Energy West Mining Company
Energy West Mining Company (FMSHRC WEST 91-251, WEST 91-256): Several citations modified and one vacated
Apply this to your situation
This order from 1992 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
Energy West Mining Company faced civil penalty proceedings involving eight alleged violations at the Cottonwood Mine, with four enforcement documents litigated at hearing. Judge Michael A. Lasher, Jr. approved the parties' resolution of two citations, affirmed one citation, modified two others by removing significant-and-substantial findings, and vacated another citation. The order assessed a total of $1,490 in civil penalties for the violations that remained. The decision addressed conditions involving firefighting equipment, ventilation, machinery, and permissible electrical equipment.
Decision snapshot
- Cited standards: 30 C.F.R. § 75.1100-2(b), § 75.1100-3, § 75.1725(a), § 75.316, and § 75.503
- Outcome: Two citations were resolved by settlement, two were modified, one was affirmed, one was vacated, and $1,490 in penalties was assessed.
- Key point: The Judge evaluated each citation separately, removing significant-and-substantial findings where the evidence did not establish the required likelihood of serious injury.
Full text (FMSHRC public release)
FEDERAL HINE BAFETY AND HEALTH REVIEW COMMI86ION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX c303) 844-5268
SECRETARY OF LABOR, .. CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), ‘i. Docket No. WEST 91-251
.. A.C. No. 42-01944-03586
Petitioner
:
: Docket No. WEST 91-256
V . : A.C. No. 42-01944-03585
ENERGY WEST MINING COMPANY, Cottonwood Mine
Respondent
DECIGION
Appearances: Robert J. Murphy, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Thomas C. Means, Esq., Claire Brier, Esq.,
CROWELL & MORING, Washington, D.C.,
for Respondent.
Before: Judge Lasher
In these two proceedings, the Secretary of Labor (MSHA)
originally sought penalties for a total of eight alleged viola-
tions described in eight enforcement'documents (Citations and
Withdrawal Orders) pursuant to Section 110(a) of_ the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. S 820(a) 1977.
Prior to hearing, Citations numbered 3413895 (in Docket West
91-251) and 3413829 (in Docket WEST 91-256) were severed (T. 6-7)
from the subject dockets, processing thereof was stayed, and
these two Citations were placed in ancillary '*At1 dockets for
separate processing (T. 7-8) since they involved so-called
l@excessive history" questions. After this administrative action,
two Citations remained in Docket WEST 91-251 and four remained in
Docket WEST 91-256. Of the four in this last docket, two were
settled when the parties, prior to hearing, filed their written
motion for approval of an amicable resolution concerning such. I
1
This motion, which was approved on the record of
hearing (T.5-6), indicated that the violative conditions de-
scribed in the two Citations (3414063 and 3415064) were not
"reasonably likely to cause serious injury or illness" that the
"significant and Substantial 'I designations thereon should be
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Page 2
1
Four enforcement documents remained and were litigated, num-
bers 3413898 and 3414071 in Docket No. 91-251, and numbers
3414062 and 3413883 in Docket No. 91-256.
Btipulation
At the commencement of the proceedings, the parties stipu-
lated to the following:
1. Energy West is engaged in mining and selling of bitumi-
nous coal in the United States,-and its mining operations affect
interstate commerce.
2. Energy West is the owner and operator of the Cotton-
wood Mine, MSHA I.D. No. 42-01944.
3. Energy West is subject to the jurisdiction of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. S 801, &
m. (the o*Actll).
4. The Administrative Law Judge has jurisdiction in this
matter.
5. The subject Citations were properly served by duly
authorized representatives of the Secretary.upon agents of Energy
West on the dates and places stated therein; and may be admitted
into evidence for the purposes of establishing their issuance,
and not for the truthfulness or relevancy of any statements as-
serted therein.
6. The exhibits offered by Energy West and the Secretary
are stipulated to be authentic but no stipulation is made as to
their relevance of the truth of the matters asserted therein.
7. The proposed penalties will not affect Energy West's
ability to continue in business.
0. Energy West demonstrated good faith in abating the
violations.
removed, that the *'gravity I@ designation of such should be modi-
fied to "unlikely, I@ and that the proposed penalties therefor
should in such circumstances be reduced to $20 each. My bench
order approving this disposition is here AFFIRMED and appropriate
execution of such appears in the "Orderq@ at the end of this
decision.
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9. Energy West is a large mine operator with 3,317,397
tons of production in 19.89.
10. The certified copy of the MSHA Assessed Violations
History (Ex. G-l) accurately reflect6 the history of th$s mine
for the two years prior to the dates. of the citations.
pocket No. WEST 91-256
Citation No. 3414062 (T. 12-90).
This Citation was issued by Inspector Marietti on October
16, 1990, and described the alleged violation as follows:
The fire-fighting equipment at the No. 20
Crosscut in the 16 West Section belt return
entry was not being maintained in a usable
and operable condition. The fire hose nozzle
for the two length6 of fire.hose, located at
this location, was missing and could not be
located in the area.
MSHA seeks a $20 penalty for this alleged infraction of 30
C.F.R. S 75.1100-3 which provides:
All fire-fighting equipment shall be main-
tained in a usable and operative condition.
Chemical extinguisher6 Shall be examined
every six month6 and the date of the examina-
tion shall be written on a permanent tag
attached to the extinguisher.
Although it concedes that there was no nozzle present with
the cited fire equipment, Respondent questions the occurrence of
2 The computerized history show6 277 '*Paid" violation6
during the two-year period from 10-18-88 to 10-17-90. The four
citation6 were issued at different times during the period 10-3-90
through 11-8-90. I thus find and infer from this evidence and the
stipulation that Energy West had a previous history of approximate-
ly 277 violations.
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Page 4
a violation with respect to this Citation, which was not charac-
terized as "Significant and Substantial" by the Inspector.
(T. 13-14). 3 Respondent contends that it has installed "two to
three times" the amount of fire hose that MSHA required, that
nozzles were available in other locations, that a nozzle is not
required for every hose at a mine, and that a nozzle is not
necessary for a hose to be "usable and operative." (T. 14-15).
Pindinus
Inspector Marietti spotted the alleged violation (hose with-
out a nozzle) while on inspection accompanied by Energy West's
safety representative Dixon Peacock. He was in the 2 Entry
section and was walking the belt return when he examined a 3O-
gallon garbage can (where Energy West stores the fire hoses) and
could not find the nozzle "in the storage area." (T. 24, 25).
The nearest nozzle was 1000 feet away. (T. 25, 61).
The Inspector did not assert that the hose itself was faulty
or damaged. It would have operated properly when attached to a
hydrant or to another hose. (T. 38, 47, 58).
The regulations do not mention or specifically require fire
hose nozzles. (T. 25, 36, 68).
The regulations require at least 500 feet of fire hose to be
"stored at strategic locations along the belt conveyor." 30
C.F.R. S 75.1100-2(b) (T. 66). The regulations also specify that
enough fire hose to reach the working face must be provided at
each section loading point and 500 feet of fire hose must be
stored within 300 feet of the belt drive. According to MSHA's
interpretation of the regulations, this means that, altogether,
Energy West was required to have a total of 600 feet of fire hose
along the belt line and at the belt drive in the section in ques-
tion. (T. 34, 66, 67). Since Energy West stored 500 feet of
hose at the tailpiece and 500.at the belt drive, in addition to
the 200 feet every tenth crosscut, Energy West actually had 2000
feet of hose (more than three times the amount required by the
regulations) along the 16 WEST belt line on the date the citation
was issued. (T. 53, 54, 69). '
3
Hearing was held on two days, March 5 and 6, 1992, and
the two sections-of transcript (one for each day) begin with-page
-
Accordingly, the transcript references will be shown as wT. (8
and II-T. @(, respectively.4 Further, although the two lengths of hose at crosscut No.
