<DOC>
[DOCID: f:w-91-421.wais]

 
MID-CONTINENT RESOURCES, INC.
July 24, 1995
Docket No. WEST 91-421


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3577/FAX 303-844-5268

                          July 24, 1995


SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. WEST 91-421
      Petitioner                :  A.C. No. 05-00301-03765
    v.                          :
                                :  Dutch Creek Mine
MID-CONTINENT RESOURCES, INC.,  :
      Respondent                :


                            DECISION

Appearances:  Margaret A. Miller, Esq., Office of the Solicitor,
              U.S. Department of Labor, Denver, Colorado,
              for Petitioner;
              Edward Mulhall, Jr., Esq., Delaney & Balcomb,
              Glenwood Springs, Colorado, for Respondent.

Before:  Judge Manning


     This case is before me pursuant to section 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C.  801 et seq.
(1988)("Mine Act" or "Act") following a remand from the
Commission.  16 FMSHRC 1218 (June 1994).  The Commission vacated
the conclusion of Administrative Law Judge John J. Morris that a
violation of 30 C.F.R.  75.400 was not of a significant and sub-
stantial nature ("S&S") and remanded this issue to the judge.
For the reasons the follow, I conclude that the violation was
S&S.

I.  BACKGROUND

     On May 1, 1990, Inspector James Kirk of the Department of Labor's
Mine Safety and Health Administration ("MSHA") issued Order of
Withdrawal No. 3412700 (the "Order") to Mid-Continent Resources,
Inc. ("Mid-Continent") at its Dutch Creek Mine[1], pursuant to
section 104(d)(2) of the Mine Act, 30 U.S.C.  814(d)(2).  The
Order alleged that loose coal had accumulated along the 103
strike belt (the "belt") between the belt drive and the tail-
piece at the stage loader.  This belt transported coal from the
longwall section to another belt, which transported the coal out
of the mine.  The belt was about 3,000 feet long.  In his deci-
sion, Judge Morris affirmed the violation, determined that it was
caused by Mid-Continent's unwarrantable failure to comply with
the safety standard, but found that the violation was not S&S.
15 FMSHRC 149, 152-60 (January 1993).  The Secretary filed a
petition for discretionary review of his S&S finding, which was
granted by the Commission.

     As stated above, the Commission vacated Judge Morris's con-
clusion that the violation was not S&S and remanded that issue
for further analysis consistent with the its decision.  16 FMSHRC
at 1224.  On March 13, 1995, this case was reassigned to me for
an appropriate resolution.  I have reviewed the hearing tran-
script and exhibits and make the following findings of fact based
on the evidence.

II.  THE COMMISSION'S DECISION

     In its decision, the Commission agreed with the Secretary that
"the judge failed to address adequately the evidentiary record in
determining that it was not reasonably likely that the hazard
contributed to by the violation would result in an injury."  16
FMSHRC at 1222.  The Commission stated that the judge's factual
determinations concerning the violation "appear to be consistent
with a finding of S&S, and he failed to recon-cile those findings
with his determination that the violation was not S&S."  Id.  The
Commission's decision lists a number of in-stances where it
believes the judge's decision is inconsistent.

     The Commission also determined that "the judge failed to
reconcile his finding that Dutch Creek is a gassy mine subject to
five-day spot inspections with his determination that the
viola-tion was not S&S."  16 FMSHRC at 1222.  The Commission
noted that accumulations, in conjunction with a methane ignition
in the face area, "could propagate and increase the severity of a
fire or explosion."  Id.

     Further, the Commission concluded that the judge failed to
take into account continued normal mining operations when he
"discounted" Inspector Kirk's testimony that accumulations were
in contact with rollers supporting the belt.  Id.  Finally, the
Commission held that the judge erred "to the extent [he]
sug-gested that spontaneous combustibility of coal is required
for an S&S finding...."  Id.

III.  THE JUDGE'S DECISION

     Judge Morris made a number of finding in concluding that
Mid-Continent violated 30 C.F.R.  75.400.  As relevant here, the
judge entered the following findings in his discussion of the
violation:

          7.  [Inspector] Kirk saw accumulations of coal at the
          belt tailpiece, the stage loader area and up to the end
          of the conveyor belt.  Outby coal was compacted
          underneath the belt.  The belt rollers and belt were in
          contact with the coal.

