(412) 644-5754
Date: APRIL 22, 1994
Case No: 93-MSA-4
In the Matter of
CONSOLIDATION COAL COMPANY,
LOVERIDGE NO. 22 MINE,
Petitioner
Petition for Modification
Appearances:
David J. Hardy, Esq.
For the Petitioner
Edward H. Fitch, Esq.
For the Respondent
Before: THOMAS M. BURKE
Administrative Law Judge
DECISION AND ORDER GRANTING PETITION
FOR MODIFICATION
This is a proceeding under section 101(c) of the Federal
Mine Safety and Health Act of 1977, (hereinafter "Mine Act") for
modification of the application of the mandatory safety standards
of 30 C.F.R. §75.364(b)(2) as pertains to the Consolidation
Coal Company's Loveridge No. 22 Mine, in Monongalia County, West
Virginia.
PROCEDURAL HISTORY
This proceeding commenced on July 31, 1992 with the filing
by Consolidation Coal Company ("Consol") of a petition for
modification with the Administrator of Coal Mine Safety and
Health Administration ("MSHA") pursuant to §101(c) of the
Act and 30 C.F.R. §§44.10 and 44.11. The petition
requested modification of the application of 30 C.F.R.
§75.364(b)(2)[1] in the Harvey Run area of the Loveridge
No. 22 Mine. The petition alleged that compliance with the
provisions of §75.364(b)(2) would result in a diminution of
safety to miners, whereas the proposed alternate
[PAGE 2]
method described therein would at all times afford at least the
same measure of protection to all miners as would be provided by
§75.364(b)(2).
Section 75.364(b)(2) requires that a certified person make a
weekly examination for hazardous conditions in each air course in
its entirety. Consol contends in its petition that the
application of §75.364(b)(2) in the Harvey Run area of the
mine would expose mine examiners and miners to many hazards
resulting from the deteriorating conditions of the return
including numerous major roof falls, other blockages, and
impassible conditions of entries. Consol proposes as an
alternative method of examining for hazardous conditions a
requirement of weekly air and methane checks at four designated
checkpoints in the Harvey Run section and the immediate
investigation of changes in readings that exceed the last reading
by 10%.
MSHA initiated an investigation into the merits of the
petition as required by §101(c) and 30 C.F.R.
§44.13(a). The investigation was conducted by Thomas C.
Hlavsa, MSHA Mining Engineer and ventilation specialist, and
Frank Bowers, MSHA Coal Mine Inspector. They inspected the
Harvey Run area of the mine on August 31, 1992, accompanied by
Donald Glover, Safety Supervisor for Consol, and Charlie Melton,
identified in the investigation report as "representative of
miners."
Subsequently, Hlavsa and Bowers prepared a report responding
to Consol's petition in light of their investigation. Ronald L.
Keaton, MSHA District Manager and Edwin P. Brady, Chief of
Engineering Services for MSHA's Coal District 3, concurred in the
findings of the report. The report agreed with Consol that
compliance with the regulation would result in a diminution of
safety to miners, and found that the alternative method proposed
by Consol would provide at least the same measure of safety as
the regulation if revised to include seven "stipulations," one of
which required that tests for methane, oxygen deficiency, and the
quantity of air be determined weekly by a certified person at
each monitoring station.
On April 6, 1993 a Proposed Decision and Order was issued by
Robert A. Elam, Deputy Administrator for Coal Mine Safety and
Health. The Proposed Decision and Order found that application
of §75.364(b)(2) at the Harvey Run area would result in a
diminution of safety, and ordered that the petition for
modification be granted, conditioned upon compliance with some
nine terms. The Proposed Decision and Order differed from
Consol's petition in that it increased the frequency of
[PAGE 3]
monitoring the check points from weekly to daily.
