Secretary of Labor v. Consolidation Coal Company, et al.
Secretary of Labor v. Consolidation Coal Company, et al. (FMSHRC WEVA 94-57, WEVA 94-366, WEVA 94-368, WEVA 94-384): Fire evacuation violations resolved with mixed results
What's the rule today?
This ALJ decision was superseded by the Commission's decision in the same case. Ezel starts from the controlling decision and answers your situation under current law, with citations.
Plain-English summary
The Secretary alleged that Consolidation Coal failed to evacuate miners during a fire at the Blacksville No. 2 Mine and that three supervisors knowingly violated the mine's evacuation program. The Judge found a violation involving the company's evacuation procedures, deleted the significant-and-substantial finding, and assessed a $4,000 penalty, while approving settlements that modified or vacated three other orders. The individual proceedings were resolved separately, with Docket WEVA 94-366 dismissed, a $500 penalty assessed against J.T. Straface, and a $400 penalty assessed against Robert Welch. The decision states that the settlements and penalties would be processed before the remaining dockets were dismissed.
Decision snapshot
- Cited standards: 30 C.F.R. § 75.1101-23(a), § 75.400, § 75.370(a)(1), and § 75.360(g)
- Outcome: The company received a modified citation and $4,000 penalty, three other orders were settled or vacated, and the individual dockets received mixed dispositions.
- Key point: The Judge treated failure to follow the approved fire-evacuation program as a violation, but resolved the related citations and individual cases with different penalties and dispositions.
Full text (FMSHRC public release)
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
July 19, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 94-57
Petitioner : A.C. No. 46-01968-04121
v. :
: Blacksville No. 2 Mine
CONSOLIDATION COAL COMPANY, :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 94-366
Petitioner : A.C. No. 46-01968-04149 A
v. :
: Blacksville No. 2 Mine
SAMUEL J. MCLAUGHLIN, employed by :
CONSOLIDATION COAL COMPANY, :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 94-368
Petitioner : A.C. No. 46-01968-04148 A
v. :
: Blacksville No. 2 Mine
J.T. STRAFACE, employed by :
CONSOLIDATION COAL COMPANY, :
Respondent :
Page 2
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 94-384
Petitioner : A.C. No. 46-01968-04150 A
:
v. : Blacksville No. 2 Mine
:
ROBERT WELCH, employed by :
CONSOLIDATION COAL COMPANY, :
Respondent :
DECISION
Appearances: James B. Crawford, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Petitioner;
Elizabeth S. Chamberlin, Esq., Consol
Incorporated, Pittsburgh, Pennsylvania, for
Consolidation Coal Company;
Stephen D. Williams, Esq., Steptoe & Johnson,
Clarksburg, West Virginia, for Consolidation
Coal Company.
Before: Judge Barbour
These are civil penalty proceedings brought by the Secretary
of Labor (Secretary) pursuant to sections 105(d) and 110(c) of
the Federal Mine Safety and Health Act of 1977 (Mine Act or Act)
(30 U.S.C. '' 815(d) and 820(c)). In Docket No. WEVA 94-57 the
Secretary alleges that Consolidation Coal Company (Consol)
violated four mandatory safety standards for underground coal
mines at its Blacksville No. 2 Mine, an underground bituminous
coal mine located in Monongalia County, West Virginia. The
Secretary further alleges that all of the violations were
significant and substantial (S&S) contributions to mine safety
hazards and were the result of Consol=s unwarrantable failure to
comply with the standards.
In Docket Nos. WEVA 94-366, WEVA 94-368 and WEVA 94-384, the
Secretary alleges respectively that the mine=s superintendent,
J.T. Straface, its assistant superintendent, Samuel J.
McLaughlin, and its foreman, Robert Welch, Aknowingly@ violated
one of the mandatory safety standards alleged in
Docket No. WEVA 94-57 (30 U.S.C. ' 75.1101-23(a)) and that each
individual is liable personally for a civil penalty.
Consol and the individuals deny the alleged violations. In
addition, the individuals assert that if the violation with which
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they are charged did occur, they did not knowingly violate it.
Pursuant to notice, a hearing was conducted in Fairmont,
West Virginia, at which the parties presented testimony,
documentary evidence and oral argument. During the course of
the hearing Consol and the Secretary agreed to settle three of
the alleged violations. Counsels explained the settlements on the
record and I approved them (Tr. 1048-1053). I will confirm the
approvals at the close of this decision.
GENERAL BACKGROUND
AND
ISSUES
On March 15, 1993, a fire occurred in the belt drive area
of the 16-M longwall section of the mine. The Secretary contends
that Consol violated '75.1101-23-(a) in that it did not withdraw
persons affected by the fire outby affected areas as required by
the mine=s adopted and approved program of evacuation procedures.
The principal issues with regard to Consol are whether the
alleged violation occurred, whether it was S&S, whether it was
unwarrantable, and, if a violation is found, the amount of any
civil penalty that must be assessed in light of the statutory
civil penalty criteria set forth in section 110(i) of the Act (30
U.S.C. '820(i)).
The principal issues with regard to each individual are
whether the alleged violation occurred, whether the individual
knowingly authorized, ordered, or carried it out, and, if so, the
amount of any civil penalty that must be assessed taking into
account the applicable statutory civil penalty criteria.
STIPULATIONS
The parties stipulated as follows:
1. The Blacksville [No. 2] Mine extracts
minerals and has products which enter and/or affect
commerce, [and] is thereby under the jurisdiction of
the [Mine Act].
2. [Consol] is a mine operator, as defined under
Section 3(h) of the Mine Act, [and] is a[n] ...
operator of the Blacksville [No. 2] Mine.
3. [T]he Administrative Law Judge has
jurisdiction ... under Section 105 of Mine Act.
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4. [T]he assessment of the [c]ivil penalties in
this proceeding will not affect the operator=s ability
to continue in business and the individual agents have
the ability to pay their respective assessed penalties.
5. [Consol] is a large mine operator. At its
[m]ine it employs approximately 440 underground miners
and approximately 76 surface miners on three production
shifts (Tr. 11-12).
THE SECRETARY=S POSITION AT TRIAL
Counsel for the Secretary contended the evidence would show
that on March 15, 1993, Consol violated its approved and adopted
program of evacuation procedures in that it did not withdraw
miners off the 16-M longwall section when a fire occurred at the
section=s belt drive area. Further, the named individuals knew
about the fire, but did nothing to insure that the affected
miners were evacuated. (Tr. 15-16)
CONSOL=S POSITION AT TRIAL
Counsel for Consol maintained that the fire was discovered
by the belt transfer man. He reported it to the tipple operator,
who reported it to the dispatcher. The dispatcher immediately
began notifying the affected crews and other mine personnel. The
fire lasted for only a few minutes. By the time the 16-M section
crew was ready to evacuate the section, the fire was out.
The charged individuals did nothing wrong. The mine
foreman, Welch, told the crew not to evacuate because the fire
was out (Tr. 17-18). The assistant superintendent, McLaughlin,
did not even reach the belt drive until after the fire was
extinguished. The superintendent, Straface, immediately
implemented the mine evacuation plan upon learning of the fire.
Only after the fire was out was implementation of the plan
stopped (Tr. 18-19).
There was no violation of section 75.1101-23(a)(1), there
was no unwarrantable failure on Consol=s part, and none of the
individuals knowingly ordered, authorized, or carried out a
violation (Tr. 20).
THE TESTIMONY
RAYMOND STRAHIN
Raymond Strahin, a federal coal mine inspector for the last
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19 years, is a mine ventilation specialist. As such, he reviews
operators= ventilation plans and fire fighting and fires
evacuation programs and recommends to the MSHA district manager
that the programs be approve or disapprove (Tr. 23).
Strahin described the ventilation system of the 16-M long-
wall section as consisting of four entries, two of which carried
intake air and two of which carried return air. The belt entry
was the closest entry to the longwall face (Tr. 31-32). It
carried return air from the face. The air flowed outby and
turned into a crosscut. The belt did not turn at the crosscut,
but continued straight down the belt entry to the belt drive and
the transfer point. At the transfer point, the belt dumped onto
the mother belt. From the transfer point and belt drive to the
crosscut leading to the regulator, the belt entry carried intake
air. At the crosscut, the return air from the longwall face
mixed with the intake air from the transfer point and belt drive
and the mingled air passed through a regulator and into the main
return. (Tr. 71-72)
In Strahin=s opinion, if the fire at the belt drive had
spread, it would have moved toward the face until it got to the
point where the air from the transfer point mixed with the air
coming down the belt entry. From there, the fire and smoke would
have moved toward the regulator (Tr. 71-72,74,97-98). However,
if enough time passed and the fire developed unchecked, the fire
and smoke could have intensified and traveled toward the face.
Strahin observed that the course of a fire cannot be predicted
always (Tr. 107). The first ten minutes are crucial to its
control. After that, it can burn out of control (Tr. 75).
Strahin estimated that on March 15, 1993, the velocity of
the air in the belt entry ranged from 100 feet per minute to 300
feet per minute, the larger figure being the velocity closer to
the regulator and the lower figure being the velocity at the
transfer point (Tr. 37-38). However, Strahin agreed that the
velocity of the air traveling from the transfer point over the
belt drive and to the regulator could have been as low as 75 feet
per minute (Tr. 78).
Strahin also agreed that air pressure in the belt entry was
lower than in the track entry. For this reason if air leaked
between the belt and track entries, the leaked air would travel
from the track entry into the belt entry (Tr. 94). Therefore,
smoke in the belt entry most likely would stay in the belt entry
and travel out the return (Tr. 94).
There was a box check in a portion of the belt entry that
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was ventilated by intake air. (Tr. 36) The box check was
constructed of cinder blocks. There was an opening in the center
of the blocks for the belt. In addition, there was a door on the
side to provide access to the belt (Tr. 75-76). The box check
restricted and slowed the velocity of the air that flowed toward
the face (Tr. 36-37, 75).
Strahin testified that on March 15, 1993, there were two
types of fire detection systems in place on the 16-M section belt
entry, a heat sensor system and a carbon monoxide (CO) detector
system (Tr. 41). The heat sensors were suspended from the roof,
a foot or two over the belt, and were installed every 125 feet
along the belt entry, from the longwall tailgate outby (Tr. 65).
There was an alarm box for the heat sensors near the face at the
stage loader. The alarm was used to alert the longwall crew if
the heat sensors were activated (Tr. 101).
On March 15, most of the CO detector system was installed
and functioning. The CO sensors were hung about half way between
the belt and the roof (Tr. 80). There was an alarm on the
surface that sounded when the CO reaching a certain level (Tr.
42-43, 110, 111).
Although the CO detector system was almost completely in
place, Consol was relying primarily on the heat sensor=s system
(Tr. 42). Consol could not rely officially on the CO sensor
system until a petition for modification allowing its use was
approved and took affect (Tr. 43). Consol had applied for the
modification and Strahin investigated Consol=s petition (Tr. 77).
Strahin identified the approved and adopted program of
evacuation that was in effect on March 15, (Gov. Exh. 4).
Strahin had reviewed the program and recommended to the MSHA
district manager that the agency approve it (Tr. 82). It was
approved as written by Consol (Tr. 83).
Part II.A.&B. of the program applied to the fire sensor
system. Part II.A.&B. was AIn effect until implementation of
Petition for Modification, Docket No. M-90-155-C)@ (Gov. Exh. 4
at 4). Part II.C. of the program applied to the CO monitor
system. Part II.C. was AIn effect after implementation of
Petition for Modification, Docket No. M-90-155-C@ (Gov. Exh. 4 at
5). Strahin did not believe that the petition for modification
was implemented on March 15 (Tr. 84-85). Therefore, he believed
that the portion of the program relating to fire alarm systems
under which Consol was operating when the fire occurred
Aprobably@ was the part for the fire sensor system, and not the
part for the CO monitor system. (Gov. Exh. 4 at 4-5; Tr.86).
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As Strahin interpreted Part II.A.&B., when a fire sensor
alarm went off, persons in the affected area were required to be
Aimmediately withdrawn to a location outby the affected area@
(Tr. 45; Gov. Exh. 4 II.A.2.at 4). Further, if a fire was
confirmed but an alarm was not activated the plan still required
affected miners to be evacuated (Tr. 106). Strahin stated that
no matter how the fire was brought to Consol=s attention, the
plan had to be followed and affected miners had to be evacuated
outby the fire (Tr. 71, 112-113, see also Tr. 46, 50).
Strahin also testified concerning a portion of the program
which stated in the event of a fire, one of the duties of the
longwall foreman was to notify all personnel on the section about
the fire and to see that they were outby it and were accounted
for (Gov. Exh. 4 VII B.1.a.-b. at 7-8; Tr. 47). Strahin agreed
that notification was one of the most important things to be done
in a fire situation. Normally, miners were notified by
telephone. They were alerted to come to the telephone by a visual
or audible signal (Tr. 91-92). On the M-16 section, the signal
was a flashing light. It was normally activated by the
dispatcher (Tr. 92).