20 did not have a nozzle stored with them there were eight nozzles
stored along the belt line. (T. 51, 69).1598
Page 5
Although Inspector Marietti conceded that there is no re-
quirement in the regulations that a hose be at the location in
question with the nozzle (T. 25), he explained that he issued the
citation:
Because 1100-3 says that all fire-fighting
equipment at the mine will be maintained
usable and operable. And it's just prudent
that if it's not going to be maintained as
such for people to rely on it in the event
they need to use it would create a problem
for the users and possibly a serious fire for
the mine. (T. 26-27).
Although a fire hose could be used without a nozzle to fight
a fire, it would generally be more effective if the hose had a
nozzle. (T. 26, 27, 35-38, 46, 47). Without a nozzle, as much
water would be supplied, but the water would shoot out from the
hose 20-25 feet; with a nozzle, water would propel from the hose
approximately 60-70 feet. (T. 45, 46). However, a hose without
a nozzle could be used to fight a fire .by flooding the area.
(T. 35-36, 38).
While Inspector Marietti testified that he interprets 30
C.F.R. S 75.1100-3 as requiring each hose to have a nozzle stored
with it (T. 51), the alleged violation was considered abated by
providing a single nozzle in the can, even though two hose
lengths were stored there. (T. 55-56). Moreover, in his view,
if only one long hose were stored along the belt line or if sev-
eral pieces of hose were connected together to form one long
hose, then MSHA's regulations would be satisfied by only a single
nozzle for all of the hoses along the entire belt line (T. 51,
56); and even though the fire hydrants, located at 300-foot in-
tervals along the belt line, did not have fire hose stored with
them, Inspector Marietti considered the hydrants to be fully
usable and operative within the meaning of S 75.1100-3.
(T. 54, 57).
Randy Tatton, Chief Safety Engineer for the Cottonwood Mine,
testified that since the hose at crosscut 20 was extra hose that
was intended to be used as a part of one long hose, he did not
believe that nozzles were required by regulation to be stored
with the hoses at all. (T. 69-70, 71, 87). Mr. Tatton testified
that if a piece of hose from crosscut 20 had to be used alone to
fight a fire, not only could the hose be used to fight a fire
without a nozzle, but a nozzle could also be obtained from an-
other nearby location along the belt line. (T. 70, 71, 73, 87).
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The hose could be kinked to simulate the spray a nozzle would
produce, or a miner could place his fingers or part'of his hand
over the mouth of a hose. (T. 70, 78, 87). Mr. Tatton conceded
that the hose is usually more effective with a nozzle, but in
some circumstances, such as if a small smoldering fire occurred,
the hose would be more effective without a nozzle. (T. 70).
Mr. Marietti agreed with this assessment. (T. 47).
Energy West's practice at the Cottonwood Mine was to store
two lOO-foot lengths of fire hose.at every tenth crosscut along
each of its belt lines. (T. 24, 25, 34, 68, 72).
Conclusion
Although not required by law to provide this hose or store
it in these locations, Energy West adopted this practice so that
miners would have extra lengths of hose available and readily
accessible if needed and know where to find it, as part of a
policy of supplying fire protection in excess of MSHA's require-
ments. (T. 25, 27, 38, 50, 51, 52, 53, 66-70, 80, 88). MSHA
concedes that, by providing these hoses at every tenth crosscut,
Energy West went "way beyond the requirements of the law." (T.
53).
When Energy West instituted this practice, it anticipated
that these extra pieces of hose would be used as segments of a
longer hose. (T. 70, 71, 80, 87). However, it is also possible
'that a piece of this hose could be used alone to fight a fire if
the fire happened to break out near a cache of extra fire hose
although this was not Energy West's intention in storing the h&e
in these locations. (T. 70, 71, 87). Energy West also has adopt-
ed the practice of storing one fire hose nozzle with each of the
caches of hoses. (T. 50, 52, 68). Cottonwood has never experi-
enced a belt fire and thus has never had reason to use the hose
or nozzles stored in these caches. (T. 48-50, 52, 68-72, 87).
The fire hose at issue here was extra fire hose, not re-
quired by the regulations, which Energy West stored in this loca-
tion in order to provide additional firefighting equipment in
readily accessible locations. The extra hose, because it was in
good working order, was usable and operative even though a fire
hose nozzle was not stored with it.
Because the hose itself was maintained in good working or-
der, it was usable and operative. Energy West stored this extra
hose at crosscut 20 so that it would be readily available to a
miner if it were needed. (T. 50, 52, 53, 70, 80, 87, 88). It
was intended for the extra pieces of hose to be attached to other
pieces of hose to form one hose to fight a fire in the area or in
another part of the mine. (T. 69-70, 80, 81, 88). The hose,
being vastly in excess of what was required, was thus fully
usable and operative even though a nozzle was not stored with it.
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Page 7
The regulations required Energy West to store 600 feet of
hose along the belt line in 16 West. (T. 51, 54, 66, 67). In an
exercise of caution and as a matter of safety policy, Energy West
stored 2000 feet of fire hose along this belt line - I400 feet
more than reuuired. (T. 53, 54, 69). As Energy West argues, it
could have stored this extra 1400 feet of hose anywhere (for
example, in a storage room or in one central location in the
mine). (T. 86-87). Instead, it chose to spread out the 1400
feet of hose along the belt line in specific, evenly spaced
locations so that a piece of hose could be located and obtained
quickly if it were needed. (T. 50, 52, 53, 70, 80, 87, 88).
In this matter, Energy West, for the purpose of enhancing
safety, stored extra hose (in good usable and operative condi-
tion) without nozzles in amounts beyond that required by the
regulations. In such pursuit of safety, Energy West should not
be penalized because it stored such extra hose along the belt
line rather than in some remote area, such as (as Energy West
points out) in a storage area. This is particularly true, where
the regulations do not speak of any requirement for hose nozzles,
where the extra hose potentially had beneficial purposes in the
event of a fire, and where this hose was in excess of the regula-
tion's requirements.
Accordingly, it is concluded that no violation occurred.
It is noted in reaching this determination that no intimation
was made or intended that as to required hose, i.e., that which
is not in excess of the regulations' requirements, hose nozzles
are not required. It may well be that in a given situation "re-
quired" hose, to be in "usable and operative condition," must be
stored with a nozzle.
Docket No. West 91-251
Citation No. 3414071 (T. 95-196).
This Citation, issued by MSRA Inspector Fred L. Marietti on
November 8, 1990, charges an infraction of 30 C.F.R. S 75.316,
and describes the violative condition as follows:
The approved ventilation and methane and dust
control plan was not being complied with in
the 2 North double-split miner sections. The
belt was moved up to 42 crosscut on graveyard
11-8-90. The brattice installed between the
belt and the 2 N.E. and the 2 N.W. designated
intake escapeways was not installed in a
workmanlike manner and maintained in the
condition to serve the purpose for which they
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were intended. The 41 crosscut, west side
next to the roadway was open on the outby
side six feet at the top and tapered down to
one foot at the bottom for a distance of six-
foot high. The 40 crosscut, west side, the
brattice was gapped down from the roof four
inches for 15 feet. The inby side was open at
the top one foot and tapered out for three
feet at the bottom for a distance of 6.5 foot
high. The outby side was open 30 inches by 6
feet high. The 40 crosscut, east side, was
gapped open at the top from 4 inches to 5
inches for 12 feet. The inby side was open 3
feet by 8 feet high. The outby side was open
4 feet by 8 feet high. There was coal run-
ning out on the belt and the section was
mining. Refer to Citation Nos. 3414072 and
3414073.
The standard infracted, 30 C.F.R. S 75.316, provides:
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 re-
quire, the quantity and velocity of air
reaching each working face, and such other
information as the Secretary may require.
Such plans shall be reviewed by the operator
and the Secretary at least every 6 months.
The pertinent provisions (Par. E, Subparagraphs l(a.) and (b)
of Respondent's plan (Ex. G-2) provide:
1. Ventilation Controls
a. All ventilation controls such as
stoppings, overcasts, undercasts,
doors, regulators, shaft parti-
tions, etc., shall be of substan-
tial and incombustible construc-
tion; installed in a workmanlike
manner and maintained in the condi-
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tion to serve the purpose for which
they were intended.
b. Permanent stoppings shall be erect-
ed between the intake and return
air courses, a minimum of 8" thick,
and shall be maintained to and in-
cluding the third connecting cross-
outby the faces of the entries.
Whenever the third connecting
crosscut is broken through, work
shall be started on building the
stopping as soon as possible and
shall be continued in a reasonable
and diligent manner until com-
pleted. Similarly, whenever a belt
move is completed, curtains shall
be installed immediately and work
shall be started on building the
permanent stoppings as soon as
possible and shall be continued in
a reasonable and diligent manner
until completed.
Energy West concedes the occurrence of this violation but con-
tends that it was not "Significant and Substantial." (T. 10).
Violation of an approved ventilation plan is the same as a
violation of a mandatory safety standard. Ziesler v. Klenne, 536
F.2d 398 (D.C. Cir. 1976); Jim Walter Resources, Inc., 9 FMSHRC
903 (1987).
On November 8, 1990, a belt move was conducted in the 2d
North Section at the end of the graveyard shift which ended at 8
a.m. The temporary curtains in question were installed in
crosscuts 40 and 41 east and west either at the end of the shift ’
or between the graveyard and day shifts. Materials for the
construction of permanent stoppings had been brought to each
crosscut by the beginning of the day shift and a miner had begun
work on the permanent stopping at crosscut 40 east. Miners were
also working on constructing a permanent stopping across crosscut
41 east. All permanent stoppings would have been completed and
in place by the end of the day shift. At this time, the faces
were approximately 200 to 300 feet inby crosscut 41 and 40. (T.
141). Air was flowing north (inby) up the intakes, across the
faces and then south (outby) down the returns and the belt entry.
(Ex. R-4; T. 142). The ventilation at the faces was 25,967 cubic
feet per minute (qlcfm@@) and 13,000 cfm of air was entering the
belt entry at the feeder breaker. (T. 143, 178). Because the
volume and pressure of air traveling up the intakes was greater
than that traveling outby in the belt, any air that escaped
through the temporary curtains flowed from the intakes into the
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_ ,~ .-. - . ^,-..-l... ^...,. _ ..__v -. . .- -- _ - - .) .-
.b” AA ,a... I. ._.. . ., . -
belt entry. (Tr. 118-119, 120, 142, 146, 177-178). That air was
then forced to flow south down the belt entry, outby the cited
curtains, and away from the faces. (T. 142-143).
At approximately 9 a.m. on November 8, 1990, while coal was
being produced, Inspector Marietti entered the 2d North section
and found that the temporary brattices installed at crosscut 41
west, crosscut 40 west, and crosscut 40 east were not drawn up
tight against the crosscut ribs, allowing some air to leak from
the intake entries into the belt entry through the curtains. (T.
108-110). The Inspector did not measure the amount of air escap-
ing through the curtains, but did a smoke test which showed some
leakage from the intakes into the belt entry. (T. 118, 1199,
177-178). He then issued S 104(a) Citation 3414071 which, as
noted, alleges a significant and substantial (@'S&S") violation of
the ventilation plan under 30 C.F.R. S 75.316. The violation was
promptly abated when the gaps in the curtains were closed.
Inspector Marietti felt there were two hazards posed by this
violation: (1) contaminated air entering the intakes through the
gaps in the temporary curtaips (brattices) should a fire have
occurred
.
in the belt entry, and (2) "short-circuiting*' of air,
air escaping, which was intended for the face. (T. 119,
It appears that his primary concern was of a fire occurring
in the belt entry (T. 120-121, 126) since the direction of the
air coming through the curtains was away from the face and toward
the belt entry (T. 119, 120):
At the belt drive, if you had a fire there,
for one thing, the air would be coming
through those stoppings to feed the fire.
And in all of the experiences that I've seen,
which I've seen many mine fires and more than
I want to see and have been at some of the
investigations, and the fire has a tendency
to follow the oxygen so it gravitates towards
5
This hazard was dependent on the happening of a separate
hazard, a belt entry fire, to which it would have contributed and
worsened. This is -why the question narrows on whether there was
sufficient proof that a belt entry fire was reasonably likely.
6
The viability of this contemplated hazard was not de-
pendent on the occurrence of some other separate hazard, and de-
termination of the reasonable likelihood of its occurrence can be
made without reference to some other independent hazard.
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the direction that the oxygen is--or the air
is coming in. It'd have a very good tendency
to pull right through there and burn right
out into the intake escapeway. (T. 121)
(Emphasis added).
As to the first hazard mentioned, the Inspector's basis for
considering that there was a reasonable likelihood that the
hazard contributed to would occur and result in an injury was
general:
a. Belt entries are the number one cause of fires.
b. "Fires are expected in mines."
C . Potential ignition sources were present in
the form of *,friction,11 coal on the belt, a
feeder breaker (electrical source), a pick
breaker, and a conveyor. .
d. The mine has had fires in the past. (T. 122-123). '
He said it was g'possible'@ for the hazard to occur but he did not
find specific conditions present which would raise the degree of
likelihood, such as: "hot rollers" or accumulations. (T. 124).
He thought that if there had been hot rollers present, the
situation might have constituted an imminent danger. (T. 124).
Although there were fire-detecting devices in the area and also
fire-fighting equipment (T. 127), he did not consider the pres-
ence of these devices and equipment in determining whether the
violation was **Significant and Substantial." (T. 127-128).
As to the Inspector's belief that air intended for the face
could have been short-circuited, his testimony was speculative.
He admitted that a door would have had to be opened outby for
short-circuiting to occur. (T. 128-131).
Energy West's witnesses, Chief Safety Engineer Tatton and
Mr. Steve Radmall, the Safety Engineer who accompanied Mr.
Marietti on his inspection, both gave their general opinion that
it was not reasonably likely that a serious injury or illness
would have resulted from the violation. (T. 154, 180). As the
7
He testified that if a fire did occur, a serious injury
would result, which would result in lost workdays or restricted
duty for the injured miner(s) (T. 123) due to smoke inhalation.
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smoke test by Mr. Marietti demonstrated and as Mr. Marietti
admitted, the direction of the flow of air in the section was
such that air flowed from the intakes into the belt entry through
the curtains. (T. 118-119, 120, 142, 146, 177, 178; 6ee Ex. R-4.
Thus, it was unlikely that contaminated air from the belt entry
would have entered the intakes through the curtains. Had the
contaminated air somehow flowed in the opposite direction, it was
not likely that a fire would have broken out on the belt line at
the location of the curtatns before the permanent stoppings were
erected. (T. 145, 179). The mine has never had a belt fire
(T. 146) and it was not likely that one would have occurred here
and certainly not before the permanent stoppings were completed.
(T. 145-146).
Because the ventilation at the face was 25,967 cfm (T. 178),
such indicates that adequate air was reaching the face and that
intake air was not being short-circuited in any meaningful
amount-- in other words, the ventilation system was operating
properly despite the air leaking through the curtains. Finally,
it appears that the regulator in the section would not have
allowed short-circuiting since it assured that a constant level
of air circulated through the area. (T. 150). 9
8icrnificant and Substantial
The Commission's formula, as set forth below, is employed
here to determine this question.
A violation is properly designated "significant and substan-
tial" if, based on the particular facts surrounding that viola-
tion, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reason-
ably serious nature. Cement Division, National GYPsum Co., 3
FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1,
3-4 (January 1984), the Commission explained:
a The temporary curtains would have been replaced with
permanent stopping by the end of the day shift. (T. 138).
9
Nor was it reasonably likely that inadequate ventilation
would have caused a methane ignition since no methane had been de-
tected in the area. (T. 179). Ignitable levels of methane have
never been detected in the mine. (T. 145, 163, 172). This finding
is based on the record relating to this Citation.
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In order to establish that a violation of a
mandatory safety standard is significant and
substantial under flational Gvnsum the Secre-
tary of Labor must prove: (1) the underlying
violation of a mandatory safety standard; (2)
a discrete safety hazard--that is, a measure
of danger to safety--contributed to by the
violation; (3) a reasonable likelihood that
the hazard contributed to will result in an
injury; and (4) a reasonable likelihood that
the injury in question will be of a reason-
ably serious nature.
Accord, Austin Power v. Secretary of Labor, 861 F.2d 99, 103 (5th
Cir. 1988).
The third element of the Mathies formula requires "that the
Secretary establish a reasonable likelihood that the hazard con-
tributed to will result in an event in which there is an injury,
and that the likelihood of injury must be evaluated in terms of
continued normal mining operations. U.S. Steel Minina Co., 6
FMSHRC 1572, 1574 (July 1984). See also Monterev Coal Co., 7
FMSHRC 996, 1001-1002, July 1985). The operative time frame for
determining if a reasonable likelihood of injury exists includes
both the time that a violative condition existed prior to the
citation and the time that it would have existed if normal mining
operations had continued. Halfway. Inc., 8 FMSHRC 8, 12 (January
1986); U.S. Steel Mininq Co., 7 FMSHRC 1125, 1130 (August 1985).
The question of whether any particular violation is significant
and substantial must be based on the particular facts surrounding
the violation, including the nature of the mine involved. Texas-
gulf, Inc., 10 FMSHRC 498, 500-501 (April 1988); Youahioohenv &
Ohio Coal Comnanv 9 FMSHRC 2007, 2011-2012 (December 1987). It
is the contributi;n of a violation to the cause and effect of a
hazard that must be significant and substantial. U.S. Steel
Mining Co., 6 FMSHRC 1834, 1836 (August 1984).
This analytical process for determining the "reasonable
likelihoodn question is a general, broad system of setting forth
the conditions or practices which might lead to the occurrence of
the contemplated hazard and then proceeding to the conclusion
whether or not the hazard is reasonably likely to come about and
cause injury. A useful companion method is one which was uti-
lized in Secretarv v. Texassulf, Inc., 9 FMSHRC 748 (April 1987),
where the concept of @tsubstantial possibility" (9 FMSHRC at page
764) was mentioned. This was used as an enhancement of "reason-
able likelihood" for the reasons stated in the decision, includ-
ing avoidance of confusion with the "imminent danger" concept,
and also because it appeared as a practical matter to be the
thinking actually being used by both tribunals, judges, and
laymen involved at the various levels of mining safety enforce-
1607
-. .,. .._ 1
Page 14
ment and administrative and judicial review. Its value is in its
being less ambiguous and at least somewhat more comprehensible.
Since understanding what a law means also is consistent with an
increased faith in American justice and fairplay, I adopt here,
as an aid to the general formula, the "substantial possibility*@
test. The end result would be the same whichever method of
analysis were used.
Judge William Fauver, in his Decision in Secretarv v. Coal
Mac Inc., 13 FMSHRC 1600 (Sept. 25, 1991) succinctly states the
"substantial possibilitylV concept as follows:
Analysis of the statutory language and the
Commission's decisions indicates that the
test of an S&S violation is a practical and
realistic question whether, assuming contin-
ued mining operations, the violation presents
a substantial possibilitv of resulting in
injury or disease, not a requirement that the
Secretary of Labor prove that it is more
probable than not that injury or disease will
result. See my decision in Consolidation
Coal Comnanv, 4 FMSHRC 748-752 (1991). The
statute, which does not use the phrase "rea-
sonably likely to occurql or "reasonable like-
lihood@@ in defining an S&S violation, states
that an S&S violation exists if "the viola-
tion is of such nature as could significantly
and substantially contribute to the cause and
effect of a coal or 'other mine safety or
health hazard" (S 104(d)(l) of the Act; em-
phasis added). Also, the statute defines and
"imminent danger" as "any condition or prac-
tice . . . which could reasonably be expected
to cause death or serious physical harm be-
fore [it] can be abated," and expressly
places S&S violations below imminent dangers.
It follows that the Commission's use of the
phrase Veasonably likely to occur@@ or "rea-
sonable likelihood" does not preclude an S&S
finding where a substantial possibility of
injury or disease is shown by the evidence,
even though the proof may not show that in'u-
ry or disease was more probable than not. ;b
10
The observation is made that the phrase "more probable
than not" has origins from the beginning attempts of the develop-
ment of construction principles for the Act's **S&SB1 terminology.
It would seem that substitution of the single word "probable" for
the entire phrase "more probable than not" is a simpler, less
1608
Page 15
Utilizing the phrase "substantial possibility" for purposes
of analysis seems consistent with the Commission's "reasonable
likelihood" phraseology in Cement Division, sunra, and Mathies,
sunra, and permits comparing and contrasting such with the com-
monly understood ideas (T. 97, 101-106) of gqremote@O possibility,
qlstronglt possibility, and @'probability.*@ See Texassulf, suDra.
Turning to the first alleged hazard, that if a fire devel-
oped in the belt entry contaminated air could have entered the
intakes through the curtains (T. 116, 126), the Inspector himself
testified that the air was flowing in the direction from the in-
takes (the area of high pressure) to the belt entry (the area of
low pressure) through the curtains. (T. 118, 119, 120). Energy
West's witnesses agreed that this was the direction in which the
air flowed through the curtains. (T. 142, 146, 177-178). There
was no explanation how contaminated air would have been able to
flow in the opposite direction --from the belt entry into the
intakes.
