loading point near the No. 84 crosscut inby to the No. 1 crosscut. Its maximum height
was approximately 21 feet in the area of the No. 85 crosscut, and it tapered down to a height of
14-15 feet near the feeder and at its inby end near the No. 1 crosscut.

Cumberland is a “gassy” mine, liberating over one million cubic feet of methane per day,
and is subject to spot inspections under the Act. 30 U.S.C. § 301(i). Methane, an explosive gas
at concentrations of 5-15%, is lighter than air, and can accumulate in high spots. Methane in a
high spot can be drawn down by the passage of mobile equipment, where it can mix with air in
the entry and possibly encounter an ignition source. The Secretary’s regulations require that the
atmosphere in high spots, in intake air courses where equipment is likely to operate, be tested
during preshift examinations. 30 C.F.R. § 75.360(b)(8). Testing is required to be made no closer
than 12 inches from the roof, and industry practice is to test about one foot from the roof. Tr. 86-88, 150.

Persons conducting preshift examinations of areas where miners are expected to work or
travel are required to make notations of the date and time of the examination, and initial the
entries, at enough locations to show that the entire work area has been examined. 30 C.F.R. §
75.360(e). Notations are typically made on a post, timber or board, often referred to as a “date
board.” Examinations of high spots are done with a probe, an instrument to which an
atmospheric monitor can be attached and extended to the required testing height. Radolec was
aware that date boards and extendable probes had been maintained at other high spots in the
mine. Tr. 46-47. There was no probe or date board at the high spot in the No. 2 entry. The
nearest probe was about 50 feet away, near the feeder. However, that probe was only 7.5 feet
long, too short for a proper test of the atmosphere in the high spot.

Radolec was concerned that the atmosphere in the high spot was not being monitored for
methane content. He related his concerns to Fred Evans, a Cumberland safety representative,
who accompanied him on the inspection. Radolec tested the atmosphere, using an extendable
probe from a continuous mining machine, and found that there was very little methane in the
high spot.

He decided not to issue a citation because he had some doubt about whether the tests
were being conducted.

Radolec returned to the mine on September 25, to conduct a five-day spot inspection for
methane. He decided to visit the East Mains section to see if Cumberland had taken any steps to
assure that the atmosphere in the high spot was being tested for methane. He traveled with
Michael Konosky, a Cumberland senior safety representative. As on his earlier visit, there was
no date board or extendable probe at the location. He spoke with Harry Casteel, the section
foreman, who had conducted the preshift examination on September 22, and asked him if he had
an extendable probe. Casteel responded that he would call outside to get one.

Radolec asked
Casteel to get a probe from a continuous miner so that he could test the high spot. Casteel
retrieved a probe, and Radolec’s test showed a methane concentration of 0.1%, well below its
explosive range. Tr. 46. Radolec also tested the atmosphere at the working faces and found 0.0-0.4% methane. Tr. 25-26. No active mining was taking place because equipment was being moved from the No. 4 face to the No. 2 face.

Radolec issued Citation No. 7076359, alleging that Cumberland failed to test the atmosphere in the high spot. Cumberland timely contested the citation and proposed penalty.

Citation No. 7076359

Citation No. 7076359 alleges a violation of 30 C.F.R. § 75.360(b)(8), which requires that
persons conducting preshift examinations test for methane in “[h]igh spots along intake air
courses where methane is likely to accumulate, if equipment will be operated in the area during
the shift.”

The “Condition and Practice” section of the Citation stated:

The person conducting the pre-shift examination for hazardous conditions
and testing for methane and oxygen deficiency failed to examine in high spots
along intake air courses where methane is likely to accumulate. This condition
existed on the active coal producing section of East Mains, 026-0 (M.M.U.)
development mining section of mine, in the number 2 entry, inby the section
loading point, at number 85 cross-cut to number 1 cross-cut (as viewed on section
working mine map). This area is from 15 feet to 21 feet above the mine floor, in
an area where immediate mine roof has been elevated to provide for future mining
conveyor systems. [grammatical and punctuation errors corrected]

Ex. G-1.