Consol appealed the Proposed Decision and Order on April 23,
1993, contesting only that provision which requires daily rather
than weekly evaluations of air quality and quantity at the
monitoring stations. A hearing on the appeal was conducted in
Morgantown, West Virginia, on November 4, 1993. Post-hearing
briefs were submitted by Consol and the Administrator on February
14, 1994 and March 7, 1994, respectively, and a reply brief was
received from Consol on March 11, 1994.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I
Consol owns and operates a coal mine in Monongalia
County, West Virginia known as the Loveridge No. 22 Mine. The
mine was opened in 1956. It operates three shifts a minimum of
five days a week, and employs approximately 390 miners. The mine
has two portals, the Sugar Run portal, which is the main portal,
and the Miracle Run portal. It is ventilated by five air shafts:
Sugar Run, Harvey Run bleeder shaft, Harvey Run, Miracle Run and
St. Leo.
The subject of the petition for modification are the two
Harvey Run return air courses that ventilate air into the Harvey
Run air shaft. The area was developed and mined in the late
1960's. It is inactive and is not near any active areas. Many
of the entries which make up these air courses have been
inaccessible since 1985 or 1986 because of roof falls, cave-ins
and a general deterioration of the roof and pillars.
Nevertheless, the Harvey Run area entries have served as air
courses since they were developed and thus are governed by
§75.364(b)(2).[2]
Section 75.364(b)(2) applied literally at the Harvey Run
return air courses requires that a certified miner walk the
return air courses in their entirety once a week. Because of the
dangers to miners attempting to traverse the area, check points
were established in the mid 1980s to monitor the ventilation.
The check points were monitored once a week.[3]
In April, 1992, Frank Bowers, an MSHA inspector, and Daniel
Kuhn, the acting safety supervisor of the Loveridge No. 22 Mine,
walked the Harvey Run returns in an attempt to map out a safe
route that could be walked by a miner. Kuhn testified that they
[PAGE 4]
did some "zig-zagging," but ran into water making further passage
impractical. They then established checkpoints to take air,
oxygen and methane readings, and recorded them on the map. [4]
Because the Harvey Run air courses could not be walked, MSHA
issued a citation for violation of §75.364(b)(2).
Consequently, Consol petitioned for the modification of
application of §75.364(b)(2) at Harvey Run, which is the
subject of these proceedings. The modification requests that
Consol be permitted to monitor the check points rather than
exposing miners to the hazards of travel through the returns.
Consol's petition for modification alleges that complying
with §75.364(b)(2) at the Harvey Run area would diminish
safety at the mine. The petition describes the area as
containing numerous major roof falls, other blockages and
impassible conditions of entries, and asserted that a large
amount of timbers, great expenditures of materials and man hours
would be required to bring the roof support into compliance with
current mandatory standards, and that installation of such
timbers would require miners to carry timbers for long distances,
thus unnecessarily subjecting those miners to strains, sprains
and other injuries.
The petition reasons that as a result of such falls and
other hazards, weekly examinations of the specified air courses
would jeopardize the safety and well-being of persons traveling
the area by subjecting the persons to extremely hazardous
conditions and great danger, and that attempts to rehabilitate
this area would require exorbitant expenditures of man hours and
money.
30 C.F.R. §44.14 requires MSHA to initiate an
investigation into the merits of the modification petition. The
investigation was conducted by Bowers and Thomas C. Hlavsa, MSHA
Mining Engineer and ventilation specialist. They inspected the
Harvey Run area of the mine on August 31, 1992, accompanied by
Donald Glover, Safety Supervisor for Consol, and Charlie Melton,
identified in the investigation report as a "representative of
miners." The investigation culminated in a report by Hlavsa and
Bowers. Its findings were concurred in by Ronald L. Keaton, MSHA
District Manager and Edwin P. Brady, Chief of Engineering
Services for MSHA's District 3 Office. The report agreed with
Consol that compliance with §75.364(b)(2) at Harvey Run
would result in a diminution of safety to miners, and found that
the alternative method proposed by Consol would provide at least
the
[PAGE 5]
same measure of safety as the regulation if revised to include
seven "stipulations," one of which required that tests for
methane, oxygen deficiency, and the quantity of air be monitored
weekly by a certified person at each check point.
The Administrator issued its response to Consol's Petition
for Modification on April 6, 1993. In a Proposed Decision and
Order, the Administrator approved the use of monitoring stations
as a modification of §75.364(b)(2) in accordance with
Consol's plan. The Administrator, however, added several
requirements, one of which mandates that Consol examine the
approved check points on a daily basis, rather than on a weekly
basis, as requested by the petition.
