Consolidation Coal Company

Plain-English summary

MSHA found two personnel doors open at Consolidation Coal's Blacksville No. 2 underground coal mine while methane accumulated in the section, including a cavity with methane above the explosive range. Judge Avram Weisberger affirmed an imminent-danger withdrawal order and found that the open doors violated 30 C.F.R. § 75.333(c)(3). He also found the violation significant and substantial because reduced airflow contributed to the methane hazard and normal mining operations could have introduced ignition sources. The judge assessed a $6,000 civil penalty, finding high gravity and moderate negligence.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.333(c)(3); 30 U.S.C. § 817(a); 30 U.S.C. § 814(d)(1)
• Outcome: The imminent-danger withdrawal order was affirmed and a $6,000 civil penalty was assessed.
• Key point: Open personnel doors that reduce airflow and allow explosive methane accumulation can support an imminent-danger order and an S&S finding.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                          OFFICE OF A D M INISTRA TIV E LA W JUDGES
                                   2 SK YLINE, 10 th FLOOR
                                    5203 LEESBURG PIK E
                              FA LLS CHURCH, V IRGINIA 22041

                                    February 19, 1999

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 98-119
Petitioner : A. C. No. 46-01968-04281
v. :
: Blacksville No. 2 Mine
CONSOLIDATION COAL COMPANY, :
Respondent :

                                       DECISION

Appearances: Daniel M. Barish, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for the Secretary;
Elizabeth S. Chamberlin, Esq., Consolidation Coal Company, Pittsburgh,
Pennsylvania, for the Respondent.

Before: Judge Weisberger

Statement of the Case

    This case is before me based upon a Petition for Assessment of Civil Penalty filed by the

Secretary of Labor (Secretary) alleging a violation by Consolidation Coal Company (Consol) of
30 C.F.R. ' 75.333(c)(3).1 In addition to citing Consol for this violation, the Secretary also
issued an imminent danger order under section 107(a) of the Federal Mine Safety and Health Act
of 1977 (the Act). A hearing was held in Pittsburgh, Pennsylvania, on December 2, 1998.

   On January 25, 1999, Respondent filed a post-hearing brief. On February 12, 1999, the

Secretary filed a post-hearing brief.

Findings of Fact and Discussion

    On March 3, 1998, MSHA Inspectors William L. Sperry and Richard Lee Stefanick

inspected the 9 S longwall section at Consol=s Blacksville No. 2 underground coal mine. Francis

    / 30 C.F.R. ' 75.333(c)(3) provides as follows: A[w]hen not in use, personnel doors shall
      1

be closed.@

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    Nickler, Consol=s safety supervisor accompanied the inspectors. Upon entering the No. 4 entry

through a man-door from the No. 3 track entry, an intake air entry, methane monitors worn by the
inspectors and Nickler emitted an audible alarm indicating the presence of methane. Methane
readings taken in the belt entry at various locations between the 93 block and the 111 block
indicated methane readings between 0.8 percent and 2.2 percent. Also, in a cavity located in the
roof above the 110 block, the methane reading exceeded 5 percent. The explosive range of
methane is between 5 and 15 percent. An imminent danger withdrawal order was issued requiring
the withdrawal of the miners from the area.

    Due to the extensive presence of methane in concentrations above than 2 percent, along

with the presence in the cavity of methane in an explosive range, I find that the inspectors did not
abuse their discretion in issuing the withdrawal order. Indeed, Nickler acted with alacrity in
taking the initiative in ordering withdrawal of all of the miners.

    Upon noting the presence of methane, and the absence of air movement, Nickler and the

inspectors tried to determine the cause of the methane buildup. They were informed by Mike
Cole, a foreman, who appeared angry and visibly upset, that a man-door in a metal stopping
between the No. 3 and 4 entries had been propped open, and a man-door at the 67 block was
open. There is no dispute that these doors were open in violation of the section 75.333(c)(3),
supra, and I find that Consol violated section 75.333 (c)(3), supra.

Significant and Substantial

     A \"significant and substantial\" violation is described in section 104(d)(1) of the Mine Act

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

    In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission explained its

interpretation of the term \"significant and substantial\" as follows:

           In order to establish that a violation of a mandatory safety standard is
   significant and substantial under National Gypsum the Secretary of Labor must
   prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete
   safety hazard--that is, a measure of danger to safety--contributed to by the
   violation; (3) a reasonable likelihood that the hazard contributed to will result in
   an injury; and (4) a reasonable likelihood that the injury in question will be of a
   reasonably serious nature.




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 In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 1129 (August 1985), the

Commission stated further as follows:

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

     It is not contested that a violation of section 75.333(c)(3), supra, occurred, and that this

violation contributed to the hazard of a fire or explosion, in that it resulted in reduced air flow that
led to an accumulation of methane in an explosive range. Hence, I find that the first two elements
set forth in Mathies, supra, have been satisfied. At the time the violative condition was cited, the
section was not yet producing coal, and the belt entry at issue was deenergized. The area was
generally well rock dusted and there was not any equipment present in the belt entry that was in
such a physical condition as to constitute an actual ignition source. There is some evidence that
rail bonding was to have been performed that day in the adjacent No. 3 entry, but there is no
evidence that any torch or welding work was being performed at the time. However, as explained
by the inspectors, the presence of high voltage cable, switches, and rectifiers that could generate
sparks, constituted potential ignition sources. Also, although welding and the use of torches,
clearly ignition sources, was not being performed at the time of the violation, it is clear that a
reasonable likelihood of injury existed had normal mining operations continued i.e., the bonding of
the tracks (see, Rushton Mining Co., 11 FMSHRC 1432 (August 1989)). It is too speculatively
to find, as essentially argued by Consol, that the likelihood of an explosion would have been
minimized by the requirement of an examination prior to energizing the belt line.

    Within the above framework of evidence, and taking into an account the existence of

methane in explosive concentrations, the extent of the area in the entry where methane was found,
and the fact that there were no conditions in existence at the time of the violation that would have
prevented any further buildup of methane, I find that it has been established that the violation was
significant and substantial.

Penalty

    The inspectors testified that the violation could have resulted in a violent explosion

causing fatalities to the miners that were present in the section at issue. This testimony was not
contradicted or impeached. I thus find that the level gravity of this violation was relatively high,
especially considering the fact that it resulted in an accumulation of methane in an explosive
range.

      There is no clear evidence as to exactly how long the violative condition had been in

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existence prior to its being cited. It appears that Consol=s management did not have notice or
knowledge of the violative condition until approximately 10:00 a.m., on March 3, when the
methane detectors detected methane. In this connection, it was Nickler=s uncontracted testimony
that he reviewed the Weekly Ventilation Examination book and that the preshift and on-shift air
readings taken on March 2 and 3, were between 34,950 and 81,200. Also, according to Nickler,
the last required weekly examination of the belt prior to March 3, 1998, occurred on February 24,
1998, and the next required examination was to have been performed during the afternoon shift
on March 3. Other examinations of the belt on February 25, 26, 27, 28 and March 2 did not
contain any notations of either decreased air flow, abnormal methane readings, or open doors.
Further, according to Nickler, all miners are provided with 8 hours annual training which includes
45 minutes on ventilation. Also, new employees are provided with a copy of Consol=s safety rules
which, inter alia, contain the following language: A[d]o not damage, remove, or change any
ventilation device@ (Respondent=s Ex. 1, par. 16). Additionally, Nicker testified that he conducts
weekly safety meetings with all miners. A written statement provided to miners at such a meeting
on February 23, 1998, contains the following language2 A[k]eep all mandoors properly closed, . . .
ALL EMPLOYEES HAVE A PERSONAL RESPONSIBILITY TO MAKE CERTAIN
MANDOORS ARE KEPT CLOSED AS REQUIRED.@ According to Nickler, once he found out
that one of the doors had been propped open, he conducted an investigation and learned that three
miners had been working in the area the prior shift. He stated that he interviewed these
employees and that no one confessed to having propped the door open. Nickler indicated that
there was not any foreman in the area. According to Nickler, had he known who had left the
doors open, the person responsible A. . . would have subjected himself to strong disciplinary action
up to discharge@ (Tr. 243-244). On March 3, after the violitive conditions had been cited, Nickler
met with all miners from all shifts and told them that Aabsolutely no doors, no doors are to be left
open, no regulators are to be tampered with, and if anybody is . . . caught tampering with
ventilation controls they would be discharged@ (Tr. 246). Since none of Nickler=s above
testimony was rebutted, contradicted, or impeached, I therefore accept it. However, Consol had
been cited on three occasions, within a 2 year period prior to March 3, 1998, for having left
personnel doors open in violation of section 75.333(c)(3), supra. Thus, I find that Consol should
have been put on notice that its training and supervision may not have been adequate to
sufficiently redress this very serious problem. Taking all the above into account, I conclude that
the violation herein resulted from Consol=s moderate negligence. Considering the remaining
factor as set forth in section 110(i) of the Act, and especially considering the high level gravity as
set forth above, I find that a penalty of $6,000 is appropriate.

   2
    / Three asterisks are set forth to the left of this language. Nickler explained that these

denote areas of specific interest.

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                                       ORDER

    It is ORDERED that the section 107(a) withdrawal order be affirmed as written. It is

further ORDERED that, within 30 days from the date of this Decision, Consol pay a total civil
penalty of $6,000 for the violation found herein.

                                           Avram Weisberger
                                           Administrative Law Judge

Distribution:

Daniel M. Barish, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Suite 516, Arlington, VA 22203 (Certified Mail)

Elizabeth S. Chamberlin, Esq., Consolidation Coal Company, 1800 Washington Road, Pittsburgh,
PA 15241 (Certified Mail)

dcp

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