<DOC>
[DOCID: f:w-93-298.wais]

 
WESTERN FUELS-UTAH, INC.
June 5, 1995
Docket No. WEST 93-298

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3993/FAX 303-844-5268

                          June 5, 1995

SECRETARY OF LABOR,            :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA),       :  Docket No. WEST 93-298
               Petitioner      :  A.C. No. 05-03505-03619
                               :
          v.                   :  Deserado Mine
                               :
WESTERN FUELS-UTAH, INC.,      :
               Respondent      :

                            DECISION

Appearances:  Margaret A. Miller, Esq., Office of the Solicitor,
              U.S. Department of Labor, Denver, Colorado,
              for Petitioner;
              Karl F. Anuta, Esq., Boulder, Colorado,
              for Respondent.

Before:  Judge Cetti

      This case is before me upon a petition for assessment of civil
penalties under section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C.  801 et seq., the "Act".  The
Secretary of Labor on behalf of the Mine Safety and Health
Administration (MSHA), seeks civil penalties from Respondent
Western Fuels-Utah, Inc., for the alleged violation of four mine
safety standards contained in 30 C.F.R. Part 75, subpart L
involving fire protection.

Facts Not In Dispute

      1.  Western Fuels-Utah, Inc., is engaged in mining and selling
of bituminous coal in the United States, and its mining
operations affect interstate commerce.

      2.  Western Fuels-Utah, Inc., is the owner and operator of
Deserado Mine, MSHA I.D. No. 05-03505.

      3.  Western Fuels-Utah, Inc., is a medium-size mine operator
with 2,606,398 tons of production in 1991.

      4.  Western Fuels-Utah, Inc., is subject to the jurisdiction of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et
seq. ("the Act").

      5.  The presiding Administrative Law Judge has jurisdiction in
this matter.

      6.  The subject citations and failure to abate orders were
properly served by a duly authorized representative of the
Secre-tary upon an agent of Respondent on the dates and places
stated therein, and may be admitted into evidence for the purpose
of establishing issuance and not for the truthfulness or
relevancy of any statements asserted therein.

      7.  The exhibits offered by Respondent and the Secretary are
stipulated to be authentic but no stipulation is made as to their
relevance or the truth of the matters asserted therein.

      8.  The proposed penalties will not affect Respondent's ability
to continue in business.

                               II

     The Deserado Mine is a medium-size underground coal mine located
near Rangely, Rio Blanco County, Colorado.  The mine operates on
three shifts, five days a week.

     On August 10, 1992, at about 7:10 p.m. during the mine's evening
shift, a fire occurred in the drive unit of the conveyor belt
located in the Number 3 East Mains (EM3) of the Deserado Mine.
The fire was detected when the Conspec computer system noted a CO
(carbon monoxide) alarm.  Alarms were set off by the rise in
carbon monoxide and the discharge of the dry chemical fire
suppression system at the EM3 conveyor system.

     It is undisputed that there were no injuries and that the fire
was immediately reported to MSHA as soon as it was controlled,
even though it was not a reportable fire in the opinion of the
MSHA inspectors.

     On August 11, 1992, the morning right after the swing shift
fire, MSHA personnel went to the mine and inspected the area of the
fire and the equipment at the EM3 belt drive.  No violations were
found at the time of this first inspection and no citations were
issued.  A week later MSHA personnel returned to the area of the
fire at the mine and issued four citations.  Two of the citations
involved electrical safety switches and the other two the dry
chemical powder fire suppression system.

                               III

     There was considerable speculation and different theories
advanced by the parties at the hearing as to what caused the fire
but very little direct or persuasive evidence.  The operator's
theory as to what caused the fire as set forth in the first two
pages of Respondent's post-hearing brief is as follows:

          Logs, trash or coal jammed into the drive of the belt.
          Friction created by the belt drive rollers against the
          logs ignited the wood within perhaps one to two minutes
          after the jam.  The ensuing fire rapidly burned through
          the jammed belt.  The dry chemical powder fire
          suppression system discharged and the nozzles which
          were directed at the top and bottom of the top belt and
          the top of the bottom belt, extinguished the fire on
          the  belt.  However, the fire between the drive rollers
          was not extinguished.  Warned by the alarms which were
          set off by the raise in carbon monoxide and the
          discharge of the fire suppression system, miners from
          the Deserado Mine, using backup fire hoses,
          extinguished the fire in the belt drive and in the
          crib-bing above the belt drive.  The fire which began
          at about 7:10 p.m. was controlled at about 7:34 p.m.
          and extinguished by 8:00 p.m.

