BethEnergy Mines, Inc.

Plain-English summary

MSHA cited BethEnergy Mines after a sudden release of methane at the face area of a longwall section, alleging violations involving ventilation and the mine's ventilation plan. The ALJ vacated the ventilation-plan citation but found a violation of the ventilation standard, and BethEnergy petitioned for Commission review. The Secretary later changed her position, moved to vacate the remaining citation and its civil penalty, and BethEnergy did not object. The Commission granted the motion, vacated the citation and assessed civil penalty, and dismissed the proceeding without expressing a view on the merits of the ALJ's ruling or the Secretary's new interpretation.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.301 and 75.316
• Outcome: The remaining citation and associated civil penalty were vacated, and the proceeding was dismissed.
• Key point: The Commission granted the Secretary's unopposed motion to terminate the case and expressly declined to decide the underlying ventilation issue.

Full text (FMSHRC public release)

CCASE:
MSHA V. BETHENERGY MINES
DDATE:
19900910
TTEXT:

           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, D.C.
                           September 10, 1990

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

v. Docket No. PENN 89-222
BETHENERGY MINES, INC.

BEFORE: Backley, Acting Chairman; Doyle and Nelson, Commissioners

                ORDER

BY THE COMMISSION:

In this matter pending on review, arising under the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (1988) ("Mine Act" or
"Act"), counsel for the Secretary of Labor has filed a motion requesting
vacation of the citation and its associated civil penalty assessment and
dismissal of the proceeding. BethEnergy Mines, Inc. ("BethEnergy") has
filed a response indicating that it has no objection to the granting of the
Secretary's motion. For the following reasons, we grant the motion.

On March 14, 1989, an inspector of the Department of Labor's Mine

Safety and Health Administration ("MSHA") issued BethEnergy two citations
alleging violations of 30 C.F.R. 75.301 and 75.316 in connection with a
sudden release of methane at the face area of a longwall section. Section
75.301, in part, requires that a sufficient volume and velocity of air be
ventilated in active working to dilute and render harmless dangerous or
harmful gases, such as methane. 1/ Section

1/ Section 75.301, which repeats the statutory standard at 30 U.S.C.
83(b), provides in pertinent part

     All active workings shall be ventilated by a
     current of air containing not less than

Page 2

19.5 volume per centum of oxygen, not more
than 0.5 volume per centum of carbon dioxide,
and no harmful quantities of other noxious or
poisonous gases; and the volume and velocity
of the current of air shall be sufficient to
dilute, render harmless, and to carry

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75.316 requires mine operators to adopt ventilation system and methane
and dust control plans approved by the Secretary. The citations alleged
that the current of ventilating air at the face was insufficient to dilute
the methane, in violation of section 75.301, and that BethEnergy was not
complying with certain requirements of its ventilation plan. BethEnergy
contested the citations, the Secretary proposed civil penalties for the
alleged violations, and the matter proceeded to hearing before Commission
Administrative Law Judge Avram Weisberger.

 In his decision, the judge vacated the citation alleging a violation

of section 75.316 (12 FMSHRC 975, 981-85 (May 1990)(ALJ)), and no issue
pertaining to that aspect of the judge's decision is before us on review.
With respect to the alleged violation of section 75.301 (n.1 supra), the
judge noted BethEnergy's position that, at the time of the citations, it
was meeting or exceeding the minimum air flow required at the last open
crosscut by the second sentence of section 75.301, which requires an
airflow of 9,000 cubic feet a minute ("C.F.M."). BethEnergy argued that it
could not be cited under the first sentence of section 75.301 for failure
to provide adequate ventilation to dilute the sudden release of methane if
it were exceeding the airflow set forth in the second sentence. 12 FMSHRC
at 979. The judge rejected this position, concluding that an airflow
meeting or exceeding the 9,000 C.F.M. requirement does not comply with the
first sentence of section 75.301 if it is nevertheless insufficient to
dilute and render harmless dangerous or harmful gases. Id. We granted
BethEnergy's subsequent petition for discretionary review.

