Consolidation Coal Company
Consolidation Coal Company (FMSHRC WEVA 91-166-R, WEVA 91-167-R, and WEVA 92-177): Ignition-reporting citations affirmed
Apply this to your situation
This order from 1992 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
Consolidation Coal Company contested two citations alleging that it failed to report an underground coal-dust ignition and continued mining without preserving the accident scene at the Robinson Run No. 95 Mine. Judge George A. Koutras credited miners who described seeing a short-lived flame and found that an unplanned coal-dust ignition had occurred and should have been reported to MSHA. He affirmed both citations and assessed penalties of $500 and $350. The decision also dismissed the two contests, ordered payment of the penalties, and left a separate excessive-history citation stayed pending Commission decisions.
Decision snapshot
- Cited standards: 30 C.F.R. §§ 50.10, 50.12, and 75.400
- Outcome: Two ignition-reporting citations were affirmed with $850 total penalties, the contests were dismissed, and a separate citation remained stayed.
- Key point: Mine management's good-faith belief that no reportable ignition occurred did not excuse failing to report the event or obtain permission before altering the accident area.
Full text (FMSHRC public release)
CCASE:
CONSOLIDATION COAL V. MSHA
MSHA V. CONSOLIDATION COAL
DDATE:
19920310
TTEXT:
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CONSOLIDATION COAL COMPANY, : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. WEVA 91-166-R
: Citation No. 3105295; 2/4/91
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. WEVA 91-167-R
ADMINISTRATION (MSHA), : Citation No. 3105296; 2/4/91
Respondent :
: Robinson Run No. 95 Mine
:
: Mine ID 46-01318
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 92-177
Petitioner : A.C. No. 46-01318-04022
v. :
: Robinson Run No. 95 Mine
CONSOLIDATION COAL COMPANY, :
Respondent :
PARTIAL DECISIONS
and
STAY ORDER
Appearances: Wanda M. Johnson, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Respondent/Petitioner.
Walter J. Scheller, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Contestant/Respondent.
Before: Judge Koutras
Statement of the Proceedings
These consolidated proceedings concern Notices of Contest
filed by the contestant Consolidation Coal Company (Consol),
against the respondent (MSHA) pursuant to section 105(d) of the
Federal Mine Safety and health Act of 1977, 30 U.S.C. 815(d),
challenging the legality of two section 104(a) non-"S&S"
citations issued on February 4, 1991, charging Consol with
alleged violations of the mandatory accident reporting
requirements found in 30 C.F.R. 50.10 and 50.12. The civil
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penalty case concerns MSHA's proposed civil penalty assessments
of $2,000 for the alleged violations, and a proposed civil
penalty assessment of $157, for one additional alleged violation
of 30 C.F.R. 75.400, as noted in a section 104(a) citation
issued on August 22, 1991. A hearing was held in Morgantown,
West Virginia, and the parties waived the filing of briefs.
However, I have considered their oral arguments made in the
course of the hearing in my adjudication of these matters.
Issues
The issues presented in these proceedings are as follows:
1. Whether Consol violated the cited mandatory regulatory
standards, and if so, the appropriate civil penalties to be
assessed for those violations based on the criteria found in
section 110(i) of the Act.
2. Whether the incident or "event" of February 1, 1991,
which gave rise to the issuance of the two contested alleged
reporting violations was in fact an "ignition" (accident)
which was required to be reported to MSHA pursuant to
30 C.F.R. 50.10.
3. Whether Consol violated the provisions of 30 C.F.R.
50.12, by continuing mining on February 1, 1991, after
its investigation concluded that a reportable ignition had
not occurred.
4. Additional issues raised by the parties are identified
and disposed of in the course of these decisions.
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. Commission Rules, 20 C.F.R. 2700.1 et seq.
3. Mandatory reporting standards 30 C.F.R. 50.10 and
50.12; and mandatory safety standard 30 C.F.R. 75.400.
Stipulations
The parties stipulated to the following (Tr. 6-7):
1. The presiding judge has jurisdiction to hear and decide
these cases.
2. Inspector James Young was acting in his official
capacity as an MSHA inspector when the contested citations
were issued on February 4, 1991.
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3. Inspector Ronald Tulanowski was acting in his official
capacity as an MSHA inspector when he conducted the accident
investigation on February 4, 1991 (Exhibit C-1).
4. The "event" which occurred on February 1, 1991, at the
Robinson Run No. 95 Mine was not a planned event.
5. Consol never notified MSHA of the February 1, 1991,
"event" prior to the issuance of the citations.
6. The imposition of any maximum penalties that may be
assessed in these proceedings pursuant to the Act will not
affect Consol's ability to continue in business.
7. The alleged violations were abated in good faith.
8. Consol may be considered a large mine operator for
purposes of any civil penalty assessments.
9. The presiding judge may take judicial notice of the fact
that February 1, 1991, the date on which the "event" in
question occurred, was a Friday, and the investigation
conducted by MSHA on February 4, 1991, was conducted on
Monday.
Bench Ruling
The parties advised me that Citation No. 3103343, issued on
August 22, 1991, for an alleged violation of 30 C.F.R. 75.400,
is a citation which includes an issue concerning MSHA's
"excessive violation history" civil penalty assessment policy.
Under the circumstances, the parties jointly moved for a stay of
this citation, and the motion was granted from the bench (Tr. 5).
Subsequently, on February 4, 1992, I issued an order reaffirming
the bench ruling and staying the adjudication of the citation.
Discussion
The record in this case reflects that on Friday, February 1,
1991, at approximately 10:30 a.m., an "incident" or an "event"
occurred on the 11 Left (087-0) working section of Consol's
Robinson Run No. 95 Mine. It is MSHA's position that the "event"
was in fact an unplanned frictional coal dust ignition which
occurred 30 feet outby the face of the No. 1 Entry, and which
should have immediately been reported. It is Consol's position
that the alleged ignition did not occur, or if it did, it was
something other than an "ignition" within the reporting
requirements of 30 C.F.R. 50.10.
The alleged ignition was reported to MSHA through an
anonymous telephone call, and MSHA Inspectors Ronald T.
Tulanowski and James A. Young were dispatched to the mine site on
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Monday, February 4, 1991, to conduct an investigation. They
conducted the investigation (MSHA Exhibit #3), and issued the two
contested citations, which are as follows:
Section 104(a) non-"S&S" Citation No. 3105295, issued on
February 4, 1991, cites an alleged violation of 30 C.F.R.
50.10, and the condition or practice is described as follows
Based on information obtained during an investigation
to determine if a face ignition occurred, the company
officials did not report or contact MSHA after their
own investigation of this condition. A dust ignition
set off by miner bits in sulfur at the face of the #1
entry on the 11 left 087 working section according to
crew members did occur at 10:35 a.m. on 2-1-91. Six
members of the crew and two foremen witnessed this
ignition. The company did not contact MSHA to report
this occurrence or to obtain information to see if they
should report this occurrence.
Section 104(a) non-"S&S" Citation No. 3105296, issued on
February 4, 1991, cites an alleged violation of 30 C.F.R.
50.12, and the condition or practice states as follows
No permission was granted to disturb or change an area
where a face ignition occurred. MSHA was not contacted
or notified that a face ignition occurred in the #1
face of the 11 left 087 working section. The ignition
occurred at 10:35 a.m. on 2-1-91 and the section
resumed production at 1:00 p.m. after conducting their
investigation. The area was washed down with water,
the miner was moved after advancing 80 feet past where
the ignition occurred, and the miner has had extensive
maintenance performed since 2-1-91. The area was
inspected by MSHA on 2-4-91 and found to be cleaned and
rock dusted.
MSHA's Testimony and Evidence
MSHA Inspector James A. Young testified that he has been so
employed for six years, and he confirmed that he and Inspector
Ron Tulanowski went to the mine on February 4, 1991, to
investigate an ignition which had been reported to the MSHA
office. Mr. Young stated that the section crew was initially
questioned on the surface, and after they dressed and went
underground, additional conversations were held with the same
individuals underground, and he identified some of the
individuals, including foremen, and several mine management
people who were present during the conversations (Tr. 15-17).
Inspector Young explained and described the conversations
with the crew members as follows at (Tr. 17-18).
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A. In essence, what we tried to determine by the questions
that Mr. Tulanowski was asking was did the individuals see
sparks or did they see a flame of any duration and maybe the
color of it.
Each individual categorically stated that they had witnessed
a flame. They gave a dimension to it. They gave a color to
it. They gave how long it lasted.
At the end of this, talking with each crew member one-on-
one, there was a kind of a consensus question asked. This
is what was said. Does anyone disagree or does everyone
agree? At that time no one spoke up in disagreement with
what we had heard in that room.
Q. You said that the crew mentioned the dimension of the
flame. Do you recall what the dimensions were?
A. Almost man for man, everyone said it was approximately
three foot by six foot. It was orange in color. It lasted
for a very short period of time, and that time frame was
arrived at by kind of taking a happy medium. One guy would
say five to ten seconds, and one would say three to five.
So we split the difference and made it a three-to-five-
second duration.
Q. Do you recall how the employees told you they reacted to
this flame?
A. They seemed to be very upset. A couple of them made it
very clear that they were scared, that they heard a noise.
One of them said that he actually felt the heat and that it
was kind of an upsetting experience.
Mr. Young stated that after speaking with the employees, he
inspected the area where the alleged ignition occurred and found
that it had been cleaned and rock dusted, and the miner had been
advanced approximately 80 feet from the entry where the event
took place. He then returned to the surface and discussed the
matter with management, and advised them that the citations would
be issued. Mr. Young confirmed that the issued the two citations
and he explained the findings that he made. He confirmed that he
considered the violations to be non-"S&S", and the reporting
citation was marked "high negligence" because he believed that
management should have at least made an effort to contact MSHA
for information or to report the incident. Abatement was
achieved through a meeting with the crew and management to
explain the importance of reporting such matters to MSHA
(Tr. 20-25).
