JANUARY 1989 

Connnission Decisions 

01-10-89 Emery Mining Corp./Utah Power & Light Co. WEST 87-130-R Pg. 1 

01-12-89 Peabody Coal Company KENT 86-94-R Pg. 4 

01-12-89 ' Charles Conatser v. Red Flame Coal Co., Inc. KENT 87-168-D Pg. 12 

01-13-89 Jim Walter Resources, Inc. SE 87-8 Pg. 21 

01-27-89 Birchfield Mining Company WEVA 87-272 Pg. 31 

Administrative Law Judge Decisions 

01-03-89 Blue Circle Incorporated CENT 88-76-M Pg. 45 

01-09-89 Eastside Coal Company, Inc. WEST 88-77 Pg. 68 

01-09-89 Utah Power & Light Company WEST 88-92 Pg. 70 

01-13-89 Energy Fuels Coal, Inc. WEST 88-21 Pg. 78 

01-17-89 Gerard Sapunarich v. Lehigh Portland Cement Co. YORK 88-29-DM Pg. 81 

01-19-89 Mathies Coal Company PENN 88-36-R Pg. 90 

01-23-89 Phyllis Palmieri v. Southern Ohio Coal Co. WEVA 88-305-D Pg. 101 

01-25-89 Tunnelton Mining Company PENN 88-10-R Pg. 102 

01-26-89 Westwood Energy Properties PENN 88-42-R Pg. 105 

01-27-89 Bowling Mountain Mining Corp. KENT 88-133 Pg. 119 

01-27-89 Emery Mining Corp. /Utah Power & Light Co. WEST 87-130-R Pg. 122 

01-30-89 Emery Mining Corp./Utah Power & Light Co. WEST 87-130-R Pg. 127 

JANUARY 1989 

Review was granted in the following cases during the month of January: 

Secretary of Labor, MSHA v. Consolidation Coal Company, Docket No. WEVA 88-176. 

(Judge Merlin, November 28, 1988) 

Secretary of Labor, MSHA v. Lincoln Sand & Gravel Company, Docket No. LAKE 88-67-M. 

(Judge Maurer, December 8, 1988) 

Review was denied in the following case during the month of January: 

Ernie Bruno v. Cyprus Plateau Mining Corporation, Docket No. WEST 88-157-D. 

(Judge Morris, November 29, 1988) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

EMERY MINING CORPORATION 

and UTAH POWER AND LIGHT 

COMPANY 

v. 

SECRETARY OF LABOR; 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

UNITED MINE WORKERS 

OF AMERICA (UMWA) 

1730 K STREET NW; 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 10, 1989 

) DOCKET NOS. WEST 87-130-R 

) THROUGH -137-R 

) 

) WEST 87-144-R 

) THROUGH-147-R 

) 

) WEST 87-150-R 

) WEST 87-152-R 

) WEST 87-153-R 

) 

) WEST 87-155-R 

) THROUGH 161-R 

) 

) WEST 87-163-R 

) 

) WEST 87-243-R 

) THROUGH -249-R 

) 

) WEST 87-208-R 

) WEST 87-209-R 

) WEST 87-25 

DIRECTION FOR REVIEW AND ORDER 

On November 19, 1988, the Secretary of Labor filed a petition for 

interlocutory review of an order issued August 30, 1988, wherein the 

presiding administrative law judge granted the petition of Utah Power and 

Light Company ("UP&L") to vacate 30 modified citations and orders to the 

extent that they named UP&L as a party. 

On December 5, 1988, UP&L filed an opposition to the petition for 

interlocutory review arguing, among other things, that the subject order was 

not interlocutory but rather was a final order, reviewable only upon the 

timely filing of a petition for discretionary review in accordance with 30 

U.S.C. Sec. 823(d)(2)(A)(i) and Commission Procedural Rule 70, 29 C.F.R. 

Sec. 2700.70. See UP&L Opposition at 6. 

1 
On December 19, 1988, the Secretary filed a reply to UP&L's opposition, 

arguing that . the subject order was not a final decision because the 

requirements of Rule 54(b) of the Federal Rules of Civil Procedure were not 

met. l/ Specifically the Secretary stated that: 

The August 30 Order contains no express determination 

that there is no reason for delay or express direction 

for the entry of final judgment as to Utah Power and Light. 

Sec. Reply at 3. 

In Local Union 1889, District 17, United Mine Workers of America v. 

Westmoreland Coal Co., 5 FMSHRC 1407, 1411-12 (August 1983), pursuant to 

Commission Procedural Rule l(b), 29 C.F.R. Sec. 2700.l(b), we applied Rule 

54(b) in the context of an adjudication of fewer than all claims presented 

in an action. 2/ We find that Rule 54(b) is equally applicable in the 

context of adjudications involving multiple parties. We concur in the 

statement in 10 Wright, Miller, & Kane, Federal Practice and Procedure, Sec. 

2654 at 38 (1983) (footnotes omitted): 

The rule does not require that a judgment be entered when 

the court disposes of one or more claims or terminates the 

action as to one or more parties. Rather, it gives the court 

discretion to enter a final judgment in these circumstances 

and it provides much-needed certainty in determining when 

a final and appealable judgment has been entered. As stated 

by one court, "if it does choose to enter such a final order, 

[the court] must do so in a definite, unmistakable manner. 11 

[David v. District of Columbia, 187 F.2d 204,206 (D.C. Cir. 

1950).] Absent a certificatiqn under Rule 54(b) any order in 

a multiple-party or multiple-claim action, even if it appears 

to adjudicate a separable portion of the controversy, is 

interlocutory. 

See also, Huene v. United States , 743 F.2d 703, 704 (9th Cir. 1984). 

11 The Secretary's Motion to File Reply Memorandum is hereby granted. 

'J;./ Rule l(b), 29 C.F.R. Sec. 2700.l(b) states: 

Applicability of other rules. On any procedural question not regulated 

by the Act, these Procedural Rules, or the Administrative Procedure Act 

(particularly 5 U.S.C. Secs. 554 and 556), the Commission or any Judge 

shall be guided so far as practicable by any pertinent provisions of 

the Federal Rules of Civil Procedure as appropriate. 

2 
In the case at bar, the parties clearly have differing views as to the 

effect of the order intended by the administrative law judge. Accordingly, 

we hereby grant the petition for interlocutory review for the limited 

purpose of remanding this matter to the administrative law judge for an 

expeditious determination of whether a certification of finality in 

accordance with Rule 54(b) is appropriate. After the judge clarifies the 

nature of his dismissal on remand, we will issue a further appropriate order 

concerning the Secretary's petition for interlocutory review. Pending 

issuance of such an order by the Conunission, all time requirements are 

hereby stayed. 

Accordingly, 

petition, and ·we 

remand. 