Radolec determined that it was highly likely that the violation would result in a
permanently disabling injury, that the violation was S&S, that six persons were affected, and that
the operator’s negligence was high. A specially assessed civil penalty in the amount of
$5,800.00 has been proposed for this violation.

The Violation

Cumberland contends that the high spot was not located in an “intake air course,” and that
testing was not required by the regulation, but was done as a matter of good practice. Under
Cumberland’s approved ventilation plan, air was supplied to the East Mains section through the
No. 3 and No. 4 entries. At the No. 84 crosscut, the air flow was split, such that in the No. 2
entry part of it flowed inby, past the feeder toward the face, and part flowed outby along the belt.
The No. 1 entry was the return entry. Cumberland contends that only entries which carry the
main flow of intake air are “intake air courses” within the meaning of the regulation and, since
the No. 2 entry carried only a split of intake air, it was not an “intake air course.”

Cumberland’s argument is based upon the testimony of Robert Bohach, its manager of
safety, who was accepted as an expert in the field of mine ventilation.

Tr. 154. While Bohach
described the No. 2 entry as an “intake entry,” he declined to classify it as an “intake air course,”
because it was not one of the main entries supplying air to the section. Tr. 155. Dennis
Swentosky, an MSHA supervisory mine safety and health specialist, who has been a ventilation
specialist for over twenty years, was also accepted as an expert witness in the field of mine
ventilation. Tr. 78-82; ex. G-4. He referred to the Secretary’s regulations which define intake
air, in pertinent part, as “[a]ir that has not yet ventilated the last working place on any split of any
working section.” 30 C.F.R. § 75.301. Conversely, return air is air that “has” ventilated the last
working place on any split of any working section. Id. An air course is defined as “[a]n entry or
a set of entries separated from other entries by stoppings, overcasts, other ventilation control
devices, or by solid blocks of coal or rock so that any mixing of air currents between each is
limited to leakage.” Id. The No. 2 entry inby the feeder met the definition of an air course. As
Swentosky explained, entries through which intake air is coursed to working places are intake air
courses. Tr. 92-93.

The area of the high spot in the No. 2 entry was to become part of the belt entry. Tr. 58.
The Secretary’s regulations provide that a belt air course must not be used as a return air course,
and must be separated from return air courses “and from other intake air courses.” 30 C.F.R. § 75.350(a)(1) (emphasis added). Cumberland’s overly restrictive interpretation of the term
“intake air course” is unsupported by the regulations, and is inconsistent with the use of the term
in the regulatory scheme. Bohach agreed that his narrow definition of an intake air course is not
found in the regulations. Tr. 156. Cumberland section foreman, Charles Fisher, also referred to
the No. 2 entry as an intake entry, and agreed that it was an intake air course, “but not the main
intake air course.” Tr. 148-50. I accept Swentosky and Radolec’s testimony, and find that the
high spot was located in an intake air course. There was considerable mobile equipment traffic
in the area and, under the regulation, the atmosphere in the high spot was required to be tested for
methane content during preshift examinations.

Radolec was concerned that testing was not being done because, unlike other high spots
in the Cumberland mine, there was no probe at that location sufficient to reach to the required
testing height, and there was no date board to indicate that a preshift examiner had visited the
location and, presumably, taken the test. He was guided by a provision in MSHA’s Program
Policy Manual, stating that the lack of some method to safely make such tests, e.g., ladders,
tubes, or methane detectors with probes, “would be a good indication that tests were not being
made or not properly being made.” Ex. G-5. His concerns were heightened by the fact that the
situation had not changed since his September 22 inspection, when he specifically discussed the
problem with Evans.

There are several significant conflicts in the testimony regarding conversations that
Radolec had with Casteel. Radolec testified that Casteel told him that he was not conducting the
tests because he did not have anything to test with. Tr. 41-42. Casteel denied making that
statement. Tr. 122. Casteel’s alleged response, which would have been a critical admission, is
not reflected in Radolec’s field notes.

Tr. 42-43; ex. G-2 at 6. The notes reflect that Radolec
asked for a probe, and that Casteel responded that he did not have one, but would call outside to
get one. Radolec testified that he interpreted Casteel’s reply as a “suggestion” that he did not
know that there was an extendable probe on the continuous miner, or that he did not want to take
a probe from a continuous miner. Tr. 52-53. Radolec also contradicted Casteel’s testimony that
he stated that he used a probe from a continuous miner to conduct tests. Tr. 45.