Finally, Strahin testified that he had investigated a fire
that occurred at the belt drive in another mine. A 10 to 15
minute delay in notifying the crew after the fire was discovered
contributed to some of the crew suffering smoke inhalation
injuries (Tr. 51-52). In another fire at a different mine, the
crew had become separated and miners had died as a result. In
Strahin=s view, that was why it was important the miners on a
section be gathered together and be evacuated together (Tr. 87-
88).
GARY KENNEDY
Gary Kennedy was the day shift headgate man on the 16-M
section. With him were Harold Zupper, Harold McClure, Ron
Griffin, Richard Talkie and Marvin Fischer.
Kennedy stated that on March 15, he was working at the
headgate, about 5,000 feet from the belt transfer point (Tr. 120-
121,205). Around 12:30 p.m., he received a telephone call from
the tipple man. The tipple man told Kennedy that the belt drive
was on fire. Although Kennedy did not know at the time, Danny
Ammons, who was working at the belt transfer, had reported the
fire to the tipple man (Tr. 138).
Kennedy had suspected a problem at the belt drive because
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the belt had quite running shortly before the tipple man called.
There was a fire suppression system at the belt drive that, when
activated, stopped the belt and sprayed it with water. Kennedy
speculated that the fire suppression system had shut down the
belt (Tr. 154, see also Tr.67).
While Kennedy was talking to the tipple man, the heat sensor
system alarm at the tail piece started to beep and the red light
on the alarm stated to flash (Tr. 121-122). Activation of the
alarm confirmed there was a fire on the belt line (Tr. 122).
Kennedy testified that he had been trained to respond to an
alarm by going to an intake air entry and moving to a point outby
the fire area (Tr. 136). Kennedy shut off the alarm,
disconnected the power at the longwall face, and called the
miners along the face on the face telephone system (Tr. 123, 125,
141).
There were two telephone systems at the headgate, one
connected the longwall face with the belt transfer point and the
tipple. The other connected the headgate with points along the
face. In addition to these two systems, a telephone system
connecting the longwall section to all parts of the mine was
located in the track heading by the dinner hole (Tr. 148). To
notify the crew of something, the mine dispatcher either called
on the mine system or called the tipple operator, who, in turn,
called the crew (Tr. 149).
Kennedy told the miners to assemble at the headgate because
there was an emergency (Tr. 123). Tim Nester, the section
foreman, was not in the face area. He previously had walked down
the belt entry to conduct a preshift examination of the belt
(Tr. 131-132). However, Zupper, McClure, and Griffin appeared
at the headgate. Freeland, the longwall coordinator and a
management employee, was missing. Kennedy asked where he was.
Zupper said that Freeland had gone down the tailgate entry to
check spad readings. Kennedy stated that he would go and find
Freeland and that he and Freeland would walk outby the fire via
the tailgate entry. Zupper stated that the other members of the
crew would exit via the intake escapeway, on the tailgate side of
the longwall (Tr. 125, 142).
Kennedy found Freeland at the tailgate end of the longwall.
(Tr.126) He told Freeland that there was a fire at the belt
drive transfer. Each man picked up a self rescue device and
together they proceeded down the tailgate entry, through a door
at the crib line and out the track entry (Tr. 127, 143). Kennedy
believed that while he and Freeland was walking out of the
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section, the rest of the crew also was walking out via the intake
escapeway (Tr. 128)
It took about 20 to 25 minutes for Kennedy and Freeland to
reach the mouth of the 16-M section (Tr. 129, 143). Once there,
Kennedy and Freeland walked to the site of the fire. Several
jeeps were parked in the area. Tim Nester was there and someone
told Nester to take Kennedy and Freeland back to the 16-M section
because the fire was out (Tr. 131-132).
Kennedy looked at the fire site. He saw McLaughlin Akind of
like kneeling down@ (Tr. 131). According to Kennedy, McLaughlin
had Aa little red hose like he was washing off the bottom belt@
(Id., 157-158). In addition to Nester and McLaughlin, Kennedy
saw Ammons in the area (Tr. 131).
Kennedy did not see any hot coals, steam, or smoke (Tr.
150). Ammons told Kennedy that when he opened the door to the
belt drive, he saw the fire blazing and went to the telephone to
report the fire. When he returned to the belt drive, the fire
had been extinguished by the fire suppression system (Tr. 151-
152).
Kennedy stated he noticed a charred smell and could see
where the belt had Aburned@ (Tr. 132). The bottom belt was
Ablistered@ and Amelted@ (Tr. 153-154). Kennedy agreed that given
the ventilation system of the longwall, any smoke produced by a
fire would have moved away from the face and the longwall section
crew (Tr. 146).
Kennedy, Freeland and Nester took a jeep back to the
longwall section. When they reached the section, they found the
other crew members there. Kennedy was surprised because when he
left the section the crew was getting ready to evacuate (Tr. 133-
134).
Kennedy and the crew discussed the fire and Consol=s
response. As the crew was talking about what had happened,
Zupper stated that it was Welch who told him the fire was out and
that the crew should stay on the section.
Kennedy recalled someone saying the situation could have
been similar to one at another mine where miners were told the
fire was out and were sent back to their section only to perish
subsequently because the fire was not out (Tr. 133).
RONALD GRIFFIN
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Ronald Griffin, the shield man on the 16-M longwall section,
testified that on March 15, he was working at the face pulling
shields when he received a telephone call from Kennedy. Kennedy
told him there was a fire at the belt drive (Tr.160, 172).
Zupper and McClure also were working at the face. The three
miners left the face together (Tr. 172). They walked
approximately 300 feet, past the headgate and into the track
entry where Griffin saw the strobe light blinking by the mine
telephone. He picked up the telephone and Welch told him to
gather the crew and to stay there (Tr. 161-162, 174). At this
time Zupper, McClure, and Talkie were in the vicinity (Tr. 178).
Nester was Adown the belt@ (Tr. 175).
Griffin went back to the face area and told the rest of the
crew what Welch had said Tr. 160-162, 173, 177). After Kennedy
left to look for Freeland, Zupper went to the mine telephone to
advise management that the rest of the crew was leaving the
section by walking down the intake. Griffin stated that he did
not know with whom Zupper spoke, but that the group was held up
leaving while Zupper was on the phone. According to Griffin,
after he hung up, Zupper advised the group that the fire was out,
and the group remained on the section. (Tr. 163-164, 180).
Griffin stated that if miners were not assigned to fight a
fire, they were trained to evacuate by walking down an intake
entry and proceeding outby the fire. The group discussed this
and talked about what they should have done (Tr. 167, 181). In
Griffin=s opinion, A[w]e should have just gone ahead and taken
off. We shouldn=t have even looked back, we shouldn=t even have
been on the phone. We should have just went ahead outby@ (Tr.
181).
HAROLD ZUPPER, JR.
Harold Zupper, Jr., the day shift shear operator on the 16-M
section, was working at the face with McClure on March 15.
Shortly after noon, Kennedy called Zupper on the face telephone
system and told him there was a fire at the belt drive (Tr. 185,
198). Zupper and McClure walked off the face and the two met
Kennedy at the headgate (Tr. 199). The belt was not running (Tr.
209).
Zupper told Kennedy that Freeland and Nester were not at the
face (Tr. 200). Zupper suggested to Kennedy that he try to find
Freeland while the rest of the crew evacuated the section
(Tr. 185).
Zupper, Talkie, and Griffin discussed the situation with the
rest of the crew. Ultimately, the crew decided to take the track
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entry out, because the track entry was on fresh air and a vehicle
was there that they could ride. The crew started down the entry.
After a few minutes, McClure suggested they go back, telephone
the dispatcher, and tell him the route that they were taking (Tr.
186, 191, 203).
Zupper and McClure went back to the mine telephone. On his
way to the telephone, Zupper heard mine superintendent Straface
paging mine foreman Welch over the telephone pager unit (Tr. 189-
190, 204). Up to this time Zupper had not spoken to Welch,
Straface, or McLaughlin, and he had no idea what they had been
doing (Tr. 205).
Zupper got on the telephone and spoke with Welch, who told
him that the fire was out (Tr. 186). Welch stated the crew
should stay together on the section (Tr. 186-187). Zupper
believed that Welch was at the dump, approximately five miles
from the 16-M section (Tr. 188-189). After receiving Welch=s
instruction, the crew remained on the section (Tr. 189).
A short time later, Nester arrived. Zupper thought Nester
was surprised that the crew was still on the section (Tr. 189,
212). However, Zupper did not know whether Nester was aware the
crew had been informed that the fire was out (Tr. 212).
Zupper had worked with Welch for 25 years and trusted him.
When Welch told Zupper the fire was out, Zupper did not doubt it.
He did not feel that his safety was in any way endangered (Tr.
207-208). Nevertheless, the crew discussed the fire and Consol=s
response to it. They specifically talked about another mine
where the crew had remained on the section and died because they
mistakenly thought the fire was out (Tr. 194, 213, 216).
Zupper agreed that on March 15, the air that ventilated the
belt was traveling away from the face. Therefore, any smoke
along the beltline would not have moved toward the face (Tr.
211). Although Zupper thought the crew should have been
evacuated outby the fire, he never complained to Welch or to
Nester about the incident (Tr. 212, 214-215).
HAROLD McCLURE
Harold McClure, the day shift shearer operator=s helper, was
working at the face with Zupper on March 15 (Tr. 219). McClure=s
testimony regarding how he learned of the fire and the subsequent
actions of the crew mirrored Zupper=s (Tr. 220-222). McClure
stated that he was unaware of to whom Zupper spoke on the
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telephone and that he did not know who told Zupper to have the
crew stay on the section (Tr. 222).
McClure stated the miners were concerned about whether or
not the fire really was out when they subsequently discussed the
incident (Tr.225). As McClure understood the approved and
adopted program, even if a fire was out, the crew was supposed to
evacuate (Tr. 227).
RICHARD ALLEN TALKIE
Richard Allen Talkie, the day shift longwall mechanic on
the 16-M section, was working at the longwall face on March 15
(Tr. 229-230). Talkie=s testimony about how he learned of the
fire and the subsequent actions of the crew essentially was the
same as Zupper=s and McClure=s, except that Talkie did not believe
the crew actually started down the intake entry (Tr. 220-222).
Rather, according to Talkie, before the crew could begin to
evacuate, they were told by Zupper to stay put, that the fire was
under control (Tr. 231, 235).
With regard to damage caused by the fire, Talkie stated that
he was told by a beltman, whose name he could not recall, that
30 feet of the belt was scorched and blistered. However, Talkie
did not see the belt (Tr. 237).
KENNETH STEWART
Kenneth Stewart was the dispatcher at the mine. As the
dispatcher, one of his duties was to coordinate communication
with mine personnel in the event of a mine emergency (Tr. 239).
If the emergency was a fire, he was supposed to get miners outby
the fire as safely and quickly as possible (Tr. 240).
Stewart explained that in the dispatcher shanty where he
worked there were three different telephone systems -- the mine
telephone, the trolley telephone and the city telephone
(Tr. 252). To communicate with management personnel and miners,
Stewart used the mine telephone system and the trolley system
(Tr. 241).
Stewart testified that the March 15 fire was reported to him
by the tipple man. Stewart tried to page the 16-M section by
using the mine telephone system. As Stewart put it, he Ahollered
at the section a couple of times@ (Tr. 243, 253). When he did
not receive an answer, he turned on the flashing light located
above the mine telephone. He also activated a similar light on
the 17-M section (Tr. 254). In addition, Stewart called
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McLaughlin over the trolley telephone and told him about the
fire. Stewart estimated that McLaughlin was about a mile and a
half to two miles away from the 16-M section. McLaughlin got in
a jeep and headed for the fire (Tr. 249-250).
Stewart then called Straface and told him there was a fire
in the mine. (At this time, Straface was in either the
superintendent=s office or the mine foreman=s office. Stewart was
not sure which.) Straface got on the mine telephone and Stewart
heard him Aholler@ at Welch, who was at the dumping point, near
the bottom of the shaft. Stewart stated that he did not know if
Straface realized Stewart was still on the line and was listening
(Tr. 246).
According to Stewart, Straface asked Welch what was going
on. Welch replied that Stewart was handling the situation.
Straface told Welch to take over (Tr. 247). Stewart understood
this to mean he was supposed Ato get the hell off the phone@
(Id.). Stewart was upset and would have Apunched [Straface] in
the mouth@ if he could, because Straface Awas taking over my job@
(Tr. 264-265). Stewart did not know if the crew was ever
evacuated outby the belt drive area (Tr. 250-251).
DANNY AMMONS
Danny Ammons was in charge of the belt transfer area of the
16-M section. His duties required him to check the belt
tailpiece from time to time (Tr. 268). Early in the afternoon of
March 15, Ammons received a telephone call from Kennedy, who
asked Ammons to take the slack out of the belt at the tailpiece.
To do this, Ammons had to go to the belt drive area (Tr.269).
To reach the tailpiece, Ammons walked along the belt entry,
crossed an overcast and proceeded to a second overcast. At the
overcast there was an airlock within a set of doors. Ammons went
through the first door and entered the air lock. The belt ran
through the airlock (Tr. 292). He noticed smoke and haze around
the belt. The belt had quit running and Ammons speculated that
it was slipping on its rollers and the resulting friction was
producing the smoke or haze (Tr. 284-285). Ammons opened the
second door and saw more smoke. Almost at the same time, there
was a sudden flare of flames. According to Ammons, A[i]t
exploded like gasoline would@ (Tr. 272). Although the fire could
have been in existence before Ammons opened the second door (Tr.
