JUNE 1993 

COMMISSION DECISIONS AND ORDERS 

06-07-93 

06-22-93 

06-22-93 

06-22-93 

06-22-93 

06-23-93 

06-23-93 

06-23-93 

06-24-93 

06-24-93 

Ronny Boswell v. National Cement Company 

L.M. Karnes employed by J.H.Shears Sons 

Twentymile Coal Company 

Zeigler Coal Company 

s & H Mining, Inc. 

Island Creek Coal Company 

Kiah Creek Mining Company 

Cougar Coal Company 

Pittsburg & Midway Coal Mining Co. 

Lonnie Ross/Charles Gilbert v. Shamrock 

Coal Company 

06-29-93 Lynx Coal ompany 

06-29-93 BethEnergy Mines, Inc. 

06-29-93 Cyprus Orchard Valley Coal Corp 

06-29-93 Cyprus Empire corporation 

06-29-93 Consolidation Coal Co., etc. 

06-29-93 Monterey Coal Company 

06-29-93 General Chemical Corporation 

06-29-93 FMC Wyoming Corporation 

06-29-93 AKZO Salt Incorporated 

06-29-93 Cyprus Emerald Resources, Corp. 

06-29-93 Mountain Coal Company 

06-29-93 Southern Ohio Coal Company 

06-29-93- Windsor--coal Company 

06-29-93 Energy West Mining Company 

06-29-93 Centralia Mining Company 

06-29-93 Amax Coal Company 

06-29-93 Sunnyside Coal Company 

06-29-93 Westmoreland Coal Company 

06-29-93 LTV Steel Mining Comany 

ADMINISTRATIVE LAW JUDGE DECISIONS 

05-07-93 

06-02-93 

06-02-93 

06-03-93 

06-07-93 

06-07-93 

06-09-93 

06-09-93 

06-15-93 

06-16-93 

06-16-93 

06-21-93 

06-21-93 

06-21-93 

06-21-93 

06-22-93 

06-23-93 

06-23-93 

06-23-93 

Pittsburg & Midway Coal Company 

USX Corporation, Minnesota Ore 

Jerry Ike Harless Towing 

Mullins and Sons Coal Company 

Glenn Burwick employed by Burwick 

Construction Company 

Martin Sales & Processing 

Adams Stone Corporation 

Ramblin Coal Company, Inc. 

Wyoming Fuel Company 

u.s. Steel Group, Minnesota Ore 

The Harriman Coal Corporation 

Oglebay Norton Taconite Co. 

Mid-Continent Resources, Inc. 

Energy West Mining Company 

Consolidation Coal Company (Partial) 

Clifford Meek v. Essroc Corporation 

BethEnergy Mines, Inc. 

Valley Camp Coal Company 

Genstar Stone Products Co. 

SE 

CENT 

WEST 

LAKE 

SE 

KENT 

KENT 

KENT 

SPECIAL 

KENT 

KENT 

PENN 

SPECIAL 

SPECIAL 

SPECIAL 

SPECIAL 

SPECIAL 

SPECIAL 

SPECIAL 

SPECIAL 

SPECIAL 

SPECIAL 

SPECIAL 

SPECIAL 

SPECIAL 

SPECIAL 

SPECIAL 

SPECIAL 

SPECIAL 

90-112-DM 

92-333-M 

91-449 

91-636 

91-32 

92-625 

92-964 

92-878 

92-02 

91-76-D 

92-776 

89-277-R 

92-03 

92-04 

92-05 

92-06 

92-07 

92-08 

92-09 

92-10 

92-11 

92-12 

92-13 

92-14 

92-15 

92-16 

93-01 

93-02 

93-03 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

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Pg. 

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Pg. 

Pg. 

935 

939 

941 

949 

956 

962 

965 

967 

969 

972 

979 

981 

988 

991 

994 

997 

1000 

1003 

1006 

1009 

1012 

1015 

1018 

1021 

1024 

1027 

1030 

1033 

1036 

CENT 92-119 Pg. 1039 

LAKE 92-399-M-A Pg. 1050 

CENT 92-276-RM Pg. 1052 

KENT 92-669 Pg. 1061 

CENT 92-341-M Pg. 1066 

WEVA 92-1008 Pg. 1070 

KENT 92-604-M Pg. 1080 

KENT 90-429 Pg. 1106 

WEST 90-112-R Pg. 1107 

LAKE 92-247-RM Pg. 1153 

PENN 92-648 Pg. 1176 L~~E 93-52-M Pg. 1180 

WEST 91-168 Pg. 1182 

WEST 92-216-R Pg. 1185 

WEVA 92-1194 Pg. 1193 

LAKE 90-132-DM Pg. 1196 

PENN 92-895 Pg. 1200 

WEVA 92-1075 Pg. 1209 

YORK 92-124-M Pg. 1213 
ADMINISTRATIVE LAW JUDGE DECISIONS[ CON'T 

06-25-93 Sec. Labor on behalf of Ronny Boswell 

v. National Cement Company, Inc. SE 93-48-DM Pg. 1250 

06-28-93 Peabody Coal COmpany KENT 92-818 Pg. 1258 

06-29-93 Mid-Continent Resources, Inc. WEST 91-168 Pg. 1262 

06-30-93 Consolidation Coal Company (Partial) WEVA 92-992 Pg. 1264 

05-25-93 Sec. Labor on behalf of Perry Poddey 

v. Tanglewood Energy, Inc. WEVA 93-287-D Pg. 1296 

ADMINISTRATIVE LAW JUDGE ORDERS 

06-11-93 Asamera Mineral (US) I Inc. WEST 92-802-M Pg. 1299 

06-11-93 Asamera Mineral (US) I Inc. WEST 93-105-M Pg. 1301 
JUNE 1993 

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

Secretary of Labor, MSHA v. Consolidation Coal Company, Docket No. 

WEVA 92-922. (Judge Maurer, April 30, 1993). 

Secretary of Labor, MSHA v. Prabhu Deshetty, employed by Island Creek Coal 

Company, Docket No. KENT 92-549. (Judge Melick, May 6, 1993). 

Secretary of Labor, MSHA v. Pittsburg & Midway Coal Mining Company, Docket No. 

CENT 92-142. (Judge Lasher, May 7, 1993). 

Secretary of Labor, MSHA v. L.M. Karnes, employed by Shears Sons, Inc., Docket 

No. CENT 92-333-M. (Chief Judge Merlin, Default Decision of April 23, 1993). 

Secretary of Labor, MSHA v. Island Creek Coal Company, Docket No. KENT 92-625. 

(Judge Melick, Settlement Approval of May 4, 1993- unpublished). 

Secretary of Labor, MSHA v. Kiah Creek Mining Company, Docket No. KENT 92-964. 

(Chief Judge Merlin, Default Decision of June 1, 1993). 

Secretary of Labor, MSHA v. Cougar Coal Company, Inc., Docket No. KENT 92-878. 

(Chief Judge Merlin, Default Decision of May 20, 1993). 

Secretary of Labor, MSHA v. Consolidation Coal Company, Docket No. 

WEVA 92-798. (Judge Feldman, May 17, 1993). 

----------

Secretaryof Labor, MSHA v. Lynx Coal Company, Inc., Docket No. KENT 92-776. 

(Chief Judge Merlin, Default Decision of May 20, 1993). 

The following cases were Denied for Review during the month of June: 

Elmer Darrell Burgan v. Harlan Cumberland Coal Company, and Dixie Fuel Company 

Docket Nos. KENT 92-915-D, and KENT 93-101-D. (Judge Feldman, May 12, 1993). 
COMMISSION DECISIONS AND ORDERS 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

RONNY BOSWELL 

v. 

NATIONAL CEMENT COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 7, 1993 

Docket No. SE 90-112-DM 

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This discrimination proceeding, ar~s~ng under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act" or 

"Act"), is before the Commission a second time. Administrative Law Judge Roy 

J. Maurer sustained Ronny Boswell's discrimination complaint alleging that 

National Cement Company ("National Cement") had unlawfully disqualified him 

from his position as a utility laborer and reassigned him to a position as a 

payloader operator, but concluded that, although Boswell was entitled to 

reinstatement to his former position, he was not entitled to backpay. 13 

FMSHRC 207 (February 199l)(ALJ). The Commission granted National Cement's 

petition for discretionary review, which challenged the judge's finding of 

unlawful discrimination. The Commission affirmed the judge's decision in part 

and vacated it in part, remanding the case to the judge to consider whether a 

particular incident involved protected activity by Boswell and whether 

National Cement had established an affirmative defense to Boswell's prima 

facie case of discrimination. 14 FMSHRC 253 (February 1992)("Boswell I"). 

On remand, the judge again sustained Boswell's discrimination complaint, 

but awarded Boswell backpay and interest, which he had not awarded in his 

earlier decision. 14 FMSHRC 541 (April 1992)(ALJ)("Boswell Remand"); 14 

FMSHRC 1135 (July 1992) (ALJ). The Commission granted National Cement's 

petition for discretionary review of the judge's backpay a~ard. For the 

reasons that follow, we conclude that Boswell's entitlement to backpay was not 

properly before the judge on remand, and we vacate his backpay award. 

935 
I. 

Procedural History 

The factual background of this matter is set forth in Boswell I, 14 

FMSHRC at 253-55. In his first decision in this matter, the judge found that 

Boswell had engaged in several incidents of protected activity. 13 FMSHRC at 

212-14. He also found that National Cement's disqualification of Boswell from 

his position as a utility laborer was motivated in major part by his protected 

activity and, thus, that he had been discriminated against in violation of the 

Mine Act. 13 FMSHRC at 213. The judge concluded that Boswell was entitled to 

reinstatement as a utility laborer and expungement from his personnel records 

of all derogatory information relating to his disqualification. 13 FMSHRC at 

215. The judge determined, however, that Boswell was not entitled to backpay 

because his earnings as a payloader operator exceeded the pay of the miner who 

replaced him as a utility laborer. 13 FMSHRC at 214-15. 

National Cement successfully petitioned for review of the judge's 

finding of unlawful discrimination. Boswell did not seek review of the 

judge's denial of backpay. On review, National Cement argued that certain of 

the judge's protected activity findings were in error, that Boswell's 

disqualification was not an adverse action, and that it would have transferred 

Boswell based on his unprotected activities alone. 

The Commission affirmed the judge's findings of protected activity 

except as to a wheelbarrow incident involving a work refusal by Boswell. 

Boswell I, 14 FMSHRC at 258-60. The Commission also affirmed the judge's 

implicit finding that Boswell's disqualification was an adverse action, 

reasoning that the action was surrounded by indicia of discipline and, 

further, that Boswell was removed to a position with a lower rate of pay. 14 

FMSHRC at 259-60. The Commission thus affirmed the judge's conclusion that 

Boswell had established a prima facie case of discrimination. 14 FMSHRC at 

258-60. The Commission determined, however, that the judge had not considered 

National Cement's affirmative defense that it would have transferred Boswell 

in any event based on his unprotected activities alone. 14 FMSHRC at 260. 

The Commission remanded the proceeding to the judge to consider: (1) whether 

the wheelbarrow incident constituted a protected work refusal; and (2) whether 

National Cement had established that it would have disqualified Boswell for 

his unprotected activities alone. 14 FMSHRC at 261. 

On remand, the judge determined that the wheelbarrow incident 

constituted a protected work refusal and that National Cement had failed to 

establish its affirmative defense. Boswell Remand, 14 FMSHRC at 544, 546-47. 

Noting the Commission's conclusion that Boswell's disqualification constituted 

an adverse action based, in part, on Boswell's reduced rate of pay, the judge 

held that Boswell was entitled to receive backpay. 14 FMSHRC at 547. In a 

supplemental decision, the judge awarded Boswell $6,094.28 in backpay and 

interest. 14 FMSHRC at 1136-37. 

National Cement sought review of the judge's finding that the wheelbarrow incident constituted protected activity and of his award of backpay. 

936 
The Commission declined to review the first issue but granted review of the 

second. 

II. 

Disposition of Issues 

National Cement contends that the judge lacked jurisdiction on remand to 

reexamine the question of damages and that, in any event, substantial evidence 

does not support the backpay award. We agree that the judge lacked jurisdiction on remand to award backpay. 

Section 113(d)(2) of the Mine Act provides that, if the Commission 

grants review, the scope of review is limited to the questions raised by the 

petition and to questions directed for review ~ sponte by the Commission. 

30 U.S.C. § 823(d)(2). Following the judge's initial decision, Boswell did 

not petition the Commission for review of the judge's finding that he was not 

entitled to backpay. The issues raised in National Cement's petition were 

limited to the merits of Boswell's discrimination complaint. The Commission 

directed no issues for review on its own motion. 30 U.S.C. § 823(d)(2)(B). 

Consequently, no damages issues were before the Commission in Boswell I and 

the judge's conclusion that no backpay was due became, in effect, a final 

decision. Thus, under the review structure of the Mine Act and the 

circumstances of this case, the judge lacked authority on remand to address 

issues pertaining to damages. 

We note that a judge's jurisdiction on remand is limited to the issues 

specifically remanded by the Commission. See generally Hermann v. Brownell, 

274 F.2d 842, 843 (9th Cir.), cert. denied, 364 U.S. 821 (1960); Secretary on 

behalf of Mullins v. Consolidation Coal Co., 4 FMSHRC 1622, 1624 n.2 

(September 1982). Here, the Commission directed the judge to answer two 

questions on remand relating to the merits of the discrimination complaint. 

The judge was not directed to reopen Boswell's entitlement to damages. It 

appears that the judge considered the backpay issue in an attempt to comply 

fully with the remand. See Tr. 6-9 (June 15, 1992). In so doing, however 

well intentioned, he exceeded his jurisdiction. 

937 
III. 

Conclusion 

For the foregoing reasons, we vacate the judge's supplemental damage 

award. 

Arlene Holen, Chairman 

~tZ~L oyc~e, CommiSSiOtler 

L. Clair Nelson, Commissioner 

Distribution 

Thomas F. Campbell, Esq. 

Lange, Simpson, Robinson & Somerville 

1700 First Alabama Bank Bldg. 

417 Twentieth St., North 

Birmingham, AL 35203 

for National Cement 

Mr. Larry G. Myers, Union Representative 

United Paperworkers International Union 

District Council No. 5 

229 Roebuck Plaza Drive, Suite 203 

Birmingham, AL 35206 

Hr. Ronny Boswell 

P.O. Box 177 

Wattsville, AL 35182 

Administrative Law Judge Roy J. Maurer 

Federal l1ine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22043 

938 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 22, 1993 

Docket No. CENT 92-333-M 

L.M. KARNES, Employed by J.H. SHEARS 

SONS, INC. 

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners 

ORDER 

BY: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On April 23, 

1993, Chief Administrative Law Judge Paul Merlin issued an Order of Default to 

L. M. Karnes for failing to answer the notice of proposed civil penalty filed 

by the Secretary of Labor or the judge's February 11, 1993, Order to Show 

Cause. The judge assessed the civil penalty of $400 proposed by the 

Secretary. For the reasons that follow, we vacate the default order and 

remand this case for further proceedings. 

On May 14, 1993, the Commission received a letter from Karnes asserting 

that he had not received the Order to Show Cause. Karnes requests that the 

Order of Default be vacated. 

The judge's jurisdiction over this case terminated when his decision was 

issued on April 23, 1993. 29 C.F.R. § 2700.69(b). This decision has become 

final by operation of law, 30 U.S.C. § 823(d)(l). We can consider the merits 

of Karnes' submission if we construe it as a request for relief from a final 

Commission decision incorporating a petition for discretionary review. See 29 

C.F.R. § 2700.l(b) (applicability of Federal Rules of Civil Procedure to 

Commission proceedings); Fed. R. Civ. P. 60(b)(relief from·judgment or order). 

We reopen this proceeding to consider Karnes' letter as a timely filed 

Petition for Discretionary Review, which we grant. 

On the basis of the present record, we are unable to evaluate the merits 

of Karnes' position. In the interest of justice, we remand this matter to the 

judge, who shall determine whether default is warranted. See Hickory Coal 

Co., 12 FMSHRC 1201, 1201 (June 1990). 

939 
For the reasons set forth above, we vacate the judge's default order and 

remand this matter for further proceedings. 

Distribution 

L.N. Karnes 

603 East Poplar 

Fort Gibson, OK 74434 

Stephen D. Turow, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Arlene Holen, Chairman 

L. Clair Nelson, Commissioner 

Chief Administrative Law Judge Paul Herlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

940 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

TWENTYMILE COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 22, 1993 

Docket No. WEST 91-449 

BEFORE: Holen, Chairman; Backley, Doyle and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"). The 

issue is whether the violation of 30 C.F.R. § 70.100(a) 1 by Twentymile Coal 

Company ("Twentymile") was of a significant and substantial nature ("S&S"). 2 

Commission Administrative Law Judge Michael A. Lasher, Jr. held that the 

violation was S&S. 14 FMSHRC 549 (April 1992)(ALJ). For the reasons set 

forth below, we affirm the judge's decision. 

1 Section 70.100, entitled "Respirable dust standards," provides in 

subsection (a): 

Each operator shall continuously maintain the 

average concentration of respirable dust in the mine 

atmosphere during each shift to which each miner in the 

active workings of each mine is exposed at or below 2.0 

milligrams of respirable dust per cubic meter of air as 

measured with an approved sampling device 

2 The S&S terminology is taken from section 104(d)(l) of the Act, 30 

U.S.C. § 814(d)(l), which distinguishes as more serious in nature any violation 

that "could significantly and substantially contribute to the cause and effect 

of a ... mine safety or health hazard .... " 

941 
I. 

Factual and Procedural Background 

Twentymile contested only the S&S designation of the citation,and the 

matter was submitted to Judge Lasher on stipulated facts. The stipulations 

pertinent on review are as follows: 

1. On October 10, 1990, Citation No. 9996580 

was issued pursuant to Section 104(a) of the Federal 

Mine Safety and Health Act of 1977 ("the Act"). 

2. The Citation alleged a violation of 30 

C.F.R. § 70.100(a) as follows: 

Based on the results of five valid dust 

samples collected by the operator, the 

average concentration of respirable dust 

in the working environment of the 

designated occupation, code 036 in 

mechanized mining unit 006-0 was 2.1 

milligrams which exceeded the applicable 

limit of 2.0 milligrams .... Management 

will take corrective actions to lower the 

respirable dust and then sample each 

production shift until five valid samples 

are taken and submitted to the Pittsburgh 

Respirable Dust Processing Laboratory. 

Approved respiratory equipment shall be 

made available to all persons working in 

the area. 

3. The Citation alleged that the condition 

significantly and substantially contributed to the 

cause and effect of a mine safety or health hazard. 

4. The miners who were the subject of the 

sampling on which the Citation was based were not 

wearing respirators at the time the sampling was 

conducted. 

5. The average concentration of respirable dust 

on which the Citation was based was 2.1 mgjm3 , which 

exceeded the applicable limit by 0.1 mgjm3 • 

* * * * * * 

9. The parties agree and stipulate that the 

only issue for hearing in this matter is whether a 

citation based upon an average respirable dust 

concentration of 2.1 mg/m3 may properly be designated 

as "significant and substantial." Twentymile wishes 

942 
to seek review of such issue by the Commission. The 

parties believe that a hearing is not necessary on 

such issue, since the issue is a legal one based upon 

the Congressional findings contained in the 

legislative history of the Federal Mine Safety and 

Health Act and the regulatory history. 

10. To that end, the parties agree and 

stipulate that a violation of the cited standard 

existed and that, if the citation is designated 

"significant and substantial," the appropriate penalty 

is $276.00, the full proposed penalty. 

The judge upheld the inspector's S&S designation based on the 

Commission's decision in Consolidation Coal Co., 8 FMSHRC 890 (June 1986), 

aff'd sub nom. Consolidation Coal Co. v. FMSHRC, 824 F.2d 1071 (D.C. Cir. 

1987)("Consol"), and Chief Administrative Law Judge Merlin's decision in 

Consolidation Coal Co., 13 FMSHRC 1076 (July 1991)(ALJ)( "Consol II"). Judge 

Lasher held that, "when the Secretary finds a violation of§ 70.100(a), a 

presumption that the violation is significant and substantial is appropriate." 

14 FMSHRC at 552, quoting Consol II, 13 FMSHRC at 1079. He applied the 

presumption to the facts in this case and concluded that the violation was 

S&S. Judge Lasher noted that Twentymile did not seek to rebut the 

presumption. The Commission granted Twentymile's Petition for Discretionary 

Review and heard oral argument. 

II. 

Disposition of the Issues 

A. S&S Presumption 

Twentymile contested the inspector's S&S finding on the grounds that a 

violation of the health standard based on an average concentration of less 

than 2.2 mg/m3 is not S&S. Although Twentymile acknowledges that, in Consol, 

the Commission held that any concentration of respirable dust over the 2.0 

mg/m3 standard is presumptively S&S, Twentymile argues that the Commission did 

not focus on whether this presumption should apply to "concentrations of 

respirable dust that are marginally above the standard." Tm. Br. 4. 

Twentymile bases its argument on a report of the U.S. House of Representatives 

prepared at the time the House was considering the Coal Mine Health and Safety 

Act of 1969, 30 U.S.C. 801 et seq. (1976)(amended 1977). In the Report of the 

House Committee on Education and Labor, dated October 13, 1969, to accompany 

H.R. 13950, a section entitled "Justification for Dust Standards" refers to 

British studies that used a statistical analysis to predict. the probability of 

a miner contracting pneumoconiosis after 35 years of exposure at specific 

levels of respirable dust. H. Rep. 563, 91st Cong., 1st Sess. 15-20 (1969), 

reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 94th 

Cong. 1st Sess. Part I Legislative HistoiY of the Coal Mine Health and Safety 

943 
Act of 1969, at 1045-50 (1975)("Legis. Hist."). The House Report states, in 

part: 

In a dust environment below about 2.2 mgjm3 , there is 

virtually no probability of a miner contracting 

pneumoconiosis (ILO category 2 or greater), even after 

35 years of exposure to such concentration. It is 

significant that simple pneumoconiosis below ILO 

category 2 is not disabling. 

Le&is. Hist. at 1048. Twentymile contends that this statement is essentially 

a Congressional finding of fact that exposures below 2.2 are not significant 

and substantial. Twentymile further argues that Judge Lasher's decision is 

incorrect as a matter of law because the Mine Act does not provide that all 

respirable dust violations are S&S. It asserts that the application of the 

presumption to "marginal" violations of the respirable dust standard ignores 

the Mine Act's graduated scheme of enforcement. 

The Secretary argues that the presumption established in Consol is 

applicable to this case. The Secretary contends that Congress set the 

respirable dust standard at 2.0 mg/m3 in order to eliminate respiratory 

disease by reducing dust in the mine atmosphere. The Secret~ry maintains 

that, by adopting a 2.0 standard, Congress recognized that exposures above 

that level can lead to respiratory illness. 

In Consol, the Commission determined that the "prevention of 

pneumoconiosis and other occupational illnesses is a fundamental purpose 

underlying the Mine Act." 8 FMSHRC at 895 (emphasis in original). It further 

determined that Congress intended the 2.0 mg/m3 standard to be the "maximum 

permissible exposure level" during every working shift. 8 FMSHRC at 897. 

With these considerations in mind, the Commission adapted the four part S&S 

test set forth in Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984) for 

application to violations of the respirable dust standard. 8 FMSHRC at 897-

99. The Commission found that the elements of the S&S test would be the same 

in all instances where the Secretary proves a violation of section 70.100(a). 

The Commission concluded "if the Secretary proves that an overexposure to 

respirable dust in violation of section 70.100(a), based upon designated 

occupation samples, has occurred, a presumption arises that the third element 

of the significant and substantial test -- a reasonable likelihood that the 

health hazard contributed to will result in an illness -- has been 

established." 8 FMSHRC at 899. The Commission reached this conclusion 

because "the development of respirable dust induced disease is insidious, 

furtive and incapable of precise prediction," and Congress expressed a "strong 

concern" that all respiratory illnesses in mines be eliminated. 8 FMSHRC at 

898-99. With respect to the fourth element of the S&S test, the Commission 

concluded that "there is a reasonable likelihood that illness resulting from 

overexposure to respirable dust will be of a reasonably serious nature." 8 

FMSHRC at 899. 

As a consequence, the Commission held that, "when the Secretary proves 

that a violation of 30 C.F.R. § 70.100(a), based upon excessive designated 

occupation samples, has occurred, a presumption that the violation is a 

944 
significant and substantial violation is appropriate." 8 FMSHRC at 899. The 

Commission further held that the presumption may be rebutted if the operator 

establishes that the miners in the designated occupation "were not exposed to 

the hazard posed by the excessive concentration of respirable dust, e.g., 

through the use of personal protective equipment." Id. 

The United States Court of Appeals for the D.C. Circuit affirmed the 

Commission's use of this presumption. 824 F.2d at 1084-86. The Court 

rejected the operator's argument that "Congress intended that some 

concentration of respirable dust higher than 2.0 mg/m3 be found before a 

violation of the respirable dust standard could be designated as significant 

and substantial." 824 F.2d at 1084-85. Indeed, the Court determined that 

Congress required operators to "continuously maintain" the concentration of 

respirable dust at or below 2.0 mgjm3 "during each shift" rather than "over 

the long term." 824 F.2d at 1086. Noting that the harmful effect of any one 

incident of exposure to excessive concentrations of respirable dust is 

negligible, the Court concluded that, without the presumption, the application 

of the sanctions set forth in sections l04(d) and (e) of the Act would be 

precluded because no single violation could ever be designated as significant 

and substantial. Id. 

The legislative history cited by Twentymile, when examined in context, 

does not support the position that the Consol S&S presumption should not apply 

to Twentymile's violation of section 70.100(a). The legislative history 

states that exposures at 2.0 mg/m3 over a 35 year period would cause at least 

2% of miners to develop simple pneumoconiosis. Legis. Hist. at 142, 356 

(emphasis added). Congress expressed its desire that working conditions in 

underground coal mines be sufficiently free of respirable dust to enable 

miners to work their entire working lives without "incurring any disability 

from pneumoconiosis or any other occupation-related disease .... " 30 U.S.C. 

§ 84l(b)(emphasis added). 

At the time the 1969 Coal Act was debated, no federal standards existed 

for respirable coal dust. As passed by the House, H.R. 13950 would have 

established an exposure limit of 3.0 mg/m3 • Legis. Hist. at 959. The British 

studies were cited in the House Report to justify this 3.0 limit. This House 

Report makes clear, however, that the committee expected the Secretary to 

reduce the exposure limit by regulation: 

The ideal mine environment is a dust-free one. The 

committee realizes that, given the state of existing 

technology, this is an unreachable goal. The 

Committee expects the Secretary ... to prescribe the 

limit of at least 2.2 mgjm3 as soon as he deems it 

attainable, and to prescribe limits below that level 

in a final attempt to eliminate even simple 

pneumoconiosis (ILO Category l) through dust control. 

Legis. Hist. at 1048-49. 

The Senate rejected a 3.0 mgjm3 exposure limit because it was concerned 

that such a limit was "not a good medical standard." Legis. Hist. at 146. 

945 
Accordingly, the Senate bill (S. 2917) adopted a 2.0 mgjm3 standard, to be 

phased in over three years. Id. The Conference Committee approved the 

Senate's more stringent 2.0 standard because the committee was not satisfied 

that a less stringent standard "would protect the health of miners .... " 

Legis. Hist. at 1551 (Statement of Representative Perkins, the chief House 

conferee). Congress enacted the 2.0 standard into law. 

Finally, we reject Twentymile's argument that application of the S&S 

presumption in this case would ignore the Mine Act's graduated scheme of 

enforcement. Violations of section 70.100(a) in any degree can contribute to 

the development of chronic bronchitis, pneumoconiosis and other respiratory 

illnesses in miners. Consol, 8 FMSHRC at 898-99. The D.C. Circuit in Consol 

expressly rejected the argument that the presumption adopted by the Commission 

is invalid because of the Mine Act's graduated scheme of enforcement. 824 

F.2d at 1084-85. 

For the foregoing reasons, we reaffirm our holding in Consol that any 

concentration of respirable dust over 2.0 mg/m3 is presumptively S&S. 

B. Motion to Strike 

Shortly before oral argument, the Secretary wrote to the Gommission 

requesting that we take judicial notice of a report on coal workers' 

pneumoconiosis prepared by the National Institute for Occupational Safety and 

Health of the U.S. Department of Health and Human Services ("NIOSH"). See 

Oral Arg. Tr. 21-22. Twentymile moved to strike the proffered document. 

Oral Arg. Tr. 18. For the reasons set forth below, we grant Twentymile's 

motion. 

Section 113(d)(2)(C) of the Mine Act states, in relevant part, that the 

record on review consists of the "record upon which the decision of the 

administrative law judge was based .... " 30 U.S.C. § 823(d)(2)(C). This 

provision is consistent with section 113(d)(2)(A)(iii) of the Mine Act, which 

provides that "[e]xcept for good cause shown, no assignment of error by any 

party shall rely on any question of fact or law upon which the administrative 

law judge had not been afforded an opportunity to pass." 30 U.S. C. 

§ 823(d)(2)(A)(iii). The Commission has held that these provisions "evince 

the Congress' view that the adjudication process is best served if the 

administrative law judge is first given the opportunity to admit and examine 

all the evidence before making his decision." Climax Molybdenum Co., 1 FMSHRC 

1499, 1499-1500 (October 1979). These procedures are consistent with "settled 

principles of administrative and general law limiting the record on review to 

the record developed before the trier of fact." Union Oil Company of 

California, 11 FMSHRC 289, 301 (March 1989)(citation omitted). 

In addition, the Commission has held that: 

[Judicial] notice can be taken of the existence or 

truth of a fact or other extra-record information that 

is not the subject of testimony but is commonly known, 

or can safely be assumed, to be true. However, such 

notice cannot extend to the acceptance as fact of 

946 
scientific publications and studies, the truth of 

whose contents is the subject of reasonable dispute by 

the opposing parties. See McCormick on Evidence, 3rd 

Ed. §§ 329, 330 (pp. 923-927, 1028-1032); Fed. R. 

Evid. 201. 

Union Oil, 11 FMSHRC at 300 n.8. 

The conclusions of the report and its relevance to this proceeding are 

disputed by Twentymile. Oral Arg. Tr. 27-28. We conclude that it would be 

inappropriate for the Commission to take judicial notice of the NIOSH report 

in this case. Our holding is based solely on the stipulations agreed to by 

the parties before the judge. 

III. 

Conclusion 

For the foregoing reasons, the 

judge'~~:n i~ 

Arlene Holen, Chairman 

L. Clair Nelson, Commissioner 

947 
Distribution 

R. Henry Moore, Esq. 

Buchanan Ingersoll 

USX Tower, 57th Floor 

600 Grant Street 

Pittsburgh, PA 15219 

Colleen A. Geraghty,_ Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge Michael A. Lasher, Jr. 

Federal Mine Safety & Health Review Commission 

280 Federal Building 

1244 Speer Boulevard 

Denver, Colorado 80204 

948 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 22, 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ZEIGLER COAL COMPANY 

Docket No. LAKE 91-636 

BEFORE: Holen, Chairman; Backley, Doyle and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). At issue is 

whether Zeigler Coal Company ("Zeigler") violated 30 C.F.R. § 75.507 1 by 

allowing return air to course over non-permissible power connection points 

outby the last open crosscut and whether the violation was significant and 

substantial ("S&S"). Administrative Law Judge George A. Koutras concluded 

that Zeigler violated the standard and that the violation was S&S. 14 FMSHRC 

304 (February 1992)(ALJ). For the reasons that follow, we affirm the judge's 

finding of violation but remand for further consideration of whether the 

violation was S&S. 

I. 

Factual and Procedural Background 

On May 1, 1991, Inspectors Mark Eslinger and Richard Gates of the 

Department of Labor's Mine Safety and Health Administration ("MSHA") conducted 

an investigation on a petition for modification filed by Zeigler's Murdock 

Mine, an underground coal mine in Douglas County, Illinois. In the 1st Main 

West section, the inspectors observed that air that had ventilated the working 

1 Section 75.507 provides: 

Power connection points. Except where permissible power 

connection units are used, all power connection points 

outby the last open crosscut shall be in intake air .. 

949 
faces in the No. 1 and 2 entries was leaking past check curtains placed across 

the No. 3 entry and was flowing outby. 

The inspectors observed several golf carts, used for transport, in the 

No. 3 entry. They concluded that Zeigler had violated section 75.507 because 

return air was coursing outby the last open crosscut over the golf carts and 

other non-permissible equipment with power connection points. Accordingly, 

they cited Zeigler for a violation of section 75.507 and designated the 

violation S&S. 

Before the judge, the Secretary defined return air for purposes of 

section 75.507 as air that has been used to ventilate any working face or 

place in a coal-producing section. The judge found that definition reasonable 

and proper. 14 FMSHRC at 325. He found that the air coursing over the golf 

carts was return air because it had ventilated working faces. 14 FMSHRC at 

324-25. The judge concluded that the Secretary had established a violation of 

section 75.507. 14 FMSHRC at 325. He also found the violation to be S&S and 

assessed a civil penalty of $275. 14 FMSHRC at 327, 328. 

II. 

Disposition of Issues 

A. Whether Zeigler violated section 75.507 

In order to establish a violation of section 75.507, the Secretary was 

required to show that non-permissible power connection points outby the last 

open crosscut were not in intake air. It was undisputed that the carts were 

not "permissible" equipment, as that term is defined in section 318(i) of the 

Mine Act, 30 U.S.C. § 878(i), and that the carts contained "power connection 

points," as that term is used in the standard. It was also undisputed that 

they were outby the last open crosscut. If the cited non-permissible power 

connection points were in return air rather than in intake air, Zeigler was in 

violation of the standard. 

Zeigler argues that the air travelling outby the last open crosscut in 

the No. 3 entry was still intake air, and that the judge erred in finding that 

it was return air. Zeigler relies on the common definition of return air, 

which is air that has circulated through the active workings and has passed 

over the last working place on a section. See Bureau of Mines, U.S. Department of the Interior, Dictionary of Mining. Mineral. and Related Terms 919 

(1968). Zeigler contends that the judge erred in accepting the Secretary's 

position that, for the more specific purposes of section 75.507, intake air 

becomes return air once it has ventilated any working face or place. 2 

2 The regulations then in effect did not define return air. See 30 C.F.R. 

§ 75.2 (1991). Return air is defined in the current regulations to be: 

Air that has ventilated the last working place on 

any split of any working section or any worked-out area, 

whether pillared or nonpillared. If air mixes with air 

that has ventilated the last working place on any split 

(continued ... ) 

950 
We conclude that the Secretary's interpretation of "return air" is a 

proper construction of section 75.507 that effectuates its essential purpose. 

Section 75.507 is taken from the interim mandatory safety standard in section 

305(d) of the Mine Act, 30 U.S.C. § 865(d), which was carried over from 

section 305(d) of the Federal Coal Mine Health and Safety Act of 1969, 30 

U.S.C. § 801 et seq. (1976)(amended 1977)("Coal Act"). The Coal Act's 

legislative history indicates that the concern addressed by the standard was 

the "ever-present danger of suddenmethane buildup in the air current which 

could be ignited by arcing from the power connections." SeeS. Rep. No. 411, 

9lst Gong., 1st Sess. 69 (1969), reprinted in Senate Subcommittee on Labor, 

Committee on Labor and Public Welfare, 94th Gong., 1st Sess., Part I 

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

195 (1975). The Commission has recognized: "The purpose of [section 75.507] 

is to prevent methane gas explosions. In the presence of methane gas, a 

source of ignition, such as arcing from power connections, can cause an 

explosion." Eastover Mining Co., 4 FMSHRC 123 (February 1982). 

Air that passes any working face carries away methane and other 

contaminants that could present an ignition and explosion hazard if the air is 

coursed over non-permissible power connection points. The judge found 

credible Inspector Eslinger's testimony that air sweeping over any working 

face picks up coal dust, methane, and o~her mine gases, and that such 

contaminated air poses a potential explosion hazard if it seeps outby over 

non-permissible power connection points and equipment. 14 FMSHRC at 324; Tr. 

58; Dep. of Eslinger Tr. 19-20 (October 31, 1991). Eslinger emphasized that 

"the real seriousness here [i]s that the gas in the mine is generally produced 

in the working places and the gas that could be produced in these working 

faces could drift outby over [the] ... nonpermissible power points." Tr. 30. 

The judge also noted that Zeigler's safety director, David Stritzel, said that 

he would be concerned about air that has ventilated a working face passing 

over non-permissible power points. 14 FMSHRC at 324; Tr. 98, 102. 

Here, some of the air leaking past the No. 3 entry check curtains and 

coursing over the non-permissible power points had passed over the working 

2 ( ••• continued) 

of any working section or any worked-out area, whether 

pillared or nonpillared, it is considered return air. 

For the purposes of existing § 75.507-1, air that has 

been used to ventilate any working place in a coal 

producing section or pillared area, or air that has been 

used to ventilate any working face if such air is 

directed away from the immediate return is return air. 

30 C.F.R. § 75.301 Definitions (1992). These regulations became effective 

August 16, 1992, 57 Fed. Reg. 20868 (May 15, 1992). 

951 
faces of the No. 1 and 2 entries. Thus, for purposes of section 75.507, it is 

appropriate to regard that air as return air. 3 

Zeigler argues further that the Secretary changed his position as to the 

meaning of return air for purposes of section 75.507. 4 Zeigler asserts that 

from 1971 until 1988, MSHA defined return air for purposes of that section as 

air used to ventilate the last working face in a coal producing section. As 

early as 1983, however, MSHA had defined return air, for purposes of section 

75.507, as air that has ventilated any working face or working place. See IV 

MSHA, U.S. Dept. of Labor, Coal Mine Inspection Manual: Underground Electrical 

Inspections 22 (1983). In 1988, MSHA set forth in its Program Policy Manual 

the definition of return air presented in this proceeding, which is consistent 

with the earlier 1983 definition. V MSHA, U.S. Dept. of Labor, Program Policy 

Manual, Part 75, at 55 (1988). In any event, an agency interpretation is not 

necessarily "carved in stone" and, in general, an agency should "consider 

varying interpretations and the wisdom of its policy on a continuing basis." 

Chevron U.S.A .. Inc. v. Nat. Resources Def. Council, 467 U.S. 837, 863-64 

(1984). 

Accordingly, we uphold the Secretary's interpretation of the standard 

and affirm the judge's finding of violation. 

B. Whether the violation was significant and substantial 

Zeigler argues that the judge erred in concluding that the violation was 

S&S. Zeigler asserts that the judge's finding that there was a reasonable 

likelihood of a serious injury resulting from the violation is based on "mere 

possibilities" that are insufficient to sustain a finding of reasonable 

likelihood. PDR at 10. 

A violation is properly designated S&S "if, based upon the particular 

facts surrounding that 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 

3 Return air may have a different meaning for purposes of other standards. 

A term does not necessarily have the same meaning or serve the same purpose in 

every statutory or regulatory context. See, ~. Loc. U. 1261. UMWA v. FMSHRC, 

917 F.2d 42, 45 & n.8 (D.C. Cir. 1990). 

4 Zeigler also argues in its supplementary brief that it was not given fair 

warning of the change in the definition of return air in section 7 5. 507 and that, 

therefore, its due process rights were violated. Z. Br. at 2-3. Zeigler has not 

proffered any reason why this argument was not presented to the judge. Under the 

Mine Act, "[e]xcept for good cause shown, no assignment of error by any party 

shall rely on any question of fact or law upon which the administrative law judge 

had not been afforded an opportunity to pass." Section 113(d)(2)(iii) of the 

Mine Act, 30 U.S.C. § 823(d)(2)(iii); see also 29 C.F.R. § 2700.70(d). 

952 
(April 1981). 5 In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained: 

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. 

The first and second Mathies elements are established. We have 

concluded that Zeigler violated section 75.507 and it is undisputed that a 

safety hazard, an ignition that could result in an explosion, was present. 

The third element of the Mathies test "requires that the Secretary 

establish a reasonable likelihood that the hazard contributed to will result 

in an event in which there is an injury." U.S. Steel Mining Co. , 6 FMSHRC 

1834, 1836 (August 1984)(emphasis in original). 6 The Commission has 

recognized that, when examining whether an explosion or ignition is reasonably 

likely to occur, it is appropriate to consider whether a "confluence of 

factors" exists to create such a likelihood. Texasgulf. Inc., 10 FMSHRC 498, 

501 (April 1988); see also Eastern Assoc. Coal Corp., 13 FMSHRC 178, 184 

(February 1991). 

In addressing the third element, the judge concluded that "it was 

reasonably likely that an ignition resulting from the presence of 

nonpermissible electrical power connection points in contaminated return air 

would result in injuries of a reasonably serious nature." 14 FMSHRC at 327. 

The judge did not make a finding, however, as to the likelihood of an 

ignition. The reasonable likelihood of an ignition is the necessary 

precondition to the reasonable likelihood of an injury. See U.S. Steel 

Mining, 6 FMSHRC at 1836. 

The judge summarized the relevant testimony (14 FMSHRC at 326), but he 

did not analyze the confluence of factors necessary to establish a reasonable 

likelihood of an ignition (see 14 FMSHRC at 327). Eslinger testified that 

people "could drive" a golf cart into a "possible" explosive mixture of gas 

5 The S&S terminology is taken from section 104(d)(l) of the Mine Act, 30 

U.S.C. § 814(d)(l), which distinguishes as more serious in nature any violation 

that "could significantly and substantially contribute to the cause and effect 

of a ... mine safety or health hazard .... " 

6 The Secretary is not required to prove that the hazard contributed to 

will actually result in an injury causing event. Youghiogheny & Ohio Coal Co., 

9 FMSHRC 673, 678 (April 1987). 

953 
and ignite the methane. 14 FMSHRC at 326; Tr. 45. Eslinger also expressed 

concern that methane liberated in working places "could drift" over the golf 

carts and other non-permissible power points. 14 FMSHRC at 326; Tr. 30. 

Stritzel conceded "that there is always the possibility of a methane ignition, 

and that methane may be liberated at higher concentrations." 14 FMSHRC at 

327; ~ Tr. 102-03. Although this testimony is relevant to the reasonable 

likelihood of an ignition, statements that such events could occur, standing 

alone, do not support a finding that there was a reasonable likelihood of an 

ignition. Qf. Eastern Assoc. Coal, 13 FMSHRC at 184-85; Union Oil Co. of 

California, 11 FMSHRC 289, 298-99 (March 1989). The judge also restated but 

failed to resolve certain conflicting testimony. Eslinger was concerned that 

an ignition had occurred in the same area of the mine some two months prior to 

the citation. 14 FMSHRC at 326; Tr. 27. Stritzel testified that the 

conditions at the time of the prior ignition were different from those at the 

time of the inspection. 14 FMSHRC at 326; Tr. 93-94. Accordingly, we remand 

for further analysis of the third Mathies element. 

With regard to the fourth Mathies element, Zeigler contends that the 

Secretary introduced no evidence to suggest that any resultant injury would be 

reasonably serious in nature. The citation indicates that four miners would 

be affected by the violation and that the injury would be fatal. Ex. P-3. 

Eslinger testified that any potential accident would be fatal. Tr. 28. A 

methane ignition, by its nature, presents a danger of serious injury to 

miners. We conclude that substantial evidence supports the judge's conclusion 

that, if an ignition occurred, any resultant injury would be reasonably 

serious. 

954 
III. 

Conclusion 

For the foregoing reasons, we affirm the judge's conclusion that Zeigler 

violated section 75.507. We vacate his determination that the violation was 

S&S and remand for further findings and analysis on the existing record 

consistent with this opinion. 

Distribution: 

Gregory S. Keltner, Esq. 

Zeigler Coal Company 

50 Jerome Lane 

Fairview Heights, IL 62208 

Susan E. Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Arlene Holen, Chairman 

e~~,1,4A'~ Richard V. Backley, Commissioner ~ 

Administrative Law Judge George A. Koutras 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

955 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 22, 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. Docket No. SE 91-32 

S & H MINING, INC. 

BEFORE: Holen, Chairman; Backley, Doyle and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). The issue 

before the Commission is whether a violation by S&H Mining, Inc. ("S&H") of 30 

C.F.R. § 75.9021 was "significant and substantial" in nature ("S&S") and was 

caused by S&H's unwarrantable failure to comply with the safety standard. 

Commission Administrative Law Judge William Fauver concluded that the 

violation was S&S and was caused by S&H's unwarrantable failure. 14 FMSHRC 

887, 890 (May 1992)(ALJ). We granted S&H's petition for discretionary review 

of the judge's decision. For the reasons that follow, we affirm. 

I. 

Factual Background and Procedural History 

On May 14, 1990, Inspector Don McDaniel of the Department of Labor's 

Mine Safety and Health Administration ("MSHA") inspected S&H's Mine No. 7, an 

underground coal mine in Campbell County, Tennessee. McDaniel unintentionally 

stepped on the cable supplying electricity to the power center of the coal 

1 30 C.F.R. § 75.902 provides in part: 

[L]ow- and medium-voltage resistance grounded systems 

shall include a fail-safe ground check circuit to 

monitor continuously the grounding circuit to assure 

continuity which ground check circuit shall cause the 

circuit breaker to open when either the ground or pilot 

check wire is broken.... Cable couplers shall be 

constructed so that the ground check continuity 

conductor shall be broken first and the ground 

conductors shall be broken last when the coupler is 

being uncoupled. 

956 
feeder, pulling the cable coupler from the power center. McDaniel found that 

the locking device on the top of the cable coupler had been removed. Wedges 

had been placed under the coupler in an.attempt to hold it in place. McDaniel 

concluded that, without the locking device, the ground conductor could 

disconnect prior to the ground check continuity conductor, in violation of 

section 75.902. 

Inspector McDaniel discussed the violation with Dwight Lindsey, who had 

conducted S&H's preshift examination on the day of the inspection. According 

to McDaniel, Lindsey acknowledged that he knew, as a result of his preshift 

examination, that the locking device had been removed. Tr. 9-10, 17, 46. 

Lindsey also told McDaniel that he (Lindsey) had inserted the wedges under the 

cable coupler. Tr. 9-10, 17, 46. McDaniel issued a section 104(d)(l) order 

of withdrawal for S&H's alleged unwarrantable failure to comply with section 

75.902 and designated the violation as S&S. 

S&H contested the inspector's S&S designation and unwarrantable failure 

finding and a hearing was held before Judge Fauver. The judge concluded that 

the violation was S&S. He found that, but for McDaniel's inspection, the 

coupler would have remained in an unsafe condition for a substantial period. 

14 FMSHRC at 890. The judge also found that it was reasonably likely that 

this condition would result in operation of the feeder without ground fault 

protection, and that, in wet mining conditions, a miner working in the area 

would suffer an electric shock. Id. In addition, the judge determined that 

"continued mining could well result in arcing between the two conductors and 

could cause a mine fire or burn out the circuit breaker." Id. The judge 

concluded that the violation was the result of S&H's unwarrantable failure to 

comply with the standard. He found that Lindsey, knowing that the locking 

device had been removed, failed to report that condition in his preshift 

report, and attempted to bypass the safety lock by using wedges. He 

determined that Lindsey, as S&H's certified examiner, was S&H's agent. Id. 

The judge concluded that Lindsey's actions demonstrated aggravated conduct 

beyond ordinary negligence and were imputable to S&H. Id. 

II. 