     It was the Secretary's position that the cause of the fire was
either a jumper at the control center that resulted in the bypass
of the sequence and slippage switches for the EM3 conveyor belt
flight or the failure of those switches to function as intended.
The Secretary in post-hearing brief at page 7 states:

          ... Inspector Gore issued [two citations] ... for an
          inoperable sequence switch and ... an inoperable switch
          on the fire suppression system.  The inoperable
          switches were deter-mined to be the cause of the
          accident, since the only other possible cause presented
          was a jumper at the control center.  The mine in-sists
          there were no jumpers, leaving us to conclude that the
          switches must have been ineffective.

     This was the basis for the issuance of Citation No. 3587226.

     Turning now from the speculation and the various theories
advanced by the parties during the hearing and in their
post-hearing briefs as to what caused the fire, we now take a
close look at each specific citation issued and determine if the
preponderance of the evidence presented established the
violations alleged in each citation.

Citation No. 3587226

     This citation charges the operator with an S&S violation of 30
C.F.R.  75.1102.  That safety standard in its entirety reads as
follows:

          Underground belt conveyors shall be equipped with
          slippage and sequence switches.

     The citation issued by Inspector Gary K. Frey, one week after the
fire at the time of the second inspection reads as follows:

          The sequence and slippage switches installed for the
          East Mains No. 3 conveyor belt flight failed to
          function as intended, in that the belt drive continued
          to operate when the East Mains No. 2 belt was
          deenergized causing a coal spillage at the head roller
          of the No. 3 belt.  This condition stalled the belt
          caus-ing the drive rollers to slip on the belt, the
          resulting friction caused a belt fire to occur on
          08-10-92.

     Inspector Gary K. Frey who signed the citation was not available
at the hearing.  Although signed by Mr. Frey, the citation was
written by Inspector Art Gore who was present and testified at
the hearing.  Mr. Gore was not present, however, at the time of
the initial MSHA inspection of August 11, 1992, the morning
immediately following the swing shift fire.  Mr. Gore was at the
mine on August 18th when the four citations were issued.

     It is undisputed that sequence and slippage switches in question
were installed for the East Main No. 3 conveyor belt flight.
Both switches were "designed" to perform their proper function.
Both of the switches were properly working before and after the
August 10, 1992, fire and continued in use to the present (time
of hearing) without any repair or alteration.  During his
inspection of August 18th Inspector Gore did not look at the
switches to find out whether they were functioning or not.  His
conclusions were based upon his examination of the electrical
wiring diagrams and the Conspec computer printout.  Inspector
Gore testified:

          Q.  ... So looking at the Conspec and the electrical
          wiring diagram, you concluded that the switch must not
          have been functioning?
          A.  That's true.
          Q.  Did you look at the switch to find out if it was
          functioning or not?
          A.  No, I did not.

     In item 17 of the citation Inspector Gore states, "The system
was examined and no malfunctions were found or occurred at the
time of examination."

     Evidence was presented by Respondent showing that the
relia-bility of the Conspec printout is questionable.  Errors
were shown to exist in the Conspec printout.  Credible evidence
was also presented to show the switches in question had been
inspected three days before the fire and were functional prior to
the fire, that the switches had not been changed or modified in
any way after the incident, and that the same switches were still
in place and functional two years later at the time of the
hearing.

