Randy Rothermel/Tracey Partners
Randy Rothermel/Tracey Partners (FMSHRC PENN 87-176): Inspection-refusal citations vacated
What's the rule today?
This ALJ decision was superseded by the Commission's decision in the same case. Ezel starts from the controlling decision and answers your situation under current law, with citations.
Plain-English summary
Randy Rothermel and Tracey Partners operated the Tracey Slope Mine, which MSHA had placed on a five-day spot-inspection cycle after a 1982 methane explosion that seriously injured three miners. Judge George A. Koutras found that MSHA did not establish excessive methane or other especially hazardous conditions justifying continuation of that inspection cycle after five years. He concluded that the operator's refusal to admit inspectors for the section 103(i) inspections did not violate section 103(a). The contested citations and order were vacated, and MSHA's civil penalty proposals were denied and dismissed.
Decision snapshot
- Governing provisions: 30 U.S.C. § 813(a), 30 U.S.C. § 813(i)
- Outcome: The section 103(a) citations and section 104(b) order were vacated, and the civil penalty proposals were denied and dismissed.
- Key point: The judge found no statutory basis for maintaining this mine on a continuous five-day spot-inspection cycle without evidence of current especially hazardous conditions.
Full text (FMSHRC public release)
CCASE:
RANDY ROTHERMEL V. SOL (MSHA)
DDATE:
19871209
TTEXT:
Page 2
~2127
Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
RANDY ROTHERMEL/TRACEY CONTEST PROCEEDINGS
PARTNERS,
CONTESTANT Docket No. PENN 87-121-R
Citation No. 2840770; 2/12/87
v.
Docket No. PENN 87-122-R
SECRETARY OF LABOR, Order No. 2840771; 2/12/87
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. PENN 87-124-R
RESPONDENT Citation No. 2840772; 2/19/87
Tracey Slope
SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. PENN 87-176
PETITIONER A.C. No. 36-01836-03524
v.
Docket No. PENN 87-235
TRACEY & PARTNERS, A.C. No. 36-01836-03523
RESPONDENT
Tracey Slope
DECISIONS
Appearances: James P. Diehl, Esq., Williamson, Friedberg
& Jones, Pottsville, Pennsylvania, for the
Contestant/Respondent;
Susan M. Jordan, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Respondent/Petitioner.
Before: Judge Koutras
Statement of the Proceedings
These consolidated proceedings concern Notices of Contests
filed by the operator against MSHA pursuant to section 105(d) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
815(d), challenging the legality of two section 104(a) citations
and one section 104(b) order issued to the
Page 3
~2128
operator in February, 1987. The operator is charged with alleged
violations of section 103(a) of the Act, because of its refusal
to permit an MSHA inspector to conduct spot inspections pursuant
to section 103(i) of the Act. A hearing was held in Reading,
Pennsylvania, and while the parties were afforded an opportunity
to file posthearing briefs, they have not done so. However, I
have considered the oral arguments made by counsel on the record
during the hearing in these proceedings.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C.
301 et seq
2. Sections 103(a) and (i) of the Act, 30 U.S.C. 813(a)
and (i); and section 110(i), 30 U.S.C. 820(i).
3. Commission Rules, 29 C.F.R. 2700.1 et seq.
Issues
The issues presented in this matter include the following:
1. Whether the operator violated section 103(a) of the
Act by denying entry to the inspector for the purpose
of conducting a section 103(i) spot inspection, and if
so, the appropriate civil penalties to be imposed for
the violations.
2. Whether the facts and evidence adduced in this
matter support MSHA's contention that the operator has
not been subjected to any illegal or discriminatory
inspections pursuant to section 103(i) of the Act.
3. Whether the facts and evidence adduced in this
matter support the operator's contention that no valid
or legal basis exists at this time for MSHA's
continuing its mine on an indefinite section 103(i)
spot 5Äday inspection cycle.
4. Whether the statutory language found in section
103(i) of the Act with respect to an occurrence of a
methane ignition or explosion "during the previous five
years," automatically
Page 4
~2129
terminates MSHA's authority to keep the mine on a 5Äday spot
inspection status at the expiration of 5 years, during which time
no further methane ignitions or explosions within the meaning of
section 103(i) have occurred.
5. Whether the aforesaid statutory language authorizes
or requires MSHA to continue its 5Äday spot inspections
of the mine ad infinitum subsequent to the expiration
of 5 years from the date of the methane ignition and
explosion which initially placed the mine in that
status.
6. Additional issues raised by the parties are
identified and disposed of in the course of these
decisions.
Stipulations
The parties stipulated to the following (Joint ExhibitÄ2;
Tr. 7):
1. Randy Rothermel is the Managing Partner of Tracey
Slope.
2. The mine is subject to the Federal Mine Safety and
Health Act of 1977.
3. The presiding Administrative Law Judge has
jurisdiction over the proceedings pursuant to section
105 of the Act.
4. The citations, orders, and modifications, involved
herein were properly served by a duly authorized
representative of the Secretary of Labor upon an agent
of the operator at the dates, times, and places stated
therein, and may be admitted into evidence for the
purpose of establishing their issuance.
5. The parties stipulate to the authenticity of their
exhibits but not to the relevance or the truth of the
matters asserted therein.
6. The operator had a multiple nonfatal methane
explosion accident at its Tracey Slope Mine on February
10, 1982, which resulted in serious injuries to three
miners.
Page 5
~2130
7. Following this incident, the operator was put on a 5Äday spot
inspection series under section 103(i) of the Act by MSHA. The
basis for this action was that a "methane ignition or explosion
had occurred which resulted in serious injury."
8. This mine has been subject to 5Äday spot inspections
at irregular intervals since that time.
9. There has been no methane ignitions or explosions at
this mine resulting in serious injury since the
accident on February 10, 1982. The mine has not
liberated "excessive quantities of methane" as that
term is defined in section 103(i).
10. On February 12, 1987, MSHA Inspector Victor G.
Mickatavage of the Shamokin Field Office arrived at the
mine to conduct a section 103(i) spot inspection. Mr.
Randy Rothermel, an owner of the mine, stated that he
was denying entry to the mine to conduct a section
103(i) spot inspection. Mr. Rothermel stated, however,
that he would permit any inspection other than an
inspection pursuant to section 103(i).
11. At 11:45 a.m., the MSHA inspector issued Citation
No. 2840770 under section 103(a) of the Act for the
denial of entry, allowing 45 minutes to abate.
12. At 12:30 p.m., the MSHA inspector issued a section
104(b) withdrawal order, Order No. 2840771, under
section 103(a) of the Act for failure to abate Citation
No. 2840770, which order did not prohibit entry into
the mine.
13. On February 13, 1987, the MSHA inspector returned
to the mine and issued a Modification to Citation No.
2840770 and Order No. 2840771, and entry to perform a
section 103 (i) inspection was again denied.
Page 6
~2131
14. On February 19, 1987, the MSHA inspector was again denied
entry to the mine to conduct a section 103(i) spot inspection.
The MSHA inspector issued Citation No. 28040772 for failure to
comply with the section 104(b) Withdrawal Order No. 2840771 as
modified Order 2840771Ä01.
15. A letter dated September 15, 1986, Exhibit "CÄ1,"
is a true and correct copy of a letter sent by Randy
Rothermel to the then acting District Manager, Joseph
Garcia, the District Manager of Coal Mine Safety and
Health, District No. 1.
16. During the 24Ämonths preceding the date of the
contested citations and order, the operator received a
total of 24 citations and was subject to a total of 142
inspection days.
17. The operator is a small underground anthracite mine
operator, employing three to five people underground,
and two people on the surface, and has an annual coal
production of approximately 4,000 tons (Tr. 33, 170).