I place no weight on Radolec’s testimony regarding his conversations with Casteel. I find
that Casteel, most likely aware that Radolec wanted a probe left at the high spot, responded to his
inquiry by stating that he would call outside for one. That would have been a reasonable reaction
and, most likely, the only way to procure a probe that could have been left permanently at the
high spot. Radolec’s testimony indicates that he substantially misinterpreted Casteel’s
communication.

Nevertheless, while it is possible, if not likely, that some of Cumberland’s preshift
examiners properly tested the high spot, I find that it was not properly tested during preshift
examinations at the time the citation was issued. Cumberland had an established procedure for
testing high spots. An extendable probe and a date board were placed at the location. The
absence of a readily available extendable probe is evidence that tests were not being performed,
or were not being performed properly. Cumberland’s witnesses described two methods of
conducting the test, both of which were cumbersome and time consuming. Casteel stated that he
retrieved an extendable probe from a continuous miner, brought it back to the high spot,
performed the test, and returned it to the miner. When the miner was in the No. 4 face, which it
had been on the day that the citation was issued, it was some 320 feet away from the high spot.
While Casteel claimed that it took only five minutes to retrieve the probe, perform the test, and
return it, it most likely would have taken longer, especially if the miner were operating.

Fisher and Thomas Illar, a section supervisor, did not use a probe from the miner to
examine the atmosphere in the high spot. Rather, they testified that they used the shorter, more
readily available probe near the feeder, and were able to reach the required height by climbing
onto the operator’s canopy of a shuttle car, approximately six feet high. Miners typically took a
dinner break about 4:00 a.m., and they instructed a shuttle car operator to position the car under
the high spot where a test could be made. Tr. 130, 147. Fisher, who conducted the preshift
examination for the day shift on September 23, was a reasonably convincing witness as he
described how he walked up the inby end of the shuttle car and onto the canopy. Tr. 147, 150.
He may well have conducted tests in that fashion and would have been able to reach the required
height.

Illar conducted the preshift examination for the day shift on September 25. Tr. 127-28;
ex. R-1 at 69. Unlike Fisher, his description of his test methodology was unconvincing. He
hesitated when asked to explain how he mounted the canopy, and then explained that he used an
opening near a light to start his accent. Tr. 132. His demeanor conveyed the distinct impression
that he had never taken the test in the manner he described.

The high spot had existed for approximately one month, and preshift examinations had to
be performed more than once each day. Tr. 124. I find it incredible that experienced miners
would repeatedly perform the tests in the manners described, when a much better alternative was
readily available, i.e., obtaining an extendable probe to be kept at that location. Retrieving a
probe from a continuous miner would have required a considerable expenditure of time and
effort. Climbing up onto the canopy of a shuttle car, which may have had to be re-positioned,
would have been dangerous. Neither Fisher, nor Illar deenergized the shuttle car before climbing
onto it. The area was admittedly dark, and the shuttle cars were typically dirty and slippery. Tr. 136. Neither of them described using fall protection. Not surprisingly, Bohach, who was not
aware that preshift examiners were climbing onto the canopies of shuttle cars, would have
directed them to obtain and use an extendable probe. Tr. 157.

Illar testified that he used the shorter probe at the feeder, because it had been used for
testing the high spot “when it wasn’t so high,” and that it was “still there.” Tr. 129. I find that
preshift examiners routinely continued to use the shorter probe. They did not climb onto shuttle
car canopies, but tested the atmosphere at the maximum height they could reach, approximately
15-16 feet. Readings for methane in that intake entry, in the area of the high spot, had always
been very low, and testing at the lower height was most likely deemed sufficient. Tr. 147.

I find that the Secretary has proven, by a preponderance of the evidence, that Cumberland
violated the regulation, by not conducting a proper test of the atmosphere in the high spot during
preshift examinations. I concur with Radolec’s assessment that Cumberland’s negligence was
high and that six persons were affected by the violation.

Significant and Substantial

An S&S violation is described in section 104(d)(1) of the Act as a violation “of such
nature as could significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard.” A violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature." Cement Div.,
Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).

The Commission has explained that:

In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor must
prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to safety--contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99,

103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving
Mathies criteria).

In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission
provided additional guidance:

We have explained further that the third element of the Mathies formula "requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury." U.S. Steel Mining Co., Inc.,

6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(d)(1), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantial. U.S. Steel
Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

This evaluation is made in terms of "continued normal mining operations." U.S. Steel
Mining Co., Inc., 6 FMSHRC at 1574. The question of whether a particular violation is
significant and substantial must be based on the particular facts surrounding the violation.
Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC
2007 (Dec. 1987).

The fact of the violation has been established. The measure of danger to safety was
contributed to by the failure to properly test the atmosphere in the high spot, and any injury
resulting from an ignition of methane would have been of a serious nature. The focus of the S&S
analysis, therefore, is whether the violation was reasonably likely to result in an injury. I find
that the Secretary has failed to carry her burden of proof on this issue.

The preamble to the latest amendments to the regulation notes that methane liberation is
highly unpredictable, and that “the potential for a dangerous accumulation of methane in a high
spot is influenced by mine ventilation, particularly the air velocity in the entry.” Ex. G-6. There
was no evidence of insufficient air flow in the entry, and there is no evidence of the existence of
methane, in other than trace concentrations, in the entry or the high spot. Radolec had tested the
air in the No. 2 entry, and found no methane. Tr. 60. At the apex of the high spot, he found only
0.1% methane, and Fisher testified that he had never found more than 0.2% methane in that area,
although his measurements may not have been taken at the proper height. Tr. 147.

As evidenced by the requirement for frequent tests at working faces, the greatest volume
of methane is generally liberated where coal is being cut. Radolec was concerned about methane
accumulating in the high spot because of an interruption in mine ventilation, including the
moving of line curtains. Tr. 61. However, he did not explain how the moving of a line curtain,
downstream in the air flow from the high spot, could affect air flow, or produce an accumulation
of methane in that area. As Swentosky stated, methane liberated in the working section would be
swept out the return, not back to the feeder. Tr. 95-96. In addition, I have found that
Cumberland conducted tests of the atmosphere in the high spot, but did not do so at the proper
height. Consequently, the hazard contributed to by the violation was a potential accumulation of
methane in the relatively smaller area above 15 feet. While passing mobile equipment might
draw down an accumulation of methane immediately above the normal mining height, there is no
evidence that methane in the upper reaches of the high spot would be drawn down by passing
equipment. Certainly, passing equipment would have considerably less tendency to disturb
atmosphere nine feet above it.

I find that the Secretary has failed to prove, by a preponderance of the evidence, that the
violation was S&S.

The Appropriate Civil Penalties

The parties stipulated to many of the factors that are to be considered in establishing the
amount of a civil penalty. The Cumberland mine has an annual coal production of approximately
7,515,984 tons, and Cumberland Coal Resources, LP, is a large operator that produces
approximately 71,492,892 tons of coal annually. In the 24 month period immediately preceding
the issuance of the Citation, Cumberland was assessed a total of 472 violations, over 827
inspection days. Payment of the proposed penalty will not affect its ability to continue in
business. Cumberland demonstrated good faith in promptly abating the violation. The gravity
and negligence associated with the violation have been discussed above.

Citation No. 7076359 is affirmed. However, the violation is found to be non-S&S.

A civil penalty of $5,800.00 is proposed by the Secretary. The lowering of the level of gravity
justifies a significant reduction in the proposed penalty. I impose a penalty in the amount of
$1,000.00, upon consideration of the above and the factors enumerated in section 110(i) of the
Act.

ORDER

Citation No. 7076359 is AFFIRMED, as modified, and Respondent is ORDERED to
pay a civil penalty in the amount of $1,000.00, within 30 days of this decision.

Michael E. Zielinski

Administrative Law Judge

Distribution (Certified Mail):

Jessica R. Brown, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center,
Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty
Avenue, Pittsburgh, PA 15222