Greenwich Collieries, Division of Pennsylvania Mines Corporation

Read the official release (fmshrc.gov)

Plain-English summary

MSHA cited Greenwich Collieries after an inspector concluded that air was moving contrary to the ventilation plan in the D-9 area of the Greenwich No. 1 Mine, where a methane accumulation had previously occurred. The citation was modified to a section 104(d)(2) unwarrantable-failure order under 30 C.F.R. § 75.316. Judge George A. Koutras found that the plan relied on by the inspector was not the plan in effect when the citation issued, and that MSHA did not prove a violation of the applicable plan or an unwarrantable failure. He granted Greenwich's contest, vacated the order, and dismissed MSHA's civil-penalty proposal.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.316
• Outcome: The section 104(d)(2) order was vacated and MSHA's civil-penalty proposal was dismissed.
• Key point: MSHA did not establish a ventilation-plan violation or unwarrantable failure with credible evidence tied to the plan in effect at the time.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. GREENWICH COLLIERIES
DDATE:
19861016
TTEXT:

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       Federal Mine Safety and Health Review Commission
             Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. PENN 85-204
PETITIONER A.C. No. 36-02405-03596

      v.                               Greenwich No. 1 Mine

GREENWICH COLLIERIES,
DIVISION OF PENNSYLVANIA
MINES CORPORATION,
RESPONDENT

GREENWICH COLLIERIES, CONTEST PROCEEDING
DIVISION OF PENNSYLVANIA
MINES CORPORATION, Docket No. PENN 85-114-R
CONTESTANT Order No. 2255733-01; 1/17/85

      v.                               Greenwich No. 1 Mine

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
RESPONDENT

                           DECISIONS

Appearances: Linda M. Henry, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsy-
lvania, for Petitioner/Respondent;
Joseph T. Kosek, Jr., Esq., Ebensburg, Pennsylvania,
for Respondent/Contestant.

Before: Judge Koutras

                 Statement of the Proceedings

 These consolidated proceedings concern a civil penalty

proceeding initiated by MSHA against the respondent pursuant to
section 110(a) of the Federal Mine Safety and Health Act of 1977,
seeking a civil penalty assessment for an alleged violation of
mandatory safety standard 30 C.F.R. 75.316, as stated in a
section 104(a) Citation No. 2255733, with special

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"significant and substantial" (S & S) findings, issued by an MSHA
inspector on January 16, 1985. The citation was subsequently
modified by the inspector on January 17, 1986, to a section
104(d)(2) Order No. 2255733Ä01. The contest was filed by the
contestant to challenge the legality of the order.

 The cases were consolidated for hearing, and the parties

appeared and participated fully therein. Greenwich filed a
posthearing brief, but MSHA did not. However, I have considered
its oral arguments made during the hearing.

                            Issues

 The issues presented are whether or not the condition or

practice cited by the inspector constitutes a violation of the
cited mandatory safety standard, whether the alleged violation
was "significant and substantial," and whether it constitutes an
"unwarrantable failure" by the contestant to comply with the
requirements of the standard in question. Additional issues
raised by the parties are identified and disposed of in the
course of these decisions, including an appropriate civil penalty
assessment for the violation in question.

         Applicable Statutory and Regulatory Provisions
 1. The Federal Mine Safety and Health Act of 1977, P.L.

95Ä165, 30 U.S.C. 801 et seq.

2. Commission Rules, 29 C.F.R.   2700.1 et seq.

Stipulations

 1. The Greenwich No. 1 Mine is owned and operated by the

respondent/contestant Greenwich Collieries.

 2. Greenwich Collieries and the No. 1 Mine are subject to

the Act.

 3. The presiding administrative law judge has jurisdiction

to hear and decide these cases.

 4. The subject order issued in these proceedings was

properly served on a representative of Greenwich Collieries and
may be admitted to establish its issuance and service.

 5. Payment of the assessed civil penalty will not adversely

affect the respondent/contestant's ability to continue in
business.

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6. The respondent/contestant's annual coal production is
approximately two million tons. Mine production for the No. 1
Mine is approximately 877,000 tons annually. Greenwich Collieries
is a medium-to-large mine operator.

 7. The respondent/contestant exhibited ordinary good faith

in timely abating the cited condition or practice.

 8. Respondent/contestant's history of prior paid civil

penalty assessments consists of 245 paid assessments for the
first 9 months of 1985, 214 in 1984, and 155 in 1983.

 9. The 104(d) "chain" is properly established in that no

intervening "clean" mine inspections took place immediately
preceding the issuance of the subject contested section 104(d)(2)
order.

MSHA's Testimony and Evidence

 MSHA Inspector Samuel Brunatti stated that he is a

ventilation specialist, and he testified as to his experience and
training. He confirmed that he issued a section 104(a) Citation
No. 2255733, on January 16, 1985, but that the conditions cited
were previously observed by him when he was at the mine on
January 10, 1985. He explained that his supervisor instructed him
to go to the DÄ9 area of the mine during the midnightÄtoÄ8:00
a.m. shift on January 10, to examine the area. The mine had
experienced a large methane accumulation and miners were
withdrawn when he arrived at the mine.

 Mr. Brunatti identified exhibit GÄ2, as a copy of a portion

of the mine map depicting the area in question and he confirmed
that he made notations on the map on January 10, depicting the
direction of air flow, and his air and methane readings. He
confirmed that he determined the direction of air flow by means
of a smoke test and observation (Tr. 17Ä23).

 Mr. Brunatti confirmed that when he was at the mine on

January 10, there was no methane accumulation and he indicated
that he complimented the company for the job they did in clearing
away the methane which prompted the withdrawal of miners. He
confirmed the prior methane accumulation by reviewing the mine
examiner and foreman books (Tr. 24). He also confirmed that he
issued no citations or orders on January 10, and that he was at
the mine in his capacity as the resident inspector and was not at
that time a ventilation specialist. He also confirmed that he did
not have the appropriate ventilation plan with him on January 10,
and had no knowledge of the ventilation system (Tr. 24).

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Mr. Brunatti stated that after completion of his inspection on
January 10, his supervisor was concerned about the methane
incident and he asked to review his notes. After a discussion
with his supervisor and a review of his notes and the appropriate
ventilation plans, it was determined that the conditions he
observed on January 10, with regard to the direction of the air
flow constituted a violation of the plan (Tr. 25).

 Mr. Brunatti identified exhibit GÄ3 as the ventilation plan

for the DÄ9 area in question, which was approved by MSHA on June
7, 1985. Exhibit GÄ3(a) is the August 1, 1984, plan for
ventilating the active section while producing coal, and the
direction of air flow over the gob into the bleeder entries, and
to the return. Both plan provisions are applicable in this case,
and the June 7, provisions in no way changed the requirements of
the plan reviewed on August 1 (Tr. 26).

 Mr. Brunatti explained the ventilation plan requirements for

maintaining the direction of air flow over the cited DÄ9 area of
the mine. He confirmed that the conditions he observed on January
10, which he noted on exhibit GÄ2, reflect that the air
ventilating the section was escaping out of the return instead of
putting pressure on the gob area, thus creating, in his opinion,
a methane build-up in the back end of the gob area. It was his
view that had all of the available ventilation air been placed on
the gob, and had proper air pressure been maintained on the gob,
the methane build-up previously experienced would not have
occurred. He confirmed that he issued the citation because the
air flow was misdirected in violation of the ventilation plan
because in two of the three entries in the area, air was
travelling inby, when in fact the plan depicts the air flowing
outby.

