Consolidation Coal Company
Consolidation Coal Company (FMSHRC WEVA 94-57, et al.): Fire-evacuation findings and penalties decided
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This ALJ decision was superseded by the Commission's decision in the same case.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
Consolidation Coal Company and three individual mine officials were charged after a fire in the belt-drive area of the Blacksville No. 2 Mine. Judge David F. Barbour found that the company failed to follow its approved evacuation program, but deleted the significant-and-substantial finding and assessed a $4,000 penalty. The judge found that superintendent J.T. Straface and foreman Robert Welch knowingly violated the evacuation standard and assessed penalties of $500 and $400, while dismissing the case against assistant superintendent Samuel J. McLaughlin. The judge also approved settlements on three other company citations, including a $4,000 penalty, a $2,000 penalty with reduced negligence, and vacation of a third order.
Decision snapshot
- Cited standard(s): 30 C.F.R. § 75.1101-23(a), 30 C.F.R. § 75.400, 30 C.F.R. § 75.370(a)(1), 30 C.F.R. § 75.360(g)
- Outcome: The evacuation violation was affirmed without an S&S finding with a $4,000 penalty, individual penalties of $500 and $400 were assessed, one individual case was dismissed, and three settlements were approved.
- Key point: Mine evacuation procedures must be followed when a fire occurs, and supervisory responsibility can support individual liability for a knowing violation.
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 :
:
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, "knowingly" 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
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.
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
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
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 "In 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 "In 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
"probably" 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).
As Strahin interpreted Part II.A.&B., when a fire sensor
alarm went off, persons in the affected area were required to be
"immediately 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
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
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 "kind of
like kneeling down" (Tr. 131). According to Kennedy, McLaughlin
had "a 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 "burned" (Tr. 132). The bottom belt was
"blistered" and "melted" (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
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 "down 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, "[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
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
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
"hollered 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 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 "holler" 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 "to get the hell
off the phone" (Id.). Stewart was upset and would have
"punched [Straface] in the mouth" if he could, because
Straface "was 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, "[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 (Tr. 273). Ammons asked the person at the tipple to
notify the dispatcher and "whoever 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 "some 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. 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 "everything 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 "if 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, "[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 "to 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
(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
"hit" 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
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 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, "I 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 nterviewing 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 "having 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 "the
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,
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 "high."
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 "management ... 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, "[n]ot the
point sensor fire alarm, no" (Tr. 411).
Shriver described the alleged violation as "extremely
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 that the decision not to evacuate because
the fire was out was "fraught with great danger" (Tr. 387).
He explained, "[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 "hazardous 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 (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
"[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 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
"Reducing 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 "fairly 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 "at 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).
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).
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 "something 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, "and 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, "[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 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 "ongoing"
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: "[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
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, "no, 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, "the 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 "had things
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, "[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).
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 "to 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 "on
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
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 "bubbled 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
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 "hollered" 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).
McLaughlin was asked by counsel for the Secretary whether he
agreed that the fire evacuation program required "people 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 "best 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
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 200§ F but of less than 380§ 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 280§,
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 200§ (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
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 "adopt 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
"a 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 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.
("It 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 "probably" was not required to follow Part II.C.
(Tr. 84-86). On the other hand, Inspector Shriver stated
that for "all intents and purposes, the [CO monitor] system
was installed" and Consol should have followed the
requirements relating to that system (Tr. 446-448).
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
"installed 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 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 "immediately 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 embers 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 "outby the affected area" in
conformance with the program.
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
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 "active 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
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 "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d)(1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial. U.S. Steel Mining 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.
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 "major 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 "S&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
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
"important 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 "aggravated 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 "reckless disregard," "intentional misconduct,"
"indifference" or a "serious 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 "know" 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 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 "the 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 "assumed 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 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 "policy" 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 "safest 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 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 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 "knowingly" as used
in section 110(c)of the Act as follows:
"[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 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 "aggravated", 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).
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 "had things under
control", that they were "taking 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. ("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).)
Despite his assertion that he wanted to know the facts so he
could "make 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 "knowing" 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).)
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
stated, "the 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
"to 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 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
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
PROPOSED ASSESSED
ORDER NO. DATE 30 C.F.R. 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.
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
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