After the submission of BethEnergy's brief on review, the Secretary

filed with the Commission her present Motion to Vacate Citation and to
Dismiss Proceeding ("Motion"). In this motion, the Secretary notes that
she argued to the judge, and the judge held, that "Section 75.301 requires
that harmful concentrations of methane not occur in the first instance
[and] the second sentence of that section sets forth the minimum means
which in all events must be followed in seeking to achieve this result...."
Motion at 3 (emphasis in original). However, the Secretary states that,
"upon further review," MSHA has determined that its position before the
judge "is not its preferred interpretation in the circumstances present in
this case, and is not consistent with its historic and ongoing enforcement
position pertaining

   away, flammable, explosive, noxious, and harmful gases,
   and dust,

and smoke and explosive fumes. The minimum quantity of air reaching the
last open crosscut in any pair or set of developing entries and the last
open crosscut in any pair or set of rooms shall be 9,000 cubic feet a
minute, and the minimum quantity of air reaching the intake end of a pillar
line shall be 9,000 cubic feet a minute. The minimum quantity of air in

Page 4

any coal mine reaching each working face shall be 3,000 cubic feet a
minute. The authorized representative of the Secretary may require in any
coal mine a greater quantity and velocity of air when he finds it necessary
to protect the health or safety of miners.

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to the liberation of unexpected quantities of methane in a working place."
Motion at 4. The Secretary further notes her "recognition that the
liberation of methane is a natural phenomenon which occurs when coal is
cut from its natural deposit, and that such occurrences are not readily
predictable." Id. Based on the foregoing considerations, the Secretary
restates her legal position in this matter as follows:

  It is, therefore, the Secretary's position that
  compliance with the ventilation quantity requirements
  of section 75.301, as implemented through an operator's
  approved ventilation plan, together with the remedial
  requirements of sections 75.308 and 75.313, [2/]
  constitute the appropriate enforcement mechanisms with
  respect to unexpected methane liberation in working
  places (i.e., areas inby the last open crosscut; see
  30 C.F.R. 75.2(g)(2)). Thus, a violation of the first
  sentence of section 75.301, as cited ... below, does
  not occur when methane unexpectedly is encountered in
  excessive concentrations in working places. Applying
  this interpretation to the facts in this case, a
  violation of 30 C.F.R. 75.301 did not occur.

Id. (emphasis in original).

In light of this position, the Secretary now moves for vacation of

the citation and dismissal of the proceeding. After receipt of the
Secretary's motion, the Commission issued an order on August 8, 1990,
directing BethEnergy to file a written response to the motion. On
August 17, 1990, the Commission received BethEnergy's Response to Motion
to Vacate ("Response"), indicating that it does not object to vacation of
the citation and dismissal of the proceeding. BethEnergy notes in its
response, however, that its position "does not, under any circumstances
constitute an admission by BethEnergy of the validity of the Secretary's
assertions set forth in its Motion to Vacate." Response at 2.

 As we have held, our "responsibility under the Mine Act is to ensure

that a contested case is terminated, or continued, in accordance with the
Act." Youghiogheny & Ohio Coal Co., 7 FMSHRC 200, 203 (February 1985). A
motion by the Secretary to vacate a citation or withdrawal order and to
dismiss a proceeding will be granted if "adequate reasons" to do so are
present. Southern Ohio Coal Co., 10 FMSHRC 1669, 1670 (December 1988)
("SOCCO"), and authorities cited. Here, the Secretary has disclaimed
reliance on the legal position that she advocated successfully before the
judge. Instead, the Secretary states that, applying her "preferred
interpretation in the circumstances present in this case," it now appears

Page 6

to her that the alleged violation

2/ 30 C.F.R. 75.308 specifies the remedial actions to be taken when excess
concentrations of methane occur in working places, and 30 C.F.R. 75.313
provides for the installation of approved methane monitors on specified
kinds of mining equipment.

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of section 75.301 did not occur. As the prosecutor responsible for
enforcement of the Act, the Secretary has concluded that she should seek
dismissal of this proceeding, and that prosecutory determination is
entitled to special weight. SOCCO, 10 FMSHRC at 1670. The operator has
not objected to the granting of the Secretary's motion and will not be
prejudiced by the requested action. No reason otherwise appears on this
record as to why the motion should not be granted.

The Commission expresses no view as to the merits of the judge s

determination that BethEnergy violated section 75.301 or the Secretary's
present interpretation of that standard as applied to the circumstances
involved in this case.

Accordingly, upon consideration of the Secretary's motion and the

operator's response, the Secretary's motion is granted. The citation and
assessed civil penalty are vacated. The Commission's direction for review
is vacated and this proceeding is dismissed. 3/

              Richard V. Backley, Acting Chairman

              Joyce A. Doyle, Commissioner

                L. Clair Nelson, Commissioner

3/ Pursuant to section 113(c) of the Mine Act, 30 U.S.C. 823(c), we have
designated ourselves a panel of three Commissioners to exercise the powers
of the Commission in this matter.