Discussion
The citations and order issued in these proceedings, all of
which allege violations of section 103(a) of the Act, are as
follows:
Section 104(a) non-"S & S" Citation No. 2840770, February
12, 1987 (Docket Nos. PENN 87Ä121ÄR, and PENN 87Ä235).
On 2Ä12Ä87, Randy Rothermel, partner and mine foreman,
refused to allow Victor G. Mickatavage, an authorized
representative of the Secretary, entry into the Tracey
Slope Mine for the purpose of conducting an inspection
of the mine pursuant to section 103(a) of the Act. Mr.
Rothermel stated that the inspector (Federal) could not
enter the mine to conduct the 103(i) inspection.
Section 104(b) "S & S" Order No. 2840771, February 12, 1987
(Docket No. PENN 87Ä122ÄR):
Page 7
~2132
Randy Rothermel, partner and mine foreman, continued to deny
Victor Mickatavage, authorized representative of the Secretary,
the right of entry into the Tracey Slope mine for the purpose of
conducting an inspection of the mine in accordance with the
requirements of section 103(a) of the Act on 2Ä12Ä87 after the
expiration of a reasonable time allowed for Mr. Rothermel to
comply.
Section 104(a) "S & S" Citation No. 2840772, February 19,
1987 (Docket Nos. PENN 87Ä124ÄR, and PENN 87Ä176).
The operator failed to comply with 104(b) order of
withdrawal No. 2840771 dated 2Ä12Ä87 and modified
2Ä17Ä87, issued for failure to abate a 104(a) Citation
No. 2840770 dated 2Ä12Ä87, issued to section 103(a) of
the Act. One gunboat of coal was observed being hoisted
from underground.
The essential facts in these proceedings are not in dispute.
On February 10, 1982, at approximately 8:10 p.m., a methane gas
explosion occurred at the mine, and three laborers working in the
mine received burn injuries. As a result of this incident, which
occurred over 5Äyears ago, the mine operator has been subjected
to spot inspections by MSHA once during every 5 working days at
regular intervals in accordance with section 103(i).
On February 12, 1987, the mine operator, believing that
MSHA's rights of inspection pursuant to section 103(i) had
expired and lapsed, denied entry to MSHA Inspector Victor
Mickatavage for purposes of conducting a section 103(i)
inspection. At the time of the denial of entry, the operator
advised the inspector that he would permit any form of inspection
other than an inspection pursuant to section 103(i) of the Act.
As a result of the operator's failure to allow the inspector
entry to conduct a section 103(i) inspection, the inspector
issued the citations and order in question.
During opening statements at the hearing, MSHA's counsel
stated that the citations and order resulted from the operator's
denial of entry to its mine by MSHA inspectors on different
occasions. The inspectors sought entry for the purpose of
conducting section 103(i) inspections, and they did so in the
exercise of their right of inspection pursuant to section 103(a)
of the Act. Recognizing the fact that MSHA's right of
Page 8
~2133
inspection may not be exercised illegally or in a discriminatory
manner, counsel asserted that MSHA has an absolute right of
warrantless entry, and that the inspectors were attempting to
exercise that right pursuant to section 103(i). MSHA's view of
the issue presented in these proceedings is whether or not the
operator was being subjected to illegal or discriminatory
inspections pursuant to section 103(i) of the Act as alleged by
the operator.
MSHA's counsel pointed out that the operator contends that
the attempted section 103(i) spot inspections were illegal
because 5 years have passed since the operator was initially put
on notice that its mine was on a section 103(i) spot inspection
cycle because of a methane explosion which resulted in serious
injuries. Contrary to the operator's contention, MSHA takes the
position that there is no automatic termination of section 103(i)
spot inspections after the passage of 5 years from the event
which initially placed the mine in that inspection posture.
MSHA's position is that it has discretion, based on the
particular conditions present in a mine, to determine whether or
not the mine should exit or remain subject to continued section
103(i) 5Äday spot inspections. MSHA asserted that its evidence
establishes that the decision to maintain the mine on the spot
inspection cycle was based on MSHA's continued fear of the
presence of methane gas in the mine. Under the circumstances,
MSHA concludes that it has acted well within its statutory
authority to continue the section 103(i) spot inspections to the
present time (Tr. 8Ä9).
The operator's counsel stated that section 103(i) sets forth
certain criteria for the conduct of spot inspections every 5
days, namely; (1) liberation of excessive quantities of methane
gas as that term is defined by the Act, (2) a methane ignition or
explosion resulting in death or serious injury within the
previous 5 years, or (3) the existence of other hazardous mine
conditions. Counsel contended that in the case at hand, the only
mining activity tested during any of the section 103(i)
inspections was a test for methane, and on one occasion,
ventilation testing. Counsel asserted that the sole purpose
advanced by MSHA to the operator for its desire to conduct the
inspections was the opinion by MSHA's district office that it
could continue its inspections without any of the necessary
criteria found in section 103(i) of the Act.
Counsel pointed out that it is uncontroverted that the
operator has allowed MSHA entry to its mine for the purpose of
conducting any other type of inspections, including regular spot
inspections, and has only resisted MSHA's attempts to
Page 9
~2134
continue with section 103(i) spot inspections every 5 days.
Counsel contended that the mine has been subjected to 142
inspection days in a period of less than 24 months, and that
taking into account the number of days the mine has been closed,
MSHA's inspections have amounted to a substantial interference
with the operator's mining activity (Tr. 9Ä11).
Counsel stated that by letter dated September 15, 1986,
(Exhibit CÄ1), the operator wrote a letter to MSHA's Acting
District Manager, Joseph Garcia, WilkesÄBarre, Pennsylvania,
advising him of all of the facts incident to the prior methane
ignition which triggered the 5Äday spot inspection cycle, and
requesting a ruling as to whether or not the mine could be
removed from its spot inspection status, but that the letter
remains unanswered. Counsel suggested that since MSHA did not
respond to the operator's letter, it believed that the only way
it could resolve the question was to create a circumstance under
which a violation would be issued, thereby providing a forum in
which to decide the propriety of the section 103(i) spot
inspections (Tr. 11).
Conceding that the operator's letter was not answered,
MSHA's counsel asserted that while no formal response was
forthcoming, numerous meetings have been held between MSHA
personnel and the operator to discuss the matter, and that these
discussions would constitute a verbal response to the operator's
letter (Tr. 11). MSHA's Shamokin Area Field Office Supervisor
James Schoffstall confirmed that Acting District Manager Garcia
has since returned to his regular duty station in the Pittsburgh
area, and that the operator's letter may have been mislaid or
misrouted. Mr. Schoffstall confirmed that he has not seen the
letter, and the operator's counsel confirmed that there was some
dialogue between Mr. Randy Rothermel, the operator, Mr.
Schoffstall, and the inspector, but that no responsive written
reply has ever been received by Mr. Rothermel with regard to his
letter (Tr. 14Ä15). Mr. Schoffstall also confirmed that he has
consulted with his supervisor in the district office, Edward
Connor, Acting District Manager, who in turn consulted with
MSHA's headquarters in Arlington, Virginia, and that Arlington's
answer "was that this five years is a minimum, and there is no
time limit" (Tr. 16).
MSHA's counsel confirmed that MSHA still has under
consideration the seeking of a court injunction to allow it to
gain entry to the mine for the purpose of continuing its section
103(i) spot mine inspections every 5 days, but that it has not
done so as of the time of the hearing. Counsel pointed out that
the violations in issue in these proceedings were abated
Page 10
~2135
after a period of time when the operator permitted entry to the
inspectors for the purpose of conducting section 103(i) spot
inspections, and that MSHA abandoned any recourse to injunctive
action. However, the operator has again started to turn away its
inspectors, and injunctive relief is again being considered by
MSHA. The operator's counsel confirmed that this was true, but
stated that the operator is no longer permitting entry to the
inspectors because of the instant litigation, and MSHA's counsel
confirmed that another series of citations are likely to be
issued because of the operator's renewed and continued refusal to
permit section 103(i) spot inspections (Tr. 12Ä14).