 In support of the violation, Mr. Brunatti stated that the

ventilation plan provision shown on the second page of exhibit
GÄ3, at the upper left-hand corner, depicts a double arrow
pointing to the top of the page indicating the direction of air
flow over the gob and exiting at the point marked BE #58, which
is the evaluation point for checking methane liberation and air
flow. At that point, the air then travels down the three entries
in the direction of the three double arrows shown on the diagram
and out the return. In contrast to these required air directions,
on January 10, he found that the air was travelling down the
number one entry, but in the opposite direction in the adjacent
two entries (Tr. 27Ä33).

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Mr. Brunatti confirmed that the section 104(a) citation issued
on January 16, was subsequently modified to a section 104(d)(2)
order the next day. He confirmed that it was modified after some
discussion with his supervisor, but that he (Brunatti) made the
decision to modify the citation to an order. Mr. Brunatti stated
that his notes for January 16, reflect a conversation with
company safety representative DeSalvo and mine foreman Richard
Endler, during which they stated that they believed that the
direction of air flow as found by Mr. Brunatti on January 10, was
the way it was depicted on the ventilation plan, but was contrary
to the way the company engineer submitted it on the plan. Mr.
Brunatti stated that mine management was ventilating the section
one way, but that the plan submitted by the engineer indicated
ventilation in a different way. Mr. Brunatti stated further that
he had the "impression" that Mr. DeSalvo and Mr. Endler were
aware of the fact that the direction of air on January 10, was
different from that shown on the submitted plan, but he conceded
that he could not confirm that they had actual knowledge of the
plan requirements until he later called it to their attention
(Tr. 36).

 Mr. Brunatti confirmed that the No. 1 Mine is on a section

103(i) 5Äday spot inspection status because it has a history of
methane ignition, and that an explosion occurred at the mine in
February or January of 1984, resulting in the death of three
miners. The explosion was the result of an accumulation of
methane (Tr. 37).

 Mr. Brunatti confirmed that at the time he issued the

initial citation on January 16, he marked the citation form to
reflect "moderate negligence," and that he did so because "I
wasn't really aware of all that was involved, you know, as far as
the ventilation changes I'm sure" (Tr. 37). He also stated that
he was influenced by the fact that the company had withdrawn the
miners and had done a fine job in correcting the methane problem.
He later realized that mine management should have been aware of
the ventilation plan requirements (Tr. 38).

 Mr. Brunatti stated that the ventilation plan is designed to

prevent methane accumulations, and that "what could happen here
is a methane gas explosion." If the cited condition were left
uncorrected, he believed it was highly likely that an explosion
would have occurred because the area was a pillar area where the
roof is constantly falling, and sparks from a roof fall would be
an ignition source to ignite the methane. He conceded that he had
no knowledge of any such ignitions from roof falls in the mine in
question, but was aware of such

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an occurrence in another mine (Tr. 40). Mr. Brunatti confirmed
that he indicated on the citation form that one miner would be
affected by a methane explosion because the area where the air
was misdirected was an outby area which was not in an active
working section (Tr. 39). He also conceded that while the mine
has experienced numerous roof falls, they are planned falls
connected with pillar recovery and the "majority probably weren't
violations" (Tr. 44). He pointed out, however, that the cited
area was only required to be examined once a week, and it was an
area that was "coming off the gob" (Tr. 45).

 Mr. Brunatti stated that the mine had experienced problems

in ventilating other gob areas, and that this was a contributing
factor to the explosion which previously occurred. He also
indicated that had an explosion occurred in the instant case,
"the whole working section" would have been affected because it
was in close proximity to the cited area (Tr. 46).

 On cross-examination, Mr. Brunatti confirmed that at the

time he inspected the mine on January 10, and issued the citation
on January 16, 1985, he was not a ventilation specialist, and
that the citation was issued as part of a regular mine inspection
(Tr. 48). He stated that he was the resident inspector at the
mine, and that he was at the mine during the period from January
10 to January 16, but was not in the DÄ9 section (Tr. 53). He
confirmed that while at the mine on January 16, he did not
conduct an inspection of the DÄ9 section, and simply issued the
citation on the basis of the information that he had previously
compiled when he was there on January 10 (Tr. 54). The conditions
described in the citation were conditions which existed on
January 10, and not on January 16, and he did not know what the
ventilation conditions were on January 16 (Tr. 56).

 Mr. Brunatti stated that the methane accumulation on January

9, 1985, was 4.2 percent, and that he confirmed this information
from a review of the mine books for that day. He confirmed that
he commended mine management for their reaction to the methane
accumulation and for the steps taken to protect the miners, and
respondent's counsel confirmed that the miners were voluntarily
withdrawn by mine management, and that management contacted MSHA
and the appropriate state agency. Counsel also asserted that at
the time Mr. Brunatti was at the mine on January 10, the methane
had been dissipated and the mine was back in production (Tr. 59).

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Mr. Brunatti stated that he took methane readings on the morning
of January 10, and detected no methane levels which were in
violation of the regulations. The mine was in compliance with the
methane requirements, even though the ventilation air was flowing
in the wrong direction (Tr. 62). However, Mr. Brunatti believed
that the prior methane reading of 4.2. recorded in the mine books
on January 9, was caused by the air being coursed in the wrong
direction, and that the condition was corrected by making some
adjustments to the ventilation system (Tr. 63).

 Mr. Brunatti stated that the ideal ventilation for any mine

is to insure the maintenance of air pressure on the gob area so
that the majority of air is coursed to the gob. In the instant
case, the majority of air was escaping outby, and only a minimal
amount was coursed to the gob to dilute any methane which may
have been present. Since methane concentrations and liberation
change because of roof falls or other conditions, the ventilation
plan is intended to control these events (Tr. 64). Referring to
exhibit GÄ2, Mr. Brunatti explained the desirable and required
methods for ventilating the right and left entries while they
were partially and fully developed (Tr. 66Ä71).

 Mr. Brunatti confirmed that when he was at the mine on

January 10, certain changes had been made to the ventilation
system, but he still had a problem with the direction of the air
flow. However, he stated that "at that time, I wasn't aware that
it was a problem" (Tr. 73). He confirmed that during the period
between January 10 through 17, he was not aware of any additional
methane build-up in the gob at the back of the DÄ9 area, even
with the ventilation air flow as he found it (Tr. 73).

 Mr. Brunatti confirmed that when he issued the citation on

January 16, he marked the "negligence block" on the form as
"moderate," and when he subsequently modified the citation to a
section 104(d)(2) order on January 17, he did not change his
negligence finding (Tr. 72). He testified that he did not believe
that the company was indifferent to the requirements of the cited
mandatory standard, but felt that there may have been a
miscommunication between mine management and the company engineer
with respect to the ventilation plan which had been submitted,
and with respect to the actual ventilation in the area in
question (Tr. 74).

 Mr. Brunatti stated that he did not believe that the

violation in question resulted from the company's willful intent
to violate the law, or that it resulted from a serious

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lack of reasonable care on the part of the company (Tr. 74). He
confirmed that he modified the citation to an order after
discussing the matter with his supervisor (Mr. Baesinger), and he
explained the reasons for his action as follows (Tr. 75Ä76):

A. But basically, we discussed the ventilating system,
the type of changes that were made which caused the air
to flow in the wrong direction. And it was determined
that mine management had to be directly involved in
that.