The Inspector conceded that if a fire had occurred _inbv the
curtains, the curtains would not have posed a contamination haz-
ard at all since the contaminated air could not have entered the
intakes through the curtains. (T. 120). And if a fire had oc-
curred outbv the curtains, he admitted that the curtains would
not have caused a contamination hazard because the direction of
the flow of air in the belt entry would have sent the air down
the belt entry and VtoutqV of the mine (away from the curtains and
the faces). (T. 121). Nevertheless, he concluded that if a fire
occurred at the belt drive (1700 to 1800 feet outby the curtains
(T. 149), then the curtains would pose a hazard. He believed
that the air coming through the curtains could feed a fire at the
belt drive. He also said - without explanation - that if a fire
had occurred at the belt drive, the fire itself would have en-
tered'the intakes through the curtains because fire has a ten-
dency to follow oxygen. Even under Inspector Marietti's own
theory, the only fire that could have affected the intakes would
have been a fire at the belt drive.
However, there is no evidence to support a finding that
there was a substantial possibility or reasonable likelihood that
a fire would have broken out at the belt drive at any time,
whether or not before the permanent stoppings were completed.
Beyond the broad allegations that a belt entry is "the number one
major cause of fires in mines," that "fires are expected to be in
cola mines,sl and that there is "frictionV1 and "coal on the belt,
etc., g1 there is no basis to conclude that it was reasonably
confusing way to express the same thought.
1609
Page 16
likely that a fire would occur. See Eastern Association Coal
Corporation, 13 FMSHRC 178 (February 1991). No specific condi-
tions were present to indicate that there was increased likeli-
hood of a fire or that such was a substantial possibility.
(T. 124).
To conclude otherwise would require a finding that normal
mining in and of itself involved a substantial possibility of a
fire occurring. It is found only a remote possibility existed
that a fire could have occurred. Thus the mine has not previous-
ly experienced belt fires. Where it is merely 'lpossibleVt that a
fire hazard "could" occur, a violation is not S&S. Beaver Creek
Coal Co., 12 FMSHRC 153, 157 (Jan. 1990) (Au Cetti) (violation
of S 75.316 improperly designated S&S where fire was merely
possible); B e t h Enercrv M i nInc.,
e s , 11 FMSHRC 1999, 2001 (Oct.
1989) (Au Weisberger). &g Union Oil Co. of California, 11
FMSHRC 289, 298-299 (March 1989).
The second theoretical hazard was that the air leaking
through the leaky curtains might have prevented an adequate level
of air from reaching the face. The Inspector did not measure the
amount of air that was leaking through the curtains, but he
thought that it was enough to deprive the face area of ventila-
tion. However, ventilation at the face measured 25,967 cfm. (T.
150-151, 178). This indicates that the air leaking through the
curtains was not adversely affecting the ventilation at the face.
Therefore, there is no basis to conclude it was likely that
ventilation at the face would have become inadequate before the
permanent stoppings were completed. n Unless the Secretary can
prove that ventilation at the face has been affected or was like-
ly to have been affected by a violation of 30 C.F.R. S 75.316,
the violation is not S&S. See Cvnrus Emerald Resources Corn
12 FMSHRC 2107, 2110-2111 (Oct. 1990) (AU Weisberger); Cvr&&
Emerald Resources, Corn 10 FMSHRC 1417, 1421 (Oct. 1988) (ALJ
Melick); Jim Walters ReA&rces, Inc., 7 FMSHRC 2187, 2216 (Dec.
1985) (AU Koutras).
Conclusion
It is concluded, in the terminology of the 3d prerequisite
of Mathies, sunra, *' that there was not a"reasonable likelihood"
II Inspector Marietti did state that if a door had been left
open outby the curtains, that could have tr&ered short-circuit-
ing. (T.-130). However, this was not shown-to be likely.
12
The first and second evidentiary prerequisites of
Mathies, sunra, are clear, the violation having been conceded and
the violation's contributing a measure of danger to safety. These
points are not in issue. _
1610
Page 17
that the hazards contributed to (contaminated air from fire in
the belt entry and short cir:uiting of air from the face) would
result in injury to miners. It was not established that it
was certain, probable in some degree--or, minimally, that there
was a substantial possibility --that .the hazards envisioned and
contributed to by the violation would have occurred. The "Sig-
nificant and Substantial *@ designation on this citation will be
stricken and the penalty adjusted to reflect such.
In connection with the two remaining penalty assessment
criteria, it is determined that Energy West was negligent in the
commission of the violation since it was obvious and flagrant,
the gaps in the brattice were visible from 25 to 30 feet away and
existed at least 1 hour and 15 minutes (T. 112, 125-126), and
Inspector Marietti considered it "one of the worst cases" he had
ever seen "of anyone installing brattices." (T. 111-115). (See
also T. 123-124).
Although the violation did not meet the special "Significant
and SubstantialV‘ prerequisites, it nevertheless is found to be
serious since had the unlikely event of a fire in the,belt entry
actually occurred, the hazard of contaminated air entering the
intakes could have occurred, and as Inspector Marietti indicated,
the fire in the belt drive might have had the "tendency to ~~11~~
through the area "and burn right out into the intake escapeway."
(T. 121). It is therefore found to be a moderately serious
violation.
In consideration of these findings and the other four
mandatory penalty assessment criteria set forth in the Utstipula-
tion" section, a penalty of $400 for this violation is found
appropriate.
Docket No. WEST 91-256
Citation No. 3413003 (T. 196 - II-T. 112).
Inspector Donald E. Gibson issued this "Significant and
Substantial" Citation on October 3, 1990, alleging an infraction
of 30 C.F.R. S 75.1725(a), to wit:
13
There is insufficient evidence to determine that had an
injury occurred that such would be of a reasonably serious nature.
Thus, as to both hazards, I also conclude that as to the fourth
prerequisite of uathies, the burden of proof was not met.
1611
--. .l. . _ ,
Page 18
The speed reducer being used on the
stage loader on the 11th East longwall work-
ing section was not maintained in safe oper-
ating condition. A seal in the speed reducer
was damaged/burst allowing gear oil to leak
from the reducer on to the surface of the
tailpiece, the fluid coupling housing and the
electric motor driving the speed reducer.
The motor is supplied 950 VAC.
Oil was observed dripping out of the
fluid coupling housing onto the belt tail-
piece. This oil was cleaned periodically but
the leak persisted from the reducer.
In this condition, the hazard of a fire
is present due to the consistent leak and the
power source (motor) in the area. The stage
loader was removed from service immediately
by management after being notified of the
violation.
30 C.F.R. S 75.1725(a), pertaining to "Machinery and equip-
ment; operation and maintenance," provides:
Mobile and stationary machinery and equipment
shall be maintained in safe operating condi-
tion and machinery or equipment in unsafe
condition shall be removed from service imme-
diately.
Respondent Energy West, while acknowledging that there was a
leak in the,speed reducer, denies that such leak made it unsafe
(T. 198) and further contends that this condition was not reason-
ably likely to result in serious injury or death and thus, assum-
ing grauefido. there was a violation, the violation Was not "Sig-
nificant and Substantial."
A speed reducer is a device consisting of gears of different
sizes and configurations that is used to slow down or speed up a
given apparatus. In this case it was used to reduce the speed of
the stage loader motor. Such equipment is used in long-wall
mining. (T. 206-207).
Inspector Gibson said oil, which he believed was gear oil,
was running down the shaft of the speed reducer into the coupling
housing guard. He observed oil on the face of the electric motor
of the stage loader. He indicated he was able, from experience,
1612
Page 19
to identify "gear" oil. (T. 208-209). " The Inspector also
observed oil "that dripped down on the tail piece out of the
fluid coupling houshng Vt which he identified as gear oil.
(T. 215-216, 249).
As Inspector Gibson stated in the Citation, the leak was
caused by a burst seal in the speed reducer of the stage loader.
Energy West contends the leak could not have been fixed at the
mine and that the entire loader would have had to have been taken
to a fabrication shop to replace the seal. (T. 211; II-T. 80-
81).
At the time of his inspection, Inspector Gibson was advised
by the section foreman, Leonard Reid, that he (Reid) was aware of
the leak and that it had been leaking for three days. (T. 210).
Later on, Chief Safety Engineer Randy Tatton told the Inspector
that he (Tatton) did not believe the condition was a violation
and that it was not "Significant and Substantial." (T. 211).
According to Inspector Gibson, Mr. Tatton made the following
explanation to him:
And he made me aware at that time that'
the mine superintendent and longwall coordi-
nator, Mine Superintendent, Garth Neilson,
and Longwall Coordinator, Bud Warrington, had
approached him a week and a half to two weeks
earlier about this condition - that they had
an oil leak, in fact, on the stage loader and
wanted to know if they should change the oil
- change the speed reducer out or repair it
or could they continue mining and wash the
oil away until they finished or completed
that panel, which was at that time 2- to 300-
feet left in the panel then the long wall
would have been removed off that particular
face recovered this, we determined. And this
stage loader or speed reducer would have been
sent off for repair at that time. (T. 2110
212).
14
Energy West contends that it was not gear oil, but
hydraulic fluid mixed with coal dust, which was on the fluid
coupling housing and the inside face plate of the motor. (II-T.
22-25).
15 Energy West concedes that the oil on the tail piece was
gear oil. (II-T. 24-25).
1613
Page 20
-I
+ _
_
*
~__“,&i_C~_x_.&_.-rr;Y__. a. AI_.A.L..._ .,‘ r.. As. ., -I. - ..-I -I. .A--- * --- -
d -^‘-
>he leak was thus allowed to continue for approximately two
weeks. (T. 212).
The vital question to be determined is whether the combusti-
ble gear oil leak from the burst seal constituted an unsafe oper-
ating condition mandating that the equipment be removed from
service immediately,
A preliminary question is whether the oil observed by
Inspector Gibson was indeed gear oil from the leak or hydraulic
fluid mixed with coal dust.
Inspector Gibson was quite certain it was gear oil and
Energy West did not question this determination on the day of
inspection or at any time in proximity thereto. -(T. 210, 222;
II-T. 47, 104-105).
Frank Zmerzlikar, general maintenance foreman, nevertheless
testified at the hearing that the oil on the fluid i=oupling
housing and the face plate of the motor was hydraulic fluid and
not gear oil. (II-T. 21-27; but see II-T. 46-47). Mr. Tatton
first mentioned that the oil was hydraulic fluid some 6-7 weeks
before the hearing in this matter. (II-T. 104). Thus, as MSHA
contends in its brief (p. 12, fn 7):
In August 1991, Energy West in responses to
interrogatories failed to mention its belief
that the oil was fluid coupling oil, however,
in supplemental answers filed in January
1992, seven weeks prior to the hearing and 29
months after the citation was issued, it
first offered its theory that the oil was
fluid coupling and not gear oil. (II-T. lOO-
104).
I find the Inspector's determination that the oil was gear
oil reliable and consistent, l6 with what he observed on the
inspection day (T. 219) and it is credited.
Energy West established that, after learning of the leak,
Garth Nielson, then the Longwall Superintendent, and Randy Tatton
conferred and decided that it would be safer to finish the panel
as long as the leaking oil was not allowed to accumulate. (II-T.
27, 64, 67, 84, 87-90).
16
Energy West's version is not so found. (II-T. 46-47,
48).
1614
Page 21
To prevent the leaking oil from accumulating, Energy West
employed a program of adding gear oil and washing oil which had
leaked on the tailpiece away with a hose at every pass of the
longwall shear (approximately every 35 minutes) and appropriate
personnel, foremen, and miners were instructed in this task.
(II-T. 63-71).
It is noted that this program, however well-intended, did
not alleviate the problem of the oil leak so as to keep oil from
accumulating at the three places observed by Inspector Gibson on
the day of Inspection.
Inspector Gibson described several hazards from the condi-
tion he observed as a fire hazard, stating: "The motor itself is
a source of fire; the speed reducer itself is a source of fire;
and the motor is subject to fail at any time . . . .I He also said
that, while the amount of the oil did not constitute an V1accumu-
lation," it could "create the fire" if there was a motor or cable
failure and there was some "type of arc to ignite the oil.@
(T. 216-217, 234). Such an arc could be created by electrical
component or failure of the motor or trailing cable. Such fires
are not uncommon. (T. 217, 234). .
The Inspector, in emphatic and convincing contradiction to
Energy West's contention to the contrary, said the motor and the
speed reducer were at the same level and were joined together by
the fluid coupling, thus making it possible for the gear oil to
leak from the speed reducer onto the electric motor. (T. 218,
269). Since Energy West's witness Mr. Tatton was not particular-
ly clear with respect to the juxtaposition of the motor and the
speed reducer (II-T. lOO-104), and Inspector Gibson's testimony
on this point and throughout was certain and reliable in tenor,
the Inspector's testimony is credited. "
The Inspector pointed out that if the gear oil (a combusti-
ble material; T. 272) continued to leak from the speed reducer,
the speed reducer itself was subject to having a bearing go out,
creating another source of fire. (T. 220; see also II-T. 54).
The tailpiece was another source of fire (T. 226) and two 950-
volt longwall power cables from the section transformer to the
master controller went through the area (T. 227) which could fail
(T. 242-244, 272; 11-t. 58-59) or be cut (T. 245) or damaged (II-
T. 58-59).
17
As I have noted elsewhere in this decision, Energy West's
position that the dripping fluid was not gear oil also seems to
have dawned many months after the Citation was issued. (II-T. lOO-
104).
1615
Page 22
Inspector Gibson also pointed out that there was a smoke
inhalation hazard because the air was traveling over the equip-
ment (stage loader) in question headed inby to the face about 100
feet away. He testified:
. . . So the entire mining crew, consisting of
13 people this particular day, were inby that
location as I observed.them. So if you had a
fire to occur the smoke would go long--or go
inby or move inby across the people, which
could lead to smoke inhalation of CO (Carbon
Monoxide). (T. 226).
MSHA's evidence that the condition cited was unsafe is reli-
able and persuasive. Various hazards to the safety of miners
were created by the oil dripping from the leak. Inspector Gibson
measured the puddle of oil which had dripped down on the tail-
piece out of the fluid coupling housing and it was 1/16th of an
inch deep x 6- to 8-inches wide by 15- to 16-inches long. Oil
was found in two other places. Various potential ignition
sources were present. While the "washing and refilling" program
employed by Energy West may have reduced the likelihood of a fire
occurring, it didn't eliminate the hazard. It is concluded that
the machinery in question had not been maintained in safe operat-
ing condition and that Energy West, by allowing such to remain in
service, violated the safety standard as charged.
The analytical formula for determining "Significant and Sub-
stantial" issues has been set forth previously. I have found
that a violation was established and that such created safety
hazards in the foregoing analysis. The decisive issue, in terms
of the four criteria set forth in Mathies, suDra is whether a
reasonable likelihood existed that the hazard contributed to by
the violation would result in an injury.
Although the Inspector considered it "more than likely" that
the possibility of the motor or.trailing cable failure could
happen (T. 242) he conceded that the shielding of the cables to
prevent arcing or sparking did lessen the possibility of cable
failure. At the same time he pointed out suck would not prevent
cable failure from happening. (T. 243-245). Should the motor
or cable fail, the voltage was high enough to "likely" ignite the
oil. (T. 222-223, 243-244).
IS This distinction is one example of the line to be drawn
between the condition being **unsafe@@ and its being "Significant and
Substantial.w
1616
- . . SW_
. . _ ..$. --. -.
._,..-A-.. m .
Page 23
The question of likelihood thus turns on the initial link in
the chain, i.e., whether the motor or cables would fail in the
first place. As to this issue, the net effect of the Inspector'6
testimony is that the occurrence of such failure was merely
possible, not that there was a substantial possibility, even
though he summed up his opinion as being that the occurrence of
motor or cable failure was 8flikelyV'. [Compare T. 224, 242 with
T. 228 (possibility) 229 and 234 (motor failure "could" happen);
243-245 (likelihood reduced by protective measures); 247-248,
262, 264, 2701.
Energy West established, in diminution of the likelihood of
the occurrence of the hazard6 that:
The speed reducer was regularly refilled on the grave-
yard :hift (II-T. 29-30);
2. If the speed reducer started to heat up, a smell and a
noise would be created which would alert miner6 working in the
area (T. 241; II-T. 29-30);
3. The warmth of the speed reducer which was noticed by
the Inspector was "normal@@ (II-T. 34);
4. The motor is checked a minimum of once a week for
permissibility (II-T. 43);
5. It was n'ot a common occurrence for electrical cables
to be cut of damaged (II-T. 42, 73).
6. Had a fire occurred, it was likely that such would have
been detected in its early stages and there were various types of
fire-fighting equipment in the area, i.e., the washdown hose,
fire hose, a fire hydrant, a foam eductor, and fire extinguish-
ers. (II-T. 94-96).
In conclusion, the overall evidence of record indicate6 that
the occurrence of the fire hazard created by the violation (and
contributed to by it) was a possibility but that it was not rea-
sonably likely (there was not a substantial possibility) that the
hazard would come to fruition and result in an injury to miners.
Accordingly, it is found that the third prerequisite of Mathies
has not been established and that the "Significant and Substan-
tial" designation on this Citation should be stricken.
The violative condition was known to Energy West's manage-
ment personnel and was allowed to continue for a considerable
period of time (II-T. 50) until the same was detected by Inspec-
tor Gibson and abated. As MSHA points out in its brief, Energy
West'6 general maintenance foreman made a significant COnce66iOn
in hi6 testimony:
1617
Page 24
and if this-- if this seal had started
Q. . . .
leaking, say, when you just began work on the
panel which--would you, as the maintenance
foreman, wait until you completed the entire
panel removal before you stopped production
and fixed the seal or would you just keep
adding oil?
A. I would have fixed the seal or changed the
reducer. (II-T. 56).
It is concluded that Enerc# West was negligent in the
COInmiSSiOn Of this Violation.
Even though it has been found that this violation was not
"Significant and Substantial," it did create the various hazards
described by the Inspector and indicated heretofore in this
decision. Since the hazards were not "reasonably likely" to
occur, that is, there was only a remote possibility of the occur-
rence of the hazards, the violation is found to be only
moderately serious. A penalty of $300 is assessed therefore.
Docket No. WEST 91-251
Citation No. 3413898 (II-T. 112-166).
This "Significant and Substantial" Citation was issued by
MSHA Inspector Donald E. Gibson on October 24, 1990, charging an
infraction of 30 C.F.R. S 75.503, and describing the following
violation:
The Joy Shear mining machine 2G-3675A-0,
being Used on the 16th West working section
was not maintained.in permissible condition.
An opening in excess of .005 inch was ob-
served between the cover lid and the plane
flange joint on a light ballast box located
dt face shield #77. The ballast box is sup-
plied 120 VAC. In this condition, poses the
hazard of an ignition source.
30 C.F.R. S 75.503, pertaining to "Permissible electric face
equipment; Maintenance,H provides:
19
See also II-T. 48-50.
1618
__
. . . ..- - ‘,. ,
,’ . -
Page 25
The operator of each coal mine shall maintain
in permissible condition all electric face
equipment required by Sections 75.500,
75.501, 75.504 to be permissible which is
taken into or used inby the last open cross-
cut of any such mine.
Respondent concedes the occurrence of this violation (II-T.
115) but challenges that the violation was "Significant and
Substantial" (T. 10) and the propriety of MSHA's proposal of a
$350 penalty.
The ballast box in question is approximately the size of an
8.5 by 11-inch sheet of paper, is 2 inches thick, and is used to
provide power for the lighting system for the long-wall section
(II-T. 117, 143).
Inspector Gibson testified th;t the hazard posed by the
opening was that it could "emit" gases or coal dust inside
the box or permit arcs to the outside atmosphere (II-T. 125). He
pointed out that since the opening of the flange joint was in
excess of .004 inches (the maximum clearance permitted by 30
C.F.R. S 18.31 for this plane flange joint), and since it was
inby the last open crosscut and within 150 feet of pillar extrac-
tion, such created the "potential for an ignition source of
either methane or (float) coal dust" (II-T. 125). He said the
longwall shearing machine generates and puts into suspension coal
dust and that permissibility requirements are the first line of
defense in preventing ignitions of methane and/or coal dust.
(II-T. 125-126, 138).
In support of his conclusion that it was reasonably likely
that the violation could cause a serious injury if the ballast
box were left in the condition he found it, the Inspector
testified:
During the normal mining operation methane is
released from the coal. That's the process
of coal mining. Methane is there and certain
amounts are emitted as the coal is being
extracted. A lot of dust is put in
suspension sometimes on those long walls. So
this poses the hazards of an ignition to
either the methane and/or the coal dust that
could be in suspension.
20
I interpret this to mean "admit."
1619
.
Page 26
Q. In other words, what you're saying is
that this opening is large enough that either
escaoiner methane from the coal being cut off
or &al-dust in the air could enter this
opening and combine with the flame path to
cause an explosion?
A. Yes. Sir.
Q. And that's why you labeled it S&S violation?
A. Yes, Sir.
Q. Are there any other factors that you
considered?
A. Well, there have been instances-where
lighting packages or lighting systems and
components of lighting systems have been
involved with or have been determined by MSHA
through investigations to be the causes of
ignitions. One was in 1981 at Mid-Continent
Resources in which 15 miners were killed.
There..was another one--I-was-trying--to think
where the other one is but it slips my mind
right now where that one is. (XI-T. 129-
130).
This is a gassy mine and even though the mine had never
experienced ignitable levels of methane (II-T. 133, 139, 140)
methane-is-alwaysPpresentcandcthe Inspector testified that (1)
the "potential for ignitions is always-there,in coal mining.fl
(II-T. 139) and since methane is always present, there could be
an occurrence of an "ignitable amount at any time which the mine
has had "even though the Inspector personally had never detected
such (II-T. 139-140). (Emphasis added).
Energy West presented two witnesses, Maintenance Foreman
Thomas.Kerns andlchief. Saf ety-Engineer-Tatton..<-Mr. Kerns
indicated that for.an ignition to occur inside the ballast box
.- au L . b<:. . ; <r i.,:.t fi rl -ti. -.J,r! i 3:.
. 2; : s.,.:-= --. , ,,:: ; _ 7- ..,“,, _: .c y9 1. .TC 5, fi
PL;V VW-~ h_l _T*? awombustible-mixture.,.-!being 5 .percent+at ~~i;-~,~~~~~~~
least and that is 5 to 15 percent air and
methane mixture, would have had to enter into
the box and then an incendiary spark--that is
a spark with enough energy.to ignite the
1620
.,. _. , _ . -.- .._. ^_...._< ” _ _ .,. 7
Page 27
mixture-- would have bad to occur within this
box. (II-T. 144).
Energy West established that the ballast box was
@@electrically sound It before and after the inspection (II-T. 145);
that the methane level is checked .frequently, i.e. at least twice
each production shift by the foreman, and by the Joy Shear mining
machine operators every 20 minutes while in operation. (II-T.
162-163).
Mr. Kerns who said that it was "highly unlikely" that the
ballast box would have sparked or arced, also indicated that he
carries a methane detector on his shift and he has never detected
an ignitable level of methane (II-T. 145) and that he was not
aware of there ever having been detected an ignitable level of
methane at the Cottonwood Mine (II-T. 146). There is also a
methane sensor detector system in the longwall itself. (II-T.
146-147).
Mr. Kerns also felt that the approximately 45,000 cfm of air
on the face would have "diluted any methane below explosive
levels*' and carried it away. (II-Tb 148). See also II-T. 163.
He also pointed out that there were permissibility checks on
the ballast box - once every weekend - and that there was fire-
fighting equipment in the area involved. (II-T. 149-152).
Mr. Tatton felt it unlikely that coal dust would get ignited
unless in the presence of methane. (II-T. 163-164).
The Commission's analytical formula for determining whether
the violation was "Significant and Substantial" has been
previously set forth. The application of this formula must be
made in the perspective of continued mining operations, not as
Energy West seems at times to argue, at or in proximity to the
time of inspection only. U.S. Steel Minina Co., 6 FMSHRC 1573,
1574 (July 1984).
In terms of the pathies prerequisites, the violation is
conceded. Since the unargued hazard, however likely one party or
the other views its occurrence, is of a methane and or coal dust
explosion, it is concluded that a measure of danger to safety was
21
Mr. Tatton's version of what it would take for an
ignition to occur inside the ballast box is, upon analysis,
basically the same as Mr. Kerns'. See II-T. 161-162. On cross-
examination Mr. Kerns retreated somewhat from his 5 percent methane
level assertion and conceded that a 2 percent level of methane
could ignite although this was "very marginal" or "very slightly."
(II-T. 157-158).
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* -.._ -.-*- T __-- .‘~.~ “__ _ ___c____ ,.Ilr ” _... _. ._ _^___. - --. -
Page 28
__ .. _., _
contributed to by the violation. The record reveals that there
would have been miners who worked nearby the area of the
violation with some frequency (II-T. 125, 162-163) so, although
the Petitioner's evidence did not directly address the fourth
Mathies element, I infer and find that if an explosion of methane
and/or coal dust had occurred there would have been serious
injuries or fatalities ensuing from such event (II-T. 128-130,
139-140, 162-163).
In concluding that there was a reasonable likelihood that
the ignition hazard contributed to would result in an injury, it
is first noted that this is a gassy mine. While there was no
specific evidence of prior high levels of methane having been
detected, nevertheless the essence of the Inspector's testimony,
which was credible and convincing, was that such could occur at
any time. This must be considered in connection with the fact
that the permissibility violation occurred within 150 feet of
pillar extraction and the fact that the longwall shearing machine
also generates and puts into suspension coal dust. The Inspector
testified that the opening in the plane flange joint was large
enough that either methane e escaping from the coal being cut or
coal dust in the air could enter the opening and combine with the
flame path to cause an explosion. (II-T. 129).
Summing up, there were two kinds of ignitable substances
involved in this situation which could have been ignited. The
Commission has previously recognized that one factor which in-
creases the likelihood of the occurrence of an ignition hazard is
the presence of a l@more flammable substance," i.e., methane, and
a mine's classification as U'gassy.** See Secretary v. Eastern
Associated Coal Cornoration, 13 FMSHRC 178, fn. 4 (Feb. 1992).
In this case, where the combustible substance was hydraulic oil,
the Commission contrasted the difference of such with methane:
Methane is ignitable by a spark and is much
more flammable and explosive than.hydraulic
oil. Further, the mines in both those
proceedings (cited by the Secretary in urging
an S&S finding) were gassy mines as defined
b$ the Mine Act."
Inspector Gibsontestified that the subject mine "has had"
ignitable levels of methane in the past.
It is therefore determined that there existed a substantial
possibility that the hazard contributed to by the violation would
have resulted in an injury or fatality occurring, and that there-
fore the "reasonable likelihood11 requirement of the third element
of Bathies, sunra, has been satisfied.
1622
. . .
Page 29
The Inspector testified that the gap in the plane flange
joint occurred because of rust, which process would have taken a
considerable length of time to develop. I therefore conclude, in
the absence of rebuttal testimony, that Energy West was negligent
in allowing such condition to develop. (II-T. 123-124). Because
of the seriousness of the ignition hazard which was contributed
to by the violation (II-T. 128-130) and the presence of miners
inby the place of violation (II-T. 162-163), I find this to be a
serious violation.
Considering various stipulations in connection with manda-
tory penalty assessment criteria and the above findings as to
negligence and gravity, it is concluded that a penalty of $750 is
appropriate and such is here ASSESSED.
ORDER
1. Citations numbered 3414063 and 3414064 (in Docket WEST
91-256) are MODIFIED to change the "Likelihood'@ characterization
in the "Gravity" section (para.. 10 A) from "Reasonably Likely" to
glUnlikely*l and to delete the "Significant and Substantial"
designation thereon.
2. Citation No. 3413898 (Docket No. WEST,91-251),
including the "Significant and Substantial" designation thereon
is AFFIRMED.
Citation No. 3414071 (Docket WEST 91-251) is MODIFIED
to de&e the "Significant and Substantial" designation and is
otherwise AFFIRMED.
4. Citation No. 3413883 (Docket No. WEST 91-256) is
MODIFIED to delete the "significant and Substantial" designation
and is otherwise AFFIRMED.
5. Citation No. 3414062 (Docket WEST 91-256) is VACATED.
6. Respondent, within 40 days from the date of issuance of
this decision, 8EALL PAY to the Secretary of Labor the total sum
of $1490 as and for the civil penalties agreed to and/or assessed
($20 each for Citations numbered 3414063 and 3414064; $400 for
Citation No. 3414071; $300 for Citation No. 3413883; and $750 for
Citation No. 3413898).
Michael A. Lasher, Jr.
Administrative Law Judge
1623
Page 30
__ ._
Distribution:
Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, CO 80294
(Certified Mail)
Thomas C. Means, Esq., Claire Brier, Esq., CROWELL & MORING, 1001
Pennsylvania Avenue, NW, Washington, DC 20004 (Certified Mail)
ek
1624
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