     In another vein, looking at the plain wording of the regulation
in question, it clearly states that the conveyor shall be
"equipped" with specified equipment.  What is the ordinary plain
meaning of the word "equipped?"  If the transmission of your car
were to suddenly not function properly for a short period of
time, you would not say your car was not "equipped" with a
trans-mission, particularly where the transmission for some
unknown reason without any modification or repair appeared to be
func-tioning in a very proper manner within a few minutes or
hours thereafter.  Using ordinary plain english you wouldn't say
your car was not "equipped" with a transmission.  I also believe
that if the promulgators of the regulation intended to make the
sudden unexpected malfunction of required equipment a citable
offense, they would have worded the regulation differently so
that a person of ordinary prudence on reading the regulation
would have known of that intent.

     Upon evaluation of all the evidence presented, I find that the
preponderance of the probative evidence fails to establish that
the EM3 belt conveyor was not "equipped with slippage and
sequence switches" as required by 30 C.F.R.  75.1102.  The
citation is vacated.

Citation No. 3587227

     This citation alleges a violation of 30 C.F.R.  75.1101-16(a).
The safety standard in relevant part reads as follows:

          30 CFR  75.1101-16(a)

          (a) Each self-contained dry powder chemical system
          shall be equipped with sensing devices which shall be
          designed to activate the fire control system, sound and
          alarm and stop the conveyor drive motor in the event of
          a rise in temperature, ... .  (Emphasis added).

     Petitioner charges the operator with a 104(a) S&S violation of
the above-quoted safety standard.  The citation reads as follows:

Citation No. 3587227

          The self-contained dry powder chemical system installed
          on the East Mains No. 3 belt flight failed to stop the
          conveyor drive motors after the fire suppression system
          for the No. 3 belt flight was activated.  This
          condition is believed to have contributed to a belt
          fire which occurred on 08-10-92 at this belt drive.

     The record shows the citation was issued on August 18, 1992,
at 9:45 a.m.  The citation was terminated five minutes later, at
9:50 a.m. without any change in the self-contained dry powder
chemical system's sensing devices.  Inspector Gore who wrote the
citation wrote in item 17 of the citation:

          The system was examined and no malfunctions were found
          or occurred at the time of examination.

     The evidence clearly shows that the dry powder chemical fire
suppression system was equipped with a sensing device that did,
in fact, activate (discharge) the fire control system and sounded
the alarm.  There is disagreement as to whether or not the fire
suppression system stopped the conveyor drive motor.  Assuming
arguendo that it did not stop the conveyor drive motor no
persuasive evidence was presented that (in the words of the
regulation) it was not "equipped" with a sensing device that was
"designed" among other things, to stop the conveyor drive motor.
The undis-puted fact that the citation was abated without any
repair, serv-ice or modification of this sensing device and
continued to func-tion properly after the August 10th fire is
very strong, if not  conclusive evidence that the fire
suppression system was equipped with sensing devices "designed"
to stop the conveyor drive motor in the event of a rise in
temperature.

     The Secretary, the charging party, has the burden of proof.  On
careful evaluation of all the evidence, I find that within the
meaning of the safety standard in question, that the
preponderance of the evidence presented fails to establish that
the self-contained dry powder chemical system was not "equipped"
with sensing devices "designed" to activate the fire control,
sound the alarm and stop the conveyor drive motor in the event of
a rise in temperature.  The citation is vacated.

Citation Nos. 3587228 and 3587229

     Citation No. 3587228, as amended at the hearing, alleges a
violation of 30 C.F.R.  75.1101-14(a).  The citation reads as
follows:

          The dry chemical fire extinguishing system installed at
          the East Mains No. 3 belt drive was not installed as
          required in that it was measured with a standard rule
          to contain over 81 feet of piping and hose between the
          chemi-cal container and the furthest nozzle which was
          located at the belt take-up unit.

     Up to the time Petitioner modified the citation at the hearing,
this citation alleged a violation of 30 C.F.R.  75.1107-9(a)(3)
which, with respect to dry chemical fire-extinguishing systems,
requires that the "hose and pipe shall be as short as possible;
the distance between the chemical container and the furthest
nozzle shall not exceed 50 feet."

     At the commencement of the hearing, without objection, the
Petitioner amended Citation No. 3587228 to allege a violation of
30 C.F.R.  75.1101-14(a) which provides as follows:

          (a) Self-contained dry powder chemical systems shall be
          installed to protect each belt-drive, belt takeup,
          electrical-controls, gear-reducing units and 50 feet of
          fire-resistant belt or 150 feet of non-fire-resistant
          belt adjacent to the belt drive.

     Turning now to the other fire suppression citation, Citation No.
3587229 alleges a violation of 30 C.F.R.  75.1101-15(d) which
reads as follows:

          Nozzles and reservoirs shall be sufficient in number to
          provide maximum protection to each belt, belt take-up,
          electrical controls and gear reducing unit.

     The citation alleging a violation of the above-quoted safety
standard reads as follows:

          The reservoirs containing the dry chemical powder used
          for fire suppression at the East Mains No. 3 belt drive
          was not sufficient in number to provide maximum
          protection for this belt in that on 08-10-92 a fire
          occurred, the fire suppression system was a ctivated,
          the dry powder chemical was expelled and failed to
          extinguish the fire.

     Inspector Vetter inspected the area of the fire at the 3 East
Mains section of the mine on August 11, 1992, the morning after
the swing-shift fire.  Vetter testified that the fire suppression
system was inadequate.  Although the system sensed the fire and
automatically discharged, it was inadequate because it failed to
completely put out the fire.  The miners had to bring in and use
auxiliary water hoses to put out the fire.

     There was only one dry chemical powder reservoir and 81 feet of
pipe from the reservoir to the discharge nozzles.  This length of
pipe made it very difficult on discharge for the system to
adequately carry the dry powder chemical through this length of
pipe to the nozzles and expel the chemical so as to provide
maxi-mum protection particularly to the "belt take-up".

     Inspector Vetter testified:

          A.  The pipe is to carry this dry powder to the
          nozzles.  If there's an unlimited amount of piping in
          the system, then it stands to reason that it will just,
          more or less, stay in the system.  The chemical won't
          be expelled.  The energy that's forcing this chemical
          through the system is dissipated throughout the system
          and it's ineffective when it reaches its final
          destination.

          It might have expelled some, but the majority of it, I
          believe, was still left in the piping that transfers
          this chemical from the reservoir to the nozzles.

          Q.  Okay.  The belt -- and just so we're clear, on this
          belt takeup unit, did the fire spread that far?

          A.  No, it didn't.

          Q.  Was this an area that was washed down by the hoses,
          do you know?

          A.  The takeup unit?

          Q.  Yea.

          A.  No.  No, it didn't show a sign of being  washed
          down.

          Q.  Okay.  So that was a place that was easier to
          observe how much, if any, chemical was expelled; is
          that correct?

          A.  Yes.

     With respect to the amount of the dry chemical expelled in the
area of the take-up unit, Vetter testified:

          A.   What I saw was just a sprinkling of dry powder
          chemical.  Normally, it's a blanket of yellow substance
          and this was just a dribbling or a sprinkle of dry
          powder chemical.

     Vetter, based upon his observations of the amount of dry chemical
he found at the belt take-up unit, testified that if the belt
take-up unit had been on fire there wasn't enough chemical
expelled out of that nozzle to adequately cover the take-up unit
and put out the fire.

     I credit Inspector Vetter's testimony and find the preponderance
of the evidence established a violation of 30 C.F.R.  75.1101.

     The violation was abated by installing a second dry chemical
reservoir which considerably shortened the length of the needed
piping to less than 50 feet from each reservoir to the nozzles
through which the chemical is expelled.

     This is the same abatement action that terminated the violation
of Citation No. 3587228 and the corresponding 104(b) order.
Considering this fact, along with the evidence presented with
respect to these two fire suppression citations, leads me to the
conclusion that Citation No. 3587228 is duplicative and, along
with its corresponding 104(b) order, should be vacated and
Citation No. 3587229 and its corresponding 104(b) order should be
affirmed.

     Inspector Vetter found the violation in Citation No. 3243029
significant and substantial (S&S).  It is well established that a
violation is S&S if, based on 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, 825-26 (April 1981).  In Mathies Coal Co. 6 FMSHRC
1 (January 1984), the Commission explained:

          In order to establish that a violation of a mandatory
          safety standard is significant and substantial ..., 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.

6 FMSHRC at 3-4.  See also Austin Power, Inc. v. Secretary, 861
F.2d 99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021
(December 1987) (approving Mathies criteria).

     The Commission has held 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) (emphasis in original).

     The Commission has consistently held that evaluation of the
reasonable likelihood of injury should be made assuming continued
normal mining operations and must be based upon the particular
facts surrounding the violation in issue.  Texasgulf, Inc. 10
FMSHRC 498, 500-01 (April 1988).

     This is not a case where the Judge is asked to assume an
emergency situation in determining whether the violation is
significant and substantial (S&S).  In this case there was no
need to make such an assumption as there definitely was an emer-
gency.  The belt foreman Nepp reported that it was an
"uncontrolled fire" and the mine rescue team was notified that
the mine had an emergency.  (Tr. 54-55).  The fire-suppression
system at EM3 conveyor was clearly inadequate.  It failed to
extinguish the belt fire.  The conveyor belt burned in two and
the fire spread to the cribbing above the belt drive.  It
generated a lot of smoke.  Miners were evacuated from the mine
except for the few miners that remained to fight the fire with
auxiliary water hoses.

     Fortunately no miner was injured.  Nevertheless there was a
serious emergency with reasonable likelihood of serious injury
from the fire, from smoke inhalation, and from the hazard of
fighting an underground coal mine fire with auxiliary hoses.  I
agree with Inspector Vetter that this violation of the fire
suppression standard was a significant and substantial
violation.  The evidence presented established a violation of a
mandatory safety standard, a significant measure of danger to
safety that was significantly contributed to by the violation and
a reasonable likelihood that the hazard contributed to would
result in injury of a reasonable serious nature.  The
preponderance of the evidence established a significant and
substantial violation.

                             PENALTY

     The Deserado Mine is a medium-size underground coal mine.  The
mine failed to abate the serious violation charged in the fire
suppression citations within the one week set for abatement by
the mine inspector.  There was no reasonable excuse for this
failure to timely abate.  The violation was very promptly abated
only after MSHA issued the 104(b) order.

     The gravity of the violation charged in Citation No. 3587229 is
high.  A fire in an underground coal mine is a serious hazard.  A
belt fire must be extinguished immediately because of the serious
potential for harm that can result from the fire and smoke,
particularly if the fire spreads.  A fire in an under-
ground coal mine such as we have in this case is reasonably
likely to result in a serious injury and can result in tragic
loss of life.

     Considering the statutory criteria enumerated in section 110(i)
of the Act, particularly the high gravity of this S&S  violation
of the fire suppression standard, I assess a civil penalty of
$4,000.00.

                              ORDER

     In view of the foregoing findings and conclusion, it is ORDERED
that:

     1.  Citation Nos. 3587226 and 3587227 are VACATED.

     2.  Citation No. 3587228 along with its corresponding 104(b)
order is VACATED.

     2.  Citation No. 3587229 including its S&S designation and its
corresponding 104(b) order are AFFIRMED and a penalty of
$4,000.00 is ASSESSED for the violation of 30 C.F.R. 
75.1101-15(d).

     3.  RESPONDENT SHALL PAY a civil penalty of $4,000.00 to MSHA
within 40 days of this decision.  Upon receipt of payment, this
case is dismissed.

                                         August F. Cetti
                                         Administrative Law Judge

Distribution:

Margaret A. Miller, Esq., Office of the Solicitor, U.S.
Department of Labor, 1999 Broadway, Suite 1600, Denver, CO
80202-5716 (Certified Mail)

Karl F. Anuta, Esq., WESTERN FUELS-UTAH, INC., 1720 14th Street,
P.O. Box 1001, Boulder, CO 80306  (Certified Mail)

/sh