Rushton Mining Company

Plain-English summary

Rushton Mining designated an escapeway from part of its underground mine that took a longer, indirect route to the nearest shaft. Judge Avram Weisberger held that the designated route did not follow the safest direct practical route required by 30 C.F.R. § 75.1704-2(a), while finding that the Secretary did not prove the violation was significant and substantial. The citation was modified to non-S&S and affirmed in all other respects.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1704-2(a) and 75.1707
• Outcome: Citation No. 2883649 was modified to non-S&S and affirmed in all other respects.
• Key point: An escapeway must follow the safest direct practical route to a suitable mine opening, and a longer route that doubles back can violate that requirement.

Full text (FMSHRC public release)

CCASE:
RUSHTON MINING V. SOL
DDATE:
19880606
TTEXT:

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                                FMSHRC-FCV
                               JUNE 6, 1988

RUSHTON MINING COMPANY, CONTEST PROCEEDING
Contestant
v. Docket No. PENN 88-99-R
Citation No. 2883649; 12/8/87
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH Rushton Mine
ADMINISTRATION (MSHA), Mine ID 36-00856
Respondent

                         DECISION

Appearances: Joseph Yuhas, Esq., Joseph T. Kosek, Esq., Rushton
Mining Company, Ebensburg, Pennsylvania, for the
Contestant; B. Anne Gwynn, Esq., Office of the
Solicitor, U. S. Department of Labor, Philadelphia,
Pennsylvania, for the Secretary.

Before: Judge Weisberger

Statement of the Case

 On December 21, 1987, Rushton Mining Company (Contestant) filed a

Notice of Contest contesting Citation No. 2883649 which had been
issued on December 8, 1987. The Secretary (Respondent) filed its Answer
on January 11, 1988, along with a Motion for Continuance. On January 21,
1988, a Prehearing Order was issued directing the Parties to inform the
undersigned on or before February 1, 1988, if the Notice Contest will be
withdrawn in view of the Commission's decision in Secretary v. Quinland
Coals, Inc., 9 FMSHRC 1614 (Sept. 1987). It further directed the Parties,
if the Notice of Contest will not be withdrawn, to confer on or before
February 1, 1988, to attempt to settle this matter, and, in the
alternative, to stipulate as to facts and issues concerning which there
is no agreement, and complete discovery on or before February 1, 1988.
On February 2, 1988, Respondent filed a Motion for Relief to File
Interrogatories. On February 8, 1988, in a telephone conference call
initiated by the undersigned, with attorneys for both Parties, Contestant
indicated it did not have any objection to Respondent's Motion for Relief
to File Interrogatories. The Attorneys indicated that they would be
available the week of February 22, for trial of this matter.

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Pursuant to notice, the case was heard on February 24, 1988, in
Hollidaysburg, Pennsylvania. Donald J. Klemick and Albert G. Gobert
testified for the Respondent. Raymond J. Roeder, Horace C. Pysher,
Jerome F. Hewitt, and Chester Switala testified for the Contestant.

 Contestant filed its Proposed Findings of Fact and Conclusions of

Law and Brief on April 20, 1988. The Respondent filed its Post Trial
Findings of Fact, Conclusions of Law and Memorandum on April 25, 1988.
Contestant filed a Reply Brief on April 29, 1988. Respondent did not
file any Reply Brief.

Regulation

   30 C.F.R. $ 75.1704-2(a) provides as follows:

             In mines and working sections opened on and
         after January 1, 1974, all travelable passageways
         designated as escapeways in accordance with $ 75.1704
         shall be located to follow, as determined by an
         authorized representative of the Secretary, the safest
         direct practical route to the nearest mine opening
         suitable for the safe evacuation of miners. Escapeways
         from working sections may be located through existing
         entries, rooms, or crosscuts. (Emphasis added.)

Citation

   Citation 2883649 contains the following language:

         The designated intake escapeway from the 2N-3 002
         section to the intake shaft escape facility was not
         located to follow the safest, direct practical route.
         The escapeway was designated outby from the section
         to station 7737, through crosscuts to station 7792,
         then inby to the shaft a distance of about 2100 feet.
         The safest, direct practical route would be from the
         section traveling in a direct route to the shaft of
         about 500 feet.

Stipulations

   At the hearing the following stipulations were entered into:

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1. This Administrative Law Judge has jurisdiction over this
proceeding. Both the Rushton Mine and Rushton Mining Company are subject
to the jurisdiction of the Federal Mine Safety and Health Act of 1977.

 2. Pennsylvania Mines Corporation is the parent corporation of

Rushton Mining Company. Rushton Mining Company operates one mine,
Rushton Mine.

 3. The subject citations were properly served by a duly authorized

representative of the Secretary of Labor upon an agent of the Contestant at
the dates, times and places stated therein, and may be admitted into
evidence for the purpose of establishing their issuance, and not for the
truthfulness or relevance of any statements asserted therein.

 4. The assessment of a civil penalty in this proceeding will not

affect Contestant's ability to continue in business.

 5. The annual production of Rushton Mine is six hundred seventy-six

thousand two hundred and thirty-two tons.

 6. The annual production of the Company is one million three hundred

and eighty-one thousand three hundred and ten tons.

 7.   The Rushton Mine employs approximately two hundred and fifty-seven

miners.

 8. The Contestant demonstrated good faith in the abatement of the

citation.

 9. Rushton Mine was assessed two hundred sixty-nine violations over

five hundred and eighty-three inspection days during the twenty-four months
proceeding the issuance of the subject citation.

 10. The Parties stipulate to the authenticity of their exhibits,

but not to their relevance nor the truth of the matters asserted therein.
(Tr. 5-6.)

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Findings of Fact and Discussion

                          I.

  Based upon the Parties' stipulations, I conclude that I have

jurisdiction to hear and decide this case, and that the Contestant is
subject to the provisions of the Federal Mine Safety and Health Act of
1977 and regulations promulgated thereunder.

                          II.

  Contestant at the 2N-3 section of its Rushton Mine designated an

escapeway, hereinafter called the Rushton escapeway, to serve miners
working in rooms 11 through 15. This escapeway runs in a northeasterly
direction, makes a 90 degree turn to go in a northwest direction,
makes a 90 degree turn to go in a southwest direction, makes a 90 degree
turn to go in a northwest direction, and makes a 90 degree turn to go
in a southwest direction to the No. 2 shaft which is the nearest shaft
for exiting from the 2N-3 Section. The length of this escapeway is
approximately 1700 feet. According to 40 C.F.R. $ 75.1704-2(a),
escapeways shall follow ". . . the safest direct practical route to
the nearest mine opening suitable for the safe evacuation of miners."
(Emphasis added.) Inasmuch as this escapeway heads in a northeasterly
direction for 12 crosscuts turns left, and then subsequently returns in a
southwesterly direction, parallel to the direction in which it started,
and runs for approximately 15 crosscuts to the mine opening at shaft
No. 2, it clearly can not be found to be a "direct" route. To find
otherwise would violate the clear.meaning of the word "direct" as defined
in Webster's New Collegiate Dictionary, (1979 editions) as: "la:
proceeding from one point to another in time or space without deviation
or interruption: straight b: proceeding by the shortest way . . . " As
such, it must be found that Contestant herein violated section 75.1704
2(a), supra.

                              III

   Contestant, in abatement, upon consultation with MSHA, designated

the MSHA escapeway to be the escapeway for the 2N-3 Section. The MSHA
escapeway runs for approximately 500 feet to the No. 2 shaft, and contains
only one jog and this jog is less than 90 degrees. The MSHA escapeway has
signs and was not noted to have any problems with its roof or floor.

   In essence, Contestant maintains that the Rushton escapeway is the

safest route to the nearest mine opening. The Rushton escapeway is located
in an intake entry. In contrast, the MSHA escapeway depends for air upon
leakage. in a hole around a door located in the escapeway. The volume of
air entering the MSHA escapeway, through the closed door, was measured by
Donald J.

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Klemick, a MSHA Coal Mine Inspector, at approximately 1100 cubic feet.
Klemick and Raymond G. Roeder, a professional engineer and Contestant's
Mine Manager, disagreed as to whether the 1100 cubic feet a minute measured
was enough air for the escapeway. However, although the Rushton escapeway
would clearly have more air, I find that the MSHA escapeway satisfies the
requirement of 30 C.F.R. $ 75.1707, inasmuch as it is ventilated with
intake air.

 Roeder and Horace C. Pysher, Contestant's Section Foreman and Safety

Inspector Trainer, at the date the Citation was issued, testified, in
essence, that in the event the door in the MSHA escapeway would be left
open as the result of miners leaving in haste, this would have a
substantial impact upon two other sections of the mine that depend upon
the intake air from shaft No. 2. Klemick and Pysher explained that with
the door in the MSHA escapeway open, there will be much less resistance to
intake air from the No. 2 shaft which is in very close proximity and which
would reduce the flow to the other two sections. However, neither Klemick
nor Pysher nor any other witness stated with specificity the quantity of
air that will be lost to the other sections as a consequence of a door
being left open in the MSHA escapeway. I thus find that there was no basis
to conclude that, with the MSHA escapeway door left open in an emergency,
there would be either a substantial or significant reduction of air in
other sections.

 Respondent's witnesses, including miners Jerome F. Hewitt and

Chester Switala, the UMW Mine Safety Committee Chairman and Mine UMW
Safety Committeemen respectively, testified, in essence, that in all
Contestant's other escapeways, miners are trained to escape in an outby
direction. Thus, in their opinion, confusion would result at the MSHA
escapeway which requires miners to escape in an inby direction. In their
opinion, this problem was further exacerbated by the fact that miners are
not assigned to 2N-3 section on a regular basis, and are sent there only
when work is not feasible in their original sections. I find that the
record is devoid of any empirical data to support this opinion testimony
and accordingly find it to be speculative.

 Roeder indicated that the MSHA escapeway is unsafe as it is routed

through the working sections 11 to 15, which contain various equipment
and where there is the potential for a fire. He thus opined that a miner
would have to go through the smoke to get to the escapeway. In contrast,
Roeder indicated that with the Rushton escapeway one would enter the air
intake entry and thus escape from the smoke. However, as brought out in
cross-examination, it is clear that a miner working in a room in this

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section would similarly have to traverse any working rooms that are
positioned between his location and the Rushton escapeway, in order
to enter the Rushton escapeway. It thus would appear that the same
hazards of using the MSHA escapeway would apply equally to the use of
the Rushton escapeway.

 In addition, Roeder indicated that the Rushton escapeway is the

shortest of all the escapeways at Contestant's mine and that Contestant
has never been cited for the length of its escapeways, including those
that are over 10,000 feet. Also, Pysher has noted that due to the
proximity of the No. 2 shaft, the door in the MSHA escapeway would be
difficult to open while carrying a stretcher, due to the pressure on
the door. He also opined that the 6 inch pipe placed below the roof,
which is 5 feet above the floor, would unduly impede the progress of a
stretcher-bearer. Also, Switala asserted that the Rushton escapeway
provides more alternative avenues of escape.

 I conclude that the Rushton escapeway was violative of section

75.1704-2(a), as it was not a direct route to the shaft. In the event
a hazard necessitating escape from the section, it is clear that an
indirect route containing three 90 degree jogs and doubling back on
itself, is a greater impediment to a speedy exit from a dangerous
situation as opposed to the MSHA escapeway, which is direct and less
than one third of the distance of the Rushton escapeway. As such, it
must also be considered to be the "safest" within the purview of
section 1704-2(a), supra.

                         IV.

 Klemick testified that the use of the Rushton escapeway, as it is

longer than the MSHA one, could result in a fatality by a miner being
exposed to smoke or could result in falls occasioned by the rush to leave
a dangerous situation. However, in essence, he indicated that in the
absence of specific information, as to a specific hazard, it would be
difficult for him to tell what would occur if one would have to use the
Rushton escapeway. As such, I must find that the Respondent has not met
its burden in establishing that the violation herein is to be considered
significant and substantial (see Mathies Coal Co. 6 FMSHRC 1 (January
1984)).

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ORDER

 Citation No. 2883649, dated December 8, 1987, is modified in that it

is found to be not significant and substantial. In all other aspects it
is affirmed.

                            Avram Weisberger
                            Administrative Law Judge

Distribution:

Joseph Yuhas, Esq., Rushton Mining Company, P. 0. Box 367, Ebensburg, PA
15931 (Certified Mail)

B. Anne Gwynn, Esq., Office of the Solicitor, U. S. Department of Labor,
Room 14480-Gateway Building, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail)