Sewell Coal Company (ALJ decision, August 11, 1980)

Read the official release (fmshrc.gov)

Plain-English summary

Sewell Coal Company contested a citation over the ventilation and dust-control plan for a section of its No. 4 mine and the resulting withdrawal order. After Sewell replaced its approved plan with an all-exhaust system, MSHA tested a proposed replacement plan and found that the dust level barely met the limit even though the controls in use exceeded those in Sewell's proposal. Sewell did not submit a revised plan before the citation or by the abatement deadline. Judge James A. Laurenson found that the former plan no longer described the mine's controls and that Sewell had not shown MSHA was wrong to reject the proposed plan. He dismissed both contests, sustaining Citation No. 644408 and Order No. 644409. The decision assesses no penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.316, approved ventilation and dust-control plan.
• Outcome: Citation No. 644408 and section 104(b) withdrawal Order No. 644409 sustained; no penalty assessed.
• Key point: The operator could challenge MSHA's refusal to approve its plan, but its evidence did not show that the proposed controls would adequately limit dust.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, 10TH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

(703) 756-6230

11 AUG 1980
SEWELL COAL COMPANY,
: Contest of Citation
Contestant :
v. : Docket No. WEVA 80-264-R

SECRETARY OF LABOR,
: Contest of Order
MINE SAFETY AND HEALTH
:
ADMINISTRATION (MSHA),
: Docket No. WEVA 80-265-R
Respondent :
: Sewell No. 4 Mine

DECISION

Appearances: Gary W. Callahan, Esq., Counsel for Sewell Coal Company, Lebanon, Virginia, for Contestant;
John H. O'Donnell, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for Respondent.
Before: Judge James A. Laurenson

JURISDICTION AND PROCEDURAL HISTORY

These are proceedings filed by Sewell Coal Company (hereinafter Sewell)

under section 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 820(a), to contest the issuance of a citation and an order issued by the

Secretary of Labor, Mine Safety and Health Administration (hereinafter MSHA).

The citation alleges a violation of 30 C.F.R. § 75.316 (failure to operate under an approved ventilation and dust-control plan).
The order alleges a

failure to abate that violation. A hearing was held in Falls Church, Virginia, on April 10, 1980. Dane H. Isabell and James W. Rutherford testi-

fied on behalf of MSHA. James Lively, James M. Krese, Ernest Kincaid, Paul

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Givan, and Peter Ambrosiani were called as witnesses by Sewell. MSHA filed

a brief after hearing but Sewell elected not to file a brief.

ISSUES

The issues are whether Sewell violated the regulation as charged by

MSHA and whether the order of withdrawal for failure to abate the violation

was properly issued.

APPLICABLE LAW

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

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 equip- ment 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.

Section 104(b) of the Act, 30 U.S.C. § 814(b), provides as follows:

If, upon any follow-up inspection of a coal or other mine, an authorized representative of the Secretary finds (1) that a violation described in a citation issued pursuant to subsec- tion (a) has not been totally abated within the period of time as originally fixed therein or as subsequently extended, and (2) that the period of time for the abatement should not be further extended, he shall determine the extent of the area affected by the violation and shall promptly issue an order requiring the operator of such mine or his agent to immedi- ately cause all persons, except those persons referred to in subsection (c), to be withdrawn from, and to be prohibited from entering, such area until an authorized representative of the Secretary determines that such violation has been abated.

STIPULATIONS

The parties stipulated the following:

1. The Administrative Law Judge has jurisdiction over the case.

2. Sewell is a large company.

3. Sewell is located in Nicholas County, West Virginia.
It is a mine that mines bituminous coal by continuous miner- operator method. It is a large mine and an old mine.

4. The copies of the order and citation are authentic and were properly served by a duly authorized representative of MSHA.

SUMMARY OF THE EVIDENCE

This case involves the dust-control plan for section 033 at the Sewell

No. 4 Mine. Dust-control plans are specific for particular sections

because the conditions in different sections require different plans. Coal

at this mine is extracted by continuous-mining machines. The height of the

coal seam varies significantly throughout the mine. Along with the coal,

a substantial amount of rock is cut and dust from this cut rock can be

more adverse to health than coal dust.