Disposition of Issues 

A. Whether the violation was significant and substantial 

S&H argues that the judge erred in finding that there was a reasonable 

likelihood of injury as a result of the violation. S&H contends that there 

was no danger associated with the violation at the time it was discovered 

because the circuit breaker tripped when the cable coupler was pulled from the 

power center. S&H argues that the alleged hazards created by the violation 

were hypothetical and speculative. S&H submits that the judge's finding is 

not supported by substantial evidence and is contrary to Commission precedent. 

The Secretary argues that in determining whether a violation is S&S, the 

violation must be viewed not only as it was at the time of the citation, but 

also as it would be if it were to continue unabated. The Secretary argues 

that the violation would have continued unabated for at least several days 

957 
during which it was reasonably likely that an injury would occur. The 

Secretary contends that the judge's finding of S&S is supported by substantial 

evidence. 

The Commission has determined that a violation is S&S if, based on the 

particular facts surrounding the violation, there exists a reasonable 

likelihood that the hazard contributed to will result in an injury or illness 

of a reasonably serious nature. Cement Division. National Gypsum Co., 3 

FMSHRC 822, 825-26 (April 1981). 2 In Mathies Coal Co., 6 FMSHRC 1, 3-4 

(January 1984), the Commission explained: 

In order to esta~lish 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; (footnote omitted) (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 first and second Mathies elements are established. S&H concedes 

that it violated section 75.902. The violation created electric shock and 

fire hazards. With respect to the fourth Mathies element, S&H did not 

challenge that an injury resulting from the violation would be of a reasonably 

serious nature. 

The third element of the Mathies test, whether there was a reasonable 

likelihood that the hazard contributed to would result in an injury, is the 

issue in dispute. The Commission is bound by the terms of the Mine Act to 

apply the substantial evidence test when reviewing an administrative law 

judge's decision. 30 U.S.C. § 823(d)(2)(A)(ii)(I). The term "substantial 

evidence" means "such relevant evidence as a reasonable mind might accept as 

adequate to support [the judge's] conclusion." See, ~. Rochester & 

Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November 1989), quoting 

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). 

Inspector McDaniel testified that, because the top locking device was 

missing, the coupler would drop by its own weight and the ground wire would 

disengage. The power conductors, however, would not completely disengage 

because the locking device on the bottom of the coupler was still functioning. 

Tr. 13-15. He testified that, with the conductors engaged but the ground 

removed, there was "a high likelihood that someone could be electrocuted." 

Tr. 18. McDaniel also testified that the ground monitor was not a fail-safe 

2 The S&S terminology is taken from section l04(d)(l) of the Mine Act, 30 

U.S.C. § 814(d)(l), which distinguishes as more serious in nature any violation 

that "could significantly and substantially contribute to the cause and effect 

of a ... mine safety or health hazard .... " 

958 
system because a relay could malfunction, disabling the monitor without the 

operator's knowledge. Based on his experience, McDaniel believed that it was 

"highly likely" that a relay for the ground monitor would malfunction, if left 

for any length of time. Tr. 63-64. This position was confirmed by S&H's mine 

superintendent, Charles White, who testified that S&H has encountered 

situations where the ground monitor failed to break a circuit despite the fact 

that the ground wire was not functioning. Tr. 101, 104. McDaniel further 

testified and the judge found that, if the coupler were to partially detach 

from the power source while it was energized, arcing between the power 

conductors could cause a mine fire or burn out the circuit breaker. He 

characterized the cited condition as a "serious danger." Tr. 46. 

S&H's argument that there was no danger associated with the violation 

because the ground monitor worked correctly during the inspection and the 

circuit breaker tripped, shutting off the power, does not lead to a contrary 

result. The Commission has held that an "evaluation of the reasonable 

likelihood of an injury should be made in terms of continued normal mining 

operations." U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985) 

(citation omitted). Inspector McDaniel testified that it was "highly likely" 

that the ground monitor would fail at some time. Tr. 63-64. He had 16 years 

experience inspecting ground monitors for electrical systems in mines and the 

judge credited his testimony. After considering the record, including 

evidence that detracts from the judge's findings, we conclude that substantial 

evidence supports the judge's S&S finding. 

B. Whether the violation resulted from the operator's 

unwarrantable failure 

S&H argues that the judge erred in crediting McDaniel's testimony 

concerning Lindsey's knowledge of the violation. S&H contends that Lindsey 

never told McDaniel that he knew about the cited condition. S&H also argues 

that the judge erred in imputing Lindsey's knowledge to S&H's management. 

The Secretary argues that the judge found McDaniel's testimony credible, 

and that there is no compelling evidence to overturn the credibility 

determination. The Secretary further takes the position that knowledge of a 

preshift examiner can. be imputed to the operator. 

The Commission has determined that unwarrantable failure is aggravated 

conduct constituting more than ordinary negligence. EmeiY Mining Corporation, 

9 FMSHRC 1997, 2004 (December 1987); Youghiogheny & Ohio Coal Company, 

9 FMSHRC 2007, 2010 (December 1987). This determination was derived, in part, 

from the plain meaning of "unwarrantable" ("not justifiable" or "inexcusable"), "failure" ("neglect of an assigned, expected or appropriate 

action"), and "negligence" (the failure to use such care as~ reasonably 

prudent and careful person would use, characterized by "inadvertence," 

"thoughtlessness," and "inattention"). EmeiY, 9 FMSHRC at 2001. 

It is undisputed that Lindsey performed the preshift examination on the 

morning McDaniel found the violation. It is also undisputed that Lindsey did 

not report the hazardous condition in his preshift report. 

959 
Inspector McDaniel testified that Lindsey told him that he had found the 

locking device missing and had placed wedges under the coupler. Tr. 9-10, 17, 

46. McDaniel also saw the wedges. Tr. 9-10, 45-46. Lindsey did not testify 

at the hearing but the record does contain contrary testimony on this point 

from S&H President Smith and from Tommy McCoo, Lindsey's supervisor. 3 The 

judge credited McDaniel. Credibility determinations are within the discretion 

of the judge who heard the witnesses' testimony and observed their demeanor. 

BethEnergy Mines. Inc., 14 FMSHRC 1232, 1239 (August 1992) and cases cited. 

The Commission has held that a judge's credibility determinations cannot be 

overturned lightly. See,~. Ranger Fuel Corp., 12 FMSHRC 363, 374 (March 

1990); Smith v. Kem Coal Company, 12 FMSHRC 67, 71-72 (January 1992) and cases 

cited. The record contains no compelling evidence to support a reversal of 

the judge's credibility determination. 

We reject S&H's assertion that the judge erred in imputing Lindsey's 

knowledge to S&H. Under Commission case law, a lack of actual knowledge by 

management does not bar a finding of unwarrantable failure. Eastern 

Associated Coal Corp., 13 FMSHRC 178, 187 (February 1991). Smith conceded 

that Lindsey was designated by S&H to conduct the preshift examination and 

that Lindsey was S&H's agent. Lindsey's conduct was therefore properly 

imputed to S&H. See Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194-98 

(February 1991); Mettiki Coal Corporation, 13 FMSHRC 769, 772 (May 1991). 

We conclude that substantial evidence supports the judge's conclusion 

that the actions and knowledge of Lindsey, S&H's preshift examiner, 

constituted aggravated conduct imputable to S&H. Thus, we affirm the judge's 

finding that the violation was caused by S&H's unwarrantable failure to comply 

with the safety standard. 

3 Smith testified that Lindsey denied telling McDaniel that he knew about 

the violation. Tr. 76. McCoo confirmed Lindsey's denial to Smith and testified 

that, although he (McCoo) was in the general area with McDaniel and Lindsey, he 

did not hear Lindsey make the disputed statement. Tr. 108-11, 114-15. 

960 
III. 

Conclusion 

For the foregoing reasons, we affirm the judge's finding that S&H's 

violation of 30 C.F.R. § 75.902 was significant and substantial and was a 

result of S&H's unwarrantable failure. 

Distribution: 

Imogene A. King, Esq. 

Frantz, HcConnell & Seymour 

P.O. Box 39 

Knoxville, TN 37901 

Tina Gorman, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Arlene Holen, Chairman 

L. Clair Nelson, Commissioner 

Administrative Law Judge l.J"illiam Fauver 

Federal Hine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

961 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ISLAND CREEK COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 23, 1993 

Docket No. KENT 92-625 

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On May 4, 

1993, Commission Administrative Law Judge Gary Melick issued a Decision 

Approving Settlement granting a joint settlement motion filed by the Secretary 

of Labor and Island Creek Coal Company ("Island Creek"). Among the matters 

settled was Order of Withdrawal No. 3548444 (the "order") issued to Island 

Creek pursuant to section 104(d)(2) of the Mine Act. 30 U.S.C. § 814(d)(2). 

The parties stated in the motion that Island Creek had agreed to withdraw its 

contest of the order and pay the $1,800 penalty proposed by the Secretary. 

On June 7, 1993, the parties filed with Judge Melick a joint motion to 

vacate his Decision Approving Settlement of the order. The motion states that 

the order was included in two civil penalty proceedings, the present case and 

KENT 92-1032. The parties assert that Island Creek previously agreed ·to 

withdraw its contest in this proceeding because it mistakenly believed that it 

had lost documents important to its defense. During settlement discussions of 

KENT 92-1032, Island Creek discovered that the subject withdrawal order was 

also included in that case and that the missing documents were in its files 

for that case. The parties ask the judge to vacate the Decision Approving 

Settlement to afford Island Creek an opportunity to contest the order.* 

* In their joint motion, the parties assert incorrectly that the withdrawal 

order was included in two separate dockets because of a "clerical error on the 

part of the Review Commission's docketing office." J. Motion to Vacate Dec., at 

2. The Department of Labor's Mine Safety and Health Administration determines 

which citations and orders are included in each civil penalty case and the 

Commission assigns docket numbers to cases as filed by the Secretary. 

962 
The judge's jurisdiction in this proceeding terminated when his Decision 

Approving Settlement was issued on May 4, 1993. 29 C.F.R. § 2700.69(b). 

Under the Mine Act and the Commission's procedural rules, relief from a 

judge's decision may be sought by filing a petition for discretionary review 

with the Commission within 30 days of the decision. 30 U.S.C. 

§ 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). Neither party filed a petition for 

discretionary review within the 30-day period. Thus, under the Mine Act, the 

judge's decision became a final decision of the Commission 40 days after its 

issuance. 30 U.S.C. § 823(d)(l). Under these circumstances, we deem the 

joint motion to be a request for relief from a final Commission decision 

incorporating a late-filed petition for discretionary review. See Grefco. 

Inc., 14 FMSHRC 56 (January 1992). 

Using Fed. R. Civ. P. 60(b)(l) & (6) for guidance, the Commission has 

afforded relief from final judgments on the basis of inadvertence, mistake, 

surprise, excusable neglect, and other reasons justifying relief. 29 C.F.R. 

§ 2700.l(b); ~. ~. Klamath Pacific Corp. 14 FMSHRC 535 (April 1992). The 

Joint Motion to Vacate suggests that the parties may have settled this 

proceeding by mistake. 

Accordingly, we conclude that this matter should be reopened and 

remanded in order to afford the parties the opportunity to present their 

position to the judge, who shall determine whether final relief from the 

Decision Approving Settlement is warranted. 

For the reasons set forth above, we reopen this proceeding, vacate that 

part of the judge's decision that approved settlement of Order No. 3548444 and 

remand this matter for further proceedings. 

Arlene Holen, Chairman 

~// •Richard V. Backley, Commissione~ 

L. Clair Nelson, Commissioner 

963 
Distribution 

Anne T. Knauff, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

2002 Richard Jones Rd. 

Suite B-201 

Nashville, TN 37215 

Marshall S. Peace, Esq. 

Island Creek Coal Company 

201 l~. Vine St. 

Lexington, KY 40575 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Connnission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

964 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

KIAH CREEK MINING COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 23, 1993 

Docket No. KENT 92-964 

BEFORE: Holen, Chairman; Backley, Doyle and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et. seq. (1988)("Mine Act"). On June 1, 

1993, Chief Administrative Law Judge Paul Merlin issued an Order of Default to 

Kiah Creek Mining Co. ("Kiah Creek") for failing to answer the proposal for 

assessment of civil penalty filed by the Secretary of Labor or the judge's 

March 23, 1993, Order to Show Cause. The judge assessed the civil penalty of 

$94 proposed by the Secretary. For the reasons that follow, we vacate the 

default order and remand this case for further proceedings. 

On June 7, 1993, the Commission received a letter addressed to Judge 

Merlin from Kiah Creek's mine manager, Mike Gipson, requesting 

reconsideration. Enclosed documents include: (1) a notice of appearance form 

dated November 27, 1992; (2) a letter dated November 27, 1992, from Gipson to 

the Commission's executive director, requesting reduction of the proposed 

civil penalty; (3) a letter dated March 30, 1993, to the Department of Labor's 

Regional Solicitor's Office in Nashville, in which Gipson refers to the 

judge's show cause order and encloses a copy of Kiah Creek's notice of 

appearance; and (4) a return receipt indicating delivery of a document from 

Kiah Creek to the regional solicitor's office on April l, 1993. 

The judge's jurisdiction over this case terminated when his decision was 

issued on June 1, 1993. 29 C.F.R. § 2700.69(b). Under the Mine Act and the 

Commission's procedural rules, relief from a judge's decision may be sought by 

filing a petition for discretionary review with the Commission within 30 days 

after its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). We deem 

Kiah Creek's June 7 letter to be a timely filed Petition for Discretionary 

Review, which we grant. See,~. Middle States Resources. Inc., 10 FMSHRC 

1130 (September 1988). On the basis of the present record, we are unable to 

evaluate the merits of Kiah Creek's position. In the interest of justice, we 

remand this matter to the judge, who shall determine whether default is 

965 
warranted. See Hickory Coal Co., 12 FMSHRC 1201, 1202 (June 1990). 

For the reasons set forth above, we vacate the judge's default order and 

remand this matter for further proceedings. 

Distribution 

Mike Gipson, Mine Manager 

Kiah Creek Mining Company 

P.O. Box 1409 

Pikeville, KY 41502 

Mary Sue Taylor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

2002 Richard Jones Rd. 

Suite B-201 

Nashville, TN 37215 

Arlene Holen, Chairman 

~~ Richard V. Backley, Commissioner 

L. Clair Nelson, Commissioner 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

966 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

COUGAR COAL COMPANY, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 23, 1993 

Docket No. KENT 92-878 

BEFORE: Holen, Chairman; Backley, Doyle and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On May 20, 

1993, Chief Administrative Law Judge Paul Merlin issued an Order of Default to 

Cougar Coal Company, Inc. ("Cougar") for failing to answer the August 28, 

1992, notice of proposed civil penalty filed by the Secretary of Labor or the 

judge's February 22, 1993, Order to Show Cause. 1 The judge assessed the 

civil penalty of $1,008 proposed by the Secretary. For the reasons that 

follow, we vacate the default order and remand this case for further 

proceedings. 

On June 1, 1993, the Commission received a copy of a letter from Cougar 

dated September 8, 1992, disputing, inter alia, the Secretary's proposed civil 

penalty. While this letter appears to be an answer to the Secretary's 

proposal for assessment of civil penalty, it was forwarded to the Commission 

without explanation or assertion that it had been previously sent to either 

the Commission or the Secretary of Labor. 

The judge's jurisdiction over this case terminated when his decision was 

issued on May 20, 1993. 29 C.F.R. § 2700.69(b). Under the Mine Act and the 

Commission's Procedural Rules, relief from a judge's decision may be sought by 

filing a petition for discretionary review with the Commission within 30 days 

after its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). We deem 

Cougar's letter to be a timely filed petition for discretionary review, which 

we grant. See,~. Middle States Resources. Inc., 10 FMSHRC 1130 (September 

1988). 

1 As noted by the judge in his Order of Default, the file contains a signed 

return receipt for the Order to Show Cause. 

967 
On the basis of the present record, we are unable to evaluate the merits 

of Cougar's position. In the interest of justice, we remand this matter to 

the judge, who shall determine whether default is warranted. See Hickory Coal 

Co., 12 FMSHRC 1201, 1202 (June 1990). 

For the reasons set forth above, we vacate the judge's default order and 

remand this matter for further proceedings consistent with this order. 

