Stoney Coal Company

Read the official release (fmshrc.gov)

Plain-English summary

MSHA alleged that Stoney Coal used return air instead of a separate intake-air split while developing a mine entry and also cited a separate preshift-examination violation that the operator did not contest. Judge George A. Koutras vacated the unwarrantable-failure finding, modified the contested order to a regular citation, and affirmed it as significant and substantial. He assessed $450 for that violation and ordered payment of the uncontested $700 penalty, for a total of $1,150. The decision also dismissed the proceeding upon receipt of payment.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.319; 30 C.F.R. § 75.303
• Outcome: The unwarrantable-failure order was modified to a regular significant-and-substantial citation, with $450 assessed, and the uncontested $700 penalty was ordered paid.
• Key point: A ventilation violation may remain significant and substantial while the evidence supports ordinary or moderate negligence rather than unwarrantable failure.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. STONEY COAL
DDATE:
19890206
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 88-113
PETITIONER A.C. No. 46-06722-03556

      v.                              No. 2 Mine

STONEY COAL COMPANY,
RESPONDENT

                         DECISION

Appearances: Ronald E. Gurka, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Petitioner;
William D. Stover, Esq., M.A.E. Services, Inc.,
Beckley, West Virginia, for the Respondent.

Before: Judge Koutras

                    Statement of the Case

 This is a civil penalty proceeding initiated by the

petitioner against the respondent pursuant to section 110(a) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
820(a). Petitioner seeks civil penalty assessments in the amount
of $1,500 for two alleged violations of certain mandatory safety
standards found in Part 75, Title 30, Code of Federal
Regulations. The respondent filed a timely answer contesting one
of the alleged violations, namely section 104(d)(1) Order No.
2716156, 30 C.F.R. 75.319, served on the respondent by an MSHA
inspector on August 25, 1987. The respondent opted not to contest
the second alleged violation, section 104(d)(1) Order No.
2716152, 30 C.F.R. 75.303, served on August 25, 1987, and has
agreed to pay the proposed civil penalty assessment of $700 (Tr.
3). A hearing was held in Beckley, West Virginia, and the parties
waived the filing of posthearing briefs. However, I have
considered the oral arguments made by the parties during the
course of the hearing in my adjudication of this matter.

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Issues

 The issues presented in this case are (1) whether the

condition or practice cited by the inspector constitutes a
violation of the cited mandatory safety standard, (2) the
appropriate civil penalty to be assessed for the violation,
taking into account the statutory civil penalty criteria found in
section 110(i) of the Act, and (3) whether the violation was
"significant and substantial." Additional issues raised by the
parties, including the "unwarrantable failure" issue, are
identified and disposed of in the course of this decision.

      Applicable Statutory and Regulatory Provisions

 1. The Federal Mine Safety and Health Act of 1977; Pub. L.

95-164, 30 U.S.C. 801 et seq.

   2. Section 110(i) of the 1977 Act, 30 U.S.C.       820(i).

   3. Commission Rules, 29 C.F.R.    2700.1 et seq.

Stipulations

   The parties stipulated to the following (Tr. 4):

        1. The presiding judge has jurisdiction to hear and
        decide this matter.

        2. The assessment of a civil penalty for the alleged
        violation in question will not affect the respondent's
        ability to continue in business.

        3. The respondent has products which enter commerce or
        has operations which affect commerce.

                        Discussion

 The contested section 104(d)(1) Order No. 2716156, served on

the respondent on August 25, 1987, cites an alleged violation of
mandatory safety standard 30 C.F.R. 75.319, and the cited
condition or practice is described as follows: "A separate split
of intake air was not provided for the mechanized mining section
being operated in the return air courses, 35 feet inby the No. 4
drift opening."

Petitioner's Testimony and Evidence

 MSHA Inspector George Bowman, testified as to his experience

and training, and he confirmed that he has conducted

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"quite a few" regular and spot inspections of the respondent's
mine. He confirmed that he was at the mine on Friday, August 21,
1987, to complete an inspection, and that he advised Mine Foreman
Don Hughes that he would be back the following Tuesday, August
25, to "run dosimeters on his underground employees." Upon his
return to the mine he noticed two employees exiting a drift
opening where a new fan installation was begun over the weekend,
and he identified exhibit P-1 as a copy of the approved mine map
ventilation system for the area where this installation was being
made. The entry had been advanced approximately 70 feet, and Mr.
Bowman confirmed that he observed a continuous miner and a
shuttle car in the entry, and that he issued Citation No.
2716152, for a violation of section 75.303, when he could not
find any evidence that a preshift examination had been conducted
and reported for the entry. After observing the employees exit
the drift, he proceeded into the area and observed that no
ventilation line curtains had been installed. He also observed
other violative conditions, and issued a total of six citations
for several ventilation and electrical violations (Tr. 5-15).

 Mr. Bowman stated that he noticed that the air current was

coming back down the entries toward the area that was being
mined, and the "air current was to the extent that you could feel
it; it was very good movement" (Tr. 15). He then proceeded to the
mouth of the six left entry toward the six left gob, between the
first and second crosscuts between the two entries to take a
reading of the direction of the air flow from the pillared area,
and he marked the location with an "X" on the mine map. He
confirmed that he used an anemometer to check the air, and that
"the vanes of the anemometer did turn rapidly," and he determined
that the air coming from the gob area was flowing toward the
drift entry. After making this determination, he cited the
respondent with a violation of section 75.319 (Tr. 16-17).

