B-143493, FEBRUARY 2, 1961, 40 COMP. GEN. 443

B-143493, FEBRUARY 2, 1961, 40 COMP. GEN. 443

APPROPRIATIONS - AVAILABILITY - COAL MINE FIRES - PRIVATE PROPERTY LOSS RESEARCH DETERMINATION ALTHOUGH THE RECORD REGARDING THE USE OF FOAM-GENERATING EQUIPMENT, WHICH WAS LOST WHILE ON LOAN TO EXTINGUISH A FIRE IN A PRIVATELY OWNED COAL MINE, DOES NOT UNEQUIVOCALLY ESTABLISH THAT THE MAIN PURPOSE OF THE OPERATION WAS RESEARCH AND EXPERIMENT IN MINE FIRES TO PERMIT THE USE OF FEDERAL FUNDS TO REIMBURSE THE OWNER OF THE EQUIPMENT FOR ITS LOSS AND TO OVERCOME THE RESTRICTION AGAINST EXPENDITURE OF FEDERAL FUNDS FOR PRIVATELY OWNED MINES IN SECTION 4 (B) OF THE ACT OF AUGUST 31, 1954, 30 U.S.C. 554 (B), IN VIEW OF THE REPRESENTATIONS THAT RESEARCH WITH FOAM EQUIPMENT WAS BEING CARRIED ON AT THE TIME OF THE FIRE AND THAT THERE WERE EMERGENT CONDITIONS, NO OBJECTION WILL BE MADE TO PAYMENT FROM THE 1960 INTERIOR DEPARTMENT, BUREAU OF MINES, APPROPRIATIONS FOR SAFETY FOR THE LOSS OF THE EQUIPMENT, PROVIDED THAT THE PAYMENT WILL NOT EXCEED THE ESTIMATED FAIR MARKET VALUE OF THE EQUIPMENT. B-143493, AUGUST 12, 1960, OVERRULED.

TO THE SECRETARY OF THE INTERIOR, FEBRUARY 2, 1961:

BY LETTER OF DECEMBER 13, 1960, REFERENCE E-60-1172.20, THE ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED RECONSIDERATION OF OUR DECISION OF AUGUST 12, 1960, B-143493, ON THE GROUND THAT THE REQUEST FOR OPINION TO WHICH THE DECISION RESPONDED DID NOT EXPLICITLY PRESENT THE BASIC POINT WHICH YOUR DEPARTMENT THINKS SUPPORTS A CONCLUSION OPPOSITE TO THE ONE REACHED.

THE QUESTION CONSIDERED IN THE DECISION WAS WHETHER YOUR DEPARTMENT MIGHT PROPERLY PAY FOR THE LOSS OF FOAM GENERATOR EQUIPMENT LOANED BY THE FIRM FOAMEX, INC., TO AID IN EXTINGUISHING A COAL MINE FIRE AT THE PECA SHAFT MINE, PECA COAL COMPANY, MAHANOY CITY, PENNSYLVANIA. THE BASIS FOR CONCLUDING THAT A NEGATIVE ANSWER TO THE QUESTION PRESENTED WAS REQUIRED IS AS FOLLOWS, QUOTING FROM OUR DECISION OF AUGUST 12:

DATA SUBMITTED WITH THE ASSISTANT SECRETARY'S LETTER SHOW THAT ON MARCH 21, 1960, A FIRE WAS DISCOVERED AT THE PECA MINE; THAT SOON AFTER ITS DISCOVERY THE FIRE WAS DETERMINED TO BE OUT OF CONTROL AND NOT SUBJECT TO ATTACK BY DIRECT MEANS WITH AVAILABLE FACILITIES; THAT THE POSSIBILITY OF EXTINGUISHING THE FIRE BY SEALING OR FLOODING THE MINE WAS DOUBTFUL; AND THAT USE OF FOAMEX FIREFIGHTING EQUIPMENT MIGHT PROVE BENEFICIAL IF THE EQUIPMENT COULD BE TRANSPORTED TO THE PECA MINE QUICKLY. BECAUSE SUCH EQUIPMENT BELONGING TO THE BUREAU OF MINES WAS BEING PREPARED FOR PUBLIC DEMONSTRATION AT A DISTANT LOCATION, ARRANGEMENTS WERE MADE WITH THE PRESIDENT OF FOAMEX, INC., TO BORROW THE NECESSARY EQUIPMENT AND SUPPLIES FOR USE ON THE PECA MINE FIRE. THE BORROWED EQUIPMENT WAS TAKEN INTO THE MINE BUT BEFORE WORK REQUIRED TO PREPARE THE EQUIPMENT FOR USE WAS COMPLETED, THE ATMOSPHERE IN THE MINE BECAME TOXIC AND PLANS TO USE THE FOAMEX EQUIPMENT WERE ABANDONED. PREPARATIONS FOR FLOODING THE MINE WERE STARTED, HOWEVER, BECAUSE CONDITIONS IN THE MINE WERE CONSIDERED TOO HAZARDOUS FOR PERSONS TO ENTER, THE EQUIPMENT COULD NOT BE RECOVERED BEFORE FLOODING TOOK PLACE.

THE ASSISTANT SECRETARY POINTS OUT THAT SECTION 6 (E) OF THE ACT OF AUGUST 31, 1954, 68 STAT. 1009, 1011, AUTHORIZES THE SECRETARY OF THE INTERIOR "TO REPAIR, RESTORE, OR REPLACE PRIVATE PROPERTY DAMAGED OR DESTROYED AS A RESULT OF, OR INCIDENT TO, OPERATIONS UNDER THIS ACT" AND THAT SECTION 6 (F) OF THE ACT AUTHORIZES THE SECRETARY " * * * TO CONDUCT ANY OF THE ACTIVITIES AUTHORIZED UNDER THIS ACT IN COOPERATION WITH ANY PERSON OR AGENCY, FEDERAL, STATE, OR PRIVATE * * *.' ALSO FOR CONSIDERATION, HOWEVER, ARE THE FOLLOWING QUOTED SECTIONS OF THE ACT:

"SEC. 3. THE SECRETARY OF THE INTERIOR, IN ORDER TO EFFECTUATE THE POLICY DECLARED IN SECTION 1 OF THIS ACT, IS HEREBY AUTHORIZED---

"/A) TO CONDUCT SURVEYS, INVESTIGATIONS, AND RESEARCH RELATING TO THE CAUSES AND EXTENT OF OUTCROP AND UNDERGROUND FIRES IN COAL FORMATIONS AND THE METHODS FOR CONTROL OR EXTINGUISHMENT OF SUCH FIRES; TO PUBLISH THE RESULTS OF ANY SUCH SURVEYS, INVESTIGATIONS, AND RESEARCHES; AND TO DISSEMINATE INFORMATION CONCERNING SUCH METHOD; AND

"/B) TO PLAN AND EXECUTE PROJECTS FOR CONTROL OR EXTINGUISHMENT OF FIRES IN COAL FORMATIONS.

"SEC. 4. THE ACTS AUTHORIZED IN SECTION 3 OF THIS ACT MAY BE PERFORMED--

"/A) ON LANDS OWNED OR CONTROLLED BY THE UNITED STATES OR ANY OF ITS AGENCIES, WITH THE COOPERATION OF THE AGENCY HAVING JURISDICTION THEREOF; AND

"/B) ON ANY OTHER LANDS, UPON OBTAINING PROPER CONSENT OR THE NECESSARY RIGHTS OR INTERESTS IN SUCH LANDS: PROVIDED, HOWEVER, THAT EXPENDITURE OF FEDERAL FUNDS FOR THIS PURPOSE IN ANY PRIVATELY OWNED OPERATING COAL MIN SHALL BE LIMITED TO THE ACTS AUTHORIZED IN SECTION 3 (A).' (ITALICS SUPPLIED.)

THE RECORD SHOWS THAT THE EQUIPMENT WAS LOANED BY FOAMEX, INC., TO CONTROL OR EXTINGUISH A FIRE IN THE COAL FORMATIONS OF A PRIVATELY OWNED OPERATING COAL MINE. UNDER THE PLAIN WORDING OF THE PROVISO TO SECTION 4 (B), ABOVE, IT IS CLEAR THAT FEDERAL FUNDS MAY NOT BE USED TO REIMBURSE THE COMPANY FOR THE LOST EQUIPMENT. MOREOVER, THE RECORD FURTHER SHOWS THAT THE DECISION TO UTILIZE FOAM TYPE EQUIPMENT TO COMBAT THE FIRE WAS MADE AFTER CONSULTATION WITH MANAGEMENT, MINING ENGINEERS, AND THE PRESIDENT OF THE UNITED MINE WORKERS OF AMERICA. THE PRESIDENT OF FOAMEX, C., IS REPORTED TO HAVE STATED THAT HE WAS APPRECIATIVE OF THE OPPORTUNITY TO PROVE WHAT HIS EQUIPMENT COULD DO IN CONTROLLING A MINE FIRE; AND THERE IS NO INDICATION IN THE RECORD OF AN AGREEMENT, EITHER EXPRESS OR IMPLIED, THAT THE COMPANY WAS TO BE REIMBURSED BY THE GOVERNMENT FOR ANY DAMAGE THE EQUIPMENT MIGHT SUFFER. NOR IS THERE ANY INDICATION THAT THE GOVERNMENT WAS IN ANY WAY NEGLIGENT OR AT FAULT FOR LOSS OF THE EQUIPMENT. IT IS MANIFEST THAT THE PRIMARY BENEFIT TO BE DERIVED THROUGH USE OF THE BORROWED EQUIPMENT WAS TO INURE TO THE PECA COAL COMPANY, OPERATOR OF THE STRICKEN MINE. IN VIEW OF THESE CIRCUMSTANCES, IRRESPECTIVE OF THE FACT THAT SECTION 4 (B), 30 U.S.C. 554 (B), PRECLUDES THE USE OF FEDERAL FUNDS TO REIMBURSE FOAMEX, INC., FOR THE LOSS OF ITS EQUIPMENT, THERE WOULD NOT APPEAR TO BE A BASIS FOR CONSIDERING THE GOVERNMENT AS BEING INDEBTED TO THE COMPANY ON EQUITABLE GROUNDS.

THE GIST OF THE BASIS FOR REQUEST FOR RECONSIDERATION IS THAT WHILE THE MATTER WAS INITIALLY PRESENTED ON THE USE OF THE FOAMEX EQUIPMENT TO EXTINGUISH THE PECA SHAFT MINE FIRE, EXTINGUISHMENT OF THE FIRE WAS, IN FACT, TO BE BUT A BY-PRODUCT OF USING THE EQUIPMENT FOR PRIMARILY RESEARCH AND INVESTIGATION PURPOSES. THE ASSISTANT SECRETARY STATES IN HIS LETTER THAT:

THIS BRINGS US TO THE CRUX OF THE PROBLEM: MUST THE BUREAU OF MINES AVOID A RESEARCH OPERATION WITH A NEWLY-DEVELOPED DEVICE FOR THE CONTROL AND EXTINGUISHMENT OF FIRES IN COAL FORMATIONS BECAUSE THE RESULT MAY BE THE EXTINGUISHMENT OF A FIRE IN A PRIVATELY OWNED, OPERATING COAL MINE? THE PROJECT BE VIEWED MERELY AS ONE "FOR THE CONTROL OR EXTINGUISHMENT OF FIRES IN COAL FORMATIONS" (SEC. 3 (B) OF THE ACT; 30 U.S.C. SEC. 553 (B) (, IT IS PROHIBITED. IF IT BE VIEWED AS "INVESTIGATION AND RESEARCH RELATING TO * * * METHODS FOR CONTROL OR EXTINGUISHMENT OF SUCH FIRES" (SEC 3 (A), IBID.), IT IS NOT PROHIBITED. WE THINK THAT THE FACTS IN THIS CASE POINT TO THE LATTER.

THE ASSISTANT SECRETARY POINTS OUT THAT FOAM EXPANSION IS ONE OF THE METHODS THE BUREAU OF MINES HAS BEEN INVESTIGATING AND RESEARCHING FOR A NUMBER OF YEARS TO DETERMINE THE MOST EFFECTIVE MEANS FOR COMBATTING FIRES IN COAL BEDS AND THAT PRIOR TO THE TIME OF THE PECA FIRE IN MARCH 1960, THE BUREAU HAD NOT HAD AN OPPORTUNITY TO TRY FOAM EXPANSION EQUIPMENT ON A FULL-FLEDGED UNDERGROUND FIRE. LETTERS OF APRIL 5 AND APRIL 28, 1960, FROM JOHN NAGY, CHIEF, BRANCH OF DUST EXPLOSIVES, HEALTH AND SAFETY RESEARCH AND TESTING CENTER, TO THE ASSISTANT DIRECTOR, HEALTH AND SAFETY, AND TO THE ASSOCIATE SOLICITOR, DIVISION OF MINERAL RESOURCES, RESPECTIVELY, COPIES OF WHICH WERE INCLUDED WITH THE INITIAL REQUEST FOR OUR OPINION, ARE REFERRED TO AS SUPPORTING THE VIEW THAT THE PECA FIRE AFFORDED JUST THE OPPORTUNITY THE BUREAU WAS AWAITING. AND AS FURTHER JUSTIFICATION FOR VIEWING THIS OPERATION AS A MATTER OF INVESTIGATION AND RESEARCH, THE ASSISTANT SECRETARY ENCLOSED WITH HIS LATEST LETTER A COPY OF BUREAU OF MINES REPORT OF INVESTIGATIONS 5632,"1CONTROLLING MINE FIRES WITH HIGH EXPANSION FOAM, CITING THE FOLLOWING INFORMATION CONTAINED THEREIN:

THE EFFECTIVENESS OF THE FOAM IN CONTROLLING A DEEP-SEATED FIRE OF CONSIDERABLE EXTENT HAS YET TO BE PROVED BY ACTUAL TRIALS IN A MINE.

THE RESEARCH SHOWED THAT HIGH-EXPANSION FOAM WILL CONTROL AN EXPERIMENTAL FIRE OF LIMITED EXTENT IN WOOD, OIL, OR COAL. ITS USEFULNESS IN CONTROLLING A DEEP-SEATED FIRE HAS YET TO BE PROVED BY TRIAL IN AN OPERATING MINE. FOR EFFECTIVE USE, FOAM MUST BE APPLIED WHEN THE FIRE AREA CAN BE APPROACHED AND BEFORE THE FIRE HAS DEVELOPED BEYOND CONTROL. THEREFORE, THERE SHOULD BE LITTLE OR NO DELAY BETWEEN CONTROL ATTEMPTS BY CONVENTIONAL METHODS AND ATTACKING THE FIRE WITH FOAM.

IN CONSIDERING THE QUESTION INITIALLY, WE WERE AWARE, OF COURSE, THAT IF THE FOAM GENERATING EQUIPMENT HAD BEEN BORROWED IN CONNECTION WITH A RESEARCH PROJECT, PAYMENT FOR THE LOSS SUSTAINED WOULD BE AUTHORIZED. BUT IN REVIEWING THE RECORD, IT DID NOT SEEM REASONABLE TO CONSTRUE THE USE OF THE EQUIPMENT AS BEING FOR ANY PURPOSE OTHER THAN TO EXTINGUISH THE FIRE. THE FOLLOWING PARAGRAPHS QUOTED FROM A MEMORANDUM, DATED APRIL 22, 1960, PREPARED BY MR. WILLIAM RACHUNIS, DISTRICT SUPERVISOR, HEALTH AND SAFETY DISTRICT A, TO THE ASSISTANT DIRECTOR, HEALTH AND SAFETY, SHOW HOW THE DECISION TO USE THE FOAM EQUIPMENT WAS INITIATED:

AT A MEETING HELD WITH MESSRS. JOHN HOFFLUND (1ASSISTANT SOLICITOR, BRANCH OF MINES) AND JOSEPH HERNON, ATTORNEYS, (SIC) IN MR. HOFFLUND'S OFFICE ON TUESDAY, APRIL 19, 1960, DURING MY RECENT VISIT TO WASHINGTON, WE DISCUSSED THE PECA MINE FIRE AND THE FOAMEX EQUIPMENT THAT WAS BROUGHT IN TO COMBAT THE FIRE, WHICH WAS NOT RECOVERED. THE SUBJECT WAS THOROUGHLY COVERED, HOWEVER, AT THEIR REQUEST, AND IN AGREEMENT, I AM SUBMITTING IN THIS MEMORANDUM REPORT TO YOU THE DETAILS FOR SUBSEQUENT RELEASE TO THEM:

DURING THE MEETING, MESSRS. ALBERT AND ALFRED PECA (PARTNERS) REQUESTED MESSRS. KERSHETSKY (1PRESIDENT, DISTRICT NO. 9, UNITED MINE WORKERS OF AMERICA) AND RACHUNIS FOR ASSISTANCE IN ATTEMPTING TO OBTAIN FEDERAL AND STATE FUNDS FOR COMBATTING THE FIRE. IT WAS THEN THAT MR. KERSHETCKY CONTACTED CONGRESSMAN IVOR D. FENTON BY TELEPHONE AND PRESENTED THE PROBLEM. DURING THIS TELEPHONE CONVERSATION, CONGRESSMAN FENTON ASKED TO SPEAK WITH THE SUPERIOR BUREAU OF MINES REPRESENTATIVE PRESENT. MR. RACHUNIS RESPONDED TO THE REQUEST, AND HE INFORMED CONGRESSMAN FENTON OF PREVAILING CONDITIONS. MR. FENTON THEN STATED THAT ANY OTHER POSSIBLE MEANS OF COMBATTING THE FIRE SHOULD BE GIVEN CAREFUL CONSIDERATION BEFORE THE MINE WAS FLOODED, AND INQUIRED REGARDING OTHER AVAILABLE MEANS NOT YET CONSIDERED. MR. RACHUNIS REPLIED THAT THE FOAMEX FIRE-FIGHTING EQUIPMENT DEMONSTRATED AT THE BUREAU'S EXPERIMENTAL MINE AT BRUCETON, PENNSYLVANIA, MAY PROVE BENEFICIAL IF SUCH EQUIPMENT COULD BE TRANSPORTED TO THE MINE AS QUICKLY AS POSSIBLE.

AS STATED IN OUR DECISION, THE DETERMINATION TO USE FOAM EQUIPMENT WAS MADE AFTER CONSULTATION WITH MANAGEMENT, MINING ENGINEERS, AND THE PRESIDENT OF DISTRICT NO. 9 OF THE UNITED MINE WORKERS OF AMERICA. THERE WAS NO INDICATION THAT USE OF THE EQUIPMENT WAS FOUNDED UPON THE BUREAU'S DESIRE TO INVESTIGATE OR CONDUCT RESEARCH RELATING TO THE USE OF EXPANSION FOAM AS A METHOD FOR CONTROLLING THE PECA FIRE. THE PARAGRAPH QUOTED ABOVE INDICATED TO US THAT THE PRIMARY, IF NOT THE SOLE, REASON FOR USING FOAM EQUIPMENT AT THE FIRE WAS AS A LAST DITCH EFFORT TO CONTROL THE FIRE WITHOUT RESORT TO FLOODING THE MINE. THE LETTERS FROM MR. NAGY AND REPORT 5632, REFERRED TO BY THE ASSISTANT SECRETARY, DO SHOW THAT THE BUREAU WAS INTERESTED IN LEARNING WHETHER USING FOAM UNDER ACTUAL MINE FIRE CONDITIONS WAS FEASIBLE; THEY DO NOT, HOWEVER, SUPPORT THE PROPOSITION THAT A DETERMINATION WAS MADE TO USE FOAM EQUIPMENT AT THE PECA FIRE FOR THE PURPOSE OF RESEARCH OR INVESTIGATION. NOWHERE IN THE RECORD DO WE FIND ANY STATEMENT OR INDICATION THAT THE EQUIPMENT WAS BEING USED FOR TEST PURPOSES OR TO PROVE THE EFFECTIVENESS OF FOAM BY ACTUAL TRIAL IN A MINE. THE ATTEMPT TO CONTROL THE FIRE THROUGH USE OF THE EQUIPMENT WAS GENERATED BY THE INTERESTS OF PERSONS OUTSIDE THE BUREAU, AND ANY INFORMATION WHICH MIGHT HAVE BEEN DERIVED FROM THE OPERATION WOULD HAVE BEEN INCIDENTAL TO THE DESIRE OF COMPANY AND UNION OFFICIALS THAT THE EQUIPMENT BE TRIED. AND THERE WAS NO MENTION MADE IN THE LETTER INITIALLY SUBMITTING THE MATTER THAT THE BUREAU ACQUIRED THE EQUIPMENT FROM FOAMEX FOR RESEARCH PURPOSES OR OTHERWISE CONSIDERED OPERATIONS AT THE PECA SHAFT MINE AS RELATING TO RESEARCH.

THE ASSISTANT SECRETARY NOW ARGUES, HOWEVER, THAT:

IT DOES NOT SEEM REASONABLE TO CONTEND THAT BECAUSE THE TEST IF SUCCESSFUL, WOULD RESULT IN THE EXTINGUISHMENT OF A FIRE IN AN OPERATING MINE, THEREFORE THE BUREAU WAS NOT AUTHORIZED TO MAKE THE TEST. THE ESSENCE OF THE OPERATION, AS FAR AS THE BUREAU OF MINES IS CONCERNED, WAS NOT THE EXTINGUISHMENT OF THAT PARTICULAR FIRE, BUT RATHER THE EXPERIMENTAL USE OF A NEW DEVICE TO DETERMINE ITS USEFULNESS IN THE EXTINGUISHMENT OF ANY COAL-MINE FIRE. IT WOULD BE DIFFERENT IF THE OPERATION HAD BEEN BY ORDINARY CONVENTIONAL METHODS FOR THE CONTROL OR EXTINGUISHMENT OF COAL-SEAM FIRES, SUCH AS THE BUREAU IS FREQUENTLY ENGAGED IN.

AS SHOWN ABOVE, THE RECORD DOES NOT UNEQUIVOCALLY ESTABLISH WHETHER THE MAIN PURPOSE OF THE OPERATION WAS RESEARCH AND EXPERIMENT OR THE EXTINGUISHMENT OF A PARTICULAR FIRE. HOWEVER, UPON RECONSIDERATION OF THE MATTER IN LIGHT OF THE ADDITIONAL INFORMATION FURNISHED, WE RECOGNIZE THAT, IN VIEW OF THE EMERGENCY CONDITIONS PREVAILING AT THE TIME THE DECISION TO USE FOAM EQUIPMENT WAS REACHED, THE WRITTEN RECORD MAY NOT BE AS COMPLETE AS WOULD OTHERWISE BE THE CASE; THAT THE BUREAU WAS CARRYING ON RESEARCH AND EXPERIMENTAL WORK WITH FOAM GENERATING EQUIPMENT AND DID HAVE A CURRENT INTEREST IN TESTING SUCH EQUIPMENT UNDER ACTUAL MINE FIRE CONDITIONS; AND THAT THE MAIN PURPOSE FOR WHICH THE BUREAU PARTICIPATED IN THE OPERATIONS INVOLVED IS NOT SUBJECT TO PRECISE DETERMINATION. THEREFORE, WE WILL NOT OBJECT TO PAYMENT BY YOUR DEPARTMENT, OUT OF FISCAL YEAR 1960 APPROPRIATIONS TO THE BUREAU OF MINES FOR HEALTH AND SAFETY, FOR THE LOSS IN EQUIPMENT SUFFERED BY FOAMEX, INC., PROVIDED THAT ANY PAYMENT MADE SHALL NOT BE IN EXCESS OF THE ESTIMATED FAIR MARKET VALUE OF THE EQUIPMENT LOST.