United States Steel Mining Company, Incorporated

Plain-English summary

At United States Steel Mining's Morton Mine, a miner welded on a continuous mining machine without continuously testing for methane, making a diligent fire search, or having rock dust or a fire extinguisher immediately available. Judge Avram Weisberger found violations of 30 C.F.R. § 75.1106 and unwarrantable failure, but concluded that the evidence did not show a reasonable likelihood of a fire or explosion, so the violations were not significant and substantial. The Judge modified the order to a 104(a) citation and assessed a $400 civil penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1106
• Outcome: The order was modified to a 104(a) citation, and a $400 civil penalty was assessed.
• Key point: A violation can be unwarrantable without being significant and substantial when the evidence shows serious failures but not a reasonable likelihood that the resulting hazard will occur.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. UNITED MINING
DDATE:
19870320
TTEXT:

Page 2

~619

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

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 86-231
PETITIONER A.C. No. 46-01329-03637
v.
Morton Mine
UNITED STATES STEEL MINING
COMPANY, INCORPORATED,
RESPONDENT

                              DECISION

Appearance: Mark R. Malecki, Esq., Office of the Solictior, U.S.
Department of Labor, Arlington, Virginia, for
Petitioner;
Billy M. Tennant, Esq., Pittsburgh, Pennsylvania and
Carl Peters, Senior Mine Inspector, Chesapeake, West
Virginia, for Respondent.

Before: Judge Weisberger

                       Statement of the Case

 The Secretary (Petitioner) seeks a Civil Penalty for an

alleged violation by Respondent of 30 C.F.R. § 75.1106. Pursuant
to notice, the case was heard in Charleston, West Virginia on
December 9, 1986. Charles Knotts and Carl E. Jenkins testified
for Petitioner, and Theodore Cobb and Thomas Cummings testified
for the Respondent. The Parties filed Proposed Findings of Fact
and Briefs on February 17, 1986. No reply briefs were filed.

                          Findings of Fact

 1. On October 29, 1985, at 10:00 a.m., at Respondent's

Morton Mine, Charles Knotts (in his capacity as a Federal Coal
Mine Inspector for the Mine Safety and Health Administration)
arrived at the 047-0 section, and proceeded to a scoop to
determine whether a citation written concerning that scoop had
been abated. He then proceeded to an area marked "B" on
Petitioner's Exhibit 3. He paused for approximately 5 minutes at
this spot and noticed sparks from welding opertions, which were
going on in the second crosscut outby the face area, some 140 feet away from
him. Knotts approached the area where the welder was working on a
continuous mining machine. Knotts testified that he observed the
welder, Theodore Cobb, from a distance of 5 or 6 feet welding on
the continuous miner for a period of 5 to 6 minutes. During this
time Cobb did not take a reading for methane with a methanometer.
No other individual was observed making a methane test either.
(Cobb testified that he had taken a methane test that morning
before he started welding, and this was corroborated by the
testimony of Thomas Cummings, Respondent's electrical foreman.
Cobb also testified that he made frequent and regular tests
during the welding operation. His testimony also differed from
Knotts' version concerning what occurred after Knotts approached
the area in which Cobb was working. I adopted Knotts' testimony
that when he observed Cobb for 5 to 6 minutes, from a distance of
5 to 6 feet there was no testing of methane. My conclusion, in
this regard, is based on observations of the witnesses' demeanor
while testifying about this issue.)

 2. The Morton Mine liberated 700,000 cubic feet of methane

per day in the first quarter of the inspection year 1986, and
1,000,000 cubic feet per day in the last quarter of the
inspection year 1985.

 3. If the methane level accumulates to 5 percent of total

air or more and no methane checks are being made, the gas could
be ignited by welding and cause an explosion. Coal dust increases
the likelihood of explosion and would cause the ensuing explosion
to travel beyond the section in question.

 4. The ventilation system at the Respondent's Morton Mine

circulates over 1,000,000 cubic feet of air per minute. On the
date of the citation there was sufficient air in the area to keep
it clear of methane.

 5. In the 047-0 section there are fans located on both sides

to keep the air free of methane gas.

 6. Methane could accumulate in the mine in the event of a

failure in the ventilation control system if the lime stone
blocks get "out of kilter" (Tr. 53.), or if a fan stops working.
A failure of one fan would have only a "miniscule" effect on the
ventilation in the section. (Tr. 146.)

 7. The ventilation system could also fail if there is a roof

fall on an overcast, or there is a curtain interruption which
could occur if it is knocked down with a piece of mobile
machinery. There was no testimony presented as to whether these
occur in normal mining operations. A block stoppage, causing a
failure of a ventilation system, could be crushed in a "moving
action," from the mine roof or bottom. (Tr. 186.) There is no
evidence that this is a common occurrence in the subject mine.

Page 3

~620
8. Knotts was asked whether it is possible that there can be
interruptions in the Respondent's ventilation system and he
stated "all things are possible, but it is not probable that
there is going to be any major ventilation change." (Tr. 135.)

 9. There was no evidence of any interruptions in the

ventilation system on the date the citation was issued.

 10. On October 29, 1985, when Cobb first began to weld,

prior to the issuance of the citation, he made a gas test with a
methanometer and no methane was detected. Immediately after
Knotts determined that a violation had occurred in the welding
area, no methane was detected in a check for methane.

 11. Cobb was asked in direct examination whether he

conducted a search for fire during the period in question and he
answered in the affirmative " . . . . but it was too wet to worry
about fire." (Tr. 241.) In essence, he further testified that he
always looks for fire and that whenever he puts a rod in and
takes his hood up he will look at the immediate area and see if
there is a fire. (In contrast, it was the testimony of Knotts
that when he stood for 5 or 6 minutes near Cobb, who was welding,
the floor of the mine was not felt by the latter to see if there
were burning pieces of slag. I adopted Knotts' testimony due to
my observations of the witnesses' demeanor, and also because this
testimony is directed specifically to what occurred while Knotts
observed Cobb welding.)

 12. Sparks falling on coal and coal dust could present a

fire hazard.

 13. Knotts testified that on the day in question the mine

floor was damp to dry, but not wet. On the other hand, Cobb
testified that the area beneath where he had worked on the miner
was wet. I adopted this testimony as it was corroborated by
Cummings, and also in light of the fact that both Cobb and
Cummings testified that before Cobb started to weld on the mining
machine it was washed off with a water hose.

 14. Cobb was asked whether he saw any float coal dust and he

answered in the negative. Knotts on the other hand testified that
he saw float coal dust on the machine and that there were
"combustibles" on the floor. (Tr. 105.) I have adopted the
testimony of Knotts with regard to "combustibles" on the floor,
as it was not contradicted. Also, Cobb and Cummings testified that
before the machine was washed off it was scraped. It is thus
conceivable that some coal dust might have been formed in the
scraping process.

Page 4

~621
15. The welding, performed by Cobb on October 29, was to the head
(front) of the mining machine which was located at a crosscut
between two entries. I accepted Knotts' version placing the head
of the miner almost flush with the entry. Knotts testified that,
in essence, after he stopped Cobb from welding, rock dust was
brought from a distance of approximately 140 feet, and that the
fire extinguisher was 4 or 5 breaks away. On the other hand, Cobb
testified that the fire extinguisher was on a header adjacent to
the power center in the next entry to the right of the tail end
of the mining machine, and outby the break (crosscut) in which
the miner was located. His testimony placed the rock dust in that
same entry along the welding machine to the right of the power
center. I accepted Cobb's testimony, in this regard, as it was
corroborated by Cummings. Also, it is noted, that Knotts
testified that he was not in that specific area, and did not
recall where the power center was located, and even said that it
was possible that there was a fire extinguisher and rock dust in
the area as indicated by Cobb and Cummings.

 16. The blocks or pillars between entries are approximately

60 to 70 feet in length, and the entries are approximately 20
feet in length.

 17. The failure to have a fire extinguisher or rock dust

immediately available during welding could reasonably have led to
an increased fire or explosion hazard since a fire would not have
been immediately put out.

 18. An ignition, due to an accumulation of methane at the

site of welding, without the presence of coal dust would cause
severe burns to persons in the immediate area. If coal dust is
present, and an explosion results, it would cause serious injury
or fatalities.

 19. There are generally 10 miners in a section crew, and

approximately 200 miners were at the Morton Mine the day the
citation was issued.

 20. On the date the citation was issued, Cummings, the

electrical foreman, was present in the area the entire time that
Cobb was welding and was supervising him.

   The Parties stuplated that:

 1. The Morton Mine had an annual hours worked or tonnage of

11,130,942 in 1985 and the Respondent had an annual hours worked
or tonnage of 814,854 in 1985.

Page 5

~622
2. The Respondent had 783 inspection days in the period November
1, 1983 through October 31, 1985, and was assessed 536 violations
other than single penalty assessments timely paid.

 3. The fine proposed by Petitioner will not adversely effect

the Respondent's ability to continue in business.

 4. The violation was timely abated.

Regulatory Provisions

   30 C.F.R. § 75.1106 provided as follows:

         . . . Welding, cutting or soldering with arc or flame
        in other than a fireproof enclosure shall be done under
        the supervision of a qualified person who shall make a
        diligent search for fire during and after such
        operation and shall, immediately before and during such
        operations, continuously test for methane with means
        approved by the Secretary for detecting methane.
        Welding, cutting, or soldering shall not be conducted
        in air that contains 1.0 volume per centum or more of
        methane. Rock dust or suitable fire extinguishers shall
        be immediately available during such welding, cutting
        or soldering.

                               Issues

 1. Whether Respondent made a diligent search for fire during

welding on October 29, 1985.

 2. Whether Respondent continuously tested for methane during

welding on October 29, 1985.

 3. Whether rock dust was immediately available during

welding on October 29, 1985.

 4. Whether a fire extinguisher was immediately available

during welding on October 29, 1985.

 5. If a violation of § 75.1106, supra, occurred, was it of

such a nature as could have significantly and substantially
contributed to the cause and effect of a safety hazard.

 6. If a violation of § 75.1106, supra, occurred, whether

such violation was caused by Respondent's unwarrantable failure
to comply with § 75.1106, supra.

Page 6

~623
2. The Respondent had 783 inspection days in the period November
1, 1983 through October 31, 1985, and was assessed 536 violations
other than single penalty assessments timely paid.

Regulatory Provisions

   30 C.F.R. § 75.1106 provided as follows:

         . . . Welding, cutting or soldering with arc or flame
        in other than a fireproof enclosure shall be done under
        the supervision of a qualified person who shall make a
        diligent search for fire during and after such
        operation and shall, immediately before and during such
        operations, continuously test for methane with means
        approved by the Secretary for detecting methane.
        Welding, cutting, or soldering shall not be conducted
        in air that contains 1.0 volume per centum or more of
        methane. Rock dust or suitable fire extinguishers shall
        be immediately available during such welding, cutting
        or soldering.

                               Issues

 1. Whether Respondent made a diligent search for fire during

welding on October 29, 1985.

 2. Whether Respondent continuously tested for methane during

welding on October 29, 1985.

 3. Whether rock dust was immediately available during

welding on October 29, 1985.

 4. Whether a fire extinguisher was immediately available

during welding on October 29, 1985.

 5. If a violation of § 75.1106, supra, occurred, was it of

such a nature as could have significantly and substantially
contributed to the cause and effect of a safety hazard.

 6. If a violation of § 75.1106, supra, occurred, whether

such violation was caused by Respondent's unwarrantable failure
to comply with § 75.1106, supra.

Page 7

~624
Conclusions of Law
Jurisdiction

 Respondent, as owner and operator of the Morton Mine, is

subject to the provisions of the Federal Mine Safety and Health
Act of 1977, and I have jurisdiction over the Parties and subject
matter in this proceeding.

   Violation of Section 75.1106

 Based on my observations of the demeanor of Knotts and Cobb,

I found Knotts' testimony credible that during the 5 or 6 minutes
that he watched Cobb welding, the latter did not test for
methane. Section 75.1106, supra, provides that during welding
methane should be tested for "continuously." Webster's New
Collegiate Dictionary (1979 edition), defines continuous as
"marked by uninterrupted extension in space, time, or sequence."
Inasmuch as neither Cobb or anyone else tested for methane during
the 5 minutes of welding, observed by Knotts, I conclude that the
testing was not done "continuously," and as such § 75.1106,
supra, was violated.

 I found Knotts' testimony credible that during the 5 or 6

minutes that he observed Cobb welding, the latter did not feel
the floor of the mine to see if there were burning pieces of
slag. Cobb testified that, in essence, whenever he changed the
rod he had his hood up, and he would notice whether there was a
fire in the area under him. He indicated that he always looks for
fire "but it was too wet to worry about a fire." (Tr. 241.) It
was the testimony of Knotts that when he stood for 5 or 6 minutes
near Cobb, who was welding, the floor of the mine was not felt by
the latter to see if there were burning pieces of slag. I adopted
Knotts' testimony due to my observations of the witnesses'
demeanor, and also because this testimony is directed specifically
to what occurred while Knotts observed Cobb welding.

 Section 75.1106, supra, requires that during welding the

search for fire be "diligent." Webster's New Collegiate Dictionary,
(1979 edition), defines "search" as " . . . to look into or over
carefully or thoroughly in an effort to find or discover something
. . . ." [Emphasis added.] This same source defines "diligent" as
"characterized by steady, earnest, and energetic application and
effort." Based on these definitions, I conclude that although Cobb
would have noticed a fire when he removed his hood, he did not make
a diligent search for fire during the time that he was observed by
Knotts. As such, a violation of § 75.1106, supra, has occurred.

 I found credible the testimony of Cobb and Cummings that a

fire extinguisher and rock dust, on October 29, 1985, were
located at the next entry and outby the areas by which Cobb was
welding. Specifically, I adopted Knotts' testimony which placed
the area in which Cobb was working, one entry removed from the
areas Cummings and Cobb testified to be the location of the fire
extinguisher and rock dust. Accordingly, one would have to
traverse the length of a pillar, approximately 50 feet, and then
travel some distance outby to reach the fire extinguisher and rock
dust.

Page 8

~625
Webster's New Collegiate Dictionary (1979 edition), defines
"immediately" as, "(1) in direct connection or relation . . . .";
(2) without interval of time . . . ." Due to the distance involved
between the welding site where Cobb was welding, and the fire
extinguisher and rock dust on October 29, 1985, I find that the
latter two items were not "immediately available," as required in
§ 75.1106, supra, and as such that section was violated.

Significant and Substantial

 The Petitioner has, in essence, alleged that the nature of

Respondent's violations of § 75.1106, supra, fall within the
purview of § 104(d)(1) of the Act, as they " . . . could
significantly and substantially contribute to the cause and
effect of a coal . . . mine safety or health hazard . . ." (§
104(d), supra) In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the
Commission set forth the elements of a "significant and substantial"
violation as follows:

      In order to establish that a violation of a mandatory
      safety standard is significant and substantial under
      National Gypsum the Secretary 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 reasonably serious nature. (6 FMSHRC,
      supra, at 3-4.)

 As discussed above, infra, I have already found that a

mandatory safety standard, i.e., 30 C.F.R. § 75.1106, has been
violated. Accordingly, the first element of Mathies, supra, has
been satisfied.

 Knotts' testimony was not contradicted that, in essence, if

as a result of not testing for methane, undetected methane
increases to five percent of total air, a fire or explosion could
occur in the event the ventilation system fails. Thus, it is
concluded that not testing for methane contributed to some extent
to the hazard of a fire or explosion. It has already been found,
infra, that neither a fire extinguisher nor rock dust were
"immediately available," at the site of Cobb's welding.
Accordingly, in the event of a fire or explosion, caused by excess
methane being ignited, the hazard would be increased because, due
to the placement of the fire extinguisher and rock dust, the fire
would not be immediately put out.

 Cobb testified that while welding, upon lifting up his hood he

would be able to check the exact area in which he was working.
However, that there was no evidence that specifically there was
any search for fire, or welding sparks, on or about the miner.
Although Cobb and Cummings testified, in essence, that there was
not coal dust on the miner, I adopted Knotts' testimony as to the
presence of coal dust on the miner. Inasmuch as Cobb had testified
that prior to the welding he and another miner had scraped the
mining machine of coal, it is likely that coal dust, to some
extent, had remained, even after it was washed down. I concluded
that Cobb did not make a diligent search for fire. Thus, there is
a likelihood that some sparks might have remained undetected on
the floor or on the miner. I accepted Knotts' testimony that there
were combustible items on the floor, and that there was coal dust
on the miner. Thus, I conclude that the failure to make a diligent
search for sparks did, in combination with the evidence of coal
dust and combustible items, contribute to a fire hazard.

 Accordingly, I conclude that the second element of Mathies,

supra, has been established in that the violation did contribute
to a discrete safety hazard.

 As interpreted by the Commission in Secretary of Labor v.

Consolidation Coal Company, 6 FMSHRC 189, at 193 (February 1984),
the third element articulated by the Commission in the Mathies,
supra, "embraces a showing of a reasonable likelihood that the
hazard will occur, because, of course, there can be no injury if it
does not."

 According to the testimony of Carl E. Jenkins, Federal Coal

Mine Supervisor, the Morton Mine is considered to liberate more
methane then many other mines in the area, and, indeed, in the last
quarter of the inspection year 1985, it was found to liberate
1,000,000 cubic feet per day. Knotts has indicated that an
accumulation of methane in concentrations of more than 5 percent of
total air, could lead to an ignition or explosion. Jenkins testified
that, in essence, although the area in which Cobb was welding is not
considered to be a high liberator of methane, there was a
"possibility," that methane could accumulate between 5 and 15
percent. However, Jenkins indicated that, at the location where
Cobb was working, a couple of breaks outby the face, normally he
would not expect to find methane. Furthermore, Knotts indicated
that Respondent's ventilation system, which has the purpose of
keeping the air free of methane gas, is very effective, and that on
the day that he issued the citation there

Page 9

~626
Cobb testified that while welding, upon lifting up his hood he
would be able to check the exact area in which he was working.
However, that there was no evidence that specifically there was
any search for fire, or welding sparks, on or about the miner.
Although Cobb and Cummings testified, in essence, that there was
not coal dust on the miner, I adopted Knotts' testimony as to the
presence of coal dust on the miner. Inasmuch as Cobb had testified
that prior to the welding he and another miner had scraped the
mining machine of coal, it is likely that coal dust, to some
extent, had remained, even after it was washed down. I concluded
that Cobb did not make a diligent search for fire. Thus, there is
a likelihood that some sparks might have remained undetected on
the floor or on the miner. I accepted Knotts' testimony that there
were combustible items on the floor, and that there was coal dust
on the miner. Thus, I conclude that the failure to make a diligent
search for sparks did, in combination with the evidence of coal
dust and combustible items, contribute to a fire hazard.

 Accordingly, I conclude that the second element of Mathies,

supra, has been established in that the violation did contribute
to a discrete safety hazard.

 As interpreted by the Commission in Secretary of Labor v.

Consolidation Coal Company, 6 FMSHRC 189, at 193 (February 1984),
the third element articulated by the Commission in the Mathies,
supra, "embraces a showing of a reasonable likelihood that the
hazard will occur, because, of course, there can be no injury if it
does not."

 According to the testimony of Carl E. Jenkins, Federal Coal

Mine Supervisor, the Morton Mine is considered to liberate more
methane then many other mines in the area, and, indeed, in the last
quarter of the inspection year 1985, it was found to liberate
1,000,000 cubic feet per day. Knotts has indicated that an
accumulation of methane in concentrations of more than 5 percent of
total air, could lead to an ignition or explosion. Jenkins testified
that, in essence, although the area in which Cobb was welding is not
considered to be a high liberator of methane, there was a
"possibility," that methane could accumulate between 5 and 15
percent. However, Jenkins indicated that, at the location where
Cobb was working, a couple of breaks outby the face, normally he
would not expect to find methane. Furthermore, Knotts indicated that
Respondent's ventilation system, which has the purpose of keeping
the air free of methane gas, is very effective, and that on the day
that he issued the citation there

Page 10

~627
was sufficient air in the area to keep it free of methane. It
appears further, from Knotts' testimony, that the only way in
which methane would increase to the point to where it would
constitute a fire or explosion hazard, would be in the event of a
failure of the ventilation system. In essence, it was the
testimony of Knotts and Jenkins that a failure of the ventilation
system could occur: if a fan would stop working, if the check
curtains would become interruped, if the lime stone blocks would
get "out of kilter," (Tr. 53.) if the block stoppings would get
crushed, or if there would be a roof fall on an overcast.
However, Knotts indicated that "it's not probable that there is
going to be any major ventilation change." (Tr. 135.) He further
stated that the failure of one fan would have only a "miniscule"
effect on the ventilation in the section. (Tr. 135-136.) Jenkins
said that usually interruptions of a block curtain could occur if
it is knocked down with a piece of mobile machinery, but he did
not offer any opinion on the likelihood of this event occurring.
Also, there was no evidence presented as to the likelihood of the
lime stone block getting "out of kilter," (Tr. 53.) the roof
falling on an overcast, or the crushing of block stoppings. In this
connection, Knotts testified that the latter condition occurs from
a "moving action" from the mine roof or bottom, (Tr. 186.) but there
was no evidence presented that this is a common occurrence in the
Respondent's mine.

 There was evidence presented that there have been at least

12 cited violations of the Respondent's ventilation plan in the
last 2 years. However, Jenkins, in essence, testified that there
was no way that he could ascertain whether any of these violations
were specifically for any failure of the ventilation system.

 Accordingly, it must be concluded that Petitioner has failed

to establish that there was any reasonable likelihood of a failure
of Respondent's ventilation system to the extent that it would
cause methane to accumulate in a high enough concentration as to
constitute a hazard. Therefore, it must be concluded that it has
not been established that there was a reasonable likelihood that a
fire or explosion will occur as a result of Cobb's failure to
continuously test for methane.

  I have adopted the testimony of Cobb and Cummings that on

the morning of October 25, 1985, prior to welding, the miner was
washed down. It is likely that the washing would have caused the
miner and the area around it on the floor, to be somewhat wet.
Taking this factor into account, I find that the Petitioner has
not met its burden in establishing that there was any reasonable
likelihood of combustible materials or coal dust on the floor or
on the miner, being in a dry enough state to have been ignited by
sparks caused by the welding operation. It thus is not established
that as a result of the failure of Cobbs to make a diligent search
for fire, there was a reasonable likelihood of a fire.

Page 11

~628
Therefore, based upon on all of the above, I conclude that it has
not been established that the violations herein were "significant
and substantial."

 (I conclude, based upon the testimony of Jenkins, that in

the unlikely event of a fire or explosion either could have
reasonably been expected to result in fatalities or serious
injuries to miners in the blast or fire area.)

   Unwarrantable Failure

 At the date the citation was issued, Cummings, the

electrical foreman, was supervising Cobb directly and was in the
area the entire time that Cobb was welding. As such, he was in the
position to observe Cobb, and thus should have known of his failure
to continuously test for methane during the welding. He also
should have known that no one else was testing for methane. In the
same fashion, he should have known that Cobb was not making a
diligent search for fire during the welding. Further, inasmuch as
he knew the location of the fire extinguisher and rock dust, he
thus should have known that it was not "immediately available,"
during the welding. As such, I conclude that the violation of
§ 75.1106, supra, was due to Respondent's "unwarrantable failure."

   Civil Penalty

 I have considered all of the criteria in § 110(i) of the

Act. All criteria have been stipulated to except the Respondent's
negligence and the gravity of the violation. I conclude that
Respondent, in violating § 75.1107, supra, acted with a high
degree of negligence. Further, since I found that the violation
was not "significant and substantial," I conclude that its gravity
was only moderately serious. I conclude that a fine of $400 is
appropriate.

                                 ORDER

 It is ORDERED that Order Number 2717216, is modified to a

104(a) Citation. It is further ORDERED that Respondent pay the
sum of $400 within 30 days of the date of this decision as a civil
penalty for the violation found herein.

                           Avram Weisberger
                           Administrative Law Judge