 Referring to the mine ventilation system map, exhibit P-1,

Mr. Bowman described and explained the intake air flow system
through the area in question, and he confirmed that it should
have been coursing positive toward the outside of the mine. He
found that the air had apparently reversed through the approach
to the six left pillared out area and that under the approved
plan it should have been going in the opposite direction toward
the gob area rather than toward the new drift mouth where the
continuous miner and shuttle car were located (Tr. 17-20). The
coursing of the air in the wrong direction presented a hazard in
that any methane or "black damp" which may have developed during
mining would not be coursed away from the new drift entry. Since
the entry had been mined for

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approximately 69 feet with no line ventilation curtains,
contaminants from the pillared area would have passed over or
near the equipment which was operating, and an arc or blown cable
may have ignited any methane in that drift entry which he marked
with the letter "A" on the map. Mr. Bowman confirmed that this
location in the entry was inby the last open crosscut (Tr. 22).

 Mr. Bowman identified a copy of a supplemental ventilation

plan submitted by the respondent on August 26, 1987, after his
inspection, and it shows the installation of two stoppings across
the number one and two entries separating the intake split from
the air that passed by the six left bleeder. These stoppings
provided a separate split of intake air to the miners working
down in the drift opening, and had the effect of abating the
violation (Tr. 26).

 Mr. Bowman believed that the violation resulted from a high

degree of negligence because mine foreman Don Hughes was aware of
the installation of the fan and they had discussed the situation
the week prior to the inspection of August 25, 1987, when the
drift in question was being developed. The drift was constructed
in an effort to control some water located inby the drift which
was freezing and causing problems for the fan and travel in the
area (Tr. 30). Mr. Bowman confirmed that coal was being mined as
the drift was being advanced, and upon completion of the drift
entry, normal mining operations would have continued (Tr. 32).

 On cross-examination, Mr. Bowman confirmed that although he

discussed the fan installation prior to August 25, 1987, he
raised no objections about the new drift entry because the method
of mining the new entry never came up, and he was not aware that
a new entry would be needed for the fan installation (Tr. 32). He
confirmed that he did not go beyond the point marked "X" on the
map, and did not walk into the gob area. He confirmed that he
made no methane test in that area, and that the anemometer
readings which he made indicated that the air was coming in the
opposite direction from what was shown on the approved
ventilation plan (Tr. 33). He explained the direction of air
travel by reference to the map (Tr. 34-36).

 Mr. Bowman stated that intake air becomes return air when it

has passed through or ventilated the lasted open crosscut, or
after it passed the working faces. Assuming the intake air was
going through the regulator down toward the area being developed,
it would not have passed any working faces if it were travelling
that course (Tr. 38). He confirmed that he

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walked the area where the continuous miner had been working and
made methane tests. Although he could not recall the exact
methane level, it could not have been over one percent (Tr. 40).
However, methane and "black damp" is a concern when the air
current in a ventilation bleeder system is not travelling in the
proper course and direction, and he believed the air was coming
from the approaches to the gob area, and not the gob area itself
(Tr. 41, 44). He confirmed that he did not check the bleeder
evaluation points in the gob area (Tr. 43), but reiterated that
the air "wasn't going the way it was supposed to be going" as
shown on the ventilation plan (Tr. 45-46).

 Mr. Bowman identified the "mechanical mining section" that

was not being ventilated by a separate split of air as the area
marked "A" on the ventilation map, and he indicated that it was
35 feet inby the number four drift (Tr. 48). He stated that when
that area was initially developed it was an entry, and when "he
goes back and rehabilitates the area, its a crosscut" (Tr. 49).
He explained that the area in question had no equipment in it
when he was at the mine on August 21, and it would have been an
entry. However, when he returned on August 25, the entry had been
developed, and it became a crosscut (Tr. 54). The air that was
ventilating this area was return air rather than intake air (Tr.
56).

Respondent's Testimony and Evidence

 Josiah C. Lilly, mine superintendent, confirmed that he was

at the mine when Mr. Bowman issued the order on August 25, 1987,
and he explained the work performed to install the fan at the
number 4 entry or portal in order to increase ventilation and
improve the efficiency of the fan. He also confirmed that his
engineering department informed MSHA about the ventilation
changes, but he was not sure that he spoke with Mr. Bowman about
them, but that the mine foreman did (Tr. 63). Referring to a copy
of the ventilation map, exhibit R-1, Mr. Lilly explained the
working ventilation system prior to the installation of the fan,
and he confirmed that the map was in effect at the time the order
was issued (Tr. 64-66).

 Mr. Lilly identified two stoppings shown on the map which

were installed soon after the violation was issued to separate
the gob area, and he confirmed that they were installed in
response to the violation. In response to a question as to
whether or not intake air passed through the regulator shown on
the map down to the cited area in the number 4 drift opening, Mr.
Lilly replied that "it was possible," but he did not go to the
area to check it (Tr. 67).

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Mr. Lilly stated that he walked through the area designated as
No. 1 on exhibit R-1, and that the air coming into the entries
"had to come off the main intake." The bleeders were functioning
properly, and he stated that "the air going in at this point,
there's no way it could be coming out and going to the area where
the men had been working" (Tr. 70). He tested for methane and
found none. He confirmed that the regulator stopping marked on
the map with a "green R" had some blocks out of it and that air
was coming through at the barrier point. He agreed with Inspector
Bowman that air was coming out in the wrong direction, and that
"it wasn't supposed to be travelling in that direction at that
point, that's correct" (Tr. 70). However, he did not believe
there was any danger of air coming out of the gob because
pressure was kept against the gob by means of a blowing fan.

 Mr. Lilly confirmed that he discussed the abatement of the

violation with the inspector and the company engineering
department, and that the two stoppings marked in green on the map
were installed to abate the violation. He also believed that the
regulator had to be opened more, but he was not sure. The effect
of the stoppings "prevented any air from coming that way, and
made all the air come out at one point--out of one location,
where the regulator is" (Tr. 72). He did not check the air after
this was done, and he did not know whether this made any
difference in the amount of air at that point (Tr. 72). However,
he indicated that the intake air was still traveling in the same
direction at every location, but that the stoppings which were
installed eliminated the inspector's concern with the air coming
off the gob. This change was approved by MSHA to abate the
violation so that the order could be terminated to allow work to
continue (Tr. 73).