Distribution 

Larry Mills, Safety Director 

Cougar Coal Company 

P.O. Box 301 

Warfield, KY 41267 

Mary Sue Taylor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

2002 Richard Jones Rd. 

Suite B-201 

Nashville, TN 37215 

~~~ Richard V. Backley, Commissioner 

L. Clair Nelson, Commissioner 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

968 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

PITTSBURG & MIDWAY COAL 

MINING COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 24, 1993 

Docket No. SPECIAL 92-02 

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

In this proceedi~g arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Pittsburg & 

Midway Coal Mining Company ("P&M") filed with the Commission a Notice of 

Contest and Motion for Partial Relief from Final Order, seeking to reopen 

certain uncontested civil penalty assessments in which P&M had paid in full 

penalties proposed by the Secretary of Labor. As the basis for its motion, 

P&M cites Rule 60(b), Federal Rules of Civil Procedure ("Rule 60(b)"), and 

principles of equity. 

P&M contends that the penalties in dispute were invalidly augmented on 

the basis of the interim "excessive history" program set forth in the 

Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"), 

which the Commission concluded in Drummond Co,, 14 FMSHRC 661, 692 (May 1992), 

and related cases, could be accorded no legal weight or effect. P&M seeks 

refunds of those portions of paid penalties attributable to augmentations 

under the PPL. 

This case is ~ne of 19 special proceedings in which notices of contest 

and motions for relief from final orders were filed by mine operators. All of 

these cases raise identical issues. For the reasons fully set forth in Jim 

Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that thP 

Commission possesses jurisdiction to reopen final orders, including orders in 

which uncontested penalties were paid, but conclude that P&M's request does 

not meet the requisite criteria under Rule 60(b) or principles of equity for 

the grant of such relief. Accordingly, we deny P&M's motion to reopen and we 

dismiss this proceeding. 

969 
In JWR, we held that a final order of the Commission may be reopened by 

the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC 

at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C. 

§ 815(a), which provides, in part, that an uncontested proposed penalty "shall 

be deemed a final order of the Commission and not subject to review by any 

court or agency," does not bar the Commission from granting Rule 60(b)-type 

relief in appropriate circumstances. 15 FMSHRC at 787-88. 

P&M has invoked Rule 60(b)(3), alleging misrepresentation by the 

Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that 

the requested relief would serve the ends of justice. Motions to reopen under 

Rule 60(b) are committed to the sound discretion of the judicial tribunal in 

which relief is sought. 15 FMSHRC at 789(citations omitted). For the reasons 

set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this 

case; 15 FMSHRC at 789-91. In JWR, the Commission explained that, in a Rule 

60(b)(3) motion, misrepresentation must be shown by clear and convincing 

evidence. 15 FMSHRC at 789. The Commission determined that, because the 

Secretary's notifications of the proposed penalties stated that the penalties 

were augmented by the excessive history program, the operator failed to 

establish misrepresentation by the Secretary. 15 FMSHRC at 789-90. 

The Commission also concluded that, although Rule 60(b)(6) provides for 

relief for "any other reason justifying relief," it cannot be used to relieve 

a party from the duty to take legal action to protect its interests. 15 FMSHRC 

at 790. We held that, under the Mine Act, a mine operator is required to make 

deliberate litigation choices and that failure to contest proposed penalties 

is at the operator's peril. Id. Finally, the Commission concluded that the 

operator was not entitled to equitable relief because the Commission is not a 

court of general equity and the operator was less than vigilant in protecting 

its rights. Id. 

970 
Accordingly, for the reasons expressed in JWR, we conclude that P&M 

failed to clearly and convincingly demonstrate justification for Rule 60(b)(3) 

or (b)(6) relief or for general equitable relief. 

As in JWR, we urge the Secretary to evaluate further the legality and 

feasibility of providing the refunds sought by P&M. See 15 FMSHRC at 791-92. 

Arlene Holen, Chairman 

~<:c:~L_/ Richard V. Backley, Commissioner V 

Distribution 

Ray D. Gardner, Esq. 

Pittsburg & Midway Coal Mining Co. 

6400 South Giddler's Green Circle 

Englewood, Colorado 80111 

Susan E. Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

James A. Lastowka, Esq. 

McDermott, Will & Emory 

1850 K Street, N.W. 

Washington, D.C. 20006 

Henry Chajet, Esq. 

L. Poe Leggette, Esq. 

Jackson & Kelly 

2401 Pennsylvania Ave., N.W. 

Suite 400 

Washington, D.C. 20037 

L. Clair Nelson, Commissioner 

971 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 24, 1993 

LONNIE ROSS and CHARLES GILBERT 

v. 

SHAMROCK COAL COMPANY, INC. 

Docket Nos. KENT 91-76-D 

KENT 91- 77 - D 

BEFORE: Holen, Chairman; Backley, Doyle and Nelson, Commissioners 

DECISION 

BY: Holen, Chairman; Doyle and Nelson, Commissioners 

In these consolidated discrimination proceedings, brought under the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988) 

("Mine Act" or "Act"), Shamrock Coal Company ("Shamrock") has sought review of 

Administrative Law Judge William Fauver's decisions sustaining Lonnie Ross's 

and Charles Gilbert's discrimination complaints and awarding them damages. 13 

FMSHRC 1475 (September 199l)(ALJ); 14 FMSHRC 229 (January 1992)(ALJ). The 

issues raised in Shamrock's petition for discretionary review are whether the 

judge erred in: (1) determining that Shamrock failed to establish an 

affirmative defense; (2) calculating complainants' gross backpay and interest 

awards; (3) failing to deduct unemployment compensation from these backpay 

awards; and (4) awarding reimbursement of tax penalties sustained by 

complainants as a result of early withdrawal of funds from their profitsharing accounts. 1 The Commission granted the petition and heard oral 

argument. 

For the reasons set forth below, we affirm the judge's determination 

that Shamrock failed to establish an affirmative defense. We also summarily 

affirm his determination of lost wages and his award reimbursing complainants 

for the tax penalties. We remand for clarification and, if appropriate, 

recalculation of the judge's interest awards. Finally, we reverse the judge's 

determination that unemployment compensation should not be deducted from the 

backpay awards and remand for recalculation of those awards. 

1 In its brief on review, Shamrock addresses issues other than those raised 

in its petition for discretionary review. We consider only the issues raised in 

Shamrock's petition. 30 U,S.C. §§ 823(d)(2)(A)(iii), (B) & (C); 29 C.F.R. § 

2700.70(f)(l993). 

9 72 
I. 

Factual and Procedural Background 

Shamrock operates the Greasy Creek No. 10 mine, an underground coal mine 

in Kentucky. Ross, Gilbert, and Mike Europa worked on a third shift 

maintenance crew that prepared a section for coal production on the following 

shift. Ross was the crew leader. 

In carrying out their duties, Ross and Gilbert, who were not certified 

electricians, regularly performed electrical work without supervision. 

13 FMSHRC at 1476. They complained about such work to their crew foremen, 

without result. 13 FMSHRC at 1477. In 1989, the mine began two ten-hour 

production shifts, leaving only four hours during non-production time for the 

maintenance crew to perform work previously requiring eight hours. Id. Ross 

and Gilbert complained to Foreman Ralph Bowling and to Mine Superintendent Don 

Smith about having too much work to do in the allotted time and requested 

assistance. Id. Bowling and Smith did not address their complaints. Id. 

On July 18, 1990, before an inspection by the Department of Labor's Mine 

Safety and Health Administration ("MSHA"), Smith asked Ross to countersign a 

foreman's name to a preshift report. 13 FMSHRC at 1477. When Ross refused, 

Smith became angry and signed the foreman's name himself. Id. When Europa 

was on vacation, Bowling refused Ross and Gilbert's request for a replacement, 

stating that Ross would have to perform Europa's duties in addition to his 

own. 13 FMSHRC at 1478. 

On July 26, 1990, Ross, Gilbert, and Dwayne Woods, a trainee, were 

required to move a power center, which involved moving three electrical 

cables. At approximately 6:00a.m., Ross and Gilbert still had to move two 

cables, hook up the power center and connect the cables to make the section 

ready for the day shift at 7:00 a.m. 13 FMSHRC at 1478. Ross decided to move 

the cable by using a scoop. Id. Following Ross's orders, Gilbert helped Ross 

place the cable under the scoop's batteries and positioned the scoop's 

hydraulic jacks in an attempt to keep the weight of the batteries off the 

cable. 13 FMSHRC at 1478-79. Gilbert then drove the scoop. 13 FMSHRC at 

1479. 

Miners on the day shift discovered that one of the cables had been 

damaged. 13 FMSHRC at 1479. A mechanic quickly repaired the cable and no 

lost work time resulted. Tr. 630-31. When Smith heard about the incident, he 

ordered Bowling to determine what had occurred and, if the cables had been 

moved under scoop batteries, to fire the person responsible. 13 FMSHRC at 

1479. 

Upon questioning by Bowling on July 31, 1990, Gilbert admitted that he 

had moved the cables under the scoop batteries. 13 FMSHRC at 1479; Tr. 33-34. 

Bowling told Gilbert that he was fired. 13 FMSHRC at 1479. After Gilbert 

reported that Ross had told him to use the scoop batteries, Ross was 

questioned and stated that he would take the blame. 13 FMSHRC at 1479-80. 

9 73 
Following a private discussion between Smith and Bowling, Ross and 

Gilbert were given a two-week suspension without pay, instead of termination. 

13 FMSHRC at 1480. Ross accepted the two-week suspension, but Gilbert stated 

that he did not believe that he should be suspended for two weeks and that he 

was "tired of getting jumped on ... by every boss ... and having to work like 

a dog and not having time to do [his] job .... " 13 FMSHRC at 1480; Tr. 36. 

Gilbert stated that, if he had accumulated enough time that year to qualify 

for profit-sharing, the company could fire him. 13 FMSHRC at 1480. It was 

then determined that Gilbert had accrued enough time, but Bowling told Smith 

and Gilbert that the company could not fire one without firing the other. Id. 

Gilbert said that he would accept the two-week suspension because he did not 

want Ross to lose his job. Id. Smith became angry and told Bowling to fire 

both of them. 13 FMSHRC at 1480, 1487. Bowling did so. Ross and Gilbert 

subsequently withdrew the funds from their profit-sharing accounts. 

Ross and Gilbert filed discrimination complaints with MSHA, pursuant to 

section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2), alleging that they had 

been discriminatorily discharged. MSHA investigated the complaints and 

determined that no discrimination had occurred. Ross and Gilbert then filed 

their own complaints with the Commission, pursuant to section 105(c)(3) of the 

Act, 30 U.S.C. § 815(c)(3), and the matter was heard by Judge Fauver. 

The judge determined that Ross and Gilbert established prima facie cases 

of discrimination. 13 FMSHRC at 1487. The judge found that their complaints 

regarding electrical work and not having enough time or assistance to perform 

their jobs, Ross's refusal to falsify the preshift examination report, and 

Gilbert's complaints on July 31 about excessive work pressures, constituted 

protected activities under the Act. 13 FMSHRC at 1484-86. He also found that 

Smith had developed an animus towards complainants because of their protected 

activities. 13 FMSHRC at 1487. The judge determined that their terminations 

were motivated, at least in part, by their protected activities, and that 

Shamrock failed to establish an affirmative defense to the complainants' prima 

facie case. 13 FMSHRC at 1486-88. Accordingly, the judge concluded that they 

had been discriminated against in violation of the Mine Act. He ordered Ross 

and Gilbert reinstated and awarded them monetary damages. 

II. 

Disposition of Issues 

A. Affirmative Defense 

On review, Shamrock does not challenge the judge's determination that 

the complainants established a prima facie case of discrimination. Shamrock 

argues that the judge erred in finding that it had not affirmatively defended 

and that Ross and Gilbert would have been discharged for their unprotected 

activity alone, i.e., for moving the cables under the scoop batteries. 

Shamrock contends that the judge ignored or overlooked evidence that other 

employees had been terminated for engaging in the same or similar conduct, 

that Ross and Gilbert had been warned not to place cables under scoop 

batteries, and that their conduct violated company policy. 

9 74 
The general principles for analyzing a discrimination case under the 

Mine Act are well settled. A miner alleging discrimination establishes a 

prima facie case of prohibited discrimination by proving that he engaged in 

protected activity and that 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, 2797-800 (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. Pasula, 2 FMSHRC at 2799-800. 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 and would have taken the adverse action for the 

unprotected activity alone. Pasula, 2 FMSHRC at 2800; Robinette, 3 FMSHRC at 

817-18. 

Having found that Smith's decision to discharge Ross and Gilbert was 

"motivationally connected with their substantial protected activities," the 

judge evaluated whether the complainants would have been discharged, even if 

they had not engaged in protected activities, for the cable incident alone. 

He concluded that they would not have been discharged. 13 FMSHRC at 1487-88. 

As the Commission noted in Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 

(June 1982), an operator may attempt to prove it would have disciplined a 

miner for unprotected activity alone by showing prior consistent discipline 

for similar infractions, the miner's unsatisfactory work record, prior 

warnings to the miner, and rules or practices prohibiting the conduct at 

issue. Here, there is no evidence that Shamrock had a consistent practice of 

disciplining miners for damaging electrical cable. Although one miner had 

been fired for negligently damaging a cable, another had not. Tr. 155, 252-

53, 336. A third miner had been fired only after repeatedly damaging cable. 

Tr. 334-35. The judge discredited Smith's testimony that he did not know who 

had damaged the cable when he ordered Bowling to fire whoever was responsible; 

substantial evidence supports this finding. 13 FMSHRC at 1488; Tr. 146, 

204-05, 513-14, 646-47. 

As to the miners' work histories, the judge found that Bowling had 

promoted Ross two weeks before his termination and, at that time, stated that 

Ross was one of his best workers. 13 FMSHRC at 1477. Bowling testified that 

at the time of Ross's promotion, he felt that he would rather have Ross than 

any two other employees. Tr. 439. Ross and Gilbert were considered good 

employees, and neither had received any written reprimands during the nine 

years each had been employed by Shamrock. Tr. 249, 286, 315, 439. 

Although the judge made no specific findings as to whether Ross and 

Gilbert had been warned not to move cables under scoop batteries, he found 

that they both knew that this was not a good or accepted practice. 13 FMSHRC 

at 1479. The judge also found, however, that Ross had seen foremen move cable 

under scoop batteries when they were hurried, as Ross and Gilbert were. Id. 

In addition, the judge found that Gilbert had engaged in the conduct at issue 

because he was following the orders of his crew leader, Ross, and that there 

9 75 
was no precedent at the mine for suspending or discharging a miner under such 

circumstances. 13 FMSHRC at 1479, 1488 n.4. Indeed, Smith acknowledged that 

Shamrock had initially offered Gilbert reinstatement after it learned that 

Gilbert had been following Ross's orders. Tr. 394. 

Thus, contrary to Shamrock's assertions, the judge did not ignore 

evidence pertinent to Shamrock's affirmative defense. Applying the factors 

set forth in Bradley, we conclude that substantial evidence supports the 

judge's finding that Shamrock failed to establish an affirmative defense. 

Accordingly, we affirm the judge's conclusion that the discharges violated the 

Mine Act. 

B. Gross backpay and interest 

Shamrock argues that the judge miscalculated complainants' gross backpay 

and the interest thereon. Gross backpay is the sum a miner would have earned 

but for the discrimination, less his net interim earnings. Gross backpay 

encompasses not only wages, but also any accompanying fringe benefits, 

payments, or contributions constituting integral parts of an employer's 

overall wage-benefit package. See, ~. Secretary on behalf of Dunmire & 

Estle v. Northern Coal Co., 4 FMSHRC 126, 142 (February 1982). The judge 

calculated Ross's and Gilbert's gross backpay by considering their hourly rate 

of pay, regular and overtime hours they averaged each week, and their usual 

bonuses. 14 FMSHRC at 229-30. Shamrock has offered no specific explanation 

of the asserted miscalculations nor has it set forth the basis of the 

alternative figures that it submits. We decline to overturn the judge's gross 

backpay determinations on the basis of Shamrock's unsupported assertion. 

Accordingly, we summarily affirm the judge's determinations of gross backpay. 

In Lac. U. 2274. UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493, 1504-05 

(November 1988), the Commission abandoned use of the adjusted prime rate, 

originally adopted in Secretary on behalf of Bailey v. Arkansas-Carbona Co., 

5 FMSHRC 2042, 2050-54 (December 1983), and announced that the short-term 

federal rate applicable to the underpayment of taxes would be used in 

calculating interest on backpay. The judge did not indicate in his 

supplemental decision the manner in which he calculated interest on Ross's and 

Gilbert's backpay awards but, in his decision on the merits, he cited 

Arkansas-Carbona and instructed the parties to attempt to stipulate the amount 

of interest due at the "IRS adjusted prime rate for each quarter." 13 FMSHRC 

at 1489 n.5. We remand the interest awards to the judge for clarification. 

If the judge applied the short-term federal rate applicable to the 

underpayment of taxes in accord with Clinchfield, we affirm the interest 

awards. If not, the judge should recalculate the interest awards. 

C. Unemployment Compensation 

Shamrock argues that the judge erred as a matter of law in not deducting 

complainants' unemployment compensation from gross backpay. The Commission 

recently decided in Clifford Meek v. Essroc Corp., 15 FMSHRC 606, 616-18 

(April 1993), that, as a matter of agency policy, unemployment compensation, 

like interim earnings, should be deducted in determining backpay awards. 

Accordingly, we remand this matter to the judge so that he may determine 

976 
complainants' unemployment compensation benefits and deduct those amounts in 

determining their backpay awards. 

D. Tax Penalties 

The judge found that financial constraints resulting from their wrongful 

discharges caused Ross and Gilbert to withdraw funds from their profit-sharing 

accounts, and ordered Shamrock to reimburse them for the tax penalties 

resulting from early withdrawal. 14 FMSHRC at 230. Shamrock argues that the 

judge erred as a matter of law in so compensating Ross and Gilbert. Whether 

reimbursement for tax penalties should be included in backpay awards is an 

issue of first impression before the Commission and one committed to the 

Commission's discretion. Shamrock has failed, however, to advance any 

supporting argument upon which the judge's determination should be disturbed. 

Accordingly, without implying how we might rule on this issue in the future, 

we affirm the judge's award of tax penalties to Ross and Gilbert. 

III. 

Conclusion 

For the reasons discussed above, we affirm the judge's conclusion that 

Shamrock failed to establish an affirmative defense. We also summarily affirm 

the judge's determination of gross backpay and his award of the tax penalties. 

We remand the interest awards to the judge for clarification and, if 

appropriate, recalculation. We reverse the judge's determination that 

unemployment compensation received by Ross and Gilbert should not be deducted 

when determining their backpay awards and remand for recalculation of the 

awards. 

Arlene Holen, Chairman 

. Doyle, Commissio 

L. Clair Nelson, Commissioner 

977 
Commissioner Backley, concurring in part and dissenting in part: 

I concur with the majority's decision on all issues except for the 

majority's holding regarding unemployment compensation. For the reasons set 

forth in my dissent in Clifford Meek v. Essroc Corp., 15 FMSHRC 606, 621-26 

(April 1993), I would affirm the judge's determination to not deduct 

unemployment compensation received from the backpay awards. 

Distribution 

Phyllis L. Robinson 

Attorney at Law 

P.O. Box 952 

Hyden, KY 41749 

Tony Oppegard, Esq. 

Mine Safety Project of the 

Appalachian Research & Defense Fund 

630 Maxwelton Court 

Lexington, KY 40508 

Neville Smith, Esq. 

Timothy \.Jells, Esq. 

Smith & Smith 

P.O. Box 447 

Mancester, KY 40962 

Administrative Law Judge William Fauver 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite lGOO 

Falls Church, VA 22041 

978 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

LYNX COAL COMPANY, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 29, 1993 

Docket No. KENT 92-776 

BEFORE: Holen, Chairman; Backley, Doyle and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On May 20, 

1993, Chief Administrative Law Judge Paul Merlin issued an Order of Default to 

Lynx Coal Company, Inc. ("Lynx") for failing to answer the August 17, 1992, 

notice of proposed civil penalty filed by the Secretary of Labor and the 

judge's Order to Show Cause of February 4, 1993. 1 The judge assessed the 

civil penalty of $5,500 proposed by the Secretary. For the reasons that 

follow, we vacate the default order and remand this case for further 

proceedings. 

On June 7, 1993, the Commission received a copy of a letter from Lynx, 

dated February 19, 1993, addressed to an attorney in the Office of the 

Regional Solicitor of the Department of Labor, Nashville, Tennessee. The 

letter questions the Secretary's proposed civil penalty and may have been 

intended to answer the Secretary's proposal for assessment of civil penalty. 

The letter was forwarded to the Commission without explanation. 

The judge's jurisdiction over this case terminated when his decision was 

issued on May 20, 1993. 29 C.F.R. § 2700.69(b). Under the Mine Act and the 

Commission's Procedural Rules, relief from a judge's decision may be sought by 

filing a petition for discretionary review with the Commission within 30 days 

after its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). We deem 

Lynx's letter to be a timely filed petition for discretionary review, which we 

grant. See, ~. Middle States Resources. Inc., 10 FMSHRC 1130 (September 

1988). 

1 As noted by the judge in his Order of Default, the file contains a signed 

return receipt for the Order to Show Cause. 

979 
On the basis of the present record, we are unable to evaluate the merits 

of Lynx's position. In the interest of justice, we remand this matter to the 

judge, who shall determine whether default is warranted. See Hickory Coal 

Co., 12 FMSHRC 1201, 1202 (June 1990). 

Distribution 

Hr. Larry Mills 

Lynx Coal Company 

Box 301 

Warfield, KY 41267 

Mary Sue Taylor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

2002 Richard Jones Rd. 

Suite B-201 

Nashville, TN 37215 

Arlene Holen, Chairman 

L. Clair Nelson, Commissioner 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

980 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

BETHENERGY MINES, INC. 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 2.9, 1993 

Docket Nos. PENN 89-277-R 

PENN 89-278-R 

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This contest proceeding arises under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seq. (1988)(nMine Actn or nActn), and raises 

the question of whether BethEnergy Mines, Inc. (nBethEnergyn) violated a 

notice to provide safeguards applicable to its belt conveyors. The safeguard 

notice was issued by an authorized representative of the Secretary of Labor 

pursuant to 30 C.F.R. § 75.1403 and was based upon the safeguard criterion set 

forth at 30 C.F.R. § 75.1403-5(g). 1 In an earlier decision, BethEnergy 

Mines. Inc., 14 FMSHRC 17 (January 1992)(nBethEnergy In), the Commission 

vacated Administrative Law Judge William Fauver's determination that the 

safeguard was valid as well as his affirmance of the two citations alleging 

violations of the safeguard, and remanded to the judge for reconsideration 

pursuant to the principles discussed by the Commission in its opinion and in 

Southern Ohio Coal Co., 14 FMSHRC 1 (January 1992)(nsocco lin), one of four 

1 30 C.F.R. § 75.1403 has language identical to section 314(b) of the Mine 

Act, 30 U.S.C. § 874{b), and states: 

Other safeguards adequate, in the judgment of an 

authorized representative of the Secretary, to minimize 

hazards with respect to transportation of men and 

materials shall be provided. 

30 C.F.R. § 75.1403-5 is entitled ncriteria-Belt conveyors, nand section 75.1403-

5(g) states, in pertinent part, that a nclear travelway at least 24 inches wide 

should be provided on both sides of all belt conveyors .... n 

981 
other safeguard decisions issued the same date. 2 

On remand, Judge Fauver again determined that the safeguard was valid, 

but found that the Secretary had not established the alleged violations of the 

safeguard. 14 FMSHRC 894 (May l992)(ALJ). The Commission granted the 

Secretary's petition for discretionary review challenging the judge's vacation 

of the citations. We affirm the judge's conclusion but on grounds different 

from those relied upon by the judge. 

I. 

Factual Background and Procedural History 

A. Factual Background 

On June 13, 1984, Francis Weir, an inspector of the Department of 

Labor's Mine Safety and Health Administration ("MSHA"), issued a notice to 

provide safeguards to BethEnergy at its Mine No. 60, an underground coal mine 

in Pennsylvania. The notice states: 

Jt. Exh. 3. 

A clear travelway of at least 24 inches wide was 

not provided on both sides of the belt conveyor in the 

longwall section MMUU 031. Starting at the tipple and 

extending inby for approximately 400 ft. For the 

first 200 ft. the clearance changed from the left 

sid[e] back to right and management had the area 

fenced of[f] and a crossunder had been provided. The 

second area was approximately 300 ft. inby the tipple 

was on the left sid[e] and clearance was between 23 

inches and 15 inches for approximately 10-15 ft. in 

two different locations. 

This is a notice to provide safeguard that 

requires at least 24 inches of clear travelway be 

provided on both sides of all belt conveyor[s] 

installed after March 30, 1970 at this mine. 

On September 7, 1989, some five years later, MSHA Inspector John Mull 

inspected the Livingston portal in BethEnergy's Eighty-Four Complex, a mine 

that includes former Mine No. 60. Inspector Mull observed that 24 inches of 

clearance had not been provided along both sides of the No. 3 and 4 conveyor 

belts, and issued two citations, alleging violations of Inspector Weir's 

safeguard notice. 

2 The other decisions are: Mettiki Coal Corp., 14 FMSHRC 29 (January 1992); 

Rochester & Pittsburgh Coal Co., 14 FMSHRC 37 (January 1992); and Green River 

Coal Co., 14 FMSHRC 43 (January 1992). 

982 
The citation alleging a violative condition along the No. 3 belt 

states: 

At least 24 inches of a clear travelway was not 

provided on both sides of the entire No. 3 belt, as 

the side not normally walked was obstruct(ed] with rib 

material, crib, block and other material at numerous 

locations. 

Jt. Exh. 1. The citation alleging a violative condition beside the No. 4 belt 

states: 

Jt. Exh. 2. 

At least 24 inches of a clear travelway was not 

provided on both sides of the No.4 belt ... as the 

side not normally walked was obstruct[ed] with 

material from the ribs and other material at numerous 

locations. 

The two citations were terminated after miners removed the obstructions 

along the belt lines over the course of ten shifts. 14 FMSHRC at 896. 

BethEnergy contested both citations, and the matter was heard by Judge Fauver. 

B. Procedural HistokY 

In his original decision, Judge Fauver determined that, because the 

safeguard was based on a published safeguard criterion, it was valid even if 

it addressed a general rather than a mine-specific hazard and should be 

interpreted in the same manner as a promulgated mandatory standard. 12 FMSHRC 

761, 769 (April 1990)(ALJ). Construing the safeguard broadly, the judge found 

that the safeguard provided reasonable notice that the walkways beside the 

conveyor belts should be clear, and he affirmed both citations. 12 FMSHRC at 

769-70. 

On review, the Commission noted its holding in SOCCO II that the 

Secretary may properly issue a safeguard that addresses a commonly encountered 

hazard so long as it is based on a determination by the inspector that the 

specific hazard exists in the mine. BethEnergy I, 14 FMSHRC at 21-22, citing, 

SOCCO II, 14 FMSHRC at 15-16. The Commission held that the fact that a 

safeguard is based on a published safeguard criterion neither affects its 

validity nor the narrow manner in which it is to be construed. 14 FMSHRC at 

22-25. Accordingly, the Commission vacated the judge's determination that the 

safeguard was valid, and remanded for consideration of whether the safeguard 

was based on Inspector Weir's determination that the conditions at 

BethEnergy's Mine No. 60 created a transportation hazard requiring the 

corrective action prescribed in the safeguard. 14 FMSHRC at 27. If the judge 

concluded that the safeguard had been validly issued, he was to determine, 

pursuant to the principles announced in Southern Ohio Coal Co., 7 FMSHRC 509 

(April 1985)("SOCCO I"), whether BethEnergy had violated it. 14 FMSHRC at 25, 

27-28. 

983 
On remand, the judge determined that the safeguard was valid but that 

the Secretary had not proven that BethEnergy had violated it. 14 FMSHRC at 

897, 899-900. Applying a narrow construction of the safeguard as discussed in 

SOCCO I, 7 FMSHRC at 512, the judge reasoned that a violation of the safeguard 

exists "only if (1) a travelway between the rib and the conveyor belt has a 

width below 24 inches or (2) a fence obstructs the travelway." 14 FMSHRC at 

899-900 (footnote omitted). He determined that the first condition could be 

met "by proof that obstructions reduced the safe, usabl~ width of a travelway 

to below 24 inches." 14 FMSHRC at 900. He concluded that, because Inspector 

Mull had not measured but had only estimated the clearance along the 

travelways, the Secretary had failed to prove that obstructions reduced the 

width of the travelways to less than 24 inches. Id. Accordingly, he vacated 

the citations. 14 FMSHRC at 901. 

II. 

Disposition of Issues 

The Secretary sought review of "[w]hether the ... judge erred in 

concluding that the Secretary failed to establish violations of a safeguard 

notice ... because the inspector failed to measure the distance between the 

belts and the obstructions .... " PDR at 1.' We conclude that the judge erred 

in relying upon the inspector's failure to take measurements as the basis for 

finding no violation of the safeguard but, nevertheless, affirm in result his 

vacation of the citations. 

In determining whether the Secretary had established a violation of the 

safeguard notice, the judge imposed upon the Secretary, in effect, a stricter 

burden of proof than preponderance of evidence, which is the appropriate 

standard of proof in proceedings before Commission administrative law judges. 

See,~. Kenny Richardson, 3 FMSHRC 8, 12 n.7 (January 1981). Inspector 

Mull testified that he issued the citations because material was obstructing 

the travelways beside the conveyor belts and, as a result, 24 inches of 

clearance had not been provided. Tr. 45, 47. He stated that he had to cross 

over the No. 4 belt because the rib sloughage beside the belt was too high for 

him to walk over. Tr. 49-50. Inspector Mull also testified that "the reason 

[he] didn't measure it [the width of the walkway] was because there were 

obstructions from the belt structure ... in most cases clear to the rib." Tr. 

66. BethEnergy offered no evidence in contradiction of Inspector Mull's 

testimony that 24 inches of clearance had not been provided. The judge did 

not question Inspector Mull's general credibility and, in fact, accepted his 

observed estimates as to the size of the obstructions and the distance between 

the belt and the floor and the roof. 14 FMSHRC at 895-96; Tr. 49-50, 75-76. 

Thus, a preponderance of the evidence presented to the judge established the 

cited lack of clearance. 

We conclude, therefore, that substantial evidence does not support the 

judge's rejection of the Secretary's case on the basis of the inspector's 

984 
failure to take measurements. 3 SOCCO I does not require the application of a 

burden of proof stricter than a preponderance of the evidence in determining 

whether a safeguard was violated. Rather, SOCCO I requires the Commission and 

its judges to construe narrowly the terms and intended reach of a safeguard. 

Accordingly, we reverse the judge's determination that the Secretary failed to 

prove the cited lack of clearance. 

BethEnergy argues that, even assuming the cited lack of clearance, the 

citations were properly vacated because the obstructions alleged in the 

citations were not encompassed by the safeguard's prohibitions. 4 We agree. 

In SOCCO I, the Commission concluded that a safeguard notice must 

identify with specificity the nature of the hazard against which it is 

directed and the conduct required to abate the hazard, and held that "a narrow 

construction of the terms of the safeguard and its intended reach is 

required." 7 FMSHRC at 512. The Commission explained that strict 

construction was necessary in order to balance the unusually broad grant to 

the Secretary of authority to issue safeguards with the operator's right to 

notice of the conduct required of him. Id. The Commission concluded that the 

safeguard, which referred to physical obstructions in a travelway, fallen rock 

and cement blocks, did not provide the operator with adequate notice that wet 

3 The Commission is bound by the terms of the Mine Act to apply the 

substantial evidence test when reviewing an administrative law judge's decision. 

30 U.S.C. § 823(d)(2)(A)(ii)(I). The term "substantial evidence" means "such 

relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion." See,~. Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 

(November 1989), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 

(1938). 

4 Although the Secretary narrowly tailored the issue presented for review, 

we conclude that BethEnergy is not precluded from interjecting this argument in 

its response brief, rather than in a cross-petition for review. In Secretary on 

behalf of Price & Vacha v. Jim Walter Resources. Inc., 12 FMSHRC 1521 (August 

1990), the Commission determined that: 

the "appellee" may urge in support of the judgment below 

any matter or issue appearing in the record, even if it 

involves an objection to some aspect of the judge's 

reasoning or issue resolution, so long as the appellee 

does not seek to attack the judgment itself or to 

enlarge its rights thereunder, in which case it would be 

obliged to file a cross-petition for discretionary 

review. 

12 FMSHRC at 1529 (emphasis in original; citations omitted). The Commission 

reaffirmed this determination on subsequent review of the judge's decision on 

remand. Secretary on behalf of Price & Vacha v. Jim Walter Resources. Inc., 14 

FMSHRC 1549, 1552 n.2 (September 1992). Here, the appellee does not seek to 

attack the judge's conclusion that the citations should be vacated or to enlarge 

its rights under that judgment. Thus, we consider the argument. 

985 
ground conditions resulting in an accumulation of water fell within the 

safeguard's prohibitions. 7 FMSHRC at 513. 

In Green River Coal Co., 14 FMSHRC 43, 47 (January 1992), the Commission 

affirmed the judge's determination that a safeguard, which addressed a 

hazardous narrowing of a travelway caused by the erection of roof supports 

near a conveyor belt, did not give the operator adequate notice that it also 

prohibited the loose rock obstructing a travelway. The Commission explained 

that "[o]bstructions in travelways caused by the deliberate placement of roof 

supports differ fundamentally in nature, cause, and remedy from those that 

occur due to roof falls." Id. 

Here, the impediments to travel described in the safeguard differ 

substantially in nature from the cited obstructions. The lack of clearance 

described in the safeguard was caused by the operator's erection of a fence 

across the travelway and by placement of the belt too close to the rib. In 

contrast, the cited coal sloughage, concrete blocks and cribbing material 

resulted from unintended accumulations in the travelways. The fence, although 

erected as a safety~measure, impeded travel, and the proximity of the belt to 

the rib narrowed the passageway. The cited obstructions presented primarily 

slipping, tripping, and falling hazards. See Tr. 45-46. Unlike abatement for 

lack of clearance caused by the belt being too close to the rib, abatement of 

these citations required removal of the coal sloughage, concrete blocks, and 

crib material. _Thus, for the reasons discussed in SOCCO I and Green River, we 

conclude that tha lack of clearance described in Inspector Weir's safeguard 

did not provide BethEnergy with adequate notice that the safeguard prohibited 

the cited conditions. Accordingly, we affirm, in result, the judge's vacation 

of the citations. 

986 
III. 

Conclusion 

For the reasons discussed above, we affirm the judge's vacation of the 

citations. 

Distribution 

Robert W. Aldrich, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

R. Henry Moore, Esq. 

Buchanan Ingersoll 

USX Tower, 57th Floor 

600 Grant Street 

Pittsburgh, PA 15219 

Arlene Holen, Chairman 

Administrative Law Judge William Fauver 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

987 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

CYPRUS ORCHARD VALLEY 

COAL CORPORATION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 29, 1993 

Docket No. SPECIAL 92-03 

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

In this proceeding arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Cyprus Orchard 

Valley Coal Corporation ("Cyprus Orchard") filed with the Commission a Notice 

of Contest and Motion for Partial Relief from Final Order, seeking to reopen 

certain uncontested civil penalty assessments in which Cyprus Orchard had paid 

in full penalties proposed by the Secretary of Labor. As the basis for its 

motion, Cyprus Orchard cites Rule 60(b), Federal Rules of Civil Procedure 

("Rule 60(b)"), and principles of equity. 

Cyprus Orchard contends that the penalties in dispute were invalidly 

augmented on the basis of the interim "excessive history" program set forth in 

the Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"), 

which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992), 

and related cases, could be accorded no legal weight or effect. Cyprus 

Orchard seeks refunds of those portions of paid penalties attributable to 

augmentations under the PPL. 

This case is one of 19 special proceedings in which notices of contest 

and motions for relief from final orders were filed by mine operators. All of 

these cases raise identical issues. For the reasons fully set forth in Jim 

Walter Resources, Inc., 15 FMSHRC 782 (May 1993) ("JWR"),·we hold that the 

Commission possesses jurisdiction to reopen final orders, including orders in 

which uncontested penalties were paid, but conclude that Cyprus Orchard's 

request does not meet the requisite criteria under Rule 60(b) or principles of 

equity for the grant of such relief. Accordingly, we deny Cyprus Orchard's 

motion to reopen and we dismiss this proceeding. 

In JWR, we held that a final order of the Commission may be reopened by 

988 
the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC 

at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C. 

§ 815(a), which provides, in part, that an uncontested proposed penalty "shall 

be deemed a final order of the Commission and not subject'to review by any 

court or agency," does not bar the Commission from granting Rule 60(b)-type 

relief in appropriate circumstances. 15 FMSHRC at 787-88. 

Cyprus Orchard has invoked Rule 60(b)(3), alleging misrepresentation by 

the Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting 

that the requested relief would serve the ends of justice. Motions to reopen 

under Rule 60(b) are committed to the sound discretion of the judicial 

tribunal in which relief is sought. 15 FMSHRC at 789(citations omitted). For 

the reasons set forth in JWR, we hold that Rule 60(b) relief is inappropriate 

in this case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in 

a Rule 60(b)(3) motion, misrepresentation must be shown by clear and 

convincing evidence. 15 FMSHRC at 789. The Commission determined that, 

because the Secretary's notifications of the proposed penalties stated that 

the penalties were augmented by the excessive history program, the operator 

failed to establish misrepresentation by the Secretary. 15 FMSHRC at 789-90. 

The Commission also concluded that, although Rule 60(b)(6) provides for 

relief for "any other reason justifying relief," it cannot be used to relieve 

a party from the duty to take legal action to protect its interests. 15 FMSHRC 

at 790. We held that, under the Mine Act, a mine operator is required to make 

deliberate litigation choices and that failure to contest proposed penalties 

is at the operator's peril. Id. Finally, the Commission concluded that the 

operator was not entitled to equitable relief because the Commission is not a 

court of general equity and the operator was less than vigilant in protecting 

its rights. Id. 

989 
Accordingly, for the reasons expressed in JWR, we conclude that-Cyprus 

Orchard failed to clearly and convincingly demonstrate justification for Rule 

60(b)(3) or (b)(6) relief or for general equitable relief. 

As in JWR, we urge the Secretary to evaluate further the legality and 

feasibility of providing the refun~s sought by Cyprus Orchard. See 15 FMSHRC 

at 791-92. 

Distribution 

Michael R. Peelish, Esq. 

Cyprus Minerals Company 

9100 East }lineral Circle 

Englewood, Colorado 80112 

Susan E. Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

James A. Lastowka, Esq. 

McDermott, \-Jill & Emery 

1850 K Street, N.W. 

Washington, D.C. 20006 

Henry Chajet, Esq. 

Jackson & Kelly 

2401 Pennsylvania Ave., N.W. 

Washington, D.C. 20037 

L. Clair Nelson, Commissioner ·. 

990 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

CYPRUS EMPIRE CORPORATION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 29, 1993 

Docket No. SPECIAL 92-04 

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

In this proceeding arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Cyprus Empire 

Corporation ("Cyprus Empire") filed with the Commission a Notice of Contest 

and Motion for Partial Relief from Final Order, seeking to reopen certain 

uncontested civil penalty assessments in which Cyprus Empire had paid in full 

penalties proposed by the Secretary of Labor. As the basis for its motion, 

Cyprus Empire cites Rule 60(b), Federal Rules of Civil Procedure ("Rule 

60(b)"), and principles of equity. 

Cyprus Empire contends that the penalties in dispute were invalidly 

augmented on the basis of the interim "excessive history" program set forth in 

the Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"), 

which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992), 

and related cases, could be accorded no legal weight or effect. Cyprus Empire 

seeks refunds of those portions of paid penalties attributable to 

augmentations under the PPL. 

This case is one of 19 special proceedings in which notices of contest 

and motions for relief from final orders were filed by mine operators. All of 

these cases raise identical issues. For the reasons fully set forth in Jim 

Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the 

Commission possesses jurisdiction to reopen final orders, including orders in 

which uncontested penalties were paid, but conclude that Cyprus Empire's 

request does not meet the requisite criteria under Rule 60(b) or principles of 

equity for the grant of such relief. Accordingly, we deny Cyprus Empire's 

motion to reopen and we dismiss this proceeding. 

In JWR, we held that a final order of the Commission may be reopened by 

the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC 

991 
at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C. 

§ 815(a), which provides, in part, that an uncontested proposed penalty "shall 

be deemed a final order of the Commission and not subject to review by any 

court or agency," does not bar the Commission from granting Rule 60(b)-type 

relief in appropriate circumstances. 15 FMSHRC at 787-88. 

Cyprus Empire has invoked Rule 60(b)(3), alleging misrepresentation by 

the Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting 

that the requested relief would serve the ends of justice. Motions to reopen 

under Rule 60(b) are committed to the sound discretion of the judicial 

tribunal in which relief is sought. 15 FMSHRC at 789(citations omitted). For 

the reasons set forth in JWR, we hold that Rule 60(b) relief is inappropriate 

in this case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in 

a Rule 60(b)(3) motion, misrepresentation must be shown by clear and 

convincing evidence. 15 FMSHRC at 789. The Commission determined that, 

because the Secretary's notifications of the proposed penalties stated that 

the penalties were augmented by the excessive history program, the operator 

failed to establish misrepresentation by the Secretary. 15 FMSHRC at 789-90. 

The Commission also concluded that, although Rule 60(b)(6) provides for 

relief for "any other reason justifying relief," it cannot be used to relieve 

a party from the duty to take legal action to protect its interests. 15 FMSHRC 

at 790. We held that, under the Mine Act, a mine operator is required to make 

deliberate litigation choices and that failure to contest proposed penalties 

is at the operator's peril. Id. Finally, the Commission concluded that the 

operator was not entitled to equitable relief because the Commission is not a 

court of general equity and the operator was less than vigilant in protecting 

its rights. Id. 

992 
Accordingly, for the reasons expressed in JWR, we conclude that Cyprus 

Empire failed to clearly and convincingly demonstrate justification for Rule 

60(b)(3) or (b)(6) relief or for general equitable relief. 

As in JWR, we urge the Secretary to evaluate further the legality and 

feasibility of providing the refunds sought by Cyprus Empire. See 15 FMSHRC 

at 

791-92. 

Distribution 

Michael R. Peelish, Esq. 

Cyprus Hinerals Company 

9100 East Hineral Circle 

Englewood, Colorado 80112 

Susan E. Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

James A. Lastowka, Esq. 

HcDerraott, v1ill & Emery 

1850 K Street, N.W. 

Washington, D.C. 20006 

Henry Chajet, Esq. 

Jackson & Kelly 

2401 Pennsylvania Ave., N.W. 

Washington, D.C. 20037 

Arlene Holen, Chairman 

~~£~~ Richard V. Backley, Commissio~~ 

L. Clair Nelson, Commissioner 

993 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 29, 1993 

CONSOLIDATION COAL COMPANY, 

CONSOL PENNSYLVANIA COAL COMPANY, 

McELROY COAL COMPANY, and 

QUARTO MINING COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Docket No. SPECIAL 92-05 

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

In this proceeding arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Consolidation 

Coal Company, Consol Pennsylvania Coal Company, McElroy Coal Company, and 

Quarto Mining Company ("Petitioners") filed with the Commission a Notice of 

Contest and Motion for Partial Relief from Final Order, seeking to reopen 

certain uncontested civil penalty assessments in which Petitioners had paid in 

full penalties proposed by the Secretary of Labor. As the basis for its 

motion, Petitioners cite Rule 60(b), Federal Rules of Civil Procedure ("Rule 

60(b)"), and principles of equity. 

Petitioners contend that the penalties in dispute were invalidly 

augmented on the basis of the interim "excessive history" program set forth in 

the Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"), 

which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992), 

and related cases, could be accorded no legal weight or effect. Petitioners 

seek refunds of those portions of paid penalties attributable to augmentations 

under the PPL. 

This case is one of 19 special proceedings in which notices of contest 

and motions for relief from final orders were filed by mine operators. All of 

these cases raise identical issues. For the reasons fully set forth in Jim 

Walter Resources, Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the 

Commission possesses jurisdiction to reopen final orders, including orders in 

which uncontested penalties were paid, but conclude that Petitioners' request 

does not meet the requisite criteria under Rule 60(b) or principles of equity 

for the grant of such relief. Accordingly, we deny Petitioners' motion to 

994 
reopen and we dismiss this proceeding. 

In JWR, we held that a final order of the Commission may be reopened by 

the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC 

at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C. 

§ 815(a), which provides, in part, that an uncontested proposed penalty "shall 

be deemed a final order of the Commission and not subject to review by any 

court or agency," does not bar the Commission from granting Rule 60(b)-type 

relief in appropriate circumstances. 15 FMSHRC at 787-88. 

Petitioners have invoked Rule 60(b)(3), alleging misrepresentation by 

the Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting 

that the requested relief would serve the ends of justice. Motions to reopen 

under Rule 60(b) are committed to the sound discretion of the judicial 

tribunal in which relief is sought. 15 FMSHRC at 789(citations omitted). For 

the reasons set forth in JWR, we hold that Rule 60(b) relief is inappropriate 

in this case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in 

a Rule 60(b)(3) motion, misrepresentation must be shown by clear and 

convincing evidence. 15 FMSHRC at 789. The Commission determined that, 

because the Secretary's notifications of the proposed penalties stated that 

the penalties were augmented by the excessive history program, the operator 

failed to establish misrepresentation by the Secretary. 15 FMSHRC at 789-90. 

The Commission also concluded that, although Rule 60(b)(6) provides for 

relief for "any other reason justifying relief," it cannot be used to relieve 

a party from the duty to take legal action to protect its interests. 15 FMSHRC 

at 790. We held that, under the Mine Act, a mine operator is required to make 

deliberate litigation choices and that failure to contest proposed penalties 

is at the operator's peril. Id. Finally, the Commission concluded that the 

operator was not entitled to equitable relief because the Commission is not a 

court of general equity and the operator was less than vigilant in protecting 

its rights. Id. 

995 
Accordingly, for the-reasons expressed in JWR, we conclude that 

Petitioners failed to clearly and convincingly demonstrate justification for 

Rule 60(b)(3) or (b)(6) relief or for general equitable relief. 

As in JWR, we urge the Secretary to evaluate further the legality and 

feasibility of providing the refunds sought by Petitioners. See 15 FMSHRC at 

791-92. 

Distribution 

Daniel E. Rogers, Esq. 

Consolidation Coal Company 

1800 Washington Rd. 

Pittsburgh, PA 15241 

Susan E. Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

James A. Lastowka, Esq. 

McDermott, Will & Emery 

1850 K Street, N.W. 

Washington, D.C. 20006 

Henry Chajet, Esq. 

Jackson & Kelly 

2401 Pennsylvania 

Washington, D.C. 

Ave., N.W. 

20037 

Arlene Holen, Chairman 

gfZ&c_~/._A.--L-vt4d1:u-~~v Richard V. Backley, Commissioner 

L. Clair Nelson, Commissioner 

996 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

MONTEREY COAL COMPANY, 

a division of EXXON 

COAL USA, INC. 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C: 20006 

June 29, 19g3 

Docket No. SPECIAL 92-06 

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

In this proceeding arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Monterey Coal 

Company ("Monterey") filed with the Commission a Notice of Contest and Motion 

for Partial Relief from Final Order, seeking to reopen certain uncontested 

civil penalty assessments in which Monterey had paid in full penalties 

proposed by the Secretary of Labor. As the basis for its motion, Monterey 

cites Rule 60(b), Federal Rules of Civil Procedure ("Rule 60(b)"), and 

principles of equity. 

Monterey contends that the penalties in dispute were invalidly augmented 

on the basis of the interim "excessive history" program set forth in the 

Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"), 

which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992), 

and related cases, could be accorded no legal weight or effect. Monterey 

seeks refunds of those portions of paid penalties attributable to 

augmentations under the PPL. 

This case is one of 19 special proceedings ~n which notices of contest 

and motions for relief from final orders were filed by mine operators. All of 

these cases raise identical issues. For the reasons fully set forth in Jim 

Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the 

Commission possesses jurisdiction to reopen final orders, including orders in 

which uncontested penalties were paid, but conclude that Monterey's request 

does not meet the requisite criteria under Rule 60(b) or principles of equity 

for the grant of such relief. Accordingly, we deny Monterey's motion to 

reopen and we dismiss this proceeding. 

997 
the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC 

at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C. 

§ 815(a), which provides, in part, that an uncontested proposed penalty "shall 

be deemed a final order of the Commission and not subject to review by any 

court or agency," does not bar the Commission from granting Rule 60(b)-type 

relief in appropriate circumstances. 15 FMSHRC at 787-88. 

Monterey has invoked Rule 60(b)(3), alleging misrepresentation by the 

Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that 

the requested relief would serve the ends of justice. Motions to reopen under 

Rule 60(b) are committed to the sound discretion of the judicial tribunal in 

which relief is sought. 15 FMSHRC at 789(citations omitted). For the reasons 

set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this 

case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in a Rule 

60(b)(3) motion, misrepresentation must be shown by clear and convincing 

evidence. 15 FMSHRC at 789. The Commission determined that, because the 

Secretary's notifications of the proposed penalties stated that the penalties 

were augmented by the excessive history program, the operator failed to 

establish misrepresentation by the Secretary. 15 FMSHRC at 789-90. 

The Commission also concluded that, although Rule 60(b)(6) provides for 

relief for "any other reason justifying relief," it cannot be used to relieve 

a party from the duty to take legal action to protect its interests. 15 FMSHRC 

at 790. We held that, under the Mine Act, a mine operator is required to make 

deliberate litigation choices and that failure to contest proposed penalties 

is at the operator's peril. Id. Finally, the Commission concluded that the 

operator was not entitled to equitable relief because the Commission is not a 

court of general equity and the operator was less than vigilant in protecting 

its rights. Id. 

998 
_ Accordingly, for the reasons expressed in JWR, we conclude that Monterey 

failed to clearly and convincingly demonstrate justification for Rule 60(b)(3) 

or (b)(6) relief or for general equitable relief. 

As in JWR, we urge the Secretary to evaluate further the legality and 

feasibility of providing the refunds sought by Monterey. See 15 FMSHRC at 

791-92. 

Distribution 

James J. McGowan, Jr. 

Monterey Coal Company 

2401 S. Gessner 

Houston, TX 77063 

Susan E. Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

James A. Lastowka, Esq. 

McDermott, Will & Emery 

1850 K Street, N.W. 

Washington, D.C. 20006 

Henry Chajet, Esq. 

Jackson & Kelly 

2401 Pennsylvania 

Washington, D.C. 

Ave., N.W. 

2003"1 

Arlene Holen, Chairman 

L. Clair Nelson, Commissioner 

999 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

GENERAL CHEMICAL CORPORATION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 29, 1993 

Docket No. SPECIAL 92-07 

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

In this proceeding arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), General Chemical 

Corporation ("GCC") filed with the Commission a Notice of Contest and Motion 

for Partial Relief from Final Order, seeking to reopen certain uncontested 

civil penalty assessments in which GCC had paid in full penalties proposed by 

the Secretary of Labor. As the basis for its motion, GCC cites Rule 60(b), 

Federal Rules of Civil Procedure ("Rule 60(b)"), and principles of equity. 

GCC contends that the penalties in dispute were invalidly augmented on 

the basis of the interim "excessive history" program set forth in the 

Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"), 

which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992), 

and related cases, could be accorded no legal weight or effect. GCC seeks 

refunds of those portions of paid penalties attributable to augmentations 

under the PPL. 

This case is one of 19 special proceedings in which notices of contest 

and motions for relief from final orders were filed by mine operators. All of 

these cases raise identical issues. For the reasons fully set forth in Jim 

Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the 

Commission possesses jurisdiction to reopen final orders, including orders in 

which uncontested penalties were paid, but conclude that GCC's request does 

not meet the requisite criteria under Rule 60(b) or principles of equity for 

the grant of such relief. Accordingly, we deny GCC's motion to reopen and we 

dismiss this proceeding. 

In JWR, we held that a final order of the Commission may be reopened by 

the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC 

at 786-89. As explained in JWR, section lOS(a) of the Mine Act, 30 U.S.C. 

1000 
§ 815(a), which provides, in part, that an uncontested proposed penalty "shall 

be deemed a final order of the Commission and not subject to review by any 

court or agency," does not bar the Commission from granting Rule 60(b)-type 

relief in appropriate circumstances. 15 FMSHRC at 787-88. 

GCC has invoked Rule 60(b)(3), alleging misrepresentation by the 

Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that 

the requested relief would serve the ends of justice. Motions to reopen under 

Rule 60(b) are committed to the sound discretion of the judicial tribunal in 

which relief is sought. 15 FMSHRC at 789(citations omitted). For the reasons 

set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this 

case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in a Rule 

60(b)(3) motion, misrepresentation must be shown by clear and convincing 

evidence. 15 FMSHRC at 789. The Commission determined that, because the 

Secretary's notifications of the proposed penalties stated that the penalties 

were augmented by the excessive history program, the operator failed to 

establish misrepresentation by the Secretary. 15 FMSHRC at 789-90. 

The Commission also concluded that, although Rule 60(b)(6) provides for 

relief for "any other reason justifying relief," it cannot be used to relieve 

a party from the duty to take legal action to protect its interests. 15 FMSHRC 

at 790. We held that, under the Mine Act, a mine operator is required to make 

deliberate litigation choices and that failure to contest proposed penalties 

is at the operator's peril. Id. Finally, the Commission concluded that the 

operator was not entitled to equitable relief because the Commission is not a 

court of general equity and the operator was less than vigilant in protecting 

its rights. Id. 

1001 
Accordingly, for the reasons expressed in JWR, we conclude that GCC 

failed to clearly and convincingly demonstrate justification for Rule 60(b)(3) 

or (b)(6) relief or for general equitable relief. 

As in JWR, we urge the Secretary to evaluate further the legality and 

feasibility of providing the refunds sought by GCC. See 15 FMSHRC at 791-92. 

Distribution 

Matthew F. McNulty, III, Esq. 

General Chemical Corporation 

50 South Main Street, Suite 1600 

P.O. Box 45340 

Salt Lake City, Utah 84145 

Susan E. Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

James A. Lastowka, Esq. 

McDermott, Will & Emery 

1850 K Street, N.W. 

Washington, D.C. 20006 

Henry Chajet, Esq. 

Jackson & Kelly 

2401 Pennsylvania 

Washington, D.C. 

Ave., N.W. 

20037 

Arlene Holen, Chairman 

1002 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

FMC WYOMING CORPORATION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 29, 1993 

Docket No. SPECIAL 92-08 

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

In this proceeding arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), FMC Wyoming 

Corporation ("FMC") filed with the Commission a Notice of Contest and Motion 

for Partial Relief from Final Order, seeking to reopen certain uncontested 

civil penalty assessments in which FMC had paid in full penalties proposed by 

the Secretary of Labor. As the basis for its motion, FMC cites Rule 60(b), 

Federal Rules of Civil Procedure ("Rule 60(b)"), and principles of equity. 

FMC contends that the penalties in dispute were invalidly augmented on 

the basis of the interim "excessive history" program set forth in the 

Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"), 

which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992), 

and related cases, could be accorded no legal weight or effect. FMC seeks 

refunds of those portions of paid penalties attributable to augmentations 

under the PPL. 

This case is one of 19 special proceedings in which notices of contest 

and motions for relief from final orders were filed by mine operators. All of 

these cases raise identical issues. For the reasons fully set forth in Jim 

Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the 

Commission possesses jurisdiction to reopen final orders, including orders in 

which uncontested penalties were paid, but conclude that FMC's request does 

not meet the requisite criteria under Rule 60(b) or principles of equity for 

the grant of such relief. Accordingly, we deny FMC's motion to reopen and we 

dismiss this proceeding. 

In JWR, we held that a final order of the Commission may be reopened by 

the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC 

at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C. 

1003 
§ 815(a), which provides, in part, that an uncontested proposed penalty "shall 

be deemed a final order of the Commission and not subject to review by any 

court or agency," does not bar the Commission from granting Rule 60(b)-type 

relief in appropriate circumstances. 15 FMSHRC at 787-88. 

FMC has invoked Rule 60(b)(3), alleging misrepresentation by the 

Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that 

the requested relief would serve the ends of justice. Motions to reopen under 

Rule 60(b) are committed to the sound discretion of the judicial tribunal in 

which relief is sought. 15 FMSHRC at 789(citations omitted). For the reasons 

set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this 

case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in a Rule 

60(b)(3) motion, misrepresentation must be shown by clear and convincing 

evidence. 15 FMSHRC at 789. The Commission determined that, because the 

Secretary's notifications of the proposed penalties stated that the penalties 

were augmented by the excessive history program, the operator failed to 

establish misrepresentation by the Secretary. 15 FMSHRC at 789-90. 

The Commission also concluded that, although Rule 60(b)(6) provides for 

relief for "any other reason justifying relief," it cannot be used to relieve 

a party from the duty to take legal action to protect its interests. 15 FMSHRC 

at 790. We held that, under the Mine Act, a mine operator is required to make 

deliberate litigation choices and that failure to contest proposed penalties 

is at the operator's peril. Id. Finally, the Commission concluded that the 

operator was not entitled to equitable relief because the Commission is not a 

court of general equity and the operator was less than vigilant in protecting 

its rights. Id. 

1004 
Accordingly, for the reasons expressed in JWR, we conclude that FMC 

failed to clearly and convincingly demonstrate justification for Rule 60(b)(3) 

or (b)(6) relief or for general equitable relief. 

As in JWR, we urge the Secretary to evaluate further the legality and 

feasibility of providing the refunds sought by FMC. See 15 FMSHRC at 791-92. 

Distribution 

Matthew F. McNulty, III, Esq. 

General Chemical Corporation 

50 South }~in Street, Suite 1600 

P.O. Box 45340 

Salt Lake City, Utah 84145 

Susan E. Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

James A. Lastowka, Esq. 

McDermott, Will & Emery 

1850 K Street, N.W. 

Washington, D.C. 20006 

Henry Chajet, Esq. 

Jackson & Kelly 

2401 Pennsylvania 

Washington, D.C. 

Ave., N.W. 

20037 

Arlene Holen, Chairman 

~u/&c.u/k_~£ / 

Richard V. Backley, Commissioner b 

L. Clair Nelson, Commissioner 

1005 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

AKZO SALT, INC. 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 29, 1993 

Docket No. SPECIAL 92-09 

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

In this proceeding arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Akzo Salt, Inc. 

("Akzo") filed with the Commission a Notice of Contest and Motion for Partial 

Relief from Final Order, seeking to reopen certain uncontested civil penalty 

assessments in which Akzo had paid in full penalties proposed by the Secretary 

of Labor. As the basis for its motion, Akzo cites Rule 60(b), Federal Rules 

of Civil Procedure ("Rule 60(b)"), and principles of equity. 

Akzo contends that the penalties in dispute were invalidly augmented on 

the basis of the interim "excessive history" program set forth in the 

Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"), 

which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992), 

and related cases, could be accorded no legal weight or effect. Akzo seeks 

refunds of those portions of paid penalties attributable to augmentations 

under the PPL. 

This case is one of 19 special proceedings in which notices of contest 

and motions for relief from final orders were filed by mine operators. All of 

these cases raise identical issues. For the reasons fully set forth in Jim 

Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the 

Commission possesses jurisdiction to reopen final orders, ·including orders in 

which uncontested penalties were paid, but conclude that Akzo's request does 

not meet the requisite criteria under Rule 60(b) or principles of equity for 

the grant of such relief. Accordingly, we deny Akzo's motion to reopen and we 

dismiss this proceeding. 

In JWR, we held that a final order of the Commission may be reopened by 

the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC 

at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C. 

1006 
§ 815(a), which provides, in part, that an uncontested proposed penalty "shall 

be deemed a final order of the Commission and not subject to review by any 

court or agency," does not bar the Commission from granting Rule 60(b)-type 

relief in appropriate circumstances. 15 FMSHRC at 787-88. 

Akzo has invoked Rule 60(b)(3), alleging misrepresentation by the 

Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that 

the requested relief would serve the ends of justice. Motions to reopen under 

Rule 60(b) are committed to the sound discretion of the judicial tribunal in 

which relief is sought. 15 FMSHRC at 789(citations omitted). For the reasons 

set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this 

case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in a Rule 

60(b)(3) motion, misrepresentation must be shown by clear and convincing 

evidence. 15 FMSHRC at 789. The Commission determined that, because the 

Secretary's notifications of the proposed penalties stated that the penalties 

were augmented by the excessive history program, the operator failed to 

establish misrepresentation by the Secretary. 15 FMSHRC at 789-90. 

The Commission also concluded that, although Rule 60(b)(6) provides for 

relief for "any other reason justifying relief," it cannot be used to relieve 

a party from the duty to take legal action to protect its interests. 15 FMSHRC 

at 790. We held that, under the Mine Act, a mine operator is required to make 

deliberate litigation choices and that failure to contest proposed penalties 

is at the operator's peril. Id. Finally, the Commission concluded that the 

operator was not entitled to equitable relief because the Commission is not a 

court of general equity and the operator was less than vigilant in protecting 

its rights. Id. 

1007 
Accordingly, for the reasons expressed in JWR, we conclude that Akzo 

failed to clearly and convincingly demonstrate justification for Rule 60(b)(3) 

or (b)(6) relief or for general equitable relief. 

As in JWR, we urge the Secretary to evaluate further the legality and 

feasibility of providing the refunds sought by Akzo. See 15 FMSHRC at 791-92. 

Distribution 

John W. Behan, Esq. 

Akzo Salt, Inc. 

Akzo America Inc. 

7 Livingston Avenue 

Dobbs Ferry, NY 10522 

Susan E. Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

James A. Lastowka, Esq. 

HcDermott, Will & Emery 

1850 K Street, N.W. 

\.J'ashington, D.C. 20006 

Henry Chajet, Esq. 

Jackson & Kelly 

2401 Pennsylvania 

Washington, D.C. 

Ave., N.W. 

20037 

Arlene Holen, Chairman 

L. Clair Nelson, Commissioner 

1008 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

CYPRUS EMERALD RESOURCES 

CORPORATION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 29, 1993 

Docket No. SPECIAL 92-10 

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

In this proceeding arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Cyprus Emerald 

Resources Corporation ("Cyprus Emerald") filed with the Commission a Notice of 

Contest and Motion for Partial Relief from Final Order, seeking to reopen 

certain uncontested civil penalty assessments in which Cyprus Emerald had paid 

in full penalties proposed by the Secretary of Labor. As the basis for its 

motion, Cyprus Emerald cites Rule 60(b), Federal Rules of Civil Procedure 

("Rule 60(b)"), and principles of equity. 

Cyprus Emerald contends that the penalties in dispute were invalidly 

augmented on the basis of the interim "excessive history" program set forth in 

the Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"), 

which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992), 

and related cases, could be accorded no legal weight or effect. Cyprus 

Emerald seeks refunds of those portions of paid penalties attributable to 

augmentations under the PPL. 

This case is one of 19 special proceedings in which notices of contest 

and motions for relief from final orders were filed by mine operators. All of 

these cases raise identical issues. For the reasons fully set forth in Jim 

Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the 

Commission possesses jurisdiction to reopen final orders, including orders in 

which uncontested penalties were paid, but conclude that Cyprus Emerald's 

request does not meet the requisite criteria under Rule 60(b) or principles of 

equity for the grant of such relief. Accordingly, we deny Cyprus Emerald's 

motion to reopen and we dismiss this proceeding. 

1009 
In JWR, we held that a final order of the Commission may be reopened by 

the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC 

at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C. 

§ 815(a), which provides, in part, that an uncontested proposed penalty "shall 

be deemed a final order of the Commission and not subject to review by any 

court or agency," does not bar the Commission from granting Rule 60(b)-type 

relief in appropriate circumstances. 15 FMSHRC at 787-88. 

Cyprus Emerald has invoked Rule 60(b)(3), alleging misrepresentation by 

the Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting 

that the requested relief would serve the ends of justice. Motions to reopen 

under Rule 60(b) are committed to the sound discretion of the judicial 

tribunal in which relief is sought. 15 FMSHRC at 789(citations omitted). For 

the reasons set forth in JWR, we hold that Rule 60(b) relief is inappropriate 

in this case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in 

a Rule 60(b)(3) motion, misrepresentation must be shown by clear and 

convincing evidence. 15 FMSHRC at 789. The Commission determined that, 

because the Secretary's notifications of the proposed penalties stated that 

the penalties were augmented by the excessive history program, the operator 

failed to establish misrepresentation by the Secretary. 15 FMSHRC at 789-90. 

The Commission also concluded that, although Rule 60(b)(6) provides for 

relief for "any other reason justifying relief," it cannot be used to relieve 

a party from the duty to take legal action to protect its interests. 15 FMSHRC 

at 790. We held that, under the Mine Act, a mine operator is required to make 

deliberate litigation choices and that failure to contest proposed penalties 

is at the operator's peril. Id. Finally, the Commission concluded that the 

operator was not entitled to equitable relief because the Commission is not a 

court of general equity and the operator was less than vigilant in protecting 

its rights. Id. 

1010 
Accordingly, for the reasons expressed in JWR, we conclude that Cyprus 

Emerald failed to clearly and convincingly demonstrate justification for Rule 

60(b)(3) or (b)(6) relief or for general equitable relief. 

As in JWR, we urge the Secretary to evaluate further the legality and 

feasibility of providing the refunds sought by Cyprus Emerald. See 15 FMSHRC 

at 791-92. 

Distribution 

Michael R. Peelish, Esq. 

Cyprus Hinerals Company 

9100 East Hineral Circle 

Englewood, Colorado 80112 

Susan E. Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

James A. Lastowka, Esq. 

McDermott, Will & Emery 

1850 K Street, N.W. 

Washington, D.C. 20006 

Henry Chajet, Esq. 

Jackson & Kelly 

2401 Pennsylvania Ave., N.W. 

Washington, D.C. 20037 

Arlene Holen, Chairman 

~:=/ 'Richard V. Backley, Commissioner v 

L. Clair Nelson, Commissioner 

lOll 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

MOUNTAIN COAL COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 29, 1993 

Docket No. SPECIAL 92-11 

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

In this proceeding arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Mountain Coal 

Company ("Mountain") filed with the Commission a Notice of Contest and Motion 

for Partial Relief from Final Order, seeking to reopen certain uncontested 

civil penalty assessments in which Mountain had paid in full penalties 

proposed by the Secretary of Labor. As the basis for its motion, Mountain 

cites Rule 60(b), Federal Rules of Civil Procedure ("Rule 60(b)"), and 

principles of equity. · 

Mountain contends that the penalties in dispute were invalidly augmented 

on the basis of the interim "excessive history" program set forth in the 

Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"), 

which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992), 

and related cases, could be accorded no legal weight or effect. Mountain 

seeks refunds of those portions of paid penalties attributable to 

augmentations under the PPL. 

This case is one of 19 special proceedings in which notices of contest 

and motions for relief from final orders were filed by mine operators. All of 

these cases raise identical issues. For the reasons fully set forth in Jim 

Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the 

Commission possesses jurisdiction to reopen final orders,· including orders in 

which uncontested penalties were paid, but conclude that Mountain's request 

does not meet the requisite criteria under Rule 60(b) or principles of equity 

for the grant of such relief. Accordingly, we deny Mountain's motion to 

reopen and we dismiss this proceeding. 

1012 
In JWR, we held that a final order of the Commission may be reopened by 

the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC 

at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C. 

§ 815(a), which provides, in part, that an uncontested proposed penalty "shall 

be deemed a final order of the Commission and not subject to review by any 

court or agency," does not bar the Commission from granting Rule 60(b)-type 

relief in appropriate circumstances. 15 FMSHRC at 787-88. 

Mountain has invoked Rule 60(b)(3), alleging misrepresentation by the 

Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that 

the requested relief would serve the ends of justice. Motions to reopen under 

Rule 60(b) are committed to the sound discretion of the judicial tribunal in 

which relief is sought. 15 FMSHRC at 789(citations omitted). For the reasons 

set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this 

case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in a Rule 

60(b)(3) motion, misrepresentation must be shown by clear and convincing 

evidence. 15 FMSHRC at 789. The Commission determined that, because the 

Secretary's notifications of the proposed penalties stated that the penalties 

were augmented by the excessive history program, the operator failed to 

establish misrepresentation by the Secretary. 15 FMSHRC at 789-90. 

The Commission also concluded that, although Rule 60(b)(6) provides for 

relief for "any other reason justifying relief," it cannot be used to relieve 

a party from the duty to take legal action to protect its interests. 15 FMSHRC 

at 790. We held that, under the Mine Act, a mine operator is required to make 

deliberate litigation choices and that failure to contest proposed penalties 

is at the operator's peril. Id. Finally, the Commission concluded that the 

operator was not entitled to equitable relief because the Commission is not a 

court of general equity and the operator was less than vigilant in protecting 

its rights. Id. 

1013 
Accordingly, for the reasons expressed in JWR, -we conclude that Mountain 

failed to clearly and convincingly demonstrate justification for Rule 60(b)(3) 

or (b)(6) relief or for general equitable relief. 

As in JWR, we urge the Secretary to evaluate further the legality and 

feasibility of providing the refunds sought by Mountain. See 15 FMSHRC at 

791-92. 

Distribution 

David M. Arnolds, Esq. 

ARCO - Mountain Coal Company 

555 Seventeenth St. 

Denver, Colorado 80202 

Susan E. Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

James A. Lastowka, Esq. 

McDermott, Will & Emery 

1850 K Street, N.W. 

Washington, D.C. 20006 

Henry Chajet, Esq. 

Jackson & Kelly 

2401 Pennsylvania 

Washington, D.C. 

Ave., N.W. 

20037 

Arlene Holen, Chairman 

L. Clair Nelson, Commissioner 

1014 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SOUTHERN OHIO COAL COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 29, 1993 

Docket No. SPECIAL 92-12 

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

In this proceeding arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Southern Ohio 

Coal Company ("SOCCO") filed with the Commission a Notice of Contest and 

Motion for Partial Relief from Final Order, seeking to reopen certain 

uncontested civil penalty assessments in which SOCCO had paid in full 