I mean, to say this could have occurred without them
knowing, or should have knowing, however you want to
say it--well, it just couldn't. You know, the company is
responsible--mine management is responsible for
ventilation and installing or removing ventilation
controls from the ventilating system.

 Mr. Brunatti confirmed that the ventilation plan "Review No.

26" as depicted on the first page of exhibit GÄ3, was not
applicable at the time of the violation, and that plan "Review
No. 25," exhibit GÄ3(a), is the applicable plan provision in this
case (Tr. 79Ä80). MSHA's counsel stated that the plan
requirements as depicted in both exhibits were essentially the
same requirements, and that exhibit GÄ3 had not modified exhibit
GÄ3(a) in any way for the purpose of the DÄ9 section of the mine
(Tr. 80).

 In response to further questions, Mr. Brunatti stated that

his notes made on January 16, 1985, (exhibit GÄ4), confirm that
mine management agreed with his observations that the air was
being coursed in the wrong direction, and that there may have
been miscommunication among those management people who were in
charge of the ventilation system. He also stated that it is
reasonable to expect a mine foreman to check to see what the
ventilation should be for a particular mine section and to know
what the plan provides in this regard. He also believed it was
reasonable for those who designed the system to communicate with
the foreman concerning the plan provisions (Tr. 82).

 Mr. Brunatti explained the extent to which the cited area in

question had been developed when he went to the mine on January
10, and he explained why the air should have been directed in the
manner that he required as follows (Tr. 86):

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~1543
Good ventilation is, you put the majority of your
air or positive pressure on your gob, with just leaving
a little bit amount to ventilate that section return to
keep whatever little bit of methane is being liberated in
that area off the ribs.

     Positive pressure on the gob reduces the methane and
dilutes it and renders it harmless, taking it into the
bleeder entries to return to the fan and out of the
mine, and keeping it below an explosion mixture.

 Mr. Brunatti stated that when he went to the mine on January

10, he was there to determined whether the large accumulation of
methane still existed. When he determined that it did not, he
stated that "I was done with what I was sent there to do" (Tr.
92). Although he made a determination as to the direction of the
air used to ventilate the area in question, he did not at that
time know whether it was right or wrong, but later made this
determination a day before he issued the citation on January 16,
after he and his supervisor reviewed the ventilation plan and
determined that a violation had occurred on January 10 (Tr. 93;
96Ä97). When asked to explain the basis for his conclusion that
the misdirected air caused 4.2. methane accumulation on January
9, but did not cause any accumulations on January 10, he replied
in pertinent part as follows (Tr. 94): "I base that on some of my
experience in and around the mine, based on other conditions of
that air, the system ventilating that area. * * * I don't feel
that the ventilating system was rendering the methane constantly
harmless."

 Mr. Brunatti confirmed that even though miners were

withdrawn as the result of the 4.2 methane accumulation on
January 9, MSHA did not conduct any investigation to determine
the cause for this amount of methane. In his opinion, the high
methane level was caused by inadequate ventilation, and the
misdirected air was one contributing factor (Tr. 95). He
confirmed that even though adjustments were made to the
ventilation system to dissipate the prior 4.2 level of methane,
the continued misdirection of air did not result in unusual or
illegal methane accumulations (Tr. 96).

 Mr. Brunatti stated that while the misdirected air condition

which he found on January 10, was "questionable," he could not
remember whether he discussed the condition with mine management
at that time (Tr. 98). He conceded that had

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his supervisor not raised a question concerning the ventilation,
it was "very possible" that the citation would not have been
issued (Tr. 97). He reiterated that on January 10, he made no
determination that the direction of the air was in violation of
the ventilation plan (Tr. 98).

 Mr. Brunatti stated that he had no knowledge as to how the

cited condition was abated because another MSHA inspector
terminated the order (Tr. 112). MSHA's counsel stated that the
order was terminated by MSHA Inspector Carl Sensibal on January
21, 1985 (exhibit GÄ1), and the termination reads "as determined
with a chemical smoke cloud the air is now travelling in its
proper course (outby). Ventilation adjustments were made to
assure proper air flow direction through the affected bleeder
entry in the DÄ9 butt area" (Tr. 113, exhibit GÄ1).

Respondent' Testimony and Evidence

 Richard Endler, mine foreman, testified as to his duties and

experience, (Tr. 117Ä121). He stated that he has taken several
training courses in mine ventilation and that he participates in
the preparation and approval of the company's 6Ämonth ventilation
plans submitted to Federal and state agencies. He confirmed that
at the time of the violation, plan "review 25" was in effect, and
that he participated in the preparation and approval of that plan
(Tr. 122).

 Referring to several exhibit overlays which were projected

on a screen in the courtroom, Mr. Endler explained the projected
mining for the DÄ9 area at the time of the violation, the
applicable ventilation plan provisions, the projected method for
developing the entries, the intended direction of air through the
areas in question, and the operation of the ventilation system
(Tr. 125Ä133; exhibits OÄ2 through OÄ8).

 Mr. Endler disagreed with Inspector Brunatti's

interpretation of the applicable ventilation plan, and insisted
that the direction of the air on January 10, was exactly the way
the applicable plan "review 25" (exhibit GÄ3(a)) was submitted
and approved. That plan shows the air going up both entries in
the completed first butt heading that had been driven. Mr. Endler
explained that Mr. Brunatti believed that the arrow depicted in
the upper left-hand corner of the plan sketch depicted air flow
down through all three entries, but Mr. Endler could find nothing
in the plan supporting Mr. Brunatti's interpretation. Mr. Endler
stated that no changes were made in the ventilation depicted in
the plan in question which would have resulted in the air flowing
down all

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three entries as interpreted by Mr. Brunatti. Contrary to Mr.
Brunatti's interpretation, Mr. Endler insisted that plan "review
25" and exhibit OÄ2 depict the air going up two entries and down
the third one, and that this was precisely how it was directed on
January 10, when Mr. Brunatti tested it. Mr. Endler believed that
the dispute lies in the fact that Mr. Brunatti believed the arrow
at the top left-hand corner of "review 25" reflects that the air
should go down all three entries (Tr. 135Ä137).

 Mr. Endler explained that in the development of a section,

three entries are driven, and the belt is always the middle
entry. He explained that air is always going up the middle belt
entry, as well as up the right-hand entry, and then down the
left-hand entry. Any changes in the direction of the air flow
could only be made by submitting them to MSHA for approval. He
finds nothing in plan "review 25" to indicate any change in the
direction of air down all three entries (Tr. 146Ä148).

 Mr. Endler confirmed that the order was terminated after

changes in the air flow direction were made to comply with Mr.
Brunatti's requirements, and he identified exhibit OÄ8 as the
plan revision accepted by MSHA as part of "review 25." He
confirmed that at the time the order was issued, Mr. Brunatti
believed the direction of air flow should have been as shown in
the plan revision submitted to terminate the order, and had it
been that way, no citation would have been issued (Tr. 148Ä151).

 On cross-examination, Mr. Endler stated that exhibit OÄ2 was

submitted as part of the ventilation plan to depict how the
mining of the area would be developed, and that it does not
basically reflect how a gob area should be ventilated during
retreat mining (Tr. 156Ä157). He confirmed that "review 25,"
exhibit GÄ3(a), reflects how a gob area should be ventilated. He
explained that air would be directed up and across the gob area
by means of regulators and restricting the area on the return by
use of canvass which forces the air through the holes that are
created. He confirmed that at the time the violation was observed
by Mr. Brunatti, retreat mining was taking place in the cited
area in question (Tr. 157Ä158).

