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[DOCID: f:consol4.wais]

 
CONSOLIDATION COAL COMPANY
November 4, 1996
WEVA 94-235-R

           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730  K  STREET  NW,  6TH  FLOOR

                      WASHINGTON,  D.C.   20006

                           November 4, 1996

CONSOLIDATION COAL COMPANY      :
                                :
                    v.          :       Docket No. WEVA 94-235-R
                                :
SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :

BEFORE:  Jordan, Chairman; Marks and Riley, Commissioners[1]

                               DECISION

BY:  Marks and Riley, Commissioners

     This contest proceeding, arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C.  801 et seq. (1994)
("Mine Act" or "Act"), raises the question of whether
Consolidation Coal Company ("Consol") violated 30 C.F.R. 
75.342(b)(2) when the warning light on its methane monitor was
not visible to a person who could deenergize the longwall.[2]
Administrative Law Judge Arthur J. Amchan determined that Consol
had not violated the standard.  16 FMSHRC 1241 (June 1994) (ALJ).
For the reasons that follow, we reverse and remand.

                                I.

                Factual and Procedural Background

     Consol operates the Robinson Run No. 95 Mine, an underground
coal mine in Harrison County, West Virginia.  On April 19, 1994,
Virgil Brown, an inspector with the Department of Labor's Mine
Safety and Health Administration ("MSHA"), traveled to the 2-D
longwall headgate to observe normal operating conditions at the
mine.  16 FMSHRC at 1241.  Methane sensors on the longwall were
connected to a methane monitor attached to a master control box
at the headgate.  Tr. 35, 163, 167-68; C. Exs. 5(c), 6(a).  The
methane monitor was set to remove power from all equipment
electrically connected to the longwall when methane was detected
at
1 percent.[3]  16 FMSHRC at 1243.  In order to reenergize the
longwall, the headgate operator manually reset the methane
monitor and master control box.  Id. at 1243-44.  In so doing,
the headgate operator would read signals on the monitor and
master control box informing him that the deenergization had been
caused by the detection of methane.  Id. at 1244.

     Inspector Brown observed that the headgate operator, Bill
Bowen, was shoveling a spill near the tailpiece of the conveyor
belt, approximately 30 feet away from the methane monitor.  Id.
at 1241-42.  The inspector stood next to him and observed that
the face of the methane monitor was not visible.  Tr. 27.
Accordingly, he issued a citation pursuant to section 104(a) of
the Act, 30 U.S.C.  814(a), alleging a violation of section
75.342(b)(2).  16 FMSHRC at 1242.

     Consol contested the citation and the matter proceeded to an
expedited hearing before Judge Amchan.  At the hearing, the
Secretary moved to modify the citation to an order issued
pursuant to section 104(d)(2) of the Act, 30 U.S.C.  814(d)(2),
adding an allegation of unwarrantable failure.  Tr. 9-10.

     The judge determined that Consol had complied with section
75.342(b)(2).  16 FMSHRC at 1245-46.  He reasoned that Consol's
method of informing the headgate operator that methane levels had
reached 1 percent "provides equivalent protection to a warning
light that is visible at all times." Id. at 1245.  The judge
noted that, because Consol declined to file a petition for
modification under section 101(c) of the Mine Act, 30 U.S.C. 
811(c),[4] he was constrained to determine whether the reference
in section 75.342(b)(2) to "warning signal device" included a
mechanism by which longwall lights are extinguished, equipment
stops, and the operator, by going to the headgate control box,
learns that the methane monitor has been tripped.  Id.  The judge
concluded that the phrase did encompass such a system, and that
his interpretation was consistent with the underlying purposes of
the Act and did not compromise miner safety.  Id. at 1245-46.  He
also noted that his interpretation was not inconsistent with the
dictionary meaning of  "device."  Id. at 1246.  Accordingly, the
judge vacated the citation.[5]  Id.

               The Secretary filed a petition for discretionary review,
challenging the judge's determination, which the Commission
granted.

                               II.

                           Disposition

     The Secretary argues that the judge erred in finding that
Consol did not violate section 75.342(b)(2).  PDR at 2.[6]  He
asserts that evidence was undisputed that the warning signal
device on the methane monitor was not visible to a person who
could deenergize the longwall.  Id. at 2, 4-5.  The Secretary
contends that the judge in effect transformed the contest
proceeding into a petition for modification proceeding, thereby
improperly circumventing the procedures set forth in section
101(c) of the Act.  Id. at 6-7.  Consol responds that the judge
properly found no violation because its methane monitoring system
satisfies the requirements and purpose of the standard by
providing a visual warning to the headgate operator through the
deenergization of equipment, extinguishing of lights on the
longwall, and the displays visible when the headgate operator
manually resets the methane monitor and master control box.  C.
Br. at 11, 14-15.  Consol further argues that it did not receive
adequate notice of the Secretary's interpretation and that the
Secretary failed to prove that its methane monitoring system was
not the kind that a reasonably prudent person would use to comply
with the standard.  Id. at 12-13.

