Jim Walter Resources, Inc.

Plain-English summary

Jim Walter Resources operated a gassy underground coal mine in Alabama. The approved ventilation plan required line brattice to remain within 10 feet of all faces, but an inspection found it 15 feet from the face in one entry. Judge James A. Broderick held that the plan covered idle faces as well as the face most recently mined and found a violation of 30 C.F.R. § 75.316. He affirmed the citation, found the violation moderately serious and not negligent on the record, and set the civil penalty at $100.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.316 and 30 C.F.R. § 75.302-1(a)
• Outcome: Citation No. 2363602 was affirmed, with a $100 civil penalty.
• Key point: An approved mine-specific ventilation plan can require line brattice to remain within a stated distance of idle faces when its language covers all faces.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) v. JIM WALTER RESOURCES
DDATE:
19850927
TTEXT:

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

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. SE 85-42
PETITIONER A.C. No. 01-01247-03631

      v.                           No. 4 Mine

JIM WALTER RESOURCES, INC.,
RESPONDENT

                             DECISION

Appearances: George D. Palmer, Esq., Office of the Solicitor,
U.S. Department of Labor, Birmingham,
Alabama, for Petitioner;
Harold D. Rice, Esq., and R. Stanley Morrow,
Esq., Birmingham, Alabama, for Respondent.

Before: Judge Broderick

STATEMENT OF THE CASE

 The Secretary seeks a civil penalty for an alleged violation

by Respondent of its approved ventilation plan and therefore of
30 C.F.R. 75.316. Pursuant to notice the case was heard in
Birmingham, Alabama on June 18, 1985. Terry Gaither and William
H. Meadows testified on behalf of the Secretary. Eddie Nicholson
and John Stephenson testified on behalf of the Operator. Both
parties have filed post hearing briefs. I have considered the
entire record and the contentions of the parties and make the
following decision.

FINDINGS OF FACT

 1. Respondent is the owner and operator of an underground

coal mine in Tuscaloosa County, Alabama, known as the No. 4 Mine.

 2. The subject mine has been classified as a gassy mine. It

liberates almost 30 million cubic feet of methane in a 24 hour
period. The face liberation of methane while cutting is in excess
of 400 cubic feet a minute. The mine has been described as one of
the more gassy coal mines in the country:

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"It would rate in the top 10 percent." (Tr. 69) It is a deep
mine: the shaft is approximately 2000 feet deep.

 3. The approved ventilation, methane and dust control plan

was changed in 1972 for Respondent's mines to include the
following language:

     Line brattice shall be maintained to within 10 feet of
     the area of deepest penetration of all faces in all
     working places inby the last open crosscut at all times
     except while roof bolting and servicing as stated in
     the plan.

This language was included in the plan which was in effect for
the subject mine since it was opened, and was in effect in
November 1984.

 4. On November 13, 1984, Federal Coal Mine Inspector Terry

Gaither issued a citation charging a violation of 30 C.F.R.
75.316 because the line brattice in the No. 3 entry on the No. 4
section was 15 feet outby the entry face.

 5. On November 13, 1984, four entries were being driven in

the section in question. The No. 3 and 4 entries, and perhaps all
four entries, had been driven beyond the point where a crosscut
right (between entries 3 and 4) was begun. The line curtain was
within ten feet of the face in the crosscut right (it was
approximately 5 feet from the face when the citation was issued);
however the line curtain in the No. 3 entry was fifteen feet from
the face. Mining was not being performed in either the entry or
the crosscut at the time the citation was issued, but it had been
most recently done in the crosscut right.

 6. A methane test was taken in the corner of the No. 3 entry

before the citation was issued. It showed less than 1 percent
methane.

 7. Mining had last been performed in the No. 3 entry on the

day prior to the issuance of the citation.

 8. Before mining would be resumed in the No. 3 entry, the

crosscut right would have to be completed to the yield pillar and
the crosscut left would have to be turned and completed. This
would normally take 2 to 3 days.

 9. Prior to 1984, no citations were issued at the subject

mine for alleged violations similar to the one involved here--that
is, for failure to maintain line

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brattice to within 10 feet of an entry face, after a crosscut was
turned.

REGULATORY PROVISIONS

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

      75.316 Ventilation system and methane and dust
     control plan.

                         [STATUTORY PROVISIONS]

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

30 C.F.R. § 75.2(g) provides as follows:

     (g)(1) "Working face" means any place in a coal mine in
     which work of extracting coal from its natural deposit
     in the earth is performed during the mining cycle,

     (2) "Working place" means the area of a coal mine inby
     the last open crosscut,

     (3) "Working section" means all areas of the coal mine
     from the loading point of the section to and including
     the working faces,

     (4) "Active workings" means any place in a coal mine
     where miners are normally required to work or travel;

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30 C.F.R. § 75.302-1(a) provides as follows:

     (a) Line brattice or any other approved device used to
     provide ventilation to the working face from which coal
     is being cut, mined or loaded and other working faces
     so designated by the Coal Mine Safety Manager, in the
     approved ventilation plan, shall be installed at a
     distance no greater than 10 feet from the area of
     deepest penetration to which any portion of the face
     has been advanced unless a greater distance is approved
     by the Coal Mine Safety District Manager of the area in
     which the mine is located.

ISSUE

 Whether Respondent is obliged to maintain line curtain

within 10 feet of all faces, or only the face from which coal is
being extracted or was most recently extracted?

CONCLUSIONS OF LAW

 1. Respondent is subject to the provisions of the Federal

Mine Safety and Health Act of 1977 in the operation of the
subject mine, and I have jurisdiction over the parties and
subject matter of this proceeding.

 2. Section 75.316 of Title 30 C.F.R. requires that a mine

operator adopt and have approved a ventilation system and methane
and dust control plan suitable to the conditions and the mining
system of the coal mine. When such a plan has been adopted and
approved, the section requires the operator to comply with its
provisions. Mid-Continent Coal and Coke Company, 3 FMSHRC 2502
(1981).

 3. The approved ventilation, methane and dust control plan

in effect at the subject mine on November 13, 1984 required that
line curtains be maintained within 10 feet of all faces in all
working places. A "coal face" is defined in A Dictionary of
Mining, Mineral and Related Terms, U.S. Department of the
Interior (1968) as

     a. The mining face from which coal is extracted by
     longwall, room, or narrow stall system. Nelson. b. A
     working place in a colliery where coal is hewn, won,
     got, gotten from the exposed face of a seam by face
     workers. Pryor, 3.

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This definition obviously is not limited to the time during which
coal is actually being extracted. It includes working faces as
well as faces from which coal has been or will be extracted. The
language of the approved plan is all inclusive and clearly
includes entry No. 3 cited in this case. The obvious purpose of
the changes made in 1972 was to go beyond the requirement of 30
C.F.R. 75.302-1(a) that line brattice be installed no more than
10 feet from active working faces. All faces, including idle
faces, are covered by the plan. The reason for their inclusions
is the unusually high methane liberation in the mine. Respondent
argues that the requirement is onerous and that it has not been
enforced by MSHA prior to 1984. Neither of these arguments can
affect the interpretation of the wording of the plan, and I
reject them.

 4. I conclude that Respondent was in violation of its

approved ventilation, methane and dust control plan on November
13, 1984 in failing to maintain line curtain within 10 feet of
the face in entry No. 3 on the No. 4 section in the subject mine.
The violation was abated in good faith.

 5. Respondent is a medium sized operator and has an average

history of prior violations. The imposition of a penalty will
have no affect on Respondent's ability to contiue in business.

 6. I conclude that the violation cited was moderately

serious. I am unable to conclude from the evidence whether the
violation resulted from Respondent's negligence. Therefore, I
conclude that it did not.

 7. Based on the criteria in section 110(i) of the Act, I

conclude that an appropriate penalty for the violation is §100.

                            ORDER

 Based on the above findings of fact and conclusions of law,

Respondent is ORDERED to pay the sum of §100 within 30 days of
the date of this decision as a civil penalty for the violation
found herein.

                            James A. Broderick
                            Administrative Law Judge