In May 1979, Sewell had a dust-control plan for the entire mine which

was approved by MSHA (hereinafter May 1979 plan). The May 1979 plan provided

for a ventilation system which was "half blowing and half exhaust." In a

blowing system, the intake air comes from between the line curtain and the

rib, sweeps the face, and then exits over the working area. In an exhaust

system, the intake air comes from over the working area, sweeps the face and

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then exits between the line curtain and the rib. On January 9, 1980, James

Rutherford, an MSHA subdistrict manager, met with Sewell management and
union officials. MSHA had conducted a test at the mine which showed that
an exhaust ventilation system kept dust within acceptable limits, whereas
blowing systems did not. Rutherford, therefore, told Sewell management
that where rock was being cut only an exhaust system would be approved and
that sections of the mine would be tested to see if they were in compliance
with acceptable dust limits.

After the meeting, Sewell abandoned the May 1979 plan and switched to
an all-exhaust system for dust control in the section. At the same time, it
submitted to MSHA a proposed ventilation and dust-control plan (hereinafter
proposed plan) which detailed the changes from the May 1979 plan.

MSHA gave verbal, tentative approval to the proposed plan. Inspector

Dave H. Isabell, who was already at the mine, was instructed to conduct tests
in the section to determine if the proposed plan adequately controlled dust
and if it should be approved. To conduct the test, the inspector put dust
samplers on miners with five different occupations. The samples were then
sent to an MSHA laboratory to determine the dust concentration to which the
men were exposed. The men were instructed to wear the samplers for 2 to

5 days and the measured dust concentrations were averaged. A maximum con-
centration of 2.0 milligrams per cubic meter is permitted for a plan to be
approved.

Upon arriving at the mine to begin the tests, Inspector Isabell
instructed Sewell that it could set its ventilation controls at any level

I
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it wished. Inspector Isabell further indicated that the actual conditions

during the test would be the minimum conditions which would be approved.

Sewell chose not to change its ventilation. During the tests, Inspector

Isabell measured the actual conditions present in the mine. The actual

controls far exceeded the conditions in the proposed plan. The proposed

plan required 18 operating water sprays at 90 pounds pressure on the

continuous-mining machines; but during the test, there were 30 operating

water sprays at 100 pounds pressure on the continuous-mining machines. The

proposed plan required that an air velocity of 15 feet per minute be main-

tained in the main entry; during the test, there was an average air veloc-

ity of 60 feet per minute in the main entry. The proposed plan required

an air volume of 3,000 cubic feet per minute at the end of the line curtain;

but during the test, there was an average air volume of 4,000 cubic feet

per minute behind the line curtain. Even with the controls set at these

higher levels during the test, the results of the tests showed Sewell barely

within the acceptable 2.0 milligrams per cubic meter level.

At the end of the inspection on February 4, 1980, Inspector Isabell told

Sewell that the proposed plan would not be approved. He told Sewell to submit

a new plan by February 8, 1980. On February 14, 1980, Inspector Isabell

returned to the mine. A new plan had not been submitted. Inspector Isabell

thereupon issued a citation for a violation of 30 C.F.R. § 75.316. In that

citation, he wrote:

Based on results of respirable dust samples collected by MSHA, the operator has not submitted a ventilation and methane and dust-control plan setting forth the minimum acceptable respirable dust control requirements for section

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033. The operator was given the opportunity to adjust the control measures and establish the conditions that would prevail during the respirable dust technical inspection.
The operator was informed of the requirement of having to revise the dust control plan on February 4, 1980.

At that time, he set February 18, 1980, as the time by which the viola-

tion should be abated. On February 19, 1980, Inspector Isabell returned

to the mine. Sewell had not submitted a new plan to abate the violation.

Inspector Isabell thereupon issued a section 104(b) order of withdrawal.

Immediately upon being served with the order of withdrawal, Sewell submitted

to Inspector Isabell a new proposed plan. That plan mirrored the conditions

present in the mine during the tests. Inspector Isabell thereupon terminated

the order of withdrawal. The plan submitted on February 19, 1980, has been

approved.

Sewell presented testimony that the proposed plan should have been

approved by MSHA. Jim Lively, Manager of Mines for Sewell, testified that

in late January 1980, Sewell conducted its own respirable dust tests. During

those tests, Sewell tried to stay as close as possible to 3,000 cubic feet

per minute main entry air volume. According to Sewell's analysis, dust

samples taken at that time were in compliance.

Ernest Kincaid, Sewell's assistant chief engineer, testified as an expert

in ventilation that, in his opinion, MSHA required Sewell to utilize unreason-

able dust-control measures before it would approve a plan. He stated that the

volume of air, velocity of air, and height of the mine are all interrelated.

The height of this mine varies. Therefore, to maintain a certain volume of

air, the velocity of air would have to change; to maintain a certain velocity

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of air, the volume of air would have to change as the height changed. He tes- tified that studies done with methane demonstrated that the volume of air could be lowered from 10,000 cubic feet per minute to 5,000 cubic feet per

minute without an appreciable change in the methane concentration. He

believed that that study would be applicable to respirable dust. He further stated that it is very difficult to maintain volume and velocity around air

curtains. He stated that a plan requiring an air velocity of 60 feet per minute and an air volume of 4,000 feet per minute could be significantly

reduced and still maintain a safe level of dust. On cross-examination, Mr. Kincaid stated that the minimum air velocity that would move dust would

have to be empirically determined. He stated that the type of dust and the concentration of rock in the dust would be important in determining what

velocity would be necessary.

Peter Ambrosiani, a self-employed consulting mining engineer, testified

that he did not think that the requirements by MSHA of 60 main entry air

velocity and 4,000 cubic feet per minute air volume at the 033 section were reasonable. He saw no evidence that these requirements were specifically

designed for the methane and dust problems in that particular mine.

James W. Rutherford, a subdistrict manager of MSHA, testified as an expert witness for MSHA on rebuttal. He stated that a main entry air velocity

of 60 feet per minute was needed to control respirable dust. This was so especially when rock was being cut. In his opinion, the parameters in the

approved plan were not arbitrary because Inspector Isabell had spent 5 days testing to find what was necessary to control the respirable dust.

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DISCUSSION

The issue of whether there was a violation in this case is muddied by

MSHA's failure to follow regular procedures in processing and evaluating

Sewell's proposed plan. Normally when a proposed plan is submitted, MSHA

will give the operator tentative written approval. Subsequent to such

tentative approval, tests are performed to evaluate the efficacy of the pro-

posed plan. Thereafter, that plan is either approved in writing or dis-

approved. Here tentative approval and the subsequent disapproval were

given verbally.

Although regular procedures were not followed, Sewell was aware that the

proposed plan was disapproved. Sewell also had sufficient time to rework the

proposed plan to meet MSHA's requirements. When Inspector Isabell issued the

citation, Sewell had not adopted a dust-control plan which showed the equip-

ment and quantity and velocity of air in the mine which had been approved

by MSHA. Sewell, therefore, was in violation of the requirements of 30 C.F.R.

§ 75.316.

Sewell has failed to submit a brief as ordered, so it is difficult to

determine the exact issues it intended to raise at the hearing. From the

testimony adduced, it seems that Sewell intended to argue either that its

May 1979 plan which had been approved satisfied the requirements of the

regulation or that NSHA should have approved the proposed plan.

The fact that Sewell formerly had an approved plan which had not been

disapproved in writing is not a defense to this violation. That plan was

abandoned by Sewell. The regulation requires that the plan "show the type

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and location of mechanical ventilation equipment installed and operated in

the mine * * * the quantity and velocity of air reaching the working face."

The May 1979 plan listed the ventilation equipment and the air velocity and

volume which then was in the mine; it did not show the equipment that was

in the mine at the time that the citation was issued. Therefore; the May

1979 plan did not meet the requirements of the regulation.

Sewell also seems to argue that it did not violate the regulation because

its proposed plan should have been approved by MSHA. In Zeigler Coal Company

v. Kleppe, 536 F.2d 398 (D.C. Cir. 1976), the court wrote that when an opera-

tor of a mine refuses to adopt a ventilation plan requested by the Secretary,

the Secretary may invoke the civil and criminal penalties of the Act. At the

hearing, the operator may offer arguments as to why certain terms sought to be

included are not proper subjects for coverage in the ventilation plan. An

operator should have an opportunity to contest whether MSHA erred in not

approving its plan. See Affinity Mining Company, 6 IBMA 100. In Affinity

Mining Company, supra, the Interior Board of Mine Operations Appeals held

that under §301(c) of the Federal Coal Mine Health and Safety Act of 1969,

an operator had a right to a review of MESA's decision not to approve a

modification of its roof control plan. Similarly, allowing the operator to

contest a citation by arguing that its proposed ventilation and dust-control

plan should have been approved affords the operator an opportunity to question

MSHA's determination not to approve the plan.

In the instant case, MSHA contends that Sewell has waived its right to

raise the issue of whether the proposed plan should have been approved by

MSHA because it filed a subsequent plan which was approved. I find that

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Sewell has not waived its right to challenge MSHA's refusal to approve its

proposed plan. Sewell clearly disputes the reasonableness of the provisions

in the plan required by MSHA.

However, Sewell has failed to show that MSHA's decision not to approve

the plan was incorrect. One of Sewell's witnesses testified that in its

own tests the respirable dust standard was met, but he could not state the

exact conditions which existed during the test. Another witness for Sewell

gave a theoretical argument why air volume could be lowered without affecting

dust concentration, but he could not state exactly to what extent the volume

should be lowered. He conceded that the only way to arrive at the proper

volume would be to test it empirically. Sewell failed to establish that

its proposed plan should have been approved.

Here MSHA tested the conditions in the mine empirically. Sewell was

given the opportunity to adjust its controls to correspond to the proposed

plan for the test; it chose not to do so. The test results show that the

conditions present during the test were barely adequate to control dust.

Therefore, the average conditions during the test were considered to be the

minimum acceptable conditions. MSHA did not err in requiring these condi-

tions or in refusing to approve Sewell's proposed plan.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. In January 1980, Sewell abandoned its May 1979 approved ventilation

and dust-control plan and changed to a new ventilation and dust-control plan.

2. Sewell submitted the proposed plan to MSHA for approval; MSHA gave

a verbal, tentative approval of the proposed plan pending its tests.

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3. MSHA conducted tests to determine whether to approve the proposed

plan. Inspector Isabell told Sewell that actual ventilation and dust-control

conditions present during the test would be the minimum conditions approved.

Sewell was given the opportunity to set its controls at the levels of the

proposed plan; it chose not to do so.

4. During the test, the equipment and controls were set significantly

higher than the proposed plan. Sewell was barely within acceptable dust-

concentration limits during the test.

5. On February 4, 1980, after completing the tests on the proposed plan,

Inspector Isabell told Sewell that its proposed plan would not be approved

and that it should submit a new plan by February 8, 1980.

6. Sewell did not submit a new plan by February 14, 1980. On that date,

Inspector Isabell issued a citation to Sewell for a violation of 30 C.F.R.

§ 75.316. He set February 18, 1980, as the time by which the violation must

be abated.

7. On February 19, 1980, Inspector Isabell returned to the mine. Sewell

did not submit a new plan to abate the violation. Inspector Isabell issued

a section 104(b) order of withdrawal.

8. Sewell thereupon submitted a new plan to abate the violation. That

plan has been approved.

9. An operator may contest a citation for failure to adopt an approved

ventilation and dust-control plan by establishing that MSHA erred in not

approving its proposed plan.

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10. Sewell failed to establish that its proposed ventilation and dust-

control plan should have been approved by MSHA.

11. MSHA did not err in concluding that Sewell's proposed plan would

not adequately control dust. Therefore, MSHA did not err in refusing to

approve Sewell's proposed plan.

12. Sewell violated 30 C.F.R. § 75.316 by failing to adopt an approved

ventilation and dust-control plan. Citation No. 644408 was properly issued

because of that violation.

13. Sewell did not abate the violation of 30 C.F.R. § 75.316 in the

reasonable time for abatement set by Inspector Isabell. Order No. 644409

was properly issued under section 104(b) of the Act.

ORDER

THEREFORE, IT IS ORDERED that the contest of citation and contest of

order are DISMISSED.

James A. Laurenson, Judge

Distribution:

Gary W. Callahan, Esq., Sewell Coal Company, Lebanon, VA 24266 (Certified Mail)

John H. O'Donnell, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)