penalties proposed by the Secretary of Labor. As the basis for its motion, 

SOCCO cites Rule 60(b), Federal Rules of Civil Procedure ("Rule 60(b)"), and 

principles of equity. 

SOCCO contends that the penalties in dispute were invalidly augmented on 

the basis of the interim "excessive history" program set forth in the 

Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"), 

which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992), 

and related cases, could be accorded no legal weight or effect. SOCCO seeks 

refunds of those portions of paid penalties attributable to augmentations 

under the PPL. 

This case is one of 19 special proceedings in which notices of contest 

and motions for relief from final orders were filed by mine operators. All of 

these cases raise identical issues. For the reasons fully set forth in Jim 

Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the 

Commission possesses jurisdiction to reopen final orders, including orders in 

which uncontested penalties were paid, but conclude that SOCCO's request does 

not meet the requisite criteria under Rule 60(b) or principles of equity for 

the grant of such relief. Accordingly, we deny SOCCO's motion to reopen and 

we dismiss this proceeding. 

In JWR, we held that a final order of the Commission may be reopened by 

the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC 

1015 
at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C. 

§ 815(a), which provides, in part, that an uncontested proposed penalty "shall 

be deemed a final order of the Commission and not subject to review by any 

court or agency," does not bar the Commission from granting Rule 60(b)-type 

relief in appropriate circumstances. 15 FMSHRC at 787-88. 

SOCCO has invoked Rule 60(b)(3), alleging misrepresentation by the 

Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that 

the requested relief would serve the ends of justice. Motions to reopen under 

Rule 60(b) are committed to the sound discretion of the judicial tribunal in 

which relief is sought. 15 FMSHRC at 789(citations omitted). For the reasons 

set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this 

case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in a Rule 

60(b)(3) motion, misrepresentation must be shown by clear and convincing 

evidence. 15 FMSHRC at 789. The Commission determined that, because the 

Secretary's notifications of the proposed penalties stated that the penalties 

were augmented by the excessive history program, the operator failed to 

establish misrepresentation by the Secretary. 15 FMSHRC at 789-90. 

The Commission also concluded that, although Rule 60(b)(6) provides for 

relief for "any other reason justifying relief," it cannot be used to relieve 

a party from the duty to take legal action to protect its interests. 15 FMSHRC 

at 790. We held that, under the Mine Act, a mine operator is required to make 

deliberate litigation choices and that failure to contest proposed penalties 

is at the operator's peril. Id. Finally, the Commission concluded that the 

operator was not entitled to equitable relief because the Commission is not a 

court of general equity and the operator was less than vigilant in protecting 

its rights. ld. 

1016 
Accordingly, for the reasons expressed in JWR, we conclude that SOCCO 

failed to clearly and convincingly demonstrate justification for Rule 60(b)(3) 

or (b)(6) relief or for general equitable relief. 

As in JWR, we urge the Secretary to evaluate further the legality and 

feasibility of providing the refunds sought by SOCCO. See 15 FMSHRC at 791-

92. 

Arlene Holen, Chairman 

Richard V. Backley, Commissioner 

L. Clair Nelson, Commissioner 

Distribution 

David M. Cohen, Esq. 

American Electric Power Service Corp. 

P.O. Box 700 

Lancaster, OH 43130 

Susan E. Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

James A. Lastowka, Esq. 

HcDermott, Will & Emery 

1850 K Street, N.W. 

Washington, D.C. 20006 

Henry Chajet, Esq. 

Jackson & Kelly 

2401 Pennsylvania 

Washington, D.C. 

Ave., N.W. 

20037 

1017 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

WINDSOR COAL COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 29, 1993 

Docket No. SPECIAL 92-13 

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

In this proceeding arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Windsor Coal 

Company ("Windsor") filed with the Commission a Notice of Contest and Motion 

for Partial Relief from Final Order, seeking to reopen certain uncontested 

civil penalty assessments in which Windsor had paid in full penalties proposed 

by the Secretary of Labor. As the basis for its motion, Windsor cites Rule 

60(b), Federal Rules of Civil Procedure ("Rule 60(b)"), and principles of 

equity. 

Windsor contends that the penalties in dispute were invalidly augmented 

on the basis of the interim "excessive history" program set forth in the 

Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"), 

which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992), 

and related cases, could be accorded no legal weight or effect. Windsor seeks 

refunds of those portions of paid penalties attributable to augmentations 

under the PPL. 

This case is one of 19 special proceedings in which notices of contest 

and motions for relief from final orders were filed by mine operators. All of 

these cases raise identical issues. For the reasons fully set forth in Jim 

Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the 

Commission possesses jurisdiction to reopen final orders, including orders in 

which uncontested penalties were paid, but conclude that Windsor's request 

does not meet the requisite criteria under Rule 60(b) or principles of equity 

for the grant of such relief. Accordingly, we deny Windsor's motion to reopen 

and we dismiss this proceeding. 

In JWR, we held that a final order of the Commission may be reopened by 

the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC 

1018 
at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C. 

§ 815(a), which provides, in part, that an uncontested proposed penalty "shall 

be deemed a final order of the Commission and not subject to review by any 

court or agency," does not bar the Commission from granting Rule 60(b)-type 

relief in appropriate circumstances. 15 FMSHRC at 787-88. 

Windsor has invoked Rule 60(b)(3), alleging misrepresentation by the 

Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that 

the requested relief would serve the ends of justice. Motions to reopen under 

Rule 60(b) are committed to the sound discretion of the judicial tribunal in 

which relief is sought. 15 FMSHRC at 789(citations omitted). For the reasons 

set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this 

case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in a Rule 

60(b)(3) motion, misrepresentation must be shown by clear and convincing 

evidence. 15 FMSHRC at 789. The Commission determined that, because the 

Secretary's notifications of the proposed penalties stated that the penalties 

were augmented by the excessive history program, the operator failed to 

establish misrepresentation by the Secretary. 15 FMSHRC at 789-90. 

The Commission also concluded that, although Rule 60(b)(6) provides for 

relief for "any other reason justifying relief," it cannot be used to relieve 

a party from the duty to take legal action to protect its interests. 15 FMSHRC 

at 790. We held that, under the Mine Act, a mine operator is required to make 

deliberate litigation choices and that failure to contest proposed penalties 

is at the operator's peril. Id. Finally, the Commission concluded that the 

operator was not entitled to equitable relief because the Commission is not a 

court of general equity and the operator was less than vigilant in protecting 

its rights. Id. 

1019 
Accordingly, for the reasons expressed in JWR, we conclude that Windsor 

failed to clearly and convincingly demonstrate justification for Rule 60(b)(3) 

or (b)(6) relief or for general equitable relief. 

As in JWR, we urge the Secretary to evaluate further the legality and 

feasibility of providing the refunds sought by Windsor. See 15 FMSHRC at 791-

92. 

Distribution 

David M. Cohen, Esq. 

American Electric Power Service Corp. 

P.O. Box 700 

Lancaster, OH 43130 

Susan E. Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

James A. Lastowka, Esq. 

McDermott, Will & Emery 

1850 K Street~ N.W. 

Washington, D.C. 20006 

Henry Chajet, Esq. 

Jackson & Kelly 

2401 Pennsylvania 

Washington, D.C. 

Ave., N .W. 

20037 

1020 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ENERGY WEST MINING COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 29, 1993 

Docket No. SPECIAL 92-14 

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

In this proceeding arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Energy West 

Mining Company ("Energy West") filed with the Commission a Notice of Contest 

and Motion for Partial Relief from Final Order, seeking to reopen certain 

uncontested civil penalty assessments in which Energy West had paid in full 

penalties proposed by the Secretary of Labor. As the basis for its motion, 

Energy West cites Rule 60(b), Federal Rules of Civil Procedure ("Rule 60(b)"), 

and principles of equity. 

Energy West contends that the penalties in dispute were invalidly 

augmented on the basis of the interim "excessive history" program set forth in 

the Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"), 

which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992), 

and related cases, could be accorded no legal weight or effect. Energy West 

seeks refunds of those portions of paid penalties attributable to 

augmentations under the PPL. 

This case is one of 19 special proceedings in which notices of contest 

and motions for relief from final orders were filed by mine operators. All of 

these cases raise identical issues. For the reasons fully set forth in Jim 

Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JW"R"), we hold that the 

Commission possesses jurisdiction to reopen final orders, including orders in 

which uncontested penalties were paid, but conclude that Energy West's request 

does not meet the requisite criteria under Rule 60(b) or principles of equity 

for the grant of such relief. Accordingly, we deny Energy West's motion to 

reopen and we dismiss this proceeding. 

1021 
In JWR, we held that a final order of the Commission may be reopened by 

the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC 

at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C. 

§ 815(a), which provides, in part, that a~_uncontested proposed penalty "shall 

be deemed a final order of the Commission;and not subject to review by any 

court or agency," does not bar the Commission from granting Rule 60(b)-type 

relief in appropriate circumstances. 15 FMSHRC at 787-88. 

Energy West has invoked Rule 60(b)(3), alleging misrepresentation by the 

Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that 

the requested relief would serve the ends of justice. Motions to reopen under 

Rule 60(b) are committed to the sound discretion of the judicial tribunal in 

which relief is sought. 15 FMSHRC at 789(citations omitted). For the reasons 

set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this 

case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in a Rule 

60(b)(3) motion, misrepresentation must be shown by clear and convincing 

evidence. 15 FMSHRC at 789. The Commission determined that, because the 

Secretary's notifications of the proposed penalties stated that the penalties 

were augmented by the excessive history program, the operator failed to 

establish misrepresentation by the Secretary. 15 FMSHRC at 789-90. 

The Commission also concluded that, although Rule 60(b)(6) provides for 

relief for "any other reason justifying relief," it cannot be used to relieve 

a party from the duty to take legal action to protect its interests. 15 FMSHRC 

at 790. We held that, under the Mine Act, a mine operator is required to make 

deliberate litigation choices and that failure to contest proposed penalties 

is at the operator's peril. Id. Finally, the Commission concluded that the 

operator was not entitled to equitable relief because the Commission is not a 

court of general equity and the operator was less than vigilant in protecting 

its rights. Id. 

1022 
Accordingly, for the reasons expressed in JWR, we conclude that Enery 

West failed to clearly and convincingly demonstrate justification for Rule 

60(b)(3) or (b)(6) relief or for general equitable relief. 

As in JWR, we urge the Secretary to evaluate further the legality and 

feasibility of providing the refunds sought by Energy West. See 15 FMSHRC at 

791-92. 

Distribution 

Timothy :t-1. Biddle, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Susan E. Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

James A. Lastowka, Esq. 

McDermott, Will & Emery 

1850 K Street, N.W. 

Washington, D.C. 20006 

Henry Chajet, Esq. 

Jackson & Kelly 

2401 Pennsylvania 

Washington, D.C. 

Ave., N.W. 

20037 

Arlene Holen, Chairman 

6 V. Backley, Commissi:~ 

1023 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

CENTRALIA MINING COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 29, 1993 

Docket No. SPECLAL 92-15 

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

In this proceeding arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Centralia Mining 

Company ("Centralia") filed with the Commission a Notice of Contest and Motion 

for Partial Relief from Final Order, seeking to reopen certain uncontested 

civil penalty assessments in which Centralia had paid in full penalties 

proposed by the Secretary of Labor. As the basis for its motion, Centralia 

cites Rule 60(b), Federal Rules of Civil Procedure ("Rule 60(b)"), and 

principles of equity. 

Centralia contends that the penalties in dispute were invalidly 

augmented on the basis of the interim "excessive history" program set forth in 

the Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"), 

which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992), 

and related cases, could be accorded no legal weight or effect. Centralia 

seeks refunds of those portions of paid penalties attributable to 

augmentations under the PPL. 

This case is one of 19 special proceedings in which notices of contest 

and motions for relief from final orders were filed by mine operators. All of 

these cases raise identical issues. For the reasons fully set forth in Jim 

Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), ·we hold that the 

Commission possesses jurisdiction to reopen final orders, including orders in 

which uncontested penalties were paid, but conclude that Centralia's request 

does not meet the requisite criteria under Rule 60(b) or principles of equity 

for the grant of such relief. Accordingly, we deny Centralia's motion to 

reopen and we dismiss this proceeding. 

In JWR, we held that a final order of the Commission may be reopened by 

the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC 

1024 
at 786-89. As explained in JWR, section l05(a) of the Mine Act, 30 U.S.C. 

§ 815(a), which provides, in part, that an uncontested proposed penalty "shall 

be deemed a final order of the Commission and not subject to review by any 

court or agency," does not bar the Commission from granting Rule 60(b)-type 

relief in appropriate circumstances. 15 FMSHRC at 787-88. 

Centralia has invoked Rule 60(b)(3), alleging misrepresentation by the 

Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that 

the requested relief would serve the ends of justice. Motions to reopen under 

Rule 60(b) are committed to the sound discretion of the judicial tribunal in 

which relief is sought. 15 FMSHRC at 789(citations omitted). For the reasons 

set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this 

case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in a Rule 

60(b)(3) motion, misrepresentation must be shown by clear and convincing 

evidence. 15 FMSHRC at 789. The Commission determined that, because the 

Secretary's notifications of the proposed penalties stated that the penalties 

were augmented by the excessive history program, the operator failed to 

establish misrepresentation by the Secretary. 15 FMSHRC at 789-90. 

The Commission also concluded that, although Rule 60(b)(6) provides for 

relief for "any other reason justifying relief," it cannot be used to relieve 

a party from the duty to take legal action to protect its interests. 15 FMSHRC 

at 790. We held that, under the Mine Act, a mine operator is required to make 

deliberate litigation choices and that failure to contest proposed penalties 

is at the operator's peril. Id. Finally, the Commission concluded that the 

operator was not entitled to equitable relief because the Commission is not a 

court of general equity and the operator was less than vigilant in protecting 

its rights. Id. 

1025 
Accordingly, for the reasons expressed in JWR, we conclude that 

Centralia failed to clearly and convincingly demonstrate justification for 

Rule 60(b)(3) or (b)(6) relief or for general equitable relief. 

As in JWR, we urge the Secretary to evaluate further the legality and 

feasibility of providing the refunds sought by Centralia. See 15 FMSHRC at 

791-92. 

Distribution 

Timothy H. Biddle, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Susan E. Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

James A. Lastowka, Esq. 

McDermott, Will & Emery 

1850 K Street, N.W. 

Washington, D.C. 20006 

Henry Chajet, Esq. 

Jackson & Kelly 

2401 Pennsylvania 

Washington, D.C. 

Ave., N.W. 

20037 

Arlene Holen, Chairman 

~-<-~-z.c:&L / 

Richard V. Backley, Commissioner v 

sz~. ~i#tn;;/e_ 

L. 

~L~~ Clair Nelson, Commissioner 

1026 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

AMAX COAL COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 29, 1993 

Docket No. SPECIAL 92-16 

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

In this proceeding arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Amax Coal 

Company ("Amax") filed with the Commission a Notice of Contest and Motion for 

Partial Relief from Final Order, seeking to reopen certain uncontested civil 

penalty assessments in which Amax had paid in full penalties proposed by the 

Secretary of Labor. As the basis for its motion, Amax cites Rule 60(b), 

Federal Rules of Civil Procedure ("Rule 60(b)"), and principles of equity. 

Amax contends that the penalties in dispute were invalidly augmented on 

the basis of the interim "excessive history" program set forth in the 

Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"), 

which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992), 

and related cases, could be accorded no legal weight or effect. Amax seeks 

refunds of those portions of paid penalties attributable to augmentations 

under the PPL. 

This case is one of 19 special proceedings in which notices of contest 

and motions for relief from final orders were filed by mine operators. All of 

these cases raise identical issues. For the reasons fully set forth in Jim 

Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the 

Commission possesses jurisdiction to reopen final orders, including orders in 

which uncontested penalties were paid, but conclude that Amax's request does 

not meet the requisite criteria under Rule 60(b) or principles of equity for 

the grant of such relief. Accordingly, we deny Amax's motion to reopen and we 

dismiss this proceeding. 

In JWR, we held that a final order of the Commission may be reopened by 

the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC 

at 786-89. As explained in JWR, section lOS(a) of the Mine Act, 30 U.S.C. 

1027 
§ 815(a), which provides, in part, that an uncontested proposed penalty "shall 

be deemed a final order of the Commission and not subject to review by any 

court or agency," does not bar the Commission from granting Rule 60(b)-type 

relief in appropriate circumstances. 15 FMSHRC at 787-88. 

Arnax has invoked Rule 60(b)(3), alleging misrepresentation by the 

Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that 

the requested relief would serve the ends of justice. Motions to reopen under 

Rule 60(b) are committed to the sound discretion of the judicial tribunal in 

which relief is sought. 15 FMSHRC at 789(citations omitted). For the reasons 

set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this 

case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in a Rule 

60(b)(3) motion, misrepresentation must be shown by clear and convincing 

evidence. 15 FMSHRC at 789. The Commission determined that, because the 

Secretary's notifications of the proposed penalties stated that the penalties 

were augmented by the excessive history program, the operator failed to 

establish misrepresentation by the Secretary. 15 FMSHRC at 789-90. 

The Commission also concluded that, although Rule 60(b)(6) provides for 

relief for "any other reason justifying relief," it cannot be used to relieve 

a party from the duty to take legal action to protect its interests. 15 FMSHRC 

at 790. We held that, under the Mine Act, a mine operator is required to make 

deliberate litigation choices and that failure to contest proposed penalties 

is at the operator's peril. Id. Finally, the Commission concluded that the 

operator was not entitled to equitable relief because the Commission is not a 

court of general equity and the operator was less than vigilant in protecting 

its rights. Id. 

1028 
Accordingly, for the reasons expressed in JWR, we conclude that Amax 

failed to clearly and convincingly demonstrate justification for Rule 60(b)(3) 

or (b)(6) relief or for general equitable relief. 

As in JWR, we urge the Secretary to evaluate further the legality and 

feasibility of providing the refunds sought by Amax. See 15 FMSHRC at 791-92. 

Distribution 

Larry F. Pile, Esq. 

Amax Coal Company 

One Riverfront Place 

10 N.W. First Street 

Evansville, IN 47708 

Susan E. Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

James A. Lastowka, Esq. 

McDermott, Will & Emery 

1850 K Street, N.W. 

Washington, D.C. 20006 

Henry Chajet, Esq. 

Jackson & Kelly 

2401 Pennsylvania 

Washington, D.C. 

Ave., N.H. 

20037 

Arlene Holen, Chairman 

~£--Zfd/~~h /. 

Richard V. Backley, Commissioner p. 

~~ .. tf:.rni~ 

';f,&_w~?W L. Clair Nelson, Commissioner 

1029 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SUNNYSIDE COAL COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 29, 1993 

Docket No. SPECIAL 93-01 

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

In this proceeding arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Sunnyside Coal 

Company ("Sunnyside") filed with the Commission a Notice of Contest and Motion 

for Partial Relief from Final Order, seeking to reopen certain uncontested 

civil penalty assessments in which Sunnyside had paid in full penalties 

proposed by the Secretary of Labor. As the basis for its motion, Sunnyside 

cites Rule 60(b), Federal Rules of Civil Procedure ("Rule 60(b)"), and 

principles of equity. 

Sunnyside contends that the penalties in dispute were invalidly 

augmented on the basis of the interim "excessive history" program set forth in 

the Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"), 

which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992), 

and related cases, could be accorded no legal weight or effect. Sunnyside 

seeks refunds of those portions of paid penalties attributable to 

augmentations under the PPL. 

This case is one of 19 special proceedings in which notices of contest 

and motions for relief from final orders were filed by mine operators. All of 

these cases raise identical issues. For the reasons fully set forth in Jim 

Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the 

Commission possesses jurisdiction to reopen final orders, including orders in 

which uncontested penalties were paid, but conclude that Sunnyside's request 

does not meet the requisite criteria under Rule 60(b) or principles of equity 

for the grant of such relief. Accordingly, we deny Sunnyside's motion to 

reopen and we dismiss this proceeding. 

In JWR, we held that a final order of the Commission may be reopened by 

the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC 

1030 
at 786-89. As explained in JWR, section l05(a) of the Mine Act, 30 U.S.C. 

§ 815(a), which provides, in part, that an uncontested proposed penalty "shall 

be deemed a final order of the Commission and not subject to review by any 

court or agency," does not bar the Commission from granting Rule 60(b)-type 

relief in appropriate circumstances. 15 FMSHRC at 787-88. 

Sunnyside has invoked Rule 60(b)(3), alleging misrepresentation by the 

Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that 

the requested relief would serve the ends of justice. Motions to reopen under 

Rule 60(b) are committed to the sound discretion of the judicial tribunal in 

which relief is sought. 15 FMSHRC at 789(citations omitted). For the reasons 

set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this 

case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in a Rule 

60(b)(3) motion, misrepresentation must be shown by clear and convincing 

evidence. 15 FMSHRC at 789. The Commission determined that, because the 

Secretary's notifications of the proposed penalties stated that the penalties 

were augmented by the excessive history program, the operator failed to 

establish misrepresentation by the Secretary. 15 FMSHRC at 789-90. 

The Commission also concluded that, although Rule 60(b)(6) provides for 

relief for "any other reason justifying relief," it cannot be used to relieve 

a party from the duty to take legal action to protect its interests. 15 FMSHRC 

at 790. We held that, under the Mine Act, a mine operator is required to make 

deliberate litigation choices and that failure to contest proposed penalties 

is at the operator's peril. Id. Finally, the Commission concluded that the 

operator was not entitled to equitable relief because the Commission is not a 

court of general equity and the operator was less than vigilant in protecting 

its rights. Id. 

1031 
Accordingly, for the reasons expressed in JWR, we conclude that 

Sunnyside failed to clearly and convincingly demonstrate justification for 

Rule 60(b)(3) or (b)(6) relief or for general equitable relief_ 

As in JWR, we urge the Secretary to evaluate further the legality and 

feasibility of providing the refunds sought by Sunnyside. See 15 FMSHRC at 

791-92. 

Distribution 

Timothy M. Biddle, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Susan E. Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

401~ Wilson Blvd. 

Arlington, VA 22203 

James A. Lastowka, Esq. 

HcDermott, Will & Emery 

1850 K Street, N.W. 

Washington, D.C. 20006 

Henry Chajet, Esq. 

Jackson & Kelly 

2401 Pennsylvania 

Washington, D.C. 

Ave., N.H. 

200,37 

Arlene Holen, Chairman 

&/(_.-<.---L-~v&-£4>-;?~kL~ Richard V. Backley, Commissioner 

L. Clair Nelson, Commissioner 

1032 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

WESTMORELAND COAL COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 29, 1993 

Docket No. SPECIAL 93-02 

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

In this proceeding arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Westmoreland 

Coal Company ("Westmoreland") filed with the Commission a Notice of Contest 

and Motion for Partial Relief from Final Order, seeking to reopen certain 

uncontested civil penalty assessments in which Westmoreland had paid in full 

penalties proposed by the Secretary of Labor. As the basis for its motion, 

Westmoreland cites Rule 60(b), Federal Rules of Civil Procedure ("Rule 

60(b)"), and principles of equity. 

Westmoreland contends that the penalties in dispute were invalidly 

augmented on the basis of the interim "excessive history" program set forth in 

the Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"), 

which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992), 

and related cases, could be accorded no legal weight or effect. Westmoreland 

seeks refunds of those portions of paid penalties attributable to 

augmentations under the PPL. 

This case is one of 19 special proceedings in which notices of contest 

and motions for relief from final orders were filed by mine operators. All of 

these cases raise identical issues. For the reasons fully set forth in Jim 

Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), we hold that the 

Commission possesses jurisdiction to reopen final orders, including orders in 

which uncontested penalties were paid, but conclude that Westmoreland's 

request does not meet the requisite criteria under Rule 60(b) or principles of 

equity for the grant of such relief. Accordingly, we deny Westmoreland's 

motion to reopen and we dismiss this proceeding. 

In JWR, we held that a final order of the Commission may be reopened by 

the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC 

1033 
at 786-89. As explained in JWR, section l05(a) of the Mine Act, 30 U.S.C. 

§ 8l5(a), which provides, in part, that an uncontested proposed penalty "shall 

be deemed a final order of the Commission and not subject to review by any 

court or agency," does not bar the Commission from granting Rule 60(b)-type 

relief in appropriate circumstances. 15 FMSHRC at 787-88. 

Westmoreland has invoked Rule 60(b)(3), alleging misrepresentation by 

the Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting 

that the requested relief would serve the ends of justice. Motions to reopen 

under Rule 60(b) are committed to the sound discretion of the judicial 

tribunal in which relief is sought. 15 FMSHRC at 789(citations omitted). For 

the reasons set forth in JWR, we hold that Rule 60(b) relief is inappropriate 

in this case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in 

a Rule 60(b)(3) motion, misrepresentation must be shown by clear and 

convincing evidence. 15 FMSHRC at 789. The Commission determined that, 

because the Secretary's notifications of the proposed penalties stated that 

the penalties were augmented by the excessive history program, the operator 

failed to establish misrepresentation by the Secretary. 15 FMSHRC at 789-90. 

The Commission also concluded that, although Rule 60(b)(6) provides for 

relief for "any other reason justifying relief," it cannot be used to relieve 

a party from the duty to take legal action to protect its interests. 15 FMSHRC 

at 790. We held that, under the Mine Act, a mine operator is required to make 

deliberate litigation choices and that failure to contest proposed penalties 

is at the operator's peril. Id. Finally, the Commission concluded that the 

operator was not entitled to equitable relief because the Commission is not a 

court of general equity and the operator was less than vigilant in protecting 

its rights. Id. 

1034 
Accordingly, for the reasons expressed in JWR, we conclude that 

Westmoreland failed to clearly and convincingly demonstrate justification for 

Rule 60(b)(3) or (b)(6) relief or for general equitable relief. 

As in JWR, we urge the Secretary to evaluate further the legality and 

feasibility of providing the refunds sought by Westmoreland. See 15 FMSHRC at 

791-92. 

Distribution 

Suzan E. Moore, Esq. 

Westmoreland Coal Company 

P.O. Drawer A & B 

Big Stone Gap, VA 24219 

Susan E. Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

James A. Lastowka, Esq. 

HcDermott, Will & Emery 

1850 K Street, N.W. 

Washington, D.C. 20006 

Henry Chajet, Esq. 

Jackson & Kelly 

2401 Pennsylvania 

Washington, D.C. 

Ave., N.vJ. 

20037 

Arlene Holen, Chairman 

Richard V. Backley, Commissioner ~ 

~J.£~ oyce A. Doyle, Comm1ssion r 

L. Clair Nelson, Commissioner 

1035 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

LTV STEEL MINING COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 29, 1993 

Docket No. SPECIAL 93-03 

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

In this proceeding arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (l988)("Mine Act" or "Act"), LTV Steel Mining 

Company ("LTV") filed with the Commission a Notice of Contest and Motion for 

Partial Relief from Final Order, seeking to reopen certain uncontested civil 

penalty assessments in which LTV had paid in full penalties proposed by the 

Secretary of Labor. As the basis for its motion, LTV cites Rule 60(b), 

Federal Rules of Civil Procedure ("Rule 60(b)"), and principles of equity. 

LTV contends that the penalties in dispute were invalidly augmented on 

the basis of the interim "excessive history" program set forth in the 

Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"), 

which the Commission concluded in Drummond Co., 14 FMSHRC 661, 692 (May 1992), 

and related cases, could be accorded no legal weight or effect. LTV seeks 

refunds of those portions of paid penalties attributable to augmentations 

under the PPL. 

This case is one of 19 special proceedings in which notices of contest 

and motions for relief from final orders were filed by mine operators. All of 

these cases raise identical issues. For the reasons fully set forth in Jim 

Walter Resources. Inc., 15 FMSHRC 782 (May 1993) ("JWR"), ·we hold that the 

Commission possesses jurisdiction to reopen final orders, including orders in 

which uncontested penalties were paid, but conclude that LTV's request does 

not meet the requisite criteria under Rule 60(b) or principles of equity for 

the grant of such relief. Accordingly, we deny LTV's motion to reopen and we 

dismiss this proceeding. 

In JWR, we held that a final order of the Commission may be reopened by 

the Commission in appropriate circumstances pursuant to Rule 60(b). 15 FMSHRC 

at 786-89. As explained in JWR, section 105(a) of the Mine Act, 30 U.S.C. 

1036 
§ 815(a), which provides, in part, that an uncontested propose penalLy "shall 

be deemed a final order of the Commission and not subject to .·!View by 'lny 

court or agency," does not bar the Commission from granting kule 60(b)-type 

relief in appropriate circumstances. 15 FMSHRC at 787-88. 

LTV has invoked Rule 60(b)(3), alleging misrepresentation by the 

Secretary in the proposal of the penalties, and Rule 60(b)(6), asserting that 

the requested relief would serve the ends of justice. Motions to reopen under 

Rule 60(b) are committed to the sound discretion of the judicial tribunal in 

which relief is sought. 15 FMSHRC at 789(citations omitted). For the reasons 

set forth in JWR, we hold that Rule 60(b) relief is inappropriate in this 

case. 15 FMSHRC at 789-91. In JWR, the Commission explained that, in a Rule 

60(b)(3) motion, misrepresentation must be shown by clear and convincing 

evidence. 15 FMSHRC at 789. The Commission determined that, because the 

Secretary's notifications of the proposed penalties stated that the penalties 

were augmented by the excessive history program, the operator failed to 

establish misrepresentation by the Secretary. 15 FMSHRC at 789-90. 

The Commission also concluded that, although Rule 60(b)(6) provides for 

relief for "any other reason justifying relief," it cannot be used to relieve 

a party from the duty to take legal action to protect its interests. 15 FMSHRC 

at 790. We held that, under the Mine Act, a mine operator is required to make 

deliberate litigation choices and that failure to contest proposed penalties 

is at the operator's peril. Id. Finally, the Commission concluded that the 

operator was not entitled to equitable relief because the Commission is not a 

court of general equity and the operator was less than vigilant in protecting 

its rights. Id. 

1037 
Accordingly, for the reasons expressed in JWR, we conclude that LTV 

failed to clearly and convincingly demonstrate justification for Rule 60(b)(3) 

or (b)(6) relief or for general equitable relief. 

As in JWR, we urge the Secretary to evaluate further the legality and 

feasibility of providing the refunds sought by LTV. See 15 FMSHRC at 791-92. 

Distribution 

Senior Vice President, Operations 

LTV Steel Mining Company 

1100 Superior Avenue 

Cleveland, OH 44114 

Susan E. Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

James A. Lastowka, Esq. 

McDermott, Hill & Emery 

1850 K Street, N.W. 

Washington, D.C. 20006 

Henry Chajet, Esq. 

Jackson & Kelly 

2401 Pennsylvania 

Washington, D.C. 

Ave., N.W. 

20037 

L. Clair Nelson, Commissioner 

1038 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND H~TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

MAY 7 1993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. CENT 92-119 

v. 

Petitioner A.C. No. 29-00845-03541 

York canyon Surface Mine 

Docket No. CENT 92-142 

A.C. No. 29-00244-03570 

PITTSBURG AND MIDWAY COAL 

MINING COMPANY-YORK CNYN Docket No. CENT 92-143 

COMPLEX, A.C. No. 29-00244-03572 

Appearances: 

Before: 

Respondent 

Docket No. CENT 92-144 

A.C. No. 29-00244-03573 

Cimarron Mine 

DECISION 

William E. Everheart, Esq., Office of the Solicitor, u.s. Department of Labor, Dallas, Texas, 

for Petitioner; 

John W. Paul, Esq., PITTSBURG AND MIDWAY COAL MINING COMPANY, Englewood, Colorado, 

for Respondent. 

Judge Lasher 

In these four proceedings the Secretary of Labor (MSHA) 

seeks assessment of penalties for a total of 12 alleged violations (one each in Dockets CENT 92-119, 143, and 144 and nine in 

CENT 92-142) pursuant to Section 110(a) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 820(a) (1977). 

After the commencement of hearing in Albuquerque, New Mexico, on January 27, 1993, the parties concluded and announced the 

settlement of 6 of the 12 citations involved, which accord as 

reflected below was approved from the bench and is here affirmed. 

The remaining six Citations (five in Docket No. CENT 92-142 and 

that involved in CENT 92-143) were litigated. As a result of the 

settlement at hearing, the citations involved in Dockets numbered 

CENT 92-119 and 92-144 (one each) were fully disposed of. After 

1039 
the hearing, the parties submitted a second (written) settlement 

disposing of four of the six remaining Citations, Nos. 3244794, 

3244795, 3244894, in Docket CENT 92-142, and Citation No. 3243349 

in Docket CENT 92-143. 

Docket No. CENT 92-119 

This docket contains one Citation, No. 3242933, which was 

settled at the hearing. Pursuant to their agreement, the parties 

concur that the citation should be modified to delete the "Significant and Substantial" designation contained in paragraph 10 c 

thereof and that a penalty of $50 is an appropriate penalty for 

the violation in view of the modification. such penalty is here 

ASSESSED and the settlement reached, having been approved from 

the bench, is here AFFIRMED. 

Docket No. CENT 92-143 

This docket contains one Citation, No. 3243349, which was 

litigated (T. 132-147). However, subsequent to the hearing, as 

part of their written settlement agreement, Respondent withdrew 

its contest to Petitioner's initial penalty assessment and the 

parties agree that such initial proposed assessment of $119 is 

appropriate. Accordingly, such penalty is here ASSESSED. 

Docket No. CENT 92-144 

This docket contains one Citation, No. 3243253, which Petitioner moved to vacate at the hearing on the basis of insufficient evidence. That motion was approved, this citation was 

vacated on the record from the bench (T. 5-6), and such action is 

here AFFIRMED. 

Docket No. CENT 92-142 

This docket contains nine Citations, four of which were settled before the hearing, three were settled after hearing, and 

two of which were litigated and will be decided on the merits. 

A. settlement Before Hearing 

The four Citations which were settled before hearing (Nos. 

3244786, 3244797, 3244883, and 3244955) were done so on identical 

terms. Thus, Respondent conceded the occurrence of the violations charged, the "Significant and Substantial" designation on 

each of the four was deleted, and the parties agreed that a penalty of $50 for each was appropriate (T. 6-7). The settlement 

1040 
thereof was approved from the bench (T. 7-8) and that decision is 

here AFFIRMED. 

B. Written settlement After the Hearing 

1. Citation No. 3244794 

Pursuant to agreement, the "Significant and Substantial" designation of this violation will be deleted and Respondent will pay a single penalty assessment of $50.00. 

2. citation No. 3244795 

The "Significant and Substantial" designation of this 

citation will be deleted and Respondent will pay a single penalty 

assessment of $50.00. 

3. citation No. 3244894 

Respondent agrees to pay in full MSHA's original 

penalty assessment of $119.00. 

c. Decision on the Two Litigated citations 

The parties have stipulated as to jurisdiction, penalty assessment factors 1 , and that the violations charged in these two 

Citations did occur (T. 9-18). The issue is-whether these two 

violations were properly classified as "Significant and Substantial." Both parties submitted excellent briefs on this question. 

1. citation No. 3244895 CT. 97-118) 

This Citation, issued on January 23, 1992, by MSHA 

Inspector Anthony Duran during an inspection of this underground 

coal mine charges: 

Based thereon, I find that Respondent is a large coal mine operator 

(T. 11) with a history in the general neighborhood--as obtained by documentary 

evidence and stipulation (T. 15-17)--of 35-45 previous violations in the pertinent two-year period preceding the issuance of the Citations. It is also found 

that assessment of reasonable penalties will not affect Respondent's ability to 

continue in business and that the violations were promptly abated in good faith 

by Respondent after notification thereof. The two violations both resulted from 

negligence (T. 106, 125). The mandatory assessment factor of gravity will be 

discussed subsequently. 

1041 
An energized [sic] auxiliary fan was so 

located in the no. 3 entry at the 2nd 

crosscut outby the last open crosscut that 

was causing recirculation of the air 

through a 3-inch vent pipe at the stopping 

3rd crosscut outby the last open crosscut 

into the no. 2 intake air entry and to the 

working faces of MMU 001-0 5 left section. 

This was detected by the use of a smoke 

tube. 

The standard cited, 30 C.F.R. § 75.302-4 (Auxiliary fans and 

tubing), provides in pertinent part: 

In the event that auxiliary fans and 

tubing are used in lieu of or in conjunction with a line brattice system to provide ventilation of the working face: 

(a) The fan shall be of a permissible 

type, maintained in permissible condition, 

so located and operated to avoid any recirculation of air at any time, and inspected frequently by a certified person 

when in use. 2 

The purpose of the energized auxiliary fan in question was 

to exhaust air-consisting of oxygen, coal dust, and "possibly" 

methane--from the working face to the return. However, instead 

of venting into the return, the power center (discussed in the 2d 

Citation litigated) had a 3-inch vent pipe (tube) which was 

blowing air through to the intake and back into the working 

section (T. 99, 100, 101). 3 

Inspector Duran, using a smoke tube and standing in the intake entry, noted that the air was being pushed back toward him 

through the 3-inch pipe (T. 101-102). Although he did not take 

an air sampling to positively establish that coal dust (or methane) was coming through the pipe, his examination of the involved 

area did not disclose any other reason for the presence of a 

"mist" of coal dust in the air (T. 103); and he testified that it 

was blowing back into the section (T. 100, 103-104, 117). 

He stated that "you could see coal dust in the air and that 

you know there's something wrong in there. The coal dust is just 

suspended in the air or into the working section; it don't go 

2 The essence of the standard, as focused by the Citation, is on the 

location of the fan. 

3 Respondent concedes that some air from the return entry was being recirculated back into the intake entry by leakage through the 3-inch diameter 

pipe. (See Respondent's Post-hearing Brief, p. 4). 

1042 
out." (T. 103). It should be noted that this assessment of 

something being wrong was confirmed by Respondent's safety 

manager, Michael Kotrich (T. 129) who was not present during the 

inspection (T. 115). 

The Inspector determined that the source of this cloud of 

coal dust was a three-inch vent tube in the stopping in the third 

crosscut which was venting "return" air into the "intake" entry 

{T. 103, 108, 110, 112; see Ex. P-3). Before making this determination he checked the stoppings to see if any were missing or 

leaking (T. 103). There were no other sources for this float 

coal dust as coal dust generated at the working face was being 

ventilated through exhaust tubing via the auxiliary fan into the 

"return" (T. 109-110, 116-117) and there were no leaks in this 

exhaust tubing {T. 116). 

Respondent's only witness as to this issue was its safety 

manager Michael J. Kotrich who was not present during the inspection (T. 115). He testified that in his estimation "not a 

great deal" of dilution of the air volume in the intake could be 

caused by a three-inch leak and offered other possibilities for 

the occurrence of the mist observed by the Inspector. This testimony does not rebut the fact that the cloud of coal dust was in 

the intake near the working face. Nor does it rebut Inspector 

Duran's testimony that he investigated the source of dust, eliminated other possibilities and determined it had to be the vent 

tube. 

Respondent's cross-examination of Inspector Duran revealed 

that he did not observe any dust passing through the vent tube 

{T. 107). However, Inspector Duran testified that you would not 

be able to see respiratory coal dust venting through a three-inch 

pipe {T. 117) although you could see it when it became suspended 

as a mist in the air {T. 107-108, 112, 117). 

Inspector Duran testified that the two hazards associated 

with "return" air being recirculated in the "intake" air are 

methane and respirable coal dust {T. 101). He testified that the 

float coal dust being recirculated posed both a respiratory hazard as well as an ignition and/or explosion hazard and that nine 

miners at the working face were exposed to these hazards {T. 101-

102, 105). While he did not detect any methane in the recirculated "return" air when he tested for it {T. 107, 109) he testified that methane is liberated when coal is mined (T. 99-100, 

126-127) and that methane poses a fire andfor explosion hazard 

{T. 123). 

Respondent did not contest the underlying violations. Only 

the "Significant and Substantial" {S&S) designation is in dispute. In Mathies Coal Co., 6 FMSHRC 1, 3-4 {1984), the Commission set forth the S&S prerequisites: 

1043 
In order to establish that a violation of a mandatory 

standard is significant and substantial under [Cement 

Division, National Gypsum Co., 3 FMSHRC 822 (1981)], 

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 question is whether there is a "reasonable likelihood" 

the hazards contributed to by this violation will result in an 

injury of a reasonably serious nature. "Such a measurement 

cannot ignore the relevant dynamics of the mining environment or 

processes" and must be evaluated "in terms of continued normal 

mining operations." u.s. steel Mining Co., Inc., 6 FMSHRC 1573, 

1574 (July 1984). The Commission has emphasized that "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 

Co., 6 FMSHRC 1834, 1836 (August 1984). In other words, was 

"there a reasonable likelihood that the hazard contributed to 

would come to fruition and cause an injury?" Mountain Coal 

Company, 9 FMSHRC 1571, 1581 (Sept. 1992}. 

In discussing analytical processes for determining the 

"reasonable likelihood" question, in Mountain coal Company, 

supra, at pages 1582-1583 the "substantial possibility" test was 

noted. It is defined in Coal Mac. Incorporated, 9 FMSHRC 1600 

(ALJ September 1991} as follows: 

Analysis of the statutory language and the Commission's decisions indicates that the test of an S&S 

violation is a practical and realistic question 

whether, assuming continue mining operations, the violation presents a substantial possibility of resulting 

in injury or disease, not a requirement that the Secretary of Labor prove that it is more probable than 

not that injury or disease will result •••• The statute, which does not use the phrase "reasonably likely 

to occur" or "reasonable likelihood" in defining an 

S&S violation, states that an S&S violation exists if 

"the violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety and health hazard" 

(S 104(d)(1) of the Act; emphasis added). Also, the 

statute defines an "imminent danger" as any condition 

or practice ••• which could reasonably be expected to 

cause death or serious physical harm before [it) can 

be abated," and expressly places S&S violations below 

imminent dangers. It follows that the Commission's 

use of the phrase "reasonably likely to occur" or 

reasonable likelihood" does not preclude an S&S finding where a substantial possibility of injury or disease is shown by the evidence, even though the proof 

may not show that injury or disease was more probable 

than not. 

1044 
In Mountain Coal it was indicated that a "remote possibility 

of the violation's resulting in injury (or disease) is not sufficient." Supra, 1583. However, "to meet the "S&S" requirements, 

MSHA would not seem to be required to show a "strong" possibility, a probability, or a certainty of a resultant injury.," 

Supra, 1583. 

Convincing evidence shows a "substantial possibility" of injury or disease as a result of this violation of this ventilation 

standard for the following reasons: 

1. The area in the vicinity of the working face where the 

violation occurred was an active mining area and coal mining was 

in progress. Nine workers were working in this area (T. 104-105, 

112, 115, 126). 

2. As a result of the violation, combustible and respiratory coal dust in the "return" was being recirculated into the 

"intake" resulting in a cloud of coal dust suspended in the 

intake near the working area (T. 100-104, 108, 110, 112, 117). 

3. Numerous ignition sources were present in the working 

area where the recirculated "return" air was suspended, i.e., the 

power center, electric cable, power center connection points, and 

the electrically powered continuous miner machine (T. 103, 104, 

116, 123-124). 

4. Float coal dust accumulations in active workings pose 

a serious danger of explosion or fire. 

5. The nine miners working in this area were exposed to 

the hazard of fire and/or explosion caused by a possible ignition 

or the recirculated float coal dust. Injuries would be disabling 

or fatal (T. 102, 105). 

6. The nine miners working in this area were exposed to 

the hazard of breathing respirable coal dust. Pneumoconiosis 

(Black Lung Disease) is a chronic dust disease of the lung arising out of dust exposure in coal mine employment. (See 20 C.F.R. 

Part 718.201). It is recognized as "one of the most crippling 

occupational health hazards facing miners." 

7. Although the recirculated air tested negative for methane at the time of the inspection, methane is liberated when coal 

is mined and methane is exhausted into the "return" (T. 126-127). 

In the perspective of continued normal mining operations, methane 

release is another possibility which added to coal dust suspension, and considered in conjunction with the potential ignition 

sources present, increases the likelihood of injury from explosion or fire. See Youghiogheny and Ohio Coal Company, 9 FMSHRC, 

673 (April 30, 1987). 

1045 
It is concluded that there existed a reasonable likelihood 

that the hazard contributed to by the violation would result in 

reasonably serious injury or illness and that, the other prerequisites of the Mathies formula having been conceded or clearly 

shown, this violation is significant and substantial. 

As such, it necessarily follows that it is a serious violation. Having considered this factor and the other penalty assessment criteria mandated by the Mine Act set forth above, a 

penalty of $100 is found appropriate and is here assessed. 

2. Citation No. 3244896 (T. 118-132) 

This citation also issued on January 23, 1992, by Inspector 

Duran and based on the same facts as Citation No. 3244895, 

charges: 

The energized non-permissible power center located in 

the 3rd crosscut outby the last open crosscut of the 

no. 2 intake air entry was not placed in intake air in 

that a 3-inch pipe vent pipe at the stopping was venting return air over the top of the power center caused 

by recirculation of the air from an auxiliary fan located in the no. 3 return entry of MMU 001-0 5 left 

section. This was detected by the use of a smoke 

tube. A methane test was taken with a permissible 

methane detector chk .0% at the vent pipe. 

The safety standard infracted. C.F.R. S 75.507 (Power 

connection points), provides insofar as pertinent: 

Except where permissible power connection units are 

used, all power-connection points outby the last open 

crosscut shall be in intake air. 4 

The parties stipulated on the record (T. 119) that the 

evidence introduced with respect to Citation No. 3244395 can be 

considered part of the record in connection with citation No. 

3244896. My findings of fact in connection with citation No. 

3244395 are incorporated with respect to this Citation insofar as 

applicable (T. 121) and except with respect to the hazard involved with this Citation which the parties agree differs from 

that involved in Citation No. 3244895 (T. 119). 

The thrust of the violation is that the non-permissible power center 

was not located in intake air. This, in conjunction with the hazard created, are 

important background for determining the "Significant and Substantial" issue. 

1046 
It is- further found that Citation No. 3244896 was issued a 

few minutes after Citation No. 3244895 was issued. The reliable, 

substantive evidence of record established that: 

1. Return air was being recirculated through a vent tube 

over the nonpermissible power center located in the third crosscut near the working face in an intake air entry (Ex. P-3; 

T. 121). 

2. There was no evidence of a malfunction in the power 

center, cables, or machinery (T. 126, 127). 

a. The 7,200-volt power center supplies power to 

machinery at the working face (T. 121-122). 

b. At least seven cables run from it to the working 

face (T. 121-122). 

3. The potential ignition sources present were the power 

center, its cables, and nonpermissible connection points (T. 122, 

123). 

4. While there was coal dust suspended in the air, as previously determined, there was no evidence of methane present 

(T. 124, 125, 126). The Inspector said the absence of methane 

was "possibly" because the continuous miner was not operating 

(T. 126). 5 

5. The Inspector described the hazard and resultant injury 

as follows: "Possible ignition source, respirable dust, smoke 

from fire in the event the power center caught on fire ... 

* * * * * 

Lost days work, restricted duty. (T. 124) 

6. Equipment in the power center was examined "each shift 

when it's energized and by a qualified electrician weekly" (T. 

128). 

CONCLUSION 

The hazard created by this violation is confined to that 

which is created by the location of the power center. In terms 

of the Mathies formula, the violation has been conceded, and 

there is no question that this violation would result in an 

injury. Although the Inspector at one point stated his opinion, 

5 Respondent's Safety Manager indicated he has never detected methane 

at the working faces in excess of "applicable" standards (T. 129). 

1047 
that there was a "probability" (T. 127) that something could 

happen if there were a malfunction, the totality of his testimony 

reveals that (a) there was no malfunction and (b) there existed 

only a remote possibility of a malfunction occurring and the 

hazard coming to fruition. Thus, he testified, "There could be a 

failure at the power center, there could (be a) failure at the 

cable, at the connecting points." (Emphasis added). (T. 123). 

Speculation of an event that "could" occur falls short of 

showing that the illness or injury is "reasonably likely" to 

happen. See Union Oil co. of California, 11 FMSHRC 289 (Mar. 31, 

1989). 

The Inspector not only did not identify any malfunction of 

the equipment specified in the standard, but that such malfunction might occur in the future was speculative. The evaluation 

of reasonable likelihood of risk must be made in terms of continued normal mining operations, and based on the particular 

facts surrounding the violation. 

It is concluded that the Secretary did not carry the burden 

of proof in establishing the "reasonable likelihood that the 

hazard contributed to will result in an injury." This violation 

is not found to be significant and substantial. It is found to 

be moderately serious. Accordingly, Citation No. 3244896 will be 

modified to delete the "S&S" designation, and a penalty of $50 is 

ASSESSED. 

ORDER 

1. Citation No. 3243253 in Docket No. CENT 92-144 is 

VACATED. 

2. The following Citations in the dockets indicated are 

MODIFIED to delete the "Significant and Substantial" designations 

thereon: 

Citation Ho. 

3242933 

3244786 

3244797 

3244883 

3244955 

3244794 

3244795 

. 3244896 

1048 

Docket HUmber 

CENT 92-119 

CENT 92-142 

CENT 92-142 

CENT 92-142 

CENT 92-142 

CENT 92-142 

CENT 92-142 

CENT 92-142 
3. The following 

Citation No. 

3242933 

3243349 

3244786 

3244797 

3244883 

3244955 

3244794 

3244795 

3244894 

3244895 

3244896 

penalties are ASSESSED. 

Docket Number 

CENT 92-119 

CENT 92-143 

CENT 92-142 

CENT 92-142 

CENT 92-142 

CENT 92-142 

CENT 92-142 

CENT 92-142 

CENT 92-142 

CENT 92-142 

CENT 92-142 

Penalty 

$ 50.00 

$119.00 

$ 50.00 

$ 50.00 

$ 50.00 

$ 50.00 

$ 50.00 

$ 50.00 

$119.00 

$100.00 

$ 50.00 

4. Respondent, if it has not previously done so, SHALL PAY 

the Secretary of Labor within 30 days from the date hereof the 

total sum of $738.00. 

Distribution: 

~ ~ ~~,c_fi '-

Michael A. Lasher, Jr. 

Administrative Law Judge 

William E. Everheart, Esq., Office of the Solicitor, u.s. 

Department of Labor, 525 Griffin Street, Suite 501, Dallas, TX 

75202 (Certified Mail} 

John W. Paul, Esq., PITTSBURG AND MIDWAY COAL MINING COMPANY, 

6400 South Fiddler's Green Circle, Englewood, CO 80111-4991 

(Certified Mail} 

Nickie D. Ortega, UMWA, 1401 Arnold street, Raton, NM 87740 

(Certified Mail} 

ek 

1049 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 h S1HUl t'w. CiH flOOf·' 

WASHINGTON. 0 C 700(){) 

JUN 2 1993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) Docket No. LAKE 92-399-M-A 

Petitioner A. C. No. 21-00820-05700-R 

v. Minntac Plant 

USX CORPORATION, MINNESOTA 

ORE OPERATIONS, 

Respondent 

Before: 

ORDER PARTIALLY VACATING ORDER OF DISMISSAL 

ORDER AMENDING DECISION APPROVING PENALTY 

ORDER TO REFUND 

Judge Merlin 

On November 19, 1992, the operator filed a motion to withdraw its contest of those violations contained in Docket No. 

LAKE 92-399-M which were designated non-significant and substantial. On January 5, 1993, an order was issued removing the nonsignificant and substantial violations from LAKE 92-399-M and 

placing them in a newly created docket, LAKE 92-399-M-A. On 

the same day, a decision approving penalty was issued in 

LAKE 92-399-M-A approving the proposed penalties, dismissing the 

matter and directing the operator to pay the proposed penalties. 

On April 28, 1993, Administrative Law Judge Feldman issued a 

decision approving settlements for sixteen cases involving this 

operator including Docket No. LAKE 92-399-M. 

On May 14, 1993, the operator filed a motion to reopen this 

proceeding. The operator advised that in its motion to withdraw 

it had requested that its contest be ·withdrawn for all the nonsignificant and substantial violations in LAKE 92-399-M except 

Citation No. 3892662. The operator also stated that it paid the 

$5,767 assessment. in LAKE 92-399-M-A which included the $800 

penalty for Citation No. 3892662. 

In addition, Citation No. 3892662 was included in the April 

28 settlement decision issued by Judge Feldman. The proposed 

penalty for this violation was reduced from $800 to $311 which 

was included in the total assessments the operator was ordered to 

pay by Judge Feldman. The operator states that it has paid this 

assessment. 

A review of the file shows that the operator did request 

that this citation not be dismissed. However, due to a clerical 

1050 
error the citation was included in the January 5 order of removal 

and replacement as well as in the decision approving penalty and 

order of dismissal. I conclude partial relief from the decision 

approving penalty and order of dismissal is warranted. 

29 C.F.R. § 2700.65(c). Therefore, the January 5 decision 

approving penalty should be amended to reflect the amount due 

without Citation No. 3892662 and the order of dismissal should be 

vacated with respect to this violation. The approval of the 

settlement by Judge Feldman for Citation No. 3892662 will stand 

because that violation would have been properly before him when 

his decision was issued were it not for the clerical error, noted 

above. In light of the foregoing, I find that in this case the 

operator overpaid MSHA $800 for Citation No. 3892662 and that 

amount should be refunded to the operator. 

Accordingly, it is ORDERED that the January 5 order of 

dismissal issued with respect to Citation No. 3892662 in 

LAKE 92-399-M-A be VACATED. 

It is further ORDERED that the January 5 decision approving 

penalty issued for LAKE 92-399-M-A be amended to reflect the 

correct penalty amount of $4,967. 

It is further ORDERED that the operator's overpayment of 

$800 for LAKE 92-399-M-A be REFUNDED to the operator. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Miguel J. Carmona, Esq., Office of the Solicitor, U. s. Department of Labor, 230 s. Dearborn Street, 8th Floor, Chicago, IL 

60604 (Certified Mail) 

Billy M. Tennant, Esq., USS a Div. of USX Corp., 600 Grant 

street, Room 1580, Pittsburgh, PA 15219-4776 (Certified Mail) 

Mr. James Ranta, United Steel Workers of America, P. o. Box 84, 

Chisholm, MN 55719 (Certified Mail) 

jgl 

1051 
:rBDBDL KXBB SUB'l'Y AIJD BBALTII ltBVXBif COJDU:SS:IOB 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 2 1993 

JERRY IKE HARLESS TOWING 

INCORPORATED, HARLESS, INC.,: 

CONTEST PROCEEDING 

Contestants 

v. 

Docket No. CENT 92-276-RM 

Citation No. 3896905; 5/19/92 

SECRETARY OF LABOR, Harless Inc. 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Mine ID 16-01238 

Appearances: 

Before: 

DECISION 

Jerry Ike Harless, Lake Charles, Louisiana, 

Michael E. Roach, Esq., on the brief, for 

the Contestants; 

Robert Goldberg, Esq., u.s. Department of 

Labor, Office of the Solicitor, Dallas, 

Texas, for the Respondent. 

Judge Feldman 

This proceeding concerns a Notice of Contest filed 

pursuant to Section 105 of the Federal Mine Safety and Health 

Act of 1977 (the Act), 30 u.s.c. § 815. A hearing was conducted on January 29, 1993, in Lake Charles, Louisiana, at 

which Jerry Ike Harless (Harless), the Chief Executive Officer 

(CEO) of Jerry Ike Harless Towing, Inc. (Harless Towing), and 

Harless, Inc., represented the contestant. 1 Harless stipulated 

1 Harless Towing, which is involved with the dredging of 

sand, and Harless, Inc., which sells sand, gravel and limestone, 

will be referred to collectively as the contestant. Although 

the subject citation in this matter was issued to Harless, Inc., 

it is apparent that the issuing inspector was not familiar with 

the distinction between the two corporate entities. The 

inspector's confusion is understandable in view of Harless' 

failure to file any identity reports with MSHA distinguishing the 

corporations. Moreover, Harless' May 27, 1992, complaint seeking 

injunctive relief and his July 20, 1992, Notice of Contest in 

this proceeding were filed on behalf of both Harless Towing and 

Harless, Inc. (Gov. Ex. 2). Finally, Chief Administrative Law 

Judge Merlin's September 4, 1992, Order of Assignment in this 

proceeding notes both corporations. Accordingly, at trial, I 

concluded that although Harless, Inc., was cited as the operator 

in the subject citation, MSHA's jurisdiction over Harless Towing 

is also an appropriate issue for disposition in this proceeding. 

(Tr. 141-143). consequently, Counsel's posthearing assertion in 

1052 
on the record to my jurisdiction to hear this matter (Tr. 20). 

However, his stipulation concerning my authority was not 

an admission that either corporation is engaged in mining. 

After the trial, Harless retained Michael E. Roach as legal 

counsel. On April 15, 1993, Roach filed a simultaneous motion 

to appear and motion requesting an extension of time to file 

posthearing briefs which was granted by Order dated April 19, 

1993. The parties filed proposed findings and conclusions on 

May 10, 1993. 

As detailed below, Harless Towing dredges sand from the 

Calcasieu River. The sand is then transported by barge to a 

dock location at Harless, Inc., where it is off-loaded, stockpiled and sold (Tr. 115). This contest proceeding concerns 

the validity of Citation No. 3896905 that was issued to Harless 

on May 19, 1992, for violation of 30 C.F.R. § 56.1000, as a 

result of his failure to notify the Mine Safety and Health 

Administration (MSHA) of his commencement of mining operations. 2 

The basic issue for determination is whether the activities of 

Harless Towing andjor Harless, Inc., are subject to the 

jurisdiction of the Mine Act. 

PRELIMINARY FINDINGS OF FACT 

As indicated above, Jerry Ike Harless is the CEO of Harless 

Towing and Harless, Inc., which are closely held corporations 

incorporated in the State of Louisiana. His daughters, Jeri 

Green and Barbara Southerland, respectively, are the President 

and Vice President of both corporations. Harless' wife, Mildred 

Whitney Harless, is the Secretary of both companies. 

Harless Towing has been extracting sand from the riverbed 

of the Calcasieu River four to six months each year for the 

last 30 years. The Calcasieu River is a navigable waterway 

which flows into the Gulf of Mexico. Harless Towing, pursuant 

fn. 1 (continued) 

his proposed findings that Harless Towing is not a party in this 

matter is without merit. 

2 Section 56.1000 provides: 

"The owner, operator, or person in charge of any metal 

or nonmetal mine shall notify the nearest Mine Safety and Health 

Administration and Metal and Nonmetal Mine Safety and Health 

Subdistrict Office before starting operations, of the approximate 

or actual date mine operation will commence. The notification 

shall include the mine name, location, the company name, mailing 

address, person in charge, and whether operations will be 

continuous or intermittent." 

This notification is essential to the orderly administration 

and enforcement of the Mine Act. 

1053 
to a United States Corps of Army Engineers permit, extracts 

approximately 20,000 to 25,000 tons of sand per year. The 

extracted material does not contain any coal. 

Harless Towing employs between four and eight individuals 

in its sand dredging operation. During non-dredging months 

these employees work at Harless, Inc., performing such duties 

as truck driving, loading and stockpiling. Harless Towing uses 

a vessel, the "D/B Betsy," with dredging machinery situated 

thereupon and several barges in tow. The dredge hydraulically 

suctions sand and sediment from the river bottom, along with 

river water. The dredged material is then pumped through a 

system of piping, wherein an initial separation process takes 

place separating the sand from the bulkier material. The piping 

then directs the sand and sediment onto a barge called the screen 

barge. There, the material is pumped through a 1/4 inch mesh 

screen where remaining debris is removed. From the screen barge 

the sand and water are pumped through a chute or flume to another 

barge, called the heart barge. On the heart barge, the sand is 

further processed to separate sand from the remaining water. 

The sand screening process continues during the period the 

sand is conveyed by tug on the heart barge to one of two of 

Harless, Inc.'s, off-loading terminals where cranes, owned and 

operated by Harless, Inc., remove and stockpile the sand. The 

tugboat operation is regulated by the United States Coast Guard. 

Harless, Inc.'s main terminal is located at Bayou D'Inde Street, 

approximately 20 miles down river from the dredging site. 

Harless, Inc., sells the sand to individual and corporate 

customers who are large industrial concerns such as Occidental 

Petroleum, Citgo Petroleum, Olin and Gulf States Utilities. 

The sand is used in a variety of ways including industrial use, 

building foundations, golf course sand traps and sand boxes. 

In addition to river sand, Harless, Inc., also stockpiles and 

sells limestone aggregate, gravel, mason sand and concrete sand. 

The limestone comes from Kentucky and Missouri by barge and the 

gravel is hauled from various quarries north of Lake Charles. 

Sometimes the gravel is delivered and sometimes Harless, Inc., 

hauls the gravel by truck. 

On May 12, 1992, MSHA Inspectors John Ramirez and Steve 

Montgomery arrived on the Bayou D'Inde premises of Harless, Inc., 

where they met Harless and his daughter, Barbara Southerland. 

They identified themselves and explained the legal identity 

reporting requirements for mine operators contained in Section 

56.1000. Harless and Southerland questioned whether they were 

subject to the Mine Act's jurisdiction. Ramirez left the Legal 

Identity Report (MSHA Form 2000-7) with them for completion 

and obtained permission to inspect Harless Towing's dredging 

operation located upstream. Ramirez and Montgomery drove to 

the dredging site where they inspected the dredge, including 

1054 
all moving components on the engine, such as shafts and pulleys. 

They also checked handrails and looked at the first aid kit 

and fire extinguishers. They did not find any violations and 

concluded that the dredging site "was a clean operation." 

(Tr. 53). 

Ramirez and Montgomery returned to the Harless, Inc., site 

on May 13, 1992, at which time Harless and Southerland refused 

to complete the Legal Identity Report because they believed that 

they were not engaged in mining. No additional action was taken 

by Ramirez in order to provide Harless with the opportunity to 

consult an attorney. Ramirez returned on May 19, 1992, at which 

time Harless again refused to complete the mine registration 

process. Consequently, Ramirez issued Citation No. 3896905 for 

a violation of Section 56.1000 based upon Harless' failure to 

notify MSHA before commencing sand dredging operations. 

On May 22, 1992, Harless challenged MSHA's jurisdiction 

by seeking injunctive relief in the United states District 

Court for the Western District of Louisiana. Thereafter, 

Citation No. 3896905 was modified on June 1, 1992, to extend 

indefinitely the termination date to allow Harless to pursue the 

injunction. On July 15, 1992, The Honorable Edward F. Hunter 

dismissed Harless' request for relief with the stipulation that 

he be provided with the opportunity to pursue relief through the 

Mine Act's administrative process. This brings us to the case 

at bar. 

FURTHER FINDINGS AND CONCLUSIONS 

Commerce Issue 

As a threshold matter, regardless of whether Harless is 

engaged in mining, he argues that his companies are exempt from 

the jurisdiction of the Mine Act because they are not engaged 

in interstate commerce. The following discussion formalizes 

my bench decision that both corporate entities are engaged in 

interstate commerce as contemplated by the Act (Tr. 22-23). 

Section 4 of the Mine Act, 30 u.s.c. § 803, provides: 

Each coal or other mine, the product of which enter 

commerce, or the operations or products of which 

affect commerce, and each operator of such mine, 

and every miner in such mine shall be subject to 

the provisions of this Act (emphasis added). 

In Cobblestone, Ltd., 10 FMSHRC 731, 733 (June 1988), 

Judge Cetti, citing Brennan v. OSHRC, 492 F.2d 1027 (2nd Cir. 

1974); u.s. v. Dye Construction Co., 510 F.2d 78, 83 (lOth Cir. 

1975); Polish National Alliance v. NLRB, 322 u.s. 643 (1944); 

and Godwin v. OSHRC, 540 F.2d 1013 (9th Cir. 1976), noted that 

1055 
the phrase "which affect commerce" in Section 4 of the Mine 

Act is consistent with Congress' intent to exercise its full 

constitutional authority under the commerce clause. 3 

Turning to the facts of this case, Harless Towing operates 

a vessel under the jurisdiction of the u.s. Coast Guard in the 

navigable waters of the Calcasieu River in order to dredge and 

transport sand under permit issued by the u.s. Corps of Army 

Engineers. These operational activities alone, without addressing the issue of the ultimate destination of the extracted sand, 

affect commerce and give rise to Federal jurisdiction. 

Therefore, Harless Towing is clearly engaged in the requisite 

activities that subject it to the jurisdiction of Section 4 of 

the Mine Act. 

Harless, Inc., sells the dredged sand it acquires from 

Harless Towing to multi-national and national corporations such 

as Occidental Petroleum, Citgo Petroleum, Olin, Gulf States 

Utilities and Pittsburgh Plate Glass Company. Harless testified 

that the sand is delivered to customers by truck. It is used to 

manufacture glass. its uses also include fill under roadways 

and use as a construction material in foundations (Tr. 21-23). 

It is obvious that the trucking of the sand and its use to support highways, alone, affect commerce. Moreover, the interstate 

activities of its customers, ~, Gulf States Utilities, provide 

a basis for concluding that the sand sold by Harless, Inc., 

enters or affects commerce. Thus, Harless, Inc.'s business 

activities also satisfy the commerce criteria in Section 4 of 

the Act. 4 

Mining Issue 

Having determined the companies are engaged in commerce, 

the remaining issue is whether they are mine operators under the 

Act. Section 3(h) (1) of the Act defines, in pertinent part, 

"coal or other mine" as: 

3 "Commerce" is defined in Section 3(b) of the Mine Act, 

30 u.s.c. § 802(b) as: 

"Trade, traffic, commerce, transportation or communication 

among the several states, or between a place in a state and any 

place outside thereof, or within the District of Columbia, or a 

possession of the United States, or between points within the 

same state but through a point outside thereof."· 

4 Harless' testimony relied upon in his posthearing 

brief that, "Our sand -- I want to say 100 percent -- I will 

say 99 percent is sold right here in Calcasieu Parish", is 

not dispositive (Tr. 21). The local sale of a product does 

not establish that the product does not ultimately enter or 

affect commerce. 

1056 
(A) an area of land from which minerals are extracted 

in nonliquid form or, if in liquid form, are extracted 

with workers underground, (B) private ways and roads 

appurtenant to 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 nonliguid 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 (emphasis added). 

30 u .S.C. § 802 (h) (1) 0 

In an attempt to escape from the above statutory definition, 

Harless asserts that sand is not a mineral. In the alternative, 

he contends that the dredging of sand from a river bottom is 

extraction of minerals in liquid form. The assertion that sand, 

which is composed of quartz and other silica, is a non-mineral 

is frivolous (Tr. 86). Harless' remaining contention that the 

dredging of sand from a riverbed is the extraction of a mineral 

in liquid form is equally uninspiring. 5 In this regard, the 

United States Court of Appeals has held that the operation of 

removing sand and gravel from their natural deposits is mining 

under Section 3(h) (1) of the Act. In fact, the Court concluded 

that the operation of preparing sand by separating water and 

other debris gives rise to Mine Act jurisdiction even if 

5 The contestant's posthearing brief also cites the 

Louisiana Civil Code to support its contention that it is not 

engaged in mining. Notwithstanding the fact that the Louisiana 

Civil Code is preempted by the Mine Act, the provisions of this 

state statute have nothing to do with the mine industry. What 

is on point are Marshall v. Stoudt's Ferry Preparation Co., 

602 F.2d 589, (3d Cir. 1979) cert. denied, 444 u.s. 1015 (1980) 

and Fleniken's Sand and Gravel. Inc., 10 FMSHRC 1509 (November 

1988). At my request, copies of these cases were·provided to 

Harless by counsel for the Secretary. (Letter dated February 9, 

1993, from Robert A. Goldberg, Esq., to Jerry Ike Harless). 

These decisions were sent to Harless to facilitate his compliance 

with my on-the-record statement ordering the parties to compare 

these cases to the current case in their posthearing briefs See 

Tr. 152). The contestant's brief, however, fails to address 

these cases. 

1057 
the extraction process is not performed by the operator. 

See Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d 

at 591-592. 6 

Consistent with Stoudt's Ferry, MSHA routinely oversees 

sand and gravel dredging operations. See, ~' Louisa Sand and 

Gravel Company. Inc., 11 FMSHRC 1820, 1823 (September 1989); 

Fleniken's Sand and Gravel. Inc., 10 FMSHRC at 1509. Thus, it is 

evident that Harless Towing's extraction and preparation of sand 

through its filtering process are activities covered by Section 

3(h) (1) of the Mine Act. Therefore, Harless Towing's contest of 

its obligation to complete the required Legal Identity Report as 

required by Section 56.1000 of the regulations must be dismissed. 

Regarding Harless, Inc.'s status under the Act, it is clear 

that the primary objective of this company is the commercial 

sale of river sand extracted by Harless Towing, and the sale of 

gravel and limestone that it purchases from suppliers. The sales 

activities associated with these products also requires their 

off-loading, stockpiling and delivery. In order to determine if 

these activities should be construed as the "work of preparing 

minerals" under Section 3(h) (1) of the Act, it is important to 

determine if the subject activities are normally performed by the 

operator. 7 Although the work of preparing minerals can include 

activities such as loading and storage, it is the nature of the 

operations that is dispositive of the jurisdictional issue. See 

Oliver M. Elam. Jr .. Company, 4 FMSHRC 5 (January 1982). In this 

case, the performance of these functions is associated with sales 

rather than extraction and preparation. Clearly, Harless, Inc.'s 

commercial endeavors with respect to its gravel and limestone 

sales do not subject it to the Mine Act. Similarly, its storage 

and sale of sand should not provide Mine Act jurisdiction solely 

because it acquired the sand from Harless Towing, a distinct 

corporate entity with identical ownership. Consequently, 

Harless, Inc.'s contest concerning its responsibility to 

6 Although the sediment prepared by Stoudt's Ferry included 

a burnable product "akin" to coal, the Court stated that the 

sand and gravel preparation, alone, subjected the operator to 

the Act's jurisdiction as a mineral preparation facility. 

Stoudt's Ferry, 602 F.2d at 592. 

7 The Mine Act defines preparation of coal but does not 

address the meaning of the preparation of "other·minerals." 

Section 3(i) of the Mine Act, 30 u.s.c. § 802(i), defines the 

"work of preparing coal" as: 

"[T]he breaking, crushing, sizing, cleaning, washing, 

drying, mixing, storing, and loading of bituminous coal, 

lignite, or anthracite, and such other work of preparing coal 

as is usually done by the operator of a coal mine (emphasis 

added). 

1058 
register pursuant to Section 56.1000 of the regulations is 

granted. 

As a final matter, at trial I noted that Harless' 

willingness to abide by MSHA's reporting requirements if 

he did not prevail in this proceeding would be a factor in 

considering the appropriate civil penalty that should be 

assessed. I also noted that Harless' completion of the 

Legal Identity Report form would not prejudice his right to 

further appeal (Tr. 153-154). There is no justification for 

delaying implementation of this decision in view of Stoudt's 

Ferry and the absence of any irreparable harm to Harless Towing, 

particularly in view of the lack of any violations detected by 

Ramirez. Finally, permitting any further delay in registration 

would deny the employees of Harless Towing the protection 

provided under the Mine Act. 

ORDER 

Accordingly, Citation No. 3896905 IS AFFIRMED with respect 

to Jerry Ike Harless Towing, Inc., and the subject contest IS 

DISMISSED. Jerry Ike Harless Towing, Inc., IS ORDERED to file 

the requisite Legal Identity Report (MSHA Form 2000-7) in 

accordance with Section 56.1000 of the regulations within 21 days 

of the date of this decision. The contest of Harless Inc., 

IS GRANTED and Citation No. 3896905, as it applies to Harless, 

Inc., IS VACATED. 8 