we hold 

retain 

in abeyance our ruling on the Secretary's 

jurisdiction pending the judge's determination on 

rRICHARD V. BACKLEY, Commissioner 

~~~ L. CLAIR NELSON, Connnissioner 

3 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PEABODY COAL COMPANY 

January 12, 1989 

Docket Nos. KENT 86-94-R 

KENT 86-95-R 

KENT 87-154 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

DECISION 

BY THE COMMISSION: 

In this consolidated contest and civil penalty proceeding arising 

under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et 

seg. (1982) ("Mine Act" or "Act"), the issue presented is whether 

Commission Administrative Law Judge William Fauver erred in determining 

that Peabody Coal Company ("Peabody") violated 30 C.F.R. § 75.1710-1 by 

not equipping certain mobile bridge carriers ("MBC") with cabs or 

canopies. 9 FMSHRC 945 (May 1987)(ALJ). l/ On the bases that follow, 

l/ 30 C.F.R. § 75.1710-1, which implements the statutory cab and 

canopy standard, 30 U.S.C. § 877(j), requires installation of cabs or 

canopies on "self-propelled electric face equipment." Section 75.1710-

l(a) states in pertinent part: 

Canopies or cabs; self-prooelled electric face 

~guipment; installation requirements. 

[A]ll self-propelled electric face equipment, 

including shuttle cars, which is employed in the 

-3.ctive workings of each underground coal mine ... 

shall, in accordance with the schedule of time 

specified in paragraphs (a)(l), (2), (3), (4), (5), 

and (6) of this section, be equipped with 

substantially constructed canopies or cabs, located 

4 
we conclude that the judge's finding of violation is supported by 

substantial evidence and is legally correct in result. Accordingly, we 

affirm. 

Peabody owns and operates the Camp No. 11 Mine, a large underground coal mine located near Morganfield, Kentucky. The mine is part 

of a complex employing 1,000 people and producing 4.1 million tons of 

coal annually. In three of the mine's five operating sections, coal is 

mined using continuous mining machines and shuttle cars. In the other 

two operating sections, a "continuous haulage system" is used. Coal is 

loaded directly from the continuous minei onto a series of haulage belts 

contained in a mobile haulage system, eliminating the need for shuttle 

cars.· This mining process results in offset crosscuts at angles of 

approximately 60 degrees. II 

When the continuous haulage system is in use, coal cut by the 

continuous mining machine is dumped from the machine's tailpiece onto 

the first piggyback conveyor, where an electrically powered conveyor 

helt transports the coal along the piggyback's conveyor and onto the 

first MBC. The MBC contains an electrically powered conveyor belt that 

transports the coal to the second piggyback conveyor. The coal 

subsequently passes to the second MBC and then to the third piggyback 

conveyor. From the third piggyback conveyor, the coal is transferred by 

a dolly to the panel conveyor belt and is transported out of the mine. 

The continuous miner, piggyback conveyors, and MBCs are equipped with 

slot devices through which pins are inserted to hook the components 

together. These components may be connected and disconnected, and are 

usually disconnected and moved between mining cycles. 

Each MBC is equipped with an electric motor that drives its 

conveyor belt and another electric motor that moves the MBCs forward and 

backward on caterpillar tracks. The movement of the MBCs allows the 

continuous haulage system to adjust to the movement of the continuous 

mining machine without disrupting transportation of the coal. Each MBC 

is approximately 30 feet long and is operated by a miner using controls 

located approximately 20 feet from the MBC's inby end (the end nearer 

the face). The chief duty of the operator of the first MBC is to keep 

the piggyback conveyor aligned with the tailpiece of the continuous 

miner in order to assure the proper movement of the mined coal. Since 

1978, MBCs without protective cabs or canopies have been used as 

components of the continuous haulage system at the mine and, prior to 

the issuance of the citations in question in 1986, had not been cited as 

being in violation of section 75.1710-1. 

and installed in such a manner that when the 

operator is at the operating controls of such 

equipment he shall be protected from falls of roof, 

face, or rib, or from rib and face rolls ...• 

ll A "crosscut" is a passageway or opening driven between and across 

mining entries for ventilation and haulage purposes. Bureau of Mines, 

U.S. Dept. of the Interior, Dictionary of Mining, Mineral, and Related 

Terms 280 (1968)("DMMRT"). 

5 
On March 3, 1986, James Hackney, an inspector of the Department of 

Labor's Mine Safety and Health Administration ("MSHA"), inspected the 

No. 6 section of the mine, a continuous haulage system section. He 

observed the two MBCs being operated without protective cabs or 

canopies. Hackney issued to Peabody a citation pursuant to section 

104(a) of the Mine Act, 30 U.S.C. § 814(a), alleging a violation of 

section 75.1710-1. On March 5, 1986, he inspected another continuous 

haulage system in the mine's No. 1 section, where he observed the first 

MBC in the system being operated without a cab or canopy. Hackney 

issued to Peabody another section 104(a) citation alleging a violation 

of section 75.1710-1. 

Peabody contested the citations and the Secretary's proposed 

penalty assessments for the alleged violations. Before Judge Fauver, 

the parties agreed that the cited MBCs were not equipped with cabs or 

canopies at the times of citation and that the MBCs were self-propelled 

electrical equipment. 

The judge., stating that an MBC is self-propelled and electrically 

operated, regarded the controlling issue to be whether an MBC was 

electric face equipment. 9 FMSHRC at 947. The judge noted that the 

cab/canopy regulation does not contain a definition of the equipment to 

which it applies. In agreement with the parties' mutual position at the 

hearing (Tr. 14-16), however, he found that the "permissibility" 

definition contained in 30 C.F.R. § 75.2(i) supplied "a practical line 

of demarcation." Id. }/ That section provides in relevant part that 

equipment permissibility within the context of "electric face equipment" 

pertains to "all electrically operated equipment taken into or used inby 

the last open crosscut of an entry or a room of any coal mine .... " 

Viewing face equipment as equipment used in or inby the last open 

crosscut, the judge focused on the meaning of "last open crosscut," a 

term not defined in the Mine ~ct or the Secretary's regulations. 

9 FMSHRC at 948. 

In construing that term, the judge rejected the testimony of 

}/ 30 C.F.R. § 75.2(i) repeats section 318(i) of the Mine Act, 30 

U.S.C. § 878(i), and states in part: 

"Permissible" as applied to electric face 

equipment means all electrically operated equipment 

taken into or used inby the last open crosscut of an 

entry or a room of any coal mine the electrical 

parts of which; including, but not limited to, 

associated electrical equipment, components, and 

accessories are designed, constructed, and installed 

in accordance with specifications of the Secretary, 

to assure that such equipment will not cause a mine 

explosion or mine fire and the other features of 

which are designed and constructed in accordance 

with the specifications, of the Secretary, to 

prevent, to the greatest ext-ent possible, other 

accidents, in the use of such equipment .... 

6 
Peabody's witness, Mine Superintendent Charles .Jernigan, that the last 

open cros_scut is the area between, but not including any portion of, the 

mine entries. 9 FMSHRC at 948. Instead, the judge found "reliable and 

accurate" the testimony of MSHA 1 s Assistant District Manager David 

Whitcomb, that the last open crosscut is the last open, continuous line 

along which the air yentilating a working section circulates. 9 FMSHRC 

945. 4/ Based on Whitcomb's testimony, the judge found: "The last open 

crosscut ... [is] defined by the flow of air across the section, [and) 

includes not only the openings between the entries but across the 

intersections and that part of an entry inby an intersection to the 

point of the next intersection inby. That is, the last open crosscut 

follows the air flow across the entries of the working section." 

9 FMSHRC at 946. 

Applying this description to the evidence, the judge determined 

that the operator's compartment of the first MBC enters the last open 

crosscut during mining operations. 9 FMSHRC at 949. The judge held 

that "since the first MBC operator's compartment enters the last open 

crosscut, it is required to have a cab or canopy under [section) 

75.1710-1. 11 Id. The judge rejected the Secretary's argument that the 

continuous haulage system is a "single unit, 11 and that application of 

the standard to the first MBC in the unit therefore brings the second 

MBC in the system within the reach of the standard. 9 FMSHRC at 949. 

The judge stated: 

Id. 

The test of applying ... [section 75.1710-1] is 

whether the equipment operator's compartment is 

subject to being used in or inby the last open 

crosscut. It would stretch the standard too far to 

hold that the second MBC [in the continuous haulage 

system), which is far removed from the last open 

crossc11t, should be considered "face equipment" 

solely because the front part of the continuous 

haulage system is in or inby the last open crosscut. 

The judge assessed token civil penalties of $1.00 for each 

violation, noting that "the cases involve a novel haulage system that 

raises a question of first impression," and that Peabody had made a good 

faith test of its interpretation of section 75.1710-1 as applied to the 

continuous haulage system. 9 FMSHRC at 949. 

We granted Peabody's petition for discretionary review, which 

asserts essentially that the judge erred in his description of last open 

crosscut and, hence, in holding that the first MBC in each continuous 

haulage system is subject to the cited standard. We also directed for 

review an issue raised by the Secretary -- whether the judge erred in 

!!,./ "Working section" (often referred to as 11 section11 ) means a working 

area of a coal mine, from a loading point to and including a working 

face. See 30 U.S.C. § 878(g)(3); 30 C.F.R. § 75.2(g)(3); DMMRT 979. 

(See n.7 infra for the definition of 11working face.") 

7 
concluding that the continuous haulage system should not be viewed as a 

single unit for purposes of applying section 75.1710-1. 

While neither the statutory cab/canopy standard nor section 

75.1710-1 contains a definition of the equipment that it covers, we 

conclude that, as the parties agree and as the judge found, section 

75.2(i){n. 3 supra) affords a "practical line of demarcation." That 

provision, in defining "permissible" as applied to "electric face 

equipment," describes the latter class of equipment as "electrically 

operated equipment taken into or used inby the last open crosscut of an 

entry or a room of any coal mine •... " (Emphasis added.) 5/ The key 

question thus becomes the application of the term "last open crosscut" 

to the mining configuration used by Peabody. 

Although "last open crosscut" is not defined in the Mine Act or 

the Secretary's regulations, the Act and regulations contain repeated 

references to the term. §_/ As noted, a "crosscut" is a passageway or 

opening driven across entries for ventilation and haulage purposes. In 

general, the last open crosscut thus refers to the last (most inby) open 

passageway between entries in a working section of a coal mine. II The 

last open crosscut "is an area rather than a point or line .... " Henry 

Clay Mining Co., 3 IBMA 360, 361 (1974). Under the facts presented, the 

judge determined that the specific boundaries of this area are 

demarcated by the air flow across the developing entries of a working 

section and include the crosscuts (openings) between entries, the 

contiguous intersections of the entries and crosscuts, and those 

portions of the entries inby such intersections. We conclude that this 

description, considered from a general standpoint and as applied to the 

2_/ A standard definition of "face equipment" similarly provides in 

relevant part: 

Face equipment is mobile ... mining equipment having 

electric motors ... normally ... operated inby the 

last open crosscut in an entry or room. 

DMMRT supra, at 407. 

§_/ See, ~· section 303 of the Act, 30 U.S.C. § 863, and 30 C.F.R. 

§ 75.301 et seg. (ventilation requirements), and section 305 of the Act, 

30 U.S.C. § 865, and 30 C.F.R. § 75.501 et seg. (permissibility 

requirements for electrical equipment). (These statutory provisions, 

including their references to last open crosscut, were carried over from 

the Mine Act's predecessor, the Federal Coal Mine Health and Safety Act 

of 1969, 30 U.S.C. § 801 et seg. (1976)(amended 1977).) 

lf "Working face" is "any place in a coal mine in which work of 

extracting coal from its natural deposit in the earth is performed 

during the mining cycle .... " 30 U.S. C § 878(g)(l); 30 C. F. R. 

§ 75.2(g)(l). See also DMMRT 407, 1244 (definitions of "face" and 

"working face" )-.-The area in by the last open crosscut (i.e .. , between 

the last open crosscut and the working face) is referred to as the 

"working place." 30 U.S.C. § 878(g)(2); 30 C.F.R. § 75.2(g)(2). 

8 
mining configuration in question, comports with commonly accepted mining 

terminology and is supported by substantial evidence of record. 8/ . -

MSHA's witness Whitcomb stated that the last open crosscut is "the 

last continuous line the air passes through going across the [run) from 

one side of the entry to the other." 2/ Whitcomb described the boundary 

at which the last open crosscut begins as the location of the check or 

back-up curtains, adding that "anything inby that location would have to 

be maintained permissible." Tr. 274, 276. 10/ Peabody's witness 

Jernigan did not dispute Whitcomb's views regarding the outer boundary 

of the last open crosscut area. However, Jernigan indicated on direct 

examination that the last open crosscut includes only the crosscuts, 

i.e., the passageways roughly parallel to the working face, but not the 

intersections of crosscuts and mine entries, or any portion of mine 

entries. Tr. 163-166, 198-200. As the judge stated, however, this 

interpretation is illogical because it makes the area inby the last open 

crosscut "the middle of a solid block of coal." 9 FMSHRC at 948. As 

Jernigan himself agreed on cross-examination, the last open crosscut is 

"where the air travels through on the intake and exhaust system." 

Tr. 163. Entries and intersections of crosscuts and entries are 

ventilated by air travelling through the intake and exhaust system. 

Indeed, the air must travel through those areas in order to pass along 

the crosscuts adjacent to the face. 

The interpretation offered by Whitcomb and accepted by the judge 

~/ We recognize that in any given coal mine, the mining methodology 

used may uniquely determine the last open crosscut. Thus, we must leave 

to future cases any descriptive refinements necessitated by other 

particular mining configurations. 

21 With respect to this portion of Whitcomb's testimony, the judge 

noted: 

Although the court reporter transcribed the word 

"drum" at this point, I find that Mr. Whitcomb 

actually said "run" and the reporter made an error 

in transcription. "Run11 as used by Mr. Whitcomb 

refers to the distance from the Number 1 to the 

Number 5 entries, that is, the full expanse of the 

coal faces being developed .... 

9 FMSHRC at 948 n.l. 

J!l/ Check curtains, used to provide ventilation to the working faces, 

are overlapping strips of heavy, fire-resistant material serving as 

temporary stoppings and positioned to hold the air flow along face 

areas. See DMMRT at 292 (definition of "curtain"); ~ also S. Cassidy 

(ed.), Elements of Practical Coal Mining 212-213, 220 (1973). 30 C.F.R. 

§ 75.302(b)(2) states that check curtains required under the mine's 

approved ventilation plan "shall be so installed to minimize air leakage 

and permit traffic to pass through without adversely affecting 

ventilation." 

9 
is fully consistent with the use of the term in other portions of the 

Mine Act and the Secretary's mandatory standards. For example, 30 

C.F.R. § 75.301, which repeats section 303(b) of the Act, 30 U.S.C. 

§ 863(b), requires in part that "[t]he minimum quantity of air reaching 

the last open crosscut in any pair or set of developing entries and the 

last open crosscut in any pair or set of rooms shall be 9,000 cubic feet 

a minute." It would b~ absurd to require maintenance of 9,000 cubic 

feet of air per minute only in those crosscuts when the hazards 

alleviated by providing the required ventilation are also present in the 

intersections of those crosscuts and entries. In like manner, the 

permissibility requirements of 30 C.F.R. § 75.500, et seq., based on 30 

U.S.C. § 865, apply to specified electrical equipment located in or 

taken inby the last open crosscut. 

Thus, we conclude that an MBC is "self-propelled electric face 

equipment" within the meaning of the cited standard if it is.taken into 

the last open crosscut as described herein. Substantial evidence 

supports the judge's finding that the first MBCs were so used at 

Peabody's mine. 

Using exhibits depicting the location of the continuous haulage 

system during mining operations, Whitcomb testified that given the 

length of the pillars and of the continuous haulage system units, the 

first MBC operator's compartment entered the last open crosscut. 

Tr. 252-69; Exhs. G-10, 11, & 12; R-11 & 12. Whitcomb's testimony is 

consistent with the exhibits depicting the continuous haulage system as 

used in the mine. In addition, the MSHA inspector who issued the 

contested citations testified without dispute that he had observed the 

operators of the first MBCs in the last open crosscut, and his 

explanation of what constitutes the last open crosscut was consistent 

with Whitcomb's description of that area and with the definition adopted 

by the judge. Tr. 32, 36. In light of this evidence, we conclude that 

the judge properly held that Peabody violated section 75.1710-1 by using 

the cited first MBCs in the continuous haulage systems without cabs or 

canopies. 

Although we agree with the judge that Peabody violated section 

75.1710-1, we reject his premise that the violations were established 

only because "the first MBC operator's compartment enter[ed] the last 

open crosscut." 9 FMSHRC at 949 (emphasis added). Given the 

continually changing dynamics of a working section, determining 

compliance with section 75.1710-1 based on the precise location of the 

operator's compartment invites confusion in both compliance and 

enforcement. Once any portion of an MBC enters an area inby the last 

open crosscut, it is properly classified as face equipment requiring a 

cab or canopy. 

The judge also concluded that the second MBC in the continuous 

haulage system of the No. 1 section was not subject to section 75.1710-

1. He observed that it "would stretch the standard too far to hold that 

the second MBC, which is far removed from the last open crosscut, should 

be considered face equipment solely because the front part of the 

continuous haulage system is in or inby the last open crosscut." 

9 FMSHRC at 949. Although we granted the Secretary's request for review 

10 
of the judge's conclusion in this regard, the Secretary has not further 

argued the issue in her brief on review. To the contrary, the Secretary 

now asser·ts that the second MBC is subject to the standard if it is used 

in the first MBC position. S. Br. 10 & n.4 .. Given these facts, we find 

it unnecessary to decide whether the lack.of a cab or canopy on the 

second MBC in the No. 1 section violated section 75.1710-1. Finally, 

~e reject Peabody's argument that the Secretary was estopped from citing 

the continuous haulage system because the system had not been cited 

previously. ~' ~' Emery Mining Corp. v. Secretary, 744 F.2d 1411, 

1416 (10th Cir. 1984); King Knob Coal Co., 3 ~MSHRC 1417, 1421-22 (June 

1981). 

On the foregoing bases, we affirm the judge's decision. 

ames~ /i Lastowka, ... ommissioner 

Cf~~_,__~ f le_L-1-c-."' 

L. Clair Nelson, Commissioner 

11 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 12, 1989 

CHARLES CONATSER 

v. Docket No. KENT 87-168-D 

RED FLAME COAL COMPANY, INC. 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

DECISION 

BY THE COMMISSION: 

In this discrimination proceeding arising under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982) ("Mine 

Act" or "Act"), Charles Conatser alleges that Red Flame Coal Company, 

Inc. ("Red Flame") violated section lOS(c)(l) of the Mine Act when it 

discharged him for refusing to drive a rock truck. l/ Commission 

lf Section lOS(c), 30 U.S.C. § 815(~), provides in relevant part: 

Discrimination or interference prohibited; 

complaint; investigation; determination; hearing 

(1) No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

miner ... because such miner ... has filed or made a 

complaint under or related to this [Act], including 

a complaint notifying the operator or the operator's 

agent ... of an alleged danger or safety or health 

vioiation in a coal or other mine or because of 

the exercise by such miner ... of any statutory 

right afforded by this [Act]. 

(2) Any miner •.. who believes that he has been 

discharged, interfered with, or otherwise 

discriminated against by any person in violation of 

this subsection may, within 60 days after such 

violation occurs, file a complaint with the 

Secretary alleging such discrimination. Upon 

12 
Administrative Law Judge George A. Koutras dismissed Conatser 1 s 

discrimination complaint on the grounds that Conatser failed to 

communicate his belief in the existence of a safety hazard to Red 

Flame's foreman at the time of his work refusal. 10 FMSHRC 416 (March 

1988)(ALJ). For the reasons that follow, we affirm the judge's 

decision. 

Conatser was employed by Red Flame at its strip coal mine on 

Whitco Mountain in Letcher County, Kentucky, as a general loader 

operator from July 14, 1986, through the date of his discharge on 

January 26, 1987. In that capacity, Conatser operated an end loader, a 

heavy vehicle resembling a tractor and equipped with a loading bucket. 

Conatser had been transferred to the Red Flame mine by No. 8 Limited of 

receipt of such complaint, the Secretary shall 

forward a copy of the complaint to the respondent 

and shall cause such investigation to be made as he 

deems appropriate. Such investigation shall 

commence within 15 days of the Secretary's receipt 

of the complaint •... If upon such investigation, 

the Secretary determines that the provisions of this 

subsection have been violated, he shall immediately 

file a complaint with the Commission, with service 

upon the alleged violator and the miner ... alleging 

such discrimination or interference and propose an 

order granting appropriate relief. The Commission 

shall afford an opportunity for a hearing ... and 

thereafter shall issue an order, based upon findings 

of fact, affirming, modifying, or vacating the 

·Secretary's proposed' order, or directing other 

appropriate relief. Such order shall become final 

30 days after its issuance .... · 

(3) Within 90 days of the. receipt of a complaint 

filed under paragraph (2), the Secretary shall 

notify, in writing, the miner ... of his determinati9n whether a violation has occurred. If the 

Secretary, upon investigation, determines that the 

provisions of this subsection have not been 

violated, the complainant shall have the right, 

within 30 days of notice of the Secretary's 

determination, to file an action in his own behalf 

before the Commission, charging discrimination or 

interference in violation of paragraph (1). The 

Commission shall afford an opportunity for a hearing 

, .. and thereafter shall issue an order, based upon 

findings of fact, dismissing or sustaining the 

complainant's charges and, if the charges are 

sustained, granting such relief as it deems 

appropriate, including, but not limited to, an order 

requiring the rehiring or reinstatement of the miner 

to his former position with back pay and interest or 

such remedy as may be appropriate. Such order shall 

become final 30 days after its issuance .... 

13 
Virginia ("No. 8 Limited"), a parent corporation of Red Flame for whom 

he had worked in the same capacity for a period of some seven years. 

While employed at the No. 8 Limited mine, Conatser had driven rock 

trucks on several occasions. (Rock trucks are heavy haulage vehicles 

with empty weights ranging from 50 to 85 tons.) 

At approximately 7:00 a.m. on January 26, 1987, Conatser reported 

for work at Red Flame and was advised that his end loader was 

inoperable. There were 10 to 12 inches of snow on the ground and Red 

Fl;:;\Ille 1 s foreman, Zachary Mullins, was having the haulroads scraped to 

remove the snow. Mullins directed Conatser to assist Red Flame's 

mechanic in starting up some heavy equipment. While Conatser was so 

occupied, Mullins radioed the mechanic and directed him to start-up an 

85-ton WABCO rock truck. 

Mullins drove up to the WABCO rock truck and motioned Conatser 

over. Mullins then instructed Conatser to drive the rock truck that 

day. Conatser responded, "I can't drive a rock truck." 10 FMSHRC at 

466-67; Tr. 75, 116, 497-98. Mullins then told Conatser that "Roy, 

Clifford, Robert and Larry" -- other miners at Red Flame -- had all 

learned to drive a rock truck and that Conatser could drive. Tr. 75, 

423; Mullins Dep. 27-28; Exhibit R-2. When Conatser again told Mullins 

that he could not drive the truck, Mullins told Conatser either to drive 

it or 11 go to the house." ]j Conatser responded that Mullins was forcing 

him to go to the house. Conatser then asked Mullins to get his steeltoed safety shoes for him, which were in Conatser's loader, and Mullins 

told Conatser to pick them up on his way out. Conatser left the mine 

site. Later that same day, Conatser filed a discrimination complaint 

with the Department of Labor's Mine Safety and Health Administration 

("MSHA") alleging that he had been discharged by Red Flame in violation 

of section lOS(c) of the Mine Act. 

On the advice of MSHA, Conatser subsequently contacted Wesley 

Burke, No. 8 Limited's president, and on February 27, 1987, met with 

Burke and Cruce Davis, Red Flame's mine superintendent, to ask for his 

end loader job back. At that time, Conatser advised management that he 

had refused to drive the rock truck because he feared for his safety as 

he did not know how to "gear down" a rock truck on a slope and because 

he had never driven a rock truck under wet weather conditions. When 

Conatser called Burke a week later to find out whether Red Flame would 

rehire him, Burke informed Conatser that he would not be rehired. 

After investigating Conatser's complaint, which alleged in essence 

that he was discharged after refusing to operate a rock truck that he 

lacke.d experience to drive, MSHA advised Conatser on May 22, 1987, that 

the information received during its investigation did not establish a 

£/ Both the Commission and the Sixth Circuit Court of Appeals agree 

that this language is synonymous with a discharge in the mining 

industry. See,~· Moses v. Whitley Development Corp., 4 FMSHRC 1475, 

1479 (August 1982), aff'd sub nom. Whitley Development Corp. v. FMSHRC, 

No. 84-3375, slip op. at 2 (6th Cir. July 31, 1985); Secretary on behalf 

of Keene v. S&M Coal Co., 10 FMSHRC 1145, 1147 n.S (September 1988). 

14 
violation of section 105(c) of the Mine Act. On June 8, 1987, Conatser, 

proceeding without counsel, filed his own discrimination complaint with 

the Commission pursuant to section 105(c)(3) of the Act (n. 1 supra). 

He'subsequently retained counsel to represent him before this 

Commission. 

Following an evidentiary hearing, J1Jdge Koutras issued a decision 

dismissing Conatser's complaint. The judge first determined that 

Conatser 1 s refusal to drive the rock truck on .January 26, 1987, "1as 

based on a reasonable, good faith belief in a safety hazard. 10 FMSHRC 

at 457-62. In this regard, he found that the condition of the haulroads 

at the Red Flame mine on January 26, 1987, "presented ..• possible 

sliding and slipping hazards for the [rock] trucks" scheduled to operate 

on the haulroads that day. 10 FMSHRC at 4.57-59. The judge found that 

although Conatser operated rock trucks on some seven occasions at the 

No. 8 Limited strip site, he had driven them only on level terrain 

during dry weather conditions. 10 FMSHRC at 459-60; Tr. 61-62, 65-66, 

70, 94-97, 515-516, 520. The judge concluded that Conatser's refusal to 

drive the rock truck on January 26, 1987, was reasonable in light of his 

relative inexperience in operating rock trucks, the fact that he had 

never dr.iven a rock truck on a wet hill or roadway, and the potentially 

hazardous nature. of the roadway over which he was expected to drive on 

that date. lO FMSHRC at 4.59-61. 

Considering next whether Conatser had communicated his safety 

concerns to Mullins, the judge found that Conatser simply responded to 

Mullins' instruction to drive the rock truck with the statement "I can't 

drive a rock truck." 10 FMSHRC at 466-67. Based upon Conatser's prior 

experience, however, the judge found that this statement was not true. 

10 FMSHRC at 467. The judge further found that Conatser in no way 

communicated his safety concerns to Mullins at the time of his work 

refusal. 10 FMSHRC at 467-68. The judge expressly rejected Conatser' s 

argument that his brief statement was sufficient by itself to raise a 

safety issue, declining to read into that statement the various reasons 

subsequently asserted by Conatser in his written statement to MSHA and 

in his testimony at the hearing for refusing to operate the rock truck 

that day. Id. 

The judge also found credible testimony by Mullins that if 

Conatser had told Mullins that he feared for his life or safety, or even 

given Mullins a reason for not driving the rock truck, he would not have 

required Conatser to drive the truck. 10 FMSHRC at 468; Tr. 400-01, 

403-06. Davis' testimony that Mullins would have assigned the job to 

someone else if Conatser had informed Mullins of his safety concerns was 

also credited by the judge in concluding that Conatser's belief in the 

existence of a safety hazard was "in no way" communicated to Mullins at 

the time of his work refusal. 10 FMSHRC at 468; Tr. 484-86, 488. The 

judge determined from the testimony of Mullins, Davis and Red Flame 

miners that management at Red Flame took appropriate action to address 

communicated safety concerns and that because Conatser did not 

communicate his safety concerns to Mullins at the time of his work 

refusal, Mullins had no opportunity to understand the basis of 

Conatser's work refusal, to address Conatser 1 s safety concerns, or to 

take any corrective action. 10 FMSHRC at 468. 

15 
The judge also considered Conatser's assertion that, because he 

was in shock due to Mullins' direction that he either drive the rock 

truck or go to the house, he had no opportunity to communicate to 

Mullins his reasons for refusing to drive the rock truck. The judge 

found that Conatser's claim of being in shock was difficult to believe. 

10 FMSHRC at 468. Noting that Conatser conceded at the hearing that 

Mullins had not prevented him from speaking, the judge further found 

that Conatser had an ample opportunity to communicate his safety 

concerns to Mullins and that Conatser's failure to do so at the time of 

his work refusal was not excused by mitigating reasons or extenuating 

circumstances. 10 FMSHRC at 469. Accordingly, the judge concluded that 

because Conatser failed to communicate his safety concerns to Mullins, 

his work refusal was not protected under the Mine Act and his subsequent 

discharge by Red Flame for that work refusal was not in violation of the 

Act. Id. 

~inally, the judge considered an allegation by Conatser that Red 

Flame's refusal to rehire him constituted a separate act of discrimination under the Mine Act. Finding no probative credible evidence to 

sustain this allegation, the judge summarily rejected this argument. 

10 FMSHRC at 469-70. }/ 

On review, Conatser essentially asserts that the judge erred as a 

matter of law in finding that Conatser's statement to Mullins at the 

time of his work refusal was insufficient to raise a safety issue. 

Arguing that the judge's finding was too restrictive, Conatser contends 

that his statement to Mullins, if evaluated in light of the evidence and 

the appropriate legal standard, clearly raised a valid safety issue at 

the time of the work refusal -- that Conatser was incapable of operating 

the rock truck under the conditions present at that time. Conatser also 

complains that certain findings of fact made by the judge are not 

supported by substantial evidence and should be reversed. We disagree. 

The principles governing ·analysis of a discrimination case under 

the Mine Act are well settled. In order to establish a prima facie case 

of discrimination under section 105(c) of the Act, a complaining miner 

bears the burden of production and proof in establishing that (1) he 

engaged in protected activity and (2) the adverse action complained of 

was motivated in any part by that activity. Secretary on behalf of 

Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 

1980). rev'd on other grounds, sub nom. Consolidation Coal Co. v. 

Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary on behalf of Robinette 

v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The 

operator may rebut the prima facie case by showing either that no 

protected activity occurred or that the adverse action was in no part 

motivated by protected activity. If the operator cannot rebut the prima 

facie case in this manner, it nevertheless may defend affirmatively by 

proving that it also was motivated by the miner's unprotected activity 

alone and would have taken the adverse action in any event for the 

}/ No issue concerning Red Flame's refusal to rehire Conatser was 

raised by Conatser on review and, accordingly, that issue is not before 

us. 

16 
unprotected activity. Pasula, supra; Robinette supra; ~ also Eastern 

Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1984); Donovan 

v. Stafford Constr. Co., 732 F.2d 954,, 958-59 (D.C. Cir. 1984); Boich 

v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)(specifically approving 

the Commission's Pasula-Robinette test). Cf. NLRB v. Transportation 

Management Corp. 462 U.S. 393, 397-413 (1983)(approving a nearly 

identical test under the National Labor Relations Act). 

A miner's refusal to perform work is protected under the Mine Act 

if it is based u~on a rea~onable, good faith belief that the work 

involves a hazard. Pasula, supra, 2 FMSHRC at 2789-96; Robinette, 

supra, 3 FMSHRC at 807-12; Secretary v. Metric Constructors, Inc., 

6 FMSHRC 226, 229~31 (February 1984), aff'd sub nom. Brock v. Metric 

Constructors, Inc., 766 F.2d 469, 472-73 (11th Cir. 1985); ~also 

Simpson v. FMSHRC, 842 F.2d 453, 458 (D.C. Cir. 1988); Consolidation 

Coal Co. v. FMSHRC, 795 F.2d 364, 366 (4th Cir. 1986). It is further 

required that "where reasonably possible, a miner refusing work should 

ordinarily connnunicate ..• to some repre.sentative of the operator his 

belief in the safety or health hazard at issue." Secretary on behalf of 

Dunmire and Estle v. Northern Coal Co., 4 FMSHRC 126, 133 (February 

1982); see also Simpson v. FMSHRC, supra, 842 F.2d at 459; Secretary on 

behalf of Hogan and Ventura v. Emerald Mines Corp., 8 FMSHRC 1066, 1074 

(July 1986), aff'd mem., 829 F.2d 31 (3rd Cir. 1987)(table cite). 

Proper connnunication of a perceived hazard is an integral 

component of a protected work refusal, and the responsibility for the 

communication of a belief in a hazard underlying a work refusal lies 

with the miner. Dillard Smith v. Reco, Inc., 9 FMSHR.C at 992, 995-96 

(June 1987). Among other salutary purposes, the communication 

requirement is intended to avoid situations in which an operator at the 

time of a work refusal is forced to divine the miner's motivations for 

refusing work. Dillard Smith, supra, 9 FMSHRC at 995. We have also 

stated that the communication of a safety concern "must be evaluated not 

only in terms of the specific words used, but also in terms of the 

circumstances within which the words are used and the results, if any, 

that flow from the communication." Hogan and Ventura, supra, 9 FMSHRC 

at 1074. 

In a well-reasoned analysis, the judge properly considered and 

applied relevant Commission and judicial precedent concerning work 

refusals. The primary issue presented on review is whether substantial 

evidence supports the judge's ultimate conclusion that Conatser failed 

to adequately communicate to Mullins his belief in the existence of a 

safety hazard. We find that it does. 

In the context of the facts in this case, Conatser's statement to 

Mullins that he "can't drive a rock truck" was, at best, ambiguous. 

Conatser himself testified that he knew how to operate trucks and had 

driven rock trucks on some seven previous occasions. Tr. 68-69, 125-26. 

Based in large part on this testimony, the judge found that Conatser's 

"can't" statement to Mullins simply was not true. 10 FMSHRC at 467-68. 

We concur, and find that this fact vitiates the asserted adequacy and 

clarity of Conatser's communication. 

17 
Conatser has maintained in this proceeding that his statement to 

Mullins really meant that he lacked the ability to operate a rock truck 

under the weather and road conditions present that day. However, 

Conatser conceded that he said nothing to Mullins at the time of his 

work refusal about his specific fears concerning the weather conditions, 

his inexperience driving a rock truck down a sloped haulroad, or his 

lack of training in operating a rock truck; rather, Conatser merely 

"figured" that Mullins would know these fears. Tr. 75-76, 117-19, 126, 

142, 412, 524-25. To the contrary, Mullins testified that because 

Conatser had the general reputation of being capable of operating a rock 

truck among Red Flame miners who had seen him operate such vehicles when 

they were employed at the No. 8 Limited site, he believed Conatser could 

operate a rock truck on the morning of the work refusal. Tr. 173, 175-

76, 246-47, 271, 273, 279, 377-79, 403, 406-09, 410-12. In any event, 

Mullins 1 1mrebutted testimony reflects that in responding to Conatser 1 s 

work refusal, he replied that "Larry and all them [other miners] ... 

dro,re them and there is no reason vou can't." Tr. 415 (emphasis 

supplied). In our view, Mullins' response should have demonstrated to 

Conatser that Mullins did not comprehend the nature of Conatser 1 s safety 

concerns. Yet, as the judge found, Conatser "did not elaborate further 

or explain to Mr. Mullins the reasons for his purported inability to 

drive the rock truck," and simply repeated his "can't" statement. 

10 FMSHRC at 467. 

In analyzing whether Conatser was prevented from communicating his 

safety concerns to Mullins, the judge found that Conatser had an ample 

opportunity to communicate with Mullins at the time of his work refusal. 

10 FMSHRC at 468-69. It is undisputed that Conatser engaged Mullins in 

further conversation relating to his safety shoes before leaving the 

mine site. The judge also' determined that Conatser's assertion that he 

could not communicate further with Mullins because he was "in shock" was 

difficult to believe. Id. The judge observed that Conatser did not 

strike him as a timid individual, but rather impressed him as a rather 

combative person. Id. These observations are in the nature of 

credibility resolutions and we reject Conatser's challenges to them. 

See, ~· Robinette, supra, 3 FMSHRC at 813. 

While we have made clear that in work refusal contexts a 

"[s]imple, brief" communication by the miner of a safety or health 

concern will suffice (Dunmire & Estle, supra, 4 FMSHRC at 134), we 

conclude that in the context presented by this case Conatser's 

communication fell short of the required sufficiency and clarity. 

Indeed, we believe that this case well illustrates many of the reasons 

for the communication requirement. From all that appears on this 

record, had Conatser articulated his safety concerns, they would have 

been addressed by the operator. 

In this regard, we find the following observation of the judge, 

well-founded in the testimony, to be particularly salient: 

Foreman Mullins testified that had Mr. Conatser 

told him that he feared for his life or safety, or 

given him a reason for not driving the rock truck, 

he would not have required him to do so. 

18 
Superintendent Davis testified that Mr. Mullins 

lvould not endanger anyone 1 s life, and if he did, he 

would fire him. The miners who testified in this 

case corroborated the fact that Mr. Davis and Mr. 

Mullins were concerned for their safety and always 

addressed their concerns over the road conditions. 

Mr. Davis further confirmed that had Mr. Conatser 

informed Mr. Mullins that he was afraid to drive the 

truck, Mr. Mullins would have assigned someone to go 

with him, or assigned another driver. Former 

foreman Meade also confirmed that if anyone 

expressed fear or reluctance in operating a piece of 

equipment, he would either assign them to other 

work, or not require them to operate the equipment. 

In view of this testimony, which I find credible, it 

would appear to me that management at Red Flame and 

No. 8 Ltd. took appropriate action to address 

communicated safety concerns. However, in Mr. 

Conatser's case, since he did not connnunicate his 

safety concerns to his foreman at the time of his 

work refusal, the foreman had no opportunity to 

address them and take corrective action. 

10 FMSHRC at 468 (emphasis in original). 

We have considered Conatser's evidentiary challenges to the 

credibility of Mullins and to the judge's various resolutions of 

conflicting testimony and his credibility determinations and find no 

error of fact or law in the decision below. Conatser has not provided 

compelling reasons that would justify our taking the extraordinary step 

of overturning the judge's credibility findings and resolutions of 

disputed testimony and we decline to do so. 

Accordingly, we conclude that the judge's finding that Conatser 

failed to adequately connnunicate a safety concern is supported by 

substantial evidence and is correct as a matter of law as applied to 

that evidence. Thus, we affirm the judge's conclusion that Conatser's 

~ork refusal was not protected by the Mine Act and that his discharge 

for that refusal did not violate the Act. ~/ 

~/ Upon consideration of Conatser's Motion For Leave to File Reply 

Brief, and the opposition thereto, the motion is hereby granted. We 

have considered the brief in our decision. 

19 
For the foregoing reasons, the judge's decision is affirmed. 

~ 

~?/~ 

Distribution 

Ronald G. Polly, Esq. 

Polly, Craft, Asher & Smallwood 

P.O. Box 786 

104 North Webb Avenue 

Whitesburg, Kentucky 41858 

Tony Oppegard, Esq. 

Appalachian Research & Defense 

Fund of Kentucky, Inc. 

P.O. Box 360 

Hazard, Kentucky 41701 

Richard V. Backley, Commissioner 

L. Clair Nelson, Commissioner 

Administrative Law Judge George Koutras 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

20 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 13, 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. Docket Nos. SE 87-8 

SE 86-105-R 

JIM WALTER RESOURCES, INC. 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

DECISION 

BY THE COMMISSION: 

The issue in this consolidated contest and civil penalty 

proceeding arising under the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. (1982)("Mine Act"), is whether Jim Walter 

Resources ("JWR") violated mandatory safety standard 30 C.F.R. 

§ 75.500(d). l/ Commission Administrative Law Judge Avram Weisberger 

l/ 30 C.F.R. § 75.500 essentially restates section 305(a)(l) of the 

Mine Act, 30 U.S.C. § 865(a)(l), and provides: 

On and after March 30, 1971: 

(a) All junction or distribution boxes used for 

making multiple power connections inby the last open 

crosscut shall be permissible; 

(b) All handheld electric drills, blower and 

exhaust fans, electric pumps, and such other low 

horsepower electric face equipment as the Secretary 

may designate on or before May 30, 1970, which are 

taken into or used inby the last open crosscut of 

any coal mine shall be permissible;. 

(c) All electric face equipment which is taken 

into or used inby the last open crosscut of any coal 

mine classified under any provision of law as gassy 

prior to March 30, 1970, shall be permissible; and 

(d) All other electric face equipment which is 

taken into or used inby the last crosscut of any 

21 
concluded that JWR violated the standard and assessed a $500 civil 

penalty. 9 FMSRRC 983 (May 1987)(ALJ). We granted JWR's petition for 

discretionary review challenging the judge's finding of violation. For 

the reasons that follow, we affirm. 

JWR's No. 5 mine is an underground coal mine located in Tuscaloosa 

County, Alabama. A unique longwall method of mining is used in the mine 

resulting in large, uneven pillars (blocks) of coal and in interrupted 

crosscuts between the various entries. On July 1, 1986, Carl Early, an 

inspector of the Department of Labor's Mine Safety and Health 

Administration ("MSHA"), conducted an inspection of the mine pursuant to 

section 103(i) of the Mine Act. II In the mine's No. 8 section, Early 

observed a distribution box, used to supply power to shuttle cars, 

located in a crosscut between the No. 2 and No. 3 entries. }/ The 

distribution box was not permissible. Concluding that the location of 

the non-permissible electrical face equipment was in violation of 

30 C.F.R. § 75.SOO(a), see n.l supra, and that the violation 

significantly and substantially contributed to a mine safety hazard and 

was caused by JWR's unwarrantable failure to comply with the standard, 

Early issued an order pursuant to section 104(d)(2) of the Mine Act. 

30 u.s.c. § 814(d)(2). !/ 

coal mine, except a coal mine referred to in 

§ 75.501, which has not been classified under any 

provision of law as a gassy mine prior to March 30, 

1970, shall be permissible. 

30 C.F.R. § 75.501 is not applicable to this proceeding. 

11 Section 103(i) requires that a spot inspection be conducted every 

five working days of all or part of each mine that liberates more than 

1 million cubic feet of methane every 24 hours. 30 U.S.C. § 813(i). 

}/ The inspector also determined that a non-permissible scoop charger 

located in the same line of crosscuts between the No. 3 and No 4 entries 

also violated the standard. The Administrative Law Judge, however, 

found no violation as to the scoop charger and his action is this 

respect is not before us on review. 

!I Section l04(d)(2) of the Mine Act, 30 U.S.C. § 814(d)(2), states 

in part: 

(2) If a withdrawal order with respect to any area 

in a coal or other mine has been issued pursuant to 

paragraph (1), a withdrawal order shall promptly be 

issued by an authorized representative of the 

Secretary who finds upon any subsequent inspection 

the existence in such mine of violations similar to 

those that resulted in the issuance of the 

withdrawal order under paragraph (1) until such time 

as an inspection of such mine discloses no similar 

violations •... 

Section l04(d)(l) of the Mine Act, 30 U.S.C. § 814(d)(l), requires 

22 
After JWR contested the ,,alidity of the order of withdrawal, MSHA 

modified the order to allege a violation of section 75.500(d). 21 

Subsequently, the Secretary proposed a civil penalty of $1,000 for the 

violation and a hearing was held. 

At the hearing, the parties stipulated that the distribution box 

was in non-permissible condition and that, if a violation of section 

75.500(d) was found by the judge, the violation was of a significant and 

substantial nature. The parties disagreed as to whether the nonpermissible equipment was located in a last open crosscut and therefore 

violated section 75.500(d), and whether, if there was ~ violation, it 

was caused by JWR's unwarrantable failure to comply. 

Government Exhibit 2, a schematic drawing of the No. 8 section, 

was received into evidence and was used by the witnesses as an aid in 

explaining the.location of the subject equipment in relation to the 

mining configuration of the No. 8 section. As an aid to our discussion 

a black and white copy of Government Exhibit 2, reduced in size, is 

attached to this decision and incorporated herein. 

Inspector Early explained that the black areas on Exhibit 2 depict 

the pillars of coal in the No. 8 section, the lettered areas depict 

crosscuts, and the numbered areas depict entries. The lightly shaded 

area designated "F" represents the crosscut in which the distribution 

box was located. Early described a crosscut as "a cut through 

connecting two entries," and described "F" as "the last crosscut 

connecting the number two and three entries." Tr. 21, 26. Early 

described "A" and "H" as the "last open crosscuts" between the Nos. 1 

and 2 and the Nos. 3 and 4 entries, respectively. Early stated that 

during the normal mining cycle, the continuous mining machine, shuttle 

cars, roof-bolters and the scoop traveled through "F" to get from one 

side of the section to the other, and that the equipment was required to 

be in permissible condition. Early state~ that methane buildup 

frequently occurred in "F" whenever the check curtain in the No. 3 entry 

was down or damaged. 

MSHA ventilation specialist Jerry Vann described "F" as the last 

open crosscut between the Nos. 2 and 3 entries, and he described "A" and 

"H" as the last open crosscuts for purposes of the air readings required 

by the mandatory safety standards regulating mine ventilation. Tr. 74, 

86. 108-09. §./ 

that an inspector issue a citation if he finds that a violation is "of 

such nature as could significantly and substantially contribute to a 

mine safety or health hazard" and is caused by the operator's 

"unwarrantable failure ... to comply" and that an order of withdrawal be 

issued if, during the same inspection or any subsequent inspection 

within 90 days after the issuance of such citation, he finds another 

"unwarrantable failure" violation. 

21 No explanation of this modification appears in the record and no 

issue concerning the propriety thereof is before us on review. 

§./ 'the mandatory safety standards regarding air quantity, quality, 

23 
Charles Stewart, JWR's deputy mine manager, described "F" as the 

"last connecting crosscut" between the Nos. 2 and 3 entries and as the 

crosscut through which permissible equipment had to travel from one 

entry to the other. Stewart described "A" and "H" as areas subject to 

the ventilation requirements of 30 C.F.R. §§ 75.302 and 75.316, 

standards that reference the "last open crosscut." Tr. 158-59, 

183-85. II 

The Secretary argued to the judge that "F" wa:s the last crosscut 

connecting the Nos. 2 and 3 entries. Therefore, the presence of the 

non...,permissible distribution box in "F" established a violation of 

section 75.SOO(d). JWR argued that crosscut "F" cannot be a last open 

crosscut because other mandatory safety and health standards reference 

the term "last open crosscut" in a manner that would exclude crpsscut 

"F." .JWR maintained that, in light of these other standards (30 C.F .R. 

§§ 75.200-7(b)(3)(iii), 75.301-3(a) and 75.302(a)), a last open crosscut 

can be identified as the final tunnel (crosscut) that connects two 

entries and, in which crosscut, roof bolts must be tested. It is also 

the crosscut that separates the intake air from return air, through 

which a required volume of air must pass, and from which line brattice 

must be maintained to the working face. Lastly, it is the crosscut 

through which the air contaminated with methane and dust from the mining 

process passes. JWR Br. to ALJ at 7-8. JWR contended that when these 

require.ments are applied to the crosscuts at the No. 5 Mine, crosscut 

"F" cannot be categorized as a last open crosscut. 

In his decision, the judge rejected .JWR's arguments stating that 

it would be "unduly restrictive to hold that the identification of the 

'last open crosscut' for the purposes set forth in the (standards) cited 

by (JWR) mandates identification of the same crosscut for the purposes 

enumerated in section 75.500(d)." 9 FMSHRC at 985. Rather, the judge 

stated that he would be guided by Congress' intent in requiring that 

only permissible electrical equipment be taken into or used inby the 

last open crosscut -- "to assure that such equipment will not cause a 

and velocity in underground coal mines contain repeated references to 

the term "last open crosscut." See, ~· 30 C.F.R. §§ 75.301, 75.301-

1; See also n.5, infra. ---

II Section 75.302 requires that "[p]roperly installed and adequately 

maintained line brattice ..• shall be continuously used from the last 

open crosscut of any entry or room of each working section to provide 

adequate ventilation to the working faces ..•. " 

Section 75.316-l(a)(lO) requires the mine operator to submit to 

MSHA a mine map that includes the volume of air passing through the last 

open crosscut in each set of entries and rooms at each working face. 

30 C.F.R. § 75.316-(b)(l) requires the mine operator to submit to MSHA a 

ventilation system and methane and dust control plan that shows methane 

and dust control practices in all "active working places," and 30 C.F.R. 

§ 75.2(g)(2) defines "working place" as "the area of a coal mine inby 

the last open crosscut." 

24 
mine explosion or a mine fire." Id. '§./ The judge accepted the 

testimony of MSHA witnesses Early and Vann that methane was frequently 

detected in "F" and that any interruption of the check curtain in the 

No. 3 entry would permit a methane buildup. The judge concluded: 

[T]o hold that the crosscut in which the 

distribution box was located, is other than the last 

crosscut, would clearly lessen the assurance against 

a mine explosion or fire, and would accordingly be 

violative of the expressed purpose of section 

318(i) .... Furthermore .•. [the Secretary's 

witnesses] all testified, in essence, that to their 

knowledge the only way that the crosscut in which 

the distribution box is located is referred to, is 

as the last crosscut. 

9 FMSHRC at 986. The judge therefore concluded that JWR violated 

section 75.SOO(d) by having the non-permissible distribution box in "F," 

"which is the last crosscut between entries 2 and 3 and which is the 

last crosscut referred to in section 75.500(d)." Id. The judge 

assessed a $500 civil penalty for the violation. 

On review, JWR repeats the arguments made below and argues that 

the judge improperly found that the distribution box was in a location 

that violated section 75.500(d). JWR contends that "A" and "H" are the 

last open crosscuts in entries No. 2 and 3, and that the judge's finding 

of "F" as the last crosscut for purposes of section 75.500(d) results in 

an inconsistent application of the other mandatory standards referencing 

last open crosscuts. We do not agree. 

Section 75.500(d) prohibits the bringing of non-permissible 

electric equipment into or inby the last crosscut. 2/ The term "last 

~/ Section 318(i) of the Act, 30 U.S.C. § 878(i), defines permissible 

electric face equipment as: 

(A]ll electrically operated equipment taken into or 

used inby the last open crosscut of an entry or a 

room of any coal mine the electrical parts of which 

... are designed, constructed, and installed, in 

accordance with the specifications of the Secretary, 

to assure that such equipment will not cause a mine 

explosion or mine fire .... 

2./ Sections 75.500(a), (b) and (c) use the term "last open crosscut." 

Section 75.500(d), however, references the "last crosscut." JWR states 

that "the terms 'last crosscut' and 'last open crosscut' are synonymous 

in the mining industry. There is no difference between the term 'last 

open crosscut' and 'last crosscut.'" JWR Brief at 6 n.1. For purposes 

of interpreting section 75.500, we agree. See, ~· Legislative 

History of the Federal Coal Mine Health and Safety Act of 1969, Senate 

Subconunittee on Labor, 94th Cong., 1st Sess., at 53, 194, 749, 833, 

1477, 1527 (1975). Therefore, we use the terms interchangeably 

25 
crosscut" or "last open crosscut" is not defined in either the Mine Act 

or its implementing regulations. However, a "crosscut" is recognized to 

be a passageway or opening driven between entries for ventilation and 

haulage purposes. U.S. Department of Interior, Dictionary of Mining, 

Mineral, and Related Terms 280 (1968) ("~"). A "last open crosscut" 

is that open passageway connecting entries closest to the working 

face. 10/ See Peabody Coal Co., KENT 86-94-R, slip op. at 5-6 

(11 FMSHRC ~~' January 12, 1989.) Given the mining configuration in 

use at JWR 1 s mine, as represented in Government Exhibit 2, attached, we 

conclude that 1"F11 is the last open crosscut between the Nos. 2 and 3 

entries. 

The inspector testified without dispute that during the normal 

mining cycle the Nos. 1, 2, 3 and 4 entries are driven forward. Coal is 

cut in one entry at a time. Tr. 41-45. Intake air travels across "F" 

and up the No. 3 entry to ventilate the working face in the No. 4 entry. 

Tr. 34-37. · Further, during the cycle the continuous mining machine, 

shuttle cars, roof bolters and the scoop travel across "F" to get from 

one side of Section 8 to the other. Tr. 38-47. Thus, "F" is the last 

open passageway between the Nos. 2 and 3 entries that is used for 

ventilation and.haulage purposes in this working section. See ~· 

Tr. 26, 136-137, 185. 

As the judge correctly stated, "There was no crosscut connecting 

entries 2 and 3 which was further inby the crosscut in which the 

distribution box was located." 9 FMSHRC at 985. Thus, we hold that 

substantial evidence supports the judge's conclusion that under the 

mining configuration followed at the time of citation, "F" was the last 

crosscut between Nos. 2 and 3 entries. 9 FMSHRC at 986. 

We do not agree with JWR that, in light of other mandatory safety 

and health standards referencing the term "last open crosscut" and 

imposing various safety requirements in such crosscuts, it is fatally 

inconsistent or conflicting to hold that section 75.500(d) applies to 

crosscut nF" because compliance with those other requirements may not be 

logical or necessary in crosscut "F." We agree with the arguments of 

the Secretary that each standard using the term "last open crosscut" 

requires "that certain activities be conducted in an area in which it 

has been deemed most crucial" and that when interpreting these standards 

"due consideration must be given to their intended purpose as evidenced 

by their specific terms." Sec. Br. 8, 10. For example, air flow is 

required to be measured at the last open crosscut "that separates the 

intake and return air courses." 30 C.F.R. 75.301-3(a). Since crosscut 

"F" does not separate the intake and return air courses, the Secretary 

maintains that the air measurements required by that standard need not 

be taken at crosscut "F." Tr. 76; Sec. Br. 9. Similarly, line brattice 

is required from the last open crosscut of an entry "to provide adequate 

throughout this decision. 

10/ A "working face" is "any place in a 'coal mine in which work of 

extracting coal from its natural deposit in the earth during the mining 

cycle is performed ..•• " 30 U.S.C. § 878(g)(l); 30 C.F.R. § 75.2(g)(l). 

See also DMMRT 407, 1244 (definitions of "face" and "working face"). 

26 
ventilation to the working faces." 30 C.F.R. 75.302(a). Because in 

JWR's configuration installing line brattice from crosscut "F" would 

impede the flow of air up the Nos. 2 and 3 entries, the Secretary 

represents that line brattice would not be required from crosscut "F" to 

the working faces. Sec. Br. 9-10. The Secretary also states that the 

torque-testing requirements of 30 C.F.R. 75.200-7(b)(3)(iii) apply only 

to roof bolts in parts of entries closer to the working face than 

crosscut "F" to ensure the proper installation of the most recently 

installed bolts. Sec. Br. 9. In sum, the Secretary represents that 

none of these standards exclusively defines "last open crosscut"; they 

simply require that certain activities be conducted addressing specific 

concerns usually presented by last open crosscuts, but not presented in 

crosscut "F" under this particular mining configuration. As we stated 

in Peabody, supra, "we recognize that in any given coal mine, the mining 

methodology may uniquely determine the last open crosscut. Thus, we 

must leave to future cases any descriptive refinements necessitated by 

other particular mining configurations." Slip op. at 6, fn. 8 (11 

FMSHRC _, January 12, 1989). 

We agree with the Secretary's arguments. We note that in fact no 

citations were issued by the Secretary alleging violations of the other 

standards pointed to by JWR. We further note that we will remain 

cognizant of the representations and arguments made here by the 

Secretary in the unlikely event that the discussed regulations were to 

be interpreted in a manner inconsistent with the interpretation 

proffered in the present case. Therefore, we conclude that the 

requirements of these other standards do not prevent the classification 

of crosscut "F" as a last open crosscut for purposes of section 75.500. 

27 
For the foregoing reasons, we agree with the judge that "F" was 

the last crosscut for purposes of section 75.SOO(d), and we concur in 

his finding that JWR violated the regulation by locating the nonpermissible distribution box in "F." Accordingly,. we affirm the judge 1 s 

decision. 