Consol disagrees with the requirement that examinations be
conducted daily and prays that the alternative method set forth
in its Petition be granted. Consol contends that it has met the
burden imposed by §101(c) of the Act and 30 C.F.R.
§44.4(a) by proposing an alternate method which will at all
times guarantee no less than the same measure of protection to
miners as would be afforded by the mandatory standard.
II
Petitions for modifications are governed by §101(c) of
the Act. Section 101(c) provides in pertinent part:
Upon petition by the operator or the
representative of miners, the Secretary
may modify the application of any
mandatory safety standard to a coal or
other mine if the Secretary determines
that an alternative method of achieving
the result of such standard exists which
will at all times guarantee no less than
the same measure of protection afforded
the miners of such mine by such standard,
or that the application of such standard
to such mine will result in a diminution
of safety to the miners in such mine....
30 C.F.R. §44.4 is the regulation implementing
§101(c). It provides:
[PAGE 6]
(a) A petition for modification of
application of a mandatory safety
standard may be granted upon a
determination that--
(1) An alternative method of achieving
the result of the standard exists that
will at all times guarantee no less
than the same protection afforded by
the standard, or
(2) Application of the standard will
result in a diminution of safety to
the miners.
Consol, as a party seeking a modification of a mandatory
safety standard, has the burden of proof by a preponderance of
the evidence. 30 C.F.R. §44.30. Consol must show that its
proposed weekly examinations of the aircourse monitoring stations
would achieve the same level of protection afforded the miners as
the mandatory safety standard of §75.364(b)(2), that is, a
weekly examination of the entire aircourses by walking.
In International Union, United Mine Workers of America v.
FMSHA, 920 F.2d 960, (D.C.Cir. 1990) ("Emerald II")
the court approved the Assistant Secretary's two step analysis
for determining if a petition for modification satisfies the
requirements of §101(c) and §44.4. The first step,
aimed at meeting §101(c)'s requirement that the alternative
achieve the result of the original standard, involves a
determination of whether the modification promotes the specific
safety goals of the original standard with roughly comparable
success. The second step, aimed at meeting §101(c)'s
requirement that the alternative guarantee the same measure of
protection as the original standard, involves a determination of
whether the modification achieves a net gain in mine safety (or
at least equivalence), taking all effects into account.
Id. at 963.
The first step of the court's analysis in Emerald IIis clearly met by Consol's alternate plan. The system of
monitoring checkpoints for ventilation promotes the same safety
goal as requiring a certified miner to travel and examine entries
of the intake and return air courses in their entirety. Both are
intended to promote good ventilation, measure the volume of air
[PAGE 7]
and rate of methane, as well as identify hazardous conditions
that could effect ventilation. Moreover, the monitoring
checkpoints alternative has the advantage of not subjecting the
miner to the hazards presented by traveling through the
deteriorating Harvey Run returns.
At issue is the second step of the analysis. Consol
contends that the Administrator's decision to reject Consol's
alternate plan and require daily examination of the checkpoints
is arbitrary and capricious because Consol had demonstrated that
its alternate plan achieves mine safety at least equivalent to
the regulatory standard.
Consol presented testimony from the general superintendent
of the mine and the foreman of the Harvey Run area to show the
effect of weekly monitoring on overall mine safety.
Robert Omear has been the general superintendent of the
Loveridge No. 22 Mine since 1982. His duties include being the
chief health and safety officer. He is responsible for the
health and safety of all the employees at the mine. He testified
that the weekly monitoring of the check points at the Harvey Run
area is as safe, if not safer, than weekly walking the air
courses in their entirety. He opined that daily monitoring does
not add anything to the safety of the Loveridge No. 22 Mine in
the Harvey Run area and, in fact, likely has a negative effect on
safety because it removes the examining miner from other jobs
that are more important to health and safety.
Omear tenaciously considers weekly monitoring to be
unnecessary. He testified that it can take four to five hours
depending on traffic for a miner to visit all four checkpoints in
the Harvey Run area, and its effect is an unnecessary diversion
of the time of persons who typically are certified miners
responsible for the safety of workers. "And him being taken away
from his employees that he is in charge of, and them working
without supervision, to me is a problem...To me, that diminishes
safety when you are taking qualified people whose job it is to
look after the health and safety of the employees, and send them
up there to do something that is unnecessary."[5]
Omear was asked on cross-examination about the
reasonableness of employing additional people to monitor the
checkpoints. Omear replied: "... you hire three more people and
put them up there to do work that is unnecessary. If I could
hire three more people, I have a whole lot of things that I would
rather be doing with them that is more important to the health
[PAGE 8]
and safety to miners, a whole lot of things."[6]
The thrust of Omear's testimony is that the daily monitoring
of checkpoints is redundant to other instrumentation in the mine
that is intended to guard against or detect conditions that could
effect ventilation, such as water accumulation, crushed out
stoppings, and rock fall.
Water accumulation in an entry could effect ventilation by
cutting off air flow. Omear testified that there is little or no
potential for that occurring at Harvey Run. He explained that
unusual water accumulation, which would typically be caused by a
broken line, would be detected by a pump located at a sump at
Harvey Run, since the pump would operate for a longer than normal
period of time if water started to accumulate. The pump is
checked daily and the mine foreman is notified if the pump runs
more hours than usual. He also testified that the haulage road
is at a lower grade than the Harvey Run area, and thus water
would flow toward the haulage road and be noticed before it rose
to a significant level.
Stoppings are walls constructed out of six inch concrete
blocks. Pressure may cause them to become crushed or fragmented
at either their top or bottom. A crushed out stopping could
effect ventilation by changing direction of air flow or causing
the fans to attempt to pull a greater volume of air. Omear
testified that the effect of a crushed out stopping would be
discernible by a significantly lower water gauge reading at the
Harvey Run fan, which is checked daily, or by the fire boss as
his duties include checking for change of air direction every
eight hours. Omear also testified that a crushed out stopping
would not cause a dangerous situation whether there is daily or
weekly monitoring of checkpoints. He explained that the
condition would be recognized within twenty four hours of
occurrence by the fan monitor or within eight hours by the
fireboss. It would be corrected by construction of a temporary
stopping initially and later a permanent one.[7]
Omear opined that a rock fall that blocked an entry in the
Harvey Run area could not significantly effect ventilation
because the air course returns are made up of five entries. A
blockage of one entry still allows sufficient ventilation through
the other four entries. Omear was asked if a rock fall in a
return would impede safety from a ventilation standpoint. Omear
answered no, and explained:
It would not interrupt ventilation. It would not block
[PAGE 9]
any escape route. It would not do nothing. It is just a fall.
If you walked it every week and you saw places fall in, there
would not be anything you could do about it anyway, but find
another way around.[8]
Kurt Helms is the mine foreman at the Harvey Run area. He
testified that his first duty as a mine foreman is safeguarding
the health and safety of the miners. He is also the chief
ventilation officer of the mine. Helms' testimony explains the
conditions unique to the Harvey Run area which allows weekly
monitoring checks to afford the same level of protection as
traveling the entire air course weekly. He observed that some
areas of the mine may require daily checkpoint monitoring, but
that the conditions requiring same do not exist at Harvey Run.[9]
Helms testified that the checkpoints monitor for percent of
methane, oxygen and volume of air. He explained that methane is
released during the extraction of coal but that the air received
at the Harvey Run checkpoints is characterized as "practically
fresh air," because the air does not flow through or over a coal
extraction process or active gob area.[10] He testified that
the only potential for release of methane at Harvey Run is the
flow of the air over the seals, as methane can accumulate in the
abandoned areas behind the seals.[11] However, He does not
believe that the potential for release of methane at the seals
necessitates daily monitoring at the check point. Each seal is
checked by a miner every seven days to ensure its integrity, and,
at the same time, the air at the seal is tested to determine the
percentage of methane, and volume of air flow.[12] Also,
because it is assumed that the seals will leak some methane, they
are continuously ventilated by the Harvey Run fan. Methane and
oxygen readings are taken at the Harvey Run fan daily.
Significant levels of methane will be detected by the readings at
the fan. Helms testified that roof falls could release methane
but that the normal air flow is sufficient to dilute any methane
released from a roof fall.[13]
Helms also corroborated Omear's testimony that water
accumulations, crushed out stoppings and roof falls in the Harvey
Run area would not effect ventilation. He explained that water
accumulation or roof falls would be unlikely to restrict air
flow. Water will not fill an entry to the roof where, as here,
the grade falls away from the entry, and, since the air courses
are made up of five entries, a roof fall totally obstructing one
entry would have no effect on air flow through the other four.
Moreover, Helms testified, conditions such as roof falls which
restrict air flow, and conditions such as crushed-out stoppings
which increase air flow, would be detected by the daily water
[PAGE 10]
pressure gauge readings at the Harvey Run fan.[14]
In sum, Helms testified that the conditions of the Harvey
Run area ensure that weekly monitoring of check points will
provide a measure of safety equivalent to traveling of the entire
air courses every seven days. The conditions he referenced
include no active extraction of coal, no active gob area, five
entry air course system, seals that leak no or minimal methane,
weekly monitoring of the integrity and methane release of seals,
and daily measurement of the air ventilating the Harvey Run area
for methane, oxygen and volume of air.
Frank Bowers is an MSHA coal mine inspector. He was called
on rebuttal as an adverse witness by Consol. He testified that
he recommended weekly monitoring checks be approved as providing
a level of safety equivalent to the weekly travel of the air
courses in their entirety, and that he still agrees with his
recommendation. Bowers agreed that daily checks are better than
weekly. He also pointedly suggested that hourly would be better
than daily and continuous monitoring is better than daily.[15]
It is determined that Consol has established a primafacie case. The testimony by Omear and Helms is
sufficient to support Conso1's contention that its alternate
plan, including weekly monitoring of check points, will provide a
measure of safety equivalent to traveling the entire air courses
every seven days as provided by §75.364(b)(2). Consol's
evidence compels a finding that its petition for modification
should be granted unless MSHA produces evidence to rebut.
Both parties argued the ramifications of the administrative
law judge decision in Tunnelton Mining Company v Mine Safety &
Heath Administration, Case No. 89-MSA-1 (ALJ Morin, February
12, 1991), the only adjudication to discuss modification of
§75.364(b)(2). Judge Morin held that the petitioner had not
met its burden of showing that weekly examinations of the
monitoring stations were equivalent to the weekly examinations
described in the regulation. Consol argues that Judge Morin's
decision should not be considered persuasive here because the
hazardous conditions Judge Morin referred to as potentially
effecting ventilation in the Tunnelton mine either do not exist
in the Harvey Run area or are adequately monitored. Consol
emphasizes that Judge Morin's decision was based on his finding
that the effects on ventilation of certain hazards in the non-
working areas, that is, crushed out stoppings, excessive water
accumulations, roof deteriorations and rock falls, could not be
discovered on a weekly inspection of monitoring stations as
[PAGE 11]
easily as on a walking inspection of the entire area.
As previously discussed, Omear and Helms testified that the
potential of these conditions to effect ventilation is nil, and
there is adequate monitoring to detect a problem with ventilation
at Harvet Run without the additional daily inspections.
Moreover, in Tunnelton the MSHA inspector who investigated
Tunnelton in response to its petition recommended daily
inspections and testified to why such protection was necessary.
Here, the inspector who investigated Consol's petition
recommended weekly monitoring as being equivalent to the
requirements of §75.364(b)(2).
III
In response to Consol's case, MSHA offers the testimony of
Edwin Brady, the second in command at Coal District 3 which
includes Loveridge No. 22 Mine, and Monty Christo, staff engineer
with the Division of Safety in MSHA headquarters at Arlington,
Virginia. Neither took issue with or contradicted the testimony
of Consol's witnesses.
Edwin Brady is the Chief of Engineering Services in Coal
District 3. His primary responsibility is the management of
engineering services. He also serves at times as acting district
manager. Brady concurred with the recommendations of the MSHA
coal mine inspectors that Conso1's request for an alternate plan
including weekly monitoring of checkpoints should be approved.
Brady testified that at the time he signed the report he had a
good faith belief that a weekly examination was adequate, but
that he has since changed his opinion based on a clearer
understanding of the Division of Safety's interpretation of the
requirements of the Mine Act.
Brady testified that if the petition was before him
presently, he would require daily monitoring of the check points.
His rationale appears to be that a coal mine by its nature is a
dangerous place and therefore daily examinations are always
preferable to weekly examinations. Brady testified:
A coal mine certainly is a dynamic entity. It
changes. And even though you get consistency in
readings, it always has the potential of changing on
you. Any major disaster that you go into and any
report that you want to read is a series of changing
events that nobody logically thought would happen in
[PAGE 12]
that sequence. And that is the purpose of examinations.
We are looking at a regulation that requires
weekly examinations to be physically present in order
to look for things that can happen.
...
Examinations are as critical as anything a mine
operator can do. And when we begin looking at a
regulation that requires an examination and presence to
be able to meet the requirement of the Act as the same
measure of protection, there has to be a cut on the
frequency of the method in which it is done. And based
simply on that, daily is the most logical provision
that you could put in a 305 petition.[16]
Brady does not contest the evidence offered by Consol on the
potential for hazardous conditions that could effect ventilation
to develop in Harvey Run, or the adequacy of the existing
monitoring system for detecting ventilation problems. His
opinion is not based on the particulars of this mine but on his
concern that coal mines in general are hazardous. He testified:
Every mine that you deal with has potentials for things
happening. And in the testimony, even of Consol
officials here, they believe, I am sure, as much as
they believe anything, that what they have said is very
accurate. And the potential here is probably very
slim.
But nobody, nobody in this room, can deny that it
takes any series of any events that causes a major
disaster. And there are things that happen that you
would never suspect, that you would never dream that
would happen. But there is always one loop in there
that everybody will scratch their head say I never
thought of that.[17]
Monty Lee Christo is a staff engineer with the program
operations group of the Division of Safety. The program
operations group reviews petitions for modifications. Christo
took no part in the review of this petition nor did he make any
recommendations on it as he did not transfer to the division
until after the present petition was acted upon. He agrees with
the position of the division that monitoring of the checkpoints
on a daily basis is necessary to achieve an equivalency with the
requirements of the regulation. The reason he provided for the
division's position is that the practice of MSHA is to always
require daily checkpoints on §75.364(b)(2) modification
petitions.
[PAGE 13]
IV
The court in International Union, UMWA v. MSHA, 928
F.2d 1200 (D.C. Cir. 1991) ("SOCCO") discussed the
analysis that MSHA must undertake in its application of the
second inquiry of §101(c). The court held that the
Assistant Secretary must make distinct findings on whether,
considering all the effects of the proposed alternate method,
both positive and negative, modification would achieve a net
gain, or at least equivalency, in overall mine safety.[18]
Thus, the Administrator must inquire into the net safety effect
of the proposed alternate method. Here, the Administrator made
no mine-specific findings. Rather, the Administrator relied on
his conviction that because mining is a dangerous occupation the
more examinations that are undertaken in the non-working area the
safer the mine.
Consol contends that the Administrator's action here
constitutes an abuse of discretion because his justification for
requiring daily monitoring demonstrates that he was in fact
imposing a "general requirement" on the Loveridge No. 22 Mine
without engaging in formal rule-making. See Zeigler Coal Co.
v. Kleppe, 536 F.2d 398 (D.C. Cir. 1976) and Secretary of
Labor v. Carbon County Coal Company, 7 FMSHRC 1367 (Rev.
Comm. 1985) where MSHA was prohibited from imposing general rules
applicable to all mines in mine-specific ventilation plans. In
Carbon County the court ruled:
Because we conclude that...MSHA's decision to impose
the (disputed provision) was not based upon particular
circumstances at the Carbon No. 1 Mine, but rather was
imposed as a general rule applicable to all mines, we
hold, for the reasons stated in Zeigler and enunciated
here, that MSHA's insistence upon the (disputed
provision) (was) not in accord with applicable Mine Act
procedure.[19]
MSHA agrees with Consol that the Administrator must review
the specific circumstances of each case when reviewing a petition
for modification.[20]
Consol is correct that the Administrator's action here was
not based on conditions existing at the Loveridge No. 22 Mine.
There may be instances during review of petitions for
modification where MSHA can rely on a general practice to impose
a safety requirement, but such is not a sufficient response here,
particularly in light of the testimony presented by Consol
[PAGE 14]
demonstrating that its alternate standard would not result in a
diminution of safety, and in light of the approval
recommendations by the MSHA inspectors who personally
investigated the Harvey Run area of the mine in response to the
petition and the concurrence in the recommendations by the
District Manager.
In its post-hearing brief, MSHA argues that all of the
witnesses who testified in support of the Administrator's
position assert that the requirement of achieving the same
measure of protection was achieved by daily examinations of the
aircourses in their entirety.[21] MSHA's reading of the record
is correct. However, its argument does not meet the issue. No
one would disagree that daily examinations achieve equivalency.
At issue is whether Consol met its burden of showing that weekly
examinations achieve equivalency. MSHA also argues in its brief
"...that daily examination of the monitoring stations will give
the earliest possible warning that a significant disruption to
the air flow in the air course has occurred." Initially, there
is no evidence in the record to support MSHA's argument. If MSHA
means that daily monitoring would provide earlier warning than
weekly monitoring, MSHA is by definition correct. However,
Consol's witnesses testified without contradiction that daily
monitoring of the readings at the Harvey Run fan provides warning
of a significant disruption to ventilation in the Harvey Run air
courses. Moreover, earliest possible warning is not the
determinative criteria. Otherwise, MSHA could demand continuous
monitoring at every seal. Frank Bowers, the MSHA inspector put
the argument in perspective when asked his opinion of whether
weekly examinations are sufficient. He replied that he still
agreed with his earlier recommendation that weekly was sufficient
but that:
If you ask me if I checked it daily, is that better
than weekly, I would tell you yes. I can also tell you
that if you make it every hour, it is even better than
daily. Or if you make it continuous, it is better than
daily.[22]
Again, at issue is not which frequency of monitoring, daily or
weekly, imposes the earliest possible warning but whether Consol
demonstrated equivalency with weekly monitoring at the check
points. It is determined that Consol has met its burden of
showing by a preponderance of the evidence that its alternate
plan as described in its July 27, 1992 petition for modification,
[PAGE 15]
as revised by the conditions set out in the Administrator's April
6, 1992 Proposed Decision and Order, excepting only that
condition 2 thereof require weekly monitoring, provides safety at
least equivalent to the regulatory requirement of
§75.364(b)(2).
ORDER
Pursuant to Section 101(c) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §811(c), it is ordered that
Consolidation Coal Company's Petition for Modification of the
application of 30 C.F.R. §75.364(b)(2) in the Loveridge No.
22 Mine is hereby:
GRANTED, conditioned upon compliance with all provisions of
the Petitioner's alternative method and the terms and conditions
specified by the Administrator's April 6, 1992 Proposed Decision
and Order, excepting that condition 2 thereof shall require
weekly monitoring.
____________________________
THOMAS M. BURKE
Administrative Law Judge
TMB:mr
[ENDNOTES]
[1] Consol's petition referenced 30 C.F.R. §75.305.
However, the regulations at 30 C.F.R. Part 75 dealing with
ventilation were amended and revised, effective August 16, 1992,
thirty days after the petition was filed. See 57 Fed.Reg. 20868 (May 15, 1992). At that time, the old
§75.305 became the new §75.364(b). The Administrator
treated the petition as a request to modify §75.364(b).
[2] N.T. pp. 75, 76.
[3] N.T. p.44.
[4] N.T. pp. 154-156.
[5] N.T. p.42.
[6] N.T. p. 83.
[7] N.T. pp. 39, 40.
[8] N.T. p. 44.
[9] N.T. p. 142.
[10] N.T. p. 97.
[11] N.T. pp. 125, 128, 149.
[12] N.T. p.136, 140-142.
[13] N.T. p. 148.
[14] N.T. pp. 119-122.
[15] N.T. p. 244.
[16] N.T. pp. 171, 172.
[17] N.T. p. 181.
[18] International Union, UMWA v. MSHA, 928 F.2d 1200 at
1202 (D.C. Cir. 1991) ("SOCCO").
[19] Carbon County Coal Co.supra, p. 1375.
[20] P. 5 of Administrator's Post-hearing Brief.
[21] Post-hearing Brief of Administrator, p. 9.
[22] N.T. p. 244.
