Helen Mining Company

Plain-English summary

Helen Mining Company operated the Homer City Mine, where MSHA charged two violations of the methane-control standard at 30 C.F.R. § 75.308. Judge Roy J. Maurer found that methane in number five entry reached 1.7 to 1.9 percent and that the foreman knew about it, but failed to de-energize the endangered area or withdraw miners while the methane exceeded 1.5 percent. He affirmed Order No. 2407974 and assessed a $1,500 penalty. He vacated and dismissed Order No. 2407973 because it alleged a lesser included and duplicative violation of the same standard.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.308
• Outcome: Order No. 2407974 was affirmed with a $1,500 penalty, while Order No. 2407973 was vacated and dismissed as duplicative.
• Key point: When methane reaches at least 1.5 percent, the operator must cut power and withdraw people from the endangered area until the air contains less than 1 percent methane.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. HELEN MINING
DDATE:
19860530
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 85-273
PETITIONER A.C. No. 36-00926-03594

      v.                              Homer City Mine

HELEN MINING COMPANY,
RESPONDENT

                           DECISION

Appearances: James E. Culp, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Penn-
sylvania, for Petitioner;
Ronald B. Johnson, Esq., Recht & Johnson,
Wheeling, West Virginia, for Respondent.

Before: Judge Maurer

                    Statement of the Case

 This case is before me upon a petition for assessment of

civil penalties under section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. section 801, et seq., the
"Act," in which the Secretary charges the Helen Mining Company
with two violations of the mandatory standard at 30 C.F.R.
75.308. The general issues before me are whether the company has
violated the regulatory standard as alleged in the petition and,
if so, the appropriate civil penalty to be assessed for the
violation(s). Although counsel for the respondent, by his Answer,
seemed to be seeking a ruling on whether these orders were valid
or not, I note that neither has been contested. Moreover, in a
civil penalty case, the validity of the order is not considered to
be an issue. Pontiki Coal Corp., 1 FMSHRC 1476 (1979).

 The hearing was held as rescheduled on February 6, 1986, at

Pittsburgh, Pennsylvania. Documentary evidence and oral testimony
was received from both parties. Additionally, the parties have
both filed post-hearing proposed findings and conclusions, and
the arguments presented therein have been considered by me in the
course of this decision.

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The Mandatory Standard

 Section 75.308 of the mandatory standard, 30 C.F.R.

75.308, provides as follows:

        If at any time the air at any working place, when
   tested at a point not less than 12 inches from the
   roof, face, or rib, contains 1.0 volume per centum or
   more of methane, changes or adjustments shall be made
   at once in the ventilation in such mine so that such
   air shall contain less than 1.0 volume per centum of
   methane. While such changes or adjustments are underway
   and until they have been achieved, power to electric
   face equipment located in such place shall be cut off,
   no other work shall be permitted in such place, and due
   precautions shall be carried out under the direction of
   the operator or his agent so as not to endanger other
   areas of the mine. If at any time such air contains 1.5
   volume per centum or more of methane, all persons,
   except those referred to in section 104(d) of the Act,
   shall be withdrawn from the area of the mine endangered
   thereby to a safe area, and all electric power shall be
   cut off from the endangered area of the mine, until the
   air in such working place shall contain less than 1.0
   volume per centum of methane.

                The Cited Conditions or Practices

 Section 104(d)(2) Order No. 2407973 cites a violation of 30

C.F.R. 75.308 for the following alleged condition or practice:

   Suitable precautions were not taken by the section
   foreman Steve Kasperik in muddy run right side 069Ä0
   section. An accumulation of methane in excess of 1% was
   discovered in the crosscut five to four entry. Air
   being used to ventilate this face traveled downwind to
   the crosscut six to five entry where the 1206 Jeffrey
   miner was energized and being used to load coal.
   Methane reading at the face of this crosscut 6 to 5 did
   not exceed .4% of methane.

 Section 104(d)(2) Order No. 2407974 likewise cites a

violation of 30 C.F.R. 75.308 and states:

   The ventilating air at the face of crosscut five to 4
   entry contained in excess of 1.5% methane. The section
   foreman was Steve Kasperik. Multiple

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methane examinations were made at the face with three
separate and approved methane detectors indicating
methane in excess of 1.5%. The power was not deenergized
to the muddy run sections right and left side 001Ä0 and
069Ä0. Information supplied by the persons of the muddy
run right side crew indicate the foreman was aware the
condition existed and did not deenergize the sections
power. Methane examinations had been made by at least two
men of the crew and also the foreman. A Fletcher twin boom
bolter was present at the face. Power was deenergized only
to the bolter.

                           Stipulations

 At the hearing, the parties agreed to the following

stipulations, which were accepted (Tr. 5Ä6):

 1. The Homer City Mine is owned by the respondent, Helen

Mining Company.

 2. The Homer City Mine is subject to the jurisdiction of the

Federal Mine Safety and Health Act of 1977.

 3. The undersigned administrative law judge has jurisdiction

over these proceedings.

 4. The subject orders, terminations, modifications, and

notices were properly served by duly authorized representatives
of the Secretary of Labor, on an agent of the respondent at the
dates, times, and places stated therein, and may be admitted into
evidence for purposes of establishing their issuance and not for
the truthfulness or relevance of any statement therein.

   5. The alleged violations were abated in a timely fashion.

 6. Respondent's annual production is two million, nine

hundred and seventy-four thousand, nine hundred and four
(2,974,904) production tons annually. The subject mine has one
million, forty-six thousand, three hundred and twenty-eight
(1,046,328) annual production tons.

 7. Respondent had twenty-four assessed violations in the

two-month period prior to the issuance of the orders herein in
which it operated the Homer City Mine.

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Discussion and Analysis

 Ronald Rhoades is a miner employed by the Helen Mining

Company. He testified that on February 25, 1985, he was assigned
to work as a roof bolter in number five entry of the Muddy Run
Right Side at the Homer City Mine. Ed Hankinson, who also
testified in this proceeding, was assigned to be his helper on
that shift. Upon their arrival at the roof-bolting machine,
located at "A" on GXÄ6, Rhoades took a methane check with a CSA
digital type detector, and got a reading of between 1.7 and 1.9
percent methane. He immediately cut the power off at the
roof-bolting machine, sent someone back to turn the power off at
the power center, sent for the foreman, and began to make
corrections in the line brattice to get rid of the methane. Mr.
Hankinson, in the meantime, was taking other readings, both with
the same detector Rhoades had used as well as the detector off a
continuous miner located in the crosscut, six to five. He also
obtained methane-level readings of 1.7 to 1.9 percent with both
detectors.

 The foreman for the entire Muddy Run area on that shift,

both the Left and Right Sides, was Mr. Steve Kasperik, who
likewise testified in this proceeding. He arrived in the area
approximately twenty minutes to a half hour later. Upon his
arrival he took a methane reading. What that reading was is in
serious contention in this case. The Secretary contends that it
disclosed a methane level of nearly 2 percent. The respondent's
position is that it was 1.3%. The importance of the issue being
that a reading of 1.5 percent or greater brings the last sentence
of section 75.308 into effect.

 The resolution of this factual issue turns on the

credibility of the miner witnesses and that of the foreman, Mr.
Kasperik, as well as the totality of the circumstances
surrounding the incident on the date in question. Rhoades and
Hankinson testified that they had obtained several readings of
1.7 to 1.9 percent methane levels in number five entry and had so
informed Kasperik. Rhoades also testified that Kasperik himself
took a methane reading in number five entry and stated that
"you guys got upwards of 2 percent" or words to that effect.
Significantly, Mr. Kasperik does not deny making this statement,
even though he later maintained that the reading was 1.3%.
Further, a comparison of the subsequent actions of Rhoades and
Kasperik lends credence to Rhoades. Rhoades expeditiously "went
public." He contacted MSHA the following day in an effort to have
what he considered to be a serious mine safety concern addressed
by someone in officialdom. Kasperik, on the other hand, did not
record a methane reading in the pre-shift and on-shift
examination book, but rather entered the word "none" under

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hazardous conditions. He admits this was a mistake, but he
"forgot" to put it in the book. He made the appropriate entry the
next day.

 Additionally, according to the testimony of Inspectors

Collingsworth and Burkey, Mr. Kasperik was very reticent during
the meeting held on February 26, 1985, concerning the incident of
the previous day. They both testified that they repeatedly
questioned him about what his initial methane-level reading had
been before he finally stated it had been 1.3 percent. Also, they
both testified that he had no explanation for his failure to make
the required entry in the mine records.

 For all of the above reasons, I find as a fact that there

was a methane level of 1.7 to 1.9 percent present in number five
entry as testified to by Rhoades and Hankinson and that Kasperik
as a representative and agent of the respondent was aware of it
at the time that it existed.

 Mr. Kasperik took personal charge of supervising the

dissipation of the methane accumulation. He determined that the
methane was coming from a "bleeder" in the upper left corner of
the cross-cut in a difficult spot to ventilate. He ordered the
canvas tightened up and rearranged in working place number five
on RXÄ1 to better ventilate that corner. He took several
methane-level readings downstream of the "bleeder," extending
over to and beyond working place number six on RXÄ1 in the
adjacent entry. The methane-level readings he obtained in these
areas were generally .3%. It should be noted here that the
operator of the continuous mining machine in entry number six
also took methane-level readings downstream of working place
number five, including working place number six. His readings did
not exceed .4% in any of those locations. In general, Mr.
Kasperik was following a written company policy (RXÄ2) for action
to be taken when a methane level is detected in the range of 1 to
1.5 percent.

 That written company policy (RXÄ2) also contains

instructions concerning what to do if a 1.5% methane level is
detected. As I have found as a fact that the methane level was in
excess of 1.5% that is the portion of Respondent's Exhibit No. 2
that is more relevant to this case. That portion of the policy
mandates, inter alia, that machinery in that working place be
de-energized, that power to the section be de-energized and that
all men not involved in eliminating gas should be withdrawn from
the face area. Under the state of facts as I have found them to
be, Mr. Kasperik's actions were inconsistent with company policy
as well as with the requirements of the mandatory standard.

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It is undisputed and I find as a fact that no power to Muddy
Run Right or Left Side was ever de-energized except that to the
roof-bolting machine in number five entry during the entire
incident at issue.

 I further find as a fact that while the methane level was in

excess of 1.5% in number five entry, Kasperik ordered the
continuous miner operator and his helper as well as a shuttle car
operator to perform clean-up operations in number six entry of
Muddy Run Right Side. Rhoades testified that he immediately
objected. He stated at Tr. 15:

   I questioned him at that time, whether what he was
   doing, what he suggested they do was right. He said,
   yes, he said, the problem we have here affects this
   area, this place, this working place right here. I
   said, well we got, you know, we got better than a
   percent and a half, two percent of gas almost. He said,
   the problem that you have here is within, or in this
   entry and this working place. He says, those guys can
   go over there, get that place cleaned up and get that
   miner moved.

 It is also undisputed that this mine's ventilation system

moves the air from number five entry through number six entry of
Muddy Run Right Side. The inspectors who testified at the hearing
consistently stated that the only way to get rid of the methane
accumulation in number five entry was to improve ventilation,
which was being-done under the direction of foreman Kasperik.
However, they testified that you have to take precautions when
you move an accumulation in excess of 1.5 percent methane so as
not to pass that body of gas over any potential ignition sources,
and any operation of energized mining equipment may obviously
create potential ignition sources.

 Further, the regulations require that you withdraw all

persons and cut off all power from the endangered area of the
mine, until the air "at any working place" contains less than 1
percent methane. It is not contended that this was done and in
fact it was not done.

 Respondent's first line of defense in this case is that

there never was a stable reading in excess of 1.5% that
management was aware of at the time it existed. As noted above, I
have rejected that argument and found the facts to be otherwise.
Next, respondent notes that Kasperik prudently decided not to
mine any coal with the continuous mining machine in working place
number six as a precaution and the only activity that took place
in either number five

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or number six entry other than the readings and making
corrections to the ventilation system was that the continuous
mining machine was used to pick up loose coal laying on the
bottom in working place number six. Only enough loose coal to
fill one shuttle car half-way was picked up. Further, respondent
notes that even this activity was not carried out until it had
been ascertained that the methane-levels at working place number
five had not moved beyond that point and the methane-level was
only .3 to .4% downstream and into working place number six. I
find this to be credible evidence, unrebutted by the Secretary.
However, it falls short of compliance with 30 C.F.R. 75.308.

 The last sentence of that section of the mandatory standard

states that "[i]f at any time such air (the air at any working
place) contains 1.5 volume per centum or more of methane, all
persons, except those referred to in section 104(d) of the Act
(i.e., those involved in eliminating the hazard), shall be
withdrawn from the area of the mine endangered thereby to a safe
area, and all electric power shall be cut off from the endangered
area of the mine, until the air in such working place (i.e.,
working place number five on RXÄ1) shall contain less than 1.0
volume per centum of methane." [Emphasis and parentheticals
added].

 The only issue left at this point in the analysis then is to

define the endangered area of the mine. On this point I accept as
credible the testimony of Inspectors Burkey and Sparvieri that
the endangered area of the mine within the meaning of 75.308
was the Muddy Run Right and Left Sides because even though the
gas problem existed in number five entry of Muddy Run Right Side,
Muddy Run Left Side is only separated by a ventilation curtain.

 Therefore, I conclude that respondent did violate 30 C.F.R.

75.308 by failing to de-energize the endangered area of th
mine and withdraw the miners from same when the methane level in
number five entry of Muddy Run Right Side was in excess of 1.5
percent. Order No. 2407974 is affirmed.

 An appropriate civil penalty must also be assessed if a

violation is found and a determination must be made as to whether
that violation was "significant and substantial." See generally
the Commission decisions in National Gypsum Co., 3 FMSHRC 822
(1981) and Mathies Coal Co., 6 FMSHRC 1 (1984) for the applied
definition of "significant and substantial."

 I find that the respondent's failure to de-energize the

Muddy Run sections and withdraw the miners and indeed

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to operate the continuous miner in number six entry of Muddy Run
Right Side while the methane level was in excess of 1.5% in the
adjacent entry subjected the exposed miners to an increased
danger of methane ignition or explosion which could have resulted
in fatal or permanently disabling injuries to them. Further, in
this regard, I note that this mine is classified as a gassy mine,
producing two and a half million cubic feet of methane in a
twenty-four hour period. Accordingly, I find that the violation
is "significant and substantial." I also find that there is a
high degree of gravity associated with the violation, that is,
the occurrence of the event against which the cited standard is
directed was "reasonably likely."

 Under the criteria enumerated in section 110(i) of the Act,

I have considered the stipulations of the parties concerning the
operator's violation history, size of the operator's business,
and the fact that the violation was abated in a timely fashion.
Further, I find that the respondent, through and by its
management representative, Mr. Kasperik, had actual knowledge of
the violation at the time it existed. Therefore, I find that the
respondent is chargeable with a high degree of negligence. I have
already stated my findings with regard to gravity, supra.
Therefore, considering all of the statutory factors, I conclude
that a penalty of $1,500 is appropriate.

 My decision with regard to Order No. 2407973 requires a

short legal analysis and involves making a conclusion of law. The
language of 30 C.F.R. 75.308 requires certain action when the air
at any working place contains 1.0% or more of methane. If at any
time that air contains 1.5% or more of methane, all that is
required for a 1.0% concentration is still required, plus
additional action is now required.

 The action required to be taken for methane levels in excess

of 1.5%, but which was not taken, and for which I have already
found a violation of section 75.308 and affirmed Order No.
2407974, would include de-energizing the continuous miner in
working place number six, which is the activity complained of in
Order No. 2407973. Therefore, I concur with the respondent's
argument that the violation written up in Order No. 2407973 is
included within and is duplicative of the violation found to
exist in Order No. 2407974. Therefore, I find as a matter of law
that Order No. 2407973 alleges a lesser included violation of the
identical standard and is hereby vacated and dismissed.

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ORDER

 Order No. 2407974 is AFFIRMED and the respondent is ORDERED

to pay a civil penalty in the amount of $1,500 within 30 days of
the date of this decision. Order No. 2407973 is VACATED and
DISMISSED.

                       Roy J. Maurer
                       Administrative Law Judge