     Section 75.342(b) provides that a methane monitor must give
a warning signal when the concentration of methane at the monitor
reaches 1 percent.  30 C.F.R.  75.342(b)(1).  The warning signal
device of the methane monitor must "be visible to a person who
can deenergize the equipment on which the monitor is mounted."
30 C.F.R. 75.342(b)(2).  As noted by the judge, "[t]hat person
must then de-energize the equipment and take steps to reduce the
methane concentration pursuant to [30 C.F.R. ] 75.323(b)."  16
FMSHRC at 1242.  Section 75.342(c) requires that the methane
monitor automatically deenergize the machine on which it is
installed at 2 percent methane.

     Here, the evidence is undisputed that the warning signal
device on Consol's methane monitor was not visible to the
headgate operator at the time of the inspection.  When Inspector
Brown stood next to the headgate operator, who was approximately
30 feet from the methane monitor, he could not see the warning
signal device.  Tr. 26-27, 52.  Inspector Brown and John Burr,
Consol's manager of electrical engineering, testified that a
headgate operator, in the course of his duties, would typically
travel approximately 30 feet in either direction of the master
control box, on which the methane monitor was installed.  Tr. 36-
37, 49-53, 158-59.  The inspector estimated that the warning
light would be visible to a person only within 15 to 20 feet of
it.  Tr. 52.  Burr also acknowledged that the methane monitor
could not be seen by the headgate operator at all times.  Tr.
203-04, 208-09.  Thus, the warning signal device of Consol's
methane monitor was not visible to a person who could deenergize
the longwall in violation of the clear requirements of section
75.342(b)(2).

     We reject Consol's argument that its methane monitoring
system provided a visible warning in compliance with the
standard.  The Secretary's regulatory scheme requires human
intervention when methane levels reach 1 percent and automatic
deenergization of equipment at 2 percent methane.  Consol has, in
effect, eliminated the requirement for human intervention,
placing complete reliance on the methane monitor's capability of
automatically deenergizing the longwall.  While Consol's reliance
on such a system may be justified, we are not the proper agency
to make that determination.  Rather, section 101(c) of the Mine
Act requires that such a determination be made by the Secretary
through the modification process.  Under that process, an
operator may petition the Secretary to modify a standard's
application on the basis 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 . . . ."
30 U.S.C.  811(c).  The Secretary must then publish notice of
such petition, conduct an investigation, provide an opportunity
for a public hearing, publish proposed findings, and issue a
decision disposing of the petition (see n.4).  We are adverse to
circumventing the protections afforded by the Act's modification
procedures.  See Penn Allegh Coal Co., 3 FMSHRC 1392, 1398 (June
1981); Sewell Coal Co., 5 FMSHRC 2026, 2029 (December 1983).

     Moreover, we are unpersuaded by Consol's argument that it
failed to receive adequate notice that its methane monitoring
system did not comply with the requirements of section
75.342(b)(2).  As acknowledged by its witnesses, Consol received
actual notice from MSHA over the course of approximately one year
preceding issuance of the citation that the warning signal on its
methane monitor must be visible to a person who could deenergize
the equipment.  Tr. 212-13, 234-37.  Inspector Brown testified
that management had been informed in at least seven meetings that
Consol was required to have a visible alarm on the methane
monitor and that, if it did not, it would be cited under section
75.342.  Tr. 39-40, 90-91.

                               III.

                            Conclusion

     For the foregoing reasons, we reverse the judge's
determination that Consol did not violate section 75.342(b)(2).
We remand for consideration of the Secretary's motion to modify
the citation to a section 104(d)(2) order[7] and for the
assessment of a civil penalty.

                                   Marc Lincoln Marks,
                                   Commissioner

                                   James C. Riley, Commissioner

**FOOTNOTES**

[1]:  Commissioner  Holen participated in the consideration
of this matter, but her term  expired  before  issuance  of  this
decision.   Pursuant to section 113(c) of the Federal Mine Safety
and Health Act  of  1977, 30 U.S.C.  823(c), this panel of three
Commissioners has been  designated  to exercise the powers of the
Commission.

[2]:  Section 75.342, entitled "Methane  monitors," provides
in part:

   (b)(1)  When the methane concentration at any
   methane   monitor  reaches  1.0  percent  the
   monitor shall give a warning signal.

   (2)  The warning signal device of the methane
   monitor shall  be visible to a person who can
   deenergize the equipment on which the monitor
   is mounted.

   (c)  The methane  monitor shall automatically
   deenergize the machine on which it is mounted
   when--

   (1)  The methane concentration at any methane
   monitor reaches 2.0 percent . . . .

[3]:  The  methane monitors  and  face  telephone
system would  not  be deenergized.  16 FMSHRC
at 1243.

[4]:  Section 101(c) of the  Mine  Act provides in
part:

        Upon petition by the operator  .  .  . ,
   the  Secretary  may modify the application of
   any mandatory safety  standard  to  a  . . .,
   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 . . . . Upon receipt of such
   petition  the Secretary shall publish  notice
   thereof  .  .   .   and   shall   cause  such
   investigation   to   be   made  as  he  deems
   appropriate.    Such   investigation    shall
   provide an opportunity for a public
   hearing . . . to enable the operator . . . or
   other interested party to present information
   relating   to   the   modification   of  such
   standard.  Before granting any exception to a
   . . . standard, the findings of the Secretary
   .  .  .  shall  be  made  public  . . . . The
   Secretary     shall    issue    a    decision
   incorporating his  findings of fact therein .
   . . .

30 U.S.C.  811(c).

[5]:  Given his disposition,  the  judge  did  not reach the
question of whether the citation should be modified to  a section
104(d)(2) order.

[6]:   Pursuant  to  Commission  Procedural  Rule 75(a),  29
C.F.R.    2700.75(a), the Secretary designated his petition  for
discretionary review as his brief.

[7]:  Consol's  reasonable, good faith belief that the cited
conduct  was  the  safest   method  of  compliance  with  section
75.342(b)(2) is relevant to the determination of whether Consol's
violation had resulted from its  unwarrantable  failure to comply
with  the standard.  See Utah Power & Light Co., 12  FMSHRC  965,
972 (May 1990); Cyprus Plateau Mining Corp., 16 FMSHRC 1610, 1615
(August 1994).

Chairman Jordan, dissenting:

     I would affirm the judge[1] because, in my view, he
correctly determined that Consolidation Coal Company
(Consol) complied with the requirements of 30 C.F.R. 
75.342(b)(2).  The standard in question provides that "the
warning signal device of the methane monitor shall be
visible to a person who can deenergize the equipment on
which the monitor is mounted."  Consol was cited because the
MSHA inspector determined that the longwall headgate
operator, who was approximately 30 feet from the
methane monitor, could not see the yellow light which flashes
when the methane concentration reaches 1 percent.[2]  16
FMSHRC at 1242.

     Although the headgate operator was not always in sight of
the yellow light mounted on the methane monitor, the judge
found that Consol had nevertheless provided a "warning signal
device" that was visible to the headgate operator at all times.
Id. at 1245-46.  He held that the deenergization of the machinery
constituted an adequate visual signal under the standard.
Id. at 1246.

     Under Consol's  system, the headgate operator is visually
appraised of the fact that methane has reached 1 percent,
because the lighting on the longwall face and the longwall
shield goes out, and all the equipment electrically connected
to the longwall automatically deenergizes except for the methane
monitors and face telephone system.  Id. at 1243.  At the
moment this occurs, the headgate operator might not know whether
the shutdown was due to methane concentration or a power outage.
As the judge pointed out, however, this potential ambiguity is
removed when the operator goes to the master control box to
try and re-energize the longwall.  Id. at 1246.

     If methane caused the shutdown, the operator will see a
computer display advising in plain English that there has
been a "methane monitor fault," and the methane concentration
will be indicated by a digital display.  Id. at 1244.  In
addition, the yellow warning light on the monitor will be
flashing and the solid red trip light and green "power on"
light of the monitor will be on.  Id.

     This can be compared to what the operator will observe upon
arriving at the control box after a general power loss.  In that
situation the control box will be dark, the computer display will
be blank and all the lights on the methane monitor will be off.
Id. There will be no digital display showing the methane
concentration, and the main conveyer to the outside (which
is not electrically connected to the longwall) will have
stopped.  Id.  In the case of a methane shutdown, the conveyor
is likely to continue operating.  Id.

     The Secretary has not challenged the judge's finding that
"if the methane monitor shuts down the longwall, there is no
way the operator can mistakenly believe that the power went off
for some other reason. . . . [A]s soon as he gets to the headgate
control box, it will be readily apparent to him whether the
methane monitor tripped or the power went out."  Id.  Thus
the judge found, correctly in my view, that Consol provided
a "warning signal device" by which the longwall operator is
visibly appraised when the methane concentration at any
methane monitor reaches 1 percent.

     Despite the fact that the standard in question does not
refer to any particular kind of "warning signal device,"
the Secretary contends that only the small factory-installed
methane warning light located directly on the methane monitor
complies.  The MSHA inspector's testimony makes clear that this
interpretation was the basis for the enforcement action:

         [T]he condition [for which I issued the
    citation] was that the Appalachian monitor
    has a warning light that is built in with the
    monitor.  That is the warning light for that
    methane monitor, that little light on the
    unit. . . . And the . . . person who is
    supposed to de-energize the machine . . . if
    it would give a warning at one percent was
    not in a position in his work area where he
    could visually see that warning light.
         . . . .

         . . . The warning signal device of the
    methane monitor . . . [is] a light that comes on
    inside the unit.  It's a yellow warning light.

Tr. 30, 63.

     Although the Secretary claims he is enforcing the "plain and
unambiguous terms" of the standard, PDR at 5, his crabbed
interpretation of "warning signal device" is nowhere supported by
a reading of the Mine Act or the regulation.  His insistence that
a "visible warning device on the methane monitor," id., must be a
light is simply not discernible from the plain language of the
standard.

     In cases where Congress' intent is clear, we must "give
effect to the unambiguously expressed intent of Congress."
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842-43 (1984).  Unfortunately, the Mine Act
provides us no guidance as to the meaning of "warning signal
device." When, as here, the statute is silent, we must determine
whether the agency interpretation of the regulation is reasonable
and entitled to deference.  Id.;  Coal Employment Project v.
Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989).  I proceed by noting
that the regulation refers only to the warning signal device of
(not on) the methane monitor, and in no way suggests that the
warning device must be a light.  Furthermore, the Secretary has
not cited any legislative history supporting his interpretation,
nor has he articulated any safety policy effectuated by his
limited application of the term "warning signal device."[3]  An
interpretation that narrowly restricts a standard beyond its
plain meaning and claims no support in either the history or
safety-promoting purpose of the Act is not, in my view, a
reasonable interpretation entitled to deference.

     Finally, my colleagues (but not the Secretary) claim that
"[t]he Secretary's regulatory scheme requires human intervention
when methane levels reach 1 percent."  Slip op. at 4.  Since the
longwall operator is not "a person who can deenergize the
equipment" after being visibly appraised of the presence of
methane, they view Consol's warning signal device as violative of
section 75.342(b)(2).

     The only reason the longwall operator will be unable to
deenergize the equipment after being warned of the presence of
methane is that the equipment will already be deenergized.  There
will be no necessity for the operator to turn it off because the
equipment will automatically shut down at 1 percent methane
concentration.  I cannot agree that because the longwall operator
will not need to shut down the equipment when the methane
concentration reaches 1 percent, Consol's warning signal device
does not comply with section 75.342(b)[4].  Moreover, an
underlying premise of the current Act and its predecessor, the
1969 Coal Act, is that the risk of explosion is reduced by
eliminating ignition sources of methane.  S. Rep. No. 411, 91st
Cong., 1st Sess. 25 (1969), reprinted in Senate Subcommittee on
Labor, Committee on Labor and Public Welfare, 94th Cong., 1st
Sess., Part I Legislative History of the Federal Coal Mine Health
and Safety Act of 1969, at 151 (1975).  Accordingly, I decline to
embrace an interpretation which effectively requires equipment to
remain energized when the methane concentration is between 1 and
2 percent so that  human intervention can occur.[5]

                                      Mary Lu Jordan, Chairman

**FOOTNOTES**

[1]:   Because  I  affirm  and  find  no violation, I do not
address  the  Secretary's or my colleagues' contention  that  the
operator  should   have   applied   for  a  modification  of  the
requirement of the standard.

[2]:   30 C.F.R.  75.342(b)(1) requires  that  the  methane
monitor give  a  warning  signal  when  the methane concentration
reaches 1 percent.

[3]:  Indeed, during the trial, government  counsel appeared
to  concede  that  the  warning procedure implemented  by  Consol
provides as much or greater  protection  than  the  procedure the
Secretary  claims  is  required  by the standard.  Tr. 260  ("The
system devised for Robinson Run reducing the methane monitor trip
to  one  percent  may be an inherently  safer  method  than  this
[regulation].").

[4]:  Notably,  the drafters of the regulation explained the
requirement of the visible warning as "allow[ing] the operator of
the face equipment, or  other person, to deenergize the equipment
at 1.0 percent, if necessary."   57 Fed. Reg. 20868, 20891 (1992)
(emphasis added).

[5]:    When   methane   reaches   2    percent,   automatic
deenergization is required under section     75.342(c).