MSHA's counsel confirmed that the operator at the present
time is not only refusing entry for spot inspections, but is also
refusing any type of entry to MSHA inspectors, even for regular
inspections. The operator's counsel asserted that "we are not
working the mine" (Tr. 17).
MSHA's Testimony and Evidence
James E. Schoffstall, Supervisor, MSHA District No. 1
Shamokin Field Office, confirmed that he has been in that
position since November, 1980, and that his duties include the
supervision of a staff of 13 MSHA inspectors. He testified as to
his background and experience, including the management of two
mines as a superintendent, and he confirmed that he holds mine
foreman papers issued by the State of Pennsylvania (Tr. 19Ä22).
Mr. Schoffstall confirmed that the mine in question has been
within his enforcement jurisdiction since February, 1985, when it
was taken over from MSHA's Pottsville or SchuylkillÄHaven office.
He confirmed that he has been in the mine numerous times, and
that he was familiar with the citations and orders issued by MSHA
Inspector Victor Mickatavage (joint exhibitÄ1). Mr. Schoffstall
confirmed that he discussed the circumstances surrounding the
issuance of the violations with Inspector Mickatavage, who works
under his supervision, and that Mr. Mickatavage issued the
violations because he was denied entry to the mine for the
purpose of conducting section 103(i) inspections, and was
hindered in his attempts to conduct the inspections (Tr. 22Ä24).
Mr. Schoffstall confirmed that the mine is also subject to
annual and quarterly inspections, including follow-up inspections
in connection with the issuance of any citations or orders. He
also confirmed that the mine became subject to the section 103(i)
spot inspections after a multiple nonfatal
Page 11
~2136
methane explosion accident which occurred at the mine on February
10, 1982, and he identified exhibit GÄ1 as the official MSHA
accident investigation report of that incident which he obtained
from MSHA's District No. 1 office in WilkesÄBarre (Tr. 25).
Mr. Schoffstall was of the opinion that section 103(i) was
enacted "for the sole reason of troubled mines. Mainly, Number 1,
was excessive amount of gases; Number 2, if a mine experienced an
explosion; and then also you have another category for special
hazards" (Tr. 34). He also believed that section 103(i) mandates
that inspections "be made under periodic time limit," namely once
every 5Äworking days at irregular intervals in this case, "to see
that they are complying with the law, and to see that the
conditions are being controlled" (Tr. 36).
With regard to the language of section 103(i) concerning
methane or other gas explosions which have resulted in death or
serious injury during the previous 5 years, Mr. Schoffstall was
of the view that this stated time frame is a minimum amount of
time that the mine must be placed on the section 103(i) spot
inspection cycle, and that it is not a maximum time limitation.
Mr. Schoffstall was of the further view that MSHA could continue
its section 103(i) spot inspections if it "feels that the mine is
on the borderline or it is subject to a condition happening again
in that mine" (Tr. 36).
Mr. Schoffstall confirmed that since the 1982 ignition, the
mine experienced another methane ignition in 1985 in the Number 4
Level West Gangway Section where some methane was ignited as a
cut of coal was fired from the base. That ignition did not result
in any injuries or death, and the incident was investigated by
MSHA's Pottsville office (Tr. 40). He identified exhibit GÄ2 as a
copy of the official MSHA investigation report of that incident
(Tr. 43).
Mr. Schoffstall confirmed that he considered Mr. Rothermel's
verbal requests made to Inspector Mickatavage 2 or 3Äweeks prior
to the denial of entry to be removed from the section 103(i) spot
inspection series because the 5Äyear period has expired. Mr.
Schoffstall stated that after discussing the request with his
superiors, "we feel that the mine still should be considered
within the 103(i) category." Mr. Schoffstall stated that the
reasons for this included "the condition that the mine is in with
the unlimited amount of ventilation, and the irregularity of the
ventilationÄand also, the immediate area where they are now
working has a condition of roof control along with a new area
that they intend
Page 12
~2137
to development which is to the east which allows an additional
taxation on the ventilation system" (Tr. 50Ä51).
Mr. Schoffstall confirmed that the decision to deny Mr.
Rothermel's request to be removed from the section 103(i) spot
inspection cycle was a "joint decision" made by himself, Acting
District Manager Edward C. Connor, and Inspector Mickatavage, and
that the decision was communicated verbally to Mr. Rothermel who
was "basically" informed of the reasons for the decision (Tr.
51Ä53). MSHA's counsel confirmed that the decision in question
was not formalized in writing, and Mr. Schoffstall confirmed that
his office has never informed an operator in writing that he
would be removed from any section 103(i) inspection cycle because
MSHA has never been challenged in this regard (Tr. 51Ä54).
Mr. Schoffstall stated that three other mines in his
district are presently on a section 103(i) spot inspection cycle,
for reasons other than a methane ignition, and that two mines are
on that cycle because of impounding water (Tr. 55). In the
instant case, Mr. Schoffstall could think of no reason why the
operator has not been advised in writing as to the specific
reasons why MSHA is keeping him on the section 103(i) spot
inspection cycle (Tr. 56), and that "we've never done it any
other way in the district except verbally" (Tr. 57).
Mr. Schoffstall stated that immediately after the denial of
entry in this case, a meeting was held in MSHA's office with the
operator's counsel Diehl present, and the matter was discussed.
At that time, Mr. Rothermel was advised of MSHA's decision to
keep the mine on a section 103(i) cycle (Tr. 61). Mr. Schoffstall
could not confirm whether Inspector Mickatavage informed Mr.
Rothermel of these reasons during their discussions prior to the
refusal of entry (Tr. 61).
Mr. Schoffstall testified to the specific reasons previously
alluded to as to why the decision was made to keep the mine on
the section 103(i) cycle. Referring to a mine map (exhibit GÄ7),
he alluded to certain air measurements made during past
inspections, some purported roof problems necessitating
retimbering, and an unplanned roof fall within the past 4 months
in an escape route. He believed that any roof fall in either the
main intake or return presented the possibility of blocking the
entrance and possibly restricting ventilation. However, he
confirmed that the unplanned roof fall was addressed by
developing a new area to go around it, and that no injuries
resulted from that fall (Tr. 61Ä65).
Page 13
~2138
Mr. Schoffstall further alluded to air measurements taken along
the haulage slope indicating 8 to 10 thousand cubic feet of air
in the main intake and return resulting from air short-circuiting
through some old stoppings, and other areas of possible air
leakage through an area which is planned for development in an
easterly direction. He also alluded to citations which were
issued for air leakage through some temporary stoppings, and
indicated that the air at that location was "just a minimal
amount" to meet the requirements of the law (Tr. 66).
Mr. Schoffstall discussed the operator's intentions to
install overcasts at the gangway level as it developed to the
east, and he indicated that this may place an additional burden
on the ventilation system caused by air leakage which may be
created by crosscuts and openings which need to be stopped off
(Tr. 67). In response to questions concerning the operator's
intentions to mine to the east, Mr. Schoffstall confirmed that
the operator is required to file ventilation plan changes as it
develops or anticipates to develop new mine areas, and he
confirmed that a new ventilation plan has been filed. He also
confirmed that in this case, MSHA has approved the operator's
ventilation plan to meet the minimum standard of 3,000 cubic feet
of air at the face, and 5,000 at the last open crosscut (Tr. 68).
However, he indicated that MSHA is not certain whether the
existing ventilation system is enough to cover the area being
developed to the east, and that this is part of the reasons why
it wants to keep the mine on a section 103(i) inspection cycle
(Tr. 68).