 Mr. Endler stated that the air in the back-end of the DÄ9

area was being coursed in the direction depicted on "review 25."
He stated that Mr. Brunatti was concerned about the direction of
air flow in the adjacent panel that had been driven, and that he
did in fact determine that it was being

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~1546
coursed up two entries and down the third entry, but believed
that it should have been coursed down all three entries as shown
in the print submitted to abate the order, (exhibit OÄ8; Tr.
160Ä161).

 In response to additional questions, Mr. Endler confirmed

that at the time the citation was issued he and representatives
of the company safety department discussed the plan provision
found in "review 25" with Mr. Brunatti, and that there was
disagreement between the company and Mr. Brunatti as to the
significance of the arrow shown in the plan. His testimony in
this regard is as follows (Tr. 165Ä171):

*      *      *       *       *       *       *       *

And I argued with Mr. Brunatti that that arrow, to me,
didn't designate that that air was supposed to come
down all three entries. And he argued back that it
meant that it was.

And naturally, they have more clout than what I have,
so the violation was issued. I lost my case on that.
But that arrow, to me, still does not depict air flow
in the adjacent panel. No matter how many times I look
at it, I can't visualize how that depicts air flow down
the other three entries.

JUDGE KOUTRAS: Well, where would the air go, after
it--with all these stoppings in place here, then?

THE WITNESS: The air would go out the single entry on
the far left-hand side.

 * * * As far as I'm concerned, the air, with the
ventilation that I know that we had in there, the air
would travel across these two entries and proceed down
the single entry.

*       *         *       *       *       *       *       *

JUDGE KOUTRAS: Okay. And where did the inspector say
that that would go?

THE WITNESS: The inspector said that it meant that air
was supposed to go down this entry.

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~1547
JUDGE KOUTRAS: And you're saying, no, it just goes across
the top, because you have air coming up there?

THE WITNESS: Yes.

JUDGE KOUTRAS: And he said the air coming up there was
not in compliance with your plan?

THE WITNESS: Yes, he did.

JUDGE KOUTRAS: And what did he base that on?

THE WITNESS: His opinion.

*      *       *      *       *       *         *      *

THE WITNESS: Okay, Once these connections were made at
the top, these two crosscuts were put through up at the
top, then you could change the air around. But we did
not have a plan submitted in Review 25 that would have
permitted me to turn that air around in them other two
entries. I had to keep that air going that way.

JUDGE KOUTRAS: Again, on the 10th, how was the air
going in the air that he cited?

THE WITNESS: It was going up the two entries.

JUDGE KOUTRAS: Okay. No dispute about that.

THE WITNESS: No.

JUDGE KOUTRAS: And that's the way you intended it to
go?

THE WITNESS: Yes, sir.

JUDGE KOUTRAS: And that's the way your plan intended it
to go?

THE WITNESS: Yes, sir.

JUDGE KOUTRAS: And the dispute is that the inspector
says, "You're right, the air's going that way, but
under your plan it should be going in the other
direction?"

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~1548
THE WITNESS: That's right.

JUDGE KOUTRAS: And you claim that that was never the
intent?

THE WITNESS: No.

JUDGE KOUTRAS: And that that arrow at the top only--

THE WITNESS: That arrow at the top only denotes air
flow from the gob as proceeding out through these other
two crosscuts at the top. It shows a movement at the
back of the gob to the adjacent entries that we had
driven up. That's all that arrow shows to me.

JUDGE KOUTRAS: How is the present plan now? You still
have the arrow at the top?
(Pause.)

THE WITNESS: Yes, sir.

JUDGE KOUTRAS: What's the difference between the arrow
at the top now under this plan and the way it was on
this other one, prior to the citation?

THE WITNESS: These two arrows coming down the other two
entries. That's the difference. We changed the air
around to bring the air--all of the air that was coming
through the gob now came down these three entries and
ventilated this back here. Prior to that, I had this
air that was coming out here going up these two
entries, as per the plan.

JUDGE KOUTRAS: What have you accomplished now that you
didn't have before, from your point of view, in terms
of ventilation?

THE WITNESS: The ventilation is still the same, as far
as I'm concerned. I still have the same amount of air.
I didn't really change any--

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Page 16

~1549
JUDGE KOUTRAS: Do you feel that the inspector actually
believed that your accumulation--that your methane problem
that you had that caused the withdrawal of miners was due
to the fact that you weren't ventilating this area in the
manner in which he felt your plan required it to be ventilated?

THE WITNESS: No, I don't believe that's why it
occurred.

JUDGE KOUTRAS: Do you get the impression that's why he
issued the citation in this case?

THE WITNESS: Yes, sir--

JUDGE KOUTRAS: Did he tell you that?

THE WITNESS: No--maybe, you know. It's possible that
that discussion came up.

*       *       *         *     *       *         *

JUDGE KOUTRAS: Well, can I ask you something? When this
thing was submitted, GÄ3A was submitted, why wasn't it
as explicit as it is--as it was made after it was--

THE WITNESS: I--

JUDGE KOUTRAS: Do you have any idea?

THE WITNESS: No. I mean, it was just drawing the
depicted air flow at the back-end of that gob. It
didn't intend to show air flow in the adjacent panel
that was already driven, because we had already shown
how that was going to be ventilated with the prior
print, that showed the air going up those two entries
and down the outside one. And really, all that is
showing is, the air that's coming through the gob being
carried away down the other entry, the outside entry.

MR. KOSEK: Your Honor, if I might--

JUDGE KOUTRAS: Yes?

---

Page 17

~1550
MR. KOSEK:--the reason we made the submission was so we
wouldn't get any more violations. I don't know that Mr.
Endler would necessarily agree with that submission. But
obviously, in order to terminate the violation, that's what
we did.

MSHA's Rebuttal Testimony

 John A. Kuzar, MSHA Hastings, Pennsylvania, Field Office

Supervisor, testified as to his experience and background,
including 6 years as a ventilation specialist, and 3 years as a
mine inspector. He confirmed that he was not at the mine in
question when the citation and order was issued, and that he last
visited the mine sometime in 1982 (Tr. 174Ä176). He also
confirmed that he has no supervision over the No. 1 Mine, but
does supervise the inspections of the No. 2 Mine (Tr. 178).

 Mr. Kuzar confirmed that while he familiarized himself with

plan "review 25" during the 2 days of hearings, he was not
familiar with the plan in 1985 when the citation and order were
issued (Tr. 179). MSHA's counsel conceded that Mr. Kuzar had no
personal knowledge as to what prompted Inspector Brunatti to
issue the citation (Tr. 181).

 Referring to the right-hand portion of the sketch depicting

plan "revision 25," exhibit GÄ3(a), Mr. Kuzar described it as
follows (Tr. 182Ä183):

A. This face print that is in front of me right now
shows a retreating--first of all, it shows a bleeder
system established around this gob. Okay? It shows--it
says, "BE," but in reality, it's an IE.

It's a retreating inlet evaluation point to assure that
you've got positive pressure on the inby end of this
gob, which in turn--this is a bleeder system around the
top.

You must maintain a bleeder around the gob area to
assure positive pressure on the gob, and all the gases
are diluted and swept out to the return pull to the
fan. Now, as far as what I'm seeing right here, this
looks all right.