~~~ 

/) . ":l:?l.. --

v Jerold Feldman 

Administrative Law Judge 

8 This decision, in effect, permits modification of 

Citation No. 3896905 to include Harless Towing as well as 

Harless, Inc., as the alleged operator. Harless is estopped 

from objecting to this modification since it was his failure 

to identify Harless Towing as the corporation involved in 

dredging activities that necessitates this action. Any other 

approach would permit an operator to conceal its identity from 

an inspector and then assert that a citation for failure to 

register as a mine operator is defective because the operator 

was not properly cited. Moreover, Harless can not claim that 

he has been surprised or otherwise prejudiced by this 

modification. (See fn. 1, supra). 

1059 
Distribution: 

Robert Goldberg, Esq., Office of the Solicitor, 

U.S. Department of Labor, 525 South Griffin Street, 

Suite 501, Dallas, TX 75202 (Certified Mail) 

Jerry I. Harless, Jerry Ike Harless Towing, Inc., 

2589 Bayou D'Inde Road, Lake Charles, LA 70601 

(Certified Mail) 

Jerry I. Harless, Harless, Inc., 2589 Bayou D'Inde Road, 

Lake Charles, LA 70601 (Certified Mail) 

Michael E. Roach, Esq., 724 Moss Street, Post Office 1747, 

Lake Charles, Louisiana 70601 {Certified Mail) 

1060 
DDBRAL IIZilB SUBTY UD IIBALD RBVZBW COIIIUSS:IOB 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 3 1993 

SECRETARY OF LABOR CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 92-669 

A.C. No. 15-11855-03560 

v. 

No. 6 Mine 

MULLINS AND SONS COAL 

COMPANY, INCORPORATED, 

Respondent 

. . 

Appearances: 

Before: 

DECISION 

Anne T. Knauff, Esq., u.s. Department of Labor, 

Office of the Solicitor, Nashville, Tennessee, 

for Petitioner; 

Dale Mullins, Vice President, Mullins and Sons 

Coal Company, Inc., Kimper, Kentucky, 

for Respondent 

Judge Feldman 

This case is before me for consideration as a result of 

a 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 seq., (the Act). This 

case was heard in Prestonsburg, Kentucky, on April 14, 1993. 

Dale Mullins, the respondent's Vice President, represented 

the respondent in this matter and testified in its behalf. 

The Secretary, represented by counsel, called Mine Safety 

and Health Administration (MSHA) Inspector Donald Milburn 

as his only witness. At the hearing, the parties stipulated 

to my jurisdiction in this matter and to the pertinent facts 

associated with the civil penalty criteria contained in 

section 110(i) of the Act. At the conclusion of the hearing, 

the parties elected to make closing statements in lieu of 

filing posthearing briefs. After the closing presentations, 

I issued a bench ruling which is formalized in this decision. 

This proceeding concerns 104(d) (1) Citation No. 3809162, 

which was issued to the respondent.by Inspector Milburn, at 

10:00 a.m., on Monday, June 17, 1991, for an impermissible 

accumulation of combustible coal dust in contravention of 

the mandatory health and safety standard contained in 

1061 
section 75.400, 30 C.F.R. § 75.400. 1 Shortly thereafter, 

Milburn issued 104(d) (1) Order No. 3809164 for violation of 

the mandatory standard in Section 75.402, 30 C.F.R. § 75.402, 

which requires combustible coal dust to be rock dusted within 

40 feet of all working faces. 2 At trial, Mullins stipulated 

to the fact of occurrence of these violations and to their 

significant and substantial nature (Tr.12-13, 64-65). Therefore, the only issue for resolution is whether these violations 

occurred as a result of the respondent's unwarrantable failure. 

The essential facts are not in dispute and can be briefly 

summarized. On the morning of June 17, 1991, Milburn arrived 

at the respondent's No. 6 Mine in order to perform a routine 

inspection. Prior to performing the inspection, Milburn 

participated in a pre-inspection conference with Tony Mullins, 

the mine superintendent and nephew of Dale Mullins, and Stoney 

Mullins, the business partner and brother of Dale Mullins. At 

this conference, Milburn examined the pre-shift examination log 

which contained the examiner's remarks concerning coal dust 

accumulations in the No. 2 Section with an additional notation 

that rock dust application was behind in the section in the 

No. 1 through No. 6 entries. Milburn's contemporaneous notes 

reflect that both Tony Mullins and Stoney Mullins told him 

that they were behind in cleaning and rock dusting the section 

because the scoop was out of service since the Friday shift 

(See Government Ex. 1). Milburn proceeded to inspect the 

No. 2 Section where he confirmed loose coal, coal dust and 

float dust accumulations ranging from three to six inches in 

depth starting at the No. 2 belt conveyor feeder and continuing inby for a distance of approximately 180 feet in the 

first through sixth entries. Milburn determined the depth of 

the accumulations by using a folded wooden ruler. Milburn 

described these accumulations as black in color with no 

evidence of significant rock dust content (Tr.98). 

1

section 75.400 provides as follows: 

"Coal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible materials, 

shall be cleaned up and not be permitted to accumulate in 

active workings, or on electric equipment therein." 

2section 75.403, 30 C.F.R. § 75.403, contains the standard 

for application of rock dust. This regulation requires that the 

combined content of coal and rock dust must contain at least 

65 percent incombustible content in intake and neutral entries, 

and, at least 80 percent incombustible content in return entries. 

Milburn took three samples which confirmed the cited violation. 

The lab results of the samples reflected only 29 percent and 

55 percent incombustible material in an intake and neutral 

entry, respectively, and only 35 percent incombustible material 

in a return entry. (Tr.110-113). 

1062 
Milburn testified that the shift began at 7:00 a.m. 

Therefore, he considered the violation to be of three hours 

duration, although he indicated that it may have existed 

since the previous Friday when the scoop went out of service 

(Tr. 24). Milburn stated that he observed that the section 

scoop was being charged. He also testified that there was 

no other scoop available that could be used as an alternative 

means of cleaning the accumulations (Tr.93-94) 3 

Milburn opined that the notation concerning the accumulations in the pre-shift examiner's book was a significant, if 

not determining, factor in his conclusion that the respondent's 

conduct constituted an unwarrantable failure. In this regard, 

Milburn stated that the respondent's conduct would not constitute 

an unwarrantable failure if the accumulations existed but were 

not noted in the pre-shift log (See Tr.100-108). As noted 

below in my bench decision, contrary to Milburn's opinion, 

an appropriate notation acknowledging coal dust accumulations 

in the pre-shift examination book is a mitigating factor in 

assessing the degree of negligence provided that the notation 

is not ignored. Consequently, I issued the following bench 

decision, with non-substantive edits, removing inspector 

Milburn's unwarrantable failure findings from the citations 

in issue. 

I wish to note, for the record, that Mr. Mullins 

has stipulated to the occurrence of the violations, 

and, to the significant and substantial nature of 

these violations. Therefore, the outstanding issue 

to be resolved is whether these violations were the 

result of the respondent's unwarrantable failure. 

Unwarrantable failure is a term that is used to 

connote gross negligence. The Commission's leading 

cases which distinguish unwarrantable failure 

(gross negligence) from ordinary negligence are 

Emery Mining Corporation, 9 FMSHRC 1997 (December 

1987); and Youghiogheny & Ohio Coal Company, 9 FMSHRC 

2007 (December 1987). In essence, these cases state 

that ordinary negligence is manifested by inadvertence, 

thoughtlessness or inattention, whereas unwarrantable 

failure is conduct that is not justifiable, or, 

conduct that is inexcusable. Therefore, a finding 

of unwarrantable failure requires evidence of a disregard or an indifference to a hazardous condition. 

3 Mullins pointed out that, given the length of involvement 

in each entry (180-feet), cleaning the accumulations by manual 

shoveling was not feasible. (Tr.87-89). 

1063 
I wish to distinguish this case from my recent 

decision in Consolidation Coal Company, 15 FMSHRC 263 

(February 1993) where I affirmed an unwarrantable 

failure finding for coal dust accumulations in a 

preparation plant facility. In that case, the 

accumulations were determined to have existed for 

approximately three weeks. These accumulations 

were on motors and inside electrical boxes. Moreover, the operator took no action to remove the 

accumulations despite complaints by the safety 

committee. Finally, the condition was not noted 

in the pre-shift examination book. 

Turning to the facts of this case, we have accumulations of three hours duration. We also have a 

notation in the pre-shift examination book which 

insulates, to a certain degree, the operator from 

an unwarrantable failure charge because it shows a 

recognition of the hazard created by the accumulations. 

Having noted the accumulations in the examination book, 

if the operator proceeds to ignore the accumulations, 

such conduct would constitute an unwarrantable failure. 

However, in this case, Milburn was informed that the 

scoop was out of service during the pre-inspection 

conference. Milburn's subsequent inspection confirmed 

that the scoop was out of order. Moreover, Milburn 

testified that he did not know of any alternative 

scoops that could be used to clean the working section. 

Thus, the issue of unwarrantable failure must be 

viewed in the context of whether there are any mitigating circumstances. The accumulations were duly 

noted. These accumulations were only three hours 

old when cited by the inspector. The scoop was 

inoperative with no alternative means of cleaning 

up the accumulations. The scoop was being charged 

so as to place it in operation. Under these circumstances, viewing the evidence in its entirety, there 

is no adequate basis for concluding that there was 

inexcusable neglect on the part of the respondent. 

Although I have concluded that the respondent's conduct 

was not indicative of an unwarrantable failure, I do 

not wish to minimize the seriousness of this violation. 

The respondent's continued operation, three hours after 

the condition was noted in the examination book, contributes 

to the serious gravity of the underlying violation and 

is relevant to the issue of the appropriate civil penalty 

to be assessed. I am, therefore, reducing the degree of 

negligence associated with Citation No. 3809162 from 

high to moderate. Thus, this citation is modified from 

1064 
a 104(d) (1) citation to a 104(a) citation. Given the 

serious gravity of this violation, I am assessing a 

$600 civil penalty. 

With respect to remaining 104(d) Order No. 3809164 

for failure to rock dust, I find, consistent with 

the respondent's stipulation, that the violation 

was significant and substantial in nature. As rock 

dusting is an alternative method of neutralizing 

combustible accumulations that are not removed with 

a scoop, I find it difficult to conclude that this 

violation occurred as a result of an unwarrantable 

failure. Milburn testified that it would serve no 

purpose to rock dust accumulations that were going 

to be cleaned. The respondent intended to clean the 

area, rather than rock dust, as soon as the scoop 

was placed in service. Under such circumstances, 

an unwarrantable failure has not been established. 

Therefore, I am modifying Order No. 3809164 to 104(a) 

citation and I am assessing a $400 civil penalty for 

this violation. The total penalty in this matter is 

$1000, which the respondent is ordered to pay within 

30 days of the date of my written decision, and, upon 

payment of that sum this matter will be dismissed. 

ORDER 

ACCORDINGLY, IT IS ORDERED that the unwarrantable 

failure findings with respect to Citation Nos. 3809162 and 

3809164 SHALL BE DELETED and that these citations ARE 

MODIFIED AND AFFIRMED consistent with the above bench ruling. 

The respondent IS ORDERED to pay a total civil penalty of 

$1000 within 30 days of the date of this decision, and, 

upon receipt of payment, this matter IS DISMISSED. 

Distribution: 

Jerold Feldman 

Administrative Law Judge 

Anne T. Knauff, Esq., Office of the Solicitor, u.s. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Dale Mullins, Vice President, Mullins and Sons Coal Co., 

Inc., Box 4028, Upper John's Creek Road, Kimper, KY 41539 

(Certified Mail) 

vmy 

1065 
DDBUL Kl:IIB SAPBTY AIID :&BALD ltBVZBW COJDaSSl:Oll 

OFFICE OF ADMINISTRATIVE LAY JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 7 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GLENN BURWICK, Employed by 

BURWICK CONSTRUCTION 

COMPANY, 

Respondent 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 92-341-M 

A.C. No. 41-01225-05510 A DSI 

Alexander Sand Pit 

DECISION APPROVING SETTLEMENT 

Before: Judge Fauver 

This case is before me upon a petition for assessment of a 

civil penalty under § 105(d) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801 et seg. Petitioner has filed a motion 

to approve a settlement agreement and to dismiss the case. I have 

considered the representations and documentation submitted and I 

conclude that the proffered settlement is consistent with the 

criteria in § 110(i) of the Act. 