Mr. Schoffstall confirmed that MSHA wishes to keep the
operator on the section 103(i) inspection cycle in the newly
developed area because of its "pending development." He conceded,
however, that MSHA will still have to review the adequacy of the
ventilation in 3 or 6 months intervals, and he conceded that such
an evaluation of the ventilation could be done independently of
any section 103(i) inspection. He further conceded that if the
mine had not experienced a prior methane ignition, any perceived
ventilation problem would not necessarily be reason enough to
place the mine on a section 103(i) inspection cycle (Tr. 69). He
confirmed that the mine is located in a gassy vein, and that
coupled with the asserted bad roof, these conditions are inherent
to the mine (Tr. 70).
Mr. Schoffstall confirmed that while he believed that the
mine has a "borderline" ventilation system, MSHA nonetheless has
approved the ventilation plan, and keeping the mine on a section
103(i) inspection status will facilitate MSHA's monitoring of the
ventilation (Tr. 73).
Page 14
~2139
In further explanation of the decision to keep the mine on a
section 103(i) inspection cycle, Mr. Schoffstall stated as
follows (Tr. 75Ä76):
A. Okay. The basis was, Number 1, was the ventilation
system, the irregularities of the ventilation system;
the problems that they were having with the roof
control, holding the return entries open; and the
constant pressure on the main intake; 3, was the
ventilation system to the east, will it be effective
enough to be able to liberate the methane that they're
going to encounter; and Number 4 is, that they're going
towards an uncharted area that's filled with water,
which we will require a bore hole plan.
JUDGE KOUTRAS: A bore hole plan?
THE WITNESS: Yes. In other words, when they get within
two hundred feet of the uncharted workings that we have
no mapping on, then they must start drilling in advance
to locate this water.
BY MS. JORDAN:
Q. If itÄ
JUDGE KOUTRAS: But, that would be required, independent
of any 103(i)?
THE WITNESS: That's right. That will go under special
inspection.
**********
A. All right. What it is is the inconsistency of the
ventilation puts a borderline on the amount of
ventilation available at the working faces to sweep
away the noxious gasses. Number 2, is the possible
blockage, due to an unplanned roof fall in the returns
could cause a restriction of ventilation, that would
also cause a buildup of methane at the faces. And, then
the area in which they're going to tax additional
efforts out of the ventilation system to the east, all
in conjunction with it
Page 15
~2140
puts the mine at an area where we feel it's borderline as to the
abilities of keeping the faces clean of methane.
Mr. Schoffstall identified and reviewed copies of citations
issued to the operator for violations of the roof control
requirements of mandatory safety standard section 75.200, the
ventilation air requirements of section 75.301, and the
ventilation plan requirements of section 75.316 (exhibits GÄ3
through GÄ5, Tr. 87Ä94; 98Ä102; 117Ä118; 119Ä122).
Mr. Schoffstall confirmed that he did not issue any of the
citations, and that he was not present when they were issued (Tr.
122Ä123). He also confirmed that he retrieved the copies from
MSHA's files in response to the operator's prehearing
interrogatories, and while he may have previously reviewed the
citations after they were issued as part of his supervisory
duties, he would only have reviewed those issued by Inspectors
Donn Lorenz and Victor Mickatavage, from his Shamokin office, but
not those issued by inspectors from MSHA's Pottsville office (Tr.
124Ä125). He confirmed that the citations in question have all
been abated (Tr. 155).
Mr. Schoffstall further confirmed that when he assembled the
copies of the prior citations, he did not include copies of any
extensions which may have been issued, nor did he include copies
of any abatement or termination notices unless the abatement was
shown on the face of the citation itself (Tr. 144). MSHA's
counsel stated that any terminations and extensions relevant to
the citations were included with her responses to the operator's
discovery requests, and that they are a matter of record (Tr.
146Ä147).
On cross-examination, Mr. Schoffstall reiterated that he did
not conduct any of the prior inspections or issue any of the
citations previously referred to. With regard to any methane
tests conducted in the mine, Mr. Schoffstall confirmed that he
has never personally conducted any such tests, but has
accompanied an inspector when he did it. With regard to his prior
testimony speculating to a 50 percent loss of air in the
ventilation circuit, Mr. Schoffstall conceded that he performed
no test to support any such statement (Tr. 154Ä155).
Mr. Schoffstall confirmed that he was present at a
conference with counsel Diehl during which he stated to counsel
that the sole basis for the section 103(i) inspections was the
prior methane ignition which resulted in injury to two men. When
asked whether that was still his position, Mr. Schoffstall
Page 16
~2141
responded "Because of the explosion, because of the conditions of
the explosion, yes" (Tr. 154Ä155). With regard to the 1985
ignition incident, Mr. Schoffstall confirmed that it was reported
to MSHA by the operator (Tr. 158).
Contestant's Testimony and Evidence
Randy Rothermel, the operator of the mine, confirmed that
MSHA Inspector Victor Mickatavage was at the mine on February 12,
1987, and requested entry for the purpose of conducting a section
103(i) inspection. Mr. Rothermel acknowledge that he informed the
inspector that he could conduct any other kind of an inspection
except for a section 103(i) inspection. As a result of his
refusal to permit the inspector to conduct a section 103(i)
inspection, the inspector issued him a citation, but did not
prohibit him from proceeding with his mining activities (Tr.
160Ä161). At the expiration of a half an hour, the inspector then
served him with an order, and that too did not prohibit him from
continuing with his mining activities. He received another order
some 5 days later (Tr. 162). Mr. Rothermel confirmed that he had
written a letter to MSHA's Acting District Manager Garcia
approximately 4 to 6 months earlier, but has received no response
from Mr. Garcia or anyone else (Tr. 163).
On cross-examination, Mr. Rothermel acknowledged that he has
often discussed with MSHA inspectors, including Mr. Mickatavage,
the matter concerning section 103(i) inspections, and that they
never advised him that he could not at the present time be
removed from the section 103(i) spot inspection cycle. When asked
what the inspectors may have told him, Mr. Rothermel responded
"They said, if you think that's the law, you have to fight it. So
that's what we're doing here today" (Tr. 164).
In response to further questions, Mr. Rothermel stated that
he was prompted to write his letter after first receiving a copy
of the Act, and that prior to that time "I didn't know what a
103(i) was." In addition, he stated that he spoke with Mr. Garcia
by telephone before writing the letter, and that Mr. Garcia told
him to write to him. His refusal to permit the inspector to
conduct a section 103(i) inspection was based on the fact that he
received no response to his letter (Tr. 165Ä166).
Mr. Rothermel stated that another mine operator who operates
a mine adjacent to and behind his (Wolfgand Brothers), was in a
section 103(i) inspection status for 7 years for experiencing the
same type of ignition as that which occurred
Page 17
~2142
in his mine, but was taken off by MSHA. Since that operator was
taken off, Mr. Rothermel acknowledged that his curiosity was
aroused as to why his mine was still in a section 103(i) status
(Tr. 167). Mr. Rothermel indicated that the adjacent mine
operator was taken off after he wrote his letter to Mr. Garcia
(Tr. 168). After consulting with Mr. Schoffstall at counsel
table, MSHA's counsel confirmed that the mine operator referred
to by Mr. Rothermel was in fact in a section 103(i) status, but
was removed after 7 years (Tr. 167).
Mr. Rothermel stated that his mine has operated on an
average 4Äday weekly basis for the past 5 years, and that he
spends approximately 4 hours a week with a Federal inspector
during a section 103(i) inspection. He also stated that his mine
has been subjected to four AAA regular MSHA inspections, and that
the time spent on those inspections ranged "from four days
straight, to some mix with the AAA or the 103(i)" (Tr. 169). He
estimated that during each work week, he has had one and a
half-days of inspections (Tr. 169).
Mr. Rothermel stated that the section 103(i) inspections
have interfered with his operation of the mine, and he explained
as follows at (Tr. 170Ä171):
THE WITNESS: With only three to five guys there, one
guy is with an inspector, well, there's only two
working, and I'm usually the guy, and I'm the foreman
to start with. It usually consists of going out of the
mine, talking to an inspector, seeing what he wants to
see, or whatever, then we go down. The inspection
actually lasts maybe a half an hour.
**********
THE WITNESS: It's not only the inspections themselves,
there's so much other business to go with it. Roof
control plans, ventilation plans, all kinds of other
stuff, it's really getting to be time consuming.
JUDGE KOUTRAS: Are you also regulated by the state?
THE WITNESS: Yes.
JUDGE KOUTRAS: Are you on any kind of a spot
inspectionÄ
Page 18
~2143
THE WITNESS: No.
JUDGE KOUTRAS:Äcycle with the state?
THE WITNESS: One inspection day every two months.
JUDGE KOUTRAS: One inspection day every two months.
THE WITNESS: Yes.
Mr. Rothermel confirmed that although the mine works 4 days
a week, people may be at the site on the other 3 days running
pumps, cutting timber, or doing repair work. In 1984, at the time
some of the citations were extended, the mine worked 2 days a
month, and an inspector was there on each day. During regular
inspections when an inspector is there for four straight days, he
usually spends 3 days underground and 1 day doing surface
inspections or reviewing mine records. On some AAA inspections,
an inspector may be at the mine for 6 days in a row, or less, in
order to complete the inspection (Tr. 172Ä176).
Mr. Schoffstall was recalled by the Court to explain the
circumstances under which the other mine operator referred to by
Mr. Rothermel was taken off the section 103(i) cycle, and he
testified as follows (Tr. 177Ä178):
THE WITNESS: All right. The operator had a ventilation
and gas liberating mine which was put on, initially,
because of an explosion. The operator requested that he
be taken off, you know, which is the same thing Mr.
Rothermel had done. We reviewed it. We reviewed the
circumstances, and we recommended he be taken off
because the conditions in the mine had changed. He had
adequate air. He didn't have the methane liberations
any more at the face areas. So, we felt it secure. We
were very comfortable in taking him off the 103(i).
JUDGE KOUTRAS: What distinguishes that case from this
one in your mind?
THE WITNESS: Well, actually, two things. The liberation
content. They dropped their liberation content. They
went into another section of the mine and lost their
methane. They
Page 19
~2144
didn't have near the amount of methane being liberated out of
that mine as to what they did prior. Number two was, they had
established a better airway system and a better ventilation
system. In other words they were on a retreat, a mining process
which didn't involve as much face ventilation as what they had
prior. And we seen no reason, the roof was good, their
ventilation was good, and we seen no reason to keep them on.
JUDGE KOUTRAS: Do you know what the frequency of their
citations has been since they were taken off?
THE WITNESS: I would say a normal small mine, not that
many. I couldn't count as number-wise, but I would say
very few.
JUDGE KOUTRAS: How do they compare in size to this
operator, do you have any idea?
THE WITNESS: About the same size.
JUDGE KOUTRAS: About the same size.
THE WITNESS: This mine here is developed a little
bigger. It's more to maintain than what they have.
They're not down as deep or extended as far. But,
size-wise, manpower about the same.
Findings and Conclusions
Section 103(i) of the Act provides as follows:
Whenever the Secretary finds that a coal or other mine
liberates excessive quantities of methane or other
explosive gases during its operation, or that a methane
or other gas ignition or explosion has occurred in such
mine which resulted in death or serious injury at any
time during the previous five years, or that there
exists in such mine some other especially hazardous
condition, he shall provide a minimum of one spot
inspection by his authorized representative of all or
part of such mine during every five working days at
irregular intervals. For purposes of this
Page 20
~2145
subsection, "liberation of excessive quantities of methane or
other explosive gases" shall mean liberation of more than one
million cubic feet of methane or other explosive gases during a
24Ähour period. When the Secretary finds that a coal or other
mine liberates more than five hundred thousand cubic feet of
methane or other explosive gases during a 24Ähour period, he
shall provide a minimum of one spot inspection by his authorized
representative of all or part of such mine every 10 working days
at irregular intervals. When the Secretary finds that a coal or
other mine liberates more than two-hundred thousand cubic feet of
methane or other explosive gases during a 24Ähour period, he
shall provide a minimum of one spot inspection by his authorized
representative of all or part of such mine every 15 working days
at irregular intervals.
Although section 103(a) of the Act gives MSHA a right of
entry to the mine for inspection purposes, it seems clear to me
that MSHA's authority to conduct spot inspections every 5 days
pursuant to section 103(i) is subject to the following
limitations:
Äa mine which liberates excessive quantities of methane
or other explosive gases during its operations, namely,
more than one million cubic feet of methane or other
explosive gases during a 24Ähour period.
Äa mine which has experienced a methane or other gas
ignition or explosion resulting in death or serious
injury at any time during the previous five years.
Äa mine where there exists some other especially
hazardous condition.
Section 103(a) of the Act requires the Secretary to "develop
guidelines for additional inspections of mines based on criteria
including, but not limited to, the hazards found in mines subject
to this Act, and his experience under this Act and other health
and safety laws." The only relevant guidelines that I can find
with respect to the interpretation and application of the spot
inspection requirements of section 103(i) of the Act, are those
found in Volume 1, page 17, of
Page 21
~2146
the Secretary's Coal Mine Inspection Manual, effective November
1, 1982, which states as follows:
Spot inspections made relative to Section 103(i) should
be made with respect to the hazard(s) that caused the
mine to be placed in this category. For example, if the
mine is being inspected because there exists some
"other especially hazardous conditions(s)," such as
serious problems with the haulage system, then the
inspection activities should be directed toward the
haulage system.
The operator wrote a detailed letter to MSHA's Acting
District Manager Joseph Garcia, WilkesÄBarre, Pennsylvania, on
September 15, 1986, some 6 months before its refusal of entry,
requesting MSHA to consider removing the mine from the section
103(i) spot inspection cycle. In support of its request, the
operator asserted that during the past 4 years its ventilation
system had greatly improved, greater quantities of air were being
generated at working faces, and that recent testing by MSHA
inspectors indicated that at the maximum there was 87,000 cubic
feet of methane liberated in a 24Ähour period at the mine. The
letter was not answered.
MSHA's Shamokin Field Office Supervisor Schoffstall
testified that he did not see the letter and speculated that it
was either mislaid or lost. I would venture a guess that Mr.
Schoffstall did not see the letter because he was in Shamokin and
Mr. Garcia was in WilkesÄBarre. Mr. Schoffstall confirmed that he
"basically" verbally informed Mr. Rothermel of his decision not
to remove the mine from the 5Äday inspection cycle, and that his
office has never informed a mine operator in writing of such
decisions because MSHA has never been challenged in this regard
in the past. Mr. Schoffstall also confirmed that he consulted
with his supervisor, who in turn consulted with MSHA's
headquarters, and apparently received a brief oral opinion by
telephone. While I find this advisory process to be rather loose,
it is apparently in keeping with the theory that nothing is
reduced to writing for fear of challenge. However, I believe that
MSHA has a responsibility and obligation to respond in writing to
an operator's request of this kind, and its failure to do so
prompted the operator here to take a stand and initiate the
litigation in question.
Mr. Rothermel indicated that he was prompted to write the
letter in question when he learned that another mine operator
near his operation who had been in a section 103(i) spot
inspection status for 7 years after experiencing a gas explosion
was
Page 22
~2147
taken off that status after writing to MSHA requesting that this
be done. Mr. Schoffstall confirmed that this was true, and he
explained that MSHA terminated the spot inspection status of that
mine after reviewing the circumstances and finding that the mine
conditions had changed. The changed conditions included a
reduction in the amount of methane liberated at the face areas
and the establishment of a better airway and ventilation system.
Mr. Schoffstall was of the opinion that these two factors
distinguishes Mr. Rothermel's mine from his neighbor's mine.
I take note of the fact that MSHA's report of investigation
concerning the February 10, 1982, methane ignition concluded that
the accident occurred because of the operator's failure to follow
proper blasting procedures, which contributed to the ignition
source, and that it failed to follow proper ventilation practices
which permitted an explosive mixture of methane to accumulate in
the accident area. Other contributing factors noted by MSHA
included the failure to install adequate ventilation controls,
such as an overcast, regulators, and stoppings, to direct the
intake air current, and the failure to properly check for methane
before blasting (Exhibit GÄ1, page 6).
Assuming the correctness of MSHA's position that the passage
of 5 years without an ignition or explosion resulting in death or
serious injury does not automatically terminate its discretionary
right to continue to inspect the mine every 5 days, MSHA
nonetheless recognizes the fact that its continued inspections
must be based on the particular conditions present in the mine.
In this case, MSHA has taken the position that it must continue
to exercise its perceived discretion to continue to conduct spot
inspections every 5 days because of its continued fear of the
presence of methane gas in the mine.
The record in this case reflects that during MSHA's
investigation of the ignition which occurred in 1982, the
operator was cited for a violation of section 75.309(b), after
5.0 percent methane was detected in a return split of air, and
was also cited for having an inoperative methane detector.
However, there is no evidence that the operator has ever been
cited for violations of any of the mandatory safety standards
dealing with weekly examinations for hazardous conditions
(75.305); weekly ventilation examinations (75.306); methane
examinations (75.307); methane accumulations in face areas
(75.308); and methane monitors (75.313).
Page 23
~2148
In the course of opening arguments, the operator's counsel
asserted that subsequent to the February 10, 1982, incident which
placed the mine on a 5 day section 103(i) spot inspection cycle,
the only mining activity tested during any of the subsequent
103(i) inspections was one test for methane, and one occasion
when the ventilation was tested.
MSHA has stipulated that no methane ignitions or explosions
resulting in serious injury have occurred in the mine since the
accident of February 10, 1982, and that the mine has not
liberated "excessive quantities of methane" as that term is
defined by section 103(i). Further, in response to the operator's
discovery requests with respect to any tests performed showing
the presence of excessive quantities of methane or other
explosive gases in the mine, MSHA responded as follows at page 2
of its May 7, 1987, responses:
ÄThere is no record of methane liberations of more than
1,000,000 cubic feet in 24 hours.
ÄThere is no record of methane liberations of more than
500,000 cubic feet in 24 hours.
With respect to the answer to an identical question
concerning the presence of methane liberation of more than
200,000 cubic feet in 24 hours, MSHA made reference to an
analysis of air samples collected on February 11, 1982, as part
of its investigation of the methane ignition which occurred on
February 10, 1982. That report reflects a methane liberation
level of 237,000 cubic feet in 24 hours on that day, and 4.98
percent methane. Copies of the results of additional bottle
samples apparently collected by MSHA during its investigation
during February 11 through 19, 1982, reflect methane levels of
0.13, 0.04, 1.34, 0.35, 0.46, 0.15, 0.34, 0.38, 0.20, 0.37, 0.33,
0.18, and 0.41 at the places tested.
The only evidence of any face ignitions which have occurred
at the mine subsequent to February 10, 1982, is an incident which
occurred on July 23, 1985, and the details are discussed in an
MSHA Memorandum of July 26, 1985 (exhibit GÄ2). The facts show
that the ignition which was reported by the operator, did not
result in any death or serious injury, and MSHA concedes that
this ignition incident is not within the statutory definition of
"ignition or explosion" found in section 103(i), and that such an
occurrence, standing along, would not trigger a section 103(i)
spot inspection cycle. MSHA's memorandum report of this incident
reflects that a citation was issued pursuant to section 75.301
for inadequate face ventilation, and the record reflects that the
operator took
Page 24
~2149
immediate action to abate the violation. The memorandum also
reflects the presence of .6 percent methane at the face, and that
all ventilation controls were in compliance with MSHA's
regulations. The test results taken to support the citation
reflected .23 percent methane in the immediate return off the
face, and .10 percent methane in the main return. It also
reflects 17,000 cubic feet of methane liberation in 24 hours at
the first noted return location, and 43,000 feet at the second.
Mr. Schoffstall confirmed that the mine does liberate
methane. However, this is true of practically all underground
coal mines. MSHA has concluded that the mine has an ongoing
problem with methane liberation in the mine, yet the only witness
it presented was Mr. Schoffstall. Except for two air measurements
taken in October, 1986, and one air sample taken in March, 1987,
there is no credible evidence in this case that MSHA has ever
conducted a detailed methane or ventilation system survey at the
mine to support its generalized and speculative conclusions that
methane liberation is in fact a hazardous problem in the mine.
Mr. Schoffstall admitted that MSHA has not monitored the mine to
find out how much methane has been liberated in the mine (Tr.
140).
In view of the foregoing, and for the reasons discussed in
my findings and conclusions which follow, I conclude and find
that MSHA has failed to present any credible probative evidence
to support a conclusion that the mine has any ongoing hazardous
methane problems warranting mine inspections every 5 days
pursuant to section 103(i) of the Act.
Although MSHA's counsel confirmed that MSHA's reason for
keeping the mine on a 5 day section 103(i) inspection cycle is
out of concern for the presence of methane in the mine, counsel
indicated that the general mine problems as evidenced by the
abated violations which have been introduced in this case,
generally constitute "other especially hazardous conditions"
which impact on the presence of methane in the mine (Tr. 95). A
discussion of these alleged hazardous conditions follows.
The record in this case establishes that from February 10,
1982, the date the mine was placed on a section 103(i) 5Äday
inspection status, until February, 1985, a period of 3 years, the
mine was under the enforcement jurisdiction of MSHA's Pottsville
or SchuylkillÄHaven Field Office, and that for the past 2 years,
it has been under the jurisdiction of Mr. Schoffstall's Shamokin
Field Office.
Page 25
~2150
MSHA presented no testimony concerning the prevailing mine
conditions during the 3Äyear period that the mine was inspected
before Mr. Schoffstall's office assumed jurisdiction of the mine.
The only "evidence" produced by MSHA covering that period of time
was a copy of a section 104(a) citation issued on June 6, 1984,
for a roof control violation, and a citation issued on June 7,
1984, for a violation of section 75.1704, for failure to install
ladders at an escapeway (Exhibits GÄ3 and GÄ6). MSHA produced
none of the inspectors who issued these citations.
With regard to MSHA's inspection and enforcement actions
subsequent to February, 1985, MSHA produced copies of nine
section 104(a) citations issued during the period March 3, 1985
through October 22, 1986, for violations of the roof control
requirements of section 75.200 (exhibit GÄ3); six section 104(a)
citations issued during the period July 23, 1985 through August
14, 1986, for violations of 75.301, because of inadequate air
ventilation in the last open crosscut (exhibit GÄ4); two section
104(a) citations issued on April 10 and August 14, 1986, for
violations of section 75.316 because of missing permanent
stoppings (exhibit GÄ5); and four section 104(a) citations issued
during March 10, 1985 through October 16, 1985, for violations of
section 75.1704, because of failures to provide ladders at
certain escapeway locations, and failure to clean up debris from
escapeways (exhibit GÄ6). One section 104(b) order was issued on
March 10, 1986, for failure to abate an escapeway violation which
was issued on June 7, 1984 (exhibit GÄ6).
MSHA also failed to produce for testimony any of the
inspectors who issued the post-February, 1985, citations.
However, I note that in each instance, the inspectors made
gravity findings of "reasonably likely," and negligence findings
ranging from "moderate" to "low" on the face of the citation
forms. Further, although Mr. Schoffstall reviewed and identified
the citations during the course of the hearing, he conceded that
he did not issue any of the citations, and that he was not
present during any of the inspections which resulted in the
issuance of the citations. Consequently, MSHA has presented no
credible or reliable probative testimony concerning the
prevailing mine conditions at the time these citations were
issued.
I have reviewed the copies of the abatement and termination
notices concerning all of the aforementioned citations which MSHA
produced in response to the operator's pretrial discovery
requests, and I find that with the exception of the one section
104(b) order for failure to abate a violation of
Page 26
~2151
section 75.1704, which MSHA had extended for over a year and a
half, all of the remaining violations were timely abated within
the initial or extended time fixed by the inspectors for
abatement. I also find that in the case of one of the violations
issued on July 24, 1985, for a violation of section 75.301, MSHA
noted that the operator took immediate action to abate the
violative ventilation conditions, and in another violation issued
on June 11, 1986, for a violation of section 75.301, MSHA vacated
the violation after finding that sufficient ventilation was in
fact provided.
In response to the operator's pretrial discovery requests
for an identification and description of any "especially hazard
condition" which MSHA maintains exists at the mine, and the dates
on which these conditions were discovered and communicated to the
operator, MSHA's counsel provided a narrative summary suggesting
that the mine has methane problems, roof control problems, an
inconsistent ventilation system, and a need to monitor a
projected development toward impounded water (See Addendum #6
Answer to Interrogatories).
The aforementioned summary makes reference to certain air
measurements made on the ventilation intake system on October 22
and 30, 1986, and March 23, 1987, and one sample taken in an
immediate return on March 24, 1987. It also contains a number of
undocumented conclusions concerning the mine ventilation and roof
control, and there is no indication as to who may have prepared
the summary.
MSHA's response identifies October 22 and 30, 1986, and
March 24, 1987, as the dates that the alleged "especially
hazardous conditions" were discovered, and it refers to the
previously issued citations concerning violations of sections
75.316, 75.301, 75.1704, and 75.200, in support of the alleged
"especially hazardous conditions." These particular citations
have previously been discussed. However, MSHA has presented no
testimony or evidence documenting the October, 1986, and March,
1987, air ventilation tests, and there is no evidence that any
citations were issued as a result of the air measurements MSHA
has characterized in the summary as "especially hazardous
conditions" existing in October, 1986, and March, 1987.
MSHA failed to produce any of the inspector's who may have
conducted any methane or ventilation tests or surveys subsequent
to the February 10, 1982, ignition incident. Mr. Schoffstall
confirmed that he personally never conducted any such tests in
the mine, and while he asserted that he has accompanied other
inspectors when they took such tests, no
Page 27
~2152
details were forthcoming, and MSHA produced none of the
inspectors. Although Mr. Schoffstall alluded to some nebulous
loss of 50 percent of air in the mine ventilation circuit, his
assertion in this regard remains unexplained, and he conceded
that he performed no test to support any such statement. Mr.
Schoffstall also conceded that absent the prior ignition of
February 10, 1982, his perceptions that the mine may have some
ventilation problems would not necessarily be reason enough to
place the mine in a section 103(i) spot inspection status.
Mr. Schoffstall confirmed that MSHA wishes to keep the
operator on a section 103(i) spot 5 day inspection cycle because
of alleged adverse roof conditions, ventilation problems, and
excessive methane liberation in the mine. Although he is not
identified as the source of MSHA's "especially hazardous
conditions" discovery summary, since he was the only MSHA witness
called to testify in this case, I assume that the information in
the summary came from him. As indicated earlier, Mr. Schoffstall
admitted that he has never conducted any air ventilation tests,
did not issue any of the prior citations produced by MSHA, and
that he was not present when those citations were issued. I
believe that Mr. Schoffstall's opinions, conclusions, and
speculations concerning the roof, ventilation, and methane
conditions which MSHA has identified as the "especially hazardous
conditions" warranting continuous section 103(i) inspections
every 5 days, are based on his review of the prior citations and
the overall mine compliance record, rather than personal
experience. Under the circumstances, I find his testimony to be
of little credible or probative value.
With regard to the alleged mine ventilation "problems,"
although Mr. Schoffstall was of the opinion that the mine
ventilation system was "borderline," he admitted that the
ventilation system under which the mine has operated has MSHA's
approval. Further, the record in this case reflects that in the
most recent past 2Äyears, the operator has been cited only two
times for violations of the ventilation plan requirements of
section 75.316, because of some missing stoppings, and the
violations were timely abated.
With regard to the air ventilation requirements of section
75.301, Mr. Schoffstall confirmed that the last time he was in
the mine to discuss some temporary stoppings, he found that the
operator was meeting the minimum air ventilation requirements of
the law (Tr. 66), and that during MSHA's recent review of the
operator's ventilation plans covering developing and anticipated
development areas, MSHA has
Page 28
~2153
approved the minimum requirements of 3,000 cubic feet of air a
minute at the working face and 5,000 cubic feet of air a minute
at the last open crosscut (Tr. 68). While it is true that the
operator has received six citations in the past 2 years for
violations of section 75.301, all of the cited conditions were
timely abated, and in one instance, the operator immediately
corrected the conditions, and in another, MSHA vacated the
citation.
In view of all of the forgoing circumstances, and absent any
other credible or probative testimony, I cannot conclude that
MSHA has established that the mine ventilation system constitutes
an "especially hazardous condition" warranting continuous MSHA
inspections every 5 days pursuant to section 103(i) of the Act.
Mr. Schoffstall admitted that any such ventilation monitoring may
be accomplished by MSHA through its regular and follow-up
inspections independent of section 103(i) (Tr. 69, 72). Although
Mr. Schoffstall was of the opinion that the mine ventilation
system is "borderline" and "inconsistent," there is no evidence
that the operator has consistently violated its approved plan. If
MSHA believes that this is the case, then it should seriously
reflect on why it has continued to approve the operator's plans
in the face of what it believes to be borderline and inconsistent
conduct on the part of the operator.
With regard to the alleged adverse roof conditions in the
mine, apart from the abated citations which have been issued for
violations of section 75.200, I find no evidence that the
operator has otherwise consistently failed to adhere to the
requirements of its approved roof-control plan. Mr. Schoffstall
confirmed that the operator inherited some problems when he took
over the mine, and that some of the roof problems in the
development areas are inherent to the present natural roof
conditions in the mine. However, Mr. Schoffstall confirmed that
the operator has constantly timbered and re-timbered mine areas
where the roof is taking weight. He alluded to a recent unplanned
roof fall which did not result in any injuries, and he confirmed
that the operator addressed that problem by developing a new area
to go around the fall, and establishing a new escapeway from that
area (Tr. 64).
With regard to the operator's planned development in an area
where there is impounded water, Mr. Schoffstall confirmed that
when the mining cycle approaches to within 200 feet of the
uncharted workings, the operator must start drilling in advance
to locate the water. However, there is no evidence that the
operator will not perform the advance work required by MSHA's
regulations, and Mr. Schoffstall admitted that any
Page 29
~2154
such requirements are independent of section 103(i), and that
this situation would be addressed by MSHA by means of a special
investigation to insure that proper procedures are followed (Tr.
75).
With regard to the four prior escapeway citations for
violations of section 75.1704, I take note of the fact that three
of the citations were timely abated, one was a non-S & S
citation, and the abatement time for the remaining citation was
extended by MSHA for over a year and a half. Mr. Schoffstall
expressed some concern that a roof fall could block an escapeway,
and MSHA's pretrial discovery summary pointed out that a recent
unplanned fall left the escapeway impassable. However, the fact
is that the operator immediately addressed and abated the problem
by mining around the fall and providing another escape route.
Although one may agree that a roof fall at an escapeway may
prevent a miner from exiting the mine by that particular route,
unless it can be shown that an operator regularly is out of
compliance with section 75.1704, or has consistently allowed such
conditions to exist to the point where it becomes an ongoing
hazard in the mine, I cannot conclude that isolated and sporadic
escapeway citations which are timely abated constitutes an
"especially hazardous condition" warranting inspections every 5
days.
In view of the foregoing, I cannot conclude that MSHA has
established that the escapeways, roof conditions, and the
projected future development which may approach some impounded
water constitute "especially hazardous conditions" warranting
continuous MSHA inspections every 5 days pursuant to section
103(i).
As previously noted, MSHA's guideline published in the 1982
Inspector's Manual, states that inspections conducted pursuant to
section 103(i) of the Act should be made with respect to the
hazard(s) that caused the mine to be placed in this category. Mr.
Schoffstall confirmed that two other mines in his district are on
section 103(i) 5Äday inspection cycles because of water
impoundment problems, which he considered to be a readily
identifiable ongoing hazard (Tr. 55). I assume that once the
water problem is cured, those mines will be removed from their
section 103(i) status. With regard to the other mine operator
whose mine is in close proximity to Mr. Rothermel's, and which
was on a section 103(i) status for 7 years, because of a methane
ignition or explosion, Mr. Schoffstall confirmed that it has been
removed because of improvements in the air ventilation system and
a decrease in the amount of methane liberated at the face.
Page 30
~2155
On the facts of this case, MSHA has suggested that the "other
especially hazardous conditions" which are present in the mine,
and which authorizes it to continue to inspect the mine every 5
days pursuant to section 103(i), include not only ventilation
problems, but problems with roof control, escapeways, and a
potential future water impoundment problem. However, the basis
for placing the mine on the 5Äday inspection cycle in the first
place was the fact that a methane ignition or explosion occurred
on February 10, 1982. MSHA concluded that the ignition was the
result of improper blasting procedures, and the failure to follow
proper ventilation practices. The improper ventilation practices
were identified as inadequate ventilation controls such as
overcasts, regulators, and stoppings, and the failure to properly
check for methane before blasting. I find nothing in MSHA's
investigative report to suggest that any adverse roof conditions,
or the lack of inadequate escapeways, played any role in the
accident. As a matter of fact, item #26, at page 5 of the report
reflects that after the ignition, all employees were out of the
mine in 10 minutes.
On the facts of this case, there is no question that the
mine was inititally placed on a section 103(i) 5Äday inspection
cycle because of the methane ignition which occurred on February
10, 1982. MSHA has tacitly admitted that were it not for that
incident, the mine would not be on a section 103(i) inspection
cycle. Mr. Schoffstall admitted that the mine was not placed in
that category because of any other "especially hazardous
conditions," and while he conceded that MSHA could place the mine
in such a "spot inspection hazard" category, it has not done so
in this case because "he was already in a section 103(i)
situation" (Tr. 95). Mr. Schoffstall was of the opinion that MSHA
"was locked into" that situation and stated that "we can't quit
no more than the operator can quit for the five year period" (Tr.
107Ä108). Mr. Schoffstall was of the opinion that the 5 year
reference in section 103(i) is "automatic," and MSHA's counsel
was of the view that once an operator is placed in that position,
the Act mandates that MSHA inspect the mine every 5 working days.
When asked how long the operator would remain in that inspection
cycle, MSHA's counsel responded "until it is taken off," and Mr.
Schoffstall responded "for five years" (Tr. 108). Although I
consider these responses to be contradictory, MSHA's counsel took
the position that 5 years is only a minimum time frame, and that
MSHA could continue to inspect the mine every 5 days beyond 5
years until it was satisfied that it no longer posed a potential
hazard for a methane explosion.
Page 31
~2156
Mr. Schoffstall conceded that his concerns with the mine deal
with potential hazards (Tr. 55). He expressed concern over
possible blockage of escapeways and restriction of ventilation
due to roof falls (Tr. 64). He also expressed concern that given
the present mine ventilation system, there may be insufficient
quantities of air available at certain locations which are
scheduled for development, and whether or not the ventilations
system may be sufficient to carry away methane which may be
encountered. Yet, the mine continues to operate under MSHA
approved roof-control and ventilation plans.
Mr. Schoffstall conceded that roof control or ventilation
control problems could develop in a mine at any time due to
unknown facts and uncertainties, particularly in this mine which
he claims has a "borderline" ventilation system. In my view, Mr.
Schoffstall's concerns are based on speculative possibilities of
events which may or may not occur, rather than on any credible
evidence establishing the existence of any definitive "especially
hazardous conditions" in the mine. All mines pose a potential for
hazards connected with restricted ventilation and escapeways due
to roof falls, and inadequate air ventilation due to some
breakdown in the ventilation system. However, I find nothing in
section 103(i) which authorizes MSHA to keep a mine on a
continuous 5Äday inspection cycle because of potential problems,
subsequent isolated abated violative conditions which were not
directly related to the event which initially placed in the mine
in a section 103(i) posture, or MSHA's subjective undocumented
judgments that the mine poses a "problem."
During closing arguments in this case, MSHA asserted that
because of the multitude of hazards that are presented in the
mining industry, especially in cases of small operators such as
the one in this case, MSHA has discretion to maintain the
operator here on a protracted 5Äday inspection cycle and it need
not wait until another methane explosion has occurred in the
mine. Recognizing the fact that its perceived discretion may not
be exercised in an unreasonable or illegal manner, and that it
must establish good cause for keeping the operator on a
continuous ongoing 5Äday inspection cycle, MSHA concludes that it
has established such good cause and has exercised its discretion
in a reasonable manner. I disagree. I conclude and find that the
only thing that MSHA has established is that the mine experienced
a methane or gas explosion on February 10, 1982, which resulted
in serious injuries to miners, which in turn triggered the
placement of the mine on a 5 day section 103(i) inspection cycle.
Page 32
~2157
I further conclude and find that MSHA has produced no credible or
probative evidence to establish that the mine liberates excessive
quantities of methane or other explosive gases during its
operations, or that there presently exists in the mine "other
especially hazardous conditions" justifying or warranting the
continuation of the mine on a section 103(i) 5Äday inspection
cycle for as long as this particular operator stays in business.
In short, I conclude and find that MSHA has failed to establish
good cause or reasons for maintaining the operator in such a
position. I further conclude and find that on the facts of this
case, MSHA's unreasonable insistence on inspecting the mine every
5 days supports the operator's contention that such inspections
have interfered with its right to operate its mine without undue
interference from MSHA. I believe that MSHA has other available
enforcement means at its disposal to insure that the operator
here stays in compliance with its safety standards short of what
I believe to be a rather arbitrary application of the
requirements of section 103(i) of the Act.
In view of the foregoing findings and conclusions, I
conclude that the operator's refusal to allow the MSHA inspectors
entry to his mine for the purpose of conducting section 103(i)
inspections was justified and does not constitute a violation of
section 103(a) of the Act. Accordingly, the contested citations
and order served on the operator ARE VACATED.
ORDER
IT IS ORDERED THAT:
1. Section 104(a) Citation Nos. 2840770 and 2740772,
and section 104(b) Order No. 2840771, ARE VACATED.
2. MSHA's proposals for assessment of civil penalties
ARE DENIED AND DISMISSED.
George A. Koutras
Administrative Law Judge
Find out what applies today
This decision wasn't the final word: the Commission reviewed the case, and its decision is the one that controls. Ezel starts from the controlling decision and answers your specific situation under current law, with citations.
Opens in Ezel Pro. Every answer cites the authority it relies on.