          *  *  *  *  *  *  *  *  *  *  *  *

          19.  The accumulations were mostly dry from the number
          6 door inby to the tailpiece of the conveyor.  Outby
          from the number 6 door towards the belt drive area the
          accumulations were moist or wet.

          *  *  *  *  *  *  *  *  *  *  *  *

          23.  Fire is one of the hazards of coal accumulations.

          24.  The Dutch Creek Mine is a gassy mine subject to
          five-day spot inspections.

          25.  Potential ignition sources included the area where
          the rollers rubbed the coal as well as where the
          conveyor belt rubbed the framework of the conveyor.
          MSHA also found one area in the longwall that was not
          main-tained.  That area could also be considered as an
          ignition source.

          26.  Accumulations could be ignited by frictional
          contact.  The amount of coal along the conveyor could
          be introduced into an ignition causing a more severe
          ignition.

          27.  Injuries from the described hazard could be
          serious and possibly fatal.

          *  *  *  *  *  *  *  *  *  *  *  *

          32.  There were electrical cables for the shark pump
          and the normal electrical devices for the longwall.  In
          addition, on May 1st there was a permissibility
          violation.

          33.  Mr. Kirk identified the pre-shift, on shift daily
          examination referring to the 103 longwall.  The
          examinations, as reported, listed accumulations on the
          103 longwall from April
          25, 1990 to May 1, 1990.  The conditions were reported
          and on one occasion the report noted that shoveling was
          undertaken.

          34.  In Mr. Kirk's opinion, the fire boss and the
          pre-shift inspection noticed that there were
          accumulations on the 103 longwall belt at the drive and
          inby.  This was the area that Mr. Kirk cited.

15 FMSHRC at 152-54 (citations to transcript omitted).

     In his discussion of the violation, Judge Morris credited
Inspector Kirk's description of the location of the
accumula-tions.  15 FMSHRC at 155.  He also found that due to its
low oxygen content and high-ash content, the coal "burns only
with great difficulty."  Id.  He determined that the record
estab-lished several ignition sources.  In this regard, the judge
stated:

          One location was where the conveyor rollers rubbed
          against the coal and also where the conveyor belt
          rubbed on the framework of the conveyor.  Additional
          ignition sources could also include the electrical
          cables required to run the conveyor, the impermissible
          con-dition he cited as well as the electrical cables
          for the shark pump.

15 FMSHRC at 155.

     Finally, Judge Morris credited the testimony of Mid-Continent's
witnesses that the belt had broken on the previous shift and that
this break dumped about 50 tons of coal into the belt entry.  15
FMSHRC at 156-57.  He rejected the tes-timony of Inspector Kirk
that the belt was not broken but was spilling coal at the time of
the inspection.  15 FMSHRC at 157.

     In discussing whether the violation was S&S, Judge Morris
determined that Mid-Continent's coal burns with great difficulty
and will not spontaneously combust due to its low oxygen and high
ash content.  15 FMSHRC at 159.  He found that Mid-Continent must
add fuel oil to its coal when it uses the coal in its coal-fired
thermal dryers.  Id.  He further held that a major methane fire
at the mine in the summer of 1990 failed to ignite adjacent coal
pillars.  Id.  In a key paragraph, the judge made the following
determinations:

          Mr. Kirk confirms [Mid-Continent's] evidence as to the
          ignitability of the ... coal.  He testified that while
          the coal was in contact with the conveyor belt at four
          places, he didn't recall any hot areas.  He also tested
          the friction points for heat.  Mr. Kirk testified that
          the usual scenario is that the more friction the
          greater the heat.  Thus, a smoldering fire then goes to
          full fire.  However, Mr. Kirk agreed that if contact
          fails to heat the coals and the contact remains
          minimal, there would probably be no injury to an
          individual miner.  Mr. Kirk describes the friction in
          four places as "light to heavy."

15 FMSHRC at 159 (citations to transcript omitted).

     Judge Morris determined that the violation was not S&S because
the Secretary failed to prove the third element of the Mathies
test.  He stated:  "Due to the lack of ignitability of the loose
coal I conclude there was not a reasonable likelihood that a fire
would occur."  Id.

IV. DISCUSSION WITH FINDINGS AND CONCLUSIONS

     The Commission has established a four part S&S test, as follows:

          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 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.

     Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984).  An evaluation
of the reasonable likelihood of an injury should be made assuming
continued normal mining operations.  U.S. Steel Mining Co., 7
FMSHRC 1125, 1130 (August 1985).  In establishing the third element
of the Mathies test, the Secretary is not required to prove
that the injury or illness contributed to by the violation is
more probable than not.  Rather, the issue is whether there was a
reasonable likelihood that the hazard contributed to would result
in an injury.

     Judge Morris determined that the first two steps of the Mathies
S&S test were present.  He found, however, that an injury was
unlikely because the coal would not readily burn.	In its brief
on remand, Mid-Continent contends that the violation was not S&S
because: (1) the coal is inherently incombustible and difficult
to ignite; (2) there were no potential ignition sources in the
area; and (3) the section was not in production and would not
have produced coal until the accumulations were cleaned up.

     The coal mined at the Dutch Creek Mine is coking coal, which
is a type of bituminous coal.  In the coal seam where the
accumulations were found, the coal contains about 23 percent
volatile matter.  (Tr.  336-37).  The coal is not used as fuel
for power-plants or industrial boilers, but is used in making
steel.

     In 1990, a methane fire occurred in a different coal seam at the
mine.  The fire consisted of a large flame about 30 to 40 inches
in diameter up to twenty feet in length.  (Tr. 357-59).  It was a
"roaring jet of flame" that took about six weeks to put out.  Id.
The rock around the flame was red hot.  The coal at the mine is
under about 3,000 feet of overburden and the coal is soft.  The
coal pillars regularly slough loose coal.  Indeed, the coal in
the pillars is frequently crushed as a result of the weight of
the overburden.  (Tr. 359).  Although the area around the methane
fire became quite hot, the coal pillars and coal sloughage did
not ignite.  Id.  Judge Morris determined, based on this and
other evidence in the record, that the coal is difficult to
ignite.

     I agree with his finding that the coal does not easily ignite.
Nevertheless, the coal is bituminous coal that will burn and when
it does it is capable of producing intense heat.[2]  I believe
that the fact that the coal does not easily ignite should be
considered, but that the S&S determination must be based on
analysis of all of the particular facts present at the mine,
including, but not limited to, the ignition sources and the
length of time that the accumulations existed.

     There is no question that the belt break that occurred on the
previous shift spilled up to 50 tons of loose coal into the
entry.  I find, however, that not all of the accumulations were
caused by the belt break.  Inspector Kirk determined that
accumulations existed at a number of locations along the belt.
As stated above, Judge Morris credited the inspector's
description of the accumulations.  15 FMSHRC at 152-53.  There
were accumulations at the belt tailpiece near the stage loader.
(Tr. 18).  Approximately 100 feet outby the tail piece, coal was
"compacted underneath the belt" and belt rollers were in contact
with the coal.  (Tr. 18-19).  The accumulations were dry, ranged
up to 12 inches deep, and were centered underneath the conveyor.
(Tr. 19).

     Additional accumulations were at the shark pump.  (Tr. 19-20).
Inspector Kirk was not sure of the depth, but the accumulations
were about 50 feet long.  (Tr. 20).  The accumulations were black
and dry.  There were accumulations at the Nos. 10 and 11 doors.
(Tr. 21).  Belt rollers were in contact with the coal.  (Tr.
21-22).  At No. 9 door there was "a windrow approximately
260-foot long of coal, up to 18-inches deep."  (Tr. 22).  At the
No. 6 door, coal accumulations were underneath the belt and the
belt's rollers were turning in the coal.  (Tr. 23).  The coal was
mostly dry at that location, but became very wet outby the No. 6
door towards the belt drive.[3]  (Tr. 24).

     In a number of these locations, Inspector Kirk observed coal
that was "compacted" under the belt and in contact with the belt's
rollers.  It is unlikely that such accumulations were solely the
result of a belt break.  When a belt breaks, coal will be dumped
onto the lower belt and along the sides of the belt at the
breaking point.  (Tr. 544-45).  In addition, coal will be thrown
off the belt at other locations as a result of the sudden release
of tension on the belt.  Id.   MSHA Inspector William Denning
observed the belt on May 2, a day after the order was issued.  He
testified that there was a windrow of coal along the side of the
belt at one location that could have been dumped off the belt
when it broke.  (Tr. 687-88).  He further testified that, in his
opinion, not all of the accumulations were due to the belt spill.
(Tr. 688).  I do not believe that a belt break that causes coal
to be dumped and scattered will create areas of compacted coal
under the belt's rollers.

     Preshift and onshift reports for the period between April 28 and
May 1 indicate the presence of coal accumulations along the belt.
(Ex. M-11).  Some of these reports indicate that shoveling was
occurring and others indicate that the condition was reported.
Id.  Anyone shoveling would have been close to the stage loader
where coal is dumped onto the belt or at the drive where the coal
is dumped onto the next belt.  (Tr. 111, 117).  Accumulations at
those locations can create operational problems.  Inspector Kirk
reviewed these reports when he came out of the mine on May 1.
(Tr. 43).  I conclude that some of the accumulations observed by
Inspector Kirk along the 3,000 foot long belt had existed for
several days prior to May 1, the date the Order was issued.  I
base this conclusion on the fact that coal was compacted under
the belt at some locations and preshift and onshift reports
indicate that accumulations had been present along the belt since
at least April 28.

     Although the belt was not operating continuously at the time
the order was issued because it had broken, it had operated on
the previous production shift and on production shifts during
the days just prior to May 1.[4]  As stated above, some of the
accumulations between the belt drive and the stage loader were
in contact with the belt and rollers supporting the belt.  Coal
dust may be created when a belt and belt rollers turn in
accumulations of coal.  (Tr. 105).  Judge Morris determined that
conveyor rollers rubbing against the coal constituted an
ignition source.  15 FMSHRC at 155.  He stated that
"[a]ccumulations could be ignited by frictional contact."  15
FMSHRC at 154.  He found that additional potential ignition
sources included "electrical cables required to run the conveyor,
the impermissible condition [Inspector Kirk] cited, as well as
electrical cables for the shark pump."  15 FMSHRC at 155.[5]

     The Dutch Creek mine is a gassy subject to five-day spot
inspections.  15 FMSHRC at 154.  If there were a methane ignition
at the face during coal production, a fire could spread into the
belt entry as a result of the accumulations.  Loose coal and coal
dust can cause a methane ignition to propagate and increase the
force of an explosion.  (Tr. 483).[6]  Mid-Continent argues that
methane ignitions at the face should not be considered because
the longwall section was not producing coal at the time of the
inspection.  The evidence reveals, as discussed above, that some
of the accumulations had existed for several days.  Consequently,
the record supports the Commission's determination that
"[a]ccumulations, in conjunction with a methane ignition in the
face area, could propagate and increase the severity of a fire or
explosion."  16 FMSHRC at 1222.

     Finally, the Commission asked the judge, on remand, to take
into account continued normal mining operations when considering
Inspector Kirk's testimony that the belt rollers he saw turning
in the accumulations had not produced any hot areas.  I cannot
assume, as does Mid-Continent, that all of the accumulations
would have been cleaned up as soon as the belt was spliced,
before production resumed.  I credit Mid-Continent's evidence
that the accumulations at the location of the belt break and at
the tailpiece would have been cleaned up.  But the accumulations
that were compacted under the rollers at other locations along
the 3,000 foot long belt had existed for some time and,
consequently, I cannot credit the testimony of Mid-Continent's
witnesses that the belt would not have been operated until these
accumulations were removed.  Accordingly, taking into
consideration continued normal mining operations, the fact that
the inspector did not find any hot areas is not significant
because such areas could have begun to smolder on subsequent
production shifts.  Inspector Kirk testified that these "friction
points" could become hot once production resumed.  (Tr. 104).[7]

     Mid-Continent contends that any smoldering or smoking coal would
have been detected by its carbon monoxide monitoring system and
that no injuries would have occurred as a result.  Mid-Continent
offered evidence about its fire protection systems, which I
credit.  As the Seventh Circuit has stated, in considering a
similar argument, "[t]he fact that [a mine operator] has safety
measures in place to deal with a fire does not mean that fires do
not pose a serious safety risk to miners."  Buck Creek Coal, Inc.
v. Secretary, 52 F.3d 133, 136 (1995).  The fact that
Mid-Continent installed these systems confirms "the significant
dangers associated with coal mine fires."  Id.

     Although the coal produced at the Dutch Creek Mine will not
ignite as readily as steam coal, it will burn.  The accumulations
will not ignite unless there is a "confluence of factors" to
produce such an ignition.  Texas Gulf, Inc., 10 FMSHRC 498, 501
(April 1988).  Taking into consideration the ignition sources,
the length of time that accumulations existed, the high levels of
methane produced at the working face, and continuing normal
mining operations, I find that the Secretary established the
third element of the Mathies S&S test.  Judge's Morris's findings
with respect to the fact of violation support an S&S finding.
Because the coal does not easily ignite, I cannot say that it
was more probable than not that the violation would have resulted
in an injury producing ignition or explosion.  Nevertheless,
there was a reasonable likelihood that the hazard contributed to
would result in an injury.[8]

V.  CIVIL PENALTY

     Judge Morris analyzed the civil penalty criteria in section
110(i) of the Mine Act, 30 U.S.C.  820(i), and determined that a
civil penalty of $400.00 was appropriate for this violation.  15
FMSHRC at 160-61.  He determined that Mid-Continent is in Chapter
11 bankruptcy, is only a debtor-in-possession, and is no longer
mining coal.  He determined that it had a history of 604 paid
violations from May 1, 1988 to April 30, 1990.  He found that
Mid-Continent was negligent but that the violation was not
serious.  Finally, he found that Mid-Continent rapidly abated
the violation.  I adopt his analysis of the penalty criteria
except that I find that the violation was serious, for the
reasons set forth in my S&S analysis.  The Secretary proposed a
penalty of $1,000 for the violation.  I find that a penalty of
$500 is appropriate, taking into consideration the penalty
criteria.

IV.  ORDER

     Accordingly, I find that the violation described in Order No.
3412700 significantly and substantially contributed to the cause
and effect of a coal mine safety hazard.  Mid-Continent
Resources, Inc. is ORDERED TO PAY the Secretary of Labor the sum
of $500.00.[9]


                                      Richard W. Manning
                                      Administrative Law Judge


FOOTNOTES

     [1]  The Dutch Creek Mine is now closed and sealed.

     [2]  See, generally, definition of "coking coal" in Bureau
of Mines, U.S. Department of the Interior, Dictionary of Mining,
Mineral and Related Terms, at 233 (1968).

     [3]  Judge Morris determined that the accumulated material at
the belt drive was "at best incombustible rock and some coal."   15
FMSHRC at 159.  Accordingly, he vacated the part of the order
that cited the drive area.  Id.  I have not considered any
accumulations outby the No. 6 door, including the drive area, in
reaching my conclusion that the violation was S&S.

     [4]  The 103 longwall section produced coal on the graveyard
shift (C-shift) only.

     [5]  Judge Morris did not consider the longwall equipment at
the face to be potential ignition sources because the longwall
section was not producing coal at the time of Kirk's inspection.
15 FMSHRC at 155.  Although I believe that such ignition sources
could have been considered because accumulations had existed for
several production days, I have not included these potential
ignition sources in my analysis.

     [6]  In 1981, fire caused by a methane ignition in a working
face was carried down a belt entry by the coal and coal dust on the
belt.  (Tr. 486-87).  Although that belt was ventilated by return
air and the 103 strike belt was ventilated by intake air, the
accumulations along the belt could be introduced into a methane
ignition or explosion at the face.

     [7]  Because the inspection occurred on a nonproduction shift
and the belt was broken, it is not surprising that Inspector Kirk
did not observe any hot areas.

     [8]  The fourth element of the Mathies S&S test has been met
because it is reasonably likely that if an injury occurred, it
would be of a serious nature.

     [9]  As stated above, Mid-Continent filed for bankruptcy under
Chapter 11 of the Bankruptcy Act in 1992 (Case No. 91-11658 PAC,
District of Colorado).  Payment of the assessed penalty may be
subject to the approval of the United States Bankruptcy Court.
The Secretary is authorized to present the assessment as a claim
in the bankruptcy proceeding.


Distribution:

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

Edward Mulhall, Jr., Esq., DELANEY & BALCOMB, P.C., Drawer 790,
Glenwood Springs, CO 81602 (Certified Mail)

RWM