 On cross-examination, Mr. Lilly confirmed that the

ventilation map he referred to, exhibit R-1, is undated, and that
he did not know when it was prepared or submitted to MSHA.
Respondent's counsel stated that the map was never submitted to
MSHA, but was prepared specifically for this case as Mr. Lilly's
recollection of the ventilation in place at the time of the
violation (Tr. 74). Mr. Lilly stated that the arrows marked in
blue on the map shows the direction of the intake air flow going
down the entries at the time of the violation. When asked whether
intake air was in fact going in the direction of the arrows, Mr.
Lilly replied "I know when I went into this area that air was
going into the gob, and there was going this direction also
(sic). These areas were being ventilated off of the intake air"
(Tr. 76). He confirmed that he was in the area at 7:30 a.m.,
after the violation was

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issued at 6:30 a.m., and that he had not previously been there
for at least 3 months. Prior to the violation, he did not know
whether intake air was flowing down towards the number two entry
as indicated by the blue arrows. He also confirmed that the four
single arrows which he circled in red on the map indicated the
direction of return air, and that according to the map, it
reflects that intake air and return air were flowing in the same
direction down the same air course (Tr. 77-78). Mr. Lilly stated
that "I feel like myself, that it was more intake air than was
needed to ventilate the gob area, and that was the air that was
coming down" (Tr. 78).

 Mr. Lilly confirmed that it was impossible for intake and

return air to be flowing in the same direction within the same
air course as shown on the map, but that his testimony regarding
the ventilation which he believed existed at the time of the
violation is based on the map (Tr. 84). When asked whether he
knew whether intake or return air was going to the entry marked
number two on the map used by the inspector during his testimony,
exhibit P-1, Mr. Lilly replied "not at the time of the violation,
no" (Tr. 85). Mr. Lilly confirmed that he was aware of the fact
that the fan in question would be installed 3 or 4 weeks before
the violation was issued, and that he made the decision to
install it with his engineering department. He confirmed that the
ventilation system shown on his map, exhibit R-1, reflected the
planned ventilation system, but he could recall no blue or orange
coloring on the map when he reviewed it (Tr. 86). Respondent's
counsel reiterated that the map was presented "for the purpose of
Mr. Lilly's recollection" (Tr. 89). Petitioner's counsel
confirmed that the two maps, exhibits P-1 and R-1, are identical
except for the blue and orange arrow markings (Tr. 90).

 Mr. Lilly conceded that the cited area in question was not

being ventilated in the manner shown on the ventilation map
submitted to MSHA, and respondent's counsel stipulated that the
plan submitted to MSHA showed that area in question "showed that
as being the return" (Tr. 90-91). Mr. Lilly contended that on the
day of the violation, intake air was being used to properly
ventilate the entry where the fan was being installed (Tr. 92).
When asked why the stoppings were installed after the violation
was issued if in fact the area was being properly ventilated, Mr.
Lilly responded "to get everything taken care of to get the
violation abated" and "we had to get back to work. We had to do
what would satisfy MSHA" (Tr. 92-93).

 Mr. Lilly stated that the regulator next to the number 2

entry was removed on the Sunday prior to Inspector Bowman's

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return to the mine on Tuesday, August 25, 1987. He explained that
the regulator had "quite a few openings" and "wasn't plastered to
actually seal the air completely off." He stated that the removal
of the regulator could possibly have had the effect of reversing
the air flow in the gob area, but he believed that this was not
the case. He conceded, however, that he would not have known this
until after he went to the area at 7:30 a.m., on the day the
violation was issued (Tr. 103). In explaining his travel through
the area, he stated that "there were different locations up
through here where air was coming in, along with the leakage
through the stoppings. No matter how you build a stopping, it
leaks a little" (Tr. 104-105). When asked to locate those areas,
he stated that they do not appear on the map, exhibit P-1 (Tr.
105). He confirmed that the regulator had to be removed so that
equipment could pass through the drift that was being driven (Tr.
107).

 Inspector Bowman was called in rebuttal by the petitioner,

and he explained the effect of the removal of the regulator on
the ventilation used for the number 2 entry in question, as well
as the gob area. Although he was of the opinion that the air
ventilating the gob was not sufficient to ventilate it properly,
he conceded that he could not support a citation for this
purported condition because he could not make such a
determination, and he did not know how much air was coming off
the gob. The only determination that he could make was that "the
air was coming by the approaches," and that some of it was
pulling away from the gob area, as determined by his anemometer
reading which indicated that "there was enough to turn the vanes
of the anemometer" (Tr. 111, 113, 115-116). He confirmed that he
had no knowledge as to the quality of the air going over the
working area because he did not sample it (Tr. 116).

 On cross-examination, Mr. Bowman stated that the regulator

marked with a green "R" on respondent's map, exhibit R-1, was
there during his inspection, and that intake air was going
through it (Tr. 117).

Petitioner's Arguments

 Petitioner maintains that given the fact that coal producing

machinery was located and used for mining in the cited mechanized
mining section, that area was in fact a mechanized mining unit
within the meaning of section 75.319. With regard to the
respondent's arguments concerning the phrase "contiguous working
places" as found in the section 75.319-1, the definition of a
"mechanized mining section," and the definition of "working
places," petitioner maintains that the evidence establishes that
there was only one working place,

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namely the cited drift area where the mining equipment was
located. Petitioner points out that the inspector believed that
the cited location of the violation was inby the last open
crosscut, and it takes the position that the definition found in
section 75.319-1, does not require the existence of a number of
working places at this location. Petitioner asserts that the
definition was designed for application to a normal working face
with an open crosscut and several entries going up to the working
faces, and that a typical mechanized unit would have a set of
equipment used to work several entries, and the definition was
designed with this in mind.

 Petitioner asserts that the facts in this case present a

"unique situation" where mining was being done just inside the
opening of a well developed mine, and that the primary purpose of
this mining was to install a ventilation fan whose ultimate
purpose was to improve mine ventilation. However, given the
presence of mechanized mining equipment and mining in an entry
which was not ventilated on a separate split of intake air, the
hazards designed to be addressed by section 75.319 existed. In
the event a hypothetical second entry was necessary, and was
mined prior to the situation found by the inspector, the hazard
to miners would have been the same because the hazard presented
comes from the equipment used for mining in the area, rather than
from the number of entries that the equipment is being used in.
By citing section 75.319, and requiring a separate split of
intake air to ventilate the area to abate the violation, the
inspector believed that this was the safest method for
ventilating the area and preventing possible explosions or other
hazards (Tr. 118-120).

 With regard to the question of negligence, petitioner

asserts that the evidence presented clearly demonstrates more
than "mere negligence" and supports the inspector's
"unwarrantable failure" finding. In support of this conclusion,
petitioner maintains that the respondent proceeded to install the
fan without concern for the safety of miners, conducted no
preshift inspection, and did not check its ventilation plan to
ensure there was proper ventilation where mining was taking
place. Given the fact that the respondent "just wanted to go in
there and get this done and didn't care about the miners in there
one way or another," counsel concludes that the respondent
demonstrated a high degree of negligence (Tr. 120-121).

 With regard to the gravity of the violation, petitioner

points out that the inspector compared it with the "Farmington
Disaster," which presented a serious explosion hazard, and it
takes the position that the requested minimum civil penalty
assessment of $800 is adequate. Petitioner conceded that

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there is no evidence of the presence of any explosive levels of
methane or that the continuous-mining machine was in other than a
permissible condition. However, petitioner took the position that
the mere presence of the miner was a potential ignition source,
and that the respondent had an obligation to preshift the cited
area to verify that no hazardous conditions were present (Tr.
123-124).

Respondent's Arguments

 Respondent asserted that in the absence of any "mechanized

mining section," the alleged violation of section 75.319, cannot
stand. Given the definition of "working place" as the "area of
coal inby the last open crosscut," and the absence of any
crosscut at the place where the fan was to be installed, an "SMU
number," and a dust-control plan, respondent concludes that there
is no evidence of the existence of any "mechanized mining
section" on the day of the inspection. However, the respondent
conceded that at the time of the inspection, four entries were
being driven, and that while the last entry may be considered the
last open crosscut, given the absence of a definition of
"crosscut," and the mine map which shows that one would have to
travel a long way beyond the location of the alleged violation to
reach a point inby the last open crosscut, the respondent
questions whether or not these driven entries may be considered
"contiguous working places," or whether the alleged violation
took place "inby the last open crosscut" within the meaning of
section 75.319. Further, respondent stated that "contiguous
working places" means "more than one place you're working," and
the only place the respondent intended to work "was just to cut
this one place for the fan." Respondent concluded that "it's
stretching the definition quite a bit to try to include this area
in a mechanized mining section" (Tr. 124-126).

 With regard to the alleged use of return air to ventilate

the area 35 feet inby the drift opening where the respondent
intended to install a fan, respondent states that the only
evidence advanced by the petitioner to support this contention is
the ventilation plan reference on the mine map which depicts an
arrow showing that return air was ventilating the cited location.
Respondent maintains that an arrow drawn on a map "does not make
it return" air, and that in order for it to be return air, the
air would have to pass through a working place and then out of
the mine. Respondent contends that there is no evidence that the
air that ventilated the area being developed passed through any
working place, and that "the only smidgeon of evidence or
assertion of it passing somewhere where it might be turned into
return, was the fact

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that it went by an abandoned area." Referring to mandatory
section 75.311, which states that "Air which has passed by an
opening of any abandoned area shall not be used to ventilate any
working place in the coal mine if such air contains .25 volume
per centum or more of methane," respondent asserts that even if
the intake air somehow becomes return air by passing an abandoned
area, it can still be used for ventilation purposes because the
petitioner has not established the presence of any methane or
contaminants in the air (Tr. 127).

 With regard to the lack of any preshift examination,

respondent pointed out that "you're looking at sixty feet inby
the opening of the mine. It's just a question of walking sixty
feet and coming out and writing it in a book . . . it wasn't like
the whole mine didn't get pre-shifted" (Tr. 127). The respondent
concluded as follows at (Tr. 127-128):

      At best, I think that what could have been written in
      regard to the actions that transpired here was a
      technical violation of the ventilation plan. What
      instead was written was an unwarrantable failure of the
      operator to properly ventilate where it was working.
      And there's no allegations that there was improper air,
      improper volumes of air where the mining machine was
      operating. The only allegation is that instead of
      intake air it was return air. And that comes back to
      the definition. When did it become return air? Just
      having the arrows on the map doesn't make it return
      air. It's got to be exposed to some contaminants, and
      it's Respondent's position that there was no such
      exposure.

 Respondent asserted that given the "unwarrantable failure"

standard of proof required by the Commission in Emery Mining
Corporation, 9 FMSHRC 1997 (Dec. 1987), the respondent's
negligence was only "ordinary" because it did not believe it was
mining in "a mechanized mining section," and that this is
"something that's not plain, unambiguous" (Tr. 129). Assuming
that the facts and evidence establishes an unwarrantable failure,
respondent concedes that the underlying procedural time sequence
requirements for the issuance of the section 104(d)(1) order in
question were technically correct (Tr. 129). Given the absence of
any evidence of improper or insufficient air ventilating areas
were men were working, respondent concludes that no one was
exposed to any hazards, and that only three men would normally be
working in the area where the fan was being installed (Tr. 130).

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Respondent conceded that the cited location was driven 60 feet on
a conventional mining section which utilized a continuous-mining
machine, bolter, and shuttle car operating in sequence, and that
it intended to cut the entry in for a distance of approximately
100 feet to connect up with the number 10 entry. The principal
purpose of cutting at the cited location was to facilitate the
installation of the fan which was ultimately installed
approximately 3 weeks later (Tr. 131).

 Arguing in rebuttal to the respondent's reference to the

first sentence of section 75.311, petitioner's counsel stated
that the next sentence of the standard requires that all air
containing less than .25 volume per centum or more of methane be
examined during the preshift examination required by section
75.303. Counsel pointed out that the respondent was also cited by
Inspector Bowman on August 25, 1987, for not performing the
required preshift and did not contest that order. Had the
required preshift been conducted, and the air tested along the
entire air course as required, and found to be below .25, the
gravity would have been much less (Tr. 132). Although the
respondent's counsel stated that "the rest of that area was
preshifted," and that only the area where the miner was operating
was not tested, I take note of the fact that the uncontested
order citing a violation of section 75.303, was issued for the
failure by the respondent to preshift the active workings inby
the drift opening in question, and that all areas inby the drift
opening were ordered withdrawn by the inspector (Tr. 132-133).

               Findings and Conclusions

 The respondent is charged with a violation of mandatory

safety standard 30 C.F.R. 75.319, which provides as follows:

      Each mechanized mining section shall be ventilated with
      a separate split of intake air directed by overcasts,
      undercasts, or the equivalent, except an extension of
      time, not in excess of 9 months, may be permitted by
      the Secretary, under such conditions as he may
      prescribe, whenever he determines that this subsection
      cannot be complied with on March 30, 1970.

 The term "mechanized mining section" is defined by 30 C.F.R.

75.319-1, as follows

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The term "mechanized mining section" means an area of a mine in
which coal is mined with one set of production equipment,
characterized in a conventional mining section by a single
loading machine, or in a continuous mining section by a single
continuous mining machine, and which is comprised of a number of
contiguous working places. Specialized mining sections, such as
longwall mining sections, which utilize equipment other than
specified in this section, may, if approved by the Coal Mine
Safety District Manager, be ventilated by a single split of air.

 The term "working place" is defined by 30 C.F.R.

75.2(g)(2) as "the area of a coal mine inby the last open
crosscut." The term "crosscut" is synonymous with the term
"breakthrough," and it is defined in part by A Dictionary of
Mining, Mineral, and Related Terms, Bureau of Mines, U.S.
Department of the Interior, 1968, pg. 280, as follows:

        A crosscut may be a coal drivage * * * . In room and
        pillar mining, the piercing of the pillars at more or
        less regular intervals for the purpose of haulage and
        ventilation. * * * In general, any drift driven across
        between any two openings for any mining purpose. * * *

 "Breakthrough" is defined as "A passage cut through the

pillar to allow the ventilating current to pass from one room to
another. * * * An opening made either accidentally or
deliberately, between two underground openings." Mining
Dictionary, at pg. 137.

  A "split of air" means a separate air circuit, e.g., when

mine workings are subdivided to form a number of separate
ventilating districts. The main intake air is split into the
different districts, each of which is given a specific supply of
fresh air free from contamination by the air of other districts,
and later the return air from the districts reunited to restore
the single main return air current. Mining Dictionary, at pg.
1201.

 The respondent's contention that the area cited by Inspector

Bowman was not a "mechanized mining section" as defined by
section 75.319-1, because it did not include any "contiguous
working places" due to the absence of any "last open crosscut"
and the fact that the only place it intended to work was where
the fan was to be placed is rejected. The evidence clearly

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establishes that when the violation was issued, the entry in
question was being actively mined. Inspector Bowman observed a
continuous-mining machine and shuttle car in the entry, and he
observed miners leaving the area. Mine Superintendent Lilly
confirmed the fact that the mining sequence included the use of a
continuous miner, shuttle car, and roof bolter, and the roof was
being bolted as coal was being mined in the entry.

 Superintendent Lilly admitted that at the time the violation

was issued, the respondent intended to drive the entry for a
distance of approximately 100 feet to connect it up with the
number 10 entry, and that the fan was actually installed 3 weeks
after the entry was initially driven (Tr. 131). Further, the
evidence establishes that at the time the entry in question was
being driven and mined, three additional adjacent entries were in
existence, and the mine maps reflect the presence of crosscuts,
stoppings, regulators, and the establishment of air ventilation.

 Inspector Bowman's unrebutted testimony reflects that while

the cited location may have been an entry when it was initially
designed and cut, once it is driven and rehabilitated due to
changes and maintenance resulting from the presence of water,
that location would be considered the last open crosscut (Tr.
49). The evidence establishes that at the time the violation was
issued, the entry had been driven and developed for approximately
70 feet, and the mining cycle included the use of a mining
machine, shuttle car, and roof bolter. Mr. Bowman explained and
described the location of the last open crosscut (Tr. 23).

 The evidence also reflects that during his inspection of

August 25, 1987, Inspector Bowman issued an uncontested violation
because of the failure by the respondent to conduct an adequate
preshift examination "in the active workings" inby the drift
opening in question, and that he also issued several other
citations for violations of the respondent's approved
roof-control plan, the failure to adequately protect a continuous
miner trailing cable, and the installation of line brattice only
within 69 feet of the working face, rather than 10 feet as
required by the cited mandatory ventilation standard section
75.302 (Exhibit P-2). This particular standard requires that such
ventilation devices be continuously used from the last open
crosscut of an entry or room of each working section in order to
provide ventilation to the working faces.

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Under all of the aforementioned circumstances, I conclude and
find that the area cited by Inspector Bowman included contiguous
working places within the meaning of section 75.319-1, and that
it was in fact a mechanized mining section within the scope of
cited section 75.319. I also find the testimony of Inspector
Bowman regarding the existence and location of the "last open
crosscut" within the area which he cited to be credible. See:
MSHA v. Jim Water Resources, Inc., Docket Nos. SE 87-8, SE
86-105-R, decided by the Commission on January 13, 1989.

 Inspector Bowman cited a violation of section 75.319,

because of the failure by the respondent to provide a separate
split of intake air to ventilate the mechanized mining section
which was operating in the return air course inby the drift
opening which had been driven to facilitate the installation of a
fan. Mr. Bowman confirmed that when he conducted his inspection
and issued the violation, he observed that the entry had been
advanced and developed for a distance of approximately 70 feet,
and that it was being driven around some water located inby the
Number 4 drift opening. Mr. Bowman observed a continuous-mining
machine and a shuttle car in the entry, and he also observed
several miners coming out the drift entry which had been driven
and mined. Mr. Bowman proceeded into the area and found that no
ventilation curtains had been installed, and using an anemometer,
he determined that the air currents leaving the gob area were
flowing in the direction of the drift entry where coal was being
mined as the entry was advanced. Mr. Bowman testified that the
anemometer vanes were turning rapidly and that he could feel the
air movement. Mr. Bowman determined that the air coursing into
and down the entry towards the drift area in question had
apparently reversed itself and was flowing in the "wrong
direction" contrary to the respondent's ventilation plan, and he
concluded that this was ventilation return air rather than intake
air as required by section 75.319. Since this was the case, he
issued the violation.

 The respondent contended that the ventilation directional

arrows shown on the mine ventilation maps, which indicate the
cited area in question being ventilated by return air, rather
than intake air, were "engineering mistakes." However, it
presented no credible engineering testimony or evidence to
support any such conclusion. The only witness called to rebut the
inspector's testimony was mine superintendent Lilly. Mr. Lilly
confirmed that the mine ventilation map, exhibit R-1, which
clearly shows the cited area being ventilated by return air,
rather than intake air was in effect at the time the violation
was issued. The evidence shows that Mr. Lilly

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was not at the cited location when the violation was issued, had
not previously been there for at least 3 months, and that he
arrived at the scene an hour after the violation was issued.
Further, Mr. Lilly agreed with the inspector that the air passing
through a regulator from the gob area was moving in the "wrong
direction," and that the air flow directional arrows shown on the
mine ventilation map reflecting the ventilation pattern for the
cited entry shows that the area was being ventilated by return
air. Mr. Lilly admitted that at the time the violation was
issued, he did not know whether the cited area was being
ventilated by intake air or return air. He also agreed with the
inspector that air was coursing in the wrong direction through a
regulator (Tr. 70, 103).

 After careful review of the testimony presented in this

case, I conclude and find that the credible testimony and
evidence presented by Inspector Bowman establishes that the cited
area in question was being ventilated by return air and that a
separate split of intake air was not provided to ventilate that
area. Since the cited standard clearly requires the area to be
ventilated by intake air, I further conclude and find that a
violation of section 75.319 has been established. Accordingly,
the violation issued by Inspector Bowman IS AFFIRMED.

The Unwarrantable Failure Issue

 The governing definition of unwarrantable failure was

explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided
under the 1969 Act, and it held in pertinent part as follows at
295-96:

      In light of the foregoing, we hold that an inspector
      should find that a violation of any mandatory standard
      was caused by an unwarrantable failure to comply with
      such standard if he determines that the operator
      involved has failed to abate the conditions or
      practices constituting such violation, conditions or
      practices the operator knew or should have known
      existed or which it failed to abate because of a lack
      of due diligence, or because of indifference or lack of
      reasonable care.

 In several recent decisions concerning the interpretation

and application of the term "unwarrantable failure," the
Commission further refined and explained this term, and concluded
that it means "aggravated conduct, constituting more than
ordinary negligence, by a mine operator in relation to a

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violation of the Act." Emery Mining Corporation, 9 FMSHRC 1997
(December 1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987); Secretary of Labor v. Rushton Mining Company, 10
FMSHRC 249 (March 1988). Referring to its prior holding in the
Emery Mining case, the Commission stated as follows in
Youghiogheny & Ohio, at 9 FMSHRC 2010:

      We stated that whereas negligence is conduct that is
      "inadvertent," "thoughtless" or "inattentive,"
      unwarrantable conduct is conduct that is described as
      "not justifiable" or "inexcusable." Only by construing
      unwarrantable failure by a mine operator as aggravated
      conduct constituting more that ordinary negligence, do
      unwarrantable failure sanctions assume their intended
      distinct place in the Act's enforcement scheme.

 In Emery Mining, the Commission explained the meaning of the

phrase "unwarrantable failure" as follows at 9 FMSHRC 2001:

      We first determine the ordinary meaning of the phrase
      "unwarrantable failure." "Unwarrantable" is defined as
      "not justifiable" or "inexcusable." "Failure" is
      defined as "neglect of an assigned, expected, or
      appropriate action." Webster's Third New International
      Dictionary (Unabridged) 2514, 814 (1971) ("Webster's").
      Comparatively, negligence is the failure to use such
      care as a reasonably prudent and careful person would
      use and is characterized by "inadvertence,"
      "thoughtlessness," and "inattention." Black's Law
      Dictionary 930-31 (5th ed. 1979). Conduct that is not
      justifiable and inexcusable is the result of more than
      inadvertence, thoughtlessness, or inattention. * * *

 I take note of the fact that at the time he issued the

section 104(d)(1) unwarrantable failure order in question, Mr.
Bowman made a negligence finding of "Reckless Disregard" (item
11(E), Order), but then changed it to reflect a finding of "High"
negligence (item 11(D)). I also take note of MSHA's civil penalty
assessment criteria found in Part 100, Title 30, Code of Federal
Regulations. Section 100.3(d), Table VIII, explains the various
degrees of negligence associated with a violation which is being
reviewed for assessment purposes. Under these guidelines, "high
negligence" is applicable in those instances where an "operator
knew or should have known

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of the violative condition or practice, and there are no
mitigating circumstances," "Reckless disregard" is applicable in
those instances where an "operator displayed conduct which
exhibits the absence of the slightest degree of care."

 In support of his "high negligence" and unwarrantable

failure finding, Inspector Bowman explained that after completing
his prior inspection on August 21, 1987, he advised mine foreman
Don Hughes, who he knew very well, that he would be returning to
the mine the following Tuesday, August 25, to conduct his noise
surveys. Since the foreman knew he would be coming back, and
since he advised Mr. Bowman that he had been in the area the
preceding day, Mr. Bowman questioned "why he allowed this to go
on" (Tr. 28). Since the foreman was responsible for the operation
of the mine, and given the "overall conditions" that he found
upon his return to the mine, Mr. Bowman concluded that the
foreman should be held accountable for his failure to address all
of these conditions which Mr. Bowman believed were readily
observable. Although Mr. Bowman alluded to the fact that he had a
general conversation with the mine foreman concerning the
installation of the fan within 2 or 3 weeks of his inspection,
Mr. Bowman confirmed that he was not aware of the fact that a new
entry was required for the fan installation, and that this "was
never brought up" (Tr. 29, 32).

 It seems obvious to me from the facts of this case that

Inspector Bowman's "high negligence" finding was not limited to
the conditions which prompted him to cite a violation of section
75.319. His justification for issuing the unwarrantable failure
order included the additional conditions which he found and cited
during the course of his inspection, and Mr. Bowman tacitly
admitted this was the case when he stated that "whenever you have
several problems that one piece of paper can correct, I try to
stay that way as much as I can" (Tr. 114).

 Mine foreman Hughes was not called to testify in this

matter. Superintendent Lilly stated that 3 or 4-weeks prior to
the inspection he made the decision to install the fan after
consulting his engineering department. He confirmed that he
reviewed the ventilation plan prior to the installation of the
fan, and that the proposed ventilation changes were submitted to
MSHA through the engineering department. However, he had not
visited the cited area for at least 3-months prior to the
inspection, and only discussed the matter with Mr. Bowman after
the violation was issued in order to abate it (Tr. 76-77, 86,
94). Mr. Lilly further explained that the fan was installed to
improve the ventilation and to

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increase the amount of air used to ventilate the mine, and he
confirmed that the installation was finally completed
approximately 3 weeks after the violation was issued (Tr. 131).

 During the course of oral argument, respondent's counsel

suggested that given the fact that the regulatory definition of a
"mechanized mining unit" is not plain and unambiguous, the
respondent could not have known whether the cited location was in
fact a mechanized mining section which was required to be
ventilated by intake air pursuant to section 75.319. I agree that
the interpretation and application of this section requires one
to refer to the definition of "mechanized mining unit" as stated
in section 75.319-1, the definition "working place" found in
section 75.2(g)(2), and to make a determination as to the
location of the "last open crosscut," and the existence of
"contiguous working places." Given the complexity of these
regulatory and factual determinations, I find some merit in the
respondent's argument, but find nothing in Mr. Lilly's testimony
to support a conclusion that he was confused or oblivious to the
fact that the cited area was required to be ventilated by intake
air rather than return air.

 The petitioner takes the position that the additional

violations issued by Inspector Bowman during the course of his
inspection shortly before the issuance of the contested
unwarrantable failure order in question reflects a complete
disregard for any safety concerns on the part of the respondent,
and clearly supports an unwarrantable failure finding in this
case (Tr. 14, 120-121, 129-130). I disagree. Unlike an imminent
danger order issued pursuant to section 107(a), which may be
based on a combination of violative conditions or practices, an
unwarrantable failure violation and order issued pursuant to
section 104(d)(1) of the Act, is limited to a specific violation
of a particular mandatory safety or health standard. Accordingly,
I conclude and find that the degree of negligence associated with
the additional violations which are not in issue in this case
must be determined on the particular facts associated with those
violations and may not be used to support an alleged
unwarrantable failure by the respondent to comply with the
requirements of the cited standard section 75.319.

 Although one of the aforementioned prior violations included

a negligence finding of "reckless disregard," and was included as
part of the petitioner's pleadings in this case, the respondent
subsequently decided not to contest it further (Tr. 3;
respondent's answer). No information has been forth-coming with
respect to the status of the other violations, and

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I take note of the fact that with respect to two of these
violations, Inspector Bowman made findings of "moderate
negligence," and found "high negligence" with respect to another
one (Exhibit P-2).

 The respondent's history of prior violations, as reflected

by an MSHA computer print-out submitted by the petitioner
reflects that for a 2-year period prior to the inspection by Mr.
Bowman on August 25, 1987, shows that the respondent paid civil
penalty assessments for a total of 77 violations of the mandatory
ventilation standards found in Part 75, Subpart D, Title 30, Code
of Federal Regulations. Except for two section 104(d)(1)
unwarrantable failure citations, one of which was issued on
October 17, 1985, for a violation of section 75.316, and one of
which was issued on March 10, 1987, for a violation of section
75.319, the same standard cited in this case, the remaining
citations were all section 104(a) citations, and 29 of them were
"single penalty" non-"S&S" citations.

 After careful review of all of the evidence and testimony

adduced in this case, I find no credible or probative evidentiary
support for any conclusion that the respondent's conduct in
failing to adhere to the requirements of section 75.319, was
aggravated, inexcusable, or egregious, or resulted from the
absence of the slightest degree of care. Accordingly, the
inspector's unwarrantable failure finding IS VACATED.

Modification of the Contested Order

 In view of my unwarrantable failure finding, the contested

section 104(d)(1) Order is modified to a section 104(a) citation.
See: Old Ben Coal Company, 2 FMSHRC 1187 (June 1980);
Consolidation Coal Company, 3 FMSHRC 2207 (September 1981);
Youngstown Mines Corporation, 3 FMSHRC 1793 (July 1981).

Significant and Substantial Violation

 A "significant and substantial" violation is described in

section 104(d)(1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." 30
C.F.R. 814(d)(1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

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In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" 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.

 In United States Steel Mining Company, Inc., 7 FMSHRC 1125,

1129, the Commission stated further as follows:

      We have explained further that the third element of the
      Mathies formula "requires that the Secretary establish
      a reasonable likelihood that the hazard contributed to
      will result in an event in which there is an injury."
      U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
      1984). We have emphasized that, in accordance with the
      language of section 104(d)(1), it is the contribution
      of a violation to the cause and effect of a hazard that
      must be significant and substantial. U.S. Steel Mining
      Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
      Steel Mining Company, Inc., 6 FMSHRC 1573, 1574-75
      (July 1984).

 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, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).

 Inspector Bowman testified that the mine has a history of

liberating methane, and since the entry in question had mined and
advanced for some 69 feet without the use of ventilation line
curtains, he was concerned that a buildup of methane and mine
contaminants or "black damp," which could be present at any time
in the return air being coursed to the area where mining was
taking place, could have exposed the miners working

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in the area to an ignition hazard, particularly in the event of
arcing or a blown electrical equipment cable (Tr. 21-22).

 Superintendent Lilly did not dispute the fact that coal was

being mined as the drift entry was being advanced, and he
confirmed the fact that the mining sequence included the use of a
continuous-mining machine, shuttle car, and roof bolter, all of
which I consider to be potential ignition sources. Although the
entry had been driven for approximately 69 feet at the time of
the inspection, Mr. Lilly conceded that the respondent had
intended to drive it for a distance of 100 feet, and he did not
rebut the inspector's credible testimony with respect to the
absence of, or inadequately placed, ventilation line curtains in
the area where coal was being mined.

 Although there is no credible evidence to establish the

actual presence of explosive mixtures of methane, or the presence
of "black damp" in the return air course being used to ventilate
the working area in question, since all mines freely liberate
methane, particularly when coal is being cut at the face,
inadequate ventilation and the use of return air, which normally
is used to course methane and other contaminants out of the mine,
to ventilate such areas poses a discrete explosion hazard, as
well as a hazard of the miners who could be exposed to other mine
gases and contaminants commonly known as "black damp." Since the
clear intent of section 75.319, is to insure that such areas are
ventilated by "clean" intake air, the use of return air for this
purpose is contrary to the requirements of the standard.

 On the facts of this case, given the fact that three to five

miners would normally be present in the area while the entry in
question was being mined and advanced by electrically powered
machinery which posed a potential ignition source, and given the
added fact that the right mixture of explosive methane and air
could be present at any time, particularly in an area which has
not been preshifted to insure the absence of excessive levels of
methane or other mine contaminants, or which had not been
adequately ventilated by line curtains, I believe it is
reasonable to conclude that a potential accident or explosion
hazard was present at the time of the inspection when the
violation was issued. In the event of any such occurrences, I
further conclude that it would be reasonably likely that the
miners working in the area would likely suffer fatal injuries or
injuries of a reasonably serious nature. Under all of these
circumstances, I agree with the inspector's "significant and
substantial" finding, and IT IS AFFIRMED.

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Size of Business and Effect of Civil Penalty on the Respondent's
Ability to Continue in Business

 Exhibit P-1, an MSHA "Controller Information Report,"

reflects that the respondent's No. 2 Mine produced 244,116 tons
of coal in 1986, and 386,954 tons in 1987, and respondent's
counsel characterized the respondent's mining operation as
"medium." I conclude and find that the respondent's mining
operation is medium in scope, and I adopt the stipulation by the
parties that the civil penalty assessment for the violation in
question will not adversely affect the respondent's ability to
continue in business as my finding on this issue.

History of Prior Violations

 An MSHA computer print-out submitted by the petitioner

reflects that for the period August 25, 1985 through August 24,
1987, the respondent paid civil penalty assessments in the amount
of $24,930, for 372 violations, 219 of which are characterized as
"significant and substantial" violations. Seventy-seven (77) of
these prior paid violations were for violations of the
ventilation requirements found in 30 C.F.R. Part 75, Subpart D,
but only one was for a prior violation of section 75.319. For a
mine operation of its size, I conclude that the respondent's
overall prior compliance history is not particularly good, and I
have considered this in the civil penalty assessment which I have
made for the violation in question.

Negligence

 I conclude and find that the violation which has been

affirmed resulted from the respondent's failure to exercise
reasonable care, and that this constitutes ordinary or moderate
negligence.

Gravity

 For the reasons stated in my "significant and substantial"

findings and conclusions, I conclude that the violation was
serious.

Good Faith Abatement

 The evidence establishes that abatement was achieved by the

installation of stoppings to provide a separate split of intake
air to the miners working in the cited area (Tr. 26, 71-73), and
I conclude and find that the respondent timely abated the cited
condition in good faith.

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Civil Penalty Assessment

 On the basis of the foregoing findings and conclusions, and

taking into account the requirements of section 110(i) of the
Act, I conclude and find that a civil penalty assessment in the
amount of $450 is reasonable and appropriate for the violation
which I have affirmed.

                         ORDER

 The respondent IS ORDERED to pay a civil penalty assessment

in the amount of $450 for a violation of 30 C.F.R. 75.319, as
stated in the modified section 104(a) "S&S" Citation No. 2716156.
If it has not already done so, respondent is FURTHER ORDERED to
pay a civil penalty assessment in the amount of $700 for the
uncontested August 25, 1987, section 104(d)(1) Order No. 2716152,
30 C.F.R. 75.303. Upon receipt of payment by MSHA, this
proceeding is dismissed.

                                 George A. Koutras
                                 Administrative Law Judge