304), he speculated that when he opened it, a bust of oxygen
caused the fire to intensify and flames to erupt (Tr. 295).
Ammons returned to the belt transfer area and called the
tipple to report the fire. He was not sure with whom he spoke
13
Page 14
(Tr. 273). Ammons asked the person at the tipple to notify the
dispatcher and Awhoever else they needed to notify@ (Tr. 274).
Returning to the fire, Ammons traveled up the track entry.
He reached a door leading to the belt entry. Ammons opened the
door and noticed smoke that extended from the roof half way to
the floor. He also saw the legs of a person walking through the
smoke. It was Nester (Tr. 275-276, 300).
Accompanied by Nestor, Ammons retraced his steps to the air
lock doors. Ammons and Nester put on self rescue devices and
entered the air lock (Tr. 278). One of the sprays of the fire
suppression system was on and the fire was out (Tr. 279, 291,
304). Ammons estimated that only a few minutes had elapsed since
he first saw the fire (Tr. 296).
Ammons and Nester did not go too close to the site of the
fire because it was wet. While they waited, miners and
management personnel arrived (Tr. 285). McLaughlin was among
the management personnel (Tr. 285). Freeland and Kennedy also
were present (Tr. 286). As Ammons recalled, McLaughlin took a
hose and started spraying Asome hot coals and stuff@ (Tr. 286).
Ammons noticed some badly scorched brattice boards and about
40 feet of blistering on the bottom of the belt (Tr. 287, 297).
Ammons believed that if the fire suppression system sprays had
not activated, the fire would have gotten out of control (Tr.
289).
Ammons stayed in the area for about an hour. He and other
miners kept checking the coal under the belt to make sure that
there was no heat and that the fire did not restart (Tr. 309).
Ammons stated that as part of the fire training he received
at the mine, he knew that miners were supposed to evacuate to an
area outby the fire (Tr. 289). Regarding the direction in which
the smoke from the fire traveled, Ammons agreed that it went
through the regulator and out the return (Tr. 301).
TIMOTHY NESTER
Timothy Nester, the foreman of the 16-M section, was
conducting a preshift examination of the belt line on March 15
(Tr. 731). As he approached a point inby the regulator, he
noticed the belt slowing, and then it stopped (Tr. 718-719).
About the same time, Nester saw smoke coming through the box
check and traveling toward the regulator. Nester prepared to
leave the entry and was about to do so when he saw Ammons (Tr.
14
Page 15
313-314, 720).
He and Ammons walked to a door that lead to the belt drive
area. When they opened the door, Nester saw layered smoke and
water spraying but no open flames (Tr. 315, 721, 723). They
checked both sides of the belt to determine the extent of the
problem (Tr. 316), but they did not examine the belt all of the
way to the longwall face (Tr. 729). Nester estimated that five
to fifteen minutes passed before other miners, including
McLaughlin, arrived (Tr. 319). Nester called Straface (Tr.
319). Straface wanted to know what the situation was. Ammons
told Straface that the fire was out and that Aeverything was
okay@ (Tr. 320, 725).
Nester had to leave the belt drive area to make the call,
and when he returned he saw Kennedy and Freeland. Nester asked
Kennedy where the other longwall miners were, and Kennedy stated
that he did not know (Tr. 321). Nester assumed the other crew
members had evacuated the section (Tr. 322).
Subsequently, Nester, Kennedy, and Freeland went back to the
longwall section where they found the other miners (Tr. 323).
Nester stated that although he was surprised to see the crew, he
would not have been Aif I knew when and at what time they knew
the fire was out@ (Tr.322).
Nester stated that if he had been on the longwall section
and had been notified of the fire, he would have immediately
evacuated the crew. He was trained to follow this procedure (Tr.
323-324). He stated, A[i]f we know where the fire is located
[our responsibility] is to get outby that point@ (Tr. 324-325).
However, if he was notified subsequently that the fire was out
and if the crew was not yet outby, he would not have evacuated
them (Tr. 324).
MICHAEL AYERS
Michael Ayers was the president of the union local and a
member of the mine safety committee. He did not work at the mine
on March 15. When he came to work on March 16, Zupper complained
to him that there had been a fire on March 15, and that the
longwall crew had been stopped from evacuating. Ayers testified
that the crew was concerned because the fire fighting evacuation
program required miners Ato evacuate and go outby@ the fire if
they received a fire signal at the headgate (Tr. 327; see also
Tr. 329). In addition, the crew was supposed to notify the
dispatcher that they were leaving, advise the dispatcher how many
miners were in the group, and state the route they were taking
15
Page 16
(Tr. 329).
According to Ayers, on March 15, the fire sensor system was
the primary means of fire detection and the CO monitor system was
secondary, but Consol=s miners were trained to respond to either
system (Tr. 329).
MARVIN FISCHER
Marvin Fischer did electrical and mechanical work on the day
shift. As part of his job, Fischer worked on the CO monitor
system (Tr. 347). Fischer stated that there was a CO sensor
over the belt drive so that the air coming across the drive would
Ahit@ the sensor (Tr. 351, 357, 359). The next sensor was
located at the regulator, approximately 100 feet from the belt
drive (Id.). Given the location of the sensors, Fischer believed
that if there was a fire at the belt drive, the CO monitor system
would have detected it and triggered an audible alarm at the CO
monitor system station, which was located in the main mine office
building, adjacent to the offices of mine management officials
(Tr. 351-353). In his opinion people in those offices would have
heard the alarm (Tr. 354).
SPENCER SHRIVER
Spencer Shriver is an electrical engineer and an MSHA mine
inspector. Shriver conducts electrical inspections, as well as
evaluates petitions for modification of standards. Shriver
learned of the March 15 fire on March 17, when he was told about
it by miners= representatives. (Tr. 362-363).
Shriver went to the mine office to check the CO monitor
system print-out. At the office Shriver encountered Elmer
Brooks, the mine=s maintenance supervisor, who told Shriver that
he had heard the CO system alarm on March 15, had called the
dispatcher, and had told the dispatcher there was a fire alarm on
the 16-M belt drive (Tr. 364, 375-376). Brooks also told Shriver
that the audible alarm was confirmed by the CO system computer
print-out (Id.).
When Shriver looked at that print-out, it showed that a fire
warning indeed had been given. (The system gives a warning when
CO reaches a level between 10 and 15 parts per million.) The
print-out showed a reading of 11 parts per million, which, in a
few seconds, rose much higher (Tr. 365).)
Later that day, Shriver spoke with Danny Ammons. Ammons
told Shriver how he discovered the fire. Shriver=s description
16
Page 17
of what Ammons said essentially tracked Ammon=s testimony.
Shriver also spoke with Kennedy about the fire. Shriver=s
description of what he was told by Kennedy followed Kennedy=s
testimony. Similarly, Shriver=s description of what Zupper told
him paralleled Zupper=s testimony (Tr. 369, 451, 453, 497),
except that Zupper did not want to identify to Shriver the person
who directed the crew to stay on the section. He would not tell
Shriver whether the person was from management or was a rank and
file miner (Tr. 373).
Nevertheless, Shriver came to believe that Welch was the
person who had directed the crew to stay. Shriver=s belief was
based on a conversation he overheard. On March 24, 1993, another
MSHA inspector asks Welch if Welch knew who told the crew to stay
on the section and Shriver heard Welch reply that he, Welch, did
(Tr. 385).
Shriver described the conversation this way:
We were in a small room where the inspectors put
their gear on, and I had heard some mention that the
person who had called the section and told them to stay
there was Mr. Welch, but he was pretty highly regarded
by the rank and file people and they didn=t want to
name him.
* * * *
I wondered how we could determine who did call the
people and ... Welch was standing in the doorway. And
[the other inspector] says, very easily. He says, hey,
Bob who called the 16-M section during the fire the
other day and told them not to leave. And ... Welch
said, well, I did (Tr. 457).
Shriver also maintained that subsequent to this conversation
Welch again specifically stated that he told the crew to stay on
the section (Tr. 471-472). Shriver therefore was of the opinion
that Welch knowingly ordered, authorized, or carried out a
violation of the evacuation program (Tr. 502).
Shriver was asked his views about whether or not McLaughlin
knowingly failed to withdraw the affected miners. Shriver
acknowledged that he did not speak with McLaughlin regarding his
response to the fire. Shriver did not know where McLaughlin was
when the fire occurred, or if McLaughin had given any orders
regarding the fire (Tr. 414-415). Nor did he know when
17
Page 18
McLaughlin first reached the site of the fire (Tr. 470-471, 490).
When he was asked if he believed McLaughlin knowingly ordered,
authorized, or carried out the violation alleged, he replied, AI
really don=t have any information that would indicate that he did@
(Tr. 501).
With regard to Straface, Shriver stated that he did not
know for sure where Straface was when the fire occurred, but he
assumed that Straface was not underground. Shriver recalled
Straface describing what the company did regarding the fire and
stating that he was prepared to bring water cars to the scene
(Tr. 415). This indicated to Shriver that Straface knew about
the fire (Tr. 473).
In a later meeting with MSHA that involved Shriver and
Straface, Shriver remembered Straface saying that the company had
made a mistake. Shriver interpreted this to mean that Straface
conceded Consol should have evacuated the miners from the section
(Tr. 473-474,502). However, he also agreed that he did not ask
Straface what he meant and that during the meeting Straface
argued vehemently that the company had done nothing wrong (Tr.
491-492).
Shriver testified that after interviewing the miners
regarding the incident, he saw MSHA Inspector McDorman, who told
Shriver that MSHA had learned enough to justify citing Consol for
a violation of section 75.1101-23 in an order issued pursuant to
section 104(d)(2) of the Act. The violation consisted of Ahaving
a fire and failing to evacuate the crew@ (Tr. 369-370). (McDorman
issued the order, and Shriver reviewed its contents and
countersigned it (Gov. Exh. 6; Tr. 370-371, 405).)
Shriver believed that Consol violated Part II.A.2. of the
fire evacuation program, which stated if a fire sensor system
alarm occurred, persons in the affected area would be notified
and would be immediately withdrawn to a location outby the
affected area (Gov. Exh. 4 at 4; Tr. 377). Based upon what
Kennedy told him, Shriver concluded that the fire sensor system
alarm had indeed gone off on the 16-M section (Tr. 377). Shriver
was asked what he understood Athe affected area@ to be. He
responded that it was the 16-M belt drive, since that was the
area involved in the fire (Tr. 376).
With regard to Part II.C. of the program, the part relating
to the CO monitor system, Shriver maintained that Consol was
required to follow it (Tr. 472-473). Shriver stated:
At the time I assumed that [Part II.C.] did apply,
18
Page 19
since ... as I recall, ... [The CO monitor system] ...
had been ... partially installed for ...
at least a year ... the only thing they had left to ...
install ... was the final sensor up at the section ...
and a[n] ... out station. So in all intents and
purposes, the system was installed (Tr. 447-448).
Shriver also stated that as he understood the program, once
a foreman or any management person knew there was a fire on a
section, the person=s first responsibility was to insure the crew
was evacuated outby the affected area (Tr. 481).
[A]s I read the plan, on belts, whether it=s a
fire sensor alarm or CO monitor alarm ... the plans
calls to immediately withdraw the people to a location
outby the affected area.
* * * *
If [the fire is] of a sufficient magnitude to set
off one of these alarms, then the way I read it, the
crew should be withdrawn ... . [T]he potential hazard
of a fire out of control and the rapidity with which
fire can get out of control, I think that=s what causes
these plans to be so demanding in getting the people
off the sections and then figuring out what=s wrong
(Tr. 499-500).
It did not matter whether the fire lasted five seconds or
fifteen minutes, the crew had to be evacuated (Tr. 500-501).
Regarding Consol=s negligence in allegedly violating the
program, Shriver agreed with McDorman that it was Ahigh.@
Management officials knew of the fire yet directed the crew to
remain on the section (Tr. 373).
Shriver believed the alleged violation was caused by
Consol=s unwarrantable failure because Amanagement ... told the
people to stay on the section even after a clear fire alarm had
been sounded@ (Tr. 404). Later, Shriver was asked if during the
investigation he learned whether any management person at the
mine actually knew that the fire alarm system had activated.
Shriver responded, A[n]ot the point sensor fire alarm, no@ (Tr.
411).
Shriver described the alleged violation as Aextremely
serious and potentially disastrous@ (Tr. 387). Consol had
experienced past fires at its mines and one, at the Blacksville
No. 1 Mine, had resulted in fatalities (Tr. 386-387). He stated
19
Page 20
that the decision not to evacuate because the fire was out was
Afraught with great danger@ (Tr. 387). He explained, A[w]hen that
decision had been made, no one had really walked the belt to see
if any burning material had been carried back into ... the belt
entry and possibly started another fire@ (Tr. 387).
RICHARD McDORMAN
Richard McDorman was the regular inspector for MSHA at
the Blacksville No. 2 Mine. In that capacity, he inspected all
areas of the mine. McDorman was not at the mine on March 15,
but he went on March 17. Shriver was also at the mine that day.