~~~.~airman ~~~ 

~Wvi- Richard V. Backley, Commissioner 

James A. Lastowka, Commissioner 

,fjj_,_;_.._, 7Le_ft~q_tr•v L. Clair Nelson, Commissioner 

28 
ernment 2 Gov.bit No. Ex hi 

29 

I 

.... ··~-::..~ 

.. . . . . 
Distribution 

H. Thomas Wells, Jr., Esq. 

David M. Smith, Es.q. 

~ynard, Cooper, Frierson & Gale, P.C. 

'!welfth Floor, Watts Bldg. 

Birmingham, Alabama 35203 

H. Gerald Reynolds, Esq. 

Jim Walter Corporation 

P.O. Box 22601 

Tampa, Florida 33622 

R. Stanley Morrow, Esq. 

Harold D. Rice, Esq. .f ,,,. Jim Walter Resources, In'.c. / ' I 

P.O. Box C-79 i ' 

Birmingham, Alabama 35~83 

j Jerald S. Feingold, Esq; 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge Avram Weisberger 

Federal Hine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

30 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 27, 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

BIRCHFIELD MINING COMPANY 

Docket No. WEVA 87-272 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

DECISION 

BY: Ford, Chairman; and Backley, Commissioner 

This civil penalty proceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act"). The 

primary issue is whether Birchfield Mining Company ("Birchfield") 

violated 30 C.F.R. § 75.303(a), a mandatory safety standard for 

underground coal mines requiring that all active workings of a coal mine 

be examined and the results of such examination be reported "before any 

miner in [any] shift enters the active workings of a coal mine." l/ 

1/ 30 C.F.R. § 75.303(a) restates section 303(d)(l) of the Mine Act, 

3o U.S.C. § 863(d)(l), and provides in part: 

Within 3 hours immediately preceding the beginning 

of any shift, and before any miner in such shift 

enters the active workings of a coal mine, certified 

persons designated by the operator of the mine shall 

examine such workings .••. Each such examiner shall 

examine every working section in such workings and 

shall make tests in each such working section for 

accumulations of methane ... and shall make tests 

for oxygen deficiency ... examine seals and doors to 

determine whether they are functioning properly; 

examine and test the roof, face, and rib conditions 

in such working section; examine active roadways, 

travelways, and belt conveyors on which men are 

31 
Also at issue is whether the violation was significant and substantial 

in nature and caused by Birchfield's unwarrantable failure to comply 

with the standard, and whether the administrative law judge assessed an 

appropriate civil penalty for the violation. 

Commission Administrative Law Judge Gary Melick found that 

Birchfield violated the standard, the violation was significant and 

substantial, and resulted from an unwarrantable failure by the operator. 

He assessed a civil penalty of $400 for the violation. 9 FMSHRC 2209 

(December 1987)(ALJ). We granted Birchfield's petition for 

discretionary review. For the following reasons, we affirm the judge's 

decision respecting the fact of violation, and Birchfield's 

unwarrantable failure to comply. However, we reverse the judge's 

finding that the violation was significant and substantial in nature and 

we remand this matter to the judge for reconsideration of the civil 

penalty in light of that reversal. 

The essential facts are not in dispute. On April 2, 1987, at 

approximately 7:30 a.m., John Baugh, an inspector of the Department of 

Labor's Mine Safety and Health Administration ("MSHA"), conducted an 

inspection at Birchfield's No. 1 Mine, an underground coal mine located 

in Boone County, West Virginia. The inspector observed several miners 

on the 8:00 a.m. to 4:00 p.m. day shift change into working clothes and 

enter the mine. Baugh checked the mine examiner's book (the "fireboss 

carried, approaches to abandoned areas, and 

accessible falls in such section for hazards; test 

•.• to determine whether the air in each split is 

traveling in its proper course and in normal volume 

and velocity; and examine for such other hazards and 

violations of the mandatory health or safety 

standards, as an authorized representative of the 

Secretary may from time to time require •••• Such 

mine examiner shall place his initials and the date 

and time at all places he examines. If such mine 

.examiner finds a condition which constitutes a 

violation of a mandatory health or safety standard 

or any condition which is hazardous to persons who 

may enter or be in such area, he shall indicate such 

hazardous place by posting a "danger" sign 

conspicuously at all points which persons entering 

such hazardous place would be required to pass, and 

shall notify the operator of the mine ••.. Upon 

completing his examination, such mine examiner shall 

report the results of his examination to a person, 

designated by the operator to receive such reports 

at a designated station on the surface of the mine, 

before other persons enter the underground areas of 

such mine to work in such shift. Each such mine 

examiner shall also record the results of his 

examination .•• in a book ••• kept for such purpose 

in an area on the surface of the mine ..• and the 

record shall be open for inspection by interested 

persons. 

32 
book") and found that no preshift examination report had been recorded 

for the 8_:00 a.m. to 4:00 p.m. day shift. Traveling into the mine, the 

inspector did not see anyone conducting a preshift examination nor did 

he observe any dates, times and initials in the areas required to be 

preshif ted that would indicate that the preshift examiner for the day 

shift had inspected the mine. 

At approximately 7:40 a.m., when he arrived at the No. 4 face, the 

inspector saw the miners that he had observed entering the mine, along 

with the midnight shift crew and their section foreman, Richard 

Henderson. Henderson was Birchfield's designated preshift examiner for 

the day shift~ The inspector informed Henderson that a preshift 

examination would have to be completed for the 8:00 a.m. to 4:00 p.m. 

shift and that it was a violation of section 75.303(a) for miners to 

enter the mine prior to a preshift examination being completed. 

The inspector issued a citation, pursuant to section 104(d)(l) of 

the Mine Act, alleging a significant and substantial and unwarrantable 

failure violation of section 75.303(a). ~/ The citation states in 

relevant part: 

An inadequate preshift examination was made in the 

001-0 graveyard main section in that the results of 

the examination was not reported to a person 

designated by the operator to receive such reports 

at a designated station on the surface of the mine 

before other persons enter the underground area of 

such mine to work in such shift. The results were 

not recorded in the approved record book and ... no 

dates, time or initials have been placed in 

conspicuous locations. 

At 8:45 a.m., the inspector terminated the citation after observing 

Henderson record the results of his preshift examination for the day 

shift in the fireboss book. 

~/ Section 104(d)(l) of the Mine Act, 30 U.S.C. § 814(d)(l), states 

in part: 

If, upon any inspection of a coal or other mine, 

an authorized representative of the Secretary finds 

that there has been a violation of any mandatory 

health or safety standard, and if he also finds 

that, while the conditions created by such violation 

do not cause innninent danger, such violation is of 

such nature as could significantly and substantially 

con~ribute to the cause and effect of a coal or 

other mine safety or health hazard, and if he finds 

such violation to be caused by an unwarrantable 

failure of such operator to comply with such 

mandatory health or safety standards, he shall 

include such finding in any citation given to the 

operator under this [Act] .... 

33 
Subsequently, the Secretary proposed a civil penalty for the 

violation and Birchfield requested a hearing. Birchfield denied that it 

had violated the standard and challenged the inspector's significant and 

substantial and unwarrantable failure findings. 

Before the judge, Birchfield argued that because the day shift 

miners had entered the mine during a shift for which a preshift 

examination had been performed and recorded (i.e., the midnight shift), 

it had not violated the standard. Rejecting this argument, the judge 

concluded that under the plain meaning of the standard, the preshift 

examination must be completed and reported out of the mine before any 

miner on the oncoming shift for which the preshif t examination is 

required enters the mine. The judge found, based on the inspector's 

testimony, that the preshift examination for the day shift had not been 

completed and reported at the time the miners entered the mine. 

9 FMSHRC at 2212-13. Therefore, the judge concluded that the violation 

of section 75.303(a) was proven as charged. 9 FMSHRC at 2212. 

On review, Birchfield contends that the judge misconstrued the 

standard and that an operator complies with section 75.303(a) as long as 

a preshift examination had been completed and reported for the shift 

during which the miners enter the mine. Because the miners on the 8:00 

a.m. shift entered the mine during the midnight shift, and because a 

preshift examination had been performed for that shift, Birchfield 

asserts that it complied with the letter and spirit of section 

75.303(a). We disagree. 

The inspector testified that the purpose of a preshift examination 

is to detect hazardous conditions in the mine and to correct or report 

such hazards before miners'enter the active workings of the mine. He 

testified that if miners enter the mine before the preshift examination 

is completed and the results reported~ there exists a hazard that 

undetected dangerous conditions could injure incoming miners. Tr. 39-

41. 

The inspector's concern over undetected and unreported hazards is 

consistent w~th that of Congress. The cited standard reiterates section 

303(d)(l) of the Mine Act, 30 U.S.C. § 863(d)(l), which was carried over 

without change from the Federal Coal Mine Health and Safety Act of 1969, 

30 U.S.C. § 863(d)(l) (1976). The Senate Report states, "Changes occur 

so rapidly in the mines that it is imperative that the examinations be 

made as near as possible to the time the workmen enter the mine. 11 

Senate Subcorrnnittee 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 183 (1975) ("Coal Act Legis. 

Hist."). Accordingly, as both the Senate Report and the Conference 

Report explain: 

No miner may enter the underground portion of a mine 

until the preshift examination is completed, the 

examiner's report is transmitted to the surface and 

actually recorded, and until hazardous conditions or 

standards violations are corrected. 

34 
Coal Act Legis. Hist. at 183 and 1610. 

Contrary to Birchfield1 s assertions, the language of section 

75.303(a) clearly requires that the preshift examination be completed 

"before any miner ... enters the active workings," and that the results 

of the preshift examination be reported out of the mine "before other 

persons enter the underground areas of .•. [the] mine to work." 

(Emphasis supplied.) The judge found and it is undisputed that three or 

four day shift miners were present in the active workings of the mine at 

approximately 7:40 a.m. on April 2, 1987, before the designated preshift 

examiner had reported the results of his preshift examination to an 

operator-designated person on the surface of the mine. Thus, we 

conclude that the judge's interpretation of section 75.303(~) is correct 

and his finding of a violation is supported by substantial evidence. We 

turn, therefore, to the question of whether the violation was of a 

significant and substantial nature and was due to Birchfield's 

unwarrantable failure to comply. 

A violation is properly designated as being of a significant and 

substantial nature 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 

(April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained: 

In order to establish that a violation of a 

mandatory standard is significant and substantial 

under National Gypsum the Secretary 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. 

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," and that the likelihood 

of injury must be evaluated in terms of continued normal mining 

operations. U.S. Steel Mining Co., 6 FMSHRC 1573-74 (July 1984); ~ 

also, Halfway, Inc., 8 FMSHRC 8, 12 (January 1986). 

At the outset, we reject the Secretary's argument on appeal (Br. 

10) that any violation of section 75.303(a) is per se significant and 

substantial in nature. Rather, the proper test is that which we 

enunciated in Mathies. In applying the Mathies formula to the violation 

at issue, we have found that substantial evidence supports the judge's 

finding that Birchfield violated section 75.303(a). Therefore, the 

first element of the Mathies formula is established. Review of the 

judge's analysis beyond that point, however, reveals that he effectively 

ignored the second element of the Mathies formula, i.e., whether the 

violation presented a discrete safety hazard. 

35 
Because the administrative law judge has failed to make findings 

regarding the second element, and because the record contains 

insufficient evidence on that issue to satisfy the National 

Gypsum/Mathies test, we conclude that the violation was not "significant 

and substantial." Specifically, in evaluating the totality of 

conditions and circumstances in existence at the time of citation, we do 

not believe that the violation contributed a "measure of danger to 

safety." 

The record before us demonstrates that the inspector's actual 

enforcement actions, or lack thereof, belie his judgment that conditions 

in Birchfield's No. 1 Mine posed such a measure of danger to safety that 

failure to report and record them prior to the arrival of the day shift 

miners constituted a significant and substantial violation of the 

preshift standard. Furthermore, numerous factors not considered by the 

judge serve to mitigate the "hazardous conditions" relied upon by the 

judge in upholding the inspector's significant and substantial finding. 

First, the miners who prematurely entered the mine before the 

completion of the preshift examination were all certified firebosses and 

thus were all qualified to perform preshift examinations. We can infer 

from this that they would have been more acutely aware of potential 

hazards than the average miner. Second, the mine had been in operation 

only six calendar days prior to the day of inspection and had only 

progressed 150-160 feet from the surface opening, about half the length 

of a city block. Obviously, there were simply not as many potential 

sources of hazard as would be present in a large, established mine, such 

as the one the inspector had once preshifted and where his habit was to 

place his initials every 1000 feet as the examination progressed (Tr. 

14). 

Third, for purposes of determining a violation of the cited 

regulation we have rejected Birchfield's argument that the 8:00 a.m. 

shift miners entering the mine during the midnight shift were covered by 

the· pre-shift exam for the midnight shift. We think it probative, 

however, for purposes of settling the significant and substantial issue, 

to note the lack of enforcement action taken by the inspector to 

counteract the allegedly hazardous conditions existing on the 001-0 main 

section. Indeed, it strikes us as peculiar that the miners on the 

midnight shift would have been exposed to what the inspector deemed 

hazardous conditions whether or not members of the day shift entered the 

mine prior to completion of the preshift inspection. Moreover, while 

entry by the day shift miners prior to the full execution of the 

preshift examination is clearly violative, it does not, in and of 

itself, rise to the level of seriousness that would exist if the mine 

had been idle prior to the start of the day shift. 

In summary, there is a clear lack of synunetry between what the 

inspector alleged to be a measure of danger to safety and the 

enforcement measures he actually took or failed to take. 

There are also strong factors that serve to mitigate the relative 

seriousness of the conditions that were extant when the citation was 

issued and that are relied upon by the judge in reaching his conclusion 

36 
that the violation was "significant and substantial." 

First~ although the No. 1 mine was located in a coal seam known to 

liberate methane, Birchfield's on-shift methane tests during the 

midnight shift and the inspector's own tests revealed methane levels in 

the No. 1 Mine substantially below those that would pose a hazard (Tr. 

70, 89). 11 Regarding the lack of test holes twenty feet in advance of 

the face, serious questions arise as to its relevance to the question 

whether the irladequate preshift inspection was a significant and 

substantial violation. ~/ Even so, the preshift report accepted by the 

inspector as abatement in this case did not mention the lack of test 

holes, nor did the preshift report for the preceding midnight shift. 

This is significant because the Secretary appears to accept the preshift 

examination report for the midnight shift as being in compliance with 

section 75.303(a). 

Birchfield does not dispute that an auxiliary exhaust fan was 

inoperative, causing a second 'blowing fan to stir up dust around the 

continuous miner. This, however, appears to have been an obvious 

condition rather than a latent one and would have been readily apparent 

to any day shift miner coming on the scene. Furthermore, the inspector 

portrays this condition as an important basis for his significant and 

substantial finding, but he did not issue a citation charging for 

instance, a violation of 30 C.F.R. § 75.401 (referring to excessive 

levels of dust) (Tr. 68-69). The failure to cite the operator in these 

circumstances further erodes the "serious hazard" basis of the 

significant and substantial finding. 

For all these reasons, we agree with Birchfield that substantial 

evidence does not support the judge's finding that the violation of 

section 75.303(a) was significant and substantial in nature. 

We reject, however, Birchfield's challenge to the finding of 

unwarrantable failure. A violation of a mandatory safety standard is 

11 The Birchfield No. 1 Mine was adjacent to a bleeder entry for an 

older underground mine, but the record shows that although that bleeder 

was not totally passable, it was being ventilated and tests for methane 

were being conducted at specified evaluation points. (Tr. 78-79). 

~/ Whether test holes are required in the circumstances sketchily 

presented is a matter that need not be decided here. The working face 

was 140 feet from the older workings, and it is clear that Birchfield 

was mining away from the adjacent bleeder rather than approaching it. 

The record on the test hole citation is confused, but it appears that 

Birchfield chose not to contest the citation and paid a $20.00 single 

penalty assessed by the Secretary. (Tr. 82-83; Gov. Ex. A). 

Furthermore, the record indicates that mining was allowed to proceed 

without abatement of the test hole citation because Birchfield had filed 

a petition for modification of the standard. (Tr. 137-38) These 

enforcement decisions seriously undermine the inspector's assertion that 

a lack of test holes constituted a "serious hazard" for purposes .'.Jf 

determining the seriousness of the preshift violation. 

37 
caused by an operator's unwarrantable failure if the operator has 

engaged in "aggravated conduct constituting more than ordinary 

negligence."· Emery Mining CorJ?..:_, 9 FMSHRC 1997, 2002 (December 1987); 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 (December 1987). The 

judge found that "(s]ince the requirement [of section 75.303(a)] is set 

forth in plain and unambiguous language •.. the operator's agents should 

have known of the violation" and accordingly concluded that the 

violation of section 75.303(a) was the result of "inexcusable aggravated 

conduct constituting more than ordinary negligence." 9 FMSHRC at 2213. 

It is undisputed that Birchfield officials knew that several 

miners had entered the active workings of the mine before the preshift 

examination had been completed and the results reported and that this 

was not an isolated violation of section 75.303(a). Both Henderson's 

and Bailey's testimony reveals that miners had routinely reported to the 

face areas of the mine before preshift examinations had been completed. 

Tr. 107-08, 120. Further, Henderson, admitted that he had not read 

section 75.303(a), the mandatory safety standard in issue, although he 

had been performing preshift examinations for approximately 13 years. 

Tr. 111. 

Uncontroverted evidence thus establishes that on this and previous 

occasions Birchfield officials regularly permitted oncoming shift miners 

to enter the active workings of the mine before a preshift examination 

had been completed and reported as required by section 75.303(a). Such 

conduct, in conjunction with the admission of the designated preshift 

examiner that he had not read the standard that governs the timing, 

content, conduct and reporting of preshift examinations, demonstrates 

aggravated conduct exceeding ordinary negligence. 

Birchfield's last contention is that the judge erred in assessing 

a $400 civil penalty for the violation of section 75.303(a). Birchfield 

argues that the judge failed to consider two of the six civil penalty 

criteria mandated by section llO(i), 30 U.S.C. § 820(i) -- the ability 

of Birchfield to continue in business and the gravity of the violation. 

Birchfield also contends that the civil penalty assessed is "excessive 

to the point of arbitrariness." B. Br. 17. 

"When a judge's penalty assessment is put in issue on review, we 

must determine whether it is supported by substantial evidence and 

whether it is consistent with the statutory penalty criteria. 11 Pyro 

Mining Co., 6 FMSHRC 2089, 2091 (September 1984). While in his decision 

the judge did not specifically address the question of the impact of a 

penalty upon the operator's ability to continue in business, the parties 

stipulated at the hearing that "[p]ayment of the assessed civil penalty 

will not affect [Birchfield's] ability to continue in business." Tr. 7. 

Therefore, the stipulation establishes this statutory penalty criterion. 

As to the gravity of the violation, however, the judge relied on 

his determination that the violation was "significant and substantial 

and a serious hazard." 9 FMSHRC at 2214. Since we have reversed the 

significant and substantial finding, it is appropriate for the judge to 

determine whether that reversal would have any effect .on his assessment 

of the civil penalty. 

38 
For the foregoing reasons, the decision of the judge is affirmed 

as to the. fact of violation, and the finding of unwarrantable failure to 

comply. The decision is reversed, however, on the issue of whether the 

violation was significant and substantial and remanded as to whether the 

reversal of the significant and substantial finding would affect the 

amount of the civil penalty. The section 104(d)(l) citation is also 

modified to a section 104(a) citation. 

~~ ,,0 //( / ~~-r;~4//c:)Z<./j/l.-~/ 

Richard V. Backley, Commissioner 

39 
Commissioner Nelson, concurring: 

A basic· problem in this case causes me to concur with Chairman 

Ford and Commissioner Backley in reversing the judge's finding that the 

violation was of a significant and substantial nature. When the 

inspector observed miners on the 8 a.m. shift at the No. 4 face, he also 

observed miners from the midnight shift at the same place at the same 

time. The inspector issued a citation under section 75.303(a) because 

he found several miners from the 8 a.m. shift in the mine when no record 

had been made of a preshift examination for the 8 a.m. shift. 

Indisputably, a preshift examination had been made for the midnight 

shift. Our colleagues cite a number of threatening circumstances vis-avis the 8 a.m. shift miners, but the midnight shift miners were. in the 

same place at the same time and by a quirk in the regulatory 

requirements the latter workers apparently stand outside the circle of 

danger as viewed in this circumstance. It is noteworthy that if the 8 

a.m. shift miners had not entered the mine prematurely there would be no 

basis for this citation even if it were conceded that the threatening 

circumstances obtain. 

Consequently, it seems inappropriate to attach to this citation a 

finding that (in statutory words) "such violation is of such nature as 

could significantly and substantially contribute to the cause and effect 

of a mine safety or health hazard." That finding might be appropriate 

if the inspector had cited the kind of threats to safety enumerated by 

our colleagues but, to repeat, it seems inappropriate here where the 

inadvertent effect is to divide into two classes miners whose 

vulnerability to safety hazards is actually equal. 

With respect to the significant and substantial finding, I would 

not argue with Commissioners Doyle and Lastowka concerning an 

"inspector's independent judgment" and the appropriate weight to be 

accorded thereto by the judge in proper circumstances. However, for the 

reasons stated, I cannot conclude from the record that substantial 

evidence supports the judge's finding that the violation herein was of a 

significant and substantial nature. 

L. Clair Nelson, Commissioner 

40 
Commissioners Doyle and Lastowka, concurring in part and dissenting in part: 

We agree with the majority that the administrative law judge interpreted 

30 C.F.R. § 75.303(a) correctly and that his finding of a violation is supported 

by substantial evidence. We also agree with the majority that substantial evidence supports the judge's finding that the violation was the result of Birchfield's unwarrantable failure to comply with the mandatory safety standard. 

We dissent, however, from that part of the majority decision reversing the 

judge's finding that the violation of section 75.303(a) was of a significant 

and substantial nature. 

In Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (1981) the Commission emphasized that an "inspector's independent judgment is an important 

element ·in making significant and substantial findings, which should not be 

circumvented." 3 FMSHRC at 825-26. Where, as in the present case, an 

inspector's judgment that a violation of section 75.303(a) is significant and 

substantial in nature is based upon the existence of hazardous conditions that 

a preshift examination should have detected and reported and which, if 

undetected, pose a safety hazard to miners, that judgement should be accorded 

appropriate weight. See generally, Mathies Coal Co., 6 FMSHRC 1, 5 (January 

1984); Consolidation Coal Co., 6 FMSHRC 189, 194-95 (Feburary 1984). Citing 

Mathies, the judge accorded due weight to the inspector's judgment and found 

that "[w]ithin the framework of the evidence," the violation of section 

75.303(a) was significant and substantial in nature. 9 FMSHRC at 2213. 

Because the judge's finding of a significant and substantial violation has 

substantial support in the record and we are bound by a substantial evidence 

standard of review (30 U.S.C. § 823(d)(2)(A)(ii)(I)), the majority errs in 

substituting its judgment for that of the trier of fact. Donovan on behalf of 

Chacon v. Phelps Dodge Corp., 709 F.2d 86, 94 (D.C. Cir. 1983). 

We agree with the majority that the proper test to apply is that set 

forth in Mathies and that the first element of the Mathies test is established 

in this case by the fact of violation found by the judge and affirmed by the 

Commission. The second element in the Mathies test requires that the violation 

contribute to a measure of danger to safety. In this regard, the inspector 

testified that in evaluating the violation of section 75.303(a) to be of a 

significant and substantial nature, he considered several factors. The coal 

seam being mined is known to liberate large quantities of methane. Further, 

it is adjacent to a bleeder entry of older underground workings that cannot 

be fully inspected and that are known to liberate methane. Tr. 42, 55, 68-69. 

Also, Birchfield was not drilling required test holes in advance of the face, 

even though the mine was within 140 feet of adjacent older workings. Tr. 79-80. 

Because of this failure to drill test holes the inspector issued a citation 

alleging a violation of 30 C.F.R. § 75.1701. */ Birchfield did not contest 

this citation and paid the penalty proposed for the violation. In addition, 

*/ This standard provides: 

Whenever any working place approaches .•. within 200 feet 

of any workings of an adjacent mine ..• boreholes shall be 

drilled ... at least 20 feet in advance of the working face 

and shall be continually maintained to a distance of at 

least 10 feet in advance of the advancing working face ..•• 

41 
at the No. 4 face, an auxiliary fan was not functioning, causing dust to he 

blown over the working miners and posing both a health and an ignition hazard. 

Tr. 68. All qf these hazards, the inspector helieved, were subject to 

observation and reporting during the performance of a preshift examination. 

The majority asserts that the inspector failed to take "enforcement 

actions" against Birchfield for the conditions he relied upon in making his 

finding that the violation was of a significant and substantial nature and 

that this failure demonstrates that the conditions did not pose a measure of 

danger to safety. Slip Op. at 6. This conclusion cannot be drawn from the 

record in this case. First, the inspector did issue a citation for Birchfield 1 s failure to drill required test holes, a condition that was key to his 

significant and substantial finding. Second, the inspector personally 

observed each of these conditions. Thus, the inspector did not base his 

significant and substantial finding on hypothetical hazards but rather on 

actual hazardous conditions he found at the time of his inspection. In anv 

event, the Mine Act does not require that, in order for one violation to be 

considered significant and substantial, other violations must also be in 

existence or that, in order to support a significant and substantial finding 

made in one citation, an inspec~or must issue additional citations. 

The majority further concludes that the safety hazards observed by the 

inspector were "mitigated" by the fact that the individuals who entered the 

mine before completion of the preshift examination were certified firebosses, 

the mine was recently developed, and other miners from the previous shift were 

already present in the mine. Slip op. at 6. In reaching this conclusion the 

majority simply reweighs the evidence to reach their own conclusion regarding 

the presence of hazards rather than determining whether substantial evidence 

supports the judge's crediting of the inspector's significant and substantial 

finding. In our opinion, there can be little doubt on this record that the 

failure to complete the required preshif t examination prior to the shift 

entering the mine contributed to the existence of a discrete safety hazard. 

Therefore, we find the second element of a significant and substantial violation to also be satisfied. 

As to the third element of the Mathies test, the inspector believed that 

because Birchfield was mining in. a seam with a history of high methane 

liberation, less than two hundred feet from an adjacent mine with known 

concentrations of methane, without drilling required test holes, coupled with 

the inadequate ventilation at the No. 4 face and the resulting dust problem, 

it was reasonably likely that continued violation of section 75.303(a) would 

result in an injury-causing event. Tr. 66-69. This testimony provides substantial support for a finding that, given continued mining operations (U.S. 

Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)), it was reasonably likelv 

that an accident resulting in an injury or an illness would occur. The Commission has emphasized that "[i]n order to establish a significant and 

substantial nature of a violation the Secretary need not prove that the 

hazard contributed to actually will result in an injury-causing event •••• 

[P]roof that the injury-causing event is reasonably likely to occur is what 

is required." Youghiogheny & Ohio Coal Co •• 9 FMSHRC 673, 678 (April 1987) 

(citations omitted). 

42 
The fourth element of the Mathies test requires that there be a reasonable likelihood that any resulting injury would be of a reasonably serious 

nature. The majority concludes that certain factors "serve to mitigate the 

relative seriousness of the conditions" found by the inspector. Slip Op. 

at 6-7. In their view. these factors include the fact that at the time of 

the citation the methane level was found by the inspector to be acceptable, 

an inoperative exhaust fan causing coal dust to be stirred up was an "obvious 

condition rather than a latent one," and citations were not issued for each 

of these hazards noted by the inspector. Slip Op. at 7. In our opinion, each 

of these "mitigating" factors lacks merit. Birchfield's failure to take a 

methane reading during a required preshift examination in a coal seam 

known to liberate high amounts of methane presents a serious safety hazard 

in and of itself, regardless of how the results are viewed post hoc. Thus, 

contrary to the opinion of the majority, the fact that the inspectar's 

methane test did not indicate a high level of methane at the time of his 

test is not determinative of the seriousness of the danger posed by the 

operator's failure to perform the· test in the first instance. Nor do we 

see how the fact that the dust hazard caused by faulty ventilation was 

obvious to the inspector should serve to mitigate the hazard presented. 

As to the lack of other citations, we have already observed that another 

citation was issued by the inspector and that, in any event, additional 

citations are not required to support a significant and substantial finding. 

Several other mitigating factors relied upon by the majority to reverse 

the judge's significant and substantial finding also miss the mark. For 

example, we derive no solace from the fact that the violation occurred in a 

recently opened mine. The length of time that a mine has been opened has no 

bearing on the seriousness of a failure to conduct a preshift examination in 

such mine. Also, we fail to see how the fact that other miners on the outgoing shift may have been exposed to the same hazards as the miners on the 

incoming shift "mitigates" the seriousness of the hazards posed to the incoming miners by the failure to complete the required preshift examination. 

Based on the above, the fourth element of the Mathies test also has substantial 

record support. 

In sum, we find that the majority's after the fact "mitigation" analysis 

effectively eviscerates the important prophylactic purpose behind requiring 

preshift examinations in the first place. We therefore conclude that substantial evidence supports the judge's finding that the violation of section 

75.303(a) was significant and substantial in nature. 

For these reasons, we dissent from that part of the majority's decision 

reversing the judge's finding that the violation was of a significant and 

substantial nature. 

43 
Distribution 

Anthony J. Cicconi, Esq. 

Shaffer & Shaffer 

330 State Street 

P.O. Box 38 

Madison, West Virginia 25130 

William Sotver, Esq. 

MAE Services 

40 Eagles Road 

Beckley, West Virginia 25801 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

44 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 3 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

Docket No. CENT 88-76-M 

A.C. No. 34-00026-05515 

v. 

Tulsa Plant 

BLUE CIRCLE INCORPORATED, 

Respondent 

Appearances: 

Before: 

DECISION 

Mary Witherow, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, for 

the Petitioner; 

Robert McCormac, Industrial Relations Manager, 

Blue Circle Incorporated, Tulsa, Oklahoma, for 

the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of 

civil penalty filed by the petitioner against the respondent 

pursuant to section llO(a) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 820(a). The petitioner seeks 

a civil penalty assessment of $147, for an alleged violation 

of mandatory safety standard 30 C.F.R. § 56.20011, as stated 

in a section 104Ca) "S&S" Citation No. 3061188, served on the 

respondent by MSHA Mine Inspector Jimmie L. Jones on 

November 20, 1987. 

The respondent filed a timely notice of contest and 

answer denying the violation and a hearing was held in Tulsa, 

Oklahoma. The parties waived the filing of written posthearing arguments, but I have considered their oral arguments made 

in the course of the hearing in my adjudication of this 

matter. 

45 
Issues 

The i~sues presented are (1) whether the respondent 

violated the cited standard, and if so, the appropriate civil 

penalty which should be assessed taking in_to account the civil 

penalty assessment criteria found in sectiori llO(i) of the 

Act; and (2) whether the alleged violation was "significant 

and substantial" < S&S). Additional issues raised by the 

parties are identified and disposed of in the course of this 

decision. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801 et seq. 

2. Commission Rules, 29 C.F.R. § 2700.1, et seg. 

3. Mandatory safety standard 30 C.F.R. § 56.20011. 

Stipulations 

The parties stipulated to the following relevant matters 

(Tr. 4-6): 

1. The respondent is subject to the jurisdiction of the Act, and the alleged violation 

took place in or involves a mine that has products which enter or affect commerce. 

2. The subject mine is located near 

Tulsa, Rogers County, Oklahoma, and had an 

annual production rate of 242,098 tons or hours 

worked. The size of the respondent's operation 

is 1,568,568 production tons or hours worked 

per annum. 

3. The imposition of a civil penalty 

assessment for the alleged violation will not 

adversely affect the respondent's ability to 

continue in business. 

4. The total number of inspection days 

for the 24-month period preceding the issuance 

of the subject citation is 42, and the total 

number of assessed violations for this time 

period, including single penalty assessments, 

is 13. 

46 
5. The citation in question in this case 

was immediately abated by the respondent. 

Discussion 

Section 104(a) "S&S" Citation.No. 3061188, November 20, 

1987, cites an alleged violation of mandatory safety standard 

30 C.F.R. § 56.20011, and the condition or practice is 

described as follows: 

There was no barricades or warning signs 

along the perimeter and approaches into the 

mill building where employees travel. A roofer 

contractor was working 75 feet above where 

rolls of roofing material, 5 gal. pails, large 

propane gas cylinders and other materials were 

being used and handled. The roof sloped about 

3/12 and would easily allow dropped items to 

fall to ground level. 

Petitioner's Testimony and Evidence 

MSHA Inspector Jimmy L. Jones testified as to his background and experience, and he confirmed that he issued the 

contested citation on November 20, 1987, at the respondent's 

cement plant and limestone quarry site. He explained that he 

was at the site conducting a special investigation of a discrimination complaint, and that prior safety complaints had 

been made by mine personnel against the roofing contractor who 

was performing work at the mine. During the course of his 

interview with an employee foreman of the respondent on 

November 20, the employee advised him that he had observed the 

contactor's truck on the premises that day and that the contractor was there to do some work. Mr. Jones and respondent's 

industrial relations mana·ger Robert McCormac then went to the 

mill building and went up on the roof. 

Mr. Jones stated that no one was working on the roof on 

November 20, but that he observed some roofing material and 

equipment left there by the roofing contractor who was 

re-roofing the mill building roof. Mr. Jones stated that the 

roof was approximately 50 to 75 feet high and several hundred 

feet long. He identified exhibits P-1 and P-2 as sketches 

that he made of the roof area, and he described the materials 

which he found on the roof as rolJ ~a roofing material, 

5 gallon pails of mastic material, a homemade hand-truck, a 

20 pound propane bottle cylinder, and a 60 pound propane 

bottle cylinder. Mr. Jones confirmed that respondent's 

photographic exhibits J-1 and J-2, are photographs of the mill 

47 
building in question, and the roof after the re-roofing work 

was completed. 

Mr. Jones stated that a portion of the roof work had been 

completed on November 20, but that the roof. area where he 

observed the materials and equipment in question had not been 

finished. He stated that the 60 pound propane bottle and 

hand-truck were not secured or tied down, and he was concerned 

that the propane bottle could fall over and roll off the roof 

and strike a passing vehicle or service or maintenance personnel walking alqng the conveyor walkway below the roof. The 

roof peaked at the center, and had a 3/12 pitch. He believed 

that winds could have toppled the propane bottle and caused it 

to fall over and roll off the roof to the ground below. If 

the bottle struck a vehicle, it would cause serious damage, 

and if it struck anyone it would result in injury. There was 

also a chance of the propane bottle valve striking the ground, 

and if this occurred, the bottle could become airborne and 

cause injuries or damages if it struck personnel or vehicles 

(Tr. 8-24) • 

Mr. Jones believed that the hazard presented by the 

unsecured propane bottle on the roof would not be obvious to 

anyone travelling on foot in the area below the roof or a 

vehicle using the roadway. He observed no barricades or 

warning signs blocking off the walkway or roadway below the 

roof area in question. However, in another roof area where 

the contractor had worked on a flat-roof section removing old 

roofing material and concrete, and had dumped these materials 

off the side of the roof, the area below had been barricaded 

and tied off by 55-gallon drums and yellow marking tape. 

Mr. Jones stated that he discussed the conditions which 

prompted him to issue the citation with Mr. McCorrnac, and that 

he voiced no objections with hii findings. 

Mr. Jones confirmed that he based his "S&S" finding on 

his belief that it was reasonably likely that the hazard 

presented would have resulted in injury because of the height 

of the roof, the amount of work which had been performed on 

the roof, and the fact that vehicles and personnel would be 

travelling in the area below the roof location where the 

materials were located. Mr. Jones also confirmed that he made 

a negligence finding of "moderate," and that he did so because 

the contractor, rather than the respondent, created the 

hazard, and that the respondent may not have been in the area 

and did not· recognize the hazard. He also stated that he 

found no evidence that the respondent was making regular 

48 
reviews of the contractor's work while it was in progress (Tr. 

24-27). 

Mr. Jones confirmed that during his inspection of the 

roof on November 20, he found that the la~der used by him and 

Mr. McCormac to gain access to the roof had not been secured, 

and that he issued citations to the contractor for not 

securing the ladder and for not providing a safe means of 

access to the roof. He also confirmed that he had cited the 

contractor for other violative conditions in connection with 

the lack of safety lines for its personnel while working on 

the roof, failure to secure equipment while working on the 

roof, and the failure by contractor employees to wear hard 

hats, safety shoes and safety glasses. Mr. Jones conceded 

that "in hindsight," he probably should have also cited the 

contractor for the violation in question in this case (Tr. 

27-32). 

On cross-examination, Mr. Jones conceded that the prior 

complaints concerning the contractor's work on the roof were 

not reduced to writing or served on the respondent as required 

by section 103(g)(l) of the Act. Mr. Jones explained that he 

was not at the mine for the purpose of conducting a section 

103 investigation or inspection, but that he was there conducting a special investigation in connection with a discrimination complaint against the respondent. He confirmed that 

the discrimination complaint is still in litigation, and that 

it was filed by an e!nployee who alleged that some action had 

been taKen against him for complaining about alleged contractor violations at the site. 

Mr. Jones reiterated that no·one was working on the roof 

when he inspected it on November 20. He conceded that while 

it was true that someone or something would have to put the 

materials in motion before they could fall off the roof, he 

believed that a wind could have toppled over the free standing 

60 pound propane bottle and caused it to roll off the roof. 

Mr. Jones confirmed that he was primarily concerned with 

the 60 pound propane bottle and the hand truck, and not the 

other materials on the roof. He explained that it was not 

likely that the rolls of roofing materials, pails, or smaller 

propane bottle would fall off the roof because they were 

stored in such a manner as to preclude this from happening 

(Tr. 33-53). 

Mr. Jones stated that regardless of the type of inspection or investigation being conducted by an inspector at any 

given time, an inspector is authorized to issue citations for 

49 
violations and to use an appropriate MSHA "incidental inspeqtion" code to identify the inspection. He reiterated that in 

the case at hand, the information which prompted him to visit 

the roof with Mr~ McCormac came to his attention through his 

discussions with the forenan in connection with his investigation of a prior discrimination complaint {Tr. 54). 

Mr. Jones confirmed that everyone he ·spoke with in connection with his discrimination investigation was aware of the 

fact that the contractor was on the roof from time-to-time 

performing work. He confirmed that after his inspection which 

resulted in the issuance of the citation in issue in this 

case, he returned to the mine to complete his discrimination 

investigation and to abate some prior citations, and he 

observed the contractor performing work on the roof {Tr. 55). 

In response to further questions, Mr. Jones stated that 

the propane bottle in question "was nearly in a straight-line 

relationship to that conveyor" and that "My judgment was it 

was only reasonably likely that it could fall and it could 

strike either that roadway or that conveyor" {Tr. 94). In 

response to a question as to whether or not barricades need to 

be in place regardless of whether anyone is actually doing any 

work on the roof, Mr. Jones responded as follows (Tr. 94-95): 

MR. JONES: No. The only reason that they 

needed the barricaded warning sign was because 

of this unsecured bottle and stuff up there 

when no one's working up there. If they would 

secure that material, then they could take 

their barricades down. 

But all the time that people are working 

up there on that sloped roof along the perimeter, they' re down on the ground. They have 

no idea what position these people are in. 

They need to have that roadway and that conveyor blockaded because you never know where 

the material would come from because they're 

working along the length of that building. 

William J. Brock, testified that he is employed by the 

Lespondent as a repairman and welder, and also serves as the 

vice-president of the local union and representative of the 

miners working at the mine. Upon review of inspector Jones' 

sketch, exhibit P-1, he confirmed that prior to the inspection 

of November 20, he observed the roofing contractor working on 

the roof in question, and also observed the equipment and 

materials described by Mr. Jones. Mr. Brock also observed the 

50 
contractor performing work on the roof after the citation was 

issued. 

Mr. Brock stated that he observed no barricades or warning signs in place on the roadway or the cqnveyor walkway in 

the area beneath the roof location where the cited materials 

and equipment were observed by Mr. Jones on November 20. 

Mr. Brock confirmed that employees and trucks would have 

occasion to be on the roadway and walkway in the unprotected 

area under the roof. He stated that a dust truck travelled 

the roadway every 30 minutes, and that contractor vehicles 

also used the roadway. In addition, respondent's loaders; 

would also be in the roadway area working and moving material, 

and that mine employees would be on foot in the area of the 

tripper belt in the morning at the beginning of the shift, and 

at the end of the shift. An oiler and rock crusher operator 

would also be on the conveyor walkway at least once a day. 

Mr. Brock stated that prior to the inspection by 

Mr. Jones on November 20, he had questioned the respondent 

about the lack of barricades at another location at the west 

end of the mill building where the contractor was hauling 

materials and equipment up to the roof. After receiving no 

response, Mr. Brock stated that he took it upon himself to 

rope the area off CTr. 61-67). 

Mr. Brock stated that the walkway located on the elevated 

conveyor belt is partially covered with a roof, and that 

individuals using that walkway would not normally be walking 

on the roadway below the conveyor. However, people would be 

on the roadway on foot occasionally (Tr. 68). With regard to 

the lack of any barriers on the east side of the building, 

Mr. Brock confirmed that he had no particular knowledge that 

work was being performed on the roof at that location, and 

that it was possible that any work on the roof was taking 

place on the west side of the roof apex. He confirmed that he 

was not on the roof at that time (Tr. 69). He also confirmed 

that while he was at work on the day of Mr. Jones' inspection 

when the citation was issued, he did not visit the cited roof 

area with Mr. McCormac or Mr. Jones to view the conditions 

(Tr. 75). 

Respondent's Testimony and Evidence 

Bobby McFarland, respondent's utility supervisor, testified that his duties included the supervision of the plant 

labor department which is responsible for cleaning the plant 

and insuring that work areas are barricaded as required. In 

those instances where it is necessary to perform cleaning on 

51 
elevated areas, and materials are thrown off the roof, the 

bottom wall. and ground areas are barricaded. He con£irmed 

that he was aware of the fact that Patterson Roofing Company 

was doing some roof work at the plant "last fall" (Tr. 76-77). 

His crew was assigned to keep the ground barricaded and roped 

off while Patterson Roofing was doing any work' that presented 

a hazard, and that this was done "when they was there working." 

With regard to the day the citation was issued, Mr. McFarland 

confirmed that the roofing contractor was not at the plant 

site and that the area around the building in question was not 

roped off that day because no one told him that the contractor 

would be there (Tr. 78). 

On cross-examination, Mr. McFarl·and confirmed that he was 

at work on the day the citation was issued, and although he 

went to the ground area of the crane storage building, he did 

not accompany Mr. Jones and Mr. McCormac oh the roof during 

their inspection. Prior to this time, he was aware of the 

fact that the contractor ·had worked on the east side of the 

building (Tr. 79). He confirmed that 'when the contractor was 

working on the north side of the.building, he barricaded the 

area, but not the entire perimeter of the east side (Tr. 79). 

The area which was barricaded was at the location where 

materials where being removed and thrown off the roof. He 

identified the area which had previously been roped off and 

barricaded by reference to a sketch and photograph (exhibit 

P-1 and J-1; Tr. 80-82). The barricades were up "probably the 

day before" the citation whe~ work was taking place, but they 

did not remain up for the entire time the~· workers were on the 

roof working because they were taken down:' so that truck 

traffic could pass through the area. Mr. McFarland believed 

that the barricades were "probably taken down to the edge of 

the road" (Tr. 83). 

Mr. McFarland eXplained that the barricades consisting of 

ropes placed around empty barrels, were put up when the roofing contractor was hoisting building materials to the top of 

the roof by means of a crane and a pulley rope. When asked 

whether or not the barricades renained in place after the 

materials were on the roof, , Mr. McFarland: responded as follows 

(Tr. 85-88): 

JUDGE KOUTRAS: After the mate~ials'~re up on 

the roof and the guys sta~t tb ~ork, ~hat 

happens to the barricades~. 

THE WIT~ESS: Okay, the one on the' ~ast' side 

there gets pulled back to the roaa where the 

traffic can go through, and on the north and 

52 
south side up in ftont, why, they get taken 

down for that night. If they start to work the 

next morning, we put them Up; if they don't 

work, we don't put.them up. 

,JUDGE KOUTRAS: But if they are up there 

working, are the barricades still up? 

THE WITNESS: They're supposed to stay up, yes 

sir. 

* * * * * * 

JUDGE KOUTRAS: Why is that? 

THE WITNESS: If you -- to keep stuff from 

falling, people walking under them. 

* 

JUDGE KOUTRAS: Then if for some reason the 

contractor decides not to work on any partic- 1 ular day and there is nobody up there, then the 

barricades are taken away; is that what you are 

saying? 

THE WITNESS: Yes~ They'll be pushed up 

against the building. · 

JUDGE KOUTRAS: 'rheh when the contractor comes 

out again, they're pulled dut and put up again; 

is that what you are telling me? 

THE WITNESS: Yes, that•s what • 

JUDGE KOU'rRAS: Now, on Noveμtber 20th when the 

inspector issued this citation, were you at 

work? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: were the barricades up or 

against the building that day? 

THE WITNESS: They was probably against the 

building that day because he didn't work. 

JUDGE KOUTRAS: You say "probably. 11 Do you 

know f ot a fact that they were against the 

building? Did you go up there? 

53 
THE WITNESS: No, I didn't go on top. 

JUDGE KOUTRAS: Not on the roof, did you go to 

that area? Did you have any reason to be 

there? 

THE WITNESS: Yes, I have a reason to go every 

day there around the building. 

JUDGE KOUTRAS: Do you remember seeing any 

barricades there? 

THE WITNESS: No. 

JUDGE.KOUTRAS: They were up in the roadway? 

THE WITNESS: They was in the area, but they 

probably wasn't on that day because they wasn't 

working. I have a crew that puts them up when 

they work. 

And, at (Tr. 92-93): 

JUDGE KOUTRAS: So if they are up there doing 

work then the roadway is not blocked? 

THE WITNESS: No, it's not on the back side. 

JUDGE KOUTRAS: Not on the back side? 

THE WITNESS: Right. 

MS. WITHEROW: Is the walkway blocked off? 

THE WITNESS: The walkways are covered, both of 

them -- all three of them are covered. 

MS. WITHEROW: We have heard testimony from two 

witnesses that there are parts of that walkway 

that are not covered. 

THE WITNESS: The tripper belt is covered and 

your clinker belt where it used to be there's a 

walkway that we walk through, it's also covered. 

54 
But from going to the mill building, top of the 

mill building out to the footer building, it's 

not. 

* * * * * * * 

Q. So this walkway that Mr. Jones testified 

about, it was not -- it was open? 

A. Well, it's got covers on your belt but it 

don't have a cover over your -- it's not a 

covered walkway. 

Q. Fine. Were there any barricades or warning 

signs on that? 

A. On this one (pointing}? 

Q. On that walkway? 

A. No. 

Q. At any time? 

A. No, not that I know of. 

John Bayliss, respondent's maintenance manager, confirmed 

that he was familiar with the contractor performing work on 

the roof of the crane storage building prior to and after the 

time the citation was issued, and that he was aware of the 

contractor's "comings and goings." Mr. Bayliss stated that 

the contractor was not performing any work on the roof on the 

day that the citation was issued. He confirmed that all roofing contractors are given safety instructions, and they are 

instructed to wear hard hats, glasses, and hard-toes shoes, 

and that in the event they needed assistance or barricades 

they were to come to him. When asked whether or not barricades were installed when contractors were performing work at 

the plant, Mr. Bayliss stated as follows (Tr. 98): 

A. Whenever they told us that they were in a 

problem, we installed barricades. When they 

were going to tear the junk -- they started off 

tearing the top off the roof, and then they 

lifted up the new supplies, and then they stuck 

these new supplies back on the roof. That was 

a job. 

55 
When they came to lift up the supplies, 

there were two different, separate times when 

they were lifting supplies up. One, they used 

a huge mobile crana, and the next ti1ne they 

used the rope down the side of the bU:ilding. 

Each time when they were using these 

things, we put barricades up. Bob works for 

me, and he put barricades up. 

Mr. Bayliss stated that the roofing contractor in question usually had two or three workers working at one location 

on the roof, and in the event they were working and handling 

materials at the north end of the building, it would not be 

logical to rope off the south end. In his judgment, the only 

work area that needed to be roped off would be the area 

directly below where the roof work was being performed (Tr. 

9 9). 

Mr. Bayliss described the propane tank used by the contractor as "a small tank" weighing approximately 20 pounds 

(Tr. 100). He stated that prior to the issuance of the citation, the contractor had not worked at the plant for a week 

because the temperature was less than 40 degrees and that "we 

had been in limbo for a week here, waiting for the guy to come 

back and get his job done" (Tr. 101). Mr. Bayliss was of the 

opinion that there was no likelihood that the materials on the 

roof would have fallen off and that it was unlikely that an 

accident would have happened because the east side of the 

building is not a place where anybody would walk and that 

there are "very few people on foot. This is not a traveled 

area at any time as far as people walking" (Tr. 101). 

On cross-examination, Mr. Bayliss confirmed that although 

he was at work on the day of Mr. Jones' inspection, he did not 

accompany him to the top of the roof, nor did he go to the 

roof on that day. Mr. Bayliss stated that he knew what was on 

the roof because "what's on the roof that day was on the roof 

the day before, and it was on the roof ever since we'd been on 

the roof so I knew exactly what was on the roof" (Tr. 101). 

Mr. Bayliss confirmed that he was on the roof at least once a 

week in order to insure that the work for which the contractor 

was being paid was done. 

Mr. Bayliss confirmed that in addition to the 20 pound 

propane tank, another 60 pound propane tank was on the roof on 

the day of the inspection, and he agreed with the inspector's 

testimony concerning the presence of other materials such as 

56 
pails, roofing materials, and a hand truck on the roof CTr. 

106). With regard to the inspector's assessment of the hazard 

presented at the time of the inspection, Mr. Bayliss stated as 

follows (Tr. 106-107): 

JUDGE KOUTRAS: Now you also heard the inspector t~stify that if a wind came along and 

toppled over this sixty-pound propane tank that 

it could possibly roll off the roof, and if it 

did and fell to the ground below and struck a 

truck, it would cause certain damages; if it 

struck a person, it would cause certain things; 

and if it landed on its valve and it was full, 

it would likely or at least it was a possibility of it becoming airborne or whatever. 

Do you differ with the inspector on that? 

If this propane tank toppled, would it likely 

roll off the roof? 

THE WITNESS: I believe it might. 

JUDGE KOUTRAS: Was the pitch of the roof such 

that it would roll off? 

THE WITNESS: Well, you can see the roof. Any 

pitch on anything, if you roll a -- of course, 

I didn't see exactly where this sixty-pound 

tank was actually located on this day. 

JUDGE KOUTRAS: Where could it be located up 

there? Did they have any -- he said that the 

roof i.ng material was in cardboard boxes and it 

was either perpendicular or positioned in such 

a way that that wouldn't roll off, that he 

wasn't concerned about the pails but he was 

concerned about this one propane tank and the 

hand truck. 

THE WITNESS: Yes. 

JUDGE KOUTRAS: Particularly with the propane 

tank. His testimony is that if the wind 

toppled the propane tank, it was in such a 

position that it would readily roll off the 

roof. 

THE WITNESS: I believe him. 

57 
Mr. Bayliss stated that the propane tanks in question 

were not "tied off," that the contractor never tied them off, 

and that "if the inspector says it was up there when he saw 

it, I believe him" (Tr. 108). Mr. Bayliss agreed that the 

unsecured materials on the roof were left .t.here by the contractor who intended to come back "the next day" or when "we 

got to some warmer weather" (Tr. 109). He confirmed that the 

materials were left on the roof for "a couple of weeks" and 

that "this job took like three months to complete" (Tr. 110). 

Mr. Bayliss stated that the inspector was justified in 

issuing the citation and that his only difference with the 

inspector lies in "the likelihood of somebody getting hurt." 

Mr. Bayliss agreed with the inspector's view that an unsecured 

propane cylinder on a pitched roof could roll off, but disagreed with the inspector's belief that it was reasonably 

likely that it would fall off and hit someone (Tr. 112). 

Petitioner's Arguments 

Petitioner takes the position that the testimony in this 

case, including the testimony of the respondent's witness 

Bayliss, supports the inspector's finding that a violation of 

the cited standard occurred and that the propane tank located 

on the roof posed a hazard in that it could have toppled over 

and rolled off the roof. Given the inspector's testimony that 

the walkway was at no time barricaded, the testimony of 

Mr. Brock that trucks were on the roadway every 20 to 

30 minutes driving along the unbarricaded roadway below the 

roof, and Mr. McFarland's admission that the roadway was not 

barricaded on the day of the inspection, petitioner concludes 

that it has established the fact of violation, and the fact 

that a hazardous condition was present at the time of the 

inspection and the issuance of the citation (Tr. 118-119). 

Respondent's Arguments 

The respondent asserted that the citation should be 

vacated because the inspector failed to follow the requirements of section 103(g)(l) of the Act which requires that any 

complaints concerning alleged violations of any mandatory 

safety standard be first reduced to writing and a copy 

furnished to the mine operator. Respondent argued that no 

written complaint was forthcoming at the hearing, that MSHA 

failed to produce any witness who may have complained to the 

inspector about the cited condition, and that the inspector 

would not have gone to the roof area but for this complaint. 

Respondent took the position that "everything from that point 

on is hearsay" (Tr. 119). 

58 
The respondent's second argument is that MSHA inspectors 

are issuing citations to contractors who are supposedly working at the plant, when in fact they are not present at the 

plant actually performing any work at the ~ime of the inspection. Respondent's representative McCormac- stated that "If we 

are going to have a citation written about contractors working, if the inspector does not see the work being done, then 

he can't write anything on them" (Tr. 113). Mr. McCormac 

asserted that the written condition described by Inspector 

Jones on the face of the citation states that the contractor 

"was working seventy-five feet above the ground" when in fact 

the contractor was performing no work on the day of the inspection (Tr. 115). Mr. McCormac concludes that the inspector's 

belief that the contractor was working on the day in question 

is based on speculation which is unsupported by any "concr.ete 

proof" (Tr. 120). 

Finally, the respondent argues that with respect to the 

propane cylinder in question, since there was no one working 

on the roof, and since there was no evidence advanced with 

respect to any wind or adverse weather conditions which may 

have caused the cylinder to topple over and roll off the roof, 

there was no hazard. Absent any agent or event that would 

cause the cylinder to topple over from its upright position, 

respondent concludes that it was unlikely that an accident 

would occur. Mr. McCormac stated that in the absence of 

vacating the citation, it should at most be modified to a 

"non-S&S" citation, and he agreed that if the citation was 

initially classified as such "we would not be here today" (Tr. 

120, 122). 

Findings and Conclusions 

Section 103(g)(l} Issue ' \, 

Section 104Ca} of the Act provides in relevant part that 

"if, upon inspection or investigation, the Secretary or his ~ 

authorized representative believes that an operator of a coal '· 

or other mine subject to the Act has violated this Act, or any 

mandatory health or safety standard, ••• , he shall, with 

reasonable promptness, issue a citation to the 

operator • II 

Inspector Jones confirmed that he visited the plant site 

on November 20, 1987, in his capacity as an inspector and 

special investigator for the purpose of conducting an investigation concerning a previously filed discrimination complaint. 

He explained that in the course of these duties it is not 

59 
unusual for him to receive information or complaints from 

employees with regard to alleged violative conditions which 

may be unrelated to his discrimination investigation. Unless 

the complaints concern an imminently dangerous condition, his 

normal procedure is to ref er safety compla~nts to the inspectors who normally inspect the mine. However, since he was 

aware of the fact that MSHA had received prior employee safety 

complaints concerning the roofing contractor, and had conducted hazard inspections in response to those complaints, and 

since he was informed by a foreman that the contractor was 

working on the roof while he was there on November 20, 1987, 

Mr. Jones decided to inspect the roof area in question (Tr. 

8-9). 

Inspector Jones explained that the prior visits to the 

plant by other MSHA inspectors in response to written complaints concerning the contractor in question were in connection with complaints that contractor personnel were not 

wearing hard hats, hard-toed shoes, and glasses. The "negative findings" by the inspectors with respect to those complaints were based on the fact that the contractor was not 

working when the inspectors were on the site, and since the 

inspectors had no opportunity to observe the contractor's 

employees without the personal equipment in question they had 

no basis for supporting any citations (Tr. 36-38). 

Inspector Jones confirmed that no one complained to him 

about any alleged violative conditions on the roof, and that 

he went there with Mr. McCormac after a foreman advised him 

that the contractor was on the mine site. The fact that 

Mr. Jones may have interrupted his discrimination investigation to visit the roof area is irrelevant. Mr. Jones was 

accompanied by a representative of the respondent and the citation which he subsequently issued was based on his personal 

observations of the conditions which prompted him to issue it. 

I find nothing onerous or procedurally defective in the action 

taken by Mr. Jones. As an authorized representative of the 

Secretary, Mr. Jones had a duty and obligation to issue the 

citation if in his judgment the conditions which he observed 

constituted a viol:i.tion of the cited mandatory safety standard 

in question. The respondent's assertion that Mr. Jones' 

actions were "hearsay" because the petitioner failed to produce any written coraplaint or any witness who may have complained about the materials on the roof are not well taken. 

Mr. Jones' personal observations and testimony about the 

conditions ~hich prompted him to act are not hearsay, and I 

accept as credible his explanation as to why he went to the 

roof. Under the circumstances, the respondent's arguments 

60 
that the citation is somehow defective and that Mr. Jones 

actions were procedurally improper ARE REJECTED. 

The Inspector's Narrative Description of the Cited Conditions 

The respondent is charged with a violation of mandatory 

safety section 30 C.F.R. § 56.20011, because of its alleged 

failure to install barricades or warning signs along the perimeter and approaches to the building where roofing materials 

were located on the pitched roof. The inspector was concerned 

that some of the materials on the roof, and in particular a 

hand truck and a large propane bottle or cylinder weighing 

approximately 60 pounds, and which was upright and unsecured, 

could have toppled over and rolled down the roof to the ground 

below striking passing vehicles or employees traveling along a 

roadway and conveyor walkway. Section 56.20011, provides as 

follows: 

Barricades and warning signs. 

Areas where health or safety hazards exist 

that are not immediately obvious to employees 

shall be barricaded, or warning signs shall be 

posted at all approaches. Warning signs shall 

be readily visible, legible, and display the 

nature of the hazard and any protective action 

required. 

The evidence in this case establishes that work was in 

fact performed by the roofing contractor prior to the day of 

the inspection by Mr. Jones, and that it continued for some 

time after the issuance of the citation. The evidence also 

establishes that the roofing materials found by Mr. Jones on 

the roof were being used by the contractor who interrupted the 

completion of the roofing job because of outside t~nperature 

conditions. The respondent's suggestion that the citation is 

somehow defective because of the misleading wording of the 

cited conditions by the inspector on the face of the citation 

is not well taken. While it is true that the citation issued 

by Mr. Jones which states that "a roofer contractor was 

working 75 feet above" the perimeter and approaches to the 

building gives the impression that work was taking place when 

Mr. Jones was on the roof observing the conditions, I find 

nothing in the cited standard that conditions a violation on 

the fact that work may or may not be ongoing. 

The gravamen of the requirement for barricades or warning 

signs lies in the existence of safety hazards not immediately 

obvious to arnployees. The critical issue is the existence of 

61 
the hazard, and the fact that no roofing work was taking place 

at the precise time of the inspection is irrelevant to any 

determination as to whether or not the affected area in question was barricaded or posted with warning signs. However, 

the fact that no work was taking place may .or may not be relevant in any determination as to the degree of the hazard, and 

the likelihood of an accident occurring. Accordingly, the 

respondent '•s assertion that the "speculative" words used by 

the inspector conveying the impression that work was actually 

taking place when he viewed the conditions supports a dismissal 

of the citation IS REJECTED. 

Fact of Violation 

The unrebutted evidence in this case clearly establishes 

the existence of unsecured materials on the roof of the mill 

building. The roof was approximately 75 feet off the ground, 

and it was "pitched" or "peaked" as depicted by the photographic exhibits of record, and the building was several 

hundred feet.long. The evidence also establishes that the 

materials which were of concern to the inspector consisted of 

an unsecured 60-pound propane tank or bottle, and a small 

unsecured hand truck, both of which remained on the roof for a 

relatively long period of time during which the roofing 

contractor performed no work on the roof because of adverse 

outside temperature conditions. 

Inspector Jones testified that given the pitch of the 

roof, and the fact that the unsecured propane bottle was 

located "in a straight-line relationship" to an elevated 

conveyor located below the roof, he was concerned that if the 

bottle were to fall over and roll off the roof, it could 

strike the conveyor walkway, a portion of which was uncovered, 

as well as mine personnel walking along the base of the building, and vehicles passing by on a ground level roadway 

adjacent to and below the roof of the building. Respondent's 

maintenance manager John Bayliss agreed with the inspector's 

belief that in the event the unsecured propane bottle were to 

topple over, it could readily roll off the pitched roof to the 

ground below. He also agreed that the inspector was justified 

in issuing the citation. Given these undisputed facts, I 

conclude and find that the unsecured propane bottle and hand' 

truck in question posed a potential safety hazard. 

Although the evidence establishes that no one was working 

on the roof at the time qf the inspection and issuance of the 

citation, respondent's welder and repairman William Brock 

testified that a dust truck travelled the roadway every 

30 minutes, and that respondent's employees would occasionally 

62 
be on foot on the roadway. He also testified that respondent's employees would have occasion to walk the partially 

unprotected conveyor walkway during the course of their daily 

work shift, and that contractor vehicles would also use the 

roadway. Inspector Jones testified that a~rvice and maintenance persopnel would have occasion to travel the conveyor 

walkway while servicing the conveyor systems. This testimony 

is unrebutted, and I conclude and find that these employees 

and vehicles would be exposed to the potential hazard in 

question. 

Although Mr. Bayliss testified that he knew that the 

materials cited by Inspector Jones were on the roof, there is 

no credible evidence that any other employees were aware of 

the fact that these materials were there. Inspector Jones 

testified that employees working below the roof of the building or travelling along the conveyor belt or roadway would not 

be able to see the materials unless they were out for some 

distance away from the building, and that they would not be 

able to see anything rolling or falling off the roof and would 

have no warning if this were to occur. Given the dimensions 

of the building in question, the location of the materials at 

the apex of the roof which was approximately 75 feet off the 

ground, and the location of the roadway and conveyor belt at 

the base of the building, I conclude and find that employees 

on foot or in vehicles at those locations would not likely be 

aware of the unsecured materials on the roof and that the 

existing hazard presented by the unsecured propane bottle and 

hand truck would not be immediately obvious to them. 

The undisputed evidence establishes that the roadway and 

conveyor areas at the base of the building and below the roof 

area where the unsecured propane' bottle and hand truck were 

located were not barricaded or otherwise posted with warning 

signs during the time that these materials were left on the 

roof by the roofing contractor. Although the respondent's 

evidence reflects that barricades were normally erected while 

work was being performed on the roof or roofing materials were 

being hoisted to the roof, it seems clear to me that they were 

not in plac;e during the existence of the hazard. 

Given the existence of a safety hazard which was not 

immediately obvious to employees, and the fact that no barricades were erected, or warning signs posted in the areas 

exposed to the hazard during the time the unsecured propane 

bottle and hand truck remained on the roof, I conclude and 

find that the respondent violated the requirements of mandatory safety standard 30 C.F.R. § 56.20011. Accordingly, the 

citation IS AFFIRMED. 

63 
.. 

Significant and Substantial Violation 

A "si~nificant and substantial" violation is described in 

section 104{d)(l) of the Mine Act as a vio~ation "of -such 

nature as could significantly and substantially contribute to 

the cause and effect of a coal or other mine safety or health 

hazard." 30 C.F.R. § 814Cd)(l). A violation is properly 

designated significant and substantial "if, based upon 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 (April 

19 81). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Coffil-nission explained its interpretation of t.be term "significant and substantial" as follows: 

In order to establish that a violation of 

a mandatory safety standard is significant and 

substantial under National Gypsum 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. 

In United States Steel Min.ing Company, Inc., 7 FMSHRC 

1125, 1129, the Commission stated further as follows: 

We have explained further 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). We have enphasized that, in accordance 

with the language of section 104Cd)(l), it is 

the contribution of a violation to the cause 

and effect of a hazard that must be significant 

and substantial. U.S. Steel Mining Company, 

Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. 

Steel Mining Company, Inc., 6 FMSHRC 1573, 

1574-75 (July 1984). 

64 
The question of whether any particular violation is significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine 

involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498 

(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 

C December 19 87) • 

Inspector Jones confirmed that the rolled roofing materials, 5-gallon pails, and small 20-pound propane bottles 

which he found on the roof were adequately stored and secured 

and did not pose a hazard. His principal concern was the 

unsecured free-standing 60-pound propane bottle which was 

located on the sloped portion of the roof. Although Mr. Jones 

alluded to his concern for the unsecured hand-truck, I find no 

credible evidence to support a conclusion that it was reasonably likely that this truck would fall or roll off the roof 

and strike and injure someone. 

With regard to the unsecured propane bottle, respondent's 

own witness John Bayliss confirmed that it remained on the 

roof for "a couple of weeks" when no work was in progress on 

the roof. Mr. Bayliss also agreed with the inspector's conclusion that given the position of the bottle on the pitched 

roof, if it were to topple over it would readily roll off the 

roof. Mr. Bayliss also confirmed that the contractor in question never tied off or secured any of its propane tanks, and 

Inspector Jones confirmed he cited the contractor for not 

securing the bottle and for several additional unsafe work 

practices in connection with the work being performed on the 

roof. 

The respondent argues that in the absence of any work in 

progress on the roof at the time of the inspection, and the 

lack of any agent or event to cause the bottle to be placed in 

motion and roll off the roof, the violation is not significant 

or substantial. I disagree. In my view, the free-standing 

and unsecured 60-pound cylindrically shaped propane bottle 

located on the pitched portion of the roof which was approximately 75 feet above an unbarricaded area where employees and 

traffic would be present on a daily basis created an inherent 

and discrete potential safety hazard regardless of the presence of any independent agent or event to place the bottle in 

motion. The unsecured bottle was on the pitched portion of 

the roof for a relatively long period of time, and it was not 

readily observable from the ground level roadway or conveyor 

areas which should have been barricaded or otherwise posted 

with warning signs. If the bottle were to topple over, it 

would readily roll off the roof and possibly strike an 

65 
employee walking along the base of the building or a vehicle 

passing along the roadway. If this were to occur, I believe 

that one may reasonably conclude that serious or fatal 

injuries would result. Under all of these circumstances, I 

agree with the inspector's significant and substantial finding, and IT IS AFFIRMED. 

History of Prior Violations 

The parties stipulated that the respondent had 13 assessed 

violations for the 24-month period preceding the issuance of 

the citation in. this case. I find that the respondent's history of compliance is not such as to warrant any additional 

increase in the civil penalty assessment which has been made 

for the violation in question. 

Size of Business and Effect of Civil Penalty Assessment on the 

ResE.._ondent's Ability to Continue in Business 

Based on the stipulations by the parties, I conclude and 

find that the respondent is a medium-size mine operator, and 

that the payment of the civil penalty assessment in this case 

will not adversely affect its ability to continue in business. 

Gravity 

On the basis of my findings and conclusions affirming the 

inspector's "significant and substantial" finding, I conclude 

that the violation was serious. The unsecured propane bottle 

in question presented a hazard to mine employees and vehicles 

using the roadway at the base of the building some 75 feet 

below the roof where the bottle was located. 

Negligence 

Inspector Jones made a finding of "moderate negligence," 

and he confirmed that he did so on the basis of mitigating 

circumstances. He explained that the contractor created the 

hazard, and the record shows that he cited the contractor for 

not securing the bottle. Insofar as the respondent is concerned, although Mr. Jones believed that it had an obligation 

to check on the contractor to determine whether it was creating any hazards to miners, he considered the fact that the 

respondent did not recognize any hazard (Tr. 29-31). I 

conclude and find that the violation resulted from the respondent's failure to exercise reasonable care, and the inspector's negligence finding is affirmed. 

66 
Good Faith Abatement 

The parties stipulated that the respondent demonstrated 

good faith in immediately abating the violation. I adopt this 

stipulation as my finding on this issue. 

Civil Penalty Assessment 

On tqe basis of the foregoing findings and conclusions, 

and taking into account the requirements of section llOCi) of 

the Act, I conclude and find that a civil penalty assessment 

in the amount of $150 is reasonable and appropriate for the 

violation which has been affirmed in this case. 

ORDER 

The respondent IS ORDERED to pay a civil penalty in the 

amount of $150 for a violation of mandatory safety standard 

30 C.F.R. § 56.20011, and payment is to be made to MSHA within 

thirty (30) days of the date of this decision and order. Upon 

receipt of payment, this proceeding is dismissed. 

~~u'!:~~ Administrative Law Judge 

Distribution: 

Mary Witherow, Esq., Office of the Solicitor, U.S. Department 

of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Robert K. McCormac, Industrial Relations Manager, Blue Circle 

Incorporated, 2609 N. 145th E. Avenue, Tulsa, OK 74116 

(Certified Mail) 

/f b 

67 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER. CO 80204 

JAN 9 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Peti tiorrer 

v. 

EASTSIDE COAL COMPANY, INC., 

Respondent 

. . 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 88-77 

A.C. No. 05-02421-03518 

Eastside Mine 

DECISION 

Appearances: James H. Barkley, 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 Cetti 

This case is before me upon a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 et seg. The Secretary of 

Labor, on behalf of the Mine Safety and Health Administration, 

CMSHA), charges the operator of the Eastside Mine with violating 

two safety regulations of 30 C.F.R §§ 70.508 and 49.38 and with a 

failure to abate these violations. MSHA issued two 104(a} 

Citations and later two 104(b) Orders for failure to abate the 

violations. 

The operator filed a timely appeal contesting the existence 

of the alleged violations and raising five affirmative defenses. 

The case was set for hearing on the merits at the same place and 

time as other cases involving the parties were heard on the 

merits. At the hearing, the parties advised they had reached 

settlements resolving all issues and were prepared to make their 

recommendations on the record. 

Eastside is a small underground coal mining operation. It 

is developing a coal seam situated in the Grand Hotback, near the 

town of Silt, Garfield County, Colorado. It employees five CS) 

persons. 
Citation/Order No. 9996145 involved an alleged failure to 

have qualified or certified personnel take noise samples. In 

preparing the case for trial the Secretary found the original 

104(a) citation was valid but that there was insufficient evidence to go forth with the 104(b) order issued for the alleged 

failure to abate. The parties agreed and jointly moved that the 

Secretary be permitted to vacate the 104(b) order and with 

respect to the 104(a) citation amend the proposed penalty (which 

was a combination penalty for the citation and the order) from 

$170.00 to $85.00. The motions with respect to citation/order 

No. 9996145 were granted and respondent with approval of the 

court withdrew its notice of contest to the citation and its 

related amended penalty. 

With respect to Citation/Order No. 3043534 the parties 

jointly moved to vacate the 104(b) order, leaving in place the 

104(a) citation, and to amend the proposed penalty for the 

citation and order from $255.00 to $128.00. This reduced penalty 

relates solely to the 104(a) citation. The Secretary's counsel 

stated for the record that the 104Ca> citation was appropriate 

but on review of the evidence it was determined that the 104(b) 

order was not. Respondent withdrew his contest to the citation 

and its related amended penalty. 

I accept the representation of counsel that there is insufficient evidence to establish the failure to abate Order Nos. ~044011 and 3044012 and grant the motion to vacate said orders. 

I conclude that the proposed settlement is appropriate under the 

criteria set forth in section llOCi> of the Act. 

Accordingly, the joint motion (or approval of the settlement 

made at the hearing is granted, the settlement is approved and 

respondent is ordered to pay the sum of $213.00 within 40 days of 

the date of this Order. 

Distribution: 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

Edward Mulhall, Jr., Esq., Delaney & Balcomb, Drawer 7 90, _ 

Glenwood Springs, CO 81602 (Certified Mail) 

/bls 

69 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280. 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JAN 9 \989 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

UTAH POWER & LIGHT COMPANY, 

Respondent 

. . 

. . 

. . 

: 

. . 

. . 

. . 

Docket No. WEST 88-92 

A.C. No.· 42-00121-03659 

Deer Creek Mine 

DECISION 

Appearances: Susan J. Bissegger, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Thomas c. Means, Esq., Crowell & Moring, 

Washington, D.C., 

for Respondent. 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration (MSHA), charges respondent with violating a 

safety regulation promulgated under the Federal Mine Safety and 

Health Act, 30 u.s.c. § 801 et seq., (the "Act"). 

After notice to the parties a hearing on the merits was held 

in Denver, Colorado on June 8, 1988. 

The parties filed post-trial briefs. 

Summary of the Case 

Citation No. 3044971 charges respondent with violating 30 

C.F.R. § 75.1714. The cited regulation provides as follows: 

§ 75.1714 Availability of approved self rescue devices; 

instruction in use and location 

(a) Each operator shall make available to each miner 

employed by the operator who goes underground and to 

visitors authorized to enter the mine by the operator a 

self-rescue device or devices approved by the Secretary 

which is adequate to protect such person for one hour or 

longer. 

70 
Cb) Before any miner employed by the operator or visitor 

authorized by the operator goes underground the operator 

shall instruct and train such person in the use and 

location of the self-rescue device or .devices made available at the mine. Instruction and training of miners and 

visitors shall be in accordance with provisions set forth 

in 30 CFR Part 48. 

Stipulation 

At the commencement of the hearing the parties stipulated as 

to the admissibility of certain documents and factors relating to 

the assessment of a civil penalty (Tr. 4-7). 

Findings of Fact 

The Secretary's evidence shows that on October 8, 1987 MSHA 

Inspector Robert L. Huggins tested 15 miners at the Deer Creek 

Mine to determine if they were properly trained in the use of 

self contained self rescue devices CSCSR's> (Tr. 18-23). The 

miners, selected at random, were quizzed by the inspector from a 

list of structured questions prepared by MSHA's administrator 

(Tr. 21-24; Ex. P2). 

Before he interviewed the miners the inspector reviewed the 

MSHA memorandum which contains instructions for scoring the 

results (Tr. 23, 26). 

When the inspector found that three of the fifteen miners 

did not pass the test he issued a citation to UP&L. He believed 

the three miners were not properly trained on the SCSR storage 

plan and did not know how long the SCSR would last before 

exhausting its supply of oxygen (Tr. 45, 49, 54). 

The inspector agreed that MSHA's ETS (emergency temporary 

standard), adopted June 30, 1987, does not refer to the storage 

plan or the amount of time available when the SCSR is used (Tr. 

70}. 

As a result of his quiz the inspector failed Eddie Wall 

(shear operator), Eddie Johnson (laborer) and Gordon Ungerman 

(head gateman on the longwall) because they had two questions 

wrong. (Tr. 56, 84; Ex. P2, P4, PS, P6). 

The three miners could not answer the two following 

questions: Cl) How far from an SCSR can you work while 

underground? and (2) An SCSR provides protection from bad air for 

at least how long? 

If one question is incorrect a miner could score a 40. If 

two questions were wrong a miner could score 30. However, the 

71 
scoring instructions provide that if a miner misses more than two 

interview questions he fails the test (Tr. 85, 86). The 

inspector had some difficulty with inconsistent instructions as 

to the manner of grading the miners' answers Tr. 85, 90; Ex. P2). 

If three people failed out of fifteen this would be an 80 

percent passing rate (Tr. 94). 

When he interviewed the miners the inspector felt that Eddie 

Johnson was 'really nervous; further, Eddie Wall may have gotten a 

little nervous (Tr. 40, 41). Miner Ungerman indicated he should 

have known the answers or retained the knowledge (Tr. 40). A lot 

of the miners (of those tested) did not know the SCSR storage 

plan at the mine (Tr. 44). 

UP&L's witnesses consisted of Terry L. Jordan, John Pressett 

and Dave Lauriski. 

JORDAN, UP&L's chief safety engineer and a person 

experienced in mining and safety, has been involved with SCSR 

devices since.they were required in the early 1980 1 s (Tr. 

99-102). 

Since 1986 there have been five or six nhands on" training 

sessions. Every aspect of the SCSR requirements, including the 

storage plan of the devices and their duration, was covered 

(Tr.105). When the miners received their annual refresher 

training each of them was also given a map showing the location 

of the SCSRs (Tr. 105}. 

The annual refresher training is different from the special 

"hands on" training given twice a year on the SCSRs. During the 

annual refresher training the instructor demonstrates how to don 

the SCSR. He also covers.the storage plan location and the 

duration ·of the SCSR. Training of this type took place in 1987 

before the citation was issued. The class consisted of 15 to 20 

miners (Tr. 105-107). 

Previously several people, including an MSHA training 

instructor, commended favorably on the quality of the training 

(Tr. 108, 122). 

Records reviewed by the witness contain summaries of the 

training received by Johnson, Wall and Ungerman from 1987 before 

the instant citation was issued (Tr. 120; Ex RlO). The summary 

and the task training forms indicates the following training: 

72 
NAME DATE 

Eddie Wall 3/13/87 

4/3/87 

7/21/87 

Eddie Johnson 7/27/87 

9/25/87 

Gordon Ungerman 3/6/87 

4/3/87 

7/21/87 

INSTRUCTOR TYPE OF TRAINING 

Gary Christensen Hands on - Storage 

plan & duration of 

use, donning of 

SCSR 

Herman Nava Annual Refresher -

Jon Pressett Storage plan & 

duration of use, 

demonstration of 

donning 

Jon Pressett Hands on storage 

plan & duration 

Jon Pressett 

Jon Pressett 

of use, donning of 

SCSR. 

Newly employed experienced miner, 

hands on-storage 

plan & duration of 

use, donning of 

SCSR 

Annual refresher 

storage plan, 

duration of use, 

demonstration of 

donning. 

Gary Christensen Hands on-storage 

plan & duration of 

use, donning of 

SCSR. 

Herman Nava Annual refresher 

storage plan, 

duration of use, 

demonstration of 

donning 

Jon Pressett Hands on-storage 

plan & duration of 

use, donning of 

SCSR. 

(Exhibit RlO) 

13 
Prior to rece1v1ng the instant citation the witness didn't 

have any knowledge indicating the miners did not know the 

location of· the SCSRs CTr. 123). They received maps showing the 

location of the SCSRs throughout the mine (Tr. 123). 

The witness admitted that Pressett, Christensen and Nava 

were not included on the current valid training list but they 

were qualified and their names had been submitted to MSHA (Tr. 

147). MSHA had indicated if the names of the individuals doing 

the teaching had been previously submitted they are approved with 

retroactive effect. Exhibit R7 lists Pressett and Christensen as 

approved instructors by a letter dated February 4, 1987 (Tr. 

148-149; Ex. R7). 

Witness JON PRESSETT, a UP&L safety engineer has been an 

MSHA approved instructor since October 1979 (Tr. 152, 153). 

The witness has done "hands-on" training with miners 

throughout the mine (Tr. 155-159). Among other facets the 

training also locates the storage plan on a mine-specific basis 

(Tr. 160-163). Initially maps were given out and later updated 

when the belt lines were extended (Tr. 164). 

The miners are instructed in the duration of the unit during 

the "hands-on" training session (Tr. 164). In addition to "hands 

on" training the company also gave annual refresher training 

classes. At the annual sessions the storage plan was reviewed in 

detail and maps were distributed. Team competition and multiple 

choice tests were used to determine whether the miners had 

absorbed the information ,(Tr. 166-168). 

Pressett trained Eddie Wall and Gordon Ungerman in annual 

retraining (Tr. 169, 170; Ex. Rl3t. Seven and one-half hours of 

Ungerman's training was completed April 3, 1987 (Tr. 175). At 

the time of the annual refresher training given to Wall and 

Ungerman in April 1987 the storage plan with an exact map was 

given the miners, also they discussed the donning of the unit (Tr. 

177-178; Ex. Rll). In a test given by UP&L miner Wall indicated 

the SCSR could be used for 60 minutes. In addition, he correctly 

answered questions relating to the storage plan and the location 

of the SCSRs underground (Tr. 181, 182). 

Ungerman and Wall were in the same training class. Ungerman 

in a test (by UP&L) correctly indicated the unit would last 60 

minutes (Tr. 183, 184). 

When Ungerman and Wall completed their SCSR training on 

April 3, 1987 they were both knowledgeable in the location of the 

equipment and the duration of its use. The UP&L tests also 

establish these facts (Tr. 186). 

The witness also trained Eddie Johnson who received newly 

employed miner training as well as an annual retraining class 
(Tr. 193-195). The training of experienced newly rehired miners 

includes instructions in the storage plan and locations of the 

units (Tr. 195). Eddie Johnson was also given a map showing. 

where the uni ts are stored underground (Tr.. 196). Johnson didn't 

have any particular problems at the end of the training session 

(Tr. 198; Ex. Rl6). 

He was knowledgeable in 

care of the SCSRs (Tr. 202). 

double training if they have 

Ex. Rl8). 

the location, storage, duration and 

Miners returning to work received 

been off a year or more {Tr. 200; 

DAVE LAURISKI, UP&L's director of safety and training, is 

responsible for compliance with all provisions of Title 30 C.F.R. 

(Tr. 226, 227). 

The company conducted "hands-on" training for the emergency 

SCSR regulation. In 1987 the employees were trained three 

separate times (Tr. 230). 

It is common that the company's list of MSHA approved 

instructors is not up to date on a daily basis. When MSHA orally 

approves an instructor his name is not entered on the training 

plan until the next update (Tr. 233, 234). 

Discussion 

The rule of law is clear: in interpreting a regulation it is 

necessary to give effect to the plain meaning of its words. 

Diamond Roofing Co., Inc., v. OSHRC, 528, F.2d 645, 649 (5th Cir. 

1976); Usery v. Kennecott Copper Corp., 577, F.2d 1113, 1119 

{10th Cir. 1977); KCMC, Inc., v. FCC, 600 F. 2d 546, 549 (5th 

Cir. 1979). 

In the instant case 30 C.F.R. 75.1714(b) requires an 

operator to "instruct~/ and train 2/ in the use of SCSRs. The 

evidence shows that UP&L did "instruct and train" its miners and 

particularly miners Wall, Johnson and Ungerman. In fact, the 

evidence is uncontroverted that UP&L's instructions and training 

exceeded MSHA's requirements~/ (Tr. R9-Rl4, Rl6-Rl8). 

ll Instruct, to give knowledge or information to; Webster's New 

Collegiate Dictionary, 1979 at 594. 

2/ Train: to form by instruction discipline or drill; Webster's 

New Collegiate Dictionary, 1979 at 1229. 

3/ UP&L instituted "hands-on" training for all of its miners 

over one year before such training was mandated by law (Tr. 130, 

131, 229). UP&L emphasizes to all of its miners that any miner 

may seek individual. instruction on proper donning procedures at 

any time from the safety department or he may simply practice 

donning an SCSR at any time at the safety department (Tr. 193). 

75 
It is the Secretary's position that UP&L failed to adequately train miners Wall, Johnson and Ungerman in the use and 

location of the SCSRs and therefore violated 30 C.F.R. 

s 75.1714(b) 

The Secretary's approach of interviewing miners to test 

their knowledge certainly probes the extent to which the operator 

has instructed its miners. But the Secretary's argument cannot 

prevail. On the record presented here the failure of Wall, 

Johnson and Ungerman to demonstrate their knowledge in a more 

persuasive fashion does not establish that UP&L violated the 

regulation. 

Specifically, the regulation does not require that miners 

demonstrate their knowledge of inf orrnation relating to the use 

and location of SCSRs, either at the time of the training or at 

some later time. 

In other situations the Secretary has mandated that 

k_nowledge requirements be demonstrated. For example: 30 C.F.R. 

§. 48. 7Cb) requires that "miners .•• shall not operate the 

equipment ... until such miners have demonstrated safe operating 

procedures .•. "; further, 30 C.F.R. § 75.153Ca)(3) [in electrical 

work] requires " •.. he attains a satisfactory grade on each of 

the series of five written tests ••• "; further, in 30 C.F.R. 

S 77.102 [tests for methane, etc] " ••• no person shall be a 

qualified person for testing for methane .••• unless he has 

demonstrated ... "; further, 30 C.F.R. § 57.19096 [familiarity 

with signal code] requires " ••. person responsible ••• shall be 

familiar with the posted signaling code". 

When § 75.1714 is read in conjunction with 30 C.F.R. Part 48 

it is apparent that the regulations contain a comprehensive 

framework for miner training programs covering the range from new 

miner training to hazard training. However, the regulations are 

conspicuously silent as to what constitutes "adequate" training. 

This qualitative judgment is apparently left to the discretion of 

the operator who would be more familiar with specific conditions 

in its mines and the training needs of its work force. 

However, for the reasons stated above, I conclude that UP&L 

did "instruct and train" its miners within the meaning of 

S 75.1714. Accordingly, it follows that the citation should be 

vacated. 

UP&L raises additional issues concerning the Secretary's 

guidelines for scoring the answers to the interview questions,. 

and concerning an appropriate remedy for the violation of a 

training plan. However, inasmuch as UP&L has prevailed on the 

merits, it is not necessary to review these secondary issues. 

76 
For the foregoing reasons I enter the following: 

ORDER 

Citation No. 3044971 and all penalties therefor are VACATED. 

Law Judge 

Distribution: 

Susan J. Bissegger, Esq., Office of the Solicitor, U.S. Departm~nt of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

CO 80294 (Certified Mail) 

Thomas C. Means, Esq., Ann R. Klee, Esq., Crowell & Moring, 1001 

Pennsylvania Avenue, N.W., Washington, D.C. 20004-2505 

CCe.rtif ied Mail> 

/bls 

11 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ENERGY FuELS COAL, INC., 

Respondent 

DENVER. CO 80204 

JAN 13 1989 . . 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDINGS • 

Docket No. WEST 88-21 

A.C. No. 05-03455-03554 

Docket No. WEST 88-52 

A.C. No. 05-03455-03555 

Southfield Mine 

DECISION 

Appearances: James H. Barkley, Esq., Robert J. Murphy, Esq., 

Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, 

for Petitioner; 

Phillip D. Barber, Esq., Welborn, Dufford, Brown & 

Tooley, Denver, Colorado, 

for Respondent. 

Before: Judge Cetti 

These cases are before me on petition for civil penalty 

filed by the Secretary of Labor, pursuant to Section 105(d) of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 

et ~, (the "ACT" > , charging the Energy Fuels Coal, Inc. , 

(Energy> with violating five certain mandatory regulatory 

standards found in 30 C.F.R. and proposing certain civil 

penalties for the alleged violations. Pursuant to notice, the 

cases were set for hearing on the merits. 

DOCKET No. WEST 88-21 

This docket has four citations. Citation No. 2839449 

alleges a significant and substantial violation of 30 C.F.R. 

§ 75.1105. Citation Nos. 2839451 and 2839452 allege violations 

of 30 C.F.R. § 75.323 and Citation No. 2839454 alleges a wire 

bushing violation of 30 C.F.R. § 75.505. 

After taking several hours of testimony there was a recess 

during which the parties discussed settlement. On the record 

counsel for the Secretary advised that due to the insufficiency 

of the evidence the Secretary moved to vacate Citation No. 

2839451 and 2839452, there was no objection to the motion and the 

motion was granted. 

78 
With respect to Citation No. 2839449 the Secretary moved to 

amend the citation to delete the allegation characterizing the 

violation as "significant and substantial". Respondent in turn 

withdrew its notice of contest to that citation as amended and 

agreed to pay the $85.00 original proposed civil penalty. 

Counsel for the Secretary stated that the gravity of the violation was less than originally assessed. 

With respect to Citation No. 2839454 alleging a wire into a 

junction box was not properly bushed, the respondent withdrew its 

notice of contest to the citation and to the Secretary's original 

proposed civil penalty. 

Citation Nos. 2839451 and 2839452 allege a violation of 30 

C.F.R. § 75.323 which requires certain reports to be countersigned "promptly" by the mine foreman. After taking considerable 

testimony the Secretary moved to vacate the Citation Nos. 2839451 

and 2839452. There was no objection and the motion was granted. 

DOCKET NO. WEST 88-52 

Citation No. 2939404 alleges a violation of 30 C.F.R. 

§ 77.700 which requires grounding of metallic sheaths, armors and 

conduits enclosing power conductors. The respondent moved to 

withdraw its contest to the alleged violation and the Secretary's 

proposed penalty. There was no objection and the motion was 

granted. 

ORDER 

Citation No. 2839449 as amended to delete -the S&S 

characterization and Citation Nos. 2839454 and 2939404 are 

affirmed. Citation Nos. 2839451 and 2839452 and their related 

proposed penalties are vacated. Energy Fuels Coal Inc. if it has 

not already done so is directed to pay civil penalties in the sum 

of $125.00 within 30 days of the date of this decision. 

Judge 

79 
Distribution: 

James H. Barkley, Esq., Robert J. Murphy, Esq., Office of the 

Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 

Stout Street, Denver, CO 80294 (Certified Mail) 

Phillip D. Barber, Esq., Welborn, Dufford, Brown & Tooley, 1700 

Broadway, Suite 1100, Denver, CO 80290-1199 (Certified Mail) 

/bls 

so 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 17 1989 

GERARD SAPUNARICH, 

Complainant 

DISCRIMINATION PROCEEDING 

v. Docket No. YORK 88-29-DM 

LEHIGH PORTLAND CEMENT COMPANY, MD 87-56 

Respondent : 

: Cementon Plant and Quarry 

DECISION 

Appearances: Robert G. Rothstein, Esq., Meranze and Katz, 

Philadelphia, Pennsylvania for Complainant; 

Thomas Connolly, Esq., McNamee, Lochner, Titus 

& Williams, P.C., Albany, New York for 

Respondent. 

Before: Judge Melick 

This case is before me upon the Complaint by Gerard 

Sapunarich under section 105(c)(3) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et se9., the "Act," -alleging that he was suspended from his job without pay by 

Lehigh Portland Cement Company, (Lehigh) in violation of 

section 105(c)(l) of the Act.~/ 

~/ Section 105(c)(l) of the Act provides as follows: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

miner, representative of miners or applicant for 

employment in any coal or other .mine subject to 

this Act because such miner, representative of 

miners or applicant for employment, has filed or 

made a complaint under or related to this Act, 

including a complaint ' notifying the operator or the o~erator's agent, or the representative of the 

miners at the coal or other min~ of an alleged 

danger or safety or health violation in a coal or 

other mine or because such miner, representative of 

miners or applicant for employment is the subject 

Sl 
In particular Mr. Sapunarich alleges that he was the 

Miner Safety Representative during relevant times and that in 

that capacity reported various health and safety violations 

from February 3, 1983, through September 11, 1987, to both 

officials of the Federal Mine Safety and Health 

Administration (MSHA) and of the mine operator. He alleges 

in his complaint that "on Friday, September 11, 1987, John 

Jones [plant manager] and I had a very heated discussion in 

the Control Room about the dust problem in the dust building 

that was still going on from the previous day. As a result I 

have been written up for insubordination and it was put in my 

file, also I have been suspended without pay." 

Lehigh admits that Sapunarich was suspended for three 

days without pay but maintains that the suspension was not in 

any way motivated by his complaints about the dust situation 

but rather was based solely upon threatening and abusive 

language directed to Plant Manager John Jones during the 

confrontation on September 11, 1987, in the control room. 

In establishing a prima facie case of discrimination 

under section 105(c)(l) of the Act the Complainant must prove 

that (1) he engaged in a protected activity, and (2) the 

adverse action complained of was motivated in any part by 

that activity. Secretary on behalf of Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800, (1980), 

rev'd on other grounds sub nom. Consolida~ion Coal Co. v. 

Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary on behalf 

of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18, 

(1981). The Respondent mine operator may rebut the prima 

facie case by showing either that no protected activity 

occurred or that the adverse action was not motivated in any 

part by protected activity. If an operator cannot rebut the 

prima facie case in this manner, it nevertheless may defend 

affirmatively by proving that (1) it was also motivated by 

the miner's unprotected activities, and (2) it would have 

taken the adverse action in any event for the unprotected 

(footnote 2 continued) 

of medical evaluations and potential transfer under a 

standard published pursuant to section 101 or because such 

representative of miners or applicant for employment has 

instituted or caused to be instituted any proceedings under 

or related to this Act or has testified or is about to 

testify in any such proceeding, or because of the exercise by 

such miner, representative of miners or applicant for 

employment on behalf of himself or others of any statutory 

right afforded by this Act. 

82 
activities alone. The operator bears the burden of proof 

with regard to the affirmative defense. Haro v. Magma Copper 

Co., 4 FMSHRC 1935, 1936-38, (1982). 

It is undisputed in this case that th~ Complainant had 

been an active and effective miner safety representative at 

the Cementon Plant for many years preceding the incident in 

question. He was and is highly regarded by both wage and 

salaried workers. Indeed Donald Reid the Cementon Plant 

Safety and Training Supervisor testified that Sapunarich 

had a genuine concern for miner safety and did an excellent 

job as.safety representative. 

It is further undisputed that shortly before the 

critical September 11, 1987, confrontation at issue herein, 

Sapunarich made several specific complaints involving health 

and safety. On at least one occasion he complained to Plant 

Manager John Jones about foreign cement bags that were 

exploding. Moreover, only two days before the confrontation 

he complained to Company Supervisor Ron Dumond about 

excessive dust emanating from the precipitator building. On 

the following day he complained about the dust to the New 

York State Department of Environmental Conservation and to 

the local off ice of the Federal Mine Safety and Health 

Administration CMSHA). 

Sapunarich arrived at the plant at around 6:30 a.m. on 

September 11, 1987, and found that the dust problem had still 

not been corrected. After checking at the laboratory he 

pcoceeded to the control room where he met Jones. The 

subsequent events were described by Sapunarich in the 

following colloquy at hearing: 

Q. (By Complainant's Counsel) When you got 

finished coversing with Mr. Goff did you 

have any conversations with Mr. Jones? 

A. Yes. 

Q. Did you address him, or did he address you? 

A. He said good morning to me. 

Q. What did you say, if anything? 

A. I said, "What is so good about it?" He 

said, "What is the problem?" I said, "The 

problem is you got a pretty bad dust 

condition here and it doesn't seem as if 

anybody is doing anything about it," and he 

83 
said, "Well, I am doing the best I can," 

and I said, "Evidently the best you can is 

not good enough because i~ is still not 

corrected," and he said, "Well, what do you 

want me to do, wave a fucking mag~c wand?" 

Q. He said what? 

A. He said, "What do you want me to do, wave a 

fucking magic wand or I don't have a 

fucking magic wand." I think that was it, 

"I don't have a fucking magic wand." I 

slapped the top of the desk and told him, I 

said, "I would like to choke you. You are 

the worst plant manager I have ever had to 

deal with. You don't give a shit about the 

people that work.here at the plant, and you 

don't care about the people of Cementon," 

and we were both talking at the same time 

or rather arguing. 

Q. Was that the extent of the conversation? 

A. Well, it was more than that. I told him 

about the men's vehicles out in the parking 

lot and that there was no consideration for 

those vehicles out there. Some people had 

automobiles and trucks out there worth 

eighteen/nineteen thousand dollars and that 

nobody seemed to care about them, and that 

as far as the men go I told him that I 

requested that nobody be sent into that 

building under those conditions and nobody 

seened to care. They still sent two 

laborers in there the night before, and it 

just seemed that no matter what we were 

complaining about this month that nobody 

was listening. 

Q. How far away from Mr. Jones were you 

standing -- or were you standing when you 

had your conversation with Mr. Jones? 

A. We were on opposite sides of the control 

room panel. 

Q. Were you standing? 

A. It is not just a desk; it is a desk with 

big wings on it because there is controls 

134 
Q. 

A. 

Q. 

A. 

Q. 

A. 

on both sides. So he is standing about in 

this alleyway over here (indicating), and I 

am where I am at, and there is a desk 

between us about that big (indicating), but 

it has got big wings on it with hig_h panels 

on it (indicating). 

Could you estimate how far away you were? 

I was from him? 

Yes. 

Straight across? 

Yes. 

Five/six foot. 

(Tr. 58-61). 

Floyd Falk the control room operator, was also 

present at the time of this confrontation. He generally 

supports the Complainant's version except he did not 

recall hearing the Complainant say that he would like to 

get his hands around Jones' neck. Robert Hinckley, also 

testifying on behalf of the Complainant, was also in the 

control room at the time of the confrontation. He too 

generally supports the Complainant's version on the 

confrontation and further noted that "both [Sapunarich 

and Jones] were loud and neither was holding anything 

back". 

Plant Manager John Jones reported the confrontation _ 

somewhat differently. He noted the events leading up to the 

confrontation and the confrontation itself in a memorandum 

prepared later the same day. It reads as follows: 

We were experiencing problems with the kiln dust 

handling system on 9/10/87. The elevators and 

conveying system were dusting and the dust appeared 

to be difficult to handle. we were not sure of the 

cause, but proceeded to inspect the precipitator, 

dust handling system, 02 analyzer and everything we 

could associated (sic) with the process. We also 

called the local DEC (New York State Department of 

Environmental Conservation) Inspector and informed 

him of our problem and that we were attempting to 

resolve the situation. 

85 
Late in the day of 9/10/87 we decided that the dust 

handling system was not at fault and we decided 

that maybe the surry thinner we had used was 

causing the problem. In order to verify that, we 

decided to switch basins (kiln feed) but had to 

wait until sufficient quantity was on hand to make 

the switch. We made the switch at 7:00 AM on 

9/11/87. 

At approximately 7: 30 AM, 9/11/87, G. Sapunarich., 

Lubricator, came into the Control Room and was 

discussing the situation with J. Goff, M & E 

Repairman. 

Jones: "Good Morning, Gerry." 

Sapunarich: "It isn't a very good morning." 

Jones: "Why not?" 

Sapunarich: "Because of the Dust Situation." 

Jones: "We have been trying to resolve the 

proble [sic]. we inspected the elevator, 

precipitator, and screws. We have been checking 

out the process equipment. We are not sure what 

the problem is." 

Sapunarich: "That's not good enough, 24 hours is 

long enough to resol~e the problem. I intend to 

call DEC and report this situation." 

Jones: "DEC was contacted and informed of the 

problem. We are now changing slurry basins to see 

if that resolves the problem. Maybe the slurry 

thinner is causing the problem. I don't know, we 

are trying syst~natically (sic) eliminate the 

possibili~ies." 

Sapunarich: "DEC doesn't react to these problems 

and neither do you. I am concerned about the 

residents of Cementon and all the dust they are 

exposed to. I am building a home and have a new 

car that is being ruined. I am not getting any 

cooperation from you or the local DEC. I intend to 

call Schenectady to get some action." 

NOTE: As Sapunarich is speacking, [sic] he is becoming 

increasingly agitated and loader [sic]. 

86 
Jones: "Do what you feel you have to do, but in 

the meantime, go back to your job and do the work 

you are getting paid to do." 

NOTE: At this point Sapunarich pounded_ the table 

and leaning (sic) across the Control Room table 

with arms extended: 

Sapunarich: "I would like to grab you by the neck." 

You don't give a fuck about the dust situation. 

I'll get you 'off' the plant property." 

NOTE: At this point, I explained again the steps we 

were taking to resolve the problem. 

Jones: "I have no magic wand. Do you have any 

idea what is causing the problem?" 

Sapunarich: 

my windows. 

"You are ruining my house, my car and 

I'll get you off the plant property." 

NOTE: At this point I became very upset and told 

Sapunarich very loudly: 

Jones: "Don't you ever threaten me. If you don't 

stop you may lose your job." 

Sapunarich: (Very loud and threatening) "I'll get 

you 'off' the plant property. If you're going to 

fire me, do it." 

NOTE: At this point Sapunarich left the Control Room. 

(See Exhibit R-13). 

David Mower a Process For~nan at the Lehigh Cementon 

Plant was also in the Control Room during the confrontation. 

His testimony generally supports Jones' version of the event 

and in particular corroborates that the Complainant 

threatened Jones with bodily harm off the plant property. 

In particular Mower recalled that Sapunarich "pounded the 

table shouting more threats of bodily harrn off company 

property and it looked very much like he would .•. carry out 

his threat right there." 

(See Exhibit R-2). 

In evaluating the evidence concerning the critical 

events at the confrontation between the Complainant and Plant 

Manager Jones on September 11, 1987, I give particular weight 

to the testimony and contemporaneous statements of Jones and 

87 
Mower. These witnesses were the only ones to have made 

notes closely following the event and which fully support 

their testimony at hearing. It is also significant that the 

Complainant also admits slapping the desk in front of Jones 

and threatening that he would like to choke .him. 

Within this framework I find that Jones' statement most 

accurately represents what happened at the confrontation. It 

is therefore clear that the Complainant did in fact use 

threatening language toward Jones. These actions clearly 

constituted grounds for disciplinary action, including 

suspension, set forth in Lehigh's rules of conduct (Exhibit 

R-8, !·8) and therefore provided a legitimate business-related 

grounds for the Complainant's three day suspension. 

While it is clear that both before and during the 

confrontation the Complainant also made safety and health 

related complaints concerning the dust and other problems at 

the plant, activities clearly protected under the Act, the 

Act does not grant miners immunity from discipline if in 

conjunction with these protected activities they threaten 

other miners. Considering the credible evidence in this case 

I do not find that the disciplinary action taken was in 

retaliation for any health or safety complaints but was 

proportionate to and directly related to the threats to the 

plant manager. In reaching this conclusion I have also 

considered that while Sapunarich had for years been an active 

miners safety representative there is no credible evidence of 

any retaliation by Lehigh for such activities over the years. 

Indeed I find no credible evidence of any anti-safety animus 

on the part of Lehigh. I have also not disregarded the 

evidence of other incidents involving profane and abusive 

language at the Cementon Plant. None of those incidents 

however involved direct threats of such a personal, immediate 

and serious nature ~s in this case. Accordingly I find that 

while the Complainant herein did engage in protected activity 

and suffered adverse action, the Respondent has demonstrated 

that the adverse action was not motivated in any part by the 

protected activity. This case must there ore be di7i!ssed. 

l1 ~ ( j'· 

, tt\ J L.(,, ·.A_~ GJry M~l.i'ck / \\ ·.,· \ _ _,.. 

Atlminis\trative \Law Judge 

(703) 7~6-6261 \ 

88 
Distribution: 

Robert G~ Rothstein, Esq., Meranze·and Katz, Lewis Tower 

Building, N.E. car. 15th & Locust St., Philadelphia, PA 

19102 (Certified Mail) 

Thomas P. CQnnolly, Esq., McNamee, Lochner, Titus & Williams, 

P.C., 75 State Street, P.O. Box 459, Albany, NY 12201-0459 

(Certified Mail) 

ml 

89 
FEDERAL MtlE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 19 1989 

MATHIES COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

MATHIES COAL COMPANY, 

Respondent 

. . 

. . 

. . 

CONTEST PROCEEDING 

Docket No. PENN 88-36-R 

Order No. 2936667; 10/6/87 

Mathies Mine 

CIVIL PENALTY PROCEEDING 

Docket No. PENN S8-154 

A.C. No. 36-00963-03684 

Mathies Mine 

DECISION 

Appearances: Anne Gwynne, Esq., U.S. Department of Labor, 

Office of the Solicitor, Philadelphia, 

Pennsylvania, for the Secretary; 

Joseph Mack, III, Esq., Thorp, Reed & Armstrong, 

Pittsburgh, Pennsylvania, for Mathies Coal Co. 

Before: Judge Maurer 

STATEMENT OF THE CASE 

Contestant, Mathies Coal Company (Mathies) has filed a 

notice of contest challenging the issuance of Order No. 2936667 

at its Mathies Mine. The Secretary of Labor (Secretary) has 

filed a petition seeking civil penalties in the total amount of 

$1100 for the violation charged in the above contested order as 

well as another violation charged in Citation No. 2939096 which 

was not separately contested, but which violation is generally 

denied by Mathies. 

Pursuant to notice, the cases were heard in Washington, 

Pennsylvania on July 21, 1988. Both parties have filed 

post-hear.ing proposed findings of fact and conclusions of law, 

which I have considered along with the entire record herein. I 

make the following decision. 

90 
STIPULATIONS 

The parties stipulated to the following which I accepted 

(Tr. 5-8) : 

1. This Administrative Law Judge has jurisdiction over this 

proceeding. 

2. The Mathies Mine and Mathies Coal Company are owned and 

operated by the National Mine Corporation. 

3. The Mathies Mine and Mathies Coal Company and National 

Mine Corporation are subject to the jurisdiction of the Federal 

Mine Safety and Health Act of 1977. 

4. Citation Number 2939096 and Order Number 2936667 were 

properly served by a duly authorized representative of the 

Secretary of Labor upon an agent of the Respondent at the date, 

time, and place stated therein. 

5. Copies of Citation Number 2939096 and Order Number 

2936667 are authentic and may be admitted into evidence for 

establishing issuance. 

6. The assessment of a Civil Penalty in this proceeding 

will not affect the Respondent's ability to continue in business. 

7. The annual coal production of Mathies Mine in 1986 was 

116,521 tons. 

8. There was no intervenin9' clean inspection between 

June 15, 1987, when Order Number 2940594 was issued and 

October 6, 1987, when Order Number 2936667 was issued. 

9. The printout of the Assessed Violations History ~eport 

is a true and accurate history for the Mathies Mine and 

admissible in the hearing in this matter. 

10. There were approximately 686 inspection days at the 

Mathies Mine in the twenty-four month period prior to the 

issuance of Ordee Number 2936667 and Citation Number 2939096. 

ISSUES 

The general issues before me concerning these cases are 

whether the ceder at bar was properly issued, whether there were 

violations of the cited standards, and in the case of the ceder, 

whether that violation, if it existed, was "significant and 

substantial" and caused by the "unwarrantable failure" of the 

mine operator to comply with that standard as well as appeopriate 

91 
civil penalties to be assessed for the violations, should either 

or both be found. 

I. Citation No. 2939096 

Citation No. 2939096, issued pursuant to section 104(a) of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 

et seg. (the Act), alleges a violation of the regulatory standard 

at 30 C.F.R. § 50.20 and charges as follows: "The operator 

failed to report the accident that occurred to John Cherok on 

May 1, 1986 on MSHA Form 7000-1." 

30 C.F.R. § 50.20 requires operators to report, inter alia, 

each occupational injury which occurs at the mine on a Form~~ 

7000-1 within ten ClO) working days after such an accident 

resulting in ~n "occupational injury" to a miner occurs. 

"Occupational injury" is defined in 30 C.F.R. § 50.2(e) as "any 

injury to a miner which occurs at a mine for which medical 

treatment is administered, or which results in death or loss of 

consciousness, inability to perform all job duties on any day 

after an injury, temporary assignment to other duties, or 

transfer to another job." 

The operator does not contest the fact that Mr. Cherok was 

injured, but disputes whether that injury occurred "at the mine". 

The point being if he incurred the injury elsewhere, it is not a 

reportable injury. 

The only direct evidence of when, where and how the injury 

occurred comes from Mr. John Cherok, himself. He testified that 

on May 1, 1986, while worki.ng as a motorman in the supply yard of 

the Mathies mine, his right foot slipped as he stepped up onto 

the motor. His right shoe must have had some oil or grease on it 

he assumes and when he stepped up wi'th his right foot, he slipped 

off the smooth, metal step and came down off to the left of the 

motor where his left knee hit the rail. He experienced an 

immediate sharp pain, but by the time he came out of the mine, it 

was gradually easing. This injury occurred shortly before Cherok 

left the mine and he did not report it to anyone prior to his 

departure. He explains this by stating that because he was 

working overtime, his'- ,shift foreman was already gone and the 

midnight shift foreman was' already inside the mine. 

Cherok was not scheduled to work the next day, May 2, and 

while his knee bothered him somewhat, he did not yet consult a 

physician. On May 3, the pain increased as the day wore on. By 

May 4, he could hardly walk and that evening for the first time, 

he consulted a physician at the Mon Valley Hospital. He was 

referred to his family physician from there. 

92 
Sometime late in the evening of May 4, Cherok for the first 

time notified the mine operator of the injury to his knee and· of 

the circumstances of its occurrence. 

On May 5, 1986, Cherok went to see his family physician and 

was referred on to a Dr. Frame, an orthopedi·c specialist. 

Dr. Frame diagnosed Cherok's injury as a torn collateral ligament 

with a contusion and sent him to a Dr. Bradley for whirlpool 

treatments which he received over the following five week period. 

Also on May 5, Cherok stopped by the mine and told Tom 

Hudson, Manager of the Industrial Relations Department that his 

knee injury had occurred at the mine on May 1 and that he would 

be off for a while on doctor's orders until his knee healed. 

"Medical treatment", which if administered, renders an 

injury an "occupational injury" and thus reportable to MSHA, is 

distinguished from "first aid" by 30 C.F.R. § 50.20-3(a) and 

specifically includes whirlpool treatments. 

It is undisputed that Cherok lost work time due to his 

injury between May 5 and June 6 of 1986. It is also undisputed 

that Cherok received medical treatment for his injury. 

Therefore, the only question that remains is whether that injury 

occurred at the mine. If it did, it is acknowledged that Mathies 

did not file the required Form 7000-1 within ten (10) working 

days of the injury as required by the cited regulation. 

It is my impression that management at Mathies simply did 

not believe and does not believe Cherok's version of how he came 

to be injured. Mr. Dunbar, Mathie's Manager of Safety, opined 

that based upon his experience with and examination of the type 

of locomotive which Cherok was operating, the injury to Cherok's 

knee could not have happened as Cherok claims because of the 

relative positions of the locomotive's step and the rail upon 

which Cherok claimed to have fallen. 

As Cherok was alone at the time he alleges he was injured, 

there were no witnesses called by either side to directly 

corroborate or refute his version of the accident. Therefore, 

the issue of Cherok's credibility becomes paramount to the 

critical findings of fact in this case. To begin with, there is 

no countervailing explanation of how he injured his knee although 

Mathies seems to suggest that the long weekend of May 2-4 

provided ample opportunity for him to do just that. However, 

there is no evidence to that effect. Furthermore, I do not find 

Mr. Dunbar's opinion that the accident as described by Cherok was 

"practically impossible" to be persuasive. I do find that 

Mr. Cherok's testimony hangs together well and I do credit it. I 

also find that his actions during the May 1-5, 1986 period were 

93 
reasonable with regard to the timing of reporting the situation 

to Mathies as well as his seeking out medical assistance as the 

injury became increasingly painful. 

Based on the foregoing findings and co~clusions, I find that 

the Secretary has established a violation of ·30 C.F.R. § 50.20, 

as alleged. 

Mathie~' notion that this citation was issued prematurely in 

September of 1987 for a May 1, 1986 injury because the operator 

was initially waiting for the results of a worker's compensation 

case and after the decision was issued in the claimant's favor, 

the citation was then issued one day before the time for 

appealing that ruling had expired is rejected. 

I also concur in the "high" negligence finding made by the 

inspector in this instance. Mathies had all the salient facts 

available as early as May 5, 1986 had they chosen to believe Mr. 

Cherok. This was well within the ten working days stipulated by 

the regulation. But even more telling in this case is the fact 

they did not report the injury even after receiving the 

unfavorable workmen's compensation decision in August of 1987, 

essentially affirming Cherok's version of the accident. 

On cross-examination, Mr. Dunbar admitted that the operator 

has never had any evidence that Mr. Cherok injured his knee in 

any other way than in the manner in which he described it. That 

being the case, the operator proceeded at its peril by not filing 

the required form within the 10 working days time limit 

prescribed in the regulation should their position not ultimately 

be upheld. 

II. Order No. 2936667 

Order No. 2936667, issued pursuant to section 104(d)(2) of 

the Act alleges a violation of the regulatory standard at 30 

C.F.R. § 75.400 and charges as follows: 

The operator failed to comply with the clean-up program 

in the lLT of 2 West Section MMV 065. As there was 

accumulation of float coal dust black in color allowed 

to accumulate in the following locations: Cl) From 

section loading point at 5 + 99 in the No. 1 Entry 

Return Escapeway extending outby for approximately 600 

feet. (2) From 5 + 99 No. 1 Entry entending inby for 

approximately 600 feet. (3) Also in No. 1 Entry the 

bleeder entry around the lLT Section from surveyor 

station 31 + 20 to 35 + 26. (4) Also in No. 10 Entry 

bleeder entry from surveyor station 36 + 47 to 41 + 28. 

The float coal dust was deposited on a rock-dusted 

94 
surf ace of the mine floor for the width of the entry in 

all locations. 

30 C.F.R. § 75.400 provides as follows: 

Coal dust, including float coal dust deposited on 

rock-dusted surfaces, loose coal, and other combustible 

materials, shall be cleaned up and not be permitted to 

accumu~ate in active workings, or on electric equipment 

therein. 

MSHA Inspector Francis Wehr issued the instant order during 

an inspection of the Mathies mine on October 6, 1987. He was 

accompanied at the time by Ray Kocik, a Mathies safety inspector 

and Joseph Delisio, a union safety co11unitteeman. 

He observed an accumulation of dry float coal dust in the 

No. 1 Entry Left Return Escapeway, which is a return escapeway 

for the 1 Left 2S Section, black in color on the mine floor, 

approximately 600 feet in length covering the entire width of the 

entry. In the inspector's opinion, based on his training and 

experience in the mining industry, this condition would have 

taken anywhere from 1-3 days to accumulate. The inspector also 

testified that this area was an active working part of the mine 

and required a preshift examination for hazardous conditions and 

violations of the mandatory health and safety standards. 

A second area of dry float coal dust accQmulation from 

Surveyor Station 7 + 80 to 5 + 99 in the No. 1 Entry Left Return 

Escapeway was observed for approximately 200 feet in an active 

working part of the mine for the width of the entry. This area 

as well required a preshift examination. In Mr. Delisio's 

opinion, based on his experience as a preshift examiner himself 

and his service as a safety committeeman, he estimates this 

accumulation had existed for a minimum of two days. 

The inspector observed a third area of black float coal dust 

accumulation in the bleeder travel entry from Surveyor Station 31 

+ 20 to 35 + 26, approximately 400 feet in length and as wide as 

the entry. The inspector estimated that float dust would have 

taken a matter of days to accumulate. ~his particular area 

requires a weekly examination for methane b 11ildup and to check 

the bleeder system. 

A similiar accumulation of float coal dust was present 

according to the inspector in the bleeder entry from Surveyor 

Station 36 + 47 to 41 + 2a. The float dust in this area had 

accumulated in the entire width of the entry and was 

approximately 500 feet in length. Once again, the inspector 

95 
opined it had taken several days to accumulate to that extent and 

he also testified that this was a weekly examination area. 

At the time the subject order was issued, there was a 

loading crew of eight or nine men preparing t9 load coal in the 2 

west Section MMV 065, and there was electrical equipment in the 

section as well as a non-permissible coal feeder at 5 + 99. This 

equipment was as close as 60 or 70 feet away from the left 

return, although there was no electrical equipment actually in 

the return. 

Mr. Delisio, the union safety committeeman, testified at 

some length and essentially corroborated Inspector Wehr's 

testimony on every major point. Specifically, his testimony 

tracked the inspector's with regard to the extent and color 

(black) of the float coal dust and the fact that it was dry in 

most places. He also agreed with the inspector that the 

violations were obvious. 

The operator's main contention and defense in this case is 

that the float dust accumulations in the four aforementioned 

cited areas were not black. They were gray and it was not as 

dangerous a condition as Wehr and Delisio allege it to be. 

However, as correctly pointed out by the Secretary, the only 

company witness who observed the first two of the above four 

areas, the two in the return escapeway prior to the commencement 

of abatement was Mr. Kocik, and much of his testimony focused on 

the fact that he felt Inspector Wehr had included both the right 

and left return escapeways in his closure order. The fact is the 

right return escapeway was not included in the order and I find 

the whole point of the testimony largely irrelevant to the 

inquiry at hand. 

No other witnesses saw the two areas in the return escapeway 

prior to partial abatement of the conditions because as soon as 

the order was issued, miners began dragging the return entry. It 

was only after the return entry had been dragged that Messrs. 

Karaysia and Dunbar observed the conditions extant there, and 

Mr. Karaysia allowed as how there may have been a violation in 

the left return entry. 

In finding a violation herein of the cited standard, I am 

making a credibility choice in favor of the testimony of 

Inspector Wehr and Mr. Delisio over that of Mr. Kocik. I 

observed the.demeanor of these three witnesses at the trial and I 

believe that all three believe in the truthfulness of their 

testimony and the justness of their point of view. I also 

believe, however, that Mr. Kocik has taken the issuance of this 

particular order as a personal affront and his admitted anger 

over it has clouded his judgment. In any event, I find the 

96 
testimony of the inspector, which is corroborated on every 

important point by that of Mr. Delisio, to be cogent and credible 

and I do credit it entirely on the issue of the violation itself. 

A "significant and substantial" violation is described in 

section 104Cd)(l) of the Act as a violation "of such nature as 

could significantly and substantially contribute to the cause and 

effect of a coal or other mine safety or health hazard." A 

violation is properly designed significant and substantial "if, 

based upon 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 reaonsably serious 

nature." Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 

(1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984), the Commission 

explained its interpretation of the term "significant and 

substantial" as follows: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum the Secretary of Labor must prove: Cl) 

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. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, the Commission stated further as follows: 

We have explained further 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). We have emphasized that, in accordance with the 

language of section 104Cd> (1), it is the contribution of a 

violation to the cause and effect of a 'hazard that Mining 

Company, Inc., 6 FMSHRC 1573, 1573, 1574-75 (July 1984). 

To begin with, it is necessary to differentiate between the 

two areas in the return escapeway which I conclude represent 

a "significant and substantial" CS & S) violation of the 

mandatory standard and the .two cited areas in the bleeder 

which I conclude are not S & S. 

97 
Inspector Wehr himself testified that reasonable people 

might even disagree that a violation existed in the third area of 

the bleeder (#3 on JX-1) because it was wet in places and not- as 

black as the other three areas. ,On cross-examination, when asked 

about ignition sources for the bleeder areaa,_ the following 

exchange took place at Tr. 123: 

Q. What was the closest electrical equipment or 

other sources of ignition from the- bleeder 

areas that were cited? 

A. Clear back here (Indicating}. 

Q. At the face? 

A. Yes. 

Q. So, was there any significant chance that 

anything in the bleeder would have been ignited 

by anything at the working face? 

A. Not at that particular time. 

Based on the entire record herein, I therefore conclude that 

the violative conditions in the bleeder areas are not S & S 

violations. 

Conversely, with regard to the two areas in the return 

escapeway, I find that it was reasonably likely that a spark from 

the electrical equipment which was at one point only 60 or 70 

feet away from the left return could have caused a fire or 

explosion which in turn could readily have spread to the return 

escapeway. The accumulated float coal dust in the escapeway 

would have greatly intensified the fire and it is axiomatic that 

a wide-spread fire or explosion would lead to a likelihood of 

serious or even fatal injuries in the mine. 

I therefore concur with the opinions of Inspector Wehr and 

Mr. Delisio that the violation in those two areas was 

"significant and substantial "and serious. 

The Secretary further urges that this violation was caused 

by the operator's "unwarrantable failure" to comply with the 

mandatory standard, and I agree. 

In Zeigler Coal Company, 7 IBMA 280 (1977), the Interior 

Board of Mine Operations Appeals interpreted the term 

"unwarrantable failure" as follows: 

An inspector should find that a violation of any 

mandatory standard was caused by an unwarrantable 

98 
failure to comply with such standard if he determines 

that the operator has failed to abate the conditions or 

practices constituting such violation, conditions or 

practices the operator knew or should have. known 

existed or which it failed to abate be~ause of lack of 

due diligence, or because of indifference or lack of 

reasonable care. 

The Commission has concurred with this definition to the 

extent that an unwarrantable failure to comply may be proven by a 

showing that the violative condition or practice was not 

corrected or remedied prior to the issuance of a citation or 

order, because of indifference, willful intent, or serious lack 

of reasonable care. United States Steel Corp. v. Secretary 

of Labor, 6 FMSHRC 1423 at 1437 (1984). And most recently, in 

Emery Mining Corp. v. Secretary of Labor, 9 FMSHRC 1997 (1987), 

the Commission stated the rule that "unwarrantable failure" means 

aggravated conduct, constituting more than ordinary negligence, 

by a mine operator in relation to a violation of the Act. 

There is extensive testimony in the record concerning the 

amount of time the float coal dust would have taken to accumulate 

and the additional time the float dust must have been present 

because mining had not been performed for several shifts at the 

time the instant order was issued and the fact that the company 

was required to perform preshift examinations in the two cited 

areas in the return escapeway and therefore should be chargeable 

with knowledge of the violative conditions, at the least. 

Inspector Wehr estimated that the amount of float coal dust he 

observed in the return escapeway would have taken one to three 

days to accumulate. This estimate was concurred in by 

Mr. Delisio. Both Wehr and Delisio also testified to the 

obviousness of the conditions. As the examinations were 

mandatory and the conditions were obvious and had been in 

existence for an extended period of time, Mathies demonstrated 

aggravated conduct, constituting more than ordinary negligence, 

by a mine operator in relation to a violation of the Act. 

Accordingly, I conclude that this violation was caused by the 

operator's "unwarrantable failure" to comply with the cited 

mandatory standard. 

CIVIL PENALTY ASSESSMENT AND ORDER 

In assessing civil penalties in these cases, I have 

considered all of the foregoing findings and conclusions and the 

entire record, as well as the requira~ents of section llO(i) of 

the Act, including the fact that the operator is large in size 

and has a substantial history of violations. Under these 

circumstances, I find that a civil penalty of $300 for the 

99 
violation cited in Citation No. 2939096 and $700 for the 

violation cited in Order No. 2936667 are appropriate. 

Citation No. 2939096 and Order No. 2936667 ARE AFFIRMED 

and the Mathies Coal Company is hereby directed to pay a civil 

penalty of $1000 within 30 days of the date of this decision. 

Distribution: 

Anne Gwynne, Esq., U.S. Department of Labor, Office of the 

Solicitor, Philadelphia, Pennsylvania (Certified Mail) 

Joseph Mack III, Esq., Thorp, Reed & Armstrong, One Riverfront 

Center, Pittsburgh, PA 15222 (Certified Mail) 

/ml 

ioo 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 231989 

PHYLLIS A. PALMIERI, 

Complainant 

: DISCRIMINATION PROCEEDING 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

: Docket No. WEVA 88-305-D 

MSHA Case No. MORG CD-88-10 

ORDER OF DISMISSAL 

Before: Judge Maurer 

By notice issued October 18, 1988, a hearing in the 

above-captioned proceeding was scheduled to commence on 

December 21, 1988, at 1:00 p.m., in Morgantown, West Virginia. 

The complainant, however, failed to appear at the scheduled time 

and place. 

Accordingly, on December 29, 1988, an Order to Show Cause was 

issued directing the complainant to explain within ten (10) days 

why she should not be held in default for her failure to appear 

at the scheduled hearing. 

On January 11, 1989, a letter was received from the 

complainant requesting approval to withdraw her complaint in the 

captioned case. Under the circumstances herein, permission to 

withdraw is granted. 29 C.F.R. § 2700.11. This case is 

therefore dismissed. 

Distribution: 

Robert M. Steptoe, Jr., Esq., Steptoe & Johnson, 6th Floor; Union 

National Center East, P.O. Box 2190, Clarksburg, WV 26302-2190 

(Certified Mail) 

Phyllis A. PalmieriT Esq., 1115 Washington Ave., Martinsburg, 

West Virginia 15401 (Certified Mail) 

101 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

TUNNELTON MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

JAN 2 5 1989 

. . 

. . 

. . 

. . 

CONTEST PROCEEDING 

Docket No. PENN 88-10-R 

Citation No. 2881390; 9/10/87 

Marion Mine 

Mine I.D. No. 36-00929 

DECISION 

Appearances: Joseph A. Yuhas, Esq., Ebensburg, Pennsylvania 

for Contestant; 

Evert VanWijk, Esq., Office of the Solicitor, 

u. S. Department of Labor, Philadelphia, 

Pennsylvania for Respondent. 

Before: Judge Melick 

This case is before me under section 105Cd> of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 

et seq., the "Act, 11 for an expedited hearing to challenge the 

validity of Citation No. 2881390 issued by the Secretary of 

Labor against the Tunnelton Mining Company (Tunnelton) for 

one violation of the standard at 30 C.F.R. § 75.305. 

The citation, issued pursuant to section 104(a) of the 

Act, alleges a "significant and substantial" violation of the 

standard at 30 C.F.R. 75.305 and, as amended, ch~rges as 

follows: "[a] record of examination of the following main 

return aircourse, east mains (right left side) sec~nd south 

(right left side) are [sic] not being recorded in ~he 

approved book in that these aircourse [sic] are not f>eing 

examined for hazardous conditions." 

The cited standard provides in relevant part as follows: 

In addition to the preshift and daily examinations 

required by this subpart D, examinations for 

hazardous conditions, including tests for methane, 

and for compliance with mandatory health or safety 

standards, shall be made at least once each week by 

a certified person designated by the operator in 

••• at least one entry of each intake and return 

102 
aircourse in its entirety, idle workings, and, 

insofar as safety considerations permit, abandoned 

areas •••• A record of these examinations, tests 

and actions taken shall be recorded in ink or 

indelible pencil in a book approved b~ _the 

Secretary kept for such purpose in an area on the 

surf ace of the mine chosen by the mine operator to 

minimize the danger of destruction by fire or other 

hazard, and the record shall be open for inspection 

by interested persons. 

Since it is undisputed in this case that at least one 

entry of the cited return air courses was not being examined 

in its entirety (and no such examinations were being recorded 

in the examination books) as required by the cited standard, 

the violation is proven as charged. Even if the entries 

cited in this case were, as alleged by Tunnelton, considered 

to be "abandoned areas" within the meaning of 30 C.F.R. 

§ 75.305, and as such subject to inspection on a weekly basis 

pursuant to that regulation only "insofar as safety 

considerations permit", there was nevertheless a violation of 

the standard herein. 

In this regard there is no dispute that on the date of 

the alleged violation there were indeed certain areas of the 

cited return aircourses that could have been safely inspected. 

These areas were the designated bleeder examination points 

and the travelways to those points. According to the 

undisputed testimony of Inspector George Tercine of the 

Federal Mine Safety and Health Administration CMSHA) the 

corresponding examination books maintained by Tunnelton did 

not reflect that the weekly examinations required by 30 C.F.R 

§ 75.305 were being performed in these areas. While 

Tunnelton has argued that it had been recording examinations 

being made at the bleeder examination points pursuant to the 

requirements of 30 C.F.R. § 75.316, the examinations required 

by this standard are not as broad as those required under 

section 30 C.F.R. § 75.305. In addition, as Inspector 

Tercine observed, there was no record of examinations of the 

areas going into the bleeder evaluation points being made. · 

Thus in any event the violation of failing to record 

examinations of the cited return aircourses pursuant to 30 

C.F.R. § 75.305 is proven as charged. 

Whether the violation was "significant and substantial" 

depends on whether a discreet safety hazard existed, whether 

there was a reasonable likelihood that the hazard contributed 

to would result in injury and whether there was a reasonable 

likelihood that the injury in question would be of a 

reasonably serious nature. Secretary v. Mathies Coal Co., 

103 
6 FMSHRC 1 (1984). In this case the testimony of Bruce 

Bufalini .Resident Mining 'Engineer at the Marion Mine, was 

undisputed that the areas traveled to the bleeder examination 

points were safe and maintained in a safe condition. Indeed 

Inspector Tercine acknowledged that when he traveled in the 

subject aircourses to the bleeder evaluation points prior to 

issuing his citation he found those areas safe to travel. 

I also observe that the Secretary had permitted Tunnelton not 

to examine at least one entry of each air course in its 

entirety until only recently i.e. December 1, 1988, requiring 

instead daily examinations at only the bleeder evaluation 

points. Under the circumstances I do not find that the 

Secretary has sustained her burden of proving that the 

violation herein was "significant and substantial". 

ORDER 

Citation No. 2881390 is modified to reflect that it is a 

non "significant and substantial" violation. The citation is 

however affirmed as modified and this Contest f,,_roceeding is 

dismissed. a 

' :ti ,. i 

/

/Gil ,VJ~ -, ').~; I , .,,,. "'"""""" . -~ \.. ·'• L '- . ~- , '.,.'¥·, 

Gary M:elick ~. 

Administrative Law Judge 

(703) 756-6261 t 

~ ~ Distribution: j 

Joseph A. Yuhas, Esq., P.O. Box 367, Ebensburg, PA 15931 

CCertifi"ed Mail) 

Evert VanWijk, Esq., Office of the Solicitor, U.S. Department 

of Labor, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail> 

nt 

104 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JA.N 2 6 \989 

WESTWOOD ENERGY PROPERTIES, 

contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

105 

CONTEST PROCEEDINGS 

Docket No. PENN 88-42-R 

Citation No. 2675834; 10/27/87 

Docket No. PENN 88-43-R 

Order No. 2675835; 10/27/87 

Docket No. PENN 88-73-R 

Citation No. 2675836; 11/14/87 

Docket No. PENN 88-74-R 

Citation No. 2675837; 11/14/87 

Docket No. PENN 88-75-R 

Citation No. 2675838; 11/14/87 

Docket No. PENN 88-76-R 

Citation No. 2675839; 11/14/87 

Docket No. PENN 88-77-R 

Citation No. 2675840; 11/14/87 

Docket No. PENN 88,78-R 

Citation No. 2675861; 11/14/87 

Docket No. PENN 88-79-R 

Citation No. 2675862; 11/14/87 

Docket No. PENN 88-80-R 

Citation No. 2675863; 11/14/87 

Docket No. PENN 88-81-R 

Citation No. 2676577; 11/14/87 

Docket No. PENN 88-82-R 

Citation No. 2676578; 11/14/87 

Docket No. PENN 88-83-R 

Citation No. 2676579; 11/14/87 

Docket No. PENN 88-84-R 

Citation No. 2677901; 11/14/87 
SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRA'rION (MSHA), 

Petitioner 

v. 

WESTWOOD ENERGY PROPERTIES, 

Respondent 

Docket No. PENN 88-85-R 

: Citation No. 2677902; 11/14/87 

. . 

. . 

Docket No. PENN 88-86-R 

Citation No. 2677903; 11/14/87 

Docket No. PENN 88-87-R 

Citation No. 2677904; 11/14/87 

Docket No. PENN 88-88-R 

Citation No. 2677905; 11/14/87 

Docket No. PENN 88-89-R 

Citation No. 2677906; 11/14/87 

Refuse Culm Bank 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 88-148 

A.C. No. 36-07888-03501 

Refuse Culm Bank 

DECISION 

Appearances: Mark v. Swirsky, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, on behalf of the Secretary of Labor 

(Secretary); Joseph Mack, III, Esq., Thorp, Reed 

and Armstrong, Pittsburgh, Pennsylvania, on behalf 

of Westwood Energy Properties (Westwood). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Westwood filed notices of contest challenging the legality 

of the issuance of 18 citations and one withdrawal order issued 

by the Secretary's representatives. The Secretary filed a 

Petition for the assessment of civil penalties for the violations 

charged in the contested citations. The contested order was 

issued under section 104(b) of the Act for failure to comply with 

a citation issued for Westwood's refusal to permit MSHA to enter 

the site of the facility for the purpose of conducting an 

inspection. The citations contested in Docket Nos. PENN 88-84-R 

through PENN 88-89-R, namely citations 2677901, 2677902, 2677903, 

2677904, 2677905 and 2677906 have been vacated by MSHA and 

reissued as citations 2677913, 2677914, 2677915, 2677916, 

106 
2677917, and 2677918. The parties have stipulated that the 

reissued citations shall be considered as contested in these 

proceedings. 

The primary issue in the case is whether. Westwood's facility 

is a mine within the meaning of that term in the Mine Actr and 

therefore subject to the jurisdiction of MSHA. Pursuant to 

notice the case was heard in Harrisburg, Pennsylvania on 

September 20, 1988. Joseph Uholic and Charles Rosini testified 

on behalf of the Secretary. Charles Ludwigson testified on 

behalf of Westwood. Both parties have filed post-hearing briefs. 

I have considered the entire record and the contentions of the 

parties in making the following decision. 

FINDINGS OF FACT 

1. The Facility 

Westwood is the owner of a piece of land in Schuylkill 

County near Tremont, Pennsylvania. A large culm bank or refuse 

pile is located on the land. The bank is cone shaped, 

approximately 4500 feet in circwnference at the bottom, and 350 

feet at the top. It is about 275 feet high. The bank was 

created as the refuse product of an underground anthracite coal 

mine and its preparation plant, called Westwood Colliery, which 

operated from 1913 to 1947. The preparation plant itself was 

destroyed and its ranains became part of the refuse pile. After 

the underground mine was closed, a company named Manbeck operated 

a "fine" coal plant, separating fine coal from the waste material 

and selling it. Manbeck was inspected by MSHA or its predecessor 

agency. 

The culm owned by Westwood contains coal mine refuse, 

including rock, slate, shale, wood, metal, both ferrous and 

nonferrous, granite, quartz, pyrite, and a small percentage of 

coal and other carbonaceous material. (Some authorities limit 

the term coal to carbonaceous rock which when dried at 100 

degrees centigrade should contain at least 50 percent combustible 

material. See A DICTIONARY OF MINING, MINERAL and RELATED TERMS, 

U.S. Dept. of the Interior, page 222). 

Westwood uses the material in the culm bank as fuel to 

generate electrical power which is sold to the Metropolitan 

Edison Company. Westwood engaged a contractor to remove the 

material from the bank and load it into hoppers where wood and 

other materials larger than 12 by 12 inches are removed. Metal 

is re1noved by means of a magnet and a metal detector. The cul1n 

material is then transported to a silo and crushed in two steps 

to a particle size of one-eighth of an inch. It is then 

transported to the combuster where it is burned in a process 

107 
called a circulating fluidized bed process of combustion. This 

process res_ul ts in steam which drives turbines and creates 

electrical power. The fuel has a BTU content of from 2700 to 

4000. The BTU content of anthracite coal ranges from 12,000 to 

15,000. After combustion, approximately 65 .t.o 68 percent by 

weight of the original fuel is removed as ash, and transported to 

an ash pile.' 

2. The Inspection 

On October 27, 1987, Federal coal mine inspector Joseph 

Uholic arrived at Westwood's culm bank site to conduct an 

inspection of the facility. Westwood denied him entry. On 

October 28, 1987, Uholic returned, accompanied by Inspector 

ch·arles Rosini, pursuant to instructions from his supervisor. 

Westwood informed them that an inspection would not be permitted 

on the advice of counsel that the operation was not subject to 

MSHA jurisdiction. Inspector Uholick issued a citation under 

section 104(a) of the Act, charging a violation of 103(a) of the 

Act for failure to permit the inspector to enter the mine site. 

After approximately 40 minutes, the inspector issued a withdrawal 

order under section 104(b) of the Act for failure to abate the 

citation. The Secretary then sought an injunction from the 

United States District Court to require Westwood to permit the 

inspection. A consent temporary restraining order was issued 

permitting MSHA inspections until a final adjudication of the 

issue of jurisdiction by the Review Commission. The inspectors 

returned to the facility on November 14, 1987, conducted an 

inspection and issued the other citations which are involved in 

this proceedingo · 

The parties have stipulated that since becoming operational 

in July 1988, Westwood has sustained net losses in its operation. 

At the time the citations involved herein were issued, the work 

was being done by the construction contractor and its 

approximately 30 to 35 employees, but Westwood was in overall 

control of the worksite. The violations charged in the citations 

issued on November 14, 1987, are admitted by Westwood (assuming 

jurisdiction), but it does not stipulate to the significant and 

substantial designation, nor to the appropriateness of the 

proposed penalties. 

STATUTORY PROVISIONS 

Section 3(h)(l) of thB Act provides: 

(h)(l) 'coal or other mine' means (A) an area of 

land from which minerals are exiracted in nonliquid 

form or, if in liquid form, are extracted with workers 

underground, (B) private ways and roads appurtenant to 

108 
such area, and (C) lands, excavations, underground 

passageways, shafts, slopes, tunnels and workings, 

structures, facilities, equipment, machines, tools, or 

other property including impoundments, retention dams, 

and tailings ponds, on the surface or underground, used 

in, or to be used in, or resulting from, the work of 

extracting such minerals from their natural deposits in 

nonliquid form, or if in liquid form, with workers 

underground, or used in, or to be used in, the milling 

of such minerals, or the work of preparing coal or 

other minerals, and includes custom coal preparation 

facilities.· In making a determination of what 

constitutes mineral milling for purposes of this Act, 

the Secretary shall give due consideration to the 

convenience of administration resulting from the 

delegation to one Assistant Secretary of all authority 

with respect to the health and safety of miners 

employed at one physical establishment; 

Section 3(i) of the Act provides: 

Ci) •work of preparing the coal' means the breaking, 

crushing, sizing, cleaning, washing, drying, mixing, 

storage, and loading of bituminous coal, lignite, or 

anthracite, and such other work of preparing such coal as is 

usually done by the operator of the coal mine; 

THE MSHA-OSHA INTERAGENCY AGREEMENT 

The Mine Safety and Health Administration and the 

Occupational Safety and Health Administration, both agencies 

within the U.S. Department of Labor, entered into an agreement on 

March 29, 1979, "to delineate certain areas of authority, set 

forth factors regarding determinations relating to convenience of 

administration, provide a procedure for determining general 

jurisdictional questions ••• " The agreement is set out in 44 

F.R. 22827 (April 17, 1979). In general the dividing line 

between MSHA and OSHA jurisdiction is the point where the raw 

materials arrive at the plant stockpile. The agreement contains 

a definition and description of "milling", which comes under the 

Mine Act. 

ISSUES 

1. Whether the subject culm bank is a mine, and whether 

Westwood's activities in preparing it for use as fuel in 

generating electricity is subject to the Mine Act? 

109 
2. If Westwood comes under the jurisdiction of the Mine 

Health and Safety Administration, whether the cited violations 

were significant and substantial? 

3. If Westwood comes under the MSHA' s _j_ur isdiction, what 

are the appropriate penalties for the cited violations? 

CONCLUSIONS OF LAW 

STATUTORY DEFINITIONS 

In ordinary parlance, the culm bank owned by Westwood would 

not be considered a mine. It is not "an opening or excavation in 

the earth for the purpose of extracting minerals" (A DICTIONARY 

OF MINING, MINERALS AND RELATED TERMS, supra, p. 708). 

Westwood's use of the culm material does not involve the 

extraction of minerals from their natural deposits in the earth. 

The statutory definition of a mine, however, is much broader than 

the generally accepted meaning of the term. It includes "lands, 

••• facilities, equipment, machines, tools, or other property 

including impoundments, retention dams, and tailings ponds, on 

the surface or underground ••• resulting from the work of 

extracting such minerals from their natural deposits, ••• or 

used in, or to be used in, the milling of such minerals, or the 

work of preparing coal or other minerals ••• " [Section 3(h)(l)]. 

The Westwood culm bank clearly resulted from the work of 

extracting anthracite coal from its natural deposit in the earth. 

A literal construction of the statutory language would seem to 

cover Westwood's culm bank. Westwood argues that such a 

construction is "overly literalistic," and that "as a matter of 

practical or economic reality," Westwood's operation cannot be 

considered mining activity. The construction of the statutory 

language and its application to th~ subject operation is clearly 

complicated by the fact that the underground anthricite mine, the 

operation of which resulted in the culm, has been closed for 40 

years. Westwood had no connection with the extraction of the 

anthracite or the culm from underground. It seems clear that if 

the anthracite mine continued in operation and the operator 

disposed of the coal, and at the same time used the culm or waste 

in the same way that Westwood does to generate electricity, the 

entire operation would be considered a mine and subject to the 

Act. Is it significant that Westwood had nothing to do with the 

coal extraction? Is it significant that the mine has been closed? 

Does the length of time it has been closed make any difference? 

The statute [Section 3Ci)] defines the work of preparing 

coal as "the breaking, crushing, sizing, cleaning, washing, 

drying, mixing, storing, and loading of bituminous coal, lignite, 

or anthracite, and such other work of preparing such coal as is 

usually done by the operator of the coal mine." 

110 
A literal reading of this definition would seem to cover 

Westwood's operation described in the findings of fact herein: 

The culm material contains anthracite coal. Westwood breaks, 

crushes, sizes, stores and loads it in preparation for its use as 

fuel. 

LEGISLATIVE HISTORY 

In enacting the 1977 Mine Act Congress clearly intended that 

its coverage be as broad as possible: "It is the Committee's 

intention that what is considered to be a mine and to be 

regulated under this Act be given the broadest possible 

interpretation, and it is the intent of the Committee that doubts 

be resolved in favor of inclusion of a facility within the 

coverage of the Act." S. Rep. No. 181, 95th Cong., 1st Sess. 14 

(1977), reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, 95th Cong., 2d Sess., Legislative History of the 

Federal Mine Safety and Health Act of 1977, at 602 CLegis. Hist.). 

The joint explanatory statement of the Committee of Conference 

refers to the definition of a mine: "Both the Senate bill and 

the House amendment broadly defined mine to include all 

underground or surface areas from which the mineral is extracted, 

and all surface facilities used in preparing or processing the 

minerals, as well as roads, structures, dams, impoundments, 

tailing ponds and like facilities related to the mining activity." 

Legis. Hist. at 1316. 

The Secretary of Labor is given the initial responsibility 

for determining whether a facility is subject to the Mine Act. 

She is in a unique position to determine the dividing line 

between MSHA and OSHA jurisdiction, since both programs are 

administered by her. I assume that the issuance of citations by 

MSHA to Westwood reflects the Secretary's determination that the 

subject facility is a mine and therefore is subject to the Mine 

Act. Although such a determination is not binding on the 

Commission, it must be accorded great weight in our consideration 

of the jurisdictional question. 

COURTS OF APPEALS AND DISTRICT COURT DECISIONS 

The case of Marshall v. Stoudt's Ferry Preparation Co., 602 

F.2d 589 (3rd Cir. 1979) cert. denied, 444 U.S. 1015 (1980), 

involved a company, Stoud~Ferry, which purchased material 

dredged from the Schuylkill River by the Commonwealth of 

Pennsylvania. Stoudt's Ferry then transported the material to 

its plant where it separated it into sand and gravel, and a 

material usable as a fuel. The latter was sold to a utility 

company as "usable anthracite refuse." The court held that the 

process of separating the burnable product from the dredged 

111 
material brought Stoudt's Ferry within the coverage of the Act. 

The Court said at page 592: "Although it may seem incongruous to 

apply the label 'mine' to the kind of plant operated by Stoudt's 

Ferry, the statute makes clear that the concept that was to be 

conveyed by the word is much more encompassing than the usual 

meaning attributed to it -- the word means what the statute says 

it means." 

In the case of Harman Mining Corp. v. Federal Mine Safety 

and Health Review Commission, 671 F.2d 794 C4th Cir. 1981), the 

Court held that railroad "car dropping" activities of a mining 

corporation, incident to the lb~ding and storage of coal after it 

had been prepared, took place at a mine and were subject to MSHA 

jurisdiction, even though the railroad tracks and cars were owned 

by the railroad and some of the car dropping activities were 

performed by railroad employees. 

The District of Columbia Circuit reversed the Review 

Commission in Donovan v. Carolina Stalite Company, 734 F.2d 1547 

CD.C. Cir. 1984). The court held that Carolina's slate gravel 

processing facility which did not extract the slate but "bloated" 

it, and crushed and sized the resultant product (called 

"stalite"), and sold it for use in making concrete blocks was 

subject to the Mine Act. The Court said at page'l552 that the 

statute "gives the Secretary discretion, within reason, to 

determine what constitutes mineral milling, and thus indicates 

that his determination is to be reviewed with deference both by 

the Commission and the courts • • •• In this highly technical 

area deference to the Secretary's expertise is especially 

appropriate . • The Commission, so far as we can see, gave 

the Secretary's determination no deference, and we believe that 

was error." 

The term milling is used, at least primarily, with reference 

to metal mining. See A DICTIONARY, supra, p. 706. It refers to 

the grinding or crushing of ore, and is ordinarily performed in a 

mill. The MSHA-OSHA Interagency Agreement defines it a "the art 

of treating the crude crust of the earth to produce therefrom the 

primary conswner derivatives". The analogous process in coal 

mining is the work of preparing coal. (Compare MILLING AND 

CRUSHING, U.S. Dept. of Interior, National Mine Health and Safety 

~cademy (1978) with COAL PREPARATION HANDBOOK, U.S. Dept. of 

Labor, National Mine Health and Safety Academy Cn.d.).) It is 

ordinarily performed in a preparation plant. The Secretary's 

determination that an activity constitutes the work of preparing 

coal, like her determination that an activity constitutes 

milling, is a highly technical matter, and must be accorded 

deference by the Review Commission. 

112 
In Old Dominion Power Co. v. Donovan, 772 F.2d 92 (4th Cir. 

1985), the Court reversed a Commission determination that Old 

Dominion was subject to MSHA jurisdiction when it maintained an 

electrical substation on coal mine property~ The substation was 

used to meter the amount of electricity purc.hased by the mine 

operator. The court held that Congress intended to exclude 

electric ut~lities from Mine act coverage, when the utility's 

only presence on the mine site is to read the meter and 

occasionally service its equipment. The Court declined to accord 

deference to MSHA's interpretation of the statutory grant of 

jurisdiction. 

The United States District Court for the Southern District 

of Indiana in Donovan v. Inland Terminals, 3 BNA MSHC 1893 

(1985), denied the Secretary's motion for a preliminary 

injunction to prohibit denial of entry to an MSHA inspector. 

Inland operated a commercial loading dock and stockpiled coal. 

It utilized loaders, crushers, and hoppers to facilitate its 

loading operation. The court held, citing the Commission's Elam 

decision, infra, that the facility was not a mine, and therefore 

was not subject to the coverage of the Mine Act. 

COMMISSION AND ADMINISTRATIVE LAW JUDGE DECISIONS 

In the case of Oliver M. Elam, 4 FMSHRC 5 (1982), the 

Commission determined that Elam's commercial dock on the Ohio 

River from which coal and other materials were loaded onto barges 

was not a mine subject to the Act. Elam's facilities for loading 

coal included a hopper, a crusher, and conveyor belts. 

Occasionally large pieces of coal were broken by Elam to pass 

through the hopper. The crusher then broke the coal into one 

size in order that it might be carried on the conveyor belts. 

The Commi·ssion looked at the statutory def ini ti on of "work of 

preparing coal," and concluded that "inherent in the 

determination of whether an operation properly is classified as 

'mining' is an inquiry not only into whether the operation 

performs one or more of the listed work activities, but also into 

the nature of the operation performing such activities." 

4 FMSHRC at 7. "[W]ork of preparing coal connotes a process, 

usually performed by the mine operator engaged in the extraction 

of the coal or by custom preparation facilities, undertaken to 

make coal suitable for a particular use or to meet market 

specifications." 4 FMSHRC at 8. Elam's work in crushing and 

sizing coal was performed to facilitate its loading business and 

not to render the coal fit for any particular use. It therefore 

was not engaged in the work of preparing coal and did not operate 

a mine. 

113 
Alexander Brothers, Inc., 4 FMSHRC 541 (1982), arose under 

the 1969 Coal Act. 1/ It involved the reclamation of coal from a 

refuse pile created-during the operation of an underground mine 

which was closed in 1967. The refuse pile contained coal, rock 

dust, garbage, timber, wood, steel, dirt, tip cans, bottles, 

metal and general debris. Approximately 20 t-o 25 percent of the 

material taken from the pile was coal. The material was removed 

from the pile and trucked to a screening plant, where rock and 

obvious waste were removed. It was then crushed and transported 

to a cleaning plant. Noncoal was removed by various processes. 

The resultant coal was then sold to brokers. The Commission 

determined that Alexander Brothers were engaged in the work of 

preparing coal. The facts that they had nothing to do with the 

extraction of coal, and that their work in removing the debris 

from the coal differed from the ordinary preparation plant did 

not remove them from the jurisdiction of the Coal Act. 

In Mineral Coal Sales, Inc., 7 FMSHRC 615 (1985) coal was 

delivered to Mineral by brokers. Mineral tested the coal to 

determine the BTU, ash and sulfur content. It then crushed the 

coal to a uniform size and loaded it on railroad cars. The 

Commission held that Mineral's business constituted mining since 

it stored, mixed, crushed, sized and loaded coal to make it 

suitable for a particular use. 

_In the case of VenBlack, Inc. v. Secretary, 7 FMSHRC 520 

(1985), Commission Judge Lasher considered whether VenBlack which 

purchased already prepared coal and converted it into a powdery 

substance called Austin Black which was then sold to the tire and 

rubber industry as a chemical additive was subject to the Mine 

Act. The purchased coal was unique and had to meet VenBlack's 

specifications. VenBlack pulverized the coal to a fine dust 

having the consistency of talcum powder. The facility had been 

purchased from a coal company which operated a coal mine and 

preparation plant as well as the chemical facility producing 

Austin Black. The entire operation was inspected by MSHA. The 

mine and preparation plant had been closed and VenBlack had no 

connection with the mining property. Judge Lasher concluded that 

VenBlack was engaged in manufacturing operations, and was not a 

secondary coal preparation facility. VenBlack did not produce or 

prepare coal, but, using already prepared coal, manufactured and 

marketed a chemical additive. 

l/ The def i~itions of "mine" and "the work of preparing the 

coal" in the 1969 Act did not differ significantly from the 

definitions in the 1977 Mine Act. 

114 
In a case under the Coal Act, Jones and Laughlin Steel 

Corporation v. MESA, Docket No. PITT 76Xl98, Chief Administrative 

Law Judge Luoma of the Department of the Interior decided on 

February 22, 1977, that a refuse pile on appl_icant' s land was 

part of a coal mine and subject to the Act. The refuse pile 

consisted of material taken directly from the mine, such as waste 

from roof falls, construction material, etc. It apparently was 

largely slate but contained some coal. The refuse pile was 

approximately 50 years old and had not been used since 1967. 

Judge Luoma concluded that the refuse pile was a surface area of 

the mine, since it was "composed of material which resulted from, 

the work of extracting coal." 

CONCLUSION 

Westwood argues that "it is a power plant, pure and simple"; 

that it utilizes a stockpile of fuel as a conventional power 

plant would use a stockpile of coal. It consumes fuel and 

does not produce a marketable mineral. Westwood's argument 

emphasizes the latter distinction as if the marketing of coal or 

other mineral is essential to the idea of mining or coal 

preparation. But it is not uncommon for mine operators to 

themselves consume the products of their mines. And Westwood 

does more than burn the culm material; it prepares it "for a 

particular use." Elam, supra: it extracts the culm from the 

bank and loads it into hoppers, where certain waste materials are 

removed; it then transports it on a conveyor belt where ferrous 

metals are removed by a magnet; thereafter a metal detector seeks 

other metals which are rejected. The residual fuel is then 

crushed or sized to particles approximately one quarter inch in 

size. All this takes place prior to the fuel being introduced 

into the boiler building. These activities closely resemble the 

"work of preparing the coal" as defined in the Act. 

I am persuaded that the sweeping definition of a coal or 

other mine in the Act, and the admonition in the Legislative 

History that tpe term be given the broadest possible 

interpretation brings Westwood's facility within its terms. Any 

doubt that the culm bank is or includes "lands • • • , 

structures, facilities, ••• or other property including 

impoundments, ••• on the surface or udnerground, used in, • • • 

or resulting from the work of extracting such minerals from their 

natural deposits ••• " must be resolved in favor of coverage. 

I am further persuaded that Westwood's use of the culm 

includes the work of preparing the coal, since it breaks, 

crushes, sizes, stores and loads anthracite, and does other work 

of preparing coal usually done by the operator of a coal mine. 

115 
In both of these conclusions, I am giving deference to the 

determination by the Secretary of Labor that Westwood's facility 

and operation are subject to the Mine Act. 

THE VIOLATIONS 

1. Denial of Entrx 

Westwood asserts that its refusal to permit MSHA inspectors 

to inspect its property was based on a reasonable, good faith 

belief that it was not subject to the Mine Act. There is no 

evidence in the record to cast doubt on Westwood's bona f ides. 

Its operation had been previously been inspected by OSHA. 

Although it refused entry to the MSHA inspectors after the 

issuance of the citation and a 104Cb) order issued for 

noncompliance, it fully cooperated with the Inspectors after the 

consent order was issued by the District Court. Nevertheless, 

the refusal to pennit MSHA inspectors to conduct an inspection of 

the facility was, in view of my conclusion that it was a mine, a 

serious violation. Westwood was working on a high wall with a 

significant grade. The conditions of the highwall, the 

equipment, the training and competence of the employees could not 

be evaluated without an inspection. I conclude that the 

violation contributed to a hazard and that there was a reasonable 

likelihood that the hazard would result in a serious injury or 

illness. U.S. Steel Mining Company, Inc., 10 FMSHRC 1138 (1988). 

Although Westwood's denial of entry was deliberate, it acted in 

good faith. Considering the criteria in section llOCi) of the 

act, I conclude that an appropriate penalty for the violation is 

$300. 

2. Failure to File with MSHA 

Citation 2675836 charges a violation of 30 C.F.R. § 41.ll(a) 

because Westwood failed to submit a legal identification form to 

MSHA; citation 2675837 charges a violation of 30 C.F.R. § 77.1000 

because Westwood failed to submit to MSHA for approval a ground 

control plan; citation 2676579 charges a violation of 30 C.F.R. 

§ 48 .23 Ca> Cl> because Westwood failed to file a training plan 

with MSHA; citation 2676577 charges a violation of 30 C.F.R. 

§ 77.1712 because Westwood failed to notify the MSHA District 

Manager prior to beginning operation; citation 2676578 charges a 

violation of 30 C.F.R. § 77.1713 b~~ause the person conducting 

on-shift inspections had not been certified by MSHA. These 

violations are all related to Westwood's belief that it was not 

subject to MSHA jurisdiction. They are not serious since they 

were not likely to result in, or contribute to, an injury to a 

miner. I conclude that $20 is an appropriate penalty for each 

violation. 

116 
3. Other Violations not Related to Training Requirements 

Citation 2675839 charges a violation of 30 C.F.R. 

§ 77.1710(i) because a bulldozer being used to push bank material 

on top of the refuse bank was not provided ~ith seat belts. The 

dozer was being operated on a 30 degree grade· and the bank was 

over 200 feet high. I conclude that the violation contributed to 

a hazard which was reasonably likely to result in serious injury. 

Westwood was aware or should have been aware of the hazardous 

condition. I conclude that an appropriate penalty for this 

violation is $100. 

Citations 2675840 and 2675863 charge violations of 30 C.F.R. 

§ 77.1109(c)(l) because a bulldozer and~ loader were not 

provided with fire extinguishers. The inspector considered the 

violations nonserious. I conclude that appropriate penalties for 

the violations are $20 each. Citations 2675838 and 2675861 

charge violations of 30 C.F.R. § 77.410 because a loader was not 

provided with a functioning back up alarm. The inspector 

considered the violations nonserious. I conclude that an 

appropriate penalty for each violation is $20. Citation 2675862 

charges a violation of 30 C.F.R. § 77.1710Ci) because a front end 

loader was not provided with seat belts. Because the loader was 

working at the ground level, the inspector considered the 

violation nonserious. I conclude that an appropriate penalty for 

the violation is $20. 

4. Training Violations 

Citations 2677913 through 2677918 (replacing 2677901 through 

2677906) all charge violations of 30 C.F.R. § 48.26(a) because 

six employees had not received training as newly employed 

experienced miners. The employees had not previously worked on a 

culm bank, which in the inspector's judgment presented unique 

hazards. Therefore, the lack of such training contributed to a 

hazard which was reasonably likely to result in serious injury. 

The violations were moderately serious. The Secretary failed to 

establish that the violations were caused by Westwood's 

negligence. I conclude that $50 is an appropriate penalty for 

each violation. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. The contested violations and withdrawal order are 

AFFIRMED; 

2. the Notices of Contest are DISMISSED; 

117 
3. Westwood shall within 30 days of the date of this 

decision pay the following civil penalties: 

CITATION VIOLATION AMOUNT 

2675834/835 103(a) $300 

2675836 30 C.F.R. § 41.ll(a) 20 

2675837 30 C.F.R. § 77.1000 20 

~676579 30 C.F.R. § 48.23(a) Cl) 20 

2676577 30 C.F.R. § 77.1712 20 

2676578 30 C.F.R. § 77.1713 20 

2675839 30 C.F.R. § 77.1710(i) 100 

2675840 30 C.F.R. § 77.1109(c)(l) 20 

2675863 30 C.F.R. § 77.1109Cc)Cl> 20 

2675838 30 C.F.R. § 77.410 20 

2675861 30' C.F.R. § 77.410 20 

2675862 30 C.F.R. § 77.1710(i) 20 

2677913 30 C.F.R. § 48.26Ca) 50 

2677914 30 C.F.R. § 48.26(a) 50 

2677915 30 C.F.R. § 48.26Ca) 50 

2677916 30 C.F.R. § 48.26Ca) 50 

2677917 30 C.F.R. § 48.26Ca> 50 

2677918 30 C.F.R. § 48.26(a) 50 

$900 

jrxuu:~ ~crlu/ld James A. Broderick 

l/ • Administrative Law Judge 

Distribution: 

Joseph Mack, III, Esq., Thorp, Reed & Armstrong, One Riverfront 

Center, Pittsburgh, PA 15222 (Certified Mail) 

Mark v. Swirsky, Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

slk 

118 
FEDERAL MINE SAFETY .. AND HEALTH REVll:W COMMISSION 

OFFICE OF ADMINISTRATIVE LAW jtlt>GES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE .. 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BOWLING MOUNTAIN MINING 

CORPORATION 

Respondent 

JAN 2 7 1989 

CIVIL PENALTY PROCEEDING 

-Docket No. KENT 88-133 

.A.c~ No. 15-14701-03524 

Mine No. 2 

DECISION APPROVING SETTLEMENT 

Before: Judge Maμrer 

On December 29, 1988, the Secretary of Labor on behalf of 

the parties to this action, filed a motion to approve the 

settlement negotiated between them. At issue in this case are 

five violations~ originally assesaed at $9300 in the aggregate. 

Settlement is proposed at $7000. 

The above-refenced violations were discovered as a result of 

on investigation into a fatal roof fall accident which occurred 

on September 28, 1987, killing Truman Faulkner, an acting foreman 

at the mine. More particularly, the operato~swas'tited for a 

violation of 30 C.F .R. § 75 .200 becaus·e _it fa,iled ·to provide 

additional roof support after encountering adverse roof 

conditions, as required by its roof cont,rol plan.• ·Mud seams, 

indicating adverse roof c·ondi tions, had been. e.11-,co.μntered, .but no 

additional support was ordered set by Faulkner. This negligence 

contributed to his death. The company was cited for another, 

separate violation of 30 C.F.R. § 75.200 because the acting 

foreman, Faulkner, failed to install temporary roof support 

before working on unsupported roof, also as required by it's roof 

control plan. The roof fall that killed Faulkner was directly 

attributable to this violation. 

The operator was also cited for not conducting the required 

pre-shift examination of the mine since September 24, 1987, and 

more particularly, on September 28, 1987, the day Faulkner was 

killed. This is a serious v~olati9n of 30 C.F.R. § 75.303, 

although.it does not appear as though this violation directly 

contributed to Faulkner's death. 

119 
Additionally, the respondent was cited for a violation of 

30 C.F.R. § 48.6, because the operator had not provided newly 

employed experienced miner training to the deceased miner, 

Truman Faulkner, although he had been working at the mine for 

approximately three (3) weeks at the time of his death. 

Lastly, the respondent was cited for a violation of 

30 C.F.R. § 50.10 'because the operator failed to report the roof 

fall accident which caused the fatal injury to Truman Faulkner. 

MSHA was notified of the accident by a state mine inspector, but 

did not receive direct notification from the operator. · 

The Solicitor states that mining of coal at the mine where 

the violations occurred has ceased and this mine has now been 

sealed. 

In support of the proposed settlement, the Solicitor further 

states his belief that approval of this settlement is in the 

public interest and that the circumstances presented warrant the 

reduction in the original civil penalty assessments for the 

violations in question. Further, he has submitted a detailed 

discussion and disclosure as to the facts and circumstances 

surrounding the issuance of the citations and orders, as well as 

a full explanation and justification for the proposed reduction. 

I accept the Solicitor's representations and approve the 

settlements. 

ORDER 

The operator, and by agreement, Mr. Charles E. Mccullah, 

President and principal stockholder of Bowling Mountain Coal 

Company, Inc., d/b/a Bowling Mountain Mining Corporation, 

personally, is ordered to pay $7000 in eight equal monthly 

installments of $777.77 and one last installment of 777.84, 

beginning November 1, 1988, and payable by the first day of each 

month thereafter, until paid in full. Upon receipt of payment in 

full by the Secretary, this case is dismissed. 

120 
Distribution: 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department 

of Labor, 2002 Richard Jones Road, Suite B~201, Nashville, 

TN 37215 (Certified Mail) 

David J. Stetson, Esq., Trimble & Mann, 104 N. Kentucky Street, 

P.O. Drawer 1344, Corbin, KY 40701 (Certified Mail) 

/ml 

121 
FEDERAL Mft....:'. SAFETY AND HEAL TH REVIE\Jt.. .;QMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

January 27, 1989 

EMERY MINING CORPORATION 

AND/OR UTAH POWER & LIGHT 

COMPANY, 

Contestants 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA, ( UMWA) , 

Intervenor 

. . 

. . 

. 

. 

. . 

122 

CONTEST PROCEEDINGS 

Docket No. WEST 87-130-R 

Citation No. 2844485; 3/24/87 

Docket No. WEST 87-131-R 

Order No. 2844486; 3/24/87 

Docket No. WEST 87-132-R 

Order No. 2844488; 3/24/87 

Docket No. WEST 87-133-R 

Order No. 2844489; 3/24/87 

Docket No. WEST 87-134-R 

Citation No. 2844490; 3/24/87 

Docket No. WEST 87-135-R 

Citation No. 2844491; 3/24/87 

Docket No. WEST 87-136-R 

Citation No. 2844492; 3/24/87 

Docket No. WEST 87-137-R 

Citation No. 2844493; 3/24/87 

Docket No. WEST 87-144-R 

Order No. 2844795; 3/24/87 

Docket No. WEST 87-145-R 

Order No. 2844796; 3/24/87 

Docket No. WEST 87-146-R 

Order No. 2844798; 3/24/87 

Docket No. WEST 87-147-R 

Order No. 2844800; 3/24/87 

Docket No. WEST 87-150-R 

Order No. 2844805; 3/24/87 

Docket No. WEST 87-152-R 

Order No •. 2844807; 3/24/87 

Docket No. WEST 87-153-R 

Order No. 2844808; 3/24/87 
: Docket No. WEST 87-155-R 

Citation No. 2844811; 3/24/87 . . 

: Docket No. WEST 87-156-R 

: Order No. 2844813; 3/24/87 . . 

: Docket No. WEST 87-157-R 

: Order No. 2844815; 3/24/87 . . 

. . 

. . 

Docket No. WEST 87-158-R 

Citation No. 2844816; 3/24/87 

: Docket No. WEST 87-159-R 

Citation No. 2844817; 3/24/87 

Docket No. WEST 87-160-R 

: Order No. 2844822; 3/24/87 . . 

. . 

. . 

Docket No. WEST 87-161-R 

Order No. 2844823; 3/24/87 

Docket No. WEST 87-163-R 

Citation No. 2844826; 3/24/87 

Docket No. WEST 87-243-R 

Citation No. 2844828; 8/13/87 

: Docket No. WEST 87-244-R 

Citation No. 2844830; 8/13/87 . . Docket No. WEST 87-245-R 

Citation No. 2844831; 8/13/87 

: Docket No. WEST 87-246-R 

Citation No. 2844832; 8/13/87 

. . 

123 

Docket No. WEST 87-247-R 

Citation No. 2844833; 8/13/87 

Docket No. WEST 87-248-R 

Citation No. 2844835; 8/13/87 

Docket No. WEST 87-249-R 

Citation No. 2844837; 8/13/87 

Wilberg Mine 

Mine I.D. No. 42-00080 
SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

EMERY MINING CORPORATION, and 

ITS SUCCESSOR-IN-INTEREST 

UTAH POWER & LIGHT COMPANY, 

MINING DIV. , . 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA ( UMWA) , 

Intervenor 

CIVIL PENALTY PROCEEDINGS 

: Docket No. WEST 87-208 

A.C. No. 42-00080-03578 

Docket No. WEST 87-209 

A.C. No. 42-00080-03579 

Docket No. WEST 88-25 

: A.C. No. 42-00080-03584 . . 

. . 

Wilberg Mine 

ORDER 

1. On August 30, 1988, the undersigned Judge issued an order 

granting the petition of Utah Power and Light Company C"UP&L") to 

vacate 30 modified citations and orders to the extent that they 

named UP&L as a party. 

2. On November 19, 1988, the Secretary of Labor (Secretary) 

filed a petition for interlocutory review of said order. 

3. On December 5, 1988, UP&L filed in opposition to the 

Secretary's petition for interlocutory review, arguing, among other 

things, that the subject order was not interlocutory but rather a 

final order, reviewable only upon the filing of a petition for 

discretionary review in accordance with 30 u.s.c. § 823(d)(2)(A)(i) 

and Commission Procedural Rule 70, 29 C.F.R. § 2700.70. 

4. On December 19, 1988, the Secretary filed a reply to 

UP&L's opposition, arguing that the subject order was not a final 

decision because the requirements of Rule 54(b) of the Federal 

Rules of Civil Procedure were not met. Specifically the Secretary 

stated that: 

The August 30 Order contains no express 

determination that there is no reason for 

delay or express direction for the entry 

of final judgment as to Utah Power and 

Light. 

124 
5. On January 10, 1989, the Commission granted the 

Secretary's petition for interlocutory review "for the limited 

purpose of remanding this matter to the administrative law judge 

for an expeditious determination of whether a certification of 

finality in accordance with Rule 54(b) is appropriate." 

6. After the above order of remand was received the presiding 

judge granted the parties an opportunity~/ to state their position_ 

on the issues involved in said order. 

7. Emery Mining Corporation (Emery), and Intervenor did not 

file any statements. On January 24, 1989, the Secretary filed a 

statement of her position and further incorporated a copy of her 

reply to UP&L filed before the Commission. UP&L filed a response 

on January 27, 1989. 

Basically, the Secretary contends that the order of August 30, 

1988 was interlocutory and not a final decision. In the alternative, the Secretary states that if the order of August 30, 1988 is 

certified as final, then 30 days from such certification should be 

provided in order to afford an opportunity for Commission review. 

UP&L states for its part that a Rule 54(b) certificate is not 

necessary and, in the alternative it argues certification of the 

August 30, 1988 order may be contrary to the principles of judical 

economy. 

Discussion 

In its order of remand and in considering Rule 54(b) of the 

Federal Rules of Civil Procedure, the Commission concurred with 

l/ Order: January 12, 1989. 

125 
the statement in 10 Wright Miller & Kane, Federal Practice and 

Procedure, S-ec. 2654 at 38 ( 1983) reading as follows: 

The rule does not require that a judgment 

be entered when the court disposes of one 

or more claims or terminates the action as 

to one or more parties. Rather, it gives 

the court discretion to enter a final judgment 

in these circumstances and it provides muchneeded certainty in determining when a final 

and appealable judgment has been entered. As 

stated by one court, "if it does choose to 

enter such a final order, [the court] must do 

so in a definite, unmistakable manner." [David 

v. District of Columbia, 187 F.2d 204, 206 

(D.C. Cir. 1950).] Absent a certification 

under Rule 54(b) any order in a multiple-party 

or multiple-claim action, even if it appears 

to adjudicate a separable portion of the controversy, is interlocutory. 

The order of remand directs the presiding judge to make "an 

expeditious determination of whether a certification of finality in 

accordance with Rule 54Cb) is appropriate." 

As presiding judge I conclude that a certification of finality 

is appropriate since the order of August 30, 1988 does not state 

that it is a.final order in a definite, unmistakable manner. 

For the foregoing reasons and in accordance with the order 

of remand, as presiding judge and in accordance with Rule 54(b), 

F.R.C.P., I find there is no just reason for delay and I certify as 

to the finality of the order of August 30, 1988. 

Further, as presiding judge, I expressly direct the entry of 

judgment in favor of Utah Power and Light Company in all of the 

cases listed in the caption. 

.. 

Law Judge 

126 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD. 

DENVER. CO 80204 

JAN 3 0 1989 

EMERY MINING CORPORATtON 

AND/OR UTAH POWER & LIGHT 

COMPANY, 

Contestants 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA, (UMWA), 

Intervenor 

CONTEST PROCEEDINGS 

Docket No. WEST 87-130-R 

Citation No. 2844485; 3/24/87 

Docket No. WEST 87-131-R 

Order No. 2844486; 3/24/87 

Docket No. WEST 87-132-R 

Order No. 2844488; 3/24/87 

Docket No. WEST 87-133-R 

Order No. 2844489; 3/24/87 

Docket No. WEST 87-134-R 

: Citation No. 2844490; 3/24/87 

Docket No. WEST 87-135-R 

Citation No. 2844491; 3/24/87 

Docket No. WEST 87-136-R 

Citation No. 2844492; 3/24/87 

Docket No. WEST 87-137-R 

: Citation No. 2844493; 3/24/87 

. . Docket No. WEST 87-144-R 

Order No. 2844795; 3/24/87 

Docket No. WEST 87-145-R 

Order No. 2844796; 3/24/87 

: Docket No. WEST 87-146-R 

Order No. 2844798; 3/24/87 

. . 

. . 

. . 

Docket No. WEST 87-147-R 

Order No. 2844800; 3/24/87 

Docket No. WEST 87-150-R 

Order No. 2844805; 3/24/87 

Docket No. WEST 87-152-R 

Order No. 2844807; 3/24/87 

Docket No. WEST 87-153-R 

Order No. 2844808; 3/24/87 

127 
: Docket No. WEST 87-155-R 

Citation No. 2844811; 3/24/87 

: 

: Docket No. WEST 87-156-R 

: Order No. 2844813; 3/24/87 

Docket No. WEST 87-157-R 

: Order No. 2844815; 3/24/87 

. . 

Docket No. WEST 87-158-R 

Citation No. 2844816; 3/24/87 

Docket No. WEST 87-159-R 

: Citation No. 2844817; 3/24/87 . . 

. 

. 

. . 

. . 

. . 

. . 

128 

Docket No. WEST 87-160-R 

Order No. 2844822; 3/24/87 

Docket No. WEST 87-161-R 

Order No. 2844823; 3/24/87 

Docket No. WEST 87-163-R 

Citation No. 2844826; 3/24/87 

Docket No. WEST 87-243-R 

Citation No. 2844828; 8/13/87 

Docket No. WEST 87-244-R 

Citation No. 2B44830; 8/13/87 

Docket No. WEST 87-245-R. 

Citation No. 2844831; 8/13/87 

Docket No. WEST 87-246-R 

Citation No. 2844832; 8/13/87 

Docket No. WEST 87-247-R 

Citation No. 2844833; 8/13/87 

Docket No. WEST 87-248-R 

Citation No. 2844835; 8/13/87 

Docket No. WEST 87-249-R 

Citation No. 2844837; 8/13/87 

Wilberg Mine 

Mine I.D. No. 42-00080 
SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CIVIL PENALTY PROCEEDINGS 

: Docket No. WEST 87-208 

A.C. No. 42-00080-03578 

Docket No. WEST 87-209 

A.C. No. 42-00080-03579 

EMERY MINING CORPORATION, and 

ITS SUCCESSOR-IN-INTEREST 

UTAH POWER & LIGHT COMPANY, 

MINING DIV. , 

Docket No. WEST 88-25 

A.C. No. 42-00080-03584 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA ( UMWA) , Intervenor 

: Wilberg Mine 

. . 

. . 

ORDER 

1. In a order issued on January 27, 1989, the undersigned, 

in accordance with an order of remand of January 10, 1989, certified as to the issuance of a final order as provided in Rule 

54Cb) of the Federal Rules of Civil Procedure. 

2. Further, an order of final judgment was entered in favor 

of Utah Power and Light Company C"UP&L") in all cases listed in the 

caption of this order. 

3. In certaiq 

are in agreement 1/ 

did not contest the 

proposed penalty as 

of the cases listed in the caption the parties 

that Emery Mining Corporation ("Emery") either 

involved citations (orders), or paid the 

originally assessed. 

These cases are as follows: 

WEST 87-134-R 

WEST 87-135-R 

WEST 87-136-R 

WEST 87-137-R 

WEST 87-155-R 

WEST 87-158-R 

WEST 87-159-R 

WEST 87-163-R 

WEST 87-243-R 

WEST 87-244-R 

WEST 87-245-R 

WEST 87-246-R 

WEST 87-247-R 

WEST 87-249-R 

1/ Emery's response filed December 27, 1988~ Secretary's response Yiled January 24, 1989. 

129 
4. Inasmuch as a final judgment has been entered as to UP&L 

in all of the pending cases and inasmuch as Emery either Cl) did 

not contest the citations (orders) or (2) paid the proposed penalty 

in the cases listed in paragraph 3, there is no issue pending 

before the presiding judge in these cases and I herewith return 

said cases to the Docket Off ice. 

Law Judge 

Distribution: 

Timothy M. Biddle, Esq., Thomas C. Means, Esq., Ann R. Klee, Esq., 

Crowell & Moring, 1001 Pennsylvania Ave., N.W., Washington, D.C. 

20004 (Certified Mail) 

James B. Crawford, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 Fifteenth 

Street, N.W., Washington, D.C. 20005 (Certified Mail) 

/ot 

130