Consolidation Coal Company

Plain-English summary

MSHA cited Consolidation Coal Company after finding widespread cracking in sealant on Kennedy stoppings separating escapeways at the Ireland Mine. Judge Jerold Feldman found violations of the escapeway separation standards, affirmed two citations, approved a settlement on a third citation, and vacated a fourth citation. The order assessed a total civil penalty of $140 and emphasized that flexible stopping systems must be monitored and maintained so escapeways remain effective.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1704, 75.1707, 75.316, and 75.301
• Outcome: Citation Nos. 3331969 and 3331973 were affirmed, Citation No. 3331974 was resolved by settlement, Citation No. 3331975 was vacated, and a $140 penalty was assessed.
• Key point: Escapeway stoppings must remain reasonably airtight. A system that is effective for ventilation may still fail the separate safety purpose of protecting escape routes.

Full text (FMSHRC public release)

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 92-793
Petitioner : A.C. No. 46-01438-03932
v. :
: Ireland Mine
CONSOLIDATION COAL COMPANY, :
Respondent :

                          DECISION

Appearances: Patrick DePace, Esq., U.S. Department of Labor
Office of the Solicitor, Arlington, Virginia
for Petitioner;
Daniel Rogers, Esq., Consolidation
Coal Company, Pittsburgh, Pennsylvania,
for Respondent.

Before: Judge Feldman

 This case is before me as a result of a petition for civil

penalty filed by the Secretary of Labor pursuant to Section
105(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. 801 et seq., (The Act). The petition charges
Consolidation Coal Company, pursuant to 104(a) of the Act, with
four nonsignificant and substantial violations of certain
mandatory safety standards specified in 30 C.F.R. Part 75.

 This matter was heard in Wheeling, West Virginia, at which

time Lyle R. Tipton testified for the petitioner and Hestle B.
Riggle Jr., and Steven Perkins testified on behalf of the
respondent. The parties' stipulations concerning the pertinent
jurisdictional issues and the relevant civil penalty criteria
found in section 110(i) of the Act are of record. The general
issue for determination is whether the respondent violated the
cited safety standards and, if so, the appropriate civil penalty
to be assessed. The parties filed post-hearing briefs which I
have considered in my disposition of this matter.

 At the hearing the Secretary moved to settle two of the

citations in issue. In this regard, the respondent stipulated
that it had agreed to pay the $20 assessed penalty for Citation
No. 3331974.1 The remaining part of the settlement agreement
concerned the Secretary's request to vacate Citation No. 3331975
because of her inability to establish that the unreported
presence of water in an escapeway existed at the time of a pre-
shift examination. As noted at the hearing, the parties'
settlement agreement was approved and will be incorporated as
part of this decision.

               PRELIMINARY FINDINGS OF FACT

 Lyle Robert Tipton is an experienced Federal Coal Mine

Inspector with specialized training as a mine ventilation expert.
On January 14, 1992, during an inspection of the respondent's
Ireland Mine, Inspector Tipton issued 104(a) Citation No. 3331969
for a nonsignificant and substantial violation of the mandatory
safety standard found in 30 C.F.R. 75.1707. 2 Citation
No. 3331969 noted:

      At the conclusion of a verbal request for an
      Inspection/Investigation it has been
      determined that 34 out of 40 Kennedy type
      stoppings each identified to management, that
      are used to separate the No. 3 conveyer belt
      entry from the No. 2 track intake air
      escapeway entry, did not effectively separate
      the two entr[ies] due to cracks in the
      stopping sealant which allows air to travel
      between the two entries on the 5 right off 3
      north 3 entry development section. Pressures
      were positive track to belt.

 Inspector Tipton returned to the Ireland Mine on January 22,

1992, at which time he issued Citation No. 3331973 for a similar

 1 At the hearing the Secretary amended the proposed civil

penalty assessments for each of the four citations from $50 to
$20 because they were issued prior to the modification of the
Secretary's single penalty assessment criteria.

 2 30 C.F.R. 75.1707 provides, in pertinent part, that ". . .

the escapeway required by this section to be ventilated with
intake air shall be separated from the belt and trolley haulage
entries of the mine for the entire length of such entries to the
beginning of each working section . . ." (Emphasis added).

nonsignificant and substantial violation of 30 C.F.R.
75.1704.3 Citation No. 3331973 noted

      The No. 2 designated track intake air
      escapeway servicing the 5 right off 3 north
      section, was not adequately separated from
      the No. 1 return secondary escapeway entry
      where the sealant on the Kennedy Stopping
      separating these entr[ies] had cracked and/or
      fell off causing the two entries not to be
      adequately separated in this three entry
      development section. Twelve stoppings were
      leaking and all were marked for
      identification.4

 This case involves the condition and resultant effectiveness

of the Kennedy type stoppings observed by Inspector Tipton on
January 14, and January 22, 1992, in the respondent's three entry
development section at its Ireland Mine. Stoppings are erected
between entries to adequately separate the air courses in those
entries. Stoppings serve the dual purpose of 1) providing
discrete airways for ventilation of the mine face and
2) maintaining the integrity of escapeways to prevent smoke in
one escapeway from contaminating the adjoining escapeway in the
event of evacuation due to fire. Kennedy stoppings are a recent
development in the mine industry. Conventional stoppings are
constructed of masonry block. A Kennedy stopping is comprised of

 3 Section 75.1704 provides, in pertinent part, that ". . .

at least two separate and distinct travelable passageways which
are maintained to insure passage at all times of any person,
including disabled persons, and which are to be designated as
escapeways, at least one of which is ventilated with intake air,
shall be provided from each working section continuance to the
surface escape drift opening, . . . shall be maintained in safe
condition and properly marked. Mine openings shall be adequately
protected to prevent the entrance into the underground area of
the mine of surface fires, fumes, smoke, and flood water. Escape
facilities ...properly maintained and frequently tested, shall be
present at or in each escape shaft or slope to allow all persons,
including disabled persons, to escape quickly to the surface in
the event of an emergency." (Emphasis added).

 4 Citation No. 3331973 was issued on January 22, 1992, for a

violation of 30 C.F.R. 75.1704. It was subsequently modified
to a Section 75.316 violation as a result of a Health and Safety
Conference on January 26, 1992. At the hearing the Secretary
moved to modify this citation back to a Section 75.1704 violation
as initially issued. The respondent had no objection. (Tr.16).
The motion was granted as it was unopposed and there was no
allegation of any prejudice on the part of the respondent.

steel panels strapped to two steel cross beams erected across
each entry. The steel panels extend from the cross beams at the
mine roof to the mine floor. These steel panels, which must be
installed by trained personnel, are pressurized against the mine
roof and floor and locked into position. Foam is installed at
the top and bottom of the panels to prevent against air leakage
and to allow for some flexibility in the event of roof sagging or
floor movement. Finally, sealant is applied in an approximate
four inch bead at the connecting seams between each panel and
around the roof, rib and floor.

 As in the instant case, Kennedy stoppings are frequently

used in three entry development sections for longwall panel
operations. As the longwall advances, the Kennedy stoppings can
be recovered and reused as a cost effective measure. (Tr.61).
Use of Kennedy stoppings in the three entry development of the
respondent's mine, a short life area, complies with the
respondent's approved ventilation plan. In long life areas, such
as the main entry and main return airways, the respondent's
ventilation plan requires use of permanent block stoppings. When
properly installed and maintained Kennedy stoppings are as
effective as masonry block stoppings. (Tr. 87).

 The Kennedy stoppings in issue are located between the

No. 1 secondary escapeway and No. 2 intake air primary escapeway
and between the No. 2 intake air escapeway and the No. 3 conveyer
belt entry. The stoppings are erected in the crosscuts
separating these three entries at approximately 180-foot centers.
Each entry is approximately 15-1/2 feet wide by seven feet in
height. Therefore, each Kennedy stopping installed in each
crosscut is comprised of numerous vertical steel panels totalling
the approximate 15-1/2 foot width by 7 foot height of each
crosscut entry. 5

             FURTHER FINDINGS AND CONCLUSIONS

Citation No. 3331969

 On January 14, 1992, Inspector Tipton conducted a spot

inspection of the respondent's Ireland Mine.6 Tipton was
accompanied by the respondent's Safety Director Hestle B. Riggle

 5 These stoppings are pictured in the manufacturers'

pamphlet detailing the Kennedy stopping specifications. (Ex.7).
Inspector Tipton described the extensive presence of the sealant
in issue by annotating an exhibit at the hearing. (See ex.9).

 6 Under section 103(i) of the Act, a spot inspection is

required once in every five working days for any mine which
liberates more than one million cubic feet of methane in a 24
hour period.

and hourly employee William Keller. During the inspection,
Tipton was approached by a member of the United Mine Workers'
Safety Committee who complained that the stoppings in the 5 right
off 3 north, 3 entry development section were not being
adequately maintained.

 Tipton, accompanied by Riggle, inspected the three entry

development section. The inspection was accomplished with Riggle
in the No. 3 conveyer belt entry while Tipton stood in the No. 2
intake escapeway entry. Each individual proceeded to shine his
cap lamp across the stoppings. Tipton observed the amount of
light shining through the stoppings to evaluate the effectiveness
of the sealant and to determine whether the stoppings were
adequately maintained. Tipton described his observations as
". . . a field with a bunch of automobiles in it with their
lights turned on, that would be an example of how much light I
could see shining through the stoppings through the [sealant]
being cracked." (Tr.27). Of the forty stoppings observed in
this area, Tipton observed thirty-four that had excessive cracks
in the sealant between the vertical steel panels. The cracks
observed by Tipton varied in size from the width of a piece of
paper to one quarter inch in diameter. Tipton also observed
cracks in the remaining six stoppings. However, these stoppings
were determined to be in compliance because the cracks were minor
and the stoppings remained effective.

 Tipton testified that he was "absolutely positive" that he

determined that the air current traveled from the No. 2 intake
entry to the No. 3 conveyer belt entry because air pressure was
positive in the No. 2 entry. (Tr.81). Although Tipton did not
recall doing any formal smoke test to determine the airflow
direction, he stated that the air current direction could be
easily ascertained by something as simple as opening a man door
between the entries.(TR.81).

 On cross examination Tipton conceded that he did not perform

any testing to determine the quantity of airflow that was
infiltrating through the stoppings. Tipton testified that such
testing could be accomplished only in a laboratory setting and
was not feasible in a mine environment, particularly, in this
case involving air infiltration through a multitude of cracks in
numerous stoppings. However, Tipton opined that it is undisputed
that there is greater air pressure in an intake entry,
particularly in a three entry development system, which would
increase the rate of air infiltration from the No. 2 intake entry
to the adjacent entries through the defective stoppings.7

 7 On cross-examination Riggle conceded that the direction of

air flow was out from the No. 2 entry given the positive pressure
in that entry. (Tr.137).

 The respondent called Hestle B. Riggle, Jr., to testify with

regard to his recollection of the inspection in question.
Although Riggle testified that it was Tipton who predominantly
shined the light on the stoppings, thus purportedly preventing
Tipton from observing the light through the cracks, Riggle
ultimately admitted on cross examination that he also shined his
light toward Tipton. (Tr.125). Although Riggle stated that he
could not feel air through the cracks, he corroborated Tipton's
testimony that the air pressure was positive from the No. 2
intake escapeway to the No. 3 conveyer belt entry. He admitted
that the direction of air flow could be easily determined by
opening any man door which was present at approximately every
third stopping. Riggle also corroborated Tipton's testimony with
regard to previous discussions between the respondent's mine
management and the manufacture of the Kennedy stoppings
concerning several different kinds of sealant that could be used
to counteract the deterioration of the stoppings. In fact,
Riggle testified that he had met with representatives of the
manufacture to discuss problems with the sealant. (Tr. 140).

Citation No. 3331973

 On January 22, 1992, Inspector Tipton returned to the

respondent's Ireland Mine. Tipton once again examined the three
entry development section in issue. Tipton was accompanied by
safety department representative Steven Perkins and hourly
employee Rich Baker. Tipton again determined the effectiveness
of the sealant by observing the amount of light which could be
seen through the stoppings. This was accomplished by repeating
the procedure performed the previous week with Riggle.
Specifically, he examined the Kennedy stoppings used to separate
the No. 2 track intake air primary escapeway from the No. 1
return secondary escapeway. Of the stoppings observed between
these two entries, Tipton noted twelve stoppings where the
sealant between the panels had cracked or fallen off. He cited
these twelve stoppings because of the multiple cracks which he
believed rendered the stoppings ineffective.

 Perkins testified that he did not feel air moving through

the stoppings. Perkins opined that the difference in air
pressure between the two entries would not effect the movement of
air, a conclusion that was contradicted by both Tipton and
Riggle. Perkins corroborated the methodology described by Tipton
in that it was he who shined his light toward Tipton so that
Tipton could evaluate the condition of the sealant. (Tr.145).

                   DISCUSSION AND EVALUATION

 The fundamental issue is whether the conditions cited by

Inspector Tipton resulted in violations of sections 75.1704 and
75.1707. These mandatory safety standards require intake primary

escapeways for mining sections to be kept "separate" from the
belt and trolley haulage entries.

 The respondent, in its brief, asserts that the stoppings

fulfilled the functions for which they were erected, i.e., to
promote positive pressure in the intake escapeway so as to
provide an abundance of fresh air to the working face.
Consequently, the respondent maintains that the evidence, which
establishes positive pressure in the intake escapeway and a high
volume of air reaching the working section, demonstrates that the
intake escapeway was adequately "separated" from the adjacent
entries. In this regard, the respondent argues that although the
regulations require the entries be kept separate, they do not
require the ". . . intake escapeway to be absolutely,
hermetically sealed off from other entries." (Respondent's Brief,
P.4). 8

 The petitioner, on the other hand, relies on the MSHA

Program Policy Manual which interprets the separation standard in
section 75.1707 as:

      Separation of the escapeway from belt and
      trolley haulage entries shall be made with
      substantially built, permanent-type
      stoppings, such as concrete blocks, brick,
      tile, or metal, and they shall be reasonably
      airtight (emphasis added). See exhibit no. 8.

 In support of MSHA's interpretation the petitioner points to

a holding by Judge Melick involving application of section
75.1707 wherein he noted that it is understood in the mining
industry that "reasonably airtight" is the applicable separation
standard. However, Judge Melick also acknowledged widespread
disagreement over what constitutes a "reasonably airtight"
separation. See Rochester & Pittsburgh Coal Company 10 FMSHRC
1576 (November 1988).

 Resolution of this case requires placing the term

"separation" in the proper perspective. Thus, "separation" must
be viewed in the context of the hazards that the mandatory safety
standards in section 75.1704 and 75.1707 are intended to prevent.

 8 In support of this proposition the respondent relies on a

recent decision by Judge Weisberger that entries were adequately
separated as contemplated by section 75.1707 despite an 8 x 16
inch hole in a cement block. See Consolidation Coal Company
14 FMSHRC 1450 (August 1992), appeal pending. I do not view my
decision in this case as inconsistent with Judge Weisberger's
finding in that I do not equate widespread deterioration of
sealant on numerous stoppings with one 8 x 16 inch hole in a
single stopping.

Significantly, these regulatory provisions concern escapeway
rather than ventilation safety standards. Therefore, the
respondent's reliance on the apparent effectiveness of its
Kennedy stoppings in ventilating the working face as required by
the mandatory ventilation safety standards in 30 C.F.R. 75.301
et seq. is not in issue and is, therefore, not dispositive of
this matter.9

 I credit Tipton's unrebutted testimony that failure to have

reasonably airtight separation between each entry could result in
smoke contamination of an escapeway effectively eliminating a
possible escape route for miners, who for whatever reason, do not
have the benefit of self-contained breathing apparatus.
Moreover, a fire in the primary intake escapeway with ineffective
stoppings would result in smoke contamination in the secondary
return escapeway in advance of the escaping miners. Thus, while
I am not bound by MSHA's "reasonably airtight" interpretation, I
conclude that it is entitled to deference and that it is the
reasonable and proper standard to be applied. See Emery Mining
Corp. v. Secretary of Labor, 744 F.2d 1411 (10th Cir. 1984);
Bowles v. Seminole Rock Co., 325 U.S. 410, 414 (1945).

 The Commission has recognized that many safety and health

standards must be broadly adaptable to a myriad of circumstances.
See Kerr McGee Corp., 3 FMSHRC 2496, 2497 (November 1981). The
"reasonably airtight" requirement is one such broad standard.
The application of broad standards is committed to the
inspector's discretion which should be exercised in a reasonable
manner. In exercising his discretion, Tipton acknowledges that
air infiltration through conventional block or Kennedy stoppings
is not, in and of itself, a violation of the escapeway mandatory
safety standards. Moreover, Tipton's testimony reflects that
masonry block stoppings, by nature are porous and permit some air
infiltration. Similarly, Inspector Tipton testified that minor
cracks in the sealant of Kennedy stoppings do not warrant a
citation.

 To support his judgment that the cited stoppings were

defective, Tipton testified that he found 34 Kennedy stoppings
between the No. 2 and No. 3 entries (Citation No. 3331969) and
twelve Kennedy stoppings between the No. 2 and No. 1 entries
(Citation No. 3331973) that were not adequately separating the

 9 The respondent has relied on the stoppings' role in

ventilation rather than escapeway safety throughout this
proceeding. At trial Riggle testified that . . ." you just have
to check [the stoppings] periodically to make sure that the
stoppings are in the condition to put ventilation where you want
it." (Tr. 129).

entries because of cracks in the sealant measuring up to one
quarter inch in diameter.10 Tipton attributed these cracks to
mine roof and floor movement and to a lack of durability of the
Kennedy stopping sealant applied in numerous four inch beads
approximately seven feet in height between the steel panels from
floor to roof.

 The testimony of Tipton is essentially corroborated by the

two witnesses called upon by the respondent. Significantly,
Tipton's testimony that the manufacturer of the Kennedy stoppings
is aware of sealant problems related to durability and fitness
was confirmed by Riggle. (Tr.59-60, 87). In fact, Riggle
testified that the respondent's management has had several
meetings with the manufacturer concerning sealant problems (Tr.
139-140). In addition, Riggle conceded that some of the sealant
in question had in fact deteriorated. (Tr. 126-127). Finally,
the respondent failed to call any representative of the
manufacturer to attest to the performance of the sealant in
question. Therefore, I conclude that the evidence supports
Tipton's observations of widespread cracking as a result of
extensive sealant deterioration.

 Having determined that there was widespread cracking in the

Kennedy stoppings, I must address the effect of such cracking
with regard to direction of air loss and the magnitude of such
loss. The respondent takes issue with Tipton's alleged failure
to ascertain the direction of air flow and the magnitude of air
infiltration. With respect to air direction, the testimony of
both Tipton and Riggle indicates that air pressure was positive
in the No. 2 intake entry as compared with the No. 1 and No. 3
entries. In fact, in its post hearing brief, the respondent
prides itself on the pressure in the No. 2 entry. Therefore, it
is reasonable to conclude that the direction of air flow, which
could be determined by opening any man door between the entries,
was from the No. 2 intake entry into the lower pressured No. 1
and No. 3 entries as stated by Tipton and confirmed by Riggle.

 With respect to the extent of air loss, Tipton testified

that he knew of no method to quantify the air loss due to the
widespread nature of the cracking. Nor has the respondent
offered any means of measurement. While the magnitude of
escaping air could not be determined, it is clear given the
nature and extent of the cracking and the higher pressure in the
No. 2 intake entry, particularly, in a three entry development
system, that significant air flow in the direction of the No. 1

 10 Tipton characterized these stoppings as only approxi-

mately forty percent effective.(Tr. 105).

and No. 3 entries occurred.11 Consequently, the Secretary
established violations of sections 75.1704 and 75.1707 as the
cited Kennedy stoppings were not reasonably airtight in that they
did not effectively "separate" this three entry section.

 Having determined that these violations occurred, I wish to

emphasize that the evidence reflects that Kennedy stoppings are
as effective as conventional masonry block stoppings when
adequately maintained. These stoppings are apparently a cost
effective alternative to block stoppings in that they can be
recovered for reuse as the longwall advances. However, the
benefit of the flexibility of design of the Kennedy stoppings
which facilitates their removal and reuse imposes a corresponding
obligation on the mine operator to monitor the condition of the
sealant to ensure that these stoppings continue to create an
effective barrier which maintains the integrity of the escapeway.
In this regard, it is noteworthy that the violations in issue
were abated by the application of additional sealant.

                   ULTIMATE CONCLUSIONS

 Based on Tipton's testimony that the circumstances

surrounding these violations constituted best case scenarios
because the primary intake escapeway could not to be contaminated
from adjacent entries because of its higher pressure, I conclude
that the violations in issue were nonsignificant and substantial.
I also concur with the opinion of Tipton that the respondent's
underlying negligence associated with these violations was
moderate and that these violations were of low gravity.

 Considering the non S&S nature of the violations as well as

the remaining statutory factors stipulated to by the parties, I
conclude that a penalty of $20 is appropriate for Citation
No. 3331969 which was issued on January 14, 1992. Although
Citation No. 3331973, issued on January 22, 1992, is similar in
nature, I am assessing a penalty of $100 because the respondent
failed to service the sealant on these Kennedy stoppings despite
the fact that it was placed on notice by the earlier citation
that these stoppings may also be in need of maintenance. Thus,
the negligence associated with this citation is higher in degree
and justifies a higher penalty. I am also incorporating the
previously noted settlement agreement in this decision which

 11 Tipton testified that pressures are higher in a three

entry development section in order to maintain sufficient
quantities of air to the last open crosscut. The integrity of
these entries is critical in view of the reduced number of
entries. A fire in the number 2 intake track primary escapeway
with defective stoppings could subject personnel in the No. 3
belt entry to smoke inhalation and impede evacuation through the
No. 1 secondary escapeway (Tr. 38,46-47,63).

requires the respondent to pay a penalty $20 for Citation
No. 3331974 and which results in vacation of Citation No.
3331975.
ORDER

 Based upon the above findings of fact and conclusions of

law, IT IS ORDERED that:

  1.   Citation Nos. 3331969 and 3331973 ARE AFFIRMED.

  2.   The proposed settlement agreement concerning Citation
       No. 3331974 IS APPROVED.

  3.   Citation No. 3331975 IS VACATED.

  4.   The respondent shall PAY a civil penalty of $140 within
       30 days of the date of this decision.

                             Jerold Feldman
                             Administrative Law Judge

Distribution:

Patrick DePace, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)

Daniel E. Rogers, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)

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