When Shriver told McDorman he had received a complaint about a
fire at the belt drive, the two inspectors began an investigation
(Tr. 505-506).
While he was still above ground, McDorman looked at the
on-shift examination book for March 15. The book contained no
reference to a fire (McDorman subsequently issued a citation for
failing to report a Ahazardous condition@ in the book (Tr. 508).)
McDorman then went underground to the 16-M section to talk
with the crew. Zupper told McDorman there had been a fire, and
he described how he learned of the fire and the crew=s response
to the fire. McDorman=s description of what Zupper told him
essentially paralleled Zupper=s testimony, except that Zupper
would not tell McDorman the name of the foreman who told the crew
to remain on the section (Tr. 509-510, 535-536).
McDorman stated that he and Shriver jointly issued the
contested order to Consol for violating its fire fighting and
evacuation program (Tr. 511; Gov. Exh. 6A). McDorman indicated
in the body of the order that five persons were affected by the
alleged violation because he believed that number was not
evacuated (Tr. 513). Further, he found the alleged violation was
S&S because he knew of other belt fires in mines and of the
results of those fires (Tr. 517).
Regarding the gravity of the alleged violation, he thought
the miners were subjected to the hazards of entrapment, of smoke
inhalation, and of CO poisoning. Fires at other mines had
resulted in miners dying from these causes (Tr. 515). Failing to
evacuate affected personnel was dangerous because if the fire had
gotten out of control, and intensified, it could have disrupted
normal ventilation and smoke could have reached the face (Tr.
582-583, 590). Finally, because of Zupper=s statement that a
foreman said not to evacuate, McDorman found that mine management
was highly negligent in failing to get the crew outby the fire
20
Page 21
(Tr.516,525,571). Mine management was responsible for following
its fire fighting and evacuation plan (Tr. 521-522).
Subsequent to issuing the contested order, McDorman and
Shriver modified it in several respects. One of the
modifications indicated that the alleged violation also included
a failure to withdraw the crew on the 17-M section (Gov. Exh. 6A
at 4). McDorman explained that the escape route for that section
traveled outby the 16-M belt drive. Because the crew on the 17-M
section was inby the fire, they should have left the section and
moved outby the fire (Tr. 518). Another modification changed the
number of persons affected by the alleged violation from five to
ten -- the number of miners working on both sections (Gov. Exh.
6A at 4; Tr. 519-520).
McDorman believed that Consol violated Part II.A.2. of the
program, the part concerning the steps Consol had to take when
the fire sensor alarm system was activated (Gov. Exh. 4 II A.2.
at 4). Under Part II.A.2., persons in the affected area were
required to be notified and to be immediately withdrawn to a
location outby the area (Tr. 522-523). However, McDorman stated
that he would have charged Consol with a violation even if the
fire sensor alarm had not been activated, provided management had
known there was a fire (Tr. 537).
McDorman did not know if the petition for modification
allowing reliance on the CO monitor system was implemented on or
before March 15 (Tr. 555-556). Nonetheless, he believed Consol
also violated the CO monitor system part of the program, because
a CO alarm sounded, but the crew was not withdrawn (Gov. Exh. 4
Part II.C.; Tr. 523).
Finally, McDorman believed Consol violated the part of the
program that concerned the duties of the longwall section
personnel (Gov. Exh. 4 VII.B. at 8). Specifically, McDorman
referenced section VII B.1.b., which required management to
A[s]ee that all [longwall section] personnel are on the outby
side of the fire and [are] accounted for@ (Gov=t Exh. 4 at 8; Tr.
584). McDorman stated the requirement applied whether the fire
was at the face or was outby the section (Id.). (However, later
he appeared to agree that this part of the plan was more
applicable when of a fire occurred in the face area (Tr. 554-
555).)
With regard to McLaughlin=s involvement with the fire,
McDorman stated that he had no knowledge regarding whether
McLaughlin knowingly ordered, authorized, or carried out the
violation (Tr. 587). With regard to Welch=s involvement, the
21
Page 22
only thing McDorman knew was that Welch told Griffin to get the
crew together and stay together (Tr. 562). With regard to
Straface=s involvement, Stewart told McDorman that Straface was
on the mine telephone and that he prevented Stewart from doing
his job (Tr. 563). McDorman never discussed Stewart=s comments
with Straface (Tr. 566).
HARRY C. VERAKIS
Harry C. Verakis is an MSHA supervisory engineer. He also
has worked for MSHA as a supervisory physical scientist (Tr. 595-
597). Part of Verakis= work for MSHA has involved the study of
conveyor belt fires. He has participated in both large and small
scale studies to determine what happens during such fires (Tr.
594-595). Verakis is the author of AReducing the Fire Hazard of
Mine Conveyor Belts,@ a paper that he presented at a mine
ventilation symposium in 1991 (Gov. Exh. 8; Tr. 598).
Verakis testified that the studies in which he participated
revealed that an entry air velocity of 300 feet per minute is the
optimum for flame propagation (Tr. 606). Verakis agreed that on
the 16-M section there was a lower velocity of air at the belt
transfer point. However, rather than reduce the hazard, Verakis
believed the velocity gave the fire a better chance to intensify
(Tr. 610). In Verakis= opinion, if the fire was Afairly intense@
it could have moved from the belt drive, up the entry, and toward
the face (Tr. 638).
An additional hazard from the fire was that smoke and toxic
gases could have leaked into the track entry and moved toward the
face (Tr. 612-614). However, Verakis admitted that the pressure
differential between the track heading and the belt heading could
have affected whether the smoke and fumes reached the face and
that he did not know what the pressure differential was (Tr. 634-
635).
In Verakis opinion, many variables dictated a fire=s
development and because of a fire=s inherent unpredictability,
miners always should be evacuated outby a fire (Tr. 613).
Verakis estimated that the March 15 fire produced
temperatures of Aat least a couple of thousand degrees
Fahrenheit,@ temperatures sufficient to cause the conveyor belt,
brattice material, and boards to burn. He further noted that
these materials give off toxic fumes as they burn (Tr. 621-622).
Verakis later agreed, however, that the conveyor belt could have
become blistered by the heat without catching fire, and that he
did not know if the belt actually had burned (Tr. 641-642).
22
Page 23
In explaining the sudden burst of flames that Ammons saw
upon opening the door at the belt drive, Verakis testified that
there could have been a flashover caused by the friction of the
belt rubbing against the belt drive drum. The rubbing could have
loosened rubber and fabric particles from the belt and these
particles, when mixed with the coal dust that usually is present
at the belt drive, could have ignited suddenly. (Tr. 1034-1035).
CRAIG YANAK
Craig Yanak, who testified on Consol=s behalf, was the
company=s regional supervisor for dust and noise control. Part
of his duties involved the gathering of information for fire
fighting and evacuation programs. He was extensively involved in
the development of the fire fighting and evacuation program that
was in effect on March 15 (Tr. 676-677). With regard to the part
of the program relating to the fire sensor system (Part II.
A.&B.) Yanak agreed that it was supposed to remain in effect
until the petition for modification was implemented. After
implementation of the petition, the provisions relating to the CO
system (Part II.C.) were supposed to take effect.
Yanak identified a letter from Consol to MSHA dated
September 15, 1994, which stated that Consol was implementing
the petition for modification effective that date (Exh. R. 3;
Tr. 678-679). This letter was acknowledged by the MSHA district
manager on September 26, 1994 (Resp. Exh. 4; Tr. 681-682).
Therefore, in Yanak=s view, on March 15, 1993, Consol was not
operating under Part II.C. of the plan (Tr. 679-681).
Yanak explained the structure of the approved and adopted
program by stating that there were only two parts of the program
whose effect was conditioned upon a timetable:
[W]e have two system here that we=re addressing
[in the plan]. One of them is a ...[fire] sensor
system. And one part is a CO monitoring system.
* * * *
Either one or the other is going to be in effect.
One will be in effect prior to the implementation [of
the petition for modification]. The other would be in
effect after the implementation. But all other parts
of the plan [are] in effect regardless of whether its
implemented or not implemented (Tr. 684).
23
Page 24
ROBERT CHURCH
Robert Church, who testified for Consol, was the company=s
regional safety inspector. Church investigated and reported on
the March 15 fire. According to Church, he determined from
speaking with the people who were present at the belt transfer
area that the fire lasted from one and one-half to two minutes.
It resulted in the blistering of the belt in one area and the
charring of two brattice boards. Because of the damage, the belt
had to be spliced. Also, the grooves on the drive rollers were
slightly damaged (Tr. 692-693, 707).
Church testified that the CO sensor printout indicated CO
rising from 11 parts per million to a much higher level in a
matter of seconds (Tr. 693). In addition, the CO monitor system
gave an audible warning. He determined that Elmer Brooks, the
maintenance supervisor, heard the warning and Church believed
that Straface heard it as well. Straface=s office was located
about 20 feet from the alarm (Tr. 705). Stewart was notified of
the CO monitor alarm, but he already knew about the fire (Tr.
693).
Church believed that Stewart was in the process of
evacuating the mine and getting water cars to the area when the
fire was extinguished (Tr. 694). Straface told Church that all
of this occurred within three to five minutes (Id, 796).
Church accompanied Shriver during Shriver=s March 17,
investigation of the fire. Church did not recall what he told
Shriver about the fire (Tr. 708).
In Church=s opinion, the miner=s were not evacuated because:
[T]he fire was extinguished prior to everyone even
being notified there was a fire. And once the fire was
extinguished and we were assured there were no further
problems, we [saw] no reason to continue with the
evacuation (Tr. 711).
According to Church, the fact that miners were not withdrawn
under these circumstances was consistent with the policy then in
effect at the mine (Tr. 712).
JOHN SWEETER
John Sweeter, a day shift foreman, testified for Consol. On
March 15, he was outby the face on the 17-M section when a member
of the crew told him Stewart was on the telephone yelling
24
Page 25
Asomething about a fire@ (Tr. 735). Sweeter and the miner ran to
the telephone and Stewart called the dispatcher who advised
Sweeter that there was a fire at the 16-M belt drive. Stewart
told Sweeter he was notifying others in addition to Sweeter and
that he had water cars coming to the scene (Tr. 736). Sweeter
sent the miner back to the 17-M section crew with instructions to
tell them of the fire, to get the crew together, and to have them
go to the telephone and contact the dispatcher (Id.).
Sweeter got in a jeep and headed for the 16-M belt drive. On
the way, he called Stewart on the trolley phone to tell him he
was going to the scene of the fire, and Stewart told him the fire
was out (Tr. 737, 751). (Sweeter estimated that perhaps two
minutes elapsed between the time he first called the dispatcher
and the time he was told the fire was out (Tr. 738, 745).)
When Sweeter reached the belt drive he observed blistering
on the belt, but Sweeter did not recall how much of the belt was
affected (Tr. 746-747). He also noticed that some boards were
charred (Tr. 746).
Sweeter confirmed that the 17-M section was inby the 16-M
section in terms of ventilation. He stated that if there was a
fire at the 16-M section, Aand it=s still in progress,@ it would
have been prudent to withdraw the crew on the 17-M section outby
the fire (Tr. 749, see also Tr. 748-749). He stated he did not
know if the 17-M crew was withdrawn (Tr. 749-750).
CHARLES BANE
Charles Bane, the company=s regional manager of safety,
testified for Consol. He was in charge of safety at Consol=s
northern West Virginia mines. His duties included the
development of safety plans and policies for the company and he
oversaw the Company=s compliance with federal and state rules and
regulations (Tr. 753). Bane helped develop and submit to MSHA
the mine=s program of evacuation (Gov. Exh. 4; Tr. 756-757, 761).
Blane described Consol=s policy respecting Part II.A.&B. of
the program. He explained that when the cause of a fire sensor
alarm was unknown, Consol treated the situation as though there
was a fire (Tr. 767). He stated, A[i]f we have an alarm and we
don=t know the reason for it -- we assume that with the fire
alarm we have a fire ... [W]e respond to those alarms@ (Tr. 765,
774 ).
He further explained, in effect, that if an alarm was
activated and Consol knew first-hand that there was no fire, (for
25
Page 26
example, Consol knew the alarm was a mistake); or, if an alarm
was activated and Consol knew that although there had been a
fire, it was extinguished, Consol would consider that information
and not require miners to evacuate (Tr. 779-780). This was what
he intended when he wrote the program (Tr. 780). According to
Bane, the program contained an underlying and unstated assumption
that for Consol to take action under the program there had to be
an Aongoing@ fire.
Counsel for the Secretary questioned Bane about this:
Q. [T]hroughout this plan there is one emphasis and
that is when a fire is discovered and its location
known, the responsible foreman and those that have the
responsibility are to get their people outby the fire;
is that not correct?
A. I don=t think anybody would deny that. If we have
an ongoing fire, yes, sir, we would get everybody
outby as soon as possible
Q. It doesn=t say anything in here about an ongoing
fire, it=s just a fire.
A. I don=t think anybody would deny that. If we have
an ongoing fire, yes, sir, we would get everybody outby
as soon as possible.
* * * *
Q. Outby the fire?
A. If it continues to burn, yes, sir (Tr. 789-790)
Bane summarized why, in Consol=s view, it did not violate
the program: A[T]he fire was put out before the people ever got
gathered. So [at] that point, there was no longer a fire, so
then there=s not an evacuation process@ (Tr. 794).
Finally, as the author of the plan, Bane maintained that
Part VII applied only if the fire occurred on the section
(Tr. 786). That was why certain assignments were specified in
Part VII for various miners of the section crew (Tr. 787).
ROBERT WELCH
Welch testified on behalf of and himself Consol. He stated
that on March 15, he was working near the bottom of the portal
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Page 27
shaft, at the dumping shanty. This is the area where miners
entered and left the mine and where coal was lifted from the mine
(Tr. 809). Welch=s duties that day were to monitor and
coordinate with the dispatcher, Stewart, the availability of mine
cars that shuttled coal from the longwall sections (Tr. 810). At
the dumping shanty Welch communicated throughout the mine and to
the surface by using the mine telephone. He also had access to
the trolley radio telephone system (Tr. 811-812).
Shortly after noon, Welch heard a signal that sounded when
the dispatcher set off emergency warning lights somewhere in the
mine (Tr. 813-814). Welch immediately thought something major
had gone wrong. He picked up the telephone and listened. He
heard nothing. He paged the dispatcher and asked him what had
happened. Steward responded that there was a fire at the 16-M
belt drive. (Tr. 815)
Welch testified that he told Stewart to turn other emergency
lights on and to send a water car to the area. Welch also
advised Stewart that he would stay on the line and when miners
responded to the lights he would tell them about the fire and let
Stewart know which miners had responded (Tr. 815).
The first person with whom Welch spoke was either Griffin or
Zupper; Welch could not recall which. He told the person that
there was a fire at the belt drive and that the person should get
everyone on the section together and call back (Tr. 817). It was
important to gather the crew so that its members would not
separate and go in different directions.
Not more than five minutes later, Griffin called Welch (Tr.
820, 841). Welch asked Griffin if everyone on the crew was
together. Griffin responded, Ano, not yet,@ and Welch again
stated that everyone should be brought together and then he
should be called back (Tr. 820). Welch was asked by counsel for
the Secretary why he did not tell the crew to evacuate. He
replied, Athe least you put on to a person in a situation like
this ... the better off you are@ (Tr. 840).
In the meantime, Stewart activated emergency lights in other
sections of the mine, and other crews began to come on the
telephone line and ask what had happened. Welch testified that
he and Stewart responded to the inquiries by telling the other
miners to stand by, that there was a problem (Tr. 821).
Also, Straface called Welch. According to Welch, Straface
asked what was being done with respect to the problem (Tr. 857-
858). Welch advised Straface that he and Stewart Ahad things
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under control@ (Tr. 849). Welch maintained that at the time he
spoke with Staface, he was taking the steps necessary to evacuate
the 16-M crew, in that he had notified them of the situation and
advised them to prepare to evacuate (Tr. 851).
Before Welch heard again from the miners on the 16-M
section, the tipple operator stated over the telephone that the
fire was out. Shortly thereafter, there was a second call over
the line. It was either Nester or Ammons. Whomever it was
confirmed that the fire was extinguished (Tr. 823).
Subsequently, Zupper called. He told Welch the crew was
with him and that they were ready to leave the section. Welch
replied, A[t]he fire is out ... just stay in fresh air and
monitor the telephone@ (Tr. 823, 841). Welch testified he was
satisfied that the crew was no longer in danger. Welch stated
the only reason he did not tell the crew to evacuate was because
he believed the fire was out (Tr. 825-826). He also stated that,
although he could have ordered the crew to evacuate outby the
site of the fire, he was concerned about the miners= physical
condition and the possibility that if they had to move at a fast
pace one or more of them might have had a heart attack and that
he would have caused it (Tr. 823-824, 843). At no point
subsequent to the fire did any member of the crew complain that
Welch had not ordered them to evacuate the section; nor did
Stewart complain (Tr. 827-828).
Welch did not ask anyone about the extent of the fire or
about its effect on the ventilation of the longwall section. If
the fire had created a problem with the ventilation he was sure
he would have been notified by Stewart or by someone on the
section (Tr. 844-845).
From his position in the dumping shanty, Welch had no
knowledge as to whether or not a heat sensor system alarm and/or
a CO monitor system alarm was activated (Tr. 826).
Welch also testified that at the time of the fire McLaughlin
was in another part of the mine, a good distance away from the
16-M belt drive. After Welch heard Stewart tell McLaughlin there
was a fire on the belt drive, he heard McLaughlin respond that he
wanted to go to the fires site (Tr. 829). While McLaughlin was
in route, Welch heard McLaughlin call Stewart and ask if the
water cars were on their way (Tr. 830). A short time later Welch
heard Stewart tell McLaughlin that the fire was out. McLaughlin
replied that he still wanted to go to the area. The last thing
Welch heard was McLaughlin stating he was at the belt drive (Tr.
831).
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Page 29
JOHN STRAFACE
Straface testified on behalf of himself and Consol.
According to Straface, he first became aware of the fire on the
16-M section when Stewart notified him over the telephone (Tr.
860). Straface called Welch at the dumper shanty and asked if
Welch knew anything about the situation. Welch replied that
Steward had told him the same thing (Tr. 860-861).
Straface stated that he assumed the worst. As a result, he
wanted the full mine evacuation plan to be implemented (Tr. 861).
As Straface recalled, he was told either by Welch or Stewart,
that the 16-M section and the 17-M section crews had been
notified of the fire and Straface requested that the entire mine
be notified (Tr. 861-862, 904). Further, Straface asked if water
cars were on the way to the belt drive and was told that had been
taken care of. Straface stated that he put Welch in charge of
monitoring the situation and taking care of the evacuation (Tr.
863). Straface denied that he ever told Stewart to stay off the
mine phone system (Tr. 864).
On cross-examination, Straface stated that he did not give
specific instructions to Welch or anyone else concerning the 16-M
section or any other section, rather, his instructions were
simply Ato initiate the evacuation@ (Tr. 889).
According to Straface, McLaughlin called him on the trolley
telephone, and wanted to know if water cars were on their way to
the belt drive. Straface told McLaughlin that everything was
taken care of and to go to the fire (tr. 891).
After that, Straface monitored the mine telephone system Aon
and off@ (Tr. 888). At one point he overheard Welch tell someone
from the 16-M crew to get the crew together and to call back.
Straface did not disagree with this (Tr. 894-895). Straface did
not talk to the crew; he did not interrupt to say that once the
crew got together they should go outby the fire. He just assumed
it would happen (Tr. 865, 890).)
A short while later, he overheard Ammons tell someone that
the fire was out. Straface believed that Ammons was talking to
Stewart (Tr. 865, 888). Straface stated that he wanted to speak
with Nester in order to verify the fire was extinguished. Nester
called him and stated that the fire was out, that there was no
longer a problem, and that everything had been taken care of (Tr.
865). Later, he also overheard a conversation in which Welch
told someone from the crew that the fire was out and to stay by
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Page 30
the phone (Tr. 866). Straface did not say anything. He believed
that Welch had given the crew the right instructions (Tr. 867,
895-896).
Straface went underground about 30 to 45 minutes after
learning that the fire was out (Tr. 868). When he arrived at the
belt drive, Straface observed damage to the belt. Approximately
40 to 50 feet outby the belt drive, the belt was blistered and
some of the rubber had Abubbled up@ (Tr. 868-869). In addition,
there was damage to some wooden boards used for guarding (Id.).
Subsequent to the fire, Stewart spoke with Straface.
Stewart was upset that his duties had been taken away. Straface
stated:
He felt that ... he was not given the right to
direct the underground communication and traveling. I
told [Stewart] that I think that he did his job
properly and that I did my job properly. That if there
was a problem underground and I was available, that I
was going to help him and monitor what he did and if I
didn=t think what he was doing was right, I would
change it. If I felt what he was doing was proper,
that would be fine. But I was in charge of the coal
mine, I would be ultimately responsible for the results
of the incident and if it was going to be done right or
wrong, I wanted to ... [know] about it, I=d make the
decision (Tr. 876).
Straface denied that he ever told Stewart to stay off the
telephone (Tr. 876). He asserted that he asked Welch to monitor
the situation because:
There are other people working in the [mine]
besides the people on the production section. And
it=s very difficult for one person to try to find
150 people. So it would seem proper to have more than
one person trying to ... make sure that everybody was
evacuated and that we didn=t leave somebody on the belt
line shoveling the belt somewhere .... I just wanted
more than one person to monitor what was going on
(Tr. 885-886).
During cross-examination Straface was asked why the affected
miners were not evacuated outby the fire, and he replied:
They didn=t evacuate because the fire was out ....
It was a timing situation that by the time they
gathered, [and] they called and notified that they were
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Page 31
gathered and leaving, the fire was out (Tr. 882).
Straface believed there was not a violation of the approved
and adopted program of evacuation procedures because:
[I]f there=s a fire, we evacuate. If there=s an
unknown situation, if there=s a fire alarm that=s
unknown, we evacuate. If the situation becomes known,
you react to the known (Tr. 902).
Here, he had know that the fire was out.
SAMUEL McLAUGHLIN
McLaughlin testified that he became aware of the fire when
he was on the other side of the mine. A miner said that Stewart
was trying to reach him on the trolley telephone. McLaughlin
went to his jeep to speak with Stewart and Stewart told him there
was a fire on the 16-M belt drive. McLaughlin jumped in the jeep
and asked Stewart for clearance to travel to the 16-M section
(Tr. 907). McLaughlin estimated that he was approximately 15 to
25 minutes away from the section (Tr. 908).
At a main junction, McLaughlin left the jeep to throw a rail
switch. A mine telephone was near the switch. McLaughlin picked
up the telephone and Ahollered@ for the dispatcher. Straface,
not Stewart, came on the telephone and McLaughlin asked if the
crews had been notified of the fire and if water cars were ready.
Straface responded that these things had been taken care of
(Tr. 909).
McLaughlin resumed his trip to the section. Before he
reached the belt drive, Stewart came on the trolley telephone and
told McLaughin to take his time, that the fire was out (Tr. 910).
Once at the belt drive, McLaughlin got out of the jeep near
an overcast. Nester and several other mines were there.
McLaughlin did not ask where the crew from the 16-M section was
(Tr. 926-927). Nor did he ask if the belt had been patrolled for
fire from the point of the fire inby to the longwall face (Tr.
927). McLaughlin entered the belt drive area. The sprinkler was
off and there was no smoke. However, when he approached the belt
drive he could smell charred wood (Tr. 916).
After his examination of the belt and the belt drive,
McLaughlin went to the telephone by the belt transfer area. He
called Straface and told him about the damage (Tr. 920).
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Page 32
McLaughlin was asked by counsel for the Secretary whether he
agreed that the fire evacuation program required Apeople to be
withdrawn ... out by that fire immediately@ once a fire was known
to exist. McLaughlin replied it did (Tr. 930).
JOHN LEVO
John Levo, the ventilation foreman at the mine, testified on
behalf of Consol. Levo stated that on March 15, he was with
McLaughlin, on the other side of the mine, when Stewart called
and stated that he wanted to talk to McLaughlin because there was
a fire on the 16-M section. Levo got McLaughlin and they left in
a jeep for the section (Tr. 934). At the point where a switch
had to be thrown, McLaughlin got out of the jeep and called
someone on a telephone. Levo did not hear the conversation (Tr.
935).
Levo and McLaughlin resumed their travel. Along the way,
Stewart called over the trolley telephone and stated that the
fire was out, that there was no emergency, but that they should
continue on to the section (Tr. 936).
It took approximately 20 to 25 minutes to reach the section.
Once there, McLaughlin left the jeep and walked to the belt
drive. Levo parked the jeep and he too walked to the belt drive.
Levo did not observe anything that was flaming, or smouldering,
or hot (Tr. 937). The area was wet from the fire suppression
system (Tr. 955).
DONALD MITCHELL
Donald Mitchell, a self-employed mining consultant
specializing in ventilation, mine fires, and mine explosions,
testified on behalf of Consol (Tr. 956). Mitchell is a
recognized authority on mine fires and at the time of the
hearing, he was completing the third edition of a book entitled
Mine Fires. Mitchell described the book as a Abest seller@ in
the mining industry (Tr. 961). In addition, Mitchell was
instrumental in introducing CO monitor systems to the United
States. Mitchell was permitted to testify as an expert with
respect to mine fires, mine ventilation, and CO monitor systems
(Tr. 961-962).
Mitchell described the air pressure differential between the
16-M section track entry and the 16-M section belt entry (Tr.
967). He stated that at the overcast, the track entry pressure
was six-tenths of an inch higher than the belt entry pressure.
Along the rest of the belt entry, the track entry pressure also
was higher. The difference measured between four-tenths of an
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Page 33
inch to three-tenths of an inch. Mitchell believed the pressure
differential dictated how smoke would travel.
According to Mitchell, it was virtually impossible for smoke
to pass from the belt to the track entry and to the face.
Because of the difference in the pressure, if air leaked between
two entries it would flow from the track entry into the belt
entry, not the other way around. Therefore, smoke would stay in
the belt entry and would exhaust through the regulator and the
return.
The only way smoke could travel to the face was if massive
roof falls stopped ventilation in the belt entry. Then, the
smoke would have no place to go but back into the track entry and
up the entry to the face (Tr. 970, 973). However, in Mitchell=s
opinion, it would take a fire of significant intensity and of up
to ten hours duration to cause such roof falls (Tr. 970, 1031).
Mitchell did not believe that on March 15, the crew on the 16-M
longwall section was in any danger from smoke or CO (Tr.970).
In Mitchell=s opinion the March 15 fire was of a low
intensity (Tr. 985, 1016). He estimated that it produced
temperatures of more than 200E F but of less than 380E F, the
temperature at which conveyor belting ignites (Tr. 977). An
intense fire would have left more evidence than bubbling on the
belt and charring on the brattice boards (Tr. 1017).
Mitchell believed the fire was caused by friction at the
belt drive when the belt slipped around the drum (Tr. 992, 993).
This raised the temperature on part of the belt to above 280E,
and the belt bubbled (Tr. 992). In his view, the only things
that actually burned were the brattice boards. They were white
pine, which, according to Mitchell, burns at the relatively low
temperature of 200E (Tr. 992-993). The wood, being the most
ignitable substance in the area, was smouldering and when Ammons
opened the door, the increased air caused the boards to flare up
(Tr. 993-995).
RESOLUTION OF THE ISSUES
DOCKET NO. WEVA 94-57
THE CONTESTED VIOLATION
ORDER NO. DATE 30 C.F.R.
3118640 3/17/93 75.1101-23(a)
The order states, in pertinent part:
The fire fighting plan and evacuation plan was
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Page 34
not followed at 16M section on 3-15-93. A fire
occurred at the 16M belt drive at approximately
13:15 hrs. Mine management did not assure that those
persons ... in the affected area be immediately with-
drawn outby ... the affected area. The ... workers
did not leave the section .... This presents the
hazard of entrapment due to fire, smoke inhalation,
and/or carbon monoxide poisoning. Management is
responsible for insuring that the provisions of this
plan be complied with and in this case did not insure
that 16M Section was evacuated. Gov. Exh. 6A at 1).
THE STANDARD
Section 75.1101-23(a) requires an operator of an underground
coal mine to Aadopt a program for the instruction of all miners
in...proper evacuation procedures to be followed in the event of
an emergency@. The standard also requires the program to be
approved by the MSHA district manager. In addition, section
75.1101-23(a)(1)(i) requires that the approved program include Aa
specific fire...evacuation plan designed to acquaint
miners...with procedures for..[e]vacuation of all miners not
required for fire fighting activities[.]@
The standard is one of several that require an operator to
adopt and the Secretary to approve safety-related plans and
programs (see e.g. 30 C.F.R. ' 75.200 (mine roof control plans),
30 C.F.R. ' 75.370 (ventilation plans), 30 C.F.R. '75.1702
(smoking prevention programs)).
It is an axiom of mine safety law that the provisions of
such required plans and programs, once adopted and approved, are
enforceable as though they are mandatory safety standards (see,
Zeigler Coal Co. v. Kleppe, 536 F.2d 389 (D.C. Cir. 1976)
(provisions of ventilation plan enforceable as mandatory
standards); Zeigler Coal Company, 2 IBMA 216 (1973) (provisions
of roof control plan enforceable as mandatory standards)). Thus,
once an evacuation program has been adopted by an operator and
approved by the district manager pursuant to section 75.1101-
23(a), the operator is required to comply with its provisions and
the provisions are enforceable as mandatory safety standards.
INTERPRETATION OF THE PROGRAM
The Commission has made it clear that when determining
whether there has been compliance with an approved and adopted
program, a judge must look at the words of the program as
written. However, the judge may not read the words in isolation
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so as to render any part of the program meaningless or
superfluous. Rather, the words of a particular provision must be
interpreted consistent with the program as a whole and consistent
with program=s purpose. (AIt is well established that the
provisions of the same document must be read and interpreted
consistently with each other and that effect must be given to
each part of a document to avoid making any word meaningless or
superfluous@ (Mettiki Coal Corporation, 13 FMSHRC 3, 7 (January
1991); see also Shamrock Coal Company, 5 FMSHRC 845, 848-849 (May
1983)).
Moreover, although the Secretary=s approval is required for
a program to take effect, the program is first and last the
operator=s. The operator drafts it and the operator implements
it. The operator=s duty of authorship carries with it a
concomitant duty of precision. Therefore, as a general rule, the
author-operator will not be heard to argue that imprecise wording
or drafting permits a result inconsistent with the overall safety
objectives of the program.
RELEVANT PARTS OF CONSOL=S PROGRAM
The subject program implemented the regulation by setting
forth evacuation procedures miners and management were required
to follow upon the activation of a fire sensor system alarm (Gov.
Exh. 4 II.A.&B. at 4); upon activation of the CO monitor system
(Id. II.C. at 5); and by setting forth fire fighting and
evacuation procedures that were required to be followed by
specified mine personnel in the event of a fire (Id. III - VII at
5-8). The efficacy of the provisions relating to the fire sensor
system and the CO monitor system was conditioned upon
implementation of the petition for modification that authorized
reliance upon the CO monitor system. The fire sensor system
provisions were to be in effect until implementation of the
petition, and the CO monitor system provisions were to be in
effect after implementation.
There was confusion among the Secretary=s witnesses
regarding whether Consol was required to follow the provisions
relating to the CO monitor system on March 15. Inspector
McDorman did not know if the petition for modification had been
implemented on or before March 15, and therefore he could not say
whether Consol was required to follow Part II.C. (Tr. 555-556).
Inspector Strahin thought that Consol Aprobably@ was not required
to follow Part II.C. (Tr. 84-86). On the other hand, Inspector
Shriver stated that for Aall intents and purposes, the [CO
monitor] system was installed@ and Consol should have followed
the requirements relating to that system (Tr. 446-448).
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Page 36
Similar confusion was not evidenced by Consol. Yanak stated
categorically that Consol was not required to follow Part II.C.
because the petition for modification had not been implemented.
Yanak pointed to a letter dated September 15, 1994, in which he
advised the MSHA district manager, on behalf of Straface, that
the CO monitoring system was Ainstalled and in operation@ in
compliance with the petition. He also noted the district
manager=s September 26, 1994, acknowledgment of the letter (Resp.
Exhs. 3 and 4).
Just as an operator cannot be heard to argue that imprecise
or poorly drafted language permits a result at odds with the
overall safety objectives of a required program, so MSHA, cannot
be heard to argue that clear language it has approved does not
mean what it says. The program specifically conditioned the
effectiveness of its fire sensor system requirements and of its
CO monitor system requirements upon the implementation of the
petition for modification. Therefore, both parts cannot have
been in effect simultaneously (see Tr. 684). Yanak=s testimony
that the MSHA district manager=s response of September 26, 1994,
was an acknowledgment by MSHA that Consol had implemented the
petition for modification on September 15, 1994, was not refuted
by the Secretary (Tr. 682). Given this, and given the fact that
Yanak=s interpretation of the letters was eminently reasonable, I
find that in fact the petition for modification was implemented
within the meaning of the program on September 15, 1994.
Therefore, I conclude that on March 15, 1993, Consol was
required to comply with the provisions of the program relating to
the fire sensor system and not with the provisions relating to
the CO monitoring system. Further, since no other parts of the
program were conditioned upon a subsequent event, I conclude all
of the rest of the program was in effect on the date of the fire.
CONSOL=S GENERAL AND SPECIFIC DUTIES TO EVACUATE MINERS
Having considered the program then in effect, I conclude
further that on March 15, Consol had both general and specific
duties to withdraw affected miners to a safe location outby the
fire immediately upon indication of the existence of a fire.
Several provisions in the program implied the general
requirement. Part II.A.1. required the withdrawal of persons in
affected areas, except those needed to fight the fire, when the
fire sensor system alarm was activated and upon the positive
identification of a fire. Part II.B.2. required the withdrawal
of affected miners to a safe area when the fire sensor system
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Page 37
trouble alarm was activated, even before the existence of a fire
was confirmed. Part III.A.1. and Part III.A.5. required the
dispatcher or other responsible person to alert all personnel
inby the fire to the fire=s location and to proceed with their
evacuation. Part VII.A.1. required continuous miner section
foremen to see that all section personnel were on the outby side
of a fire and Part VII.B.1.b. placed the same duty on the foremen
of longwall sections. (Consol=s argument that part VII applied
only if a fire was located on a section, is based on a much too
restrictive reading of the program. Under it, a section foreman
would have no duty to remove his or her crew from harms way if a
fire occurred immediately outby the section, a result that
clearly is at odds with the safety purposes of the program.)
When these provisions are read together, it is clear to me
that the overall intent of the program was to remove miners inby
a fire, or inby a suspected fire, from the affected area to a
safe location outby. This overall intent implied a duty to act
in order to further the purpose of the program--the protection of
miners from the various hazards that can attend entrapment by
fire. Consol=s general duty is consistent with this purpose.
In addition to the general duty to evacuate affected miners
inby a fire, the program imposed upon Consol the specific duties
referenced above, the most pertinent of which was the duty to
Aimmediately withdraw to a location outby the affected area@ all
persons in the affected area upon activation of a fire sensor
system alarm (Gov. Exh. 4 II.A.2. at 4).
THE FACT OF VIOLATION
The parties agree there was a fire at the 16-M belt drive on
March 15, and I credit the testimony of Kennedy that he knew of
the fire both from being advised orally by the tipple operator
and by the activation of the fire sensor system alarm (Tr. 121-
122). I note especially that Kennedy=s testimony the alarm
activated was consistent with what he told Shriver within days of
the incident (Tr. 377, 410, 451). It is also clear that mine
management--especially Straface, Welch, and Sweeter--found out
about the fire within minutes of the tipple operator learning of
it.
I further credit the consistent testimony of Zupper and the
other members of the crew that they gathered and were ready to
exit outby the fire, as they had been trained to do (Tr.125, 126,
142, 144). I find that in so doing the crew was preparing to
withdraw Aoutby the affected area@ in conformance with the
program.
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Consol did not dispute Talkie=s testimony that the crew=s
evacuation was halted by instructions from Zupper (Tr. 235). Nor
did it dispute that Zupper=s instructions came as a result of a
directive from Welch that the crew should stay on the section
because the fire was out (Tr. 186-187). I note, as well, that
Zupper=s version of events was essentially consistent with Welch=s
own testimony of what happened (Tr. 823, 841). I also believe
Welch=s testimony that prior to telling Zupper not to evacuate
the crew, he twice spoke with Griffin over the telephone but that
he did not instruct Griffin, or anyone else for that matter, to
evacuate outby the affected area (Tr. 820).
Nor were the miners on the 16-M Section the only ones not
withdrawn from an affected area. The facts establish that the
crew of the 17-M section was not withdrawn as required. McDorman
stated his belief that the 17-M section was inby the 16-M belt
drive and therefore was an area affected by the fire (Tr. 518).
He testified that he amended the order to include the 17-M
section after talking to Ayers and determining that the 17-M
section crew was not evacuated (Tr.518; Gov. Exh. 6A at 4).
Consol did not challenge McDorman=s belief. Moreover, Sweeter
agreed that at the time the fire started, the 17-M section was
inby the 16-M section in terms of ventilation (Tr 748-749).
The existence of the fire, the fact that crew members of
16-M and 17-M sections were in affected areas inby the fire, the
fact that the fire sensor alarm sounded on the 16-M section, the
fact that mine management knew there was a fire, and the fact
that miners on both sections were not evacuated outby the
affected areas, establish that Consol violated its general duty
immediately to withdraw the affected miners of the 16-M and 17-M
sections to a safe location outby upon indication of the
existence of a fire and its specific duty under Part II.A.2. to
withdraw the 16-M section miners outby when the fire sensor alarm
activated. Therefore, I conclude that Consol violated the
standard as charged.
In finding the violation, I reject Consol=s contention that
extinguishing the fire negated its duty to evacuate the crews.
The program could have but did not state that any member of mine
management could halt or otherwise cancel an evacuation because a
fire had been extinguished and, as I have observed, the program
was first and last the operator=s. (See Gov. Exh. 4 V.A. (by
implication permitting mine superintendent not to evacuate entire
mine if fire is controlled.))
Moreover, I am persuaded that denying such a defense to
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Consol best effectuates the overall purpose of the plan. The
miners were aware of a fire at another mine that had rekindled
and cost miners their lives (Tr. 133,194,213,216.) They were
rightly concerned about being caught in a similar situation. As
Shriver noted, the fact that the fire was extinguished did not
mean that potential ignition sources, which could have started
another fire, had not been carried inby the immediate area of the
fire (Tr. 387). Prudence mandated that those in the affected
areas be evacuated and that areas inby the fire be thoroughly
examined before miners were permitted to return to their duties.
Finally, I recognize that Charles Bane testified he intended
the withdrawal requirements of the program to apply only when
there was an Aactive fire@ (Tr. 789). I also recognize that he
did not state as much in the program. If there were proposed
provisions of a program in dispute, the Secretary had the duty to
negotiate in good faith with the operator (Jim Walter Resources,
Inc., 9 FMSHRC at 907). But, the Secretary could not have been
expected to negotiate over things Consol intended but did not
state. If Consol now wishes its program to include a provision
allowing it to halt, or not to initiate, the evacuation of miners
if a fire is extinguished, it should include such a provision in
a revised program and submit it to MSHA for approval.
S&S AND GRAVITY
A S&S violation is described in section 104(d)(1) of the
Mine Act as a violation "of such nature as could significantly
and substantially contribute to the cause and effect of a coal or
other mine safety or health hazard" (30 C.F.R. ' 814(d)(1)). A
violation is properly designated S&S, "if, based upon the
particular facts surrounding the violation there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature. Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co, 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "S&S" as
follows:
In order to establish that a violation of
a mandatory safety standard is significant and
substantial under National Gypsum the Secretary
of Labor must prove: (1) the underlying violation
of a mandatory safety standard; (2) a discrete
safety hazard -- that is, a measure of danger to
safety contributed to be the violation, (3) a
reasonable likelihood that the hazard contributed
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to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of
a reasonably serious nature.
See also Austin Power Co. v. Secretary, 861 F.2d 99, 104-105
(5th Cir. 1988) (approving Mathies criteria).
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129 (August 1985), the Commission stated as follows:
We have explained further that the third element
of the Mathies formula Arequires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury.@ U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d)(1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial. U.S. Steel Mining Co., Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Co., Inc.,
6 FMSHRC 1573,1574-75 (July 1984).
The question of whether any particular violation is S&S must
be based on the particular facts surrounding the violation
(Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498 (April
1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 (December
1987)). Further, any determination of the S&S nature of a
violation must be made in the context of continued normal mining
operations (National Gypsum, 3 FMSHRC 327, 329 (March 1981);
Halfway, Incorporated, 8 FMSHRC 8 (January 1986).
The Secretary has established that there was a violation of
the mandatory safety standard. Further, he has established that
the violation contributed to a discrete safety hazard. There was
a fire at the belt drive and the miners on the 16-M section and
the 17-M section were not withdrawn outby the fire. McDorman
accurately described the hazard contributed to by the failure to
withdraw the miners. There was the danger that the fire would
intensify and would block the miners escape, or that smoke or
toxic fumes from the fire would be carried inby and suffocate the
miners before they could remove themselves from danger (Tr. 515).
In addition, there was an added hazard that after the fire was
extinguished at the belt drive, no one fully examined the belt
line to determine if ignition sources had been carried inby
(Tr.387). Failing to evacuate the miners obviously contributed
to the hazard they faced.
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Thus, the Secretary proved three of the four elements
necessary to establish the S&S nature of the violation. However,
he failed to establish that there was a reasonable likelihood
that the hazard contributed to would have resulted in an injury.
The fire either was out when the miners on the 16-M and 17-M
were not withdrawn or was extinguished shortly thereafter.
Because the fire was extinguished so quickly, it was not
reasonably likely that the fire at the belt drive would have
intensified had normal mining operations continued.
Further, even if the fire was rekindled up the belt, it was
not reasonably likely that the fire would have resulted in injury
because there were heat sensors and CO monitors along the belt
that again would have detected the presence of another fire, and
made its rapid extinguishment likely. Thus any fire was likely
to be of short duration and not of major intensity.
Further, given the ventilation system, it was not reasonably
likely that the smoke and fumes would have gone to the face of
either section. McDorman agreed that the ventilation system
normally would have carried smoke and toxic fumes away from the
section and out the return (Tr. 582-583, 590). Mitchell, who
essentially concurred with McDorman, persuasively and more fully
explained that the air pressure differential between the track
entry and the belt entry made it very unlikely that smoke ever
would have traveled from the belt entry to the faces, barring a
fire of Amajor intensity@ and of up to 10 hours duration (Tr.
970, 973, 1031). (Verakis= contrary opinion (Tr. 612, 613, 614),
was undercut when he agreed the pressure differential between the
track and belt entries could have affected the ability of smoke
and fumes to move into the track entry and that he did not know
what the pressure differential was (Tr. 634-635).) Therefore, I
conclude that an examination of the particular facts surrounding
the violation of section 75.1101-23(a) precludes finding that the
violation was S&S in nature.
However, those same facts do not preclude finding the
violation was very serious. It is not incongruous for a non-S&S
violation to be serious in nature. I note Chief Administrative
Law Judge Paul Merlin=s admonition that the term AS&S@ is not
synonymous with the concept of gravity (Consolidation Coal Co.,
10 FMSHRC 1702, 1704 (December 1988)) and Administrative Law
Judge William Fauver=s careful explanation of the difference
between the two concepts (Harlan Cumberland Coal Co., 12 FMSHRC
134, 140-141 (January 1990). As Judge Fauver stated:
[Some violations] are serious because the safety
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and health standard involved is an important protection
for the miners. Important safety ... or health
standards are such, if they are routinely violated or
trivialized substantial harm would be likely at some
time, even if the likelihood that a single violation
will cause harm may be remote or even slight.... Other
mine safety ... violations are serious because they may
combine with other conditions to set the stage for a
mine accident or disaster (12 FMSHRC at 141).
To state that the standard Consol violated involved an
Aimportant protection for the miners@ is profoundly to understate
the matter. The evacuation of the miners could have meant the
difference between life and death. It was possible an ignition
source could have been carried elsewhere in the mine, and in such
a situation, Consol=s failure could have set the stage for a
major disaster. Or, to put the matter another way, all
possibility of a disaster could have been prevented if Consol had
complied with its program=s withdrawal requirements and thus with
the standard. For these reason I conclude that Consol=s failure
in this regard was very serious.
UNWARRANTABLE FAILURE AND NEGLIGENCE
Unwarrantable failure is Aaggravated conduct, constituting
more than ordinary negligence, by a miner operator in relation to
a violation of the Act@ (Emery Mining Corporation, 9 FMSHRC 1997
(December 1987)); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007
(December 1987). Unwarrantable failure is characterized by such
conduct as Areckless disregard,@ Aintentional misconduct,@
Aindifference@ or a Aserious lack of reasonable care@ (Emery 9
FMSHRC at, 2003-04). Moreover, the Commission has examined the
conduct of supervisory personnel in determining unwarrantable
failure and recognized that a heightened standard of care is
required of such individuals (See Youghiogheny 9 FMSHRC at 2010-
11; Peabody Coal Co., 14 FMSHRC 1258, 1261 (August 1992)).
I have concluded that under its approved and adopted
program, Consol had both general and specific duties immediately
to withdraw affected miners upon indication of the existence of a
fire, that is, once it knew or had reason to believe there was a
fire. Consol only could Aknow@ about the fire through its
officials, and the evidence overwhelming establishes they knew
about the fire, knew miners were affected, and in the face of
their knowledge, deliberately failed to order the miners outby.
When evaluating Consol=s knowledge, I do not attribute much
importance to Shriver=s statement that he did not learn during
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his investigation that management personnel were aware the fire
system alarm had been activated. Nor do I find compelling
Welch=s testimony that he did not know whether or not a fire
sensor system alarm activated (Tr. 414, 826). Whether or not
management personnel, including Welch, actually knew that the
alarm went off, they knew through other means of the existence of
the fire.
For example, Welch knew of the fire because Steward told him
as much (Tr. 815). Once he knew, the program required that he
give priority to the withdrawal the miners. Yet, Welch did not
immediately insist the miners evacuated outby the fire. Rather,
according to his own testimony, he told Stewart to turn on the
alarm light and to send water cars to the area (Tr. 820). In
substituting his priorities for those of the approved program,
Welch, and through Welch, Consol, exhibited an intentional
disregard of the requirements of the program as it applied to the
miners on the 16-M section.
Further, before Welch was told the fire was extinguished, he
twice spoke with Griffin. He did not advise Griffin that the
miners on the 16-M section should move outby the fire (Tr. 535,
562, 817, 820). Instead, Welch concentrated his instructions to
the crew on the need to gather together. Although all of the
witness who were asked agreed it was important for the miners to
exit as a group (see, e.g., Tr. 87-88, 209, 329), Welch also had
a responsibility on behalf of Consol to instruct the crew to
evacuate outby the affected area, and he did not meet that
responsibility. His excuse, that Athe least you put on a person
in a situation like this ... the better off your are,@ is really
no excuse (Tr. 840); and his professed concern about the crew=s
physical condition and putting too much strain on the hearts of
the crew members by ordering an evacuation is simply not credible
(Tr. 823-824; 843).
Like Welch, Straface also knew of the fire. Straface found
out about it from Stewart and from the CO monitor system alarm.
Straface assumed responsibility from Stewart for coordinating
management=s response to the fire, something one might well
expect of a mine superintendent. Straface testified that he
Aassumed the worst@ and that he wanted the entire mine notified
and the full evacuation plan put into effect (Tr. 861). However,
although he knew of the fire and took full responsible for the
company=s reaction to it, and although he knew that there were
miners inby the fire, he never ordered the miners to evacuate the
affected areas.
Straface=s failure, like Welch=s, was inexcusable. As highly
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placed supervisory personnel, both had a heightened standard of
care with regard to miners who were inby the fire. By failing to
order the miners to leave the affected area, they, and therefore
Consol, exhibited a serious lack of reasonable care toward the
miners and unwarrantably failed to comply with the adopted and
proved program.
Unwarrantable failure likewise was exhibited toward the
miners on the 17-M section. Straface clearly knew that there
were miners on the 17-M section, yet he did not inquire whether
they were evacuated. Further, day shift foreman Sweeter, who was
outby the face of the 17-M section knew of the fire, yet did not
order, or even discuss, their evacuation (Tr. 736, 748-750). In
view of the program=s withdrawal requirements and the fundamental
importance of the requirements to miners= safety, these lapses
represented more than ordinary negligence.
Virtually all of the Consol personnel who testified,
attempted to excuse their failure to comply by asserting there
was a policy at the mine that required an ongoing fire for miners
to evacuate, (Tr. 709-710, 711-712, 790). I have rejected this
excuse, and given the fact that the program does not address this
Apolicy@ and given the program=s many references to withdrawal
when a fire is signaled or confirmed, I conclude that this is not
a situation where Consol exhibited a reasonable, good faith
belief it was in compliance with its program, and hence did not
unwarrantably fail to comply (see Southern Ohio Coal Co., 13
FMSHRC 912, 919 (June 1991), citing Utah Power and Light Co., 12
FMSHRC 965, 972 (May 1990). In other words, Consol did not show
that it believed leaving the crew in the affected area was the
Asafest method of comply[ing]@ with the mandate that they be
removed (Southern Ohio Coal Co.,13 FMSHRC at 919).
Finally, because unwarrantable failure is more than ordinary
negligence, in unwarrantably failing to meet its obligations
under section 75.1101-23(a), Consol acted negligently as well.
HISTORY OF PREVIOUS VIOLATIONS
A computer printout of the assessed violations at the
Blacksville No. 2 Mine for the 24 months prior to the date of the
subject violation indicates that a total of 907 violations were
cited and that one was a violation of section 75.1101-23 (Gov.
Exh. 1). While the total number of violations is large, the
number of violations of the standard at issue is small. The
Secretary did not argue that the history of previous violations
was such as to increase any penalty otherwise assessed, and I
conclude that it should not (Tr. 658-661). However, because the
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overall number of previous violations is large, I also conclude
that the history is not such as to decrease any penalty otherwise
assessed.
SIZE
The parties stipulated that Consol is a large operator (Tr.
12). Accordingly, the penalty assessed should be commensurate
with its size.
ABILITY TO CONTINUE IN BUSINESS
Consol did not argue that the amount of any penalty assessed
would adversely effect its ability to continue in business, and I
conclude that it will not.
GOOD FAITH ABATEMENT
The violation was abated when the provisions of the approved
and adopted program were discussed with all of the foremen and
miners (Gov. Exh 6a). In the context of the violation, the
discussion constituted good faith abatement.
CIVIL PENALTY ASSESSMENT
The Secretary proposed a civil penalty of $5,000 for the
alleged violation. Having considered the statutory civil penalty
criteria, and in view of the fact that the violation was not S&S
but was nonetheless very serious and was caused by Consol=s
unwarrantable failure to comply, I assess a civil penalty of
$4,000.
INDIVIDUAL CIVIL PENALTIES
DOCKET NO. WEVA 94-366
ORDER NO. DATE 30 C.F.R. PROPOSED PENALTY
3118640 3/17/93 75.1101-23 $4,500
The Secretary alleged that McLaughlin, as assistant mine
superintendent, was aware of the requirements of the program and
that a fire occurred, yet failed to withdraw the affected
miners. However, after considering the testimony offered at the
hearing, the Secretary moved to dismiss the section 110(c)
allegations against McLaughlin. The Secretary stated:
Although McLaughlin did not insure that miners
were withdrawn from section 16-M outby the fire, the
evidence adduced at trial is insubstantial to indicate
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that ... McLaughlin participated in or was in a
position to know of ... Welch=s order to the 16-M
section crew to stay on the section after the fire had
been identified. Thus, the evidence adduced at trial
indicates that ... McLaughlin had little reason to know
whether or not the MSHA approved mine an evacuation
plan had been violated (Motion to Dismiss 2-3).
McLaughlin and Consol did not oppose the motion.
The case is the Secretary=s to bring and the Secretary=s to
prosecute. I do not question the Secretary=s judgement in this
regard. Indeed, I note that two of the Secretary=s key
witnesses, inspectors Shriver and McDorman, testified they found
no evidence that caused them to believe that McLaughlin knowingly
violated section 75.1101-23(a) (Tr. 507, 587).
The motion is GRANTED.
DOCKET NO. WEVA 94-368
ORDER NO. DATE 30 C.F.R. PROPOSED PENALTY
3118640 3/17/93 75.1101-23 $5,000
The Secretary alleged that Straface, as mine superintendent,
was aware of the requirements of the program and that the fire
occurred, yet failed to withdraw the affected miners.
KNOWING VIOLATION
The Commission has stated the meaning of Aknowingly@ as used
in section 110(c)of the Act as follows:
A[K]nowingly@ ... does not have any
meaning of bad faith or evil purpose or
criminal intent. Its meaning is rather that
used in contract law, where it means knowing
or having reason to know. A person has
reason to know when he has such information
as would lead a person exercising reasonable
care to acquire knowledge of the fact in
question or to infer its existence.
92 F. Supp. at 780. We believe this interpretation is
consistent with both the statutory language and the
remedial intent of the ... Act. If a person in a
position to protect employee safety and health fails to
act on the basis of information that gives him
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knowledge or reason to know of the existence of a
violative condition, he has acted knowingly and in a
manner contrary to the remedial nature of the statute
(Kenny Richardson, 3 FMSHRC 8, 16 (January 1981),
aff=d, 689 F.2d 623 (6th Cir. 1982).) (quoting U.S. v.
Sweet Briar, Inc.,92 F. Supp. 777 (W.D.S.C. 1950)).
In addition, the Commission has held that to violate section
110(c), the corporate agent=s conduct must be Aaggravated@,
i.e., it must involve more than ordinary negligence.
Wyoming Fuel Co., 16 FMSHRC 1618, 1630 (August 1994); Beth
Energy Mines, Inc., 14 FMSHRC 1232, 1245 (August 1992).
Welch=s testimony establishes that before the fire was
extinguished, Straface knew of the fire, called Welch and
inquired what was being done about it.
Judge: [P]lease tell me when the conversation with ...
Straface occurred in the chronology of the telephone
conversations that you=ve had around this [fire]
incident?
Welch: [T]he lights had already went off and I had
called ... Stewart and talked to him. Stewart was
lining up motors to move his water cars and everything
getting into position. And sometime in that period,...
Straface called and asked what was going on.
Judge: He called you directly?
Welch: Yes, sir. But he had already talked to the
dispatcher.
* * *
Judge: And at any point during the conversation, did
... Straface ask you what the problem was on the
section?
Welch: No, sir, he knew what the problem was ... .
Judge: He knew there was a fire?
Welch: Yes, sir. (Tr.857-858)
Welch=s testimony was thoroughly persuasive, and indeed, Straface
confirmed that he first heard of the fire from Stewart (Tr. 860).
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Straface=s position is that upon learning of the fire he
requested that the entire mine be notified of the fire and that
he wanted a full evacuation plan of the mine to be implemented
(Tr. 861-863). He also asked whether or not water cars were
being brought to the scene (Tr. 863, 890). I take Straface at
his word. I also accept as fact that Straface did not
specifically instruct anyone concerning the evacuation of any
section (Tr. 889), that he overheard Welch tell the miners to get
together and that he did not interrupt or try to speak with the
crew to advise them that once they were together they should
evacuate (Tr. 980). Straface simply assumed that they would
leave the section (Tr. 980). I further accept as a fact that
Welch told Straface that he and Stewart Ahad things under
control@, that they were Ataking care of the problem@, and that
Straface assumed this was true (Tr. 849).
I find, however, that Straface=s assumptions were not enough
to relieve Straface of personal liability. Straface was the
superintendent. As Straface recognized, he was responsible for
all that went on in the mine. (AI was in charge of the coal
mine. I would be ultimately responsible for the results of the
incident and if it was going to be done right or wrong, I wanted
to ... [know] about it, I=d make the decision@ (Tr. 876).)
Despite his assertion that he wanted to know the facts so he
could Amake the decision@, Straface did not take the initiative
required. He failed to make the critical and necessary inquiries
regarding whether or not the crews had left the sections.
Consequently, he did not intervene to make certain they did. As
the superintendent, Straface had an especially high standard of
care to the company for whom he worked and to the miners who
worked for him. That standard meant he was responsible
ultimately to make certain there was full compliance with the
program. Straface totally failed to meet the standard. In view
of the potential dangers presented by the situation -- dangers
that fortunately were not realized -- Straface=s lack of a
proactive response to the fire and his passive monitoring of the
responses of others represented aggravated conduct--or put more
accurately, represented an aggravated lack of conduct--and lead
to his knowing violation of the cited standard.
This is not to say that Straface intentionally disregarded
the program. However, an intentional violation is not necessary
to establish a Aknowing@ violation. It is enough that prior to
being advised the fire was out, Straface knew that there was a
fire, knew miners were inby the fire yet took no action to make
certain the miners were withdrawn (Kenny Richardson, 3 FMSHRC at
16).)
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In addition, after Straface was informed the fire was
extinguished, he heard Welch instruct the crew to stay where they
were. He did not correct Welch because he believed Welch gave
the crew the right instruction (Tr. 867, 895-896). Straface was
wrong, and his high duty of care extended to a correct
understanding and implementation of the program. The
requirements of the program were not murky, convoluted, or
ambiguous with regard to withdrawal in the event of a fire. The
program did not contain a provision that withdrawal need not be
carried out if the fire was extinguished. By failing to make
certain the program was complied with as written, Straface
exhibited more than an ordinary disregard of the care he owned
the company and the miners.
I therefore conclude that Straface knowingly violated
section 75.1101-23(a) and is personally liable pursuant to
section 110(c) of the Act.
CIVIL PENALTY ASSESSMENT
This was a very serious violation, and Straface exhibited
more than ordinary negligence in failing to insure the affected
miners were withdrawn as required. However, the Secretary
proposed that both Straface and Consol pay the same penalty for
violating section 75.1101-23(a). I find the proposal totally
incongruous. Straface is an individual, Consol is a large
company. I have assessed Consol a penalty of $4,000. I conclude
that Straface should pay a civil penalty of $500. In reaching
this conclusion, I note there is no suggestion Straface has a
history of knowing violations of the Act and regulations.
DOCKET NO.WEVA 94-384
ORDER NO. DATE 30 C.F.R. PROPOSED PENALTY
3118640 3/17/93 75.1101-23 $3,500
The Secretary alleged that Welch, as mine foreman, was aware
of the requirements of the program and that a fire occurred, yet
failed to withdraw the affected miners.
KNOWING VIOLATION
Welch knew of the fire, and of the fact that the affected
miners were not evacuated outby the affected area. He twice
instructed the miners to gather and to call him back once they
were assembled (Tr. 817, 820), yet Welch said nothing to the
miners about evacuating outby the affected area, because, as he
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stated, Athe least you put on a person in a situation like this
... the better off you are@ (Tr. 840).
I conclude that Welch knowingly violated the standard when
in the face of certain knowledge of a fire he failed to insure
that there was compliance with the general requirement of the
program that all miners inby the fire be evacuated. Moreover,
when Welch learned the fire was extinguished and he purposefully
told the miners to stay on the section, he also knowingly
violated the program. The program did not contain a provision
allowing the withdrawal of miners to be halted or canceled if the
fire was extinguished.
Welch, as mine foreman, had almost as high a duty of care to
his employer and to those who worked for him as did Straface.
Welch=s failure to make certain the program was enforced was more
than ordinary negligence. As I have found with regard to
Straface, the wording of the program was not obscure, and it was
not for Welch to imply into the program preconditions to
evacuation the program did not state. I cannot find that Welch
had a reasonable belief that failing to make certain the miners
left the affected area was permitted under the program.
Further, in the face of the potential danger to the miners,
dangers that included the possibility that ignition sources could
have been carried inby prior to the fire being extinguished, his
excuses for failing to insure withdrawal -- his reluctance Ato
put too much@ on the crew and his fears that evacuation would be
a physical strain -- were patently unconvincing (Tr. 840, 823-
824, 843).
I therefore conclude that Welch knowingly violated Section
75.1101-23(a) and is personally liable pursuant to section
110(c)of the Act.
CIVIL PENALTY ASSESSMENT
This was a very serious violation, and Welch exhibited more
than ordinary negligence in failing to insure the affected miners
were withdrawn outby the affected areas. The Secretary proposed
that Welch pay a civil penalty of $3,500. As with the proposal
for Straface, I find it incongruous that the Secretary proposed
Consol pay a penalty of $5,000 and that the individual mine
foreman pay a penalty of $3,500.
While Welch knowingly violated the standard, and while his
duty of care was high, it was not quite as high as the
superintendent=s. Consequently, I conclude that Welch should pay
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a civil penalty of $400. In reaching this conclusion, I note
that there is no suggestion that Welch has a history of knowing
violations of the Act and regulations.
SETTLED VIOLATIONS
DOCKET NO. WEVA 94-57
ORDER NO. DATE 30 C.F.R. PROPOSED PENALTY SETTLEMENT
3122444 4/22/93 75.400 $5,000 $4,000
(The parties agreed for the purposes of litigation
efficiency to reduce the penalty by $1,000. The findings set
forth in the order remain the same (Tr. 1053).)
ORDER NO. DATE 30 C.F.R. PROPOSED PENALTY SETTLEMENT
3122447 4/26/93 75.370(a)(1) $5,000 $2,000
(The Secretary agreed to modify the negligence finding from
high to moderate and to modify the order to a citation issued
pursuant to section 104(a) of the Act (Tr. 1050-1051).)
ORDER NO. DATE 30 C.F.R. PROPOSED PENALTY SETTLEMENT
3122415 5/19/93 75.360(g) $9,500 $0
(The Secretary stated that after taking deposition testimony
and reviewing further information regarding the allegations, he
concluded that there was insufficient evidence to establish the
alleged violation. The Secretary moved to vacate the order and
the motion was granted (Tr. 1051-1052).)
Each of the settlements was approved on the record. Because
I continue to believe the settlements are reasonable and in the
public interest, the approvals are CONFIRMED.
ORDER
DOCKET NO. WEVA 94-57
ORDER NO. DATE 30 C.F.R.
3118640 3/17/93 75.1101-23(a)
The Secretary is ORDERED to delete the S&S finding and to
modify the order accordingly. Consol is ORDERED to pay a civil
penalty of $4,000 within 30 days of the date of this decision.
ORDER NO. DATE 30 C.F.R. PROPOSED PENALTY SETTLEMENT
3122444 4/22/93 75.400 $5,000 $4,000
Consol is ORDERED to pay a civil penalty of $4,000 within 30
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days of the date of this decision.
ORDER NO. DATE 30 C.F.R. PROPOSED PENALTY SETTLEMENT
3122447 4/26/93 75.370(a)(1) $5,000 $2,000
The Secretary is ORDERED to modify the negligence finding
from high to moderate and to modify the order to a citation
issued pursuant to section 104(a) of the Act. Consol is ORDERED
to pay a civil penalty of $2,000 within 30 days of the date of
this decision.
ORDER NO. DATE 30 C.F.R. PROPOSED PENALTY
3122415 5/19/93 75.360(g) $9,500
The Secretary is ORDERED to vacate the order.
DOCKET NO. WEVA 94-366
ORDER NO. DATE 30 C.F.R. PROPOSED PENALTY
3118640 3/17/93 75.1101-23 $4,500
Docket No. WEVA 94-366 is DISMISSED.
DOCKET NO.WEVA 94-368
ASSESSED
ORDER NO. DATE 30 C.F.R. PROPOSED PENALTY
PENALTY 3118640 3/17/93 75.1101-23 $5,000
$500
Straface is ORDERED to pay a civil penalty of $500 within 30
days of the date of this decision.
DOCKET NO.WEVA 94-384
PROPOSED ASSESSED
ORDER NO. DATE 30 C.F.R. PENALTY
PENALTY
3118640 3/17/93 75.1101-23 $3,500 $400
Welch is ORDERED to pay a civil penalty of $400 within
30 days of the date of this decision.
Upon receipt of payments and modification and vacation of
the orders, Docket Nos. WEVA 94-57, WEVA 94-368, WEVA 94-384 are
DISMISSED.
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David F. Barbour
Administrative Law Judge
Distribution:
James B. Crawford, Esq., Office of the Solicitor, U.S. Dept.
of Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203
(Certified Mail)
Elizabeth S. Chamberlin, Esq., Consol Inc., 1800 Washington Road,
Pittsburgh, PA 15241 (Certified Mail)
Stephen D. Williams, Esq., Steptoe & Johnson, 6th Floor, P.O. Box
2190, Bank One Center, Clarksburg, WV 26302 (Certified Mail)
nt
53
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This decision wasn't the final word: the Commission reviewed the case, and its decision is the one that controls. Ezel starts from the controlling decision and answers your specific situation under current law, with citations.
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