Mr. Young identified a copy of an accident report which he
prepared and he confirmed that he agreed with the findings in the
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report (MSHA Exhibit #3). He also confirmed that the
conclusions in the report and the decision to issue the citations
were based on the information he received from Consol's
employees, and that the conclusion that the ignition was caused
"when heat or sparks generated from the cutter bits ignited with
the coal dust" was based on "kind of a consensus opinion of all
of us involved" (Tr. 26-27).
On cross-examination, Mr. Young stated that mine management
makes "a decent effort" to address any safety problems and has
been cooperative with him during his prior inspections of the
mine, and he considered mine superintendent David Tonkin to be a
truthful person. Mr. Young stated that on February 4, 1991, he
was made aware of the fact that management had conducted an
investigation of the event in question, but he could not state
whether he believed that Mr. Tonkin would have reported the
incident if he thought that an ignition had occurred (Tr. 30).
Mr. Young confirmed that Mr. Tonkin told him that he had
conducted an investigation, and in "general terms said he did not
find any soot on the roof". After the MSHA investigation was
completed, Mr. Tonkin told him that he did not believe there was
a reportable accident but that he nonetheless assumed the
responsibility for the matter (Tr. 31).
Mr. Young stated that the investigative interviews with the
crew on the surface were conducted as a group in the same room,
and not individually. Inspector Tulanowski was asking the
questions and Mr. Young was taking notes and jotting down some
things that were said. The first person questioned was James
Parker, and Mr. Young was not aware that he was chairman of the
mine safety committee. Mr. Young stated that "their stories were
not the same. They were not habitual. One guy did not copy what
the other man said... he gave his testimony in different
terminology. They did not sound alike". The "testimony" was not
taken under oath, and the one room was used because that is where
mine management summoned the crew and made the room available.
During the subsequent meeting in the underground dinner hole, the
crew came in groups of two or three,and "it ended up that there
was about five in there plus a couple of management men" and
several people were walking in and out (Tr. 34-35).
Mr. Young was of the opinion that an ignition "would have to
have a flame", and that the duration would be "a pop, which is
referred to in the mining industry. A pop is methane, based more
on myself, in the mine. A pop would be similar to a firecracker"
(Tr. 35). In response to a question as to whether or not the
term "ignition" is defined in MSHA's regulations, Mr. Young
responded as follows (Tr. 35-36):
Q. Are you aware of anywhere in the regulations where the
term "ignition" is defined?
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A. I haven't researched that, no.
Q. So you are not aware of whether or not it is defined?
A. There is a definition in there somewhere, I'm sure. It
could be our manual or policy manual or something. I
haven't looked it up. The part that I play in this is not
talking about technical terms of an ignition or an explosion
or whatever. The only thing that I'm basing -- and my name
is on this citation -- for is the fact that Consolidation
Coal Company is to report to us anything, regardless of what
it was.
Mr. Young confirmed that no one said anything during the
investigation that would lead him to believe that methane had
ignited and he stated that "we were not speaking in terms of
methane. We were talking of coal dust" (Tr. 38). He also stated
that information was received that indicated that bit lugs were
off the miner and that enough sulfur was present at the bottom of
the coal seam to cause an ignition when coming in contact with
the bits. He confirmed that he was told that the ventilation was
good and that the methane checks which were made did not indicate
the presence of any methane (Tr. 38).
Mr. Young confirmed that he does not have the technical
background which would enable him to determine what it takes to
ignite coal dust, but that "we have classes on that, but you
don't retain much of it" (Tr. 38). He further confirmed that he
and Mr. Tulanowski only prepared part of the report of
investigation. They wrote the abstract which appears at Section
E, at page one, and the description of the accident which appears
on pgs. 2-3. The rest of the report "was put together and
compiled by other people in MSHA up the ladder from us, which is
a lot of it is just--if you will read the general information,
that was put together by someone else. I did not do that."
(Tr. 39).
Mr. Young stated that he was told that the flame was of
short duration and self-extinguishing, and that "the flame
appeared and it went out". He confirmed that he had not
previously conducted investigations of ignitions, but that he has
had his hair burned and eyebrows singed from methane ignitions,
but there were no "telltale" signs of any soot (Tr. 40).
According to the testimony of the people during his investi-
gation, coal dust ignited. Something was also said about
Mr. Parker's water supply, and that several miner head bits were
reportedly missing, but he could not recall what was said about
the water supply, and he did not believe that anyone knew when
the bits had last been set (Tr. 42).
Mr. Young stated that the other individuals who contributed
to the report of investigation were supervisors who had to clear
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the reports for terminology, grammar, and punctuation, and he did
not know who signed the reports for him and Mr. Tulanowski. It
was his understanding that the striking out of the words "methane
ignition" on page 3 of the report, and the insertion of
"frictional dust" was to cure a typographical error or misprint
(Tr. 43). Mr. Young confirmed that notes were taken during the
investigation, and that they were turned in with his report.
MSHA's counsel stated that the whereabouts of the notes is not
known, and she confirmed my bench comment that "God knows what
happened to them" (Tr. 44). Counsel also confirmed that tape
recorders were not used to record the employee interviews
(Tr. 44).
James W. Parker, Jr., testified that he has been employed
with Consol for 19 years, and was working as a continuous miner
operator on February 1, 1991. He described the work that he was
performing that evening and he stated as follows at (Tr. 51-52):
I sheared it down that one time, and I scooted it over
about probably eight to ten inches. Then I sumped it
in another 12 inches at the top again. When I sheared
it down the second time, that's when my bolter operator
hollered and screamed. That's when I felt the flame
coming from the left-hand side of the miner.
Q. When you said you felt the flame, what color was the
flame?
A. Orange and yellow.
Q. Was it a big flame or was it just a little spark?
A. It started out at the head. It went up, and as it went
up it widened out from probably -- it went probably 5 or 6
feet high, and it went probably in an area of 7-1/2 feet
wide. As it went to the top, it started rolling back. As
it hit the arch, it started rolling back toward us.
That's when I looked down. I couldn't turn my sprays
on all the way. By this time my bolter operator had
done grabbed the washdown hose and somebody on the
other side had the other washdown hose.
I had looked down to see where my fire suppression was
because that was the only thing I had left. As soon as I
looked and seen my control handle, I looked back up and it
was gone.
Q. At the time this flame rolled towards you, what did you
do? What was your reaction?
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A. It scared me real bad. That's the first time I've ever
been in one of them. I knew if we didn't get it out that it
could have just did (sic) the whole mines up.
Q. You said you had been mining for at least 19 years. You
have seen a spark before, have you not?
A. Yes, Ma'am.
Q. Was this a spark?
A. No, ma'am. It was a flame. It went from the end of the
cab clear over to the trim chain and off the rib. After it
hit the arch it was rolling back toward me. It felt like
somebody had a torch shooting at me.
Mr. Parker stated that he was seated on the right side of
the machine, and that the ignition occurred on the left side of
the machine head. After he shut down the machine, day shift
foreman Gary Graham called for Mr. Tonkin and mine foreman Ray
Oldaker to come to the scene. Mr. Parker stated that Mr. Graham
stated that he saw the smoke from the flame, and that when
Mr. Oldaker arrived he stated "Yes, I see a little bits of soot
in the air" (Tr. 55).
Mr. Parker stated that he suggested that Mr. Tonkin and
Mr. Oldaker summon "the safety committee and Federal and State,
and get it over with", but that they took the position that they
had to conduct an initial investigation before calling anyone.
Mr. Tonkin and Mr. Oldaker gathered the crew together and
questioned them, and Mr. Parker stated that "We all agreed that
we had an ignition and it went up the left-side of the miner, out
the rib, and rolled back toward the miner" (Tr. 56). The crew
was then instructed to go eat, and a mechanic came to the area
and said that two or three bits had broken off the miner. The
water sprays were cleaned, some work was done on a loose monitor
box, and the crew was then instructed to continue working. Most
of the work performed on the miner can normally be done at the
start of the shift, but broken bits and plugged sprays can be
taken care of on-shift (Tr. 57).
Mr. Parker stated that after eating, and after the work was
completed on the miner, he asked Mr. Tonkin and Mr. Oldaker if
anyone was going to be called, and they told him that "We don't
have to call them". Mr. Spencer then remarked "Okay, but I'm
telling you I don't want any trouble in this later on" and he
proceeded to continue slabbing the place "where I had finished
from where I had the flash" (Tr. 59). He continued seeing sparks
from "a real thick stream of sulfur" and "it was throwing sparks
as I was hitting in sulfur" (Tr. 59).
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Mr. Parker stated that after meeting with management on
Friday, February 1, 1991, the crew was not contacted again until
the MSHA inspectors came to the mine on Monday, February 4, 1991,
to conduct their investigation. Management summoned the crew
together at the safety office to meet with the inspectors
(Tr. 61). The statement he gave to the inspectors was
essentially the same as it was on Friday, and he explained that
the inspectors questioned the crew as a group but asked questions
of each individual, took notes of the answers given, and read the
notes back and asked each individual if their statements were
correct. Mr. Parker stated that he was not sworn, did not sign
any statement, and he was not given a copy of what was said
(Tr. 69-71).
On cross-examination, Mr. Parker testified that the
ventilation was good on the evening in question, and he marked up
a sketch showing where he was operating his miner, the
ventilation air direction, where he was seated, the location
where the ignition originated and its point of travel, and the
location of a fan (Exhibits C-1 and C-2, Tr. 78-82). He
confirmed that he checked the miner bits at the start of the
shift, and he set 8 bits and replaced the ones that were bad. He
also cleaned the water sprays, and the mechanic told him that two
or three bits were knocked off where they struck the sulfur which
is hard enough to sometimes break bits (Tr. 83). He confirmed
that he cut the water sprays back because he did not want to
create a mud hole and mire the miner (Tr. 84). After the
incident in question, he continued to use full water pressure and
that "it was just throwing sparks where it was hitting hard"
(Tr. 85). He confirmed that the methane monitor was "picking
nothing up but one-tenth" (Tr. 87).
Referring to notes that he made on February 1, 1991, after
the ignition, Mr. Parker confirmed that the notes do not
mentioned "flames rolling back", but that "it says a ball of fire
on the left side that lasted three to five seconds" (Tr. 88). He
stated that "the way it rolled back it looked like a ball of
fire. The flames rolled back at me". He further conceded that
his notes do not say anything about his feeling any heat, or that
he felt like someone had pointed a torch at him, or that anyone
said anything about seeing smoke (Tr. 88-89). He stated that he
made the notes 5 to 10 minutes after the miner was shut down, and
that the notes contain an accurate description of the way he
remembered the incident five minutes after it happened (Tr. 89).
Mr. Parker stated that he was serving on the mine committee
on February 1, 1991, and that he was fairly familiar with the
union contract. He believed that he cannot refuse to work
because of an unsafe condition, but that he could work under
protest and request his foreman to summon a safety committeeman
to be present. He confirmed that he did not invoke his
individual safety rights or state that he did not wish to operate
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the miner after the ignition occurred (Tr. 91). He was not aware
of the fact that an individual miner could request a section
103(g) inspection, and believed that this could only be done by a
safety committeeman (Tr. 93).
Mr. Parker did not believe that the area where he was
working was too dusty, and he confirmed that the return was white
after he placed two bags of rock dust into the fan before he
started mining. The return looked the same after the incident
(Tr. 95). He confirmed that when Mr. Tonkin was at the scene
during his initial investigation "everybody" agreed that an
ignition had occurred, but management decided not to report it
(Tr. 96).
Gary L. Hayes, roof bolter operator, testified that he was
working with miner operator Parker on Friday, February 1, 1991,
and after checking the face for methane and finding one-tenth of
one-percent, he advised Mr. Parker that it was safe to begin
cutting coal. He explained that Mr. Parker proceeded to cut and
trim the coal face. Mr. Hayes was standing to the front of
Mr. Parker, approximately 12 feet from the miner head, when he
saw a flame come over the head of the miner. The flame traveled
straight to the roof top and widened out for a distance of four
to five feet, and then rolled back from a corner of the roof.
Mr. Hayes screamed and grabbed a wash-down hose and aimed it at
the flame. However, the flame extinguished itself and only
lasted for four to five seconds.
Mr. Hayes stated that foremen Carter and Wolfe were present
and they notified mine management about the flame. Mr. Hayes
confirmed that he was standing closer to the flame than anyone
else, that he was scared, and that this was the first time he
ever saw a flame come off a mining machine head in his 18 years
in the mines, and he described what he observed as follows at
(Tr. 104, 106, 110):
Q. When you first saw this flame, you said it rolled up.
Would you say, sir, it was almost the arch?
A. Yes, I'd say that. It came up like the face where it
sumped in and cut down. It come up that face. When it hit
the mine roof where that miner sumped in it had kind of a
roll to it, that made the flame go around because it had to
come back out, see. That's what caused it to like roll back
towards us.
It didn't really come back to us, but it just rolled back
there as far as we was sumped in and rolled back. If it had
come back any farther, I think it would have went down the
return.
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Q. Everyone characterized it as a flame or fire?
A. Everyone said it was a flame. The flame came up and
then it rolled up. Some of them got a ball or fire out of
that because it rolled out. It was a flame that went up off
of the head of the miner and went up to the top.
If you could cup your hand like that and take something --
see, it curved like this (indicating). It just went up
there. Well, it would have went straight up, but when it
hit that curve, it made it roll out.
* * * * * * *
It pretty well consumed itself mainly right at the face and
the head of the miner, right in that area. It didn't really
come back out and go down a return or anything.
Mr. Hayes stated that after the flame extinguished, day
shift foreman Gary Graham and dust sampler Sandy Eastman arrived
at the area and they stated "they could smell the smoke where the
flame came up" (Tr. 105). Mine superintendent David Tonkin and
mine foreman Greg Oldaker then arrived and conducted an
investigation. After checking the machine and checking for
methane, they allowed work to continue. Mr. Hayes stated that
the crew was questioned and that they explained to Mr. Tonkin
"that we had a flame come up. It was orange yellow, bright
orange and orange mixed flame that came up". Mr. Hayes stated
that the crew also informed Mr. Tonkin that they were in
agreement that "it was set off by dust and not methane. It was
the dust from the miner. The sulfur and the sparks set the dust
off or whatever. That's how the flame got started, that we felt
it got started" (Tr. 108). Mr. Hayes further stated that Mr.
Tonkin and Mr. Oldaker were not present to see what had occurred,
but that "they agreed that, yes, there was a flame. That's what
we seen" (Tr. 108).
Mr. Hayes stated that Mr. Tonkin and Mr. Oldaker informed
the crew that in view of the fact that so many ignitions had
previously occurred in the 12 Left section they had an agreement
"with the Federal" that if management investigated such incidents
and both management and the union were satisfied as to the cause
of the ignition, work could resume (Tr. 109). The area was in
"good shape" when work resumed (Tr. 110). Mr. Hayes confirmed
that he has observed sparks at the face in the past, and he
stated that "We've mined in sulfur, and there's a lot of times
that there's sparks and stuff like that. But this was a flame of
fire" (Tr. 111).
Mr. Hayes confirmed that the inspectors interviewed the crew
on Monday, February 4, 1991, and that management was present.
Each individual at the meeting stated what they had observed, and
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their statements were read back to them, and they all agreed to
what they had observed and made no changes in their statements
(Tr. 112).
On cross-examination, Mr. Hayes stated that there was no
appreciable methane present during the work shift, that there was
"a good bit of air" ventilating the face and keeping the methane
out, and that the dust was "no more" than what he had seen on
prior occasions. He believed that Mr. Parker did not have the
miner water sprays all the way on (Tr. 115). He further believed
that none of the crew had ever previously observed an ignition,
and he confirmed that when the inspectors spoke to the crew
everyone was in the room together (Tr. 118).
David Allen Moore, testified that he has worked for Consol
for 18 years, and was a roof bolter on February 1, 1991. The
mining machine area was dusty and he stuck his head around the
corner of the entry to get some fresh air, and when he next
turned around he saw a flame travel up the rib from the bottom
head of the miner. He was scared, and he screamed and grabbed
the water hose, but the flame went out. He stated that the flame
extended three to four feet from the miner head up to the roof
arch for a distance of five or six feet and that "the heat from
that thing just felt like it could singe the hair on your face,
and it was real bright yellow and orange. It just scared me to
death" (Tr. 122-123). Shift foreman Gary Graham and dust person
Sandy Eastham heard the screams and came to the area and
Mr. Graham stated he could smell the smoke, and Mr. Moore said
that he showed Mr. Graham "a little bit of soot" where he said he
could "smell where it burned" (Tr. 123-124).
Mr. Moore stated that Mr. Tonkin and Mr. Oldaker were called
to the scene, and spoke to each person, and they each stated and
agreed that they had seen a flame (Tr. 125). Mr. Moore stated
that Jimmy Parker, Dave Moore, Gary Hayes, Roy Sailor, and Kevin
Carter were present, but that Bob Wolfe was not. However,
Mr. Wolfe had previously agreed that there was an ignition, but
he was allowed to go home after dinner. Mr. Tonkin asked
everyone whether there was an agreement as to what had happened
and Mr. Moore stated that "we said yes" (Tr. 125).
Mr. Moore stated that management had on previous occasions
called "the Federal out" when there were prior ignitions, but
that someone stated that the only time they were to be called was
in the event of a gas ignition. Mr. Moore stated that "we all
agreed" that what occurred on February 1, 1991, was a dust
ignition and "it ignited and caught the dust at the face on fire
which caused the flame. It made us scream" (Tr. 127). He
confirmed that after dinner, they continued mining (Tr. 128).
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Mr. Moore stated that when he next returned to work on
Monday, February 4, 1991, he and the crew met with the
inspectors. Inspector Tulanowski asked the questions, and
Inspector Young "wrote them down" (Tr. 128). The statements were
read back, and "they all agreed that this is what happened"
(Tr. 129). Mine management representatives, including
Mr. Graham, Sandy Eastham, and foreman Kevin Carter were also
present (Tr. 130). Mr. Moore was not sure what Mr. Carter may
have said, and he could not recall that Mr. Wolfe was present
(Tr. 131).
On cross-examination. Mr. Moore described where he was
standing when he observed the flame, and he confirmed that it was
the first time he had seen anything like it (Tr. 132-134). He
also testified as to the use of the water sprays by Mr. Parker,
and he confirmed that while Mr. Parker was cutting at the face
after the incident with the water sprays fully on "it made sparks
all the time" (Tr. 137).
Respondent's Testimony and Evidence
Kevin B. Carter, Longwall Foreman, stated that he has worked
as a foreman for 12 years and that he holds a B.S. degree in
technical mine engineering from Fairmont State and that he was
the day shift section boss on the 11 Left section on February 1,
1990. He fire-bossed the section that day and found no more than
two-tenths of one percent methane.
Mr. Carter stated that soon after mining began he heard
everyone yelling and foreman Bob Wolfe was running to the water
hose. Mr. Carter stated that in response to the yelling he was
turning "a lot of different ways and looking everywhere at once
because I wasn't sure what was going on", and that "whatever I
saw, I saw very briefly because I was turned the other way from
the people, just a glow near the bits". He explained that he saw
"a glow near the bits on the left side, above the bits. It was
just gone almost immediately as I looked." (Tr. 143). He stated
that he saw no flame or smoke.
Mr. Carter could not remember Mr. Parker telling him that he
saw anything, and he stated that Dave Moore and Gary Hayes told
him that they "saw something on the left side of the miner" but
he did not remember that they said they saw flames rolling back
toward them. Mr. Carter stated that Mr. Moore and Mr. Hayes told
him that they saw "like a ring of fire near the bits, a glow near
the bits, up above between the bits and roof" (Tr. 143-144).
Mr. Carter explained his understanding of "a ring of fire"
as follows at (Tr. 145):
Page 16
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A. In my experience, when someone refers to it, they refer
to it when they're in sulfur. When you're cutting a lot of
it, you'll see a lot of sparks off the head. The head moves
pretty quickly, and you'll see a lot of -- it's called a
ring of fire.
Q. Does it create an illusion of a ring of fire? Does
everything look orange?
A. It's almost like holding metal against a grinder. It's
the same thing.
Mr. Carter confirmed that management conducted an
investigation of the incident and that Mr. Tonkin spoke to
everyone and stated "are we in agreement that we hit sulfur with
the bits and you saw a ring of fire around the bits? We know
what it was, and we know what caused it". Mr. Carter stated that
everyone responded "yes" and no one stated that they had seen
flames (Tr. 146).
Mr. Carter stated that "it was not real dusty" on
February 1, and that the air flow was good and the fan was
running. He also stated that he was looking back toward the boom
of the miner and was also watching the cables. He confirmed that
he was present during the MSHA investigation of February 4, and
that the statements made to the inspectors "seemed to have
escalated a little bit" from the statements previously given to
Mr. Tonkin. The employees told the inspectors that they saw fire
above the miner bits and when asked if he recalled that they said
they saw flames he responded "I think they did" (Tr. 148).
On cross-examination, Mr. Carter stated that he never made
any statement that he saw flames. (In response to a question
from the bench, Inspector Young stated that during the
investigation interviews he recalled that Mr. Carter "used the
terminology "fire" and not flame (Tr. 153)).
Mr. Carter confirmed that he did not actually observe the
event when it happened and that he was "at the rear of the miner,
facing the rear of the mine, facing away from the face"
(Tr. 155). However, as he turned around he briefly saw a glow
on the left side of the miner, and that "I caught the tail end of
whatever it was, enough for me to have noticed there was
something there" (Tr. 156). He stated that at the time of the
event he asked Mr. Moore and Mr. Hayes what they saw and that
they told him they saw fire on the left side of the miner at the
bits and they did not characterize what they saw as a "ring of
fire" (Tr. 159).
Mr. Carter confirmed that most of the crew members had long
years of experience in the mines and that "they saw something
more than they had seen before or they wouldn't have been
Page 17
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panicked. We do hit a lot of sulfur. You see a lot of sparks, a
lot of glow around the bits" (Tr. 160-161).
Robert Wolfe, section foreman, stated that he holds a BS
degree in mining engineering and an AS degree in mechanical
engineering from Fairmont State. He has served as an hourly
loading machine and miner operator, roof bolter, shear operator,
and shieldman, and on February 1, 1991, he stayed over from his
night shift to work the day shift and help slab the No. 1 entry
(Tr. 165). He explained the work he performed, and he confirmed
that he checked for methane and found two-tenths of one percent
"which is common on that area" (Tr. 167).
Mr. Wolfe stated that Mr. Parker cut the miner water sprays
back 80 percent when he sheared the bottom of the face, and that
"there was a ball where the bits were coming into contact with
the iron pyrite. It's sparks, we had a lot of sulfur gas sparks"
(Tr. 168). Mr. Wolfe stated that he grabbed a washdown hose used
to wash dust off the miner to put additional water on the sparks
and that he did not see any flames. He did not remember making
any statements to anyone that he saw flames (Tr. 168). He did
not see or smell any smoke. In his opinion, the crew became
excited because "they seen more sparks off the iron pyrite than
they was used to seeing because the water was cut back on the
miner", and that "there wasn't that much dust" (Tr. 169).
Mr. Wolfe confirmed that he was present during the
investigation conducted by Mr. Tonkin and Mr. Oldaker, and he
explained as follows at (Tr. 170-171):
Q. Do you recall Mr. Tonkin asking the crew members if they
had seen flames or had an ignition?
A. Yes. Everyone there was present.
Q. Do you recall what the answers were?
A. The best I can remember, everyone determined that hadn't
been that. That hadn't happened.
JUDGE KOUTRAS: Do you remember him asking everybody
individually whether they saw a flame?
THE WITNESS: He asked them as a group.
JUDGE KOUTRAS: What did he say? Did anybody see
flames?
THE WITNESS: I don't recall what he said exactly, but
it was in that line. He said, "Did anyone see flames?
Everyone was standing in a semi-circle around him as
he was speaking.
Page 18
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JUDGE KOUTRAS: He specifically asked the group whether
they saw a flame?
THE WITNESS: Yes.
BY MR. SCHELLER:
Q. Their answers at that point were that they had not?
A. Yes, the best I can remember. I by this time had been
in there a lot of hours.
On cross-examination, Mr. Wolfe stated that the crew
screamed when they saw sparks and that he already had the water
hose on and pointed in the direction of the miner head because it
was a common occurrence. He was following his normal procedure
and would have the water on regardless of any sparks in order to
cut down the dust (Tr. 172-174).
David C. Tonkin, Assistant Mine Superintendent, stated that
he was serving as the acting superintendent on February 1, 1991,
and has 23 years of mining experience (Tr. 185). He confirmed
that he has investigated ignitions on several occasions and that
he looks for physical evidence such as soot, cinders, and ash and
that he has visited areas after an ignition and could still smell
smoke. He confirmed that he was summoned to the section by Gary
Graham who informed him "they might have had an ignition at the
No. 1 heading". Mr. Graham further informed him that "they had
stopped mining and I left everything be" (Tr. 186).
Mr. Tonkin confirmed that he investigated the area where the
event took place and found no physical evidence of soot or ash
and smelled no smoke. He found nothing that would have led him
to believe that an ignition had occurred (Tr. 187). He then
called the crew together to question the individuals about what
they had seen and he explained as follow at (Tr. 187-189):
A. I don't remember exactly the order I talked to them.
Mr. Hayes said he was standing on the right side of the
miner. He had been checking for methane in the face area.
He said he saw a small fireball at the bits of the miner.
He turned to get the hose, to get the hose there, turned the
water on and it was gone.
I talked to Mr. Moore. He said he was standing near the
corner. He was not looking at the miner. He said he heard
somebody holler, and he looked around. He said he saw a
fireball at the bits of the miner. He saw people grab the
water hose and it was gone.
I talked to Jimmy Parker. I asked him what he was doing.
He described the motions he went through as far as making
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one sump, making the second sump. He said he was making the
second sump and as the miner head was being dropped, which is a
common practice for miner operators, they usually reach down and
turn the water nearly off or down. He said he was reaching down
to turn the water down, and he heard somebody holler. He said he
reached back up and looked. He saw a ball and it was gone.
* * * * I told them we were going to make the investigation.
I questioned them. I went back over it. I said that from
you all are telling me, we saw a fireball at the bits of the
miner. I questioned them about a blue flame. There's no
blue flame. It's a fireball at the bit of the miner. It
was contained around the bits of the miner. I said, "Do you
all agree with that?" They said yes.
Q. Did anyone tell you they saw any flames?
A. No, there was no mention of flames.
Mr. Tonkin stated that if anyone had told him they saw
flames or that the flames went to the roof it would have been a
reportable event and he would have reported it as he has done in
the past. However, after speaking to all of the employees he
concluded that while dropping the miner, Mr. Parker hit a sulfur
ball as the water was turned off or nearly turned off and that
"this would bring a larger than normal amount of light to the
area . . . he was cutting through this sulfur ball with his water
off and greatly amplified the light. The people were not used
to it, and they were afraid" (Tr. 189).
Mr. Tonkin stated that he made the decision that the event
was not reportable and that "I asked everybody if they agreed
with me with what we saw, and they all agreed what we saw. That
was a fireball near the bits on the side of the miner". He
explained that the "fireball" he was referring to was the "Ring
of Sparks" which is "low on the pyrites" (Tr. 190).
Mr. Tonkin confirmed that he was present during the MSHA
investigation of February 4, 1991, and that the events as relayed
by the crew to the inspectors were not the same as they were
relayed to him on February 1, immediately after the occurrence.
He believed the sparks were enhanced by the lack of water on the
miner and that it cut through the pyrite with the water turned
off or nearly turned off. There was no doubt in his mind that an
ignition did not occur (Tr. 191).
On cross-examination, Mr. Tonkin stated that the employees
told him they saw a fireball on the left side of the miner near
the bit area, and that it was contained around the bits. They
did not state that it rolled up the arch (Tr. 192). He confirmed
Page 20
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that the employees told the inspectors that there were flames,
but he did not know that they stated that it was an ignition.
Mr. Tonkin stated that he was not told anything about any
flames by the crew when he spoke to them on Friday, February 1,
and that "the story today was even more so than the story that we
had that day" (Tr. 192). Mr. Tonkin stated that he reported what
he believed happened to his superiors, and that his decision with
respect to the lack of a reportable incident was based on
physical evidence and what the men had reported to him. The
presence of flames and an ignition was not reported to him as
such, and he believed the men saw "a ball of fire", which he
defined as the "result of the bits hitting the sulfur, and it was
amplified by the lack of water" (Tr. 194).
He further explained as follows at (Tr. 194):
Q. You have heard these men testify today how that flame or
that ball of fire rolled toward them. Then you said that
was never reported.
A. Yes. They told me that it was a flame and came towards
them, yes. The day that you're talking about in the safety
office, there was no mention of a large ball of fire going
up against the arch and rolling back to them. That was not
even mentioned that day, but they did say that day there
were flames.
Q. Just based on your own opinion, you would not call a
ball of fire an ignition?
A. My terminology of ball of fire has to do with hitting
sulfur and a ball of fire, large sparking around the bits,
my terminology of a ball of fire.
Q. But you always have sparking around bits in large
streaks and things like that, correct?
A. Yes.
Q. It does not result in a ball of fire. It's just
streaks.
A. If the water is turned on, I'd say, no, it wouldn't.
Mr. Tonkin stated that at the time of the MSHA investigation
he told Inspector Young that the story relayed to him by the crew
was not the same as what he heard underground on February 1,
(Tr. 196). Mr. Tonkin stated that he told Mr. Parker that in the
event management concluded that there was no ignition it would
not be reported to MSHA and that mining would continue.
Page 21
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Mr. Tonkin believed that his relations with the miners and the
inspector were good (Tr. 197).
Mr. Tonkin stated that since he did not believe there was an
ignition, mining was allowed to continue. If an ignition that he
thought was reportable had occurred, the evidence would not have
been destroyed and "we would have let it be" (Tr. 198). He
believed that management did the right thing and that foreman
Graham told the crew not to disturb anything until he (Tonkin)
reached the area. Mr. Tonkin conceded that Mr. Parker may have
seen a flame, and he stated that "he did not tell me he saw a
flame. That's what I had to go on. I'm not denying he saw
flames, I'm just telling you what they reported to me" (Tr. 199).
Mr. Tonkin was of the opinion that if dust had engaged an
ignition and rolled to the roof, there would surely be soot on
the roof. He speculated that the miners may have embellished
their story because management and the safety committee were not
on good terms and the union may have pressured them (Tr. 199-
200).
Mr. Tonkin stated that he prepared no notes or report of his
investigation and saw no harm in notifying MSHA of the event
(Tr. 200-201). He explained that he has in the past participated
in ignition investigations with MSHA, but that in this case he
did not feel the need to call MSHA if he believed there was no
ignition (Tr. 201). He stated that after questioning everyone
they agreed that there was a ball of fire in and around the bits
and that no one spoke up and said that they saw more than a ball
of fire and saw flames rolling up over the roof (Tr. 202-203).
Greg Oldaker stated that he has 20 years of mining
experience and that he was the underground mine foreman on
February 1, 1991. He confirmed that he was summoned to the
section by phone and that "they said they had a possible
ignition" (Tr. 204). He confirmed that he checked the miner and
found no evidence of soot, ash, or soot streamers, and did not
smell smoke. He saw nothing that would indicate that an ignition
had occurred. He found 30,000 cubic feet of air going across the
miner, and one-tenth of one-percent methane (Tr. 205).
Mr. Oldaker confirmed that he was present "the majority of
the time" during the management investigation and that "as a
whole, to me, everybody was more or less agreeing that had a ball
or fire" (Tr. 206). He described a "ball of fire" as "like when
you're in sulfur and you've got a lot of sparks from the sulfur
coming around the head of the miner they'll refer to it as a ball
of fire. That's more or less what it is" (Tr. 206). He stated
that he never heard anyone say anything about flames, and that
the crew basically agreed that what they had seen was a ball of
fire around the bits. He "was more or less in agreement with
them because I didn't see evidence of an ignition myself when I
looked at it" (Tr. 207). He confirmed that he may have been in
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or out of the room during MSHA's interviews with the employees
but he did not sit in on any of the testimony (Tr. 207).
In response to further questions, Mr. Oldaker stated that he
has observed balls of fire from cutting sulfur, and the size of
the ball would depend on the amount of sulfur present. Although
there may be a big glow "like a shower of sparks", he did not
believe it would roll up the face and he has never observed this
happen. Although he believed that such sparking could probably
ignite methane, he did not know if it would ignite coal dust
(Tr. 209).
Inspector Young was recalled by the Court and he explained
that any statements made during the investigation with respect to
"a ball of fire rolling up the coal and all that" would not
appear in his report of investigation. He further explained that
it "would not be the terminology that you put in there. I've
never seen one of these come close to that kind of description"
(Tr. 210). When asked if he would include in his report any
statements by Mr. Wolfe and Mr. Carter (if in fact made to him)
that they saw a ball of fire, Mr. Young responded "a ball of
five, maybe, but you were saying rolling up the coal and all. We
would not have put that in there, no"
(Tr. 210).
When asked if he would have included in his report any
statements (if in fact made) that flames were rolling back toward
the mine operator, Mr. Young stated that he would have put that
in his notes "but I would not have worded it that way in this
accident report, no. I've never seen one with terminology like
that" (Tr. 220).
Mr. Young confirmed that during his investigation on
February 4, Mr. Tonkin stated "if I had heard what you just heard
the other day on the section, I would have reported it" (Tr.
211). Mr. Tonkin told him that the statements made by the miners
during the interviews were not the same statements made to him
(Tonkin) during his investigation (Tr. 219).
Mr. Young confirmed that he based his citation for the
failure by the respondent to preserve the evidence on the
testimony of the employees which led him to conclude that three
was an ignition, and that if there was an ignition, MSHA should
have been afforded the opportunity to investigate it. However,
since the area was cleaned up and repairs made to the miner, any
investigation would have been fruitless (Tr. 212). Conceding
that the respondent had the right to investigate in order to
decide whether a reportable accident had occurred, and that there
would be nothing to preserve if it was concluded that the
incident was not reportable, Mr. Young monetheless stated that
"the testimony was so overwhelming that we had no choice. We
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didn't hear anything contrary to an ignition. Nobody told us a
maybe, an if, or what for. It was all dead straight forward".
When asked if the testimony he heard during the hearing in
this case was like the testimony he heard during his
investigation, Mr. Young responded "I don't know if any words
agreed" (Tr. 212). Mr. Young stated that Mr. Parker's testimony
that "it went all the way to the ceiling and rolled back on him"
was the same as what he stated during the investigation, and that
the hearing testimony of the other miners was also consistent
with their prior statements (Tr. 213).
When asked if he disagreed with the testimony about the
appearance of a "ball of fire" or "a ring of fire", Mr. Young
stated that there were 8 or 9 people in the room during his
interviews and that "it seemed that we had one faction over here
that wanted to agree on this is what it is and one faction over
here that wanted to agree on something else" (Tr. 216).
Mr. Young stated that he has seen "a ring of flames" around a
miner bit when dust and methane are ignited, and that he has also
observed "sparks go round and round bit lugs" and that there is a
distinct difference in the two. The response he received was
"that it was a fire and it had a flame. It was this color and it
did this" (Tr. 217).
Mr. Young stated that Mr. Tonkin and Mr. Oldaker were not
asked any questions during his interviews with the other miners.
Mr. Young also confirmed that Gary Graham was present "out in the
hall", but that he was not questioned. The questioning was
limited to "the people that was right around the continuous miner
that saw what went on" (Tr. 217). Mr. Young stated that he
distinctly remembered that Mr. Wolfe stated he saw fire, but that
Mr. Carter "was hesitant" and that "he always looked down. He
didn't look up. He didn't want to give me a direct answer"
(Tr. 218). Mr. Young stated further at (Tr. 219):
THE WITNESS: My position was in the middle somewhere.
I had more than one person categorically tell me, "We had a
fire and ignition or ball." Then I had another guy saying,
"James, I didn't see it." I wasn't told the same thing you
were.
JUDGE KOUTRAS: Was there any inquiry made of these
miners as to what they may have told Mr. Tonkin.
THE WITNESS: There was remarks made in the room by
other people about "Wait a minute. I didn't hear that the
other day." They would make an explanation to them but not
directed at me.
Mr. Young agreed that the testimony of the miners
during the hearing in this case was more than what he heard
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during his investigation and he attributed this to the kinds of
direct questions asked by counsel which were not the same
questions asked during the investigation interviews (Tr. 220).
He stated that the responses to the questions asked during the
investigation were straight-forward and that no one was "wishy-
washy" about what was said (Tr. 221). He stated that "the
testimony given to me did not say anything about a small ball.
Just categorically, we had a flame and a fire, and that's what we
based it on".
Mr. Young stated that in view of some statements by some of
the respondent's representatives who were present during his
interviews with respect to the term "ball of fire", he
specifically asked for clarification as to whether there was "a
flame of fire of orange color" or "a ring of sparks". The
statements by the crew that "flames were rolling back on the
roof" led him to conclude that there was an ignition (Tr. 223).
David Allen Moore was recalled by the Court, and he stated
that when Mr. Tonkin spoke with the crew during his investigation
he told Mr. Tonkin that "I seen the flame shoot up there. It was
hot. It scared me" (Tr. 226). When asked if he specifically
used the word "flame", Mr. Moore responded "Yes, fire. Flame,
fire. I'd say flame. I can't remember exactly, but it was
either fire or flame. I think fire and flame is the same thing,
isn't it? I'd say flame because he asked me how big it was and
the color of it" (Tr. 226). Mr. Moore further stated that he
told Mr. Tonkin that it was "three foot high and five to six foot
wide, and it was kind of yellow and orange and real bright. It
was hot" (Tr. 227).
Mr. Moore stated that he heard "ball of fire" discussed and
that "it just rolled like a ball of fire there, but it was three
foot high at the miner head where it was cutting". He stated
that everyone agreed that they saw "a flame shooting up the rib,
three foot high and five foot long "(Tr. 220).
Gary Lee Hayes was recalled by the Court, and he stated that
when Mr. Tonkin spoke with the crew during his investigation
Mr. Tonkin was told that "we had an ignition, that we had flame,
we explained to him how it came off the miner and how it rolled
back. I think that's how he got to the point of a ball of fire
and everything. We didn't really know. This was the first time
we ever experienced anything like this" (Tr. 229). In response
to a question as to how he concluded that an ignition occurred,
Mr. Hayes responded as follows (Tr. 229-230):
JUDGE KOUTRAS: Let me ask you this. How did you come
to the conclusion that this was an ignition?
THE WITNESS: This is what we've been told, that any
time that you've got fire like that in the face area, it's
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called an ignition. That's the reason we come out with this
point was the flame that happened in the face that was set off.
We believe it was set off by the dust. This was we called it, an
ignition.
If it wasn't an ignition, the only thing I an say is it
was a flame of fire that came off the head of the miner to
the top. This is the way we reported it. I said ignition,
but that's my own opinion of what an ignition is, a fire at
the face of a working section. That's why I've come to the
point of an ignition.
JUDGE KOUTRAS: What does ring of fire mean to you?
THE WITNESS: A ring of fire is like miner bits hitting
sulfur and being going around the head of the miner. I've
seen this happen. I didn't feel that was a reportable
thing. I've seen it many a time in my years of coal mining
experience. I've seen the bits keep hitting it. It
followed the miner hitting around. It's them bits set on an
order where they just keep hitting it, and it makes it look
like a ring of fire. But we had flame. It was a flame.
JUDGE KOUTRAS: That ring of fire that you have
described, would that be an ignition?
THE WITNESS: No, I didn't say that an ignition, no.
JUDGE KOUTRAS: Did you remember specifically telling
Mr. Tonkin that what you saw was flame?
THE WITNESS: Yes, sir.
James W. Parker, Jr. was recalled by the Court, and he
stated that when Mr. Tonkin came to the scene on February 1, he
told Mr. Tonkin that "it was a flame going up the left-hand side
of the miner, up to the top, and rolled back from the arch over
the top toward us" (Tr. 232). Mr. Parker stated that he never
referred to the flame as a "ring of fire". He confirmed that
during the MSHA investigation of February 4, the statements made
to the inspectors were "pretty much" the same statements made to
Mr. Tonkin and he did not recall anyone refer to the flame as a
"ring of fire" (Tr. 233).
Consol's Expert Witness
Dr. Pramod C. Thakur, testified that he is employed by
Consol and is responsible for degasification of all of its mines,
control of respirable dust, and the prevention of methane and
dust ignitions. He received his early mining education in India
and holds BS, MS, and PHD degrees in mining engineering from Penn
State University and has an MS degree in applied Mathematics. He
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is a certified mine manager, has conducted research in methane
and dust ignitions and mine ventilation, and has been involved in
investigations of ignitions (Tr. 234-237).
Dr. Thakur agreed with Inspector Young's statement that
"when you have a visible flame, it's an ignition, ignition of
something" (Tr. 237). He stated that methane and air mixtures
will ignite, and that coal dust and air mixtures will ignite. In
order for these mixtures to ignite there are three ingredients
that must be present, namely, (a) the right concentration, (b)
the right temperature for all ignition temperatures, and (c) the
right energy input (Tr. 238).
Dr. Thakur confirmed that based on the testimony of all of
the witnesses, which he heard in the course of the hearing, he
agreed with MSHA that no methane ignition took place on
February 1, 1991 (Tr. 239). He was also of the opinion that it
was impossible to ignite coal dust under the circumstances
described by the witnesses. He explained that based on the
published literature by the U.S. Bureau of Mines one would have
to have a thousand times more dust at the face than what was
present at the time of the event in question, and that the dust
would have to be ignited by an explosive charge. No mechanical
friction of any sort can ever ignite coal dust, and that based on
all of the literature on the subject "it is impossible to ignite
coal dust and air mixtures with mechanical friction" (Tr. 241).
Dr. Thakur stated that sparking caused by friction will
ignite a mixture of methane and air, with a resulting flame which
is bluish in color. Depending on the volume, "you will hear a
pop", and the flame "will rise, go to the roof". He further
stated that "there's no way you can have a sustaining visible
flame to qualify as an ignition and go away in three seconds"
(Tr. 241).
In addition to the lack of sufficient coal dust, and the
impossibility of igniting coal with a frictional emission, Dr.
Thakur stated that a "great powerful source" of energy, which is
10 to 100 times more than what is necessary to ignite a mixture
of methane and air, must be present to ignite coal dust. He also
indicated that a coal dust explosion may be ignited if there was
an initial methane explosion which has sufficient momentum to
"kick up" the dust from the mine floor, ribs, and roof at 700
degrees centigrade or higher (Tr. 242).
Dr. Thakur stated that based on the testimony he heard in
this case from all of the witnesses he was of the opinion that
what occurred was the creation of light by the bits of the mining
machine striking quartzite or pyrite. Quartzite will oxidize
very rapidly, creating a light, and pyrite creates more light
because it oxidizes very rapidly and dissipates faster and gives
off a "more orange light". The resulting sparks, or "ring of
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fire", is pyrite oxidizing very rapidly, and there will be more
sparking when the water is cut down. There is no ignition, no
fire, or any flame, and to anyone standing 10 to 30 feet away it
would appear to be a "ball of fire" (Tr. 245). Once the machine
is stopped, the sparks will end, and if the machine is started
again, it will happen again. He believed it was impossible to
have a coal dust ignition given the amount of methane present
(Tr. 245).
On cross-examination, Dr. Thakur stated that based on
scientific opinion and research, it was his opinion that it is
impossible to ignite coal dust by mechanical friction, and he
explained what is necessary to ignite an airborne mass of coal
dust (Tr. 246-248). He further stated as follows at (Tr. 249):
Q. You mean to tell me then that it is your position, when
you heard these employees testify, that it was just some
kind of sparks.
A. There was all this sparking and because of a lack of
water it became a very -- what should I say -- large number
of particles were created. They were all oxidizing very
rapidly and they glowed. They created a source of light.
As I said, this was the mechanism they used in army days to
light the mines. The people used to work in the light of
the sparking wheels.
Q. I know what you are saying about sparks and so forth.
These people said they saw a flame.
A. You also realize -- I don't want to put them down --
they had never seen a real ignition before.
Q. But they have seen a flame before, have they not? I
have seen a flame.
A. Yes. But what they thought was a flame, in my opinion,
was not a flame.
Dr. Thakur acknowledged that sparking is a potential source
of ignition, and he cited a fatal incident in Nova Scotia caused
by frictional ignition. However, he believed that the real
ignition source in that event was the presence of a lot of
methane and using mechanical means to cut the coal (Tr. 251). He
believed that if there is no methane there will be no coal dust
explosions, and he stated that "the only way they ever have coal
dust explosion is if they were shooting coal or there was a freak
of several methane explosions" (Tr. 253). Dr. Thakur concluded
his testimony as follows at (Tr. 258-259):
THE WITNESS: The only thing I would submit, Your
Honor, to you is that if a mechanism is creating so-called
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sparks, as soon as you stop that mechanism the sparks stop.
That's not an ignition.
For an ignition to be called an ignition, something has
to be ignited, something which would sustain a visible flame
for some duration of time, even it is five or ten seconds.
I respectfully submit to you that what they saw was a
big mechanical wheel cutting into pyrite, creating fine
particles, and creating a lot of heat which oxidized those
particles. They glowed, and they glowed like a ball of
fire.
The moment you stopped that machine the phenomenon
ended. There was nothing ignited, and, therefore, there was
no ignition. I would have taken the same action as Mr. Dave
Tonkin did if I were the mine superintendent. It was not a
reportable accident.
Findings and Conclusions
Fact of Violation. Citation No. 3105295, 30 C.F.R. 50.10
Consol is charged with a violation of 30 C.F.R. 50.10, for
failing to report the alleged ignition which the inspector
believed occurred on February 1, 1991. Section 50.10 provides as
follows:
50.19 Immediate notification
If an accident occurs, an operator shall immediately
contact the MSHA District or Subdistrict Office having
jurisdiction over its mine. If an operator cannot contact
the appropriate MSHA District or Subdistrict Office it shall
immediately contact the MSHA Headquarters Office in
Washington, DC by telephone, toll free (202) 783-5582.
I take note of the fact that the citation issued by
Inspector Young contains language which suggests that Consol was
required to report the results of its investigation of the
incident of February 1, 1991, to MSHA, and that it also failed to
contact MSHA to obtain information to determine whether "the
occurrence" needed to be reported. During the course of the
hearing, Mr. Young testified that Consol was obliged to report
"anything, regardless of what it was" (Tr. 36). However,
contrary to the inspector's belief, Consol's only legal
obligation pursuant to section 50.10, was to immediately report
an "accident". The definition of an "accident" found at section
50.2(h)(5), includes an unplanned ignition or explosion of gas or
dust. The citation alleges that a dust ignition occurred on the
11 left working section on February 1, 1991, and the issue
presented is whether a coal dust ignition in fact occurred, or
Page 29
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whether the occurrence in question was something other than a
reportable ignition.
Neither the Act nor the regulations further define ignition.
However, the Dictionary of Mining, Mineral, and Related Terms,
U.S. Department of the Interior, 1968 Edition, provides the
following relevant definitions:
Ignition . . . . . The act of igniting, or the state of
being ignited; An outburst or fire or
an explosion. (Pg. 569).
Coal mine
ignition . . . . . The burning of gas and/or dust without
evidence of violence from expansion of
gases. (Pg. 225).
Webster's Third New International Dictionary (Unabridged),
provides the following relevant definitions:
Ignite . . . . . To subject to fire or intense heat; to
heat up; to catch fire; to begin to glow;
become luminescent. (Pg. 1125).
Ignition . . . . The act or action of igniting; subjection
to the action of fire or intense heat;
setting fire. (Pg. 1125).
Luminescence. . An emission of light that is not ascribable
directly to incandescence and therefore
occurs at low temperatures, that is produced
by . . . friction, . . . by certain bodies
while crystallizing. (Pg. 1345).
(Similarly defined by the Mining Dictionary,
at pgs. 662-663).
Luminous . . . full of light; emitting or seeming to emit a
steady suffused light that is reflected or
produced from within. (Pg. 1345).
Radiating or emitting light; bright; clear.
(Mining Dictionary, at pg. 663).
In support of its conclusion that an ignition in fact
occurred on February 1, 1991, MSHA relies on the testimony of
Inspector Young, including his report of investigation, and the
testimony of the miners who witnessed the February 1, 1991, event
and who were subpoenaed to testify at the hearing in this case.
With regard to the investigation conducted by Mr. Young and
Mr. Tulanowski, and the report which they prepared are concerned,
as I noted in the course of the hearing, the investigation and
the report leave much to be desired and are of little credible or
evidentiary value (Tr. 43-47; 76-78; 150-153; 175-180).
Page 30
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The record reflects that the "statements" purportedly given
to the inspectors during their investigation were in fact verbal
summaries of the questions asked by Inspector Tulanowski and the
responses recorded by Inspector Young as part of his investi-
gative notes. However, the notes were not produced at the
hearing and they are apparently lost and not available. Further,
it would appear that none of the miner "statements" were reduced
to writing or signed by the miners who purportedly gave them,
they were not sworn, and I take note of the fact that the miners
were interviewed in groups rather than individually and in
private. One potentially critical witness (Foreman Gary Graham),
who reportedly commented on February 1, 1991, that he smelled
smoke when he arrived at the scene was not called to testify at
the hearing, and although Mr. Graham was present during the
interviews of February 4, 1991, Inspector Young confirmed that he
was asked no questions (Tr. 217).
Mr. Young confirmed that he and Inspector Tulanowski only
prepared part of the report of investigation, and that the rest
of the report was prepared by other unidentified MSHA officials.
Mr. Young acknowledged that he and Mr. Tulanowski did not sign
the report, and he could not state who initialed and signed the
report over their typewritten names. Although the name "David N.
Wolfe" appears over Mr. Young's typed name, Mr. Young confirmed
that he did not know Mr. Wolfe (Tr. 43). Mr. Young also did not
know who changed pg. 3 of the report by scratching through the
word "methane" and inserting "frictional dust", and he believed
the change was made to correct a typographical error.
Three eyewitnesses to the incident of February 1, 1991, gave
rather graphic and detailed sworn testimony as to what they
observed. Continuous miner operator Parker, who has worked for
Consol for 19 years, and roof bolter Hayes, with 18 years of
experience in the mines, testified that they observed a flame
from the miner machine head travel up to the roof and roll back
over the machine before it extinguished itself. Mr. Parker was
operating the machine and Mr. Hayes was standing to the front of
Mr. Parker, approximately 12 feet from the miner head.
Mr. Parker recorded his observation in his personal notes made 5
or 10 minutes after the event, and while the notes do not mention
any "flames rolling back" they do mention an "orange and yellow
ball of fire" lasting 3 to 5 seconds, and Mr. Parker explained
that the flames he saw resembled a "ball of fire" as they rolled
back and that is why he characterized it as such in his notes.
Further, Mr. Parker and Mr. Hayes, both of whom had previously
observed sparks and sparking in their mining experience, denied
that what they actually saw were sparks, and they were rather
emphatic that they observed a flame, and their testimony in this
regard remained consistent when later recalled by the court in
the course of the hearing.
Page 31
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Roof bolter David Moore, with 18 years of mining experience,
testified consistently on direct and on recall by the court that
after sticking his head around the corner of the entry to get
some fresh air he turned around and saw a flame travel up the
coal rib from the head of the miner machine, and he described the
flame as bright orange and yellow. He also stated that he could
feel the heat. Mr. Moore, Mr. Parker, and Mr. Hayes all insisted
that during management's inquiry on February 1, 1991, they told
Mr. Tonkin that they had seen a flame. Mr. Tonkin confirmed that
he made no notes of the discussions with the crew and he
apparently did not prepare any report of his inquiry. He
testified that the three miners told him they saw "a fireball"
near the bits of the miner machine, and he confirmed that the
three miners told the MSHA inspectors on February 4, 1991, that
they had seen flames (Tr. 194).
In support of its conclusion that what the miners actually
saw on February 1, 1991, was not a flame or an ignition, but
sparking which often occurs when the bits of the miner machine
strike sulfur or pyrite while mining with insufficient water in
the machine, Consol relies on the eyewitness testimony of
longwall foreman Kevin Carter, section foreman Robert Wolfe, and
its expert witness and employee Dr. Thakur. Consol also relies
on the testimony of Mr. Tonkin and Mr. Oldaker, the management
officials who conducted the inquiry of February 1, 1991.
Mr. Carter testified that he saw "just a glow near the bits"
of the miner machine, but he acknowledged that "whatever" he saw
was brief, that he was looking in several different directions in
response to the yelling by crew members, and that he was
positioned at the rear of the miner looking away from the face,
and that he did not actually see what had happened. Mr. Carter
also confirmed that at the time of the incident, Mr. Hayes and
Mr. Moore told him that they saw fire on the left side of the
miner at the bits, and he believed that the miners told the MSHA
inspectors that they saw flames. Mr. Carter acknowledged that
given their long years of experience in the mines, and the fact
that sparking and glowing is not particularly unusual, the miners
saw "something more than they had seen before or they would not
have panicked" (Tr. 159).
Mr. Wolfe testified that he saw no flames, and it was his
opinion that what the crew actually saw was an unusual sparking
event caused by the miner bits striking pyrite. He believed that
the lack of water in the machine caused unusual sparking which he
characterized as "a ball of sulphur gas sparks" (Tr. 168).
Mr. Wolfe further testified that at the time Mr. Tonkin spoke
with the crew on February 1, 1991, no one said anything about
seeing any flame. Mr. Wolfe denied that he ever made any
statements to anyone that he saw flames. However, in response to
a question from the court concerning the information at page 3 of
the MSHA report of investigation which states that he "observed
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an orange flame measuring approximately 3 feet tall and 6 feet
wide, at the miner ripper head", Mr. Wolfe stated that based on
his own mining terminology, an orange flame is the same as a
spark (Tr. 176).
Mr. Tonkin did not witness the event of February 1, 1991.
Mr. Tonkin was summoned to the area by Mr. Graham who told him
that "they might have had an ignition". Upon arriving at the
scene, Mr. Tonkin found no physical evidence such as soot,
cinders, or ash. Based on his discussions with the crew,
including statements by Mr. Hayes and Mr. Moore that they saw "a
fireball at the bits of the miner", Mr. Tonkin concluded that an
ignition had not occurred, and that the crew had only observed "a
ball of fire". Mr. Tonkin conceded that Mr. Parker may have seen
a flame, but he insisted that none of the miners told him that
they saw any flames. Mr. Tonkin stated that he would consider a
flame to be an ignition, but that based on the terminology that
he is used to, a ball of fire that is caused by sulfur is not
classified as an ignition (Tr. 195).
Mr. Oldaker did not witness the event, and he was summoned
to the area by a telephone caller who informed him of "a possible
ignition". Mr. Oldaker saw no evidence of any ignition, and
while he was present during the MSHA interviews with the crew, he
confirmed that he did not sit in on any of the "testimony " and
may have been in and out of the room. He denied hearing anyone
say anything about the presence of flames, and his conclusion
that everyone saw "a ball of fire" was based "more or less" on
what he believed was a consensus view of the crew.
Dr. Thakur agreed that a visible flame would indicate that
an ignition has occurred, and he confirmed that given the right
concentration, temperature, and energy input, a mixture of coal
dust and air will ignite. However, based on the testimony of the
witnesses, he did not believe that an ignition occurred. He
concluded that the employees saw sparks or a ball of fire created
by the miner bits cutting into pyrite. This produced a lot of
heat which oxidized the fine pyrite particles, and which resulted
in a glow and the creation of a source of light. Dr. Thakur
further concluded that it was impossible to ignite coal dust and
air mixtures with mechanical friction.
Although it may be true that the subpoenaed miners who
testified under oath during the hearing disclosed more than what
they may have previously stated to Mr. Tonkin, I find no reason
for disbelieving their testimony. Mr. Tonkin confirmed that he
got along well with the miners, and although he suggested that
the union safety committee may have put pressure on them to
embellish their stories because the committee did not get along
with management, I find no credible evidence to support any such
conclusion.
Page 33
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Although Mr. Tonkin impressed me as a candid and credible
individual, and Inspector Young believed him to be a truthful
person, it would appear to me that the "investigation" conducted
by Mr. Tonkin on February 1, 1991, was more of a group discussion
and rather cursory, and he took no notes and prepared no written
report of what may have been said. Under the circumstances, I do
not find it unusual that critical facts remain unresolved and
undocumented, and that individual perceptions and recollections
as what may have been said has changed over time. Nor do I find
it unusual that miners subjected to a management inquiry, and in
the presence of foreman and other management officials, sometimes
have a tendency to remain noncommittal, particularly when they
are not placed under oath and are not called upon to testify in a
formal hearing away from their working mine environment.
After careful review and consideration of all of the
testimony in this case, and having viewed all of the witnesses
during the course of the hearing, I conclude and find that
Mr. Parker, Mr. Hayes, and Mr. Moore are credible witnesses and I
believe their testimony that they observed a flame of rather
short duration coming from the miner machine bits at the head of
the machine and rolling up and over the machine. Their
description of the flame is consistent with the aforementioned
dictionary definitions of the terms "ignite" and "ignition", and
I do not find their testimony to be in conflict with the
testimony of Mr. Tonkin, who confirmed that the presence of a
flame is in fact an ignition, and the testimony of Dr. Thakur,
who testified that a visible flame would indicate that an
ignition has occurred.
Although I find Dr. Thakur to be a knowledgeable and
credible individual, his opinion that an ignition did not occur
was based on his belief that what the miner eyewitnesses saw was
"some kind of sparks" which they thought was a flame, rather than
on his personal observation of the same event. Dr. Thakur
acknowledged that a spark was a potential source of ignition, and
his testimony that sparking caused by rapid oxidizing and a lack
of water would create a "source of light", or heat, and a glow
which would appear "like a ball of fire" are characteristics
similar in some respects to those found in the dictionary
definitions of an ignition.
Although Dr. Thakur initially stated that it was impossible
to ignite coal dust by mechanical friction, he later confirmed
that he was familiar with accidents and explosions that have
occurred because of frictional dust ignitions (Tr. 251).
Further, although Dr. Thakur stated that "there's no way you can
have a sustaining visible flame to qualify as an ignition and go
away in three seconds" (Tr. 241), he later testified that "for an
ignition to be called an ignition, something has to be ignited,
something which would sustain a visible flame for some duration
of time, even if it is five or ten seconds" (Tr. 259). Under all
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of these circumstances, I remain unconvinced that frictional coal
dust ignitions are impossible under any and all circumstances.
In any event, the issue here is whether or not the testimony of
the eyewitness miners is credible and supports any reasonable
conclusion that what they saw of February 1, 1991, was a flame,
and whether or not that flame was a coal dust ignition which was
required to be immediately reported to MSHA pursuant to 30 C.F.R.
50.10. I have concluded and found that what the miner
observed was a flame. I further conclude and find that the flame
which they observed constituted an unplanned coal dust ignition
which was required to be immediately reported. Accordingly,
since it was not reported to MSHA, a violation has been
established and the citation IS AFFIRMED.
Fact of Violation. Citation No. 3105296, 30 C.F.R. 50.12.
Consol is charged here with a violation of section 50.12,
because it permitted mining to continue after the occurrence of
the ignition on February 1, 1991, and failed to obtain MSHA's
permission before disturbing or changing the area where the
ignition occurred. Section 50.12, provides as follows:
50.12 Preservation of evidence.
Unless granted permission by a MSHA District Manager or
Subdistrict Manager, no operator may alter an accident
site or an accident related area until completion of
all investigations pertaining to the accident except to
the extent necessary to rescue or recover an
individual, prevent or eliminate an imminent danger, or
prevent destruction of mining equipment.
Consol does not dispute the fact that after the conclusion
of Mr. Tonkin's inquiry on February 1, 1991, mining was allowed
to continue and the miner machine was advanced past the area
where the ignition had occurred and the area was cleaned up and
rock dusted. The record reflects that when foreman Graham
initially arrived at the scene, he ordered all mining to cease
and that nothing be disturbed until Mr. Tonkin arrived.
Mr. Tonkin subsequently permitted mining to continue after he
concluded from his discussions with the crew that an ignition did
not occur. Mr. Tonkin maintained that no one initially mentioned
that they had seen any flame, and coupled with the lack of any
physical evidence of any ignition, he made the decision that a
reportable accident (unplanned coal dust ignition) did not occur
and that the incident was not required to be reported. Under
these circumstances, he allowed mining to continue.
In view of my finding that a reportable accident (unplanned
coal dust ignition) occurred and was not immediately reported to
MSHA, I further conclude that Consol's continuation of mining,
which resulted in the alteration of the scene of the ignition
Page 35
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without MSHA's permission, constitutes a violation of
section 50.12. Although it is true that foreman Graham acted
promptly by discontinuing any further mining and preserving the
scene until Mr. Tonkin's arrival, and Mr. Tonkin may have in good
faith believed that an ignition had not occurred, I conclude that
these factors may be considered in mitigation of the violation,
but may not serve as an absolute defense to the violation. Under
the circumstances, I conclude and find that a violation has been
established, and the citation IS AFFIRMED.
Size of Business and Effect of Civil Penalty Assessments on the
Respondent's Ability to Continue in Business
I adopt as my findings the stipulations by the parties that
Consol is a large mine operator and that the payment of civil
penalty assessments for the violations in question will not
adversely affect its ability to continue in business.
History of Prior Violations
An MSHA computer print-out listing Consol's history of prior
violations for the period August 23, 1989, through August 22,
1991, reflects civil penalty payments in the amount of $221, 247,
for 797 violations. One prior single penalty assessment of $20
for a violation of 30 C.F.R. 50.10, issued on September 19,
1989, is included in this history. MSHA's pleadings reflect that
Consol's overall annual coal production for civil penalty
assessment purposes was 49,368,060 tons, and that the Robinson
Run No. 95 Mine had an annual production of 1,856,689 tons.
Although I cannot conclude that Consol's history of prior
violations is particularly good, for an operation of its size, I
cannot conclude that additional increases in the civil penalty
assessments that I have made for the two violations which have
been affirmed, are warranted. However, I have considered the
history, as well as the other penalty criteria, in assessing the
penalties for the violations.
Good Faith Compliance
The parties stipulated that Consol abated the violations in
good faith. The record reflects that corrective action was
immediately taken and that the inspector terminated the citations
within an hour after they were issued. Under the circumstances,
I conclude and find that Consol exercised rapid good faith
compliance in correcting the cited conditions and I have taken
this into consideration.
Gravity
The inspector found that both violations were not
significant and substantial. The evidence establishes that no
significant amounts of methane were present and that the area
Page 36
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where mining was taking place was in good condition. Further,
the flame in question only lasted for approximately three seconds
and there were no injuries. Although these factors concerning
the prevailing mining conditions mitigate the gravity of the
violations, I nonetheless conclude that the failure to report an
ignition and to allow mining to continue without notice to MSHA
and without its approval are serious violations.
Negligence
The inspector found that the violations resulted from a
"high" degree of negligence, and he based these findings on his
belief that mine management made no effort to contact MSHA for
the purpose of reporting the incident or seeking information as
to how to proceed further (Tr. 22-23).
Taking into account Mr. Tonkin's denials that the miners
specifically told him that they had seen flames when he initially
spoke to them on February 1, 1991, I nonetheless find that all of
the indicia of a reportable ignition were present when Mr. Tonkin
came to the opposite conclusion. Mr. Tonkin conceded that the
miners told him that they had seen a ball of fire. Foreman
Carter confirmed that at the time of the incident he was told by
miners Hayes and Moore that they saw fire at the left side of the
miner machine bits, and Mr. Carter himself testified that he had
briefly observed a glow. Foreman Wolfe, who claimed that what
the crew saw was sparks, was of the view that a spark was the
same thing as a flame, an he did not deny the statement
attributed to him in MSHA's accident report which indicates that
he saw an "orange flame". Mr. Tonkin agreed that if a flame were
indeed present, an ignition occurred. Under all of these
circumstances, I conclude that Mr. Tonkin acted less than
reasonable when he based his conclusion that an ignition had not
occurred solely on the fact that the miners may not have
specifically informed him that they had observed a flame. I
further conclude and find that the failure by mine management to
immediately report the matter to MSHA and to preserve the scene
until MSHA could look into the situation supports the inspector's
high negligence findings and they ARE AFFIRMED.
Civil Penalty Assessments
On the basis of the foregoing findings and conclusions, and
taking into account the civil penalty assessment criteria found
in section 110(i) of the Act, I conclude and find that the
following civil penalty assessments are reasonable and
appropriate for the violations which have been affirmed:
Citation No. Date 30 C.F.R. Section Assessment
3105295 2/4/91 50.10 $500
3105296 2/4/91 50.12 $350
Page 37
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ORDER
Docket Nos. WEVA 91-166-R and WEVA 91-167-R
Consol's contests are DENIED and DISMISSED.
Docket No. WEVA 92-177
Consol IS ORDERED to pay civil penalty assessments in the
amounts shown above for the two citations which have been
affirmed. Payment is to made to MSHA within thirty (30) days of
the date of this decision and order.
My previous Stay Order of February 4, 1992, staying
excessive history section 104(a) Citation No. 3102243, August 22,
1991, 30 C.F.R. 75.400, remains in effect and the citation IS
STAYED pending the Commission's decisions in Drummond Coal Co.,
Inc., 13 FMSHRC 339, and 13 FMSHRC 356 (March 1991), and Zeigler
Coal Company, 13 FMSHRC 367 (March 1991).
George A. Koutras
Administrative Law Judge
Distribution:
Walter J. Scheller, Esq., Consolidation Coal Company,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Wanda M. Johnson, Esq., Office of the Solicitor, U.S. Department
of Labor, Suite 516, Ballston Towers #3, 4015 Wilson Boulevard,
Arlington, VA 22203 (Certified Mail)
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