But over here, on the other side--

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Page 18

~1551
Q. Okay, Now, you were pointing originally to the right side.

A. Yes, ma'am.
Q. Now, you're pointing over the left side?

A. That is correct, which is the table off the diagram.
This is where the problem is, I guess, with which way
the air was supposedly going.

*       *        *         *       *          *       *

THE WITNESS: If there was a regulator there--which I do
not know--and the regulator was controlled, yes, it
would shove air up there. But if it was open, what it
would be would be a direct short to the return.

The problem we're addressing here is the fact of 316
being direction of air flow or what have you, where you
have more of a problem that apparently this had
occurred, or the mine wouldn't have been withdrawn.

It is 329, in which 329 states that gob areas--bleeder
entries shall be ventilated in such a manner to prevent
any of this occurring, any of this methane gas being
pushed back out.

 When asked about the hazard presented by ventilating the

cited area in the manner in which it was being ventilated at the
time the citation issued, Mr. Kuzar responded "I wasn't there. I
don't know" (Tr. 188). He then proceeded to explain "You have the
possibility of that methane coming back over that equipment, that
section that was working" (Tr. 192). In response to further
questions, he stated as follows (Tr. 193Ä197):

JUDGE KOUTRAS: What's the significance of that arrow at
the top of the page there that seems to be the focal
point?

THE WITNESS: This arrow?

JUDGE KOUTRAS: Yes?

---

Page 19

~1552
THE WITNESS: This arrow here shows me everything going to
return through my bleeder entries, across the top. It shows me
going--because, what I'm getting at, air doesn't--you don't take
air to buck air. You're not shoving air up and air coming down.
It's got to go to return someplace.

JUDGE KOUTRAS: Okay.

BY MS. HENRY:

Q. Mr. Kuzar, when you say, "You don't take air to buck
air," what is your understanding of what the mine
management has stated that their intention was, in the
way they were ventilating, the way this air was
flowing?

A. The way I understood mine management, the air was
coming up those other entries, and I assume that it was
joining with this return coming across this bleeder
system on the inby end. That's what I believe them--what
they were saying.

Q. And do you believe that, with your knowledge and
looking at this ventilation plan, with what they were
saying, that that would have been an adequate
ventilation of that mine, of this area, the way the map
is showing it should be ventilated?

A. I would have to see it work that way.

*      *        *      *    *       *      *      *

Q. And what would be the effect of, as management has
stated, their pushing the air up the other way? And I
realize I'm using simple terms, but I'm trying to get
sort of a layman's understanding here. Of instead of
the air going down, the air flowing the way Mr.
Brunatti found it flowing?

A. Conditions could change that. It would depend how
much they had available for this section, how much air
was on this section where they were mining.

---

Page 20

~1553
There's a lot of things are involved there. What they had
going out this bleeder, quantity-wise; how much was going
down the split return. There's a lot of things have a bearing
on this, what could occur.

*     *      *      *      *      *      *      *     *

Q. Why would you consider--let me ask you this. Would
you consider the testimony you've heard today from Mr.
Brunatti about the condition from the mine management
about the condition, and looking at the plans yourself,
would you consider this to be a significant and
substantial violation?

A. Yes, I would.

Q. Why?

A Because of what occurred.

Q. Okay, could you explain?

A. The occurrence prior to the inspector getting there,
you had a methane build-up in a gob area in that mine.
And whether it be--the chances of that methane being
pushed back over this active section would be very
slim, being that the fan is over here.

But a change in a barometer--various things could govern
on what that methane did. And it's very unlikely that
it would come back over this active section with the
fan being over here.

Q. Let me make sure I'm understanding what you're
saying. The way the air was flowing, you're saying that
the fan placed where it was, it was unlikely that the
methane would leave would dissipate? Is that what
you're saying?

A. The way that the ventilation that the inspector
found with the location of the fan--

Q. Right?

---

Page 21

~1554
A.--all right? If they did not have a ventilation control
that was maintained to assure that air going up in there,
the way the inspector cited it, you would have a methane
build-up in this gob.

Q. Okay.

A. And apparently, that's what occurred.

Q. Do you have any reason in your knowledge to believe
that the way that air flow was coursing would have
contributed to the methane build-up in that area, that
caused the withdrawal?

A. No, because I don't know the condition of the
entries, the other entry that would be on the far side
that would be carrying this methane out of there and
diluting it. I don't know the condition of the airways.
There's a lot of other things come into play.

*     *      *     *      *      *         *   *      *

JUDGE KOUTRAS: The question is, whether or not the air
being coursed in the way that Mr. Brunatti thought it
was coursed at the time of the violation, whether that
had any direct nexus or relationship to the methane
accumulation. That's the question. You don't know that?

THE WITNESS: I could have--I don't know.

JUDGE KOUTRAS: It could have--

THE WITNESS: I wasn't there, but it could have.

 The parties agreed that the prior 4.2 methane accumulation

occurred in the DÄ9 standing room regulator area depicted on
exhibit GÄ3(a), in the upper right-hand corner of the sketch
where the statement "Regulator may consist of blocks removed from
walls as necessary" appears (Tr. 198Ä199). When asked whether he
found some connection with the way in which the air was being
directed at the time of the violation, and whether this condition
had any relationship to the methane

---

Page 22

~1555
accumulation, Mr. Kuzar responded "No," "Not outby, I don't, in
here, yes" (Tr. 199).

 Mr. Kuzar stated that the method used to ventilate the area,

as explained by Mr. Endler, up two entries, and then being melded
with the air coming out at the top of the area shown on exhibit
GÄ3(a), and then down and out of the return, was a wrong way to
course the ventilating air because all of the air pressure should
be put on the gob, rather than out the return (Tr. 200). Good
ventilation practice calls for keeping the majority of the air
pressure on the gob to assure that gases go out the bleeder
system to the return, with a limited amount down the return that
has to be travelled weekly (Tr. 201Ä202).

 On cross-examination, Mr. Kuzar confirmed that he first

reviewed exhibit GÄ3(a), on Monday prior to the hearing, and was
not previously familiar with plan "review 25" when the violation
was issued (Tr. 203). He also confirmed that he had no knowledge
as to how the prior 4.2 methane accumulation got there (Tr.
203Ä204). When asked if he knew whether the arrow that is shown
at the top of the plan in question is still in the current
applicable plan, he responded "I do not know what's in there at
the present time. But if this is the bleeder system, it better be
there" (Tr. 204).

 Inspector Brunatti was recalled in rebuttal and referring to

his notes made on the mine map, exhibit GÄ2, testified as to
certain air readings that he took in the area on January 10. In
his opinion, based on his air readings, the air that day was
coursing through several check curtains and by-passing the gob
area. He measured air quantities of 16,948 and 10,505 CFM's at
two locations, and 5,000 CFM was ventilating the gob area. In his
opinion, 5,000 CFM for gob ventilation is not positive pressure
on the gob. The installation of permanent stoppings rather than
ventilation curtains, and the adjustment of the regulator to
control the air flow, would have put pressure on the gob. Had the
gob area been adequately ventilated, the air in the DÄ9 right
butt section would have been coursing down all three entries (Tr.
206Ä210). He also referred to two additional air readings of
1,250 and 725 CFM's, which indicated that positive pressure was
not maintained on the gob (Tr. 212).

 In response to further questions, Mr. Brunatti stated that

in his opinion there was no positive air flow on the gob on
January 10, and that this condition constituted a violation of
the law. He confirmed that he did not issue a violation for this
condition that day because he detected no

---

Page 23

~1556
methane over 2 percent. He also confirmed that the air readings
he took that day were in compliance (Tr. 216), and that there was
a positive air flow coming out of the regulator which is shown on
the right-hand portion of the sketch containing his notes,
exhibit GÄ2 (Tr. 219).

Respondent's Rebuttal Testimony

 Richard Endler produced copies of several mine examiner and

foreman reports reflecting recorded air readings for the DÄ9
intake and return on January 2, 9, and 10, 1985, indicating
29,880, 6,762, 10,080, 5,875, 26,460, 7,104, and 2,881 CFM's at
the locations noted. Mr. Endler concluded that there was
"roughly" 13,000 CFM's of air available to ventilate the gob, and
while he could not state that all of this air was going through
the gob, it was available for that purpose (Tr. 221Ä223, exhibits
OÄ9 through OÄ11). He confirmed that the ventilation pattern for
the area was the same on January 2 and 9 (Tr. 224). He stated
that the gob was being positively ventilated (Tr. 227).

 Mr. Endler explained the action taken by the company in

response to the 4.2 methane accumulation which was reported on
January 9. He stated that checks were installed at the back end
area to direct the air coming up the two entries around to flush
out the methane. The methane level then decreased to 1.2 percent,
and it was then determined that it was safe for the men to go
back to work (Tr. 224Ä225; 230Ä234). After the methane was
flushed out, the checks "were taken down and put it back to the
original way. And the methane did stay down" (Tr. 247). Mr.
Endler stated that the amount of air necessary to dilute any
methane in the gob varies, and that it did so during the week
prior to the violation (Tr. 247).

 Mr. Endler identified exhibit GÄ5, as a plan submitted by

the company for the pillar mining of rooms off the left of the
DÄ9 area, and that it does not reflect mining on the right-hand
side at that point in time. In his view, that plan has nothing to
do with this case (Tr. 226).

                   Findings and Conclusions

 The condition or practice cited by Inspector Brunatti as an

alleged violation of 30 C.F.R. 316, and the respondent's
approved ventilation plan, is described as follows in section
104(a) "S & S" Citation No. 2255733, issued on January 16, 1985
(exhibit GÄ1):

---

Page 24

~1557
The approved ventilation and methane and dust-control
plan was not being complied with in the DÄ9 area of the
mine in that two of the three entries (bleeder) in the 1st
Rt Butt area were letting air go inby. The plan depicts only
air coming outby from this area. With the ventilation this
way the air ventilating DÄ9 section was escaping out the
return instead of putting all the pressure on the gob area
thus creating a methane build-up in the back end of the gob.

 Inspector Brunatti modified the citation on January 17,

1985, by a "subsequent action" which modified the citation to
reflect that it was changed to a section 104(d)(2) Order No.
2255733Ä01. The modification also included references to a
previously issued Order No. 2110076, March 10, 1984, which are
incorporated by reference in items No. 14, No. 15, and No. 16 on
the citation/order form.

30 C.F.R.   75.316, provides as follows:

     A ventilation system and methane and dust control plan
and revisions thereof suitable to the conditions and
the mining system of the coal mine and approved by the
Secretary shall be adopted by the operator and set out
in printed form on or before June 28, 1970. The plan
shall show the type and location of mechanical
ventilation equipment installed and operated in the
mine, such additional or improved equipment as the
Secretary may require, the quantity and velocity of air
reaching each working face, and such other information
as the Secretary may require. Such plan shall be
reviewed by the operator and the Secretary at least
every 6 months.

 The testimony and evidence adduced in these proceedings

establishes that on January 9, 1985, a methane accumulation of
approximately 4.2 percent occurred in the DÄ9 section of the
mine. Greenwich notified MSHA and the appropriate state agency of
the accumulation, and withdrew the men from the mine. After
corrective measures were taken and the methane cleared up, the
miners were permitted to go back to work.

 As a result of the reported methane accumulation, Inspector

Brunatti was contacted at his home by his supervisor and was
instructed to go to the mine to examine the affected area.

---

Page 25

~1558
Mr. Brunatti went to the mine on the midnight shift of January
10, 1985. The miners had been withdrawn, no unusual methane
accumulations were detected, and Mr. Brunatti complimented mine
management for their efforts in clearing up the methane problem.
Mr. Brunatti confirmed the prior methane accumulation by
reviewing the mine examiner's books. He also made some notations
concerning the direction of air flow, air velocity, and methane
present in the DÄ9 section, and the notations were made on an
enlarged portion of the mine map (exhibit GÄ2). Mr. Brunatti
confirmed that he determined the direction of the air flow by
means of a smoke test and by visual observation. He determined
that the air was flowing up two of the entries, and down the
third entry as shown by the arrows on exhibit GÄ2.

 After completing his examination of the DÄ9 section on

January 10, 1985, Mr. Brunatti issued no citations and made no
determination as to whether any violations existed at that time.
He confirmed that he did not have the appropriate ventilation
plan with him, and also confirmed that he did not at that time
have any knowledge of the mine ventilation system. He testified
that he was directed to go to the mine to determine whether any
large accumulations of methane still existed, and that is what he
did.

 With regard to his notations concerning the direction of air

flow on the three entries in question, Mr. Brunatti testified
that he had "a problem" with the air direction and considered it
"questionable," but made no determination on January 10, that it
was a violation of the ventilation plan. He could not recall
discussing the matter with mine management, and confirmed that he
did not know whether the noted air direction "was right or wrong"
at that time.

 During the period January 11 and 16, 1985, Mr. Brunatti was

at the mine performing his regular inspection duties, but he was
not in the DÄ9 section. He issued the contested citation while at
the mine on January 16, and he based the citation on the
notations he made with respect to the flow of air on January 10,
and his belief that the prior reported methane accumulation
resulted from the misdirected air flow. He confirmed that on
January 16, he did not visit the DÄ9 section and did not know
what the ventilation was that day. He also confirmed that he made
a finding of "moderate negligence," and so indicated by marking
the appropriate block on the citation form. He explained that he
made this finding out of consideration of mine management's fine
job in correcting the methane problem, and because he was not
totally aware of any ventilation changes.

---

Page 26

~1559
Mr. Brunatti confirmed that the decision to issue the citation on
January 16, was made after a consultation with his supervisor.
His supervisor was concerned about the reported methane
accumulation and asked to review his notes. During these
discussions, Mr. Brunatti indicated concern that changes were
made in the ventilation system to cause the air to flow in the
wrong direction, and he believed that mine management had to be
involved in any such changes. After further discussion and review
of the ventilation plans with his supervisor, it was concluded
that the misdirected air as noted by Mr. Brunatti during his mine
visit of January 9, constituted a violation of the ventilation
plan and section 75.318.

 On January 17, 1985, Inspector Brunatti modified the section

104(a) citation to a section 104(d)(2) unwarrantable failure
order, but he did not change or modify his moderate negligence
finding. The modification was made after further discussions with
his supervisor, and Mr. Brunatti admitted that the decision to
modify the citation and issue the order was made prior to his
going to the mine on January 17.

 Inspector Brunatti testified that he did not consider the

action of Greenwich with respect to the violation to be willful,
nor did he consider it to be the result of indifference or a
serious lack of reasonable care on the part of Greenwich (Tr.
73Ä74).

 In its posthearing brief, Greenwich argues that the

contested section 104(d)(2) order is invalid because it was based
on an investigation of a past methane accumulation incident
rather than a condition or practice detected by Inspector
Brunatti during the course of an inspection. In support of its
argument, Greenwich cites the following cases in which six
Commission Judges decided the issue as argued by Greenwich:
Westmoreland Coal Company, Docket Nos. WEVA 82Ä34ÄR, et. al.,
(May 4, 1983), unreported, (Judge Steffey); Energy Mining
Corporation, 7 FMSHRC 1908, 1919 (Nov. 1985) (Judge Lasher);
Southwestern Portland Cement Company, 7 FMSHRC 2283, 2292 (Dec.
1985) (Judge Morris); Nacco Mining Company, 8 FMSHRC 59 (1986),
review pending (Chief Judge Merlin); Emerald Mines Corporation, 8
FMSHRC 324 (1986), review pending (Judge Melick; White County
Coal Corporation, 8 FMSHRC 921 (June 9, 1986) (Judge Melick; and
Greenwich Collieries, 8 FMSHRC 1105 (July 14, 1986) (Judge
Maurer).

 Greenwich points out that the inspector was dispatched to

the mine to look into a methane accumulation in the DÄ9

---

Page 27

~1560
area of the mine which occurred on January 9, and which was
reported by Greenwich. Upon his arrival at the mine on January
10, the inspector visited the DÄ9 area, but issued no violations.
Subsequently, on January 16, when he issued the section 104(a)
citation, the inspector did not reenter the DÄ9 section before
writing the citation. Still later, on January 17, the inspector
modified the citation to a section 104(d)(2) order, and he did so
on the basis of a conversation with his supervisor without
reentering the DÄ9 section. The decision to issue that order was
made prior to the inspector's arrival at the mine on January 17.

 Greenwich points out further that the methane accumulation

which occurred on January 9, 1985, was never observed or detected
by Inspector Brunatti, and that it was dissipated on January 10,
when he entered the DÄ9 section. Greenwich concludes that since
no methane accumulation was in existence at the time the initial
section 104(a) citation and the subsequent modification to a
section 104(d)(2) order took place, the order was invalid and
should be dismissed.

 Citing United States Steel Corporation, 6 FMSHRC 1423 at

1437 (June 1984), where the Commission held that an unwarrantable
failure to comply may be established by showing that the
violative condition or practice was not corrected or remedied,
prior to the issuance of a citation or order, because of
indifference, willful intent, or serious lack of reasonable care,
Greenwich asserts that there is no evidence in this case to
support an unwarrantable failure finding. In support of this
conclusion, Greenwich relies on Inspector Brunatti's findings of
"moderate negligence" with respect to the citation and order, and
his testimony that he did not consider the alleged violation to
be due to "indifference, willful intent, or a serious lack of
reasonable care" on the part of Greenwich.

 With regard to the alleged violation of section 75.316,

Greenwich submits that MSHA has failed to establish by any
credible evidence that Greenwich violated its ventilation plan.
Greenwich asserts that the testimony of foreman Endler clearly
indicated that the ventilation was in compliance with plan review
No. 25 which was in effect at the time of the citation. Greenwich
points out that Mr. Endler, using various exhibits, clearly
demonstrated that government Exhibit 3ÄA was the same as
operator's Exhibit 4. He indicated that operator's Exhibit 4
showed main intake air coming up the right-hand entry, reduced
air flow coming up the belt entry, and return air going down the
left-hand entry shown in Exhibit 4. He further testified that the
ventilation demonstrated in that exhibit was the same ventilation
as cited by Inspector

---

Page 28

~1561
Brunatti as not being in compliance with the ventilation plan.
The citation, later modified to an Order, was ultimately
terminated when Greenwich submitted a print to MSHA which showed
ventilation going in the direction required in the citation and
order of January 16 and 17, respectively. Greenwich submits that
no such submission to MSHA would have been necessary had the
original plan required ventilation in the DÄ9 area as interpreted
by Inspector Brunatti. Hence, Greenwich submits that MSHA failed
to show a violation of the ventilation plan.

 With regard to Mr. Brunatti's allegations that the air

ventilating the DÄ9 section was escaping out the return instead
of putting all the pressure on the gob area, thus creating a
methane build-up at the back end of the gob, Greenwich asserts
that the testimony by foreman Endler clearly revealed there was a
positive flow of air on the gob in the DÄ9 area. Greenwich points
out that Mr. Endler's testimony was based upon air readings taken
in the area on January 2 and 9, and his personal observations of
the area on January 9, which indicated a positive flow of air on
the gob in the DÄ9 area. Greenwich concludes that MSHA has failed
to prove that all available air positive pressure was not put on
the gob, thereby creating a methane build-up in the back end of
the gob.

 In her closing oral arguments, MSHA's counsel relied on the

testimony of Inspector Brunatti and Supervisory Inspector Kuzar
to support a violation of the ventilation plan. With regard to
Mr. Kuzar's testimony, I have given it little or no weight. Mr.
Kuzar confirmed that he has no supervision over the No. 1 Mine,
was not in it when the citation was issued, and that he last
visited it in 1982. His testimony in support of the violation is
based on his familiarizing himself with plan review No. 25 during
the hearing, and MSHA conceded that he had no personal knowledge
as to what prompted Inspector Brunatti to issue the citation.
When asked about any hazard involved in ventilating the area
cited by the inspector in the manner in which he claimed it was
being ventilated when the citation issued, Mr. Kuzar responded "I
wasn't there. I don't know."

 When asked about the manner in which Greenwich claims it was

ventilating the area in question, Mr. Kuzar stated that he would
have to observe it operating before he could comment on it. When
asked about the effectiveness of the air flowing in the direction
that Mr. Brunatti claimed it was flowing, on January 9, Mr. Kuzar
responded that "conditions could change that" and that other
variables have to be considered. When asked whether he had any
reason to believe that the air flow

---

Page 29

~1562
as found by Inspector Brunatti could have contributed to the
reported methane build-up in the DÄ9 area, Mr. Kuzar responded
"No, because I don't know the condition of the entries * * *
and airways, * * * and there's a lot of other things that come
into play." When directly asked whether the air flow as found by
Inspector Brunatti had any direct relationship to the methane
accumulation, Mr. Kuzar replied "I don't know. I wasn't there,
but it could have."

 MSHA's counsel agreed that review 25 is the applicable plan

in effect at the time the citation was issued. However, counsel
took the position that exhibit GÄ3, which is "review 26," while
not the official plan that was in effect at the time in question,
"makes it a little bit clearer," and that the three arrows in the
upper left-hand corner of page two of "review 26" basically
describe the direction of air coming down all three entries (Tr.
141Ä142). Counsel asserted that there is no dispute that the air
was flowing in the direction claimed by Mr. Brunatti, and that
the disagreement lies in the fact that the company believes that
the direction of the air was in compliance with the applicable
plan, and that MSHA believes that the direction of the air was
out of compliance (Tr. 142). Counsel agreed with Mr. Brunatti's
interpretation that the direction of air should have been down
all three entries, rather than up two and down the third (Tr.
145, 152).

 When asked why the single arrow shown at the top left-hand

corner of "review 25," exhibit GÄ3(a), does not curve around and
come down the entry, MSHA's counsel responded "it is MSHA's
position that this is the only way, if the air is going that way,
the only way you can ventilate the mine * * * is to get the air
out again, is to go back down--" (Tr. 154). Counsel asserted that
the air should have gone down all three entries as shown in the
plan print submitted to abate the order, exhibit OÄ8 (Tr. 162).

 I take note of the fact that the citation issued by

Inspector Brunatti fails to include any reference to the
particular ventilation plan provisions allegedly violated in this
case. I also note the fact that while in the DÄ9 section on
January 10, the inspector did not have the ventilation plan with
him, and he admitted that he was not at that time a ventilation
specialist and had no knowledge of the mine ventilation system.
His subsequent opinion that the plan had been violated was based
on a review of the ventilation plans and his notations made on a
portion of the mine map (exhibit GÄ2) while he was on the section
on January 10.

---

Page 30

~1563
Inspector Brunatti's conclusion that the ventilation plan was
violated was based on his findings made on January 10, that the
air flow was misdirected in two of the three entries on the DÄ9
section as noted on the face of his citation. He found that in
two of the entries the air was travelling inby, when the
ventilation plan depicted the air flowing outby in all three
entries. Mr. Brunatti also relied on his notes made on January
16, which reflected that Greenwich's safety representative and
mine foreman Endler stated that the direction of air flow as he
found it on January 10, was the way it was depicted on the
ventilation plan, but contrary to the way Greenwich's engineer
submitted it for approval.

 Mr. Brunatti testified that the applicable ventilation plan

provision appears on the second page of exhibit GÄ3, at the upper
left-hand corner. The plan depicts three double arrows showing
the air travelling down all three of the entries after exiting at
the point labeled BE# 58, and out the return. These are the same
entries noted by the inspector when he made his notations on the
mine map (exhibit GÄ2), on January 10, showing the air travelling
up two entries but down the third one. The plan is labeled
"Review No. 26," and it reflects that it was submitted on
February 15, 1985, and revised on May 31, 1985, after the
citation was issued.

 Mr. Brunatti also testified that ventilation plan Review 25,

dated August 1, 1984 (exhibit GÄ3(a)), is equally applicable in
this case and that it in no way changed the requirements depicted
in plan Review No. 26. However, he conceded that plan Review No.
26 was not in effect at the time the citation issued, but that
plan Review No. 25 was (Tr. 79Ä80, 87). MSHA's counsel asserted
that Plan No. 26 was introduced to clarify Plan No. 25 and that
it was a "more helpful drawing of what was indicated in
Government Exhibit GÄ3(a), and that no changes were made in the
plans (Tr. 116Ä117).

 Greenwich's counsel asserted that the critical issue in this

case focuses on the interpretation placed by Inspector Brunatti
on the significance of the double-headed arrow depicted at the
upper left-hand corner of ventilation plan Review 25, exhibit
GÄ3(a), the ventilation plan which was in effect at the time the
citation was issued on January 16. Counsel argued that review 25
and exhibit OÄ2, which is part of a print submitted at the time
review 25 was submitted, consistently show the direction of air
flow going up two entries and down the third entry. Counsel
argued that these exhibits show the direction of intake air
coming in the

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right-hand entry, reduced air coming up the low-low belt entry,
and return air coming out the left-hand entry (Tr. 124, 139).

 After careful review of all of the testimony and evidence

adduced in these proceedings, I cannot conclude that MSHA has
carried its burden of proof in establishing a violation of the
ventilation plan by a preponderance of the credible evidence in
support of its case. The ventilation plan provision relied on by
the inspector in support of his initial citation (review No. 26),
was not in effect at the time it issued, and the fact that
Greenwich's engineering department may have submitted a
subsequent revision depicting the direction of air down all three
entries is irrelevant. Any suggestion by MSHA that the applicable
plan No. 25, which was in effect at the time the citation issued,
must be interpreted to show the direction of air down the three
entries, as clearly shown in review No. 26, is rejected.

 I further find that Greenwich's testimony and evidence is

more credible, and that it has established that it was following
the applicable ventilation plan requirements of ventilation
review plan No. 25, August 1, 1984, as depicted in exhibits
GÄ3(a) and OÄ2. Those exhibits clearly and consistently show the
air flow going up two entries and down the third, precisely as
found by the inspector when he made his notes on January 10,
while on the DÄ9 section.

 With regard to MSHA's allegations that Greenwich's failure

to maintain positive air pressure on the gob contributed to the
methane build-up at the back of the gob, Inspector Brunatti
testified that when he tested the air in the DÄ9 area on January
10, he found quantities of 16,948 and 10,505 CFM's at two
locations, and 5,000 CFM's ventilating the gob area. In his
opinion, 5,000 CFM's is not positive pressure on the gob.
However, Mr. Brunatti confirmed that he issued no citation on
January 10, for lack of positive air pressure on the gob even
though he considered this condition to be a violation of the law.
He explained that he issued no violation because he detected no
methane over 2 percent. He also testified that the air readings
he took on January 10, were in compliance and that there was in
fact a positive air flow coming out of the regulator.

 Mine foreman Endler produced copies of several mine examiner

and foreman reports reflecting recorded air readings for the DÄ9
intake and return on January 2, 9, and 10, 1985, indicating
29,880, 6,762, 10,080, 5,875, 26,460, 7,104, and 2,881 CFM's at
the locations noted. Mr. Endler concluded

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that there was "roughly" 13,000 CFM's of air available to
ventilate the gob, and while he could not state that all of this
air was going through the gob, it was available for that purpose.
He confirmed that the ventilation pattern for the area was the
same on January 2 and 9, and that the gob was being positively
ventilated. He also confirmed that the accumulated methane in
question was flushed out after two checks were installed at the
back end of the gob and then taken down after the methane was
reduced to 1.2 percent. Inspector Brunatti agreed that as long as
the majority of air is coursed to the gob, the ventilation is
ideal.

 I cannot conclude that MSHA has established that Greenwich

failed to maintain positive pressure on the gob, thereby
resulting in the build-up of methane. Aside from Inspector's
Brunatti's opinion that this was the case, I can find no credible
facts to support his speculative opinion. In fact, Mr. Brunatti
admitted that he issued no citation for these alleged conditions,
was unaware of any methane build-up at the back end of the gob
from January 10Ä17, found less than 2 percent methane on January
10, while on the DÄ9 section, all of his air readings were within
MSHA's requirements, and he found positive air flow coming
through the regulator. In addition, he conducted no inspection of
the DÄ9 section subsequent to his visit there on January 10, when
he made some notes on a portion of the mine map, and he admitted
that he had no knowledge of the ventilation conditions on January
16.

 With regard to Greenwich's arguments concerning the

modification of the contested citation to an unwarrantable
failure order, I agree with the rationale of the cases cited in
support of the proposition that a section 104(d)(2) order may
only issue upon an inspection of the mine. However, on the facts
of this case, even if I were to find a violation of section
75.316, I would vacate the inspector's unwarrantable findings and
modify the order to a section 104(a) citation, and I would do so
on the basis of a total lack of credible evidence or facts to
support any unwarrantable failure on Greenwich's part. As noted
earlier, Inspector Brunatti candidly admitted that he did not
consider Greenwich's actions to be willful, or the result of
indifference or a serious lack of reasonable care.

                            ORDER

 In view of the foregoing findings and conclusions,

Greenwich's contest IS GRANTED, and the contested section
104(d)(2) Order No. 2255733Ä01, Janury 17, 1986, citing an

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alleged violation of 30 C.F.R. 75.316, IS VACATED, and MSHA's
civil penalty proposal IS DISMISSED.

                    George A. Koutras
                    Administrative Law Judge