B-143493, AUG. 12, 1960

B-143493, AUG. 12, 1960

TO THE SECRETARY OF THE INTERIOR:

BY LETTER DATED JULY 12, 1960, FILE REFERENCE E-60-1172.20, THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR REQUESTED OUR OPINION AS TO WHETHER YOUR DEPARTMENT MIGHT PROPERLY PAY FOR THE LOSS OF FOAMGENERATOR EQUIPMENT LOANED BY THE FIRM OF FOAMEX, INC., TO AID IN EXTINGUISHING A COAL MINE FIRE AT THE PECA SHAFT MINE, PECA COAL COMPANY, MAHANOY CITY, PENNSYLVANIA.

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 FIRE-FIGHTING 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 STATED, 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 MINE SHALL BE LIMITED TO THE ACTS AUTHORIZED IN SECTION 3 (A).'

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, NC., 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) 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.

ACCORDINGLY, THE SPECIFIC QUESTION RAISED AS TO WHETHER YOUR DEPARTMENT MAY, OUT OF FUNDS APPROPRIATED FOR PURPOSES OF THE CITED 1954 ACT, PAY THE CLAIM OF FOAMEX, INC., FOR LOST EQUIPMENT AND SUPPLIES VALUED AT $10,211.30 IS ANSWERED IN THE NEGATIVE.