ORDER 

WHEREFORE IT IS ORDERED that the motion for approval of 

settlement is GRANTED and Respondent shall pay the approved penalty 

of $400.00 within 30 days of this decision. Upon such payment this 

case is dismissed. 

~~~ William Fauver 

Administrative Law Judge 

Distribution: 

J. Philip Smith, Esq., Office of the Solicitor, u.s. Department of 

Labor, 4015 Wilson Boulevard, 4th Floor, Arlington, VA 22203 

(Certified Mail) 

Mr. Glenn Burwick, Burwick Oilfield Services, Inc., Drawer P, 

Bronte, TX 76933 (Certified Mail) 

jfcca 

1066 
nDBJtAL IIDIB 8AI'Bft UD BBALIIJ.'B UVXBW COIIIO:SSIOB 

OFFICE OF ADMINISTRATIVE LAW JlJ)GES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 7 1993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner 

: 

. . Docket No. LAKE 92-309 

A.C. No. 33-01157-04012 

v. . . Powhatan No. 4 Mine 

QUARTO MINING COMPANY, : 

Appearances: 

Before: 

Respondent 

DECISION 

Kenneth Walton, Esq., Office of the Solicitor, 

u.s. Department of Labor, Cleveland, OH, for 

Petitioner; 

Daniel E. Rogers, Esq., Pittsburgh, PA, for 

Respondent. 

Judge Fauver 

Petitioner seeks a civil penalty for an alleged a safety 

violation under § 105(d) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801 ~seq. 

Having considered the hearing evidence and the record as a 

whole, I find that a preponderance of the substantial, reliable, 

and probative evidence establishes the Findings of Fact and 

further findings in the Discussion below: 

I'INDINGS 01' PACT 

1. Respondent operates a coal mine known as Powhatan #4 

Mine, which produces coal for sale or use in or substantially 

affecting interstate commerce. 

2. On March 5, 1992, Federal Mine Inspector James Jeffers 

observed a Caterpillar 988 front-end loader in the· supply yard of 

the mine. The machine was idling, being warmed up for use. 

Inspector Jeffers asked the equipment operator, Steve Kurko, to 

demonstrate the steering. 

3. When the steering wheel was turned far right, it locked 

in position, forcing the operator to rise from his seat and 

forcibly use both hands and his weight to turn the wheel back. 

Once the lock was broken by forceful turning, the steering wheel 

would spin very fast, causing a potential loss of control of the 

1067 
vehicle. Kurko stated to Jeffers that the condition was 

intermittent and that he had reported it to shop Foreman Ron 

Adams. 

4. Adams had been aware of the problem as far back as 

October, 1991, when it was discovered that the steering jacks 

were leaking and, after the jacks were repacked, it was 

discovered that the steering problem was still not corrected. 

Adams did not take the machine out of service. 

5. The loader was used in several locations throughout the 

plant. Shortly after Jeffers' issuance of the citation at issue, 

the loader was tagged out and repaired. 

DISCUSSION WIT& lPRTHBR liKPINGS 

The standard cited by the inspector, 30 C.F.R. § 77.1606(c), 

provides that: 

Equipment defects affecting safety shall be corrected 

before equipment is used. 

The front-end loader had an obvious safety defect in that 

the steering was malfunctioning. When turned to the right, it 

was subject to locking, and the driver would be forced to rise 

from the seat to brace himself against the wheel and use all the 

force he could muster to brake the lock on the steering. Once 

that occurred, the wheel would spin very fast toward center 

before the operator could regain control of the vehicle. The 

fact that the problem occurred unexpectedly and intermittently 

heightened the potential for an injury because the operator could 

not anticipate when the steering problem would occur. The fact 

that it was observed only in a standing position did not alter 

the fact that this was an unexplained, uncorrected and 

potentially very serious safety defect. It presented a serious 

risk of occurring in motion as well as in a standing position. 

Any new operator of the machine would be faced with a 

latent, unknown defect. Respondent, through Adams and others, 

knew that the steering was malfunctioning and that their efforts 

to address the problem were unsuccessful. The failure to correct 

the steering defect or take the loader out of service constituted 

negligence of a high degree. Respondent apparently made no 

independent assessment of whether the malfunction was a hazard 

but instead relied upon its equipment operators. More was 

required once the foreman knew the steering was defective. The 

steering defect presented a hazard to the equipment operator, to 

foot traffic and to other vehicle drivers in the areas where the 

loader operated. Individuals on foot and other vehicle drivers 

were not likely to know of the defect in the steering system. 

The risk of failure to control the loader when someone was in the 

path of the loader was significant and substantial. 

I therefore find that the violation could significantly and 

substantially contribute to the cause and effect of a mine safety 

1068 
hazard and that there was a reasonable likelihood that the hazard 

would contribute to or result in a serious injury. 

I also find that there was an unwarrantable failure to 

comply with the cited standard. Respondent knew of the defect 

for several months before the inspection, but failed to correct 

the defect or remove the loader from service. This shows a 

serious lack of due care, more than ordinary negligence, and 

justifies the inspector's finding that there was an unwarrantable 

failure to comply with the standard. 

Considering the criteria for a civil penalty in § 110(i) of 

the Act, I find that a penalty of $800.00 is appropriate. 

CQRCLQSIQHS Ol LaW 

1. The judge has jurisdiction. 

2. Respondent violated 30 C.F.R. § 77.1606(c) as alleged 

in Citation No. 3332171. 

ORQBR 

WHEREFORE IT IS ORDERED that: 

1. Citation No. 3332171 is AFFIRMED. 

2. Respondent shall pay a civil penalty of $800.00 within 

30 days of this Decision. 

Distribution: 

u);a.~ ':1-MfV~ William Fauver 

Administrative Law Judge 

Kenneth Walton, Esq., Office of the Solicitor, u.s. Department of 

Labor, 881 Federal Office Building, 1240 East Ninth Street, 

Cleveland, OH 44199 (Certified Mail) 

Daniel E. Roqers, Esq., Consol Inc., Consol Plaza, 1800 

Washinqton Road, Pittsburgh, PA 15241-1421 (Certified Mail) 

/fcca 

1069 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN '7 1993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) I . . Docket No. WEVA 92-1008 

Petitioner A.C. No. 46-02208-03595 

v. 

Docket No. WEVA 92-1096 

MARTIN SALES & PROCESSING, A. C. No. 46-02208-03597 R 

Respondent 

Docket No. WEVA 92-1097 

A. C. No. 46-02208-03598 R 

Docket No. WEVA 92-1108 

A. C. No. 46-02208-03599 R 

. . Mine No. 1 

SUMMARY DEFAULT DECISIONS 

Before: Judge Koutras 

Statement of the Proceedings 

On March 29, 1993, I issued summary Default Decisions in 

these proceedings finding the respondent in default for failing 

to respond to certain discovery requests made by the petitioner 

and for failing to respond to my February 25, 1993, Order to Show 

Cause affording the respondent an opportunity to explain why it 

had not answered the discovery requests, why it had not complied 

with my previous orders directing it to respond to those 

requests, and why it should not be defaulted for its failure to 

respond, 15 FMSHRC 559 (March 1993). 

The respondent, through counsel, appealed my default 

decisions, and on April 22, 1993, the Commission·vacated my 

default decisions and remanded the matters to me for further 

proceedings consistent with its remand order. Thereafter, on 

April 28, 1993, I issued a remand order affording the respondent 

an opportunity to explain the circumstances under which it 

believed it timely responded to my February 25, 1993, show cause 

order, why it believed it fully responded to the petitioner's 

discovery requests, and to explain why it introduced a defense to 

some of the contested citation for the first time in its appeal 

to the Commission and had not done so in its answers'filed in 

these proceedings. The respondent was afforded twenty (20) days 

within which to file its responses to my remand order, and was 

1070 
advised that its failure to respond would again subject it to a 

possible default. Copies of the Postal Service certified mailing receipts reflect that respondent's counsel received my remand 

order on May 3, 1993, and that the respondent's president 

received it on May 1, 1993. 

Discussion 

The respondent failed to file any substantive response to my 

remand order of April 28, 1993. Instead of responding and 

availing itself of an opportunity to explain its position in 

compliance with the Commission's April 22, 1993, order vacating 

my default decisions, the respondent's counsel, J. Thomas Hardin, 

filed a motion to withdraw as counsel for the respondent and a 

request that the respondent be permitted additional time in which 

to obtain additional counsel. 

On May 4, 1993, pursuant to Commission Rule 3(d), 29 C.F.R. 

§ 2700.3(d), I issued an order denying Mr. Hardin's motion to 

withdraw as counsel for the respondent in these proceedings. 

Mr. Hardin was reminded of his obligation and duty to remain as 

counsel for the respondent and to continue his representation until the Commission's remand order of April 22, 1993, was 

satisfied. Mr. Hardin was specifically advised of my expectation 

that he comply with my remand order of April 28, 1993, and the 

respondent was again cautioned that its failure to respond would 

again result in a possible default. Copies of the Postal Service 

certified mailing receipts reflect that Mr. Hardin received my 

order denying his motion to withdraw on May 8, 1993, and that the 

respondent's president received a copy on May 7, 1993. As of 

this date, no further responses have been received from the 

respondent or Mr. Hardin. 

Conclusion 

After careful review and consideration of the entire record 

in these proceedings, including the matters discussed in my 

remand order of April 28, 1993, and my order of May 4, 1993, 

denying counsel Hardin's motion to withdraw from these 

proceedings, copies of which are attached and incorporated herein 

by reference, I cannot conclude that the respondent has presented 

any additional facts or circumstances mitigating its failure to 

timely respond to the petitioner's discovery requests, or my previously issued orders in these proceedings. In my view, the 

respondent has had ample opportunity to present its position in 

response to the Commission's remand of April 22, 1993, but it has 

failed to timely respond as directed by my remand order of 

April 28, 1993. Under the circumstances, I again find the 

respondent IN DEFAULT, and my previous Summary Default Decisions 

of March 29, 1993, reported at 15 FMSHRC 559 (March 1993), are 

reinstated and reaffirmed. 

1071 
ORDER 

Summary judgment is again entered in favor of the 

petitioner, and the respondent IS ORDERED to immediately pay to 

the petitioner (MSHA), the proposed civil penalty assessments of 

$32,166, for the fifty-one (51), violations in question. The 

individual citations and assessments amounts are enumerated in my 

prior summary decision at 15 FMSHRC 561-563 (March 1993). 

~~ Administrative Law Judge 

Attachments 

Distribution: 

Carol B. Feinberg, Esq., Office of the Solicitor, u.s. Department of Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203 

(Certified Mail) 

J. Thomas Hardin, Esq., Hardin Law Offices, Main Street, P.O. 

Box 1416, Inez, KY 41224 (Certified Mail) 

Winford Davis, President, Martin Sales & Processing, P.O. 

Box 728, Kermit, WV 25674 (Certified Mail) 

/ml 

1072 
FEDERAL MINE SAFETY AND HEALTH REVI.:W COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

lAY 0 4 1193 

SECRETARY OF LABOR I . . CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH . . ADMINISTRATION (MSHA) I . . Docket No. WEVA 92-1008 

v. 

MARTIN SALES & 

Petitioner . . A. C. No. 46-02208-03595 

. 

. Docket No. WEVA 92-1096 

PROCESSING, . • A. C. No. 46-02208-03597 

Respondent . . 

. . Docket No. WEVA 92-1097 . . A. C. No. 46-02208-03598 . . Dock~t No. WEVA 92-1108 

A. C. No. 46-02208-03599 

: 

Mine No. 1 

OBDER DENYING MOTION TO WITHPRAW 

AS COUNSEL FOR THE RESPONDENT 

Statement of the Proceedings 

R 

R 

R 

on March 29, 1993, I defaulted the respondent because of its 

failure to fully respond to the petitioner's discovery requests, 

and its failure to comply with my order compelling it to respond, 

and my show-cause order of February 25, 1993. On April 8, 1993, 

the respondent's counsel, J. Thomas Hardin, Inez, Kentucky, filed 

a Motion to Alter, Vacate or Amend my default decisions claiming 

that he had timely filed a response to my show-cause order and 

that the respondent should not have been defaulted. 

On April 22, 1993, the Commission vacated my default 

decisions and remanded the cases to me for further proceedings 

consistent with its remand order. In compliance with that order, 

I issued an Order on Remand on April 28, 1993, affording the 

respondent twenty (20) days to explain why it believes it timely 

co.plied with my previous orders and why it believes that it 

8bould not have been defaulted. The respondent was also afforded 

an opportunity to explain why it had not previously raised an 

iasue in defense of certain contested citations raised for ~ 

firat tiae with the Commission as part of its motion to set aside 

my default decisions. The respondent was advised that its 

failure to timely respond to my Order on Remand will again 

subject it to possible default. 

1073 
The respondent's counsel, J. Thomas Hardin, has now filed a 

motion seeking permission to withdraw as counsel for the 

respondent and requesting that the respondent be permitted thirty 

(30) days in which to obtain additional counsel. 

Discussion 

Commission Rule 3(d), 29 C.F.R. § 2700.3(d), which became 

effective May 3, 1993, provides as follows: 

(d) Withdrawal of appearance. Any representative of a 

party desiring to withdraw his appearance shall file a 

motion with the Commission or Judge. The motion to 

withdraw may, in the discretion of the Commission or 

Judge, be denied where it is necessary to avoid undue 

delay or prejudice to the rights of a party. 

Mr. Hardin states no reasons for his request to withdraw as 

counsel for the respondent. In my view, the granting of the 

motion would not only unduly delay these matters, but more 

importantly, it will prejudice the respondent's rights. 

Mr. Hardin filed the motion which resulted in the Commission's 

remand, and he made certain representations to the Commission in 

support of his motion to set aside my default decisions. The 

Commission was unable to evaluate the merits of Mr. Hardin's 

assertion that he timely responded to my show cause order, and it 

remanded the cases to afford him an opportunity to present his 

explanation and position to me for a determination as to whether 

or not defaults are warranted. Since the burden is now on the 

respondent to respond to my remand order, with the possibility of 

another default if it does not respond, and since only Mr. Hardin 

knows all of the circumstances under which he claimed he timely 

responded to my order, he has an obligation and duty to remain as 

counsel and to continue his representation of the respondent 

until the Commission's remand order is satisfied. Newly retained 

counsel who was not involved in the discovery requests, and who 

was not the recipient of my prior orders, would not in my view, 

serve the best interests of the respondent in attempting to 

reconstruct what transpired during the time it was represented by 

Mr. Hardin. 

ORDER 

In view of the foregoing, Mr. Hardin's request to withdraw 

as the respondent's representative in these proceedings IS 

DENIED. I expect Mr. Hardin to comply with my recently issued 

1074 
Order on Remand and to timely file a response on behalf of the 

respondent. 

Distribution: 

Carol B. Feinberg, Esq., Office of the Solicitor, u.s. Department 

of Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203 

(Certified Mail) 

J. Thomas Hardin, Esq., Hardin Law Offices, Main Street, P.O. 

Box 1416, Inez, KY 41224 (Certified Mail) 

Winford Davis, President, Martin Sales & Processing, P.O. 

Box 728, Kermit, WV 25674 (Certified Mail) 

/ml 

1075 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 2 8 1993 

SECRETARY OF LABOR, . • CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. WEVA 92-1008 

Petitioner A.C. No. 46-02208-03595 

v. . . 

: Docket No. WEVA 92-1096 

MARTIN SALES & PROCESSING, . . A.C. No. 46-02208-03597 R 

Respondent . . 

. • Docket No. WEVA 92-1097 . . A.C. No. 46-02208-03598 R . . Docket No. WEVA 92-1108 . . A.C. No. 46-02208-03599 R . . 

. . Mine No. 1 

ORDER ON REMAND 

Statement of the Proceedings 

On March 29, 1993, I entered summary default decisions in 

these matters pursuant to Commission Rule 63, 29 C.F.R. 

§ 2700.63, because of the respondent's failure to respond to a 

previously issued show-cause order and its failure to respond to 

the petitioner's legitimate discovery requests. On appeal of my 

default decisions, the Commission remanded the matters to me on 

April 21, 1993, for further proceedings consistent with its 

remand order. 

Background 

The record reflects that the petitioner initiated discovery 

in Docket No. WEVA 92-1008, in August, 1992, and subsequently 

sought information concerning the respondent's assertion that it 

was financial unable to pay the proposed civil penalty 

assessments. The other dockets were subsequently added to the 

trial docket and all of the cases were consolidated for hearing 

on February 10, 1993, but were subsequently rescheduled for 

March 19, 1993, at the request of the respondent. On January 5, 

1993, I issued an order in Docket No. WEVA 92-1008, aa.pelling the respondent to respond to the petitioner's discovery requests, 

including certain requests for documents and financial information to support the respondent's claim that it was unable to 

pay the proposed penalties. The order informed the respondent 

tbat its failure to respond within ten days could result in a 

summary default disposition of the case. 

1076 
On January 13, 1993, I held a prehearing telephone conference with counsel for the parties, and they informed me 

that they were discussing possible settlements, but that they 

were contingent on the respondent producing reliable financial 

information supporting its claim that it was unable to pay the 

proposed civil penalty assessments. Respondent's counsel assured 

ae at that time that he was compiling the information in response 

to the petitioner's discovery request. 

on February 25, 1993, I issued an Order to Show Cause 

directing the respondent to reply within ten (10) days as to why it should not be held in default because of its failure to 

respond to the petitioner's discovery requests concerning its 

asserted financial inability to pay the penalty assessments, 

and it§ failure to comply with my previous January 5, 1993, 

Order compelling it to provide the requested information. The 

respondent PAILBD TO RESPOND to my February 25, 1993, show-cause 

order. The only response of record with respect to the 

petitioner's discovery requests for financial information, is a 

letter dated January 24, 1993, addressed to the petitioner's 

counsel from the respondent's counsel attaching certain financial 

information from the respondent's bank and an itemized list of 

its outstanding debts as of January 29, 1993. A copy of that 

correspondence was not submitted to me by the respondent. 

However, by letter dated March 10, 1993, petitioner's counsel 

furnished me with a copy, and she noted that while the letter is 

dated January 24, 1993, it was not received in her office until 

March 5. 1993. The letter in question states as follows: 

Pursuant to our previous discussions, I have enclosed a 

copy of financial information from my client's bank, 

Bank of Mingo. Additionally, as your are aware, my 

client is no longer operating the mine. As a result of 

this idle status of the mine, my client has no income 

to pay any debts at this time. 

If additional information is required regarding the 

ability of my client to pay, please contact me at your 

convenience. 

In his motion filed with the Commission to vacate my default 

decisions, the respondent's counsel states that he filed a timely 

response to my show-cause order of February 25, 1993. In support 

of this claim, he attached a copy of his January 24, 1993, letter 

and attachment addressed to the petitioner's counsel. Under the 

circumstances, counsel's suggestion that he filed any response 

with ae is inaccurate. Further, as shown b the "date •tamp" on 

the copy of the letter submitted by the petitioner'• counsel, the 

January 24, 1993, letter was not receiyed by her until March 5. 

lii1, and there is no explanation for the delay. 

1077 
In its remand Order, the Commission states that the 

respondent "asserts that it had timely filed a response. dated 

Karch 8. 1993. to the iudqe's show cause order". I have reviewed 

the respondent's Motion to Alter, Vacate or Amend ay default 

decisions, and the only statement I find with respect to any 

filing of any response to my order is a statement by respondent's 

counsel that "A copy of the response which was timely filed is 

attached hereto". The attachments referred to consist of a 

Response to Show Cause Order, and copies of the previously 

mentioned letter of January 24, 1993, to the petitioner's counsel 

from the respondent's counsel. 

The Response· to Show Cause Order submitted by the respondent 

as proof of its compliance reflects that it was served on the 

petitioner's counsel by placing it in the mail on March 6, 1993. 

The Certificate of Service attesting to this mailing does not 

reflect that the response was also served on me. Indeed, my 

office has no record of any response ever being filed or received 

by me, and respondent's counsel has produced no evidence that his 

response was ever mailed to me, nor has he filed any explanation 

as to why he has not followed the instructions of Chief Judge 

Merlin when he initially assigned these cases to me that all 

future communications were to be filed with me. In short, 

nowhere in the record do I find any evidence that the 

respondent's replies to any of my orders were ever filed with me 

prior to the issuance of my summary default decisions. Although 

a copy of the January 24, 1993, letter was furnished me by the 

petitioner's counsel on March 11, 1993, she pointed out that the 

letter and attachments did not answer the bulk of her discovery 

requests. With regard to the Response to Show Cause wpich the 

respondent's counsel suggests was timely served on me, the fact 

is that it was seen by me for the first time when I received the 

respondent's motion to vacate my summary default decisions on 

April 8. 1993, after the issuance of the decisions. 

I also take note of the fact that in his motion to vacate, 

respondent's counsel, FOR THE PIRBT TIME, asserts that the May 2, 

1991, citations which were included in my default judgment "have 

been abated by the District Director in light of the fact the 

inspection performed on Karch 2, 1991, was considered a reopening 

inspection, and no citations were to have been issued". A review 

of the answers filed by counsel reflects that he never advanced 

this defense in his initial answers filed in all of these 

proceedings, and there is no explanation for his failure to do 

ao. 

ORDER 

In view of the Commission's remand, and its belief that the 

respondent "may have attempted to respond to the judge's show 

cause order", I will afford the respondent an opportunity to 

explain the circumstances under which it believes it timely 

1078 
responded to my Order to Show Cause of February 25, 1993, and why it believes that it has fully responded to the petitioner's 

discovery requests concerning its claim that it is unable to pay 

any civil penalty assessments in these cases. I note in passing 

that the cases cited by the Commission holding that •under 

appropriate circumstances a genuine problem in communication or 

with the mail may justify relief from default" involved small pro 

AA mine operators. In the instant proceedings, the respondent is 

represented by an attorney and member of the bar who I assume 

understands the procedures to be followed in cases brought before 

the Commission and its trial judges, particularly with respect to 

the filing of responses to a presiding judge's orders. 

The respondent IS AFFORDED twenty (20) days from the date of 

this order to submit an explanation to me in writing as to why it 

believes that it timely complied with my previous orders and why it believes that it should not have been defaulted. The 

respondent shall also provide me with an explanation as to why it 

did not previously raise the defense that the May 2, 1991, 

citations may have been "abated" by MSHA's district director. If 

this is true, the respondent IS ORDERED to include in its 

response copies of any vacated or "abated" citations issued by 

MSHA. Failure of the respondent to timely respond to this Order 

on Remand will again subject it to a possible default. 

k.tt~ Administrative Law Judge 

Distribution: 

Carol B. Feinberg, Esq., Office of the Solicitor, u.s. Department 

of Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203 

(Certified Mail) 

J. Thomas Hardin, Esq., Hardin Law Offices, Main Street, P.O. 

Box 1416, Inez, KY 41224 (Certified Mail) 

Winford Davis, President, Martin Sales & Processing, P.O. 

Box 728, Kermit, WV 25674 (Certified Mail) 

/Jill 

1079 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 91993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

. . 

. . Docket No. KENT 92-604-M 

A.C. No. 15-00056-05528 

v. 

ADAMS STONE CORPORATION, 

Respondent 

. . Docket No. KENT 92-770-M 

A.C. No. 15-00056-05529 

Appearances: 

Before: 

DECISIONS 

Joseph B. ·Luckett, Esq. u.s. Department of Labor, 

Office of the Solicitor, Nashville, Tennessee, for 

the Petitioner; 

David H. Adams, Esq., Pikeville, Kentucky, for the 

Respondent. 

Judge Koutras 

Statement of the Case 

These proceedings concern proposals for assessment of civil 

penalties filed by the petitioner against the respondent pursuant 

to section 110(a) of the Federal Mine Safety and health Act of 

1977, 30 u.s.c. § 820(a), seeking civil penalty assessments for 

six (6) alleged violations of certain mandatory safety standards 

found in Part 56, Title 30, Code of Federal Regulations. The 

respondent filed timely contests and answers and hearings were 

held in Pikeville, Kentucky. The parties filed posthearing 

arguments which I have considered in the adjudication of these 

matters. 

Issues 

The issues presented in these proceedings include 

(1) whether or not the respondent violated the cited mandatory 

safety regulations; (2) whether the violations were significant 

and substantial (S&S); (3) whether the violations were the result 

of the respondent's unwarrantable failure to comply with the 

cited safety regulations; and (4) the civil penalties to be 

assessed for the violations taking into account the civil penalty 

assessment criteria found in section 110(i) of the Act. 

lOBO 
Applicable Statutory and Regulatory provisions 

1. The Federal Mine Safety and health Act of 1977, 

30 u.s.c. § 820(a). 

2. Sections 110(a) and 110(i) of the Act. 

3. MSHA's mandatory safety standards found at Title 56, 

Code of Federal Regulations, sections 56.6305, 56.6313, 

56.6320, 56.15005, and 56.18009. 

4. Commission Rules, 29 C.F.R., Part 2700. 

Discussion 

The testimony and evidence adduced in these proceedings 

establishes that an accident occurred at the respondent's quarry 

site on January 21, 1992, when Assistant Quarry Superintendent 

Terry Cantrell was injured and suffered permanently disabling 

injuries when he fell approximately 25 to 30 feet from the top of 

a primary crusher to the ground below. Mr. Cantrell was not 

wearing a safety belt or using a safety line and he was not tied 

off or otherwise secured against falling. Following this event, 

and upon receipt of a telephone message reporting the injury, 

MSHA Inspector Richard L. Jones went to the quarry on January 22, 

1992, for the purpose of conducting an investigation and 

inspection. Mr. Jones issued several notices of violations, 

beginning with a section 104(d) (1) citation, followed by five 

section 104(d) (1) orders. The citation and orders are as 

follows: 

Section 104(d) (1) "S&S" Citation No. 3883607, January 22, 

1992, cites an alleged violation of mandatory safety standard 

30 C.F.R. § 56.15005, and the cited condition or practice states 

as follows (Exhibit G-1): 

A lost time injury resulted from the fall of an 

employee from the top of the primary crusher on 

1-21-92. No safety belt or line was being used as Terry 

Cantrell, assistant superintendent, was attempting to clear 

the top of the crusher of scrap iron and attached crane 

rigging in order to remove the top of the crusher. He fell 

to the ground approximately 30 feet below but not before 

striking the crusher support iron and pier. ·one safety belt 

but no safety line was in the area and was not being used. 

This is an unwarrantable failure. (See 104(d) (1) 

Order 3883608). 

Section 104(d) (1), "S&S" Order No. 3883608, January 22, 

1992, cites an alleged violation of mandatory safety standard 

1081 
30 C.F.R § 56.15005, and the cited condition or practice states 

as follows (Exhibit G-2): 

Two employees were observed working on the primary 

crusher approximately 25 feet above ground level while 

not tied off with safety belts and lines. There was no 

work platform from which to work as it had been moved 

to facilitate the removal of the top of the crusher for 

repairs. Only one safety belt and no lines were in the 

area and were not being used. This is an unwarrantable 

failure (See 104(d) (1) Citation 3883607). Employees 

were withdrawn from the area and ordered not to resume 

work until proper safety linesjbelts are made 

available, and an MSHA inspector could observe the 

corrective measures taken and this order is terminated. 

Section 104(d) (1) "S&S" Order No. 3883609, January 22, 1992, 

as amended, cites an alleged violation of mandatory safety 

standard 30 C.F.R. § 56.18009, and the cited condition or 

practice states as follows (Exhibit G-3): 

Six employees were working in the area of the primary 

crusher dismantling it for repair without a person on 

the mine property designated in charge. Their regular 

supervisor Terry Cantrell, Assistant Superintendent, 

had been injured on the job 1-21-92, and had not 

returned to work. (See 104(d) (1) Citation 3883608, 

104(d) (1) Order 3883608). The person with overall 

authority and responsibility, stuart Adams, 

President, was also not on mine property. This is an 

unwarrantable failure. The employees were withdrawn 

from the work area and ordered not to resume work until 

a person was designated by the operator as in charge 

and an MSHA inspector could observe the corrective 

action taken and the order terminated. 

Section 104(d) (1) "S&S" Citation No. 3883610, as amended, 

issued on January 23, 1992, cites an alleged violation of 

30 C.F.R. § 56.6313, and the cited condition or practice states 

as follows (Exhibit G-4): 

Two large limestone boulders were observed in the 

quarry area that had been drilled and charged with 

explosives (dynamite, detonating cord and primer) the 

area was neither attended, barricaded and posted nor 

flagged to prevent unauthorized entry. The condition 

has existed since day shift 1-16-92, at which time the 

blaster was laid off (Section 104(d) (1) order 3883611). 

The operator was aware that this condition existed. 

This is an unwarrantable failure. Employees were 

ordered to remain clear of the area a safe distance 

except those necessary to abate the hazard, guards were 

1082 
posted at each entry to restrict access until an MSHA 

inspector can observe corrective action taken and this 

order terminated. 

Section 104(d) (1) non-"S&S" Order No. 3883611, January 23, 

1992, cites an alleged violation of mandatory safety standard 

30 C.F.R. § 56.6320, and the cited condition or practice states 

as follows (Exhibit G-5): 

Two large limestone boulders were observed in the 

quarry that had been drilled and charged with 

explosives. These charges were loaded on day shift 

1-16-92, thus exceeding the 72 hour time limit between 

charge and blast times. No prior approval for this 

condition was granted by MSHA. The operator was aware 

of this condition. This is an unwarrantable failure. 

(See 104(d) (1) Order 3883610). Employees were ordered 

to remain clear of the area except those necessary to 

abate the hazard, guards posted at each entry to 

restrict access until an MSHA inspector can observe the 

corrective action taken and this order terminated. 

Section 104(d) (1) "S&S" Order No. 3883612, January 23, 1992, 

cites an alleged violation of mandatory safety standard 30 C.F.R 

§ 56.6305, and the cited condition or practice states as follows 

(Exhibit G-6): 

Unused explosive materials (1000 ft. roll of detonating 

cord) were not moved to a protected area or magazine 

within a reasonable time after charging boulders in the 

quarry for secondary blasting. The detonating cord had 

been left unattended and exposed in the quarry area 

since day shift 1-16-92, the date the blaster was laid 

off. The operator was aware of this condition. This 

is an unwarrantable failure. (see 104(d) (1) orders 

3883610 and 3883611). Employees were ordered to remain 

clear of the area except those necessary to abate the 

hazard, secure the area, and until an MSHA inspector 

can observe action taken and this order terminated. 

Petitioner's Testimony and Evidence 

MSHA Inspector Richard L. Jones testified as to his 

background and mining experience and he stated that after MSHA 

received a telephone message reporting an injury a.t the 

respondent's quarry on January 21, 1992, he went to the site the 

next morning to conduct an investigation and inspection. He 

stated that a crew was dismantling the primary crusher and that 

assistant superintendent Terry Cantrell was injured when he fell 

from the top of the crusher approximately 25 to 30 feet to the 

ground below. Mr. Jones stated that Mr. Cantrell had jumped to 

the top of the crusher from a catwalk to remove some "tramp 

1083 
metal" from the crusher and to attach rigging to the crusher top 

so that it could be removed by a crane. Mr. Jones explained that 

Mr. Cantrell threw the metal material off the top of the crusher 

and then fell off. Several crew members who were present 

informed Mr. Jones that Mr. Cantrell was not using a safety belt 

or line (Tr. 8-13). 

Mr. Jones stated that the crusher was mounted on twenty-two 

foot high pillars and that the crusher itself was another four or 

five feet high. He believed that there was a danger of falling 

from the top of the crusher and he cited a violation of section 

56.15005 because Mr. Cantrell was not wearing a safety belt or 

safety line and was not tied off to prevent his falling off the 

crusher. Mr. Jones stated that Mr. Cantrell received severe head 

injuries, lost the use of his left eye, and has not returned to 

work (Tr. 16). 

Mr. Jones stated that he based his "high negligence" finding 

on the fact that Mr. Cantrell was the assistant superintendent 

and knew that it was unsafe, knew about the regulatory safety 

belt or line requirement, and engaged in an unsafe act (Tr. 15). 

Mr. Jones stated that he based his "S&S" finding on the fact 

that employees could be injured if the "work practice" of not 

using safety belts or lines where there was a danger of falling 

continued (Tr. 16). 

Mr. Jones stated that he issued the section 104(d) (1) 

unwarrantable failure citation because in his capacity as the 

assistant mine superintendent, Mr. Cantrell was an agent of 

management and knew that he was engaging in an unsafe act and 

that his failure to use a safety belt or line was a violation of 

the cited regulation and resulted in an injury. Mr. Jones 

confirmed that the violation was abated and that he terminated 

the citation after quarry operator Stuart Adams provided new 

safety belts and instructed his employees in their use 

(Tr. 17-18). 

On cross-examination, Mr. Jones confirmed that he determined 

that Mr. Cantrell was not wearing a safety belt after speaking 

with the crew who were dismantling the crusher, including crane 

operator Carl Stumbo. Mr. Jones stated that Mr. Cantrell was in 

charge of the work crew, and that after he was injured no one was 

officially in charge. However, Mr. Jones confirmed that 

Mr. Stumbo assumed control of the situation after the accident 

and that he and the rest of the crew were highly trained and 

experienced personnel who had completed all of their training. 

He confirmed that apart from the dismantling of the crusher, 

which was "a special operation", the quarry was not in operation 

( Tr. 21-2 8 ) • 

1084 
Mr. Jones confirmed that he did not speak to Mr. Cantrell, 

and only assumed that he was aware of the safety belt requirement 

found in the cited standard. Mr. Jones also confirmed that he 

did not determine whether or not the respondent had any safety 

belt and safety line rules in place, and he did not know whether 

the respondent made it "a practice" not to use safety belts or 

lines where there was a danger of falling. Mr. Jones stated that 

his visit to the quarry was his first one and he was not aware 

that the respondent had ever been cited previously for violations 

of section 56.15005. He confirmed that he found a safety belt in 

the area of the crusher during his investigation, but that it was 

in poor condition and would probably not fit around anyone 

(Tr. 31-36). 

With regard to Order No. 3883608, Mr. Jones stated that 

while he was conducting his inspection on January 22, 1992, he 

observed two employees working at the top of the same crusher 

from which Mr. Cantrell fell the day before. Mr. Jones stated 

that the two men were not using safety belts or safety lines and 

that they were "perched" at the top of the crusher with one foot 

on top of a one-inch bolt which was sticking out of the side of 

the crusher. The men were using cutting torches to cut metal 

from the crusher and they were within "arm's length" of each 

other (Tr. 40-42). 

Mr. Jones stated that no one was supervising the work of the 

two individuals in question, and he believed that there was a 

danger of falling because they were standing on a bolt at the 

side of the crusher and were using their cutting torches to cut 

metal away from the crusher. Since there was no one supervising 

the work, Mr. Jones instructed the men to come down off the 

crusher and he informed them about the hazard and determined that 

they were not wearing safety belts or lines. Mr. Jones asked all 

of the six men present about the whereabouts of any belts or 

safety lines, and none could be found in the area (Tr. 43-46). 

Mr. Jones explained his gravity finding, and he believed 

that the violation was significant and substantial because it was 

highly likely that a serious injury or fatality would result if 

the employees were to continue to work at the top of the crusher 

without using safety belts or safety lines (Tr. 47). 

Mr. Jones believed that the violation resulted from a high 

degree of negligence because Mr. Cantrell had been seriously 

injured the day before and one would expect mine management to 

take steps to insure against another accident. 

Mr. Jones stated that he issued the section 104(d) (1) 

unwarrantable failure order because he was informed by the scale 

man that he had spoken with quarry operator Stuart Adams after 

Mr. Cantrell's accident and that Mr. Adams was aware of the fact 

that Mr. Cantrell had been injured. Mr. Jones confirmed that he 

1085 
terminated the order on January 23, 1992, after Mr. Adams brought 

new safety belts and lines to the quarry and instructed the 

employees to use them (Tr. 48-49). 

With regard to Order No. 3883609, Inspector Jones testified 

that he issued the violation after determining that Mr. Cantrell 

had not returned to work and that six men continued to work on 

the crusher with no one designated to be in charge of the crew. 

Mr. Jones stated that section 56.18009, requires a mine operator 

to designate a competent person to be in charge at the mine site 

in the event of an emergency. Mr. Jones stated that none of the 

six individuals who were present and working on the crusher 

informed him that anyone was.in charge, and although crane 

operator Carl Stumbo may have worked as a foreman and been in 

charge at the site in the past, Mr. Stumbo told him that he was 

not in charge of the work which was taking place on January 22, 

1992. Mr. Jones confirmed that he would not have issued the 

violation if Mr. Stumbo had told him that he was designated to be 

in charge (Tr. 57-61). 

Mr. Jones stated that he issued the section 104(d) (1) 

unwarrantable failure order because he concluded that since 

Mr. Stuart Adams saw fit to designate Mr. Cantrell as the person 

in charge of the work site on January 21, 1992, before his 

accident, Mr. Adams should have designated someone to take 

Mr. Cantrell's place and to be in charge in the event of another 

emergency situation at the mine after the accident. Mr. Jones 

confirmed that at the time Mr. Cantrell was injured Mr. Stumbo 

and the other men did what they could to take care of 

Mr. Cantrell and that they acted properly to tend to him. 

Mr. Jones confirmed that he terminated the order on January 23, 

1992, after Mr. Adams returned to the site to take charge and 

designated a chain of command of individuals to be in charge in 

the event of an emergency (Tr. 62-63). 

Mr. Jones stated that following his accident investigation 

and inspection on January 22, 1992, he met with Mr. Adams and 

discussed the citation and orders with him. He stated that 

Mr. Adams informed him that he had other matters to attend to and 

could not accompany him. Mr. Adams designated Fred Bartley to 

accompany Mr. Jones during the inspection which he continued on 

January 23, 1992 (Tr. 74-75). 

Mr. Jones stated that he and Mr. Bartley traveled to the 

quarry first level, and Mr. Jones observed two large limestone 

boulders which had been drilled and charged for ·secondary 

blasting. Mr. Jones stated that he observed detonating cord 

leading from the drilled holes which were charged with dynamite 

boosters, and that a new roll of one-thousand feet of denotating 

cord was nearby within a couple of feet of the charged boulders. 

Mr. Jones then went to the scale house with Mr. Bartley and 

1086 
Mr. Jones telephoned Mr. stuart Adams and asked him to come to 

the site. Mr. Jones asked Mr. Stumbo to block off all of the 

entries leading to the charged boulders (Tr. 76-77). 

Mr. Jones stated that he spoke with Mr. Adams when he 

arrived at the site and that Mr. Adams acknowledged that he knew 

that the boulders were charged and ready to blast and that the 

roll of cord was laying out in the open area. Mr. Adams informed 

Mr. Jones that he had laid off the blaster six days earlier and 

that there was no competent person at the mine to shoot the 

boulders. Mr. Adams immediately summoned the blaster to the 

site, and the blaster confirmed that he had left the boulders in 

a charged condition. He then proceeded to shoot the charged 

boulders, and Mr. Jones terminated the citation (Tr. 79). 

Mr. Jones confirmed that he issued the section 104(d) (1) 

Order No. 3883610 (Exhibit P-4), because the area where the 

charged and primed boulders were located was not barricaded, 

posted, or flagged in any manner to prevent unauthorized entry 

(Tr. 80). He based his "high negligence" finding on the fact 

that "I asked Mr. Adams if he knew this condition existed and he 

said he did" (Tr. 80) . 

Mr. Jones stated that he based his gravity finding of 

"reasonably likely" on the following (Tr. 80): 

* * * *Dynamite, detonating cord and primers were not 

meant to be left out in the exposed weather. Once you 

put them together, they are ready to shoot. If they 

are allowed to lay out in the weather for any length of 

time, they immediately start to deteriorate and become 

unstable. 

Mr. Jones stated that he observed three state reclamation 

inspectors pass by the area without knowing about the charged 

boulders. He further stated that large equipment operates in the 

area, personal vehicles are parked in the area, and if the 

explosives became unstable "someone could bump into them with a 

vehicle or loader, sit there and smoke, or just any number of 

things. There was a lot of exposure there" (Tr. 81). He stated 

that the boulders were four-to-four and one-half feet in diameter 

and were located 30 or 40 yards from the main haul road, and 70 

or 80 yards from where the crusher operator booth was located 

(Tr. 81). 

on cross-examination, Mr. Jones conceded that it was 

possible that the charged boulders were " a couple of hundred 

yards" from the crusher plant (Tr. 86). However, he confirmed 

that he cited the hazard because of the possibility that the 

charge could be set off as people were travelling by the area 

(Tr. 88). Mr. Jones explained that the dynamite did not require 

a cap and that the detonating cord is cap sensitive and will set 

1087 
off the booster which in turn detonates the dynamite. Under 

certain conditions detonating cord can be set off by a one-pound 

hammer, and if left out in the open "there is no way you can 

guarantee that it won't be affected by something" (Tr. 90). 

In response to further questions concerning Mr. Adams' prior 

knowledge of the conditions, Mr. Jones stated as follows 

(Tr. 89) : 

A. I asked him did he realize that these boulders were 

left there, charged; that the area had not been 

secured, posted, barricaded; and did he know that the 

thousand-foot roll of detonation cord was laying out 

there. He said, "Yes. I laid the man off six days 

ago. I knew it was like that." 

Q. Well, now, did he say that he laid him off six days 

ago knowing that situation existed or that he laid him 

off six days ago and he just found out that that 

situation was existing? There is a big difference 

there. 

A. The question I asked him was, "Do you know that 

these situations exist?" He said yes. "How long has 

it been that way"" I laid the man off six days ago. 

Six days, apparently." That is what I was told. 

Mr. Jones confirmed that he issued the section 104(d) (1) 

Order No. 3883611, because the two charged boulders had been left 

in that condition for more than 72 hours without being blasted 

(tr. 91). He based his "high negligence" finding on Mr. Adams' 

admission that he knew the charged boulders had existed past the 

72 hour limit (Tr. 92). Mr. Jones stated that he modified his 

initial "highly likely" gravity finding to "unlikely" because the 

fact that a time limit had been exceeded does not, in and of 

itself, constitute a hazard (Tr. 92). He confirmed that he 

modified his initial "S&S" finding to "non-S&S" after 

reconsidering the likelihood of any resulting injury (Tr. 93). 

He further confirmed that he issued the order under section 

104(d) (1) because of Mr. Adams' admission that he knew about the 

condition (Tr. 94). 

Mr. Jones explained why he issued two orders even though the 

cited conditions were the result of the same oc~urrence. 

Mr. Jones confirmed that he would not have issued the orders if 

he knew that Mr. Adams had no knowledge that the conditions had 

existed since the blaster was laid off a week earlier. However, 

Mr. Jones stated that "when I talked to him (Adams) for several 

minutes at the crusher booth, we talked for a long time about 

that and I was under the perfect understanding that he knew they 

were like that since he laid the man off six days ago" (Tr. 100). 

1088 
Mr. Jones stated that if he had misunderstood Mr. Adams, he would 

have changed his negligence determination (Tr. 100). 

Mr. Jones confirmed that he made some notes concerning the 

two citations, but did not have them with him at the hearing. He 

further confirmed that he spoke with the blaster when he returned 

to shoot the boulders to abate the citations, but he could not 

recall if he asked the blaster if he informed Mr. Adams that he 

had charged the boulders before leaving the site on the day he 

was laid off (Tr. 102). Mr. Jones then stated that the blaster 

stated that "Mr. Adams told him he was being laid of as of right 

now and that he was not done with his duties and he said to go 

home" (Tr. 103). Mr. Jones stated that the blaster did not 

explain why he was laid off, and that he (Jones ) found it odd 

that a blaster would jeopardize his license and livelihood by not 

finishing his job (Tr. 103). 

Inspector Jones confirmed that he issued section 104(d) (1) 

Order No. 3883612 (Exhibit P-6), because of the exposed and 

unattended detonating cord (Tr. 104). He described the roll of 

cord as a Class A high explosive, and he explained that it is 

required to be stored in a magazine to protect it from the 

elements. He stated that a premature explosion of the roll of 

detonating cord "would produce a terrible explosion, scattered 

debris, rocks. The concussion from it, itself, would be 

tremendous" (Tr. 107). He stated that the cord could be 

detonated by something being dropped on it or a piece of 

equipment running over it. The cord weighed approximately 10 to 

15 pounds and someone could have picked it up and put it in a 

truck to transport it in an unauthorized manner (Tr. 107). He 

confirmed that he modified his "highly likely" gravity finding to 

"reasonably likely" (Tr. 108). He issued the section 104(d) (1) 

order because "When I asked Mr. Adams did he realize that that 

was setting out there unattended, he said he did. And it's an 

unwarrantable failure" (Tr. 109). He explained the explosion 

potential for a roll of detonating cord (Tr. 111-113). 

On cross-examination, Mr. Jones stated that although he is 

not a highly qualified industry explosives expert, "I have worked 

with explosives hands-on. I know how they operate. I know what 

they're capable of". He confirmed that he has also learned about 

explosives during his MSHA training, but is not a licensed 

blaster. He worked as part of a surface mine powder crew for 

three years, and at different times worked on a blasting crew 

using the same explosive material used by the respondent 

(Tr. 117). 

Respondent's Testimony and Evidence 

stuart H. Adams, President, Adams Stone corporation, 

testified that he first learned about the two charged boulders 

which are the subject of citation no. 3883610, and order 

1089 
nos. 3883611 and 3883612, on the morning of January 23, 1992 when 

Inspector Jones was at the quarry conducting his inspection. 

Mr. Adams stated that the licensed blaster who had prepared the 

boulders for blasting did not inform him what he had done on 

January 16, 1992, and Mr. Adams emphatically denied that the 

blaster informed him that day that the boulders had been drilled 

and charged. 

Mr. Adams stated that the blaster asked to be laid off on · January 16, 1992, because of the weather so that he could receive 

unemployment compensation. Mr. Adams stated that the quarry was 

not in full production at that time and that the only activity 

taking place was the dismantling of the primary crusher by five 

or six employees so that the crusher could be shipped to the 

manufacturer for repairs. Mr. Adams stated that the quarry was 

down for a winter "seasonal layoff", and other than a large crane 

being used to dismantle the crusher, there was no production 

equipment operating in the area where the charged boulders were 

located. He stated that the boulders were located at an elevated 

bench area approximately 600 to 800 feet from the crusher area. 

Mr. Adams did not deny that the cited roll of detonating 

cord was not protected or stored in a magazine, but he indicated 

that the blaster had not completed the job by fastening the cord 

to the detonating devices, and that this would be necessary 

before the blast could be detonated. He confirmed that after the 

cited boulder conditions were called to his attention by 

Inspector Jones on January 23, 1992, he called the blaster at his 

home and he came to the quarry within one hour and detonated the 

charge, and the citation and orders were then terminated by 

Mr. Jones. 

Mr. Adams confirmed that he told Inspector Jones that he was 

aware of the cited conditions and that he did so in response to 

the inspector's question as to whether or not he knew that the 

boulders had been charged. However, Mr. Adams stated that when 

be acknowledged that he was aware of this, his response was in 

the context of his knowledge as of January 23, 1992, when the 

inspector brought the conditions to his attention. Mr. Adams 

stated that he was out of town when the accident involving 

Mr. Cantrell occurred, and he denied that he ever told Inspector 

Jones that he was aware of the charged boulders on January 16, 

1992, when the blaster was laid off and left the quarry. 

Mr. Adams stated that he was shocked to learn that the blaster 

had left the site after charging the boulders, and without 

notifying him what he had done, and Mr. Adams believed that the 

blaster should probably have been charged with the violations. 

On cross-examination, Mr. Adams reiterated that he laid off 

the blaster on January 16, 1992, because of the weather and at 

the blaster's request. He confirmed that one of his employees, 

1090 
either Fred Bartley, Tom Roberts, or Carl Stumbo, first informed 

him about the two charged boulders on January 23, 1992. 

With regard to the citation concerning the absence of a 

designated person in charge of the quarry on January 22, 1992, 

the day following the accident, Mr. Adams stated that Mr. Stumbo 

has served as one of his superintendents for many years, has 

installed and dismantled a number of crushers over the years, and 

had "worked the quarry" for many months. Mr. Adams stated that 

based on Mr. Stumbo's many years of experience, he designated him 

to operate the crane for the "heavy lift" required to dismantle 

the crusher. Mr. Adams stated Mr. Stumbo was in charge of the 

crew on January 23, 1992, but was reluctant to admit this to 

inspector Jones. Mr. Adams confirmed that Mr. Stumbo was an 

experienced and trained superintendent. 

In response to further questions, Mr. Adams conceded that he 

designated Mr. Stumbo as the competent person in charge on 

January 22, or 23, 1992, after he (Adams) went to the quarry 

site. Mr. Adams confirmed that except for the crusher 

dismantling work, everything else at the quarry was shut down, 

and Mr. Adams believed that Mr. Stumbo was in charge. Mr. Adams 

acknowledged that Mr. Stumbo may not have informed Inspector 

Jones that he was in charge, and that Mr. Jones may not have had 

any reason to believe that Mr. Stumbo was in fact in charge. 

With regard to the failure of Mr. Cantrell to use a safety 

belt or line at the time he fell, Mr. Adams acknowledged that 

this was the case. However, Mr. Adams stated that one or two 

safety belts were available and stored in the equipment storage 

room near the crusher area, and that belts were also stored in a 

storage shop associated with the Adams Coal operation, which was 

a separate corporation operating at the quarry site. Mr. Adams 

stated that Mr. Cantrell knew how to use safety belts and lines, 

and that he had observed him wearing them in the past during his 

30 years of employment at the quarry. 

Findings and Conclusions 

Fact of Violations 

citation No. 3883607 

In this instance, the respondent was charged with a 

violation of mandatory safety 30 C.F.R. § 56.15005, after the 

inspector determined that Mr. Cantrell was not wearing a safety 

belt or line when he fell from the top of the crusher while 

performing work to dismantle the crusher so that it could be 

shipped for repairs. The cited standard requires that safety 

belts and lines be worn when persons work where there is a danger 

of falling. The unrebutted evidence in this case establishes 

that Mr. Cantrell was working and standing on the top of the 

1091 
crusher approximately 25 to 30 feet above the ground. He had 

jumped to the top of the crusher from an adjacent catwalk and he 

was not tied off with a safety line, nor was he wearing a safety 

belt. While in the process of removing some material from the 

top of the crusher and throwing it to the ground below, he fell 

off and sustained serious injuries. 

The respondent does not dispute the fact that Mr. Cantrell 

was not wearing a safety belt and that he was not tied off while 

working at the top of the crusher. I conclude and find that 

Mr. Cantrell, working 25 to 30 feet above ground, at the top of a 

crusher that was in the process of being dismantled, was in a 

position or at a location where there was a danger of falling, 

and that he was required to wear a safety belt or line while 

performing the work in question. Since it is clear that he was 

not wearing a safety belt or line, a violation of section 

56.15005, has been established by a clear preponderance of the 

evidence, and the violation IS AFFIRMED. 

Order No. 3883608 

In this instance the respondent was charged with another 

violation of the safety belt and line requirements found in 

section 56.15005, after the inspector observed two employees 

working on top of the crusher the day following the accident 

involving Mr. Cantrell. The credible and unrebutted evidence 

establishes that the two employees were working approximately 

25 feet above ground level while standing with one foot on bolts 

sticking out of the side of the crusher while they were cutting 

metal with torches. They were not wearing safety belts and lines 

and were not otherwise tied off to prevent them from falling to 

the ground below. I conclude and find that the two cited 

employees were working at a location where there was a danger of 

falling, and that section 56.15005, required them to wear safety 

belts or lines while performing work at that location. Since 

they were not, I further conclude and find that a violation of 

section 56.15005, has been established by a clear preponderance 

of the evidence, and the violation IS AFFIRMED. 

Order No. 3883609 

The respondent here is charged with a violation of mandatory 

safety standard 30 C.F.R. § 56.18009, which provides as follows: 11When persons are working at the mine, a competent person 

designed by the mine operator shall be in attendance to take 

charge in case of an emergency". The inspector issued the 

violation after returning to the work site the day after the 

accident and observing that six men were continuing the work of 

dismantling the crusher. None of the working employees informed 

the inspector that anyone had been designated by management to be 

in charge. Although the inspector determined that the crane 

operator, Carl Stumbo, may have been a foreman in charge at the 

1092 
site in the past, Mr. Stumbo informed him that he was not in 

charge on January 22, 1992. 

The respondent's defense is that Mr. Stumbo was a longtime 

employee who was trained in safety and repair matters, and that 

on the day in question, the inspector admitted that Mr. Stumbo 

"seemed to be in charge, or at least seemed to know what was 

going on". The respondent's president, Stuart Adams, testified 

that Mr. Stumbo had served as one of his superintendents in the 

past and had installed and dismantled a number of crushers. 

Mr. Adams initially testified that he designated Mr. Stumbo to 

operate the crane on the day in question, and he claimed that 

Mr. Stumbo was in charge of the crew. Mr. Adams later conceded 

that he designated Mr. Stumbo as the competent person in charge 

only after he went to the quarry site a day or two later. He 

also conceded that Mr. Stumbo did not step forward to identify 

himself to the inspector as the designated person in charge, and 

when asked what he expected of the inspector under those 

circumstances, Mr. Adams responded "You're absolutely right" 

(Tr. 138). 

The respondent's defense IS REJECTED. I find no credible 

evidence to support any reasonable conclusion that Mr. Stumbo was 

in fact designated to be in charge in case of an emergency on the 

day the citation was issued. Mr. Stumbo was not called to 

testify, and I find Mr. Adams• testimony to be rather 

contradictory and equivocal to support any suggestion that 

Mr. Stumbo was in fact the designated person pursuant to 

section 57.18009. If Mr. Stumbo was the designated person in 

charge, I find it rather strange that neither he or his crew was 

aware it. I conclude and find that the petitioner has 

established a violation of section 56.18009, by a preponderance 

of the evidence, and the violation IS AFFIRMED. 

Citation No. 3883610. and Order Nos. 3883611 and 3883612 

In the course of the hearing, and in its posthearing brief, 

the respondent took the position that the three cited violations 

concerning the charged boulders were not justified because they 

concern a single condition, namely, the two boulders which had 

been drilled and charged in preparation for blasting. The 

respondent questions the legality and propriety of issuing three 

separate violations and orders for one single condition. 

However, this issue has been raised in the past, and the defense 

advance by the respondent here has been rejected by the 

Commission. See: El Paso Rock Quarries, Inc., 3 FMSHRC 35, 

40 (January 1981), and the recent decision in Cyprus Tonopah 

Mining Corp., 15 FMSHRC 367,378 (March 1993), where the 

Commission stated in relevant part that "although Cyprus• 

violations may have emanated from the same events, the citations 

are not duplicative because the two standards impose separate and 

1093 
distinct duties upon an operator. Accordingly, we affirm the 

judge's conclusion that the citations are not duplicative". 

After careful consideration of the respondent arguments, I 

conclude and find that the issuance of the three separate 

violations by the inspector was justified and warranted and did 

not constitute an unreasonable or arbitrary enforcement action. 

The credible and unrebutted testimony of the inspector 

establishes that each of the cited conditions in question 

constituted separate and distinct conditions which were in 

violation of the three cited mandatory safety standards. Indeed, 

the respondent conceded that the cited conditions existed 

(Tr. 6-7, 104-109), and its defense is based on certain 

mitigating arguments in connection with the amount of the 

proposed civil penalty assessments. 

With regard to Citation No. 3883610, mandatory safety 

regulation section 56.6313, requires that all areas in which 

loading is suspended, or loaded holes are awaiting firing, shall 

be attended, barricaded and posted, or flagged against 

unauthorized entry. The credible evidence establishes that at 

the time the inspector observed the charged boulders, they were 

loaded and awaiting firing, and the blaster had left the 

property. Thus, it seems clear that the loading and blasting of 

the charged holes had been suspended and were awaiting firing, 

and the inspector found no evidence that the affected area was 

attended, barricaded and posted, or flagged against unauthorized 

entry. Under the circumstances, I conclude and find that the 

petitioner has established a violation of section 56.6313, by a 

preponderance of the evidence, and IT IS AFFIRMED. 

With regard to Order No. 3883611, section 56.6320, of MSHA's 

mandatory standards provides that all charged holes are to be 

blasted as soon as possible after charging has been completed. 

However, the standard further provides that "In no case shall the 

time elapsing between the completion of charging to the time of 

blasting exceed 72 hours unless prior approval has been obtained 

from MSHA". The credible and unrebutted evidence in this case 

establishes that more than 72 hours passed from the time the 

boulders were charged on or before January 16, 1992, until they 

were blasted on January 23, 1992, and MSHA had not granted 

permission for an extension of time. Under the circumstances, I 

conclude and find that the petitioner has established a violation 

of section 56.6320, by a preponderance of the evidence, and the 

violation IS AFFIRMED. 

With regard to Order No. 3883612, section 56.6305, of MSHA's 

mandatory standards requires that all unused explosive materials 

be moved to a protected location as soon as practical after 

loading operations are completed. The credible evidence in this 

case establishes that the 1,000 foot roll of detonating cord was 

an explosive material which had not been moved to a protected 

1094 
location or stored in a magazine, and the respondent presented no 

credible evidence that it was not practical to move the roll of 

exposed detonating cord to a protected area before it was found 

by the inspector. Accordingly, I conclude and find that the 

petitioner has established a violation by a preponderance of the 

evidence, and the violation IS AFFIRMED. 

Significant and Substantial Violations 

A "significant and substantial" violation is described in 

section 104(d) (1) of the Mine 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." 

30 C.F.R. § 814(d) (1). 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 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 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: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to safetycontributed 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 thatl in 

accordance with the language of section 104(d) (1), 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). 

1095 
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 

(December 1987). Further, any determination of the significant 

and substantial nature of a violation must be made in the context 

of continued normal mining operations. National Gypsum, supra, 

3 FMSHRC at 825; U.S. Steel Mining Company, 6 FMSHRC 1573, 1574. 

(July 1984); U.S. Steel Mining Co .. Inc., 7 FMSHRC 327, 329 

(March 1985). Halfway. Incorporated, 8 FMSHRC 8, (January 1986). 

Citation No. 3883607 and Order No. 3883608 

The evidence reflects that Mr. Cantrell fell from the top of 

the crusher while in the process of throwing some material 

to the ground below. The two other employees who were observed 

working at the same location the next day were in the process of 

cutting metal with torches while in close proximity to each other 

and with one foot on bolts which protruded from the side of the 

crusher. They too were not wearing safety belts or lines, and 

they were not otherwise secured against falling approximately 

25 to 30 feet to the ground below. Under the circumstances, I 

believe that one can reasonably conclude that these individuals 

were exposed to a falling hazard, and that in the event of a fall 

they would reasonably likely suffer serious or fatal injuries. 

Indeed, Mr. Cantrell fell and suffered serious and disabling 

injuries, and in the context of continuing mining operations, I 

conclude and find that the two employees who were busy working 

with cutting torches in their hands while "perched" atop the 

crusher in rather precarious positions would be exposed to a 

discreet falling hazard, and if they were to fall, it would be 

reasonably likely that they would suffer serious or fatal 

injuries. Under all of these circumstances, I conclude and find 

that the inspector's "S&S" findings with respect to both of these 

violations were justified, and they ARE AFFIRMED. 

Order No. 3883609 

Inspector Jones concluded that the failure of the respondent 

to designate someone to be in charge of the work crew in case of 

an emergency was a significant and substantial violation because 

"the mining industry has been proven to be a dangerous industry. 

Injuries happen all the time. • • • it has been proven to me that 

in the event of an emergency, somebody needs to be in charge" 

(Tr. 62). On the facts of this case, it seems obvious to me that 

Mr. Jones was influenced by the fact that after Mr. Cantrell was 

injured, the crew continued working on the very same crusher from 

which Mr. Cantrell fell without anyone being officially 

designated to be in charge in the event of any further emergency 

situation similar to the one involving Mr. Cantrell. Mr. Jones 

also believed that someone needed to be designated in charge so 

1096 
that proper decisions could be made, and proper precautions taken 

in time of an emergency (Tr. 60). 

In this case, Mr. Cantrell was the designated person in 

charge prior to his injury, but after he was injured work 

continued without anyone being officially designated to be in 

charge in case of any further emergency. Although crane operator 

Stumbo assumed control of the situation when Mr. Cantrell was 

injured, and properly attended to him while awaiting assistance,· 

the failure to designate someone to be in charge when the 

dismantling work continued in the absence of Mr. Cantrell exposed 

the employees who continued with the work to the hazard of not 

having anyone immediately available to take over in the event of 

an emergency. If someone had been specifically designated to be 

in charge as the work on dismantling the platform continued, and 

was held accountable, it is altogether possible that the two 

employees observed working on top of the crusher without being 

secured against falling would not have been allowed to continue 

working under those hazardous conditions, and they presumably 

would have been instructed by the person in charge to wear safety 

belts and lines. Under the circumstances, I conclude and find 

that the inspector's 11S&S11 finding was justified, and IT IS 

AFFIRMED. 

Citation No. 3883610 and Order No. 3883612 

Inspector Jones• credible and unrebutted testimony clearly 

establishes the hazards associated with leaving charged explosive 

devices such as dynamite, detonating cord, and primer exposed and 

unattended to (Tr. 84). While it is true that the mine was not 

in operation when the inspector found the charged materials, and 

that the boulders which were primed for blasting were in a remote 

area, the inspector's unrebutted testimony reflects that 

equipment and mine personnel, as well as other individuals who 

had business at the site, would be exposed to hazards resulting 

from a premature detonation of the charged boulders. The 

inspector observed three state inspectors pass by the area, and 

given the fact that there were no barricades to prevent anyone 

from venturing near the boulders, and the area was not flagged to 

alert persons of the danger, I believe that in the event of a 

premature detonation, it would be reasonably likely that anyone 

in the blast area would suffer injuries of a reasonably serious 

nature. Under the circumstances, I conclude and find that the 

inspector's 11S&S11 findings with respect to both of these 

citations were warranted and justified, and they ARE AFFIRMED. 

Unwarrantable Failure Violation 

The governing definition of unwarrantable failure was 

explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided 

1097 
under the 1969 Act, and it held in pertinent part as follows at 

295-96: 

In light of the foregoing, we hold that an 

inspector should find that a violation of any mandatory 

standard was caused by an unwarrantable failure to 

comply with such standard if he determines that the 

operator involved 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 because of a lack 

of due diligence, or because of indifference or lack of 

reasonable care. 

In several recent decisions concerning the interpretation 

and application of the term "unwarrantable failure," the 

Commission further refined and explained this term, and concluded 

that it means "aggravated conduct, constituting more than 

ordinary negligence, by a mine operator in relation to a 

violation of the Act." Emery Mining Corporation, 9 FMSHRC 1997 

(December 1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 

(December 1987); Secretary of Labor v. Rushton Mining Company, 

10 FMSHRC 249 (March 1988). Referring to its prior holding in 

the Emery Mining case, the Commission stated as follows in 

Youghiogheny & Ohio, at 9 FMSHRC 2010: 

We stated that whereas negligence is conduct that 

is "inadvertent," "thoughtless" or "inattentive," 

unwarrantable conduct is conduct that is described as 

"not justifiable" or "inexcusable." Only by construing 

unwarrantable failure by a mine operator as aggravated 

conduct constituting more that ordinary negligence, do 

unwarrantable failure sanctions assume their intended 

distinct place in the Act's enforcement scheme. 

In Emery Mining, the Commission explained the meaning of the 

phrase "unwarrantable failure" as follows at 9 FMSHRC 2001: 

We first determine the ordinary meaning of the 

phrase "unwarrantable failure." "Unwarrantable" is 

defined as "not justifiable" or "inexcusable." 

"Failure" is defined as "neglect of an assigned, 

expected, or appropriate action." Webster's Third New 

International Dictionary (Unabridged) 2514, 814 (1971) 

("Webster's"). Comparatively, negligence is the 

failure to use such care as a reasonably prudent and 

careful person would use and is characterized by 

"inadvertence," "thoughtlessness," and "inattention." 

Black's Law Dictionary 930-31 (5th ed. 1979). Conduct 

that is not justifiable and inexcusable is the result 

of more than inadvertence, thoughtlessness, or 

inattention. * * * 

1098 
Citation No. 3883607 

Inspector Jones testified credibly that he based his 

unwarrantable failure finding on the fact that Mr. Cantrell was 

serving as the assistant mine superintendent at the time he was 

injured because of his failure to wear a safety belt and line. 

As an agent of management, Mr. Jones believed that Mr. Cantrell 

knew that what he was doing was an unsafe act, and that he 

suffered serious injuries because of his own actions (Tr. 17). · Mr. Jones later conceded that he did not speak with Mr. Cantrell 

after he was injured and he simply assumed that as an experienced 

and trained superintendent, Mr. Cantrell would be expected to 

know that a safety belt and line were required to be worn and 

that his working on top of the crusher without wearing a belt and 

line was an unsafe act (Tr. 31-34). 

Mr. Adams did not dispute the fact that Mr. Cantrell was not 

wearing a safety belt and line when he fell from the crusher. 

Mr. Adams asserted that belts were available and were stored 

nearby in two storage rooms, and he produced some new belts and 

lines after the violation was issued. Further, Mr. Adams 

believed that Mr. Cantrell knew how to use a belt because he had 

observed him doing so during his many years of working at the 

site. Inspector Jones confirmed that the respondent had not 

previously been cited for any safety belt violations, and he 

conceded that he did not determine whether the respondent had any 

established safety rules in place, or that the respondent made it 

a practice to allow workers to work on high places without 

wearing a safety belt (Tr. 37-38). Although these factors may be 

considered by me in mitigating the civil penalty assessment for 

the violation in question, they may not serve as an absolute 

defense warranting a dismissal of the violation. 

The evidence here establishes that Mr. Cantrell was an 

experienced and trained management member who had worked for the 

respondent for thirty years and served in a responsible 

superintendent's position. It is difficult for me to comprehend 

what may have prompted Mr. Cantrell to place himself in such a 

precarious position on top of the crusher without securing 

himself from falling. While it is most unfortunate that 

Mr. Cantrell's actions resulted in his serious and disabling 

injuries, as a member of management, he must nevertheless be held 

responsible and accountable for his reckless and inexcusable 

conduct. I conclude and find that Mr. Cantrell's failure to 

comply with the requirements of the cited standard by failing to 

wear a safety belt or line while working on top of the crusher 

where there was a danger of falling constituted sufficient 

"aggravated conduct" to support the inspector's unwarrantable 

failure finding. Accordingly, the inspector's finding and the 

contested citation ARE AFFIRMED. 

1099 
Order No. 3883608 

Inspector Jones testified that he based his section 

104(d) (1) unwarrantable failure order on the fact that the 

individual tending the scale house told him that he had spoken to 

Mr. stuart Adams a couple of times about Mr. Cantrell's accident 

and informed him about what had happened to Mr. Cantrell 

(Tr. 46). Mr. Jones believed that Mr. Adams was aware of the 

fact that Mr. Cantrell had fallen off the crusher the day befo·re 

and that he was aware of the fact that he was not wearing a 

safety belt. Since the work of dismantling the crusher continued 

after Mr. Cantrell's accident, Inspector Jones believed that 

Mr. Adams "could understand the possibility of a man getting 

injured" if he were not wearing a safety belt or line when the 

work continued (Tr. 47-48). 

The evidence reflects that the respondent had erected a work 

platform around the crusher, but it was dismantled to facilitate 

the final removal of the structure. The inspector confirmed that 

he found one safety belt in the work area, but he did not believe 

it was usable. He also testified that he looked around the 

immediate work area and found no other safety belts or lines, and 

asked the employees about them (Tr. 44). Mr. Adams claimed that 

safety belts were stored in a storage room near the crusher area, 

and that additional belts were stored in another storage shop 

associated with a coal mining operation carried out by the 

respondent at the site. 

I conclude and find that the inspector's unwarrantable 

failure finding was justified. While it may be true that safety 

belts and lines were stored in storage rooms, the fact remains 

that the two cited employees were not wearing them at the time 

they were observed working at a precarious position on top of the 

very same crusher from which Mr. Cantrell fell and was seriously 

injured because he was not wearing a safety belt or line. As the 

responsible mine operator, Mr. Adams had an obligation and duty 

to insure that the men who continued to work on the crusher after 

Mr. Cantrell was injured were wearing safety belts and lines to 

preclude another serious accident. I conclude and find that 

Mr. Adams' failure to do so constituted "aggravated conduct" and 

clearly supports the inspector's order. Accordingly, the 

inspector's finding and the contested order ARE AFFIRMED. 

Order No. 3883609 

Inspector Jones testified that since quarry operator Stuart 

Adams initially found it necessary to designate Mr. Cantrell as 

the person in charge in the event of an emergency, he should have 

designated someone to replace Mr. Cantrell as the person in 

charge after Mr. Cantrell was injured. Since he did not do so, 

Mr. Jones believed that the unwarrantable failure order was 

justified (Tr. 62). 

1100 
The credible and unrebutted testimony of Mr. Adams reflects 

that he was out of town on the day that Mr. Cantrell was injured, 

that the quarry was not in a normal production mode, and the only 

work taking place was the dismantling of the crusher. Mr. Adams 

stated that he designated Carl Stumbo, an experienced and trained 

crane operator, who had previously served as one of his 

superintendents, to operate the crane used to dismantle the 

crusher. conceding that he did not formally designate or 

advertise Mr. Stumbo as the person in charge, Mr. Adams testified 

credibly that he believed that Mr. Stumbo was in charge, but that 

Mr. Stumbo was reluctant to admit this to the inspector. 

I take note of the fact that section 56.18009, requires the 

designation of "a competent person" to be in charge in the event 

of an emergency. A "competent person" is defined in section 

56.2, as a person "having abilities and experience that fully 

qualify him to perform the duty to which he is assigned". I find 

no evidence to suggest that Mr. Stumbo was not qualified to 

perform his crane duties, and although I have concluded that 

Mr. Adams did not specifically designate Mr. Stumbo to be in 

charge in case of an emergency in violation of section 56.18009, 

I find his explanation in mitigation of the violation to be 

plausible and believable. 

After careful consideration of all of the evidence presented 

in support of the disputed order, I conclude and find that the 

inspector's asserted justification for his unwarrantable failure 

finding does not support a finding of aggravated conduct on the 

part of the respondent. In my view, the inspector's testimony 

reflects the application of a "knew or should have known" 

standard to support a moderately high degree of negligence, 

rather than the kind of "aggravated conduct" reflected by the 

Commission's relevant decisions. Under the circumstances, the 

inspector's unwarrantable failure finding IS VACATED, and the 

section 104(d) (1) Order IS MODIFIED to a section 104(a) citation 

with "S&S" findings. 

Citation No. 3883610 and Order Nos. 38833611 and 3883612 

The evidence reflects that the blaster who prepared the 

boulders for blasting was laid off on January 16, 1992, and that 

when he left the mine site that day the boulders had not been 

shot, and they remained in that condition until January 23, 1992, 

when Mr. Jones observed them during his inspection. Mr. Jones 

testified that Mr. Adams admitted that he knew that the cited 

conditions existed, and because of these purported admissions, 

Mr. Jones concluded that the violations were unwarrantable 

failure violations pursuant to section 104(d) (1) of the Act 

(Tr. 80, 89, 109). 

Mr. Adams testified that he was informed of the existence of 

the two charged boulders on the morning of January 23, 1992, by 

1101 
one of his employees while Mr. Jones was at the quarry, and that 

he immediately called the blaster at his home and instructed him 

to come to the site and detonate the charged boulders. Mr. Adams 

confirmed that the blaster left the site on January 16, 1992, 

when he was laid off at his own request, but Mr. Adams denied 

that the blaster informed him that day that the boulders had been 

drilled and charged. Mr. Adams further denied that he admitted 

to Mr. Jones that he had been aware of the conditions since . January 16, 1992. Mr. Adams acknowledged that he answered in the 

affirmative when Mr. Jones asked him if he were aware of the 

cited conditions, but he explained that this response was made in 

the context of his knowledge as of the day of the inspection on 

January 23, 1992, after he learned of the cited conditions from 

one of his employees. 

The critical issue in support of the unwarrantable failure 

findings by Inspector Jones is whether or not Mr. Adams had known 

since January 16, 1992, that the boulders had been drilled and 

charged and left in that condition by the blaster at the time he 

was laid off at his own request, or whether Mr. Adams first 

learned of the conditions on January 23, 1992, as he claims. 

The burden of proof with respect to the alleged 

unwarrantable failure violations lies with the petitioner. 

Although the citation and orders include a statement that "the 

operator was aware that this condition existed" as part of the 

description of the cited conditions, I find no credible evidence 

to support a conclusion that Mr. Adams knew that the cited 

conditions existed as of January 16, 1992, when the blaster was 

laid off. Nor do I find any credible evidence that Mr. Adams 

laid the blaster off knowing full well that the boulders had been 

drilled, loaded, and made ready to be blasted, and that he simply 

allowed them to remain in that condition indefinitely. 

The blaster was not called to testify, and there is no 

indication that he was deposed, or that he was unavailable for 

the hearing or beyond the reach of a subpoena. Inspector Jones 

confirmed that he spoke with the balster when he returned to the 

site on January 23, 1992, in response to Mr. Adams' request, but 

Mr. Jones could not remember whether he asked the blaster if he 

had informed Mr. Adams on January 16, 1992, that he had drilled 

and charged the boulders before he left the quarry site that day. 

Further, although Mr. Jones confirmed that he made some 

inspection notes concerning the violations, he did not have them 

with him during his hearing testimony, and none have been 

produced. 

The respondent's compliance history does not reflect any 

prior blasting citations, nor does it reflect any prior 

unwarrantable failure violations. Further, Mr. Adams' testimony 

that the blaster himself asked to be laid off is not rebutted, 

and it stands in contrast to the inspector's undocumented 

1102 
testimony that the blaster told him that Mr. Adams came to the 

site on January 16, 1992, and told him that he was laying him off 

"as of right now", and that the blaster simply walked away. When 

asked whether or not the blaster gave any explanation for 

Mr. Adams' rather abrupt and unannounced layoff, the inspector 

stated that the blaster told him that Mr. Adams "did what he 

pleased" and that his decisions were "final and instant" 

(Tr. 103). 

Having viewed Mr. Adams in the course of the hearing, he 

impressed me as being rather independent and not too enchanted 

with the inspector, but he did not impress me as the kind of 

individual who would deliberately leave himself open to severe 

sanctions pursuant to section 110(c) of the Act, or to possible 

criminal action, by knowingly allowing a blaster to walk away 

from his quarry leaving behind two charged boulders which had 

been readied for blasting. Mr. Adams also impressed me as a 

credible individual, and I find his testimony that he first 

learned about the boulders on January 23, 1992, on the day of the 

inspection, rather than on January 16, 1992, as suggested by the 

inspector, to be believable and plausible. I take note of the 

fact that the boulders were located in a remote area of the 

quarry, and based on the testimony and evidence adduced in this 

case it does not appear that Mr. Adams was continuously at the 

quarry site for any extended periods of time. Under the 

circumstances, and in the absence of any evidence of aggravated 

conduct on the part of the respondent, I conclude and find that 

the petitioner has failed to make a case in support of the 

unwarrantable failure findings by the inspector. According, his 

findings in this regard ARE VACATED, and the contested section 

104(d) (1), citation and orders ARE MODIFIED to section 104(a) 

citations. 

Size of Business and Effect of Civil Penalty Assessments on the 

Respondent's Ability to Continue in Business. 

Inspector Jones described the respondent's m1n1ng operation 

as a multi-bench limestone operation which crushes limestone rock 

in the primary crusher. After the crushing process, the 

limestone is transported to a conveyor belt to a screen where it 

is sized in different categories and stockpiled for sale to 

customers. Mr. Jones stated that the quarry consists of 

approximately twelve acres. At the time of his inspection there 

were approximately six employees dismantling the primary crusher 

so that it could be repaired, six-to-eight employees were working 

in the shop, and one employee was at the scale house where the 

stockpiled crushed limestone would be loaded on the customers 

trucks. He also indicated that at one time the respondent had as 

many as fifty employees working at the quarry property. 

The information provided on the face of MSHA Forms 1000-179, 

Proposed Assessment, which are part of the pleadings, reflect 

1103 
that the respondent produced 86,640, tons of crushed limestone 

annually (Exhibits G-7 and G-8). 

Based on all of the available evidence and testimony, I 

conclude and find that the respondent is a small mine operator, 

and absent any evidence to the contrary, I further conclude and 

find that payment of the civil penalty assessments which I have 

made for the citations in question will not adversely affect the 

respondent's ability to continue in business. 

History of Prior Violations 

An MSHA computer print-out reflects that the respondent paid 

civil penalty assessments of $870, for eighteen (18) 

section 104(a) citations during the period January 22, 1990, 

through January 21, 1992. Twelve (12) of the citations are 

"single penalty" non-"S&S" citations, and there are no prior 

violations for any of the mandatory safety standards cited in 

these proceedings. Under all of these circumstances, I cannot 

conclude that the respondent's compliance record warrants any 

additional increases in the civil penalty assessments that I have 

made for the violations which have been affirmed. 

Good Faith Compliance 

The evidence adduced in these proceedings reflects that all 

of the violations were timely abated by the respondent in good 

faith. 

Gravity 

With the exception of non-"S&S" Citation No. 3883611, and 

based on my findings and conclusions affirming the inspector's 

"S&S" findings with respect to the remaining violations, I 

conclude and find that those violations were all serious. 

Negligence 

I conclude and find that the two unwarrantable failure 

violations (Citation No. 3883607 and No. 3883608), were the 

result of a high degree of negligence. Taking into account the 

fact that the Act imposes a high degree of care on a mine 

operator to insure compliance with all mandatory safety 

standards, I conclude and find that the remaini~g violations all 

resulted from the respondent's failure to exercise reasonable 

care amounting to a moderately high degree of negligence. 

Civil Penalty Assessments 

On the basis of the foregoing findings and conclusions, and 

taking into account the civil penalty assessment criteria found 

in section 110(i) of the Act, I conclude and find that the 

1104 
following civil penalty assessments are reasonable and 

appropriate for the violations which have been affirmed: 

Citation/Order No. Date 30 C.F.R. Section Assessment 

3883607 1/22/92 56.15005 $1,600 

3883608 1/22/92 56.15005 $1,000 

3883609 1/22/92 56.18009 $225 

3883610 1/23/92 56.6313 $275 

3883611 1/23/92 56.6320 $75 

3882612 1/23/92 56.6305 $250 

ORDER 

The respondent IS ORDERED to pay the civil penalty 

assessments enumerated above within thirty (30) days of the date 

of these decisions and order. Payment is to be made to the 

petitioner (MSHA), and upon receipt of payment, these proceedings 

are dismissed. 

h.x1f~ Administrative Law Judge 

Distribution: 

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

David H. Adams, Esq., P.O. Box 2853, Pikeville, KY 41502 

(Certified Mail) 

jml 

1105 
I'BDBRAL JD:IIB SUB'l'Y HD HEALD JtBVl:Blf COIIIIl:SSXOli 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RAMBLIN COAL COMPANY, INC., 

Respondent 

91993 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 90-429 

A.C. No. 15-16685-03510 

Docket No. KENT 90-430 

A.C. No. 15-16685-03511 

No. 8 Mine 

ORDER OF DISMISSAL 

The Secretary has moved to dismiss the part of these cases 

remanded by Order of February 2, 1993, on the ground that the 

remanded citations are now moot. The civil penalties were 

recalculated, not contested by the operator, and therefore became 

a final order of the Commission under 29 c.F.R. § 2700.27. 

The decision of June 22, 1992, disposing of the citations 

not remanded to the Secretary stands. 

All citations thus being disposed of, it is ORDERED that the 

motion to dismiss is GRANTED and these cases are DISMISSED. 

{()jA~~v~ William Fauver 

Administrative Law Judge 

Distribution: 

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Billy R. Shelton, Esq., Baird, Baird, Baird and Jones, P. o. Box 

351, Pikeville, KY 41501 (Certified Mail) 

/fcca 

1106 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

JUN 151993 

WYOMING FUEL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WYOMING FUEL COMPANY 1 

Respondent 

. . 

. . CONTEST PROCEEDINGS 

: Docket No. WEST 90-112-R 

Order No. 2930784; 2/13/90 . . 

. . 

. . 

. . 

. . 

. . 

. . 

Docket No. WEST 90-113-R 

Citation No. 2930785; 2/13/90 

Docket No. WEST 90-114-R 

Order No. 3241331; 2/15/90 

Docket No. WEST 90-115-R 

Citation No. 3241332; 2/16/90 

: Docket No. WEST 90-116-R 

Citation No. 3241333; 2/16/90 . . 

. . 

. . 

: 

. . 

. . 

. . 

. . 

. . 

. . 

. 

• 

. . 

Golden Eagle Mine 

MSHA Mine I.D. No. 05-02820 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 90-290 

A.C. No. 05-02820-03569 

Golden Eagle 

DBCZSZOB APTER REMAND 

Before: Ju4qe Morris 

The Commission remanded the above contest cases to the Judge 

for reconsideration consistent with the principles set forth in 

the order of remand, 14 FMSHRC 1282 (1992). 

DZD WFC SUFFER LEGALLY RBCOGBZZABLB PRBJUDZCB? 

A threshold matter is whether WFC would suffer legally 

recognizable prejudice if Citations Nos. 2930785 and 3241332 were 

modified as proposed by the Secretary. If the Judge finds prejudice the citations shall remain unmodified and his decision vacating them, on the basis of the inapplicability of s 75.329-1, 

shall stand. If the Judge does not find legally recognizable 

prejudice the citations shall be modified to allege violations of 

1107 
S 75.316 and the Judge shall conduct such further proceedings as 

he deems necessary, 14 FMSHRC at 1290. 

In a post-remand order, WFC was directed to state facts in 

detail as to the manner in which it suffered legally recognizable 

prejudice. (Order, September 4, 1992). WFC's statement filed 

September 18, 1992, is attached to this decision. The Secretary 

responded to WFC's statement. 

RULING ON LEGALLY RECOGNIZABLE PREJUDICE 

On October 16, 1992, the Judge denied the claim of legally 

recognizable prejudice and held, in part, as follows: 

The original Citations (Nos. 2930785 and 

3241332) are set forth, respectively, at 12 

FMSHRC 2005 and 12 FMSHRC 2007-2008. The 

proposed amendments were received in evidence 

as Exhibits S-1 and s-2. The exhibits were 

ruled inadmissible at the commencement of the 

hearing. (Tr. 9-20). 

DISCUSSION 

The parties agree on the applicable law: 

The grant or denial of a motion for leave 

to amend is within the sound discretion of 

the Judge and will be reversed only for an 

abuse of discretion. Zenith Radio Corp. v. 

Hazeltine Research. Inc., 401 u.s. 321, 330, 

91 S. Ct. 795, 28 L.Ed.2d 77 (1971); Foman v. 

Davis, 371 u.s. 178, 182, 83 s.ct. 227, 9 

L.Ed.2d 222 (1962). Rule 15(a), Fed. R. Civ. 

P., mandates that leave to amend "shall be 

freely given when justice so required." 

In Foman v. Davis, supra, the Supreme court 

set forth the guidelines governing motions to 

amend under Rule 15(a). They are as follows: 

Rule 15(a) declares that leave to amend 

"shall be freely given when justice so 

requires"; this mandate is to be heeded. See 

generally, 3 Moore, Federal Practice (2d ed. 

1948), !! 15.08, 15.10. If the underlying 

facts or circumstances relied upon by a 

plaintiff may be a proper subject of relief, 

he ought to be afforded an opportunity to 

test his claim on the merits. In the absence 

of any apparent or declared reason--such as 

undue delay, bad faith or dilatory motive on 

1108 
the part of the movant, repeated failure to 

cure deficiencies by amendments previously 

allowed, undue prejudice to the opposing 

party by virtue of allowance of the amendment, futility of amendment, etc.--the leave 

sought should, as the rules require, be 

freely given. Of course, the grant or denial 

of an opportunity to amend is within the 

discretion of the District Court, but outright refusal to grant the leave without any 

justifying reason appearing for the denial is 

not an exercise of discretion; it is merely 

abuse of that discretion and inconsistent 

with the spirit of the Federal Rules." 371 

u.s. at 182, 83 s.ct. at 230. 

See also 3 J. Moore, R. Freer, Moore's 

Federal Practice, par. 15.08{2), 15-47 to 15-

49 {2d Ed. 1991); Cyprus Empire, 12 FMSHRC 

911, 916 (May 1990). 

In Forman v. Davis the Supreme Court 

recited several factors to be considered in 

the denial of an amendment. The citations 

here only involve the test of whether there 

was undue prejudice to the opposing party by 

virtue of allowance of the amendment. 

The hearing in these cases commenced on 

March 13,- 1990. On March 9, 1990, Contestant 

was served, by mail, with the Secretary's 

modification of the above citations. The 

modifications sought to change the citations 

to allege violations of 30 C.F.R. S 75.316 

instead of 30 C.F.R. S 75.329-1(a). 

FURTBBR DISCUSSION 

WFC's post-remand statement failed to set 

forth facts that are persuasive that the 

operator incurred legally recognizable 

prejudice if the citations were modified. 

WFC's statement generally contains 

conclusions of law. 

The mandate of Rule 15(a) is that leave to 

amend "shall be freely given when justice so 

requires." Conversely, facts to show 

recognizable prejudice are required if an 

amendment is to be denied. 

1109 
Illustrative of this point is the Third 

Circuit decision Cornell and Company, Inc., 

v. Occupational Safety and Health Review 

Commission, 573 F.2d 820 (1978). In Cornell, 

nine days before the ALJ hearing and more 

than four months after the inspection, the 

Secretary moved to amend the citation and 

complaint by alleging violations of different 

regulations. The hearing proceeded as 

scheduled. 

At the conclusion of the hearing on the 

merits, Cornell was granted additional time 

to gather evidence but it concluded that the 

additional time would not remedy the prejudice it suffered in preparing its defense. 

Therefore it presented no additional 

evidence. 

Specifically, Cornell's factual claim of 

prejudice was that the testimony of the 

company's workers was necessary as such 

testimony related to the stability of the 

beams where they were working at the precise 

time of the inspection. The danger of using 

the belts in accordance with the safety belt 

standard at that exact time was vital to 

Cornell's defense. 

The Court regarded the workers' testimony 

as indispensable. The record showed that the 

modification of the final amendment, more 

than four months after the inspection, made 

it impossible for Cornell to locate its 

witnesses. The workers were transients hired 

from union halls and Cornell had long since 

lost contact with them. 

On this basis, the Court concluded that: 

"[t]his inability to secure necessary 

witnesses caused solely by the delay of the 

Secretary in seeking the amendment, vitiated 

Cornell's ability to present its sole 

affirmative defense." 573 F.2d at 824. 

In the case at bar, WFC failed to offer any 

facts to support its claim of recognizable 

prejudice, nor was there a claim of prejudice 

made at the hearing. (Tr. 3-27). 

WFC claims the Secretary's amendment 

modified the facts as well as the regulation 

1110 
allegedly violated. I disagree. No change 

of facts occurred. The Secretary alleged 

that S 75.316 was violated, rather than 

S 75.329-1(a). (Compare the citations and 

Exhibits S-1 and S-2). 

In support of its position, WFC also relied 

on Troxel Manufacturing co. v. Schwinn Bicycle co., 489 F.2d 968, 971 (6th Cir. 1973) 

and Conray Datsun, Ltd. v. Nissan Motor 

Corporation, 506 F. Supp. 1051, 1054 (N.D. 

Ill. 1980). . 

The cited cases are not persuasive since 

the Secretary here did not change her theory 

of the case but only the regulation allegedly 

violated. 

WFC further contends it is further prejudiced because the mine has been sold and, 

since considerable time has lapsed, any of 

its witnesses are no longer available. This 

point fails since WFC has failed to assert 

any facts of legally recognizable prejudice 

that such witnesses might reveal if they 

testified. 

WFC further asserts it would be necessary 

to engage in significant new preparation 

based on the modifications. This is not the 

case since, under either standard, the facts 

appear to be the same. The primary issues 

involved the validity of the 107(a) orders 

and whether WFC was required to use seals or 

Kennedy stoppings. 

WFC can hardly claim surprise since the 

ventilation plan was received in evidence at 

the hearing. (See Exhibit S-8). Mr. Mitchell, WFC's witness, was also an expert in 

ventilation. 

I agree with WFC there are a "host of 

potential issues" in a ventilation plan case 

that would not be involved in a violation of 

S 75.329. However, the operator fails to 

point out any of the "hosts" that were not 

addressed at the hearing or not prepared to 

be addressed at the hearing. 

1111 
In sum, WFC's argument that it was prejudiced is general in nature and gives no 

specific instance in which it may incur 

legally recognizable prejudice by having to 

defend the citations as a violation of the 

ventilation plan. 

I conclude there was no legally recognizable prejudice caused by the proposed 

modifications. 

The parties should be given the opportunity 

to offer additional evidence in view of the 

Judge's ruling modifying Citation Nos. 

2930785 and 3241332 to an alleged violation 

of S 75.316. 

The Judge's ruling concluded with an order granting the 

Secretary's motion to modify Citation Nos. 2930785 and 3241332 to 

allege violations of 30 C.F.R. S 75.316. 1 

Further, the parties were granted 15 days to state whether 

they desired to present any further evidence to the citations, as 

modified. Both parties declined to present any further evidence. 

CONSOLIDATION WITH WEST 90-290 

Subsequently the Secretary moved to consolidate WEST 90-290 

(Penalty Proceeding) with WEST 90-112 et al. WFC had no objection and all pending cases were consolidated on November 5, 1992. 

Further, post remand briefs were filed by the parties. 

VALIDITY OP IMMINENT DANGER ORDERS 

In its order of remand the Commission noted that Section 

3(j) of the Mine Act defines an imlilinent danger as "the existence 

of any condition or practice in a coal or other mine which could 

reasonably be expected to cause death or serious physical harm 

before such condition or practice can be abated •••• " 30 u.s.c. 

S 802(j). In Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159 

(November 1989)("R&P"), the Commission reviewed the precedent 

analyzing this definition and noted that "the u.s. Courts of 

Appeals have eschewed a narrow construction and have refused to 

limit the concept of imminent danger to hazards that pose an 

immediate danger." 11 FMSHRC at 2163 (citations omitted). It 

1 S 75.316 is entitled "Ventilation system and methane and 

dust control plan." 

1112 
noted further that the courts have held that "an imminent danger 

exists when the condition or practice observed could reasonably 

be expected to cause death or serious physical harm to a miner if 

normal mining operations were permitted to proceed in the area 

before the dangerous condition is eliminated." Id., quoting 

Eastern Associated Coal Corp. v. Interior Bd. of Mine Op. App., 

491 F.2d 277, 278 (4th Cir. 1974). 

In Utah Power & Light Co., 13 FMSHRC 1617, 1621 (October 

1991), the Commission held that there must be some degree of 

imminence to support a section 107(a) order and noted that the 

word "imminent" is defined as "ready to take place: near at hand: 

impending .•• : hanging threateningly over one's head: menacingly 

near." 13 FMSHRC at 1621 (citation omitted). The Commission 

determined that the legislative history of the imminent danger 

provision supported a conclusion that "the hazard to be protected 

against by the withdrawal order must be impending so as to require the immediate withdrawal of miners." Id. Finally, the 

Commission stated that the inspector must determine whether an 

imminent danger exists without considering the "percentage of 

probability that an accident will happen." Id., quoting s. Rep. 

No. 181, 95th Cong., 1st Sess. 38 (1977), reprinted in Senate 

Subcommittee on Labor, Committee on Human Resources, 95th Cong., 

2nd Sess., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 626 (1978) ("Mine Act Legis. Hist."). 

In both R&P and UP&L, the Commission concluded that an 

inspector must be accorded considerable discretion in determining 

whether an imminent danger exists because an inspector must act 

with dispatch to eliminate conditions that create an imminent 

danger. R&P, 11 FMSHRC at 2164; UP&L, 13 FMSHRC at 1627. As the 

u.s. Court of Appeals for the Seventh Circuit recognized: 

Clearly, the inspector is in a precarious 

position. He is entrusted with the safety of 

miners' lives, and he must ensure that the 

statute is enforced for the protection of 

these lives. His total concern is the safety 

of life and limb •••• We must support the 

findings and the decisions of the inspector 

unless there is evidence that he has abused 

his discretion or authority. 

Old Ben Coal Corp. v. Interior Bd. of Mine Op. App., 523 F.2d 25, 

31 (7th Cir. 1975)(emphasis added); compare Gland creek Coal 

Company Va 91-47-R (March 3, 1993). 

In applying the imminent danger test, the Commission noted 

that the appropriate focus is whether the inspector abused his 

discretion when he issued the imminent danger order. 

lll3 
It is appropriate to consider separately the areas of the 

mine that were involved in these cases. 

Order No. 2930784 alleged an imminent danger existed. The 

order further closed the Golden Eagle Mine and ordered all 

personnel underground withdrawn. The order issued by MSHA 

Inspector D.L. Jordan, reads as follows: 

Methane in excess of 9.9% as approved by a 

handheld detector at a point at least 1211 

from the roof face and ribs was present 

behind a line of 6 Kennedy stoppings that 

have been constructed across the second south 

entry at the intersection of the number 14 

west main return. This encompass area behind 

the stoppings six (6) entries wide and 25 

crosscuts deep. Bottle samples were collected to substantiate the order. Citation 

No. 2930785 for a violation of 30 C.F.R. 

S 75.329(a) (1) accompanies this order at 

section 8, "Condition or Practice". 

Citation No. 2930785, issued under section 104(a) of the 

Act, followed the order. 

A preponderance of the substantial, reliable and probative 

evidence establishes the following findings of fact and the 

additional findings set forth in the discussion below. 

FINDINGS OF FACT 

1. Donald L. Jordan has been an MSHA coal mine inspector 

for 19 years. (Tr. 37-39). He has 42 years experience in the 

mining industry. (Tr. 78). 

2. His training includes courses 

Use of Permissible Methane Detector." 

man, assistant mine foreman, fire boss 

for the State of Colorado. (Tr. 39). 

in "Methane Detection and 

He also holds mine foreand shot fire certificates 

3. Mr. Jordan spends about eight weeks a year at the Golden 

Eagle Mine. (Tr. 40). 

4. On February 13, 1990, accompanied by Mark Bayes, an 

assistant mine foreman, he inspected the west slope area of the 

underground coal mine. This was an abandoned area of the mine. 

(Tr. 40). 

5. Mr. Jordan identified Order No. 2930784, an imminent 

danger order issued on the Second South Area of the west slopes. 

The area, in excess of 2,000 feet, comprises six entries, 

approximately 25 crosscuts deep. (Tr. 41). 

1114 
6. After making their initial approach the inspection team 

found Kennedy stoppings at all six entries. (Tr. 42). [A 

Kennedy stoppings is shown on Exhibit S-5.] 

7. The stoppings are made out of galvanized sheet iron and 

they direct the ventilation in the mine. Kennedy stoppings are 

not seals. (Tr. 43). 

a. An attempt had been made to seal the stoppings from the 

outside by applying a limited amount of styrofoam around the roof 

and ribs. (Tr. 43). 

9. Mr. Jordan had studied the ventilation plan and he was 

aware the stoppings were not on the map. (Tr. 44). 

10. The stoppings were an attempt to deflect the air current 

and seal the area behind them. (Tr. 44). 

11. The Kennedy seals could not be accepted because MSHA has 

no way of knowing what air mixtures are behind the seals. (Tr. 

45). 

12. At the Golden Eagle Mine there has been a history of 

unintentional roof falls, numerous ignition sources and rock dust 

surveys have been way below normal. Also there was excessive 

liberation of methane gas in the mine. Considering these factors 

Kennedy stoppings were unacceptable. (Tr. 45). 

13. Initially the only methane readings Mr. Jordan was able 

to take were outside of the stoppings. (Tr. 45). The readings 

were high enough that he was alarmed because the area was not 

sealed. There was every possibility that there was an explosive 

mixture behind the stoppings. (Tr. 46). 

14. Mr. Jordan took methane samples at all six entries. 

(Tr. 46). 

15. The methane readings were as follows: 

No. 1 entry: .a percent 

No. 2 entry: .6 percent 

No. 3 entry: 1.5 percent 

No. 4 entry: .7 percent 

No. 5 entry: .6 percent 

No. 6 entry: .a percent 

16. To measure the methane concentration Mr. Jordan used a 

CSE 102 hand-held digital methane detector. (Tr. 4a). 

17. These methane levels on the ventilation side created a 

huge doubt as to what concentrations were behind the stoppings. 

(Tr. 4a). 

1115 
18. Mr. Jordan then went outby and by telephone contacted 

Mr. Joe Paplovich, his immediate supervisor. (Tr. 49). 

19. Mr. Jordan informed Mr. Paplovich of the discovery and 

he further sought sampling equipment to determine what was behind 

the stoppings. (Tr. SO). 

20. Mr. Jordan feared there was an explosive mixture behind 

the seals. (Tr. SO). 

21. When he met Messrs. Paplovich, Duran and Feltheger they 

discovered Mr. Duran had one vacuum bottle suitable for sampling 

behind the stoppings. (Tr. 50). 

22. Mr. Jordan had ordered all power withdrawn from the area 

before he met Mr. Paplovich. The power source was an energized 

trolley line. (Tr. 51). 

23. The group then returned to the area and Mr. Jordan found 

a 2.2 methane level. This indicated there was fluctuation and 

the area was "breathing." (Tr. 52). 

24. They then went to the No. 1 entry and withdrew several 

samples by using an aspirator pump and a bottle. (Tr. 54). 

25. The sample, then in a so milliliter bottle was later 

evacuated at the MSHA laboratory located in Mount Hope, West 

Virginia. (Tr. 55). 

26. An analysis report was submitted by the lab. (Tr. 56, 

Ex. S-6). 

27. The numbers of the samples collected were duly recorded. 

(Tr. 57) • 

28. After proceeding to the No. 1 entry the group with their 

three or four methane detectors took samples from the tube during 

aspiration. There were readings in excess of 9 percent from the 

tube. {Tr. 62). 

29. The readings from all of the hand-held methane monitors 

were almost the same. (Tr. 62). 

30. The subdistrict manager, Mr. Paplovich, and Mr. Jordan 

concluded the situation was much more serious than they had initially suspected. They jointly agreed to conduct an orderly 

withdrawal from the mine. Mr. Jordan then orally issued an imminent danger order. (Tr. 62-68). 

31. Mr. Jordan believed there was danger in the area at that 

time. He considered the danger to be imminent because of the 

history of roof falls and ignition sources in the area which com1116 
bined with the methane levels discovered behind the stoppings. 

He also considered the size of the area. It exceeded a depth of 

2,000 feet. {Tr. 63, 64). 

32. The second south area was immediately off of the No. 14 

return entry. The entry leads directly to the mine fan. {Tr. 

64). 

33. Behind the stoppings are interrupted tracks and trolley 

lines. Additional matters contributing to an ignition are a belt 

structure, roof bolts securing roof plates and mats. Also there 

were mandoors. These are a source of ignition due to roof falls. 

{Tr. 65) • 

34. A roof fall can be a source of ignition by striking 

steel against steel depending on where it falls, and depending on 

the structure of the roof and its strata. They all enter into a 

combination of effects. {Tr. 66). 

35. In Mr. Jordan'~ mind there was a definite potential for 

explosion behind the KeA~edy stoppings. {Tr. 66). 

36. Given the conditions he described Mr. Jordan had a 

reasonable belief that an explosion could occur in that area. 

{Tr. 67) . 

37. After a certain number of years in a coal mine, seeing 

the aftermath of what can occur Mr. Jordan stated (the condition] 

"scares the pants off of you." (Tr. 67). 

38. An explosion would propagate beyond the Kennedy 

stoppings. {Tr. 67). 

39. Mr. Jordan was afraid for himself but he was not absolutely certain there was going to be an explosion. {Tr. 69). 

40. After they went to the surface they proceeded to the New 

Elk Mine in order to discuss the course of action to be taken. 

{Tr. 69). 

41. The order remained in effect to evaluate the atmosphere 

immediately behind the stoppings. 

42. The area behind the stoppings was not ventilated nor 

sealed in any manner at the time of the issuance of the order. 

{Tr. 70). 

43. In an abandoned area not ventilated you expect to see 

-seals or ventilation required by the ventilation plan or by law. 

(Tr. 70). 

1117 
44. If there is no ventilation in the area you expect the 

seals to be constructed as explosion-proof bulkheads. (Tr. 71). 

45. Mr. Jordan saw no evidence of ventilation inby the 

stoppings nor did he see evidence of seals nor any intention of 

building any seals. (Tr. 72). 

46. In Mr. Jordan's opinion the violation was of a significant and substantial nature. The hazard would be the explosion. (Tr. 73). 

47. Seals create an atmosphere behind them but normally the 

atmosphere is above the explosion range for methane. (Tr. 73). 

48. At the meeting at the New Elk Mine the subdistrict 

manager requested a proposal from management but no one wanted to 

volunteer to attempt to remove any part of the Kennedy stoppings. 

The slightest spark and the explosive mixture could create an 

explosion. (Tr. 75). 

49. The 107(a) imminent danger order ~ithdrew miners from 

the entire mine. (Tr. 76). 

50. The order was modified to allow construction of the 

seals in the Second South section of the mine. (Tr. 76). 

51. A CSE methane detector is accurate within .1. (Tr. 82). 

52. A detector is thrown out of calibration when methane 

exceeds 9 percent. (Tr. 83, 84). 

53. The explosive range of methane is five to fifteen 

percent. (Tr. 84). 

54. Mr. Jordan had not seen a Kennedy stopping installed in 

Two South or One Right before February 13, 1990. (Tr. 85, 86). 

55. On February 13, 1990, in the MSHA office before the 

inspection, Kennedy stoppings were discussed. (Tr. 86, 87). 

56. Mr. Jordan was surprised someone would install Kennedy 

stoppings in a coal mine. (Tr. 87). 

57. Kennedy stoppings could not be allowed because they do 

not suffice as a explosion-proof bulkhead. (Tr. 88). However, 

use of such a stopping is not a violation of apy regulation but 

they cannot be used as a seal. (Tr. 92, 93). 

58. The area behind the Kennedys could not be ventilated 

because the mine could not afford the additional ventilation. 

Also the area was too hazardous to travel. (Tr. 90). 

1118 
59. It was the presence of the methane behind the stoppings 

plus the existence of an ignition source behind the stoppings 

that led Mr. Jordan to his imminent danger finding. (Tr. 97). 

60. You would expect to find some methane on the outby side 

and it wouldn't be a basis to conclude the area was imminently 

dangerous. (Tr. 98). 

61. The track that goes into Two South is continuous up to 

the stopping. It runs a good distance behind the stopping. (Tr. 

101, 102). 

62. The sampling tube extends 40 feet inside the Kennedy 

stopping. When aspirating the tube the methane detector readings 

were as much as 9 percent. (Tr. 102). 

63. The methane concentration could differ at different 

points away from the end of the sampling tube. (Tr. 104). 

64. The span of the entries across Two South is about 600 

feet. (Tr. 105). 

65. Sample bottle number A-2109 shows a methane concentration of 6.09. This was the only concentration in the explosive range. (Tr. 106-108). 

66. Sample No. A-2107 taken at the same location and time 

shows 1.32 percent methane. (Tr. 106, 107). 

67. Sample A-2108 shows methane of 1.67 percent. 

68. The bottle sample results were not available the day 

Mr. Jordan issued the imminent danger order. (Tr. 108). 

69. In Mr. Jordan's opinion the results of bottle samples 

justify the action taken that day. {Tr. 108). 

70. In Two South there has been as many as six roof falls. 

{Tr. 110). 

71. Mr. Jordan remembered seeing ignition sources behind the 

stoppings in Two South. Those were steel three by three mandoors, the belt and track trolleys, trolley hangers, trolley 

wire, roof bolts and roof plates. {Tr. 110, 111). 

72. A roof fall can strike a rail. 

unconsolidated soapstone and sandstone. 

The roof is made of 

{Tr. 112). 

73. The ventilation plan says nothing about when seals have 

to be installed. {Tr. 115). 

1119 
74. It is an accepted practice to issue a verbal imminent 

danger order. (Tr. 118). 

75. MSHA requested WFC furnish a plan to correct the 

condition. (Tr. 119). 

76. Removing the stoppings might cause an ignition. (Tr. 

121). The stoppings would have to be removed to ventilate the 

area. (Tr. 121). 

77. Seals are constructed with tubes so the atmosphere can 

be sampled behind them. The area behind the seals might contain 

a higher or lower level of methane. (Tr. 123). 

78. In Exhibit S-6, except for sample A-2109, the samples 

were taken on the exterior side of the seals. (Tr. 124). 

79. When Mr. Jordan issued the imminent danger order he 

believed the area was explosive. He also believed the stoppings 

were being used as seals. (Tr. 126). 

80. The company had made various attempts to ventilate this 

area but with so many roof falls and obstructions the area became 

untravelable. (Tr. 126). 

81. For an explosion to occur it is necessary to have the 

explosive mixture as well as an ignition at the same location. 

(Tr. 130). 

82. The Kennedy stoppings were being swept by 37,632 cubic 

feet of air a minute. (Tr. 133). Mr. Jordan didn't find any 

appreciable methane outby the Kennedy stoppings. (Tr. 133). 

83. In the meeting before the inspection Mr. Jordan believed 

he was going to take enforcement action of some kind if he found 

a Kennedy stopping. (Tr. 134). 

PZSCUSSZON 

The credible facts establish the expertise of Donald Jordan, 

an individual with 42 years experience in the mining industry and 

19 years as a coal mine inspector. As noted above Mr. Jordan who 

spends eight weeks a year at the Golden Eagle Mine became alarmed 

when he found high methane concentrations outside the stoppings 

in the air course. These methane readings were taken at each of 

the six entries. (Fact 15). 

Mr. Jordan contacted his supervisor and obtained sampling 

equipment to test behind the Kennedy stoppings. With three or 

four detectors the members of the group observed methane 

concentrations in excess of nine percent. 

1120 
These actions constitute a reasonable investigation. In 

issuing his order Mr. Jordan basically relied on the methane 

levels behind the stoppings and his knowledge of ignition sources 

behind the Kennedy stoppings. These facts are further detailed 

above in paragraphs 12, 31 and 33. The facts establish Mr. 

Jordan made a reasonable investigation of the circumstances at 

hand and the facts support his issuance of the imminent danger 

order. There is no evidence in this record that Mr. Jordan abused 

his discretion or authority. 

WFC in its supplemental brief contends the Secretary has 

failed to establish a violation of S 75.316, that is, the 

Secretary has failed to establish which provision was allegedly 

violated and that the provision was part of the plan. In the 

alternative WFC states that if the Secretary clarifies the 

provision allegedly violated the record demonstrates WFC was 

complying. 

On its face 30 C.F.R. § 75.316 does not require an operator 

to comply with a ventilation plan. But the Commission has held 

that "[O]nce the plan is approved and adopted, these provisions 

are enforceable as mandatory safety standards Jack Walter 

Resources, Inc., 9 FMSHRC 903, 907 (May 1987). 

The ventilation plan contains a page entitled "Concrete 

block explosion proof seals". (Ex. S-8, page 13). Further, 

MSHA's expert witness William Reitze expressed the view that for 

areas not being ventilated he would expect to see permanently 

constructed seals. (Tr. 236-239). 

WFC apparently had no difficulty realizing seals had to be 

installed in Second South in accordance with its plan. EXhibit 

S-9 shows six triple lines which indicate a seal. Written on the 

map is the notation "Seals to be constructed when approved. SM 

12-29-88. 11 "SM" is WFC representative Steve Matson. It was he 

who drew the seals on the Company map and initiated it. The map 

is part of the ventilation plan. 

The revised plan was apparently approved on May 10, 1989 

(Letter to Rick Caller, Safety Superintendent from MSHA). 

WFC contends the plan did not prescribe the timing or steps 

to be followed in sealing an area nor did any other plan provision. (Tr. 115, 122, 262-263, 272-273, 486). In addition, the 

plan did not prohibit the use of Kennedy Stoppings as an initial 

step in the sealing process. (Tr. 321, 386). Therefore, the 

Secretary has failed to establish which provisions of the plan 

WFC allegedly violated. 

When a regulation is silent as to the period of time required for compliance the Commission has imparted a reasonable 

1121 
time. Penn Allegh Coal co., 3 FMSHRC 2767, 2771 (December 1981), 

Monterey Coal Co., 5 FMSHRC 1010, 1019 (June 1983). 

In this case WFC had at least 10 months to begin sealing the 

six entries with concrete block explosion proof seals. No such 

sealing occurred and 10 months is a reasonable time to comply 

with the ventilation plan. 

According to David Huey, WFC's Manager, the company did not 

have a definite date to install explosion proof seals. 

WFC further states that the Kennedy stoppings were in place 

temporarily as the mine prepared to construct the seals as 

required by the ventilation plan. (Tr. 652-654, 662-663). 

The record is clear that the Kennedy stoppings can be used 

as a ventilation device but not as a substitute for explosion 

proof seals. Accordingly, the Secretary is not unilaterally 

imposing a sealing regime on WFC. Rather, it is requiring the 

use of Mitchell-Barrett seals as permanent seals. (Tr 298-299, 

370, 583-584, Ex. C-6, s-a at 13-14). There was a reasonable 

time allowed for installation of the seals and WFC failed to act 

in that time. 

DID SECRETARY PROVE IMMINENT DANGER? 

WFC claims Mr. Jordan failed to prove an imminent danger in 

Second South because his measurements were inadequate. Specifically he "assumed there was an explosive mixture of methane 

throughout an area 600 feet wide and 2,500 long." (Tr. 105}. 

WFC relies on the testimony of its expert witness Donald 

Mitchell. 

As previously stated I credit the testimony of Mr. Jordan 

and I find no evidence that he abused his discretion or authority. In particular, Mr. Jordan after eight years inspecting the 

mine was familiar with it. He found methane concentrations 

outside the Kennedy stoppings. (See Facts,! 15). He contacted 

his superior and upon returning he detected a 2.2 methane level. 

There were readings in excess of 9 percent when the tube was 

aspirated. Behind the stoppings are numerous ignition sources 

and Mr. Jordan was afraid for himself. The area of the concentrated methane leads directly to the mine fan. 

Given these factors I conclude the inspector properly issued 

his imminent danger order. 

I am not persuaded by Mr. Mitchell's testimony that the inspector's methane measurements were inconclusive. In short, on 

the conditions Mr. Jordan found, he believed there were explosive 

mixtures of methane behind the stoppings. Mr. Jordan's testimony 

1122 
in this respect was supported by Charles W. McGlothlin, Jr., 

Vice-President and General Manager of the Golden Eagle Mine. 

Mr. McGlothlin, an experienced miner, testified he personally 

investigated the facts. {Tr. 533). While he believed there was 

no ignition source at the Second South he admitted that "if there 

had been an ignition source at the Second South" then he "would 

have agreed that there was an imminent danger." {Tr. 551). 

IGNITION SOURCES IN SBCO~ SOUTH 

The issues framed by the record relate to the likelihood of 

a roof fall and whether such a roof fall in Second South would 

cause an incendive spark. 

The Commission has previously declined to rule whether the 

Secretary may support an imminent danger order by showing that an 

explosive accumulation of methane is present without proving a 

specific ignition source, Island Creek Coal Company, ___ FMSHRC ____ ,VA 91-47-R slip op. 10 {March 3, 1993). 

The Commission has continued to follow its ruling in 

Rochester & Pittsburgh, supra, namely: an inspector must have 

considerable discretion in issuing imminent danger orders. If 

R&P is to have any meaning the Secretary need not prove that a 

specific ignition source existed. Rather, the Secretary need 

only prove a reasonable likelihood that the source is present. 

The explosive mixture of methane has been discussed. 

In addition, the prime mover of any ignition can be a roof 

fall. In this case David Huey, WFC's Manager of Operations, 

located six roof falls on Exhibit C-4. The roof falls were all 

in Second South inby crosscut 20, and behind the seals. (Tr. 

445). 

Mr. Jordan further testified that behind the Kennedy 

stoppings were interrupted tracks and trolley lines. (See 

portion of Ex. C-4 marked "track end"). In addition, behind the 

stoppings there were a belt structure, mandoors and roof plates. 

The record further evolves into issues 

in the roof would cause an incendive spark. 

certain conditions, will cause an incendive 

not. 

of whether the rock 

Some rock, under -

spark. Others will 

Mr. Huey indicated the roof in Second South-contained only 

shale which would not cause an incendive spark. Mr. Huey based 

his opinion on a lithology. WFC's expert witness Mr. Mitchell 

also relied on the core samples. Three different lithologies 

were submitted by WFC. (Ex. C-2, c-10 and C-11). 

I am not persuaded by the lithologies. They show an obvious 

mix of rock of various thickness. Exhibit c-2 (from roof 

1123 

I 
upwards) shows 10' siltstone; 2.8' carbon shale; 8.9' Maxwell 

seam; 13.3 shale and 10' of siltstone sandstone. 

Exhibit c-10 shows 54' shale, 3' of carbonaceous shale, 5' 

Maxwell seam, 1' shale and 23' of sandy shale. 

Exhibit C-11 shows on drill hole 234 siltstone (unstated 

amount); 3' shale; 10.5 of Maxwell seam; .5' carbonaceous shale; 

2' carbonaceous siltstone and 4' shale. The GE service hole on 

Exhibit c-11 shows 8' Maxwell seam, 33' mudstone and 10' sandstone. 

I am 

initially 

accurate. 

there was 

further unpersuaded by Mr. Huey's testimony. He 

identified the lithographic description in C-2 as 

(Tr. 283). But he then repudiated the exhibit stating 

not "ten foot of sandstone." (Tr. 284). 

Mr. Mitchell, WFC's expert, also testified that based on the 

lithology provided by WFC there was no sandstone or other material in the roof that could cause an incendive spark. Both witnesses Huey and Mitchell were contradicted by Exhibit c-2. 

I agree with the testimony of MSHA representative Joseph 

Pavlovich. In reviewing Exhibits c-2, C-10 and c-11 he indicated 

he would probably have been more afraid than he was [if he had 

seen the lithologies]. (Tr. 887). He went on to explain that 

with the varying roof types throughout the mine, there was no way 

to tell what may have been in the areas behind the stoppings. 

With the lithologies so different "you could have anything in 

there." (Tr. 888). 

Mr. Jordan recalled seeing ignition sources in Second South. 

Such sources consisted of 3 by 3 mandoors, belt and track trolleys, trolley hangers and hanging trolley wires, roof bolts, roof 

plates and mats. Mr. Jordan didn't know of any occasion when 

they had been removed. An ignition source would be an interaction of a roof fall or roof support fall striking a rail. (Tr. 

110). 

Mr. Mitchell's testimony sought to rebut the Secretary's 

evidence. However, I am not persuaded. To a degree his evidence 

supports Mr. Jordan. For example "we heard testimony regarding 

mats and steel bolts." (Tr. 618). But according to Mr. Mitchell 

these have not been demonstrated to present a frictional ignition 

hazard except under three circumstances. One when the bolt is 

torn apart ••• at the point of breakage you might form incendive 

sparks. (Tr. 619). Further, if any portion of the bolt is 

siliconized steel or coated with aluminum and it strikes sandstone on the floor there is a potential for the formation of 

incendive sparks. (Tr. 619, 620). The latter two circumstances 

involve aluminum which is not shown to be present in Second South 

but the initial scenario could occur with a roof fall. 

1124 
A further source of frictional ignition {and a concern to 

Mr. Mitchell) was aluminum pop cans. If a can slid across dry 

rusty steel, the result could be the "possible formation of 

incendive sparks." (Tr. 624). However, Mr. Mitchell regarded 

this as highly improbable (due to the accumulation of water) . 

While Mr. Mitchell's testimony concerned First Right it is 

relevant to Second South. In sum, the Judge concludes WFC's 

expert supports the Secretary's position relating to ignition 

sources. 

Mr. Huey marked on Exhibit C-4 the "track end." WFC's 

manager was in a position to know that the trolley wire was in 

place and that there was "metal track actually going from the 

track end to the stopping." (Tr. 403). In sum, there was 

considerable metal in Second South behind the stoppings. 

In his testimony Mr. Mitchell further rejected the potential 

for friction ignition from sandstone rubbing against sandstone. 

He based his opinion on the insufficient presence of pezioelectric quartz. (Tr. 926-927, 616, 666, 827, 924, 926). Further, 

there was an unlikely occurrence of a roof fall past the breakage 

point. (Tr. 617, 669-670, 771-772, 833, 926-928, 751-752, 966). 

Finally, there was an absence of high strain on sandstone. (Tr. 

934). 

The inspector did not rely on a sandstone against sandstone 

friction ignition. But in any event I credit the contrary testimony of William A. Bruce as well as the Nagy and Kawenski 

report. (Ex. C-12). The report, a scientific approach deals 

with "Frictional Ignition of Gas During a Roof Fall." The report 

states in part that ignition by sandstone on sandstone with a 

pressure of 50 pounds could easily produce an incendive spark. 

Mr. Mitchell, WFC's expert states he initiated the Nagy and 

Kawenski report but after returning from Indonesia there "were 

quite a number of problems that we had with this report that we 

needed to discuss." (Tr. 964). Mr. Mitchell does not agree with 

the conclusions in the Nagy/Kawenski report. (Tr. 964-965). 

I credit the report, supported by Mr. Bruce's testimony, as 

it is a scientific approach to the frictional ignition of gas. A 

portion of the report (Ex. C-12) reads as follows: 

SUMMARY 

Limited experiments in the laboratory with 

specimens of mine rock from a Virginia bituminous coal mine indicate that natural gasair mixtures can be ignited by sparks 

generated by rubbing friction of sandstone 

against sandstone, shale against sandstone, 

1125 
sandstone against (roof-bolt) steel, and 

shale against steel. Such sparks, generated 

during a roof fall, may have initiated a 

recent gas explosion in this Virginia mine, 

although this cannot be stated with 

certainty. 

No ignitions of gas were produced by sparks 

or heat generated by impact friction between 

mine rocks or steel, during tension breaks of 

roof bolts, or by pull tests of roof bolts 

through their washers and roof plate. However, this negative result of limited experiments does not preclude the possibility of 

gas being ignited by these conditions. 

The exact mechanism of ignition of gas by 

frictional sparks is unknown; it has been 

shown by other investigators that: 

1. The visibility of sparks is not a criterion for ignition, as many highly luminous 

sparks are nonincendive. 

2. The ignition frequency increases with 

impact energy and material hardness. 

3. The impinging of sparks on an 

obstruction increases their incendivity. 

4. The gas concentration is a parameter; 

for methane, a concentration of 6 to 7 

percent gas appears to be most easily ignited 

by frictional sparks. 

5. In impact friction (aluminum striking 

steel) the rustiness of the steel (thermit 

reaction) and angle of impact are factors. 

The ignition frequency increases with 

relative humidity. 

6. Among rocks, the quartz-bearing 

sandstones present the greatest frictional 

ignition hazard; shale is less dangerous than 

sandstone; and pyrite inclusions generally 

increase incendivity. 

7. Metal-to-metal contacts generally 

produce less incendive sparks than metal-torock contacts. The reportedly "nonsparking" 

metals produce incendive sparks under some 

conditions. 

1126 
Table 2 of the report involved contact surfaces that produced gas ignition by rubbing friction. This involved a stationary specimen and a rotating specimen at minimum load and 

minimum speed. 

Some of the conclusions stated in the report follow: 

According to these experiments, rubbing 

friction sparks from the sandstone-sandstone 

contact were the most incendive. Ignition 

was obtained with a load as light as 12 

pounds (at a velocity of 34 f.p.s.) and at a 

speed of 12 f.p.s. (at a 50-pound load). A 

rock would attain a velocity of 12 f.p.s. 

during a free fall of 2.2 feet. Ignitions 

were obtained readily by sparks from the 

shale-sandstone contact and somewhat less 

easily from sandstone and shale in contact 

with roof-bolt steel. An overall ignition 

frequency of 19/119 was obtained for the 

sandstone-sandstone contact. This is 

numerically less than the frequencies 

obtained for the shale-sandstone (21/66) and 

sandstone-steel (70/315) contacts; however, 

both the load and speeds were varied, and a 

greater number of experiments were made with 

the two sandstones in contact at limiting 

conditions required for ignition than with 

the other materials. The overall ignition 

frequency for the shale-roof bolt contact was 

5/35. In these experiments a shower of 

sparks was visible whether ignition occurred 

or not. Gas ignition occurred 1 to 30 

seconds after contact between the specimens. 

One of the conclusions reached in the report was: 

Because of incendive sparks can be produced 

so readily and with so little expenditure of 

energy, it is virtually impossible to eliminate them in coal mining. Gas ignitions by 

this source must be prevented by other measures. One of the most effective measures is 

adequate ventilation to prevent an accumulation of gas. 

WFC further argues that MSHA's actions were inconsistent 

with a belief in the existence of an imminent danger in Second 

South. 

The Judge originally vacated the Second south Order because 

of the inspector's actions in permitting 113 miners to construct 

1127 
permanent seals in close proximity to the Kennedy stoppings and 

not requiring that the atmosphere to be stabilized. 

The Commission in remanding the case ruled the method of 

abatement is left to the informed discretion of the designated 

representative of the Secretary. Further some imminently dangerous conditions may require abatement that poses a degree of 

unavoidable risk to the miners, 14 FMSHRC at 1291. 

WFC finally claims that MSHA abused its discretion by 

leaving the order in effect for 15 days when an imminent danger 

no longer existed. 

As stated above the method of abatement is left to the 

informed discretion of the designated representative of the 

Secretary. 

SIGNIFICANT AND SUBSTANTIAL 

A violation is properly designated as being of an S&S nature 

"if, based on the particular facts surrounding that 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 (January 1984), 

the Commission further 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. · 

6 FMSHRC at 3-4. See also Austin Power Co. v. Secretary 861 F.2d 

99, 104-05 (5th Cir. 1988) aff'g 9 FMSHRC 2015, 2021 (December 

1987) (Approving Mathies criteria). 

On the basis of the Mathies formulation the record establishes an underlying violation of 30 C.F.R. S 75.316, the ventilation regulation. WFC failed to erect explosion proof seals. A 

measure of danger, i.e. the possibility of an explosion was contributed to by the violation. There was a reasonable likelihood 

that the hazard would result in an injury. Finally, an explosion 

would cause a fatality or a reasonably serious injury. 

1128 
For the foregoing reasons the S&S allegations should be 

affirmed. 

CIVIL PENALTY 

Section 110(i) of the Mine Act mandates consideration of six 

criteria in assessing appropriate civil penalties. 

The record establishes that the Golden Eagle Mine had 132 

hourly employees and 26 salaried employees. It mines approximately 900,000 tons of coal annually. It should be considered a 

medium size operator. 

There is no evidence as to WFC's financial condition. 

Therefore, in the absence of facts to the contrary I find the 

payment of penalties will not cause WFC to discontinue its 

business. Buffalo Mining co., 21BMA 226 (1973) and Associated 

Drilling Inc., 31BMA 164 (1974). 

There is no evidence of WFC's history of previous 

violations. 

The operator was negligent since it had ten months to erect 

the explosion proof seals. 

The gravity of the violation is high since an explosion 

could propagate through the mine since Kennedy stoppings are not 

explosion proof. · 

WFC demonstrated statutory good faith since it abated the 

violative condition. 

The penalty of $1,000.00 set forth in the order of this 

decision is appropriate in consideration of the penalty criteria. 

ORDER MO. 3241331 

This order was issued on February 16, 1990, three days after 

Mr. Jordan's order in Second South. 

The order alleged a condition of imminent danger existed. 

The order was accompanied by citation No. 3241332 issued under 

section 104(a) of the Act. 

Order No. 3241331 reads as follows: 

An unknown mixture of methane/air could not 

be determined at the Kennedy stopping constructed at #1, #2, and #3 entries of 1 -

Right due to [sic. the condition] that there 

was no means of testing or detecting what 

mixture was behind the stoppings. #1, #2, 

1129 
and #3 were being ventilated with the use of 

a line curtain from #7 right return entry of 

3d North. When No. 2 entry stopping was not 

ventilated methane of 10% plus volume percentum was detected 12 inches from the roof 

and face of the stopping with the use of a 

permissible hand held methane detector. 

Bottle samples were collected at leakage 

areas of the stopping to substantiate the 

order. 

SUMMARY OF SECRETARY'S EVIDENCE 

FINDINGS OF FACT 

1. Anthony Duran, an MSHA surface inspector, has been 

employed by MSHA for 13 years. (Tr. 136, 137). 

2. He has received training as a coal mine inspector. He 

is experienced in coal mining. (Tr. 137-139). 

3. He spends two quarters of the year at the Golden Eagle 

Mine. (Tr. 139). 

4. On February 13 he was part of the inspection team with 

Mr. Jordan. (Tr. 140). 

5. On February 13 he was called to Second South but took no 

methane readings. However, he was involved in discussions with 

regard to the withdrawal order issued on Second South. (Tr. 

141). 

6. He agreed with Mr. Jordan's opinion that there was an 

imminent danger in Second South. (Tr. 141). 

7. On February 16 he was monitoring the seals being put up 

in Second South. He went to First Right because he was told they 

were installing seals at that location. (Tr. 141). 

8. At the time Mr. Jordan's order was in effect for the 

entire mine. (Tr. 141, 142). 

9. Mr. Duran was accompanied by Mr. Perko, WFC's safety 

foreman, Mr. Perko, confirmed that they were erecting the seals 

in First Right. (Tr. 142). 

10. Six men and a foreman were installing seals. (Tr. 143). 

11. Mr. Duran initially checked for methane at the Kennedy 

stoppings. (Tr. 143). 

12. The methane was measured with an MX-240 hand-held 

methane detector. (Tr. 143, Ex. C-1). 

1130 
13. When measuring for methane inspectors try not to let the 

monitor exceed 10 percent because such a level can burn it out or 

knock it out of calibration. (Tr. 144). 

14. The Kennedy stoppings were in place at First Right when 

Mr. Duran arrived. (Tr. 144). 

15. The methane readings varied at different locations. 

(Tr. 145). 

16. In Mr. Duran's opinion the methane readings indicated 

there was an unknown mixture of methane and air behind the 

stoppings. (Tr. 145). 

17. A five percent methane concentration indicated you're 

getting to the point of an explosive range. He considered there 

was a possibility of an explosion. (Tr. 146). 

18. He thought an explosion was a possibility because a roof 

fall could have ignited whatever methane was behind the Kennedy 

stoppings. (Tr. 146, 147). 

19. An explosion behind the Kennedy ~toppings would propagate into the working area. (Tr. 147). 

20. Mr. Duran was unsuccessful in taking an air bottle sample in the No. 3 stoppings. 

21. Mr. Perko went in and checked the tubing which was 

backed up against the Kennedy. Mr. Perk~noted a reading of 1.92 

percent methane from one corner to the other. This measurement 

was in an area between the Kennedy and th~ seal that was being 

constructed. (Tr. 148). 

22. 

reading. 

A copper tube was inserted but they could not get an air 

(Tr. 149). 

23. They then went to the No. 2 Kennedy stopping and "popped 

the bottle" with two samples. 

24. He then measured methane at the No. 1 stopping. (Tr. 

149, 150). 

25. When you pop it the bottle soaks' in the methane (or 

whatever is there), then you cap it with~ small ·plastic wax cap. 

(Tr. 150). 

26. They then went back to No. 3 with two big air bottles 

and two little ones. (Tr. 150). 

27. After the bottle samples were taken Mr. Duran informed 

Mr. Perko there was an unknown mixture of~methane. (Tr. 150). 

1131 
28. Mr. Duran then issued a 107(a) order because there was a 

possibility of an imminent danger behind the Kennedys. (Tr. 

151). 

29. In addition to methane there must also be an ignition 

source. (Tr. 151, 152). 

30. In Mr. Duran's opinion a roof fall could be an ignition 

source. Some of the roof bolts go through the plate and it 

causes a spark prior to falling or even when it falls. Steel 

against steel can cause a spark. (Tr. 152). 

31. The First Right is a gassy section. The hazard would be 

an explosion due to methane. (Tr. 153). 

32. First Right was not similar to Second South because in 

Second South they were able to sample with air bottles; also 

there was a surveillance tube and a vent pipe was available for 

samples. (Tr. 154) • 

33. When Mr. Duran was at First Right there was no means to 

ascertain what mixture was behind the seals, other than what was 

leaking from the Kennedys. (Tr. 154). 

34. However, he took it for an imminent danger because he 

didn't know what was behind the Kennedys other than what was on 

the outby end. (Tr. 154). 

35. Mr. Duran was afraid for the safety of all in the area. 

(Tr. 155). 

36. There were defective curtains in front of the stoppings. 

They allow the return air to sweep the face of the Kennedys. 

37. To Mr. Duran's knowledge the area behind the Kennedys 

was not ventilated. In addition, the erection of the explosion 

proof seals had not been completed. (Tr. 156). 

38. If an imminent danger exists it could cause death or 

physical harm if mining proceeds and the hazardous condition is 

not eliminated. 

39. Someone could have been seriously injured or killed as 

the result of an explosion. (Tr. 157). 

40. Mr. Duran indicated an explosion was a possibility. 

(Tr. 157, 158). 

41. The imminence of the situation was because Mr. Duran 

didn't know what the methane mixture was behind the stoppings. 

(Tr. 158). 

1132 
42. Mr. Duran then went to surface and he called his supervisor, Rick Phelps. He was then told to write the 107(a) imminent danger order. (Tr. 160). The miners came out from underground. 

43. The 107(a) order was terminated after the explosion 

proof seals were completed. (Tr. 161). 

44. After the seals were erected a sample taken with a 

Rilken. It indicated the methane concentration was 80 percent; 

this was behind the No. 3 shield. (Tr. 161). 

45. Mr. Duran identified the instruction manual for the 

Model MX-240, Combination Methane and Oxygen Monitor. (Tr. 164, 

Ex. C-1). 

46. Mr. Duran has been trained in the methanometer and it 

requires calibration. (Tr. 166). 

47. When the MX-240 detects methane in the excess of 4 

percent it has to be recalibrated. (Tr. 167). 

48. Mr. Duran recalibrated his instrument before he went 

underground on the 16th; he again recalibrated it when he came 

out. (Tr. 168). 

DISCUSSION AND FURTHER FINDINGS OF FACT 

The methane readings in connection with Order No. 3241331 

are inadequate because the ventilation was disturbed; further, 

the hand-held methane monitor was not properly recalibrated. 

Mr. Duran testified he found methane concentrations of 1.9 

to 2 percent at the Kennedy stoppings. At one stopping in close 

proximity to a small hole, he found an 8 percent concentration. 

(Tr. 143, 145). He also took six bottle samples. (Ex. S-7). 

The uncontradicted testimony of witness Frank Perko, WFC's 

safety inspector, indicated that Mr. Duran disturbed the ventilation along the Kennedy stoppings then he measured for methane. 

The record indicates Mr. Duran knowingly made the disruption. (Tr. 505-509, 515-518). 

Specifically, there was line brattice in the First Right 

area. Each entry had brattice up to the seal. The purpose of 

the brattice was to ventilate the stoppings. (Tr. 504). Mr. 

Duran took readings around the partially construed seal. (Tr. 

504). After Mr. Duran left the No.3 entry he went to the No. 2 

entry. Mr. Perko followed in two to five minutes. In the No. 2 

entry he noticed the brattice had been brought back to the rib 

line in the main No. 7 entry. (Tr. 505-506). Mr. Duran made 

1133 
several checks. Mr. Perko mentioned that the brattice should be 

brought in to continue the ventilation along the stopping. At 

that time Mr. Duran said "Wait a minute. I want to take some 

checks without any ventilation in here." The miner holding the 

brattice said: "One of you is telling me to take it out; one is 

telling me to bring it back; the other one is telling me to take 

it back out. I wish someone would make up their mind." Mr. 

Perko thought it should be ventilated "so we don't create a condition." (Tr. 506, 507). 

Mr. Perko also thought Mr. Duran was taking his readings too 

close to the face. (Tr. 507). [Compare the requirements of 30 

C.F.R. S 75.309-2.] 

In the No. 1 entry Mr. Duran pulled back the curtain enough 

to disrupt the ventilation. After taking his readings he put the 

curtain back up. (Tr. 508, 509) • 

When he was in the No. 1 entry he said "We'll do it as we 

did in No. 2. 11 (Tr. 515). When Mr. Perko said we'd better bring 

the brattice in, Mr. Duran said "No, no, wait a minute. I want 

to take the readings -- take readings along this stopping without 

any ventilation." (Tr. 515, 516). He [Mr. Duran] did not explain why he wanted to take readings without ventilation. (Tr. 

516). 

I find Mr. Perko's testimony to be credible. A company 

safety foreman accompanying a federal inspector would particularly observe the inspector's activities. Further, Mr. Perko's evidence is uncontroverted. 

In support of an explosive mixture the Secretary also 

offered a laboratory analysis of the air bottles taken by Mr. 

Duran. 

At the hearing the Judge questioned the proof adduced by 

Exhibit S-7. (Tr. 183). However, Mr. Duran identified sample 

A5500 as well as Column 6 as "no sample" number. Sample A5500 

shows a concentration of 13.76 percent methane and the "no 

sample" shows a concentration of 1.35 percent.· 

These readings may be correct but on the present state of 

the record it is not possible to know how the samples may have 

been skewed by any disturbed ventilation. 

The Commission has previously invalidated a citation because 

the inspector intentionally skewed the air readings, Freeman 

United Coal Co., 11 FMSHRC 161, 166 (1989). 

Mr. Duran's methane measurements with the hand-held monitor 

are further suspect. It is uncontroverted that Mr. Duran cali1134 
brated his monitor when he went into the mine and again when he 

came out. 

On the other hand, the manufacturer's specifications provide 

for more frequent calibration. The manual states: 

Methane Measuring Range: 0 to 4% methane per 

Code of Federal Regulations. Title 30, Part 

22.7. The instrument must be recalibrated 

after displaying a methane concentration 

above 4%. (Ex. C-1 at 4). 

There was no expert testimony offered by either party concerning the effect of a failure to recalibrate. However, on the 

state of the record I give zero weight to any methane concentrations measured by the MX 240 Combination Methane/Oxygen monitor. 

The crucial question in connection with Order No. 3241331 is 

whether the inspector abused his discretion or authority. An 

abuse of discretion may be broadly defined to include errors of 

law. See generally Butz v. Glover Livestock Commission Co. 411 

u.s. 182, 185-186 (1973); NL Industries, Inc. v. Department of 

Transportation 901 F.2d 141, 144 (D.C. Cir. 1990). U.S. v. u.s. 

currency, in the amount of $103,387.27, 863 F.2d 555, 561 (7th 

Cir. 1988). 

I conclude the disturbance of the ventilation in the mine 

constituted such an abuse. Further, the inspector's investigation did not sufficiently support the imminent danger order or 

the citation. The order and the citation should be vacated. 

Accordingly, for the reasons stated herein I enter the 

following: 

ORDER 

1. Order No. 2930784 is AFFIRMED and the contest of the 

order is DISMISSED. 

2. citation No. 2930785 is AFFIRMED and the contest of the 

citation is DISMISSED and a civil penalty of $1,000.00 is 

ASSESSED. 

3. Order No. 3241331 is VACATED and the contest of the 

Order is SUSTAINED. 

1135 
4. Citation No. 3241332 is VACATED and the contest of the 

citation is SUSTAINED. 

Judge 

Distribution: 

Timothy M. Biddle, Esq., CRO~ELL & MORING, 1001 Pennsylvania 

Ave., N.W., Washington, D.C. 20004 (Certified Mail) 

Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

co 80294 (Certified Mail) 

sh 

1136 
f?ECEIVED 

at Denver, Coloradc 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION SEP 1 8 1992 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

) 

WYOMING FUEL COMPANY, ) 

) 

Contestant, ) 

) 

v. ) 

) 

SECRETARY OF LABOR, MINE SAFETY ) 

AND HEALTH ADMINISTRATION (MSHA), ) 

) 

Respondent. ) 

) 

) 

) 

) 

) 

) 

) 

) 

------------------------------> 

FEDERAL MINE SAFETY ,._~!) HEA 

REVIEW COMMiSS~~ 

REVIEW AND CONTEST 

PROCEEDINGS 

Docket No. WEST 90-112-R 

Order No. 2930784 

Docket No. WEST 90-113-R 

Citation No. 2930785 

Docket No. WEST 90-114-R 

Order No. 3241331 

Docket No. WEST 90-115-R 

Citation No. 3241332 

Docket No. WEST 90-116-R 

Citation No. 3241333 

Golden Eagle Mine 

WYOMING FUEL COMPANY'S RESPONSE 

TO 'l."HE ADMINISTRATIVE LAW JUDGE'S ORDER AFTER REHAHD 

On September 4, 1992, Administrative Law Judge John J. Morris 

issued an Order After Remand in the above-captioned proceedings 

directing Wyoming Fuel Company ("WFC") to state facts 

demonstrating what legally recognizable prejudice it may suffer if 

Citation Nos. 2930785 and 3241332 are modified to allege 

violations of 30 C.F.R. S 75.316 rather than 30 C.F.R. 

S 75.329-1(a). Pursuant to Judge Morris's Order, WFC states as 

follows a 

According to the Commission's Decision in this case, if WFC 

shows that it would suffer "legally recognizable prejudice if 

Citation Nos. 2930785 and 3241332 were modified as proposed by the 

Secretary • • • the citations shall remain unmodified and [the 

1137 
- 2 -

Judge's] holding vacating them ..• shall stand." Wyoming Fuel 

Co., Docket Nos. WEST 92-112-R et al., slip op. at 9 (Aug. 28, 

1992). The Commission suggests that the Judge seek guidance in 

Rule 15(a) of the Federal Rules of Civil Procedure and case law 

thereunder. Id. 

The Supreme Court has held that although a liberal standard 

governs a court's discretion in granting leave to a party to amend 

its pleadings under Rule 15(a), factors such as "undue delay, bad 

faith or dilatory motive on the part of the movant, repeated 

failure to cure deficiencies by amendments previously allowed, 

undue prejudice to the opposing party by virtue of allowance of 

the amendment, [or] futility of amendment" militate against 

granting a motion to amend pleadings. Foman v. Davis, 371 u.s. 

178, 182 (1962). At issue here is whether the Secretary's efforts 

to amend Citation Nos. 2930785 and 3241332 would unduly prejudice 

WFC. Of particular relevance here, courts have found amendments 

offered under Rule 15(a) unduly prejudicial where the movant 

substantially changes the theory of his case by the amended 

pleading, and does so in such a way that would require the 

opponent to engage in significant new preparation. See, ~, 

Troxel Manufacturing Co. v. Schwinn Bicycle Co., 489 F.2d 968, 971 

(6th Cir. 1973) ("[T]o put Schwinn through the time and expense of 

continued litigation on a new theory, with the possibility of 

additional discovery, would be manifestly unfair and unduly 

prejudicial"), cert. denied, 416 U.S. 939 (1974); Conroy Datsun 

Ltd. v. Nissan Motor Corp., 506 F. Supp. 1051, 1054 (N.D. Ill. 

1980) (leave to amend should be denied where the amendment would 

1138 
- 3 -

bring new and separate claims, and would necessitate expensive and 

time consuming new fact development).!/ 

Factual Background. 

WFC was prejudiced by the Secretary's modifications to the 

citations issued on February 13 and 16, 1990. The prejudice to 

WFC can best be understood in the context of the events that were 

occurring during that period. 

\ 

On February 13, 1990, WFC's Golden Eagle Mine was closed upon 

the issuance of a S 107(a) order by an MSHA inspector. At the 

same time the order was issued, a S 104(a) citation alleging a 

violation of 30 C.F.R. S 75.329-l(a) was also issued. The 

condition cited as violative of S 75.329-l(a) was, in pari 

materia, that an area of the Mine was neither sealed nor 

ventilated. Although no abatement time was specified on the 

citation, the citation was abated on February 16, 1990. 

On February 16, 1990, another S 107(a) order was issued at 

the Mine accompanied by another S 104(a) citation alleging a 

violation of 30 C.F.R. S 75.329-1(a). That citation, like the one 

issued on February 13, 1990, alleged that an area of the Mine was 

neither sealed nor ventilated in violation of S 75.329-1(a). That 

citation was abated on February 19, 1990. 

In the week that passed between the issuance of the first 

order21 and February 20, 1990, when the Notices of Contest and 

Motion for Expedited Hearing were filed by WFC, the company and 

1/ 

2/ 

See generally 6 Wright, Miller & Kane, Federal Practice and 

ProcedureS 1487 at 623 & n.9 (1990). 

Order No. 2930784, issued February 13, 1990, remained in 

effect until February 28, 1990. 

1139 
- 4 -

its lawyers expended considerable time and resources in an effort 

to convince MSHA officials that no violation of S 75.329-1(a) had 

occurred and to get the Golden Eagle Mine reopened. When it 

became apparent that local MSHA officials would not reopen the 

Mine and that litigation would be necessary, WFC counsel began 

preparing for expedited trial. WFC counsel prepared pleadings, 

interviewed witnesses, hired an expert, Donald w. Mitchell, 

travelled to the area of the Mine near Trinidad, Colorado, and 

prepared exhibits. All of these efforts were aimed at addressing 

the allegations contained in the S 107(a) orders and the citations 

alleging violations of S 75.329-1(a). 

By February 23, 1990, in anticipation of an expedited 

hearing, WFC's counsel filed a witness list and an extensive list 

of exhibits; on that same day WFC's counsel appeared before Judge 

Lasher and argued the need for an expedited hearing. WFC's motion 

for an expedited hearing was denied by Judge Lasher. On 

February 26, 1990, WFC's counsel filed a request that a hearing 

date be set based on the •forthwith• requirement in S 107(e) of 

the Mine Act. On February 27, 1990, WFC's counsel recast that 

request to a Motion for Hearing Schedule and the next day filed a 

brief in support of that motion. On March 1, 1990, Judge Morris 

was assigned the cases; on March 2, Judge Morris· entered an Order 

setting a hearing date for March 12, 1990. At the request of 

Secretary's counsel, that Order was amended on March 5, 1990, to 

reschedule the hearing for March 13, 1990. 

That was the procedural posture of these cases when, on 

March 6, 1990, the Secretary prepared modifications to both of the 

1140 
- 5 -

citations alleging violations of S 75.329-1(a), changing 

altogether both (1) the description of the alleged violation and 

(2) the regulation allegedly violated. Each of the modified 

descriptions of the alleged violations read as follows& 

Based upon the fact that the area [2nd South and 

1 Right] was not properly sealed and the 

stopping[s] in use as seals were not constructed as 

explosion proof seals as required by the approved 

ventilation system & methane & dust control plan[,] 

page 17, sketch 13, dated May 10, 1989[,] i.e. 

specifications as required for explosion proof 

seals by 12-18-89. 

The modifications then changed the regulation allegedly violated 

(as listed in section 9.C. of MSHA Form 7000-3) to 30 C.F.R. 

s 75.316. 31 

These modifications were apparently prepared four working 

days before trial was set to begin. Moreover, the modifications 

were not given to WFC but instead were served only by mail and not 

received by WFC until March 9, 1990, one working day before trial. 

Affidavit of Rick Caller at, 2 (attached as Exhibit A). By that 

time, WFC and it counsel had already met with and prepared its 

witnesses for hearing on the two imminent danger orders, a 

citation which did not cite any regulation (Citation No. 3241333), 

and the two citations at issue here alleging violations of 

S 75.329-1(a). Because it had hoped for an expedited proceeding 

in late February, WFC had already prepared its exhibits and 

identified them to the Secretary's counsel, and had already 

3/ Prior to March 9, 1990, the Secretary's inspectors had not 

alerted WFC to any alleged violations of the Golden Eagle ventilation plan. 

1141 
- 6 -

presented several written and oral arguments to Judge Lasher 

regarding expedition of these cases for hearing. 

On March 9, however, WFC discovered that it had a weekend and 

a Monday to prepare for a hearing on two entirely new allegations, 

never even mentioned during several weeks of intense litigation 

preparation and negotiation. As a result, WFC counsel was faced 

with restructuring the company's evidence, changing its witnesses 

and preparing new ones, redirecting and obtaining a new opinion 

from its expert and then preparing him for trial on the new issue, 

and doing the legal research necessary to structure a presentation 

congruent with the holdings in the many cases at the Commission 

and in the federal courts dealing with ventilation plan 

interpretations. WFC's other option -- to start over and ask for 

a delay of the hearing after fighting hard for an expedited 

hearing for weeks -- was not acceptable. 

WFC had the right to expect that after three weeks of active 

advocacy on the part of the Secretary's counsel in these cases, 

the charges (on which all else is based) would have been fixed 

well before March 9, 1990. 

WPC Would Have Been Prejudiced if the Secretary had Been 

Permitted ~ Modify the Citation. 

The Commission remanded this matter to the presiding Judge 

•for consideration of whether WFC would suffer legally 

recognizable prejudice if Citation Nos. 2930785 and 3241332 were 

modified as proposed by the Secretary.• Wyoming Fuel, slip op. at 

9. With respect to whether the threat of prejudice is sufficient 

to preclude allowing the Secretary to switch her charges at the 

last moment by modifying the citations, Wright & Miller collect 

1142 
- 7 -

Rule 15(a) cases showing that the courts "consider the position of 

both parties and the effect the request will have on them • • • 

[including] the hardship to the moving party if leave to amend is 

denied, the reasons for the moving party failing to include the 

material to be added in the original pleadings and the injustice 

resulting to the party opposing [the amendment]."41 Accordingly, 

WFC suggests that the respective positions of Secretary and WFC be 

evaluated as of March 9, 1990, when WFC received the 

modifications. 

On March 9, 1990, when the modifications were received by 

WFC, MSHA's position was as follows: 

4/ 

The citations charging a violation of 

S 75.329-1(a) had been issued to WFC three 

weeks earlier (on February 13 and 16, 1990). 

During the three weeks prior to the issuance 

of the modifications, the conditions that had 

occasioned the issuance of the citations had 

not changed; no new facts had come to light to 

require or justify the modifications. 

During that three-week period, all concerned 

were in frequent -- almost daily -- contact as 

WFC tried to get its mine reopened and, 

failing that, to obtain an expedited hearing 

at the Commission. 

During that three-week period, all concerned 

were focused on the citations and imminent 

danger orders ~ issued. 

MSHA knew WFC wanted an expedited hearing and 

that it was preparing for trial of, inter 

alia, the S 75.329-1(a) allegations contained 

in the citations. 

From written pleadings filed by WFC's counsel 

before the modifications were issued, MSHA was 

aware of WFC's defenses to the citations 

6 Wright, Miller & Kane, Federal Practice and Procedure 

S 1487 at 621, 623 & n.7 (1990). 

1143 
- 8 -

alleging violations of S 75.329-l(a) and, in 

fact, knew the witnesses and exhibits WFC 

intended to offer at trial. 

Thus, the position of MSHA when the modifications were issued 

was that of a fully informed agency which had brought charges 

against WFC based on its considered and expert view that 

S 75.329-l(a) had been violated and with knowledge of WFC's 

position, its defenses, both legal and factual, and the witnesses 

and exhibits it intended to offer at trial in support of its 

position. Moreover, MSHA was well aware.of the provisions of 

WFC's ventilation plan and can be presumed to have evaluated the 

conditions cited by the inspector against WFC's ventilation plan 

before citing WFC for allegedly violating S 75.329-l(a) or, at the 

very least, very shortly thereafter. In short, well before 

March 6, 1990, when MSHA decided to charge WFC with violating the 

Golden Eagle Mine ventilation plan, the agency was fully aware of 

and conversant with the plan and how it applied to the conditions 

in the Mine on February 13 and 16, 1990. See Jordan v. County of 

Los Angeles, 669 F.2d 1311, 1324 (9th Cir.) ("Where the party 

seeking amendment knows or should know of the facts upon which the 

amendment is based but fails to include them in the original 

complaint, the motion to amend may be denied"), vacated on other 

grounds, 459 U.S. 810 (1982). 

On March 9, 1990, when the modifications were received, WFC's 

position was as follows& 

WFC had been trying desperately -- over the 

vociferous objections of MSHA's counsel -- to 

1144 
- 9 -

obtain an expedited hearing after it filed its 

Notices of Contest on February 20, 1990.5/ 

Anticipating a rapid hearing, WFC conducted 

its factual investigation, identified and 

prepared witnesses, retained an expert to 

testify in its support, and prepared exhibits 

for trial -- all before the modifications were 

received. 

On February 23, 1990, almost two weeks before 

the modifications were received, WFC filed its 

witness list and description of exhibits and 

served MSHA's counsel with them. 

In anticipation of trial, WFC's counsel had 

performed legal research to construct the 

arguments it intended to present at trial on 

the S 75.329-1(a) issues. 

After the modifications were issued, WFC was 

faced with the prospect of having to scrap its 

S 75.329-1(a) arguments and witnesses, and to 

restructure its entire case on the citations 

three days before trial was to begin. 

Such restructuring would have involved dealing 

with completely new and different factual and 

legal issues arising in ventilation plan 

cases. In other words, WFC would have had to 

start all over again. 

Such restructuring would have been further 

complicated by the fact that all of WFC's 

witnesses were located in the Trinidad, 

Colorado area, a three-hour drive south of 

Lakewood, where WFC's counsel was located. 

Given these circumstances, WFC's counsel decided to reject 

going to trial on the modifications and argued that they should 

5/ In its effort to obtain an expedited hearing, between 

February 20, 1990, and March 9, 1990 (when the modifications 

were received), WFC's counsel had: called ALJs Cetti and 

Lasher requesting an expedited hearing, filed a motion for an 

expedited hearing, orally argued for an expedited hearing 

before Judge Lasher, filed a motion to schedule hearing after 

Judge Lasher denied the motion for expedited proceedings, 

supported that motion with a brief, and finally obtained an 

Order on March 2, 1990, setting the hearing for March 12, 

1990 (the hearing actually began on March 13, 1990, at the 

request of MSHA). · 

1145 
- 10 -

not be permitted because the citations had already been 

terminated, a position supported at the time by the case law, 

including rulings of the presiding Judge. 

~though the Secretary's counsel argued at trial that the 

modifications should be permitted inter alia, because the 

Secretary's proof would be the same whether the charge was for a 

violations of S 75.329-1(a) or S 75.316, see Wyoming Fuel, slip 

op. at 4, the relevant focus should be on the effect of the 

modifications on WFC and its defenses. Genentech, Inc. v. Abbott 

Laboratories, 127 F.R.D. 529, 530 (N.D. Cal. 1989) ("Of particular 

concern [in determining whether an amendment is appropriate] is 

avoiding prejudicial effects upon the nonmoving party"); Southwest 

Marine, Inc. v. Campbell Indus., 616 F. Supp. 253, 256 (S.D. Cal. 

1985) (prejudice to party opposing amendment is the "most 

important consideration" in determining whether amendment is 

appropriate), rev'd on other grounds, 796 F.2d 291 (9th Cir. 

1986), cert. denied, 484 u.s. 895 (1987). If the modifications 

had been allowed and the Secretary had been permitted to offer 

proof of a violation of the mine ventilation plan, a number of new 

factual and legal issues would have been injected into the 

proceeding with very little time for WFC to prepare its defenses. 

Johnson v. Oroweat Foods Co., 785 F.2d 503, 510. (4th Cir. 1986) 

(issue of prejudice with respect to amendment raising new legal 

theories that require the gathering and analysis of facts not 

already considered by the opposing party is particularly relevant 

"where the amendment is offered shortly before or during trial"); 

Johnson v. Sales Consultants, Inc., 61 F.R.D. 369, ·371 (N.D• Ill. 

1146 
- 11 -

1973) (•The power of a court to permit amendments to a complaint 

should not be used to completely change the theory of the case 

after the case has been submitted to the Court on another theory 

without some showing of lack of knowledge, mistake or inadvertence 

or some change of conditions over which that party had no 

knowledge or control"). 

In ventilation plan cases, there are a host of potential 

issues not present in cases involving more specific standards, 

such as whether the condition cited is covered by a plan 

provision, whether the cited provision is specific enough to be 

enforceable, whether other provisions of the plan may have a 

bearing on the operator's actions in the particular circumstance, 

and assuming a particular provision applies, what the meaning of 

the words and phrases in that provision mean in the context of the 

negotiations that resulted in the plan, common usage in the 

industry, prior enforcement history connected with a particular 

provision, and similar aids to construction. 

Walter Resources, Inc., 9 FMSHRC 903 (1987). 

See, ~, Jim 

Here, had WFC been 

forced to try a ventilation plan case, it would had to have 

developed completely different evidence and witnesses, all in one 

working day. 

Simply stated, the time and expense necessary to prepare 

defenses to a ventilation plan case beginning three days before a 

trial otherwise complicated by additional issues involving two 

separate imminent danger orders and a third citation would have 

prejudiced WFC substantially -- particularly where WFC's only 

recourse would have been to ask for more time to prepare but where 

1147 
- 12 -

that request would have been inconsistent with WFC's need for and 

very substantial efforts to obtain an expedited hearing. 

Finally, there is one additional factor bearing on the 

disposition of this issue of which the presiding Judge should be 

aware: the Golden Eagle Mine was sold by WFC in May, 1991, to 

another operator. Most of the management officials who testified 

at the March, 1990, hearing and who would have had the knowledge 

necessary to provide testimony about the facts connected with the 

allegations and the modifications to the citations are no longer 

working for WFC and the company itself is no longer in the mining 

business. Moreover, most of those management officials are no 

longer at the Golden Eagle Mine operated by its new owners and 

some of them have moved away from the Trinidad area entirely. It 

would be extremely difficult for WFC to defend the allegations in 

the modifications under these circumstances. 61 See, ~' Bruno 

v. Cyprus Plateau Mining Corp., 10 FMSHRC 1649, 1652 (Nov. 1988) 

(ALJ Morris) (untimely discrimination complaint dismissed because, 

inter alia, "material legal prejudice exists: the individuals 

(who would have been key witnesses] are no longer with the 

company"), aff'd, Bruno v. FMSHRC, No. 89-9509 (lOth Cir. June 8, 

1989). 

6/ Of course, we do not suggest that the Secretary is at fault 

for this turn of events. Nevertheless, we feel compelled to 

bring it to the Judge's attention to demonstrate that a trial 

on the Secretary's modifications at this late· date is 

practically impossible. 

1148 
- 13 -

Conclusion 

Considering all these circumstances, both the facts and the 

law demonstrate that WFC was prejudiced by the modifications 

served by the Secretary on March 9, 1990. Such prejudice was 

"legally recognizable" so as to preclude the Secretary's attempt 

to sustain -- and to force WFC to trial on -- the modifications at 

issue. 

Respectfully submitted, 

Dated: September 17, 1992 

CROWELL & MORING 

1001 Pennsylvania Avenue, N.W. 

washington, DC 20004-2505 

(202} 624-2585 

Attorneys for Wyoming Fuel Company 

1149 
EXHIBIT A 

1150 
356 P02 SEP 14 '92 11 : 37 

ITM'B OJ' COLORADO 

COUNTY or LAS ANIXA! ••• 

Ria P. CAt.J.OR, be1J\g cluly 11f'Orn, c1epoaes anel aay. a 

1. Durin; Karch 1190 1 I wa. Safety Director for wyoming 

Fuel Comp4ny. At th&t time, I was involved in 1fyominv Pual 

Company' a challenge of two imminent cS.anqer orders and three 

~lated citation. (Orde~ Hoe. 2930784 and 3241331J Citation Koe. 

2930785, 3241332, and 3241333) in proceedings before the Federal 

Kina S•fety and Health Review Commiaeion. 

·2. Durin; the early evening hours of March 91 li90, when I 

chaekad the mail in f1fY office, I dis a overed that I had received 

that day modification• to Citation Nos. 2930785 an~ 3241'3~. Wb8 

aodification• 1 which vera .iasuec1 ~ tha Kine Safety and Health 

AdMinistration, were dated Karch 6, 1990. 

3. Citation •o•. 2930785 and 3241332 1 aa oriqinally 1••ued, 

alleged violation. af 30 c.F.R. 1 ,5.329-l(a). tn the 

madifica~iona I received on March 9, 1990, MSHA alleged violation• 

of 30 c.r.a. t 75.318. 

Sul:HicrJ.becl and ewom to before ae thi• lrt/J. S-:3:1U2, 

-~~ 

day ot 

... 

My e~isaion eXpires 11-8-95. , 

1151 
CERTIFICATE OF SERVICE 

I hereby certify that a copy of the foregoing Wyoming Fuel 

Company's Response to the Administrative Law Judge's Order After 

Remand was sent via Federal Express, this 17th day of September, 

1992, to the following named person: 

Carl c. Charneski, Esq. 

Office of the Solicitor 

u.s. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Thomas A. Stock 

1152 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 161993 

U.S. STEEL GROUP, MINNESOTA 

ORE OPERATIONS, 

Contestant 

CONTEST PROCEEDINGS 

Docket No. LAKE 92-247-RM 

Order No. 4097164; 2/25/92 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Respondent 

and 

UNITED STEEL WORKERS OF 

AMERICA, LOCAL 1938, 

Miners 

Docket No. LAKE 92-248-RM 

Citation No. 4097166; 2/25/92 

Docket No. LAKE 92-249-RM 

Citation No. 4097167; 2/25/92 

Minntac Plant 

DECISION 

Appearances: Miguel J. Carmona, Esq., Office of the Solicitor, 

U.S. Department of Labor, Chicago, Illinois, 

Before: 

for Respondent; 

William M. Tennant, General Attorney, U.S.Steel 

Pittsburgh, Pennsylvania, for Contestant; 

James Ranta, Representative, United Steel Workers 

of America, Local 1938, for Miners. 

Judge Barbour 

STATEMENT OF THE CASE 

In this proceeding arising under the Federal Mine Safety and 

Health Act of 1977 {"Mine Act" or "Act"), 30 u.s.c. § 801 et 

seq., u.s. Steel Group, Minnesota Ore Operations {"U.S. Steel") 

contests the validity of an imminent danger order of withdrawal 

issued pursuant to section 107{a) of the Act, 30 u.s.c. § 817{a), 

and the citation for a violation of a mandatory safety standard 

issued in association with the order pursuant to section 104(a) 

of the Act, 30 u.s.c. § 814{a). In addition, u.s. Steel contests 

the validity of two other section 104{a) citations. The order 

and the citations were issued at u.s. Steel's Minntac Plant, a 

taconite processing plant located in St. Louis County, Minnesota, 

and they involve work done in the vicinity of the plant's primary 

crusher on the morning of February 25, 1992. 

1153 
Pursuant to notice the proceeding was heard in Duluth, 

Minnesota.• William M. Tennant represented u.s. Steel and Miguel 

J. Carmona, represented the Secretary of Labor, Mining 

Enforcement and Safety Administration ("MESA"). In addition, the 

United Steelworkers of America, Local 1938 ("Steelworkers"), 

sought and was granted party status. James Ranta represented the 

Steelworkers. 

With regard to the section 107(a) orderjsection 104(a) 

citation, u.s. Steel contests the inspector's allegation that the 

cited conditions constituted an imminent danger, the inspector's 

finding that the same conditions constituted a violation of a 

mandatory safety standard and the inspector's finding that the 

violation was a significant and substantial contribution to a 

mine safety hazard ("S&S" violation). With respect to one of the 

two other section 104(a) citations, u.s. Steel challenges the 

inspector's finding of a violation and his S&S finding and with 

respect to the other, u.s. Steel challenges his finding of a 

violation. 

Following the receipt of the transcript, counsels submitted 

helpful briefs. 

DOCKET NO. LAKE 92-247-RM 

ORDER/CITATION NO. 4097164, 2/25/92 

Order/Citation No. 4097164 charges as follows: 

Coarse Crusher - Step 2 

The power was "on", and the step 2 primary 

crusher hatches were not blocked against 

inadvertent motions. One employee had been 

working below the unsecured hatches, 

suspended in a work basket (with two anchor 

points), and hoisted through the hatches 

utilizing a 15-ton capacity P&H bridge type 

crane. All work at the No. 2 Course Crusher 

shall be halted until persons are protected 

from hazardous motion. 

Due to an industrial accident in the area, the hearing had to be 

suddenly and unexpectedly adjourned and reconvened at a location outside the 

city. Had it not been for the diligence and cooperation of all involved -- counsels, the representative of miners, the witnesses, and the reporter 

this would not have been possible and the hearing would not have been 

completed within the time originally allotted. 

1154 
Resp.•s Exh. 1. The order/citation further alleges that the 

condition constituted an S&S violation on 30 C.F.R. § 56.14105. 2 

THE SECRETARY'S WITNESSES 

Arthur Toscano 

Arthