Westmoreland Coal Company v. Secretary of Labor (MSHA) (ALJ decision, April 19, 1984)

Plain-English summary

MSHA issued a withdrawal order against Westmoreland Coal after an inspector calculated that a working section at Hampton No. 3 Mine had less air than required by 30 C.F.R. § 75.301. Westmoreland contested the order, and MSHA sought a civil penalty. Before the hearing, the inspector acknowledged that his calculation method was wrong and that a correct calculation showed compliance. MSHA vacated the order and withdrew its penalty proposal, while Westmoreland withdrew its contest. Judge George A. Koutras granted both motions, dismissed the proceedings, and confirmed that the order was vacated. No civil penalty was assessed.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.301, required mine ventilation air.
• Outcome: Order 2147593 vacated; penalty proposal and contest dismissed.
• Key point: The alleged ventilation shortfall disappeared when the inspector corrected his air quantity calculation.

Full text (FMSHRC public release)

CCASE:
WESTMORELAND V. SOL (MSHA)
DDATE:
19840419
TTEXT:
~939

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

WESTMORELAND COAL COMPANY,
CONTEST PROCEEDING
CONTESTANT
v. Docket No. WEVA 83-266-R
Order No. 2147593; 8/19/83
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
Hampton No. 3 Mine
ADMINISTRATION (MSHA),
RESPONDENT

SECRETARY OF LABOR,
CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. WEVA 84-76
PETITIONER
A.C. No. 46-01283-03532
v.
Hampton No. 3 Mine
ESTMORELAND COAL COMPANY,
RESPONDENT

DECISION

Appearances: Kevin McCormick, Esq., U.S. Department of Labor, Office of the Solicitor, Arlington, Virginia, for Petitioner/Respondent;
F. Thomas Rubenstein, Esq., Westmoreland Coal Company, Big Stone Gap Virginia, for Contestant/Respondent.

Before: Judge Koutras

Statement of the Proceedings

These consolidated proceedings concern a proposal for assessment of a civil penalty filed by MSHA against Westmoreland Coal Company pursuant to section 110(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 820(a), seeking a civil penalty assessment for an alleged violation of mandatory ~940 safety standard 30 CFR 75.301. The alleged violation was stated in a section 104(d)(2) Order served on Westmoreland by MSHA Inspector Vaughan Gartin on August 19, 1983.

Westmoreland Coal Company contested the civil penalty proposal, and also filed a separate Notice of Contest pursuant to Section 105(d) challenging the legality of the order. The cases were consolidated for trial in Madison, West Virginia, and were heard at the conclusion of a consolidated trial of two other docketed cases concerning these same parties.

Discussion

Section 104(d)(2) Order No. 2147593, 1:50 a.m., August 19, 1983, cites a violation of 30 CFR 75.301, and the condition or practice is described as follows:

The required minimum amount of air 9,000 CFM, could not be obtained with an approved anemometer on the return side of the last open crosscut between the No.'s 4 and 5 entries of the 019-0 8 Right section in that when measured only 5,850 CFM was present. Coal was being mined in the No. 5 entry. Said section supervised by Russell Welch.

The inspector found that the violation was "significant and substantial," and he ordered the withdrawal from the 019-0 8 right section.

The inspector cited a previous order, No. 2140708, issued on February 18, 1983, as the "initial action," underlying the order which he issued on August 19, 1983.

Order No. 2147593 was abated at 3:00 p.m., August 19, 1983, and the abatement action states:

23,400 CFM was obtained in said last open crosscut.

On September 28, 1983, the inspector modified Order No.
2147593, to delete the "significant and substantial" finding, and to delete his previous gravity finding of "Reasonably Likely," to reflect a finding of "unlikely." The modification notice reflects that these corrections were the result of a "violation conference held in this office on this date."
~941
Findings and Conclusions

When these proceedings were called for hearing, the parties advised me that they proposed to dispose of these cases by mutual consent and agreement of the parties, and they presented their arguments on the record for my consideration.

MSHA's counsel asserted that during his interview with Inspector Gartin in preparation for trial the inspector informed him that he had made a mistake in the method he used to determine his allegation that only 5,850 CFM's of air was present at the time he took an air reading with an anemometer in the cited crosscut as stated in his citation. The inspector conceded that had he correctly computed the amount of air present in the area, the respondent/contestant would have been in compliance with the requirements of section 75.301. In short, the inspector conceded that the order was mistakenly issued, and he produced a copy of a modification of the order which indicates that he has vacated it.

In view of the foregoing, MSHA's counsel moved to withdraw and dismiss its proposal for assessment of civil penalty filed in the penalty case. At the same time, Westmoreland's counsel moved to withdraw its notice of contest.

After due consideration of the oral joint motions filed by the parties, they were granted from the bench.

ORDER

MSHA's motion to withdraw its proposal for assessment of civil penalty IS GRANTED, and the case is dismissed.

Westmoreland's motion to withdraw its notice of contest IS GRANTED, and it is dismissed.

In view of the foregoing, the contested section 104(d)(2) order, No. 2147593, issued on August 19, 1983, IS VACATED.

George A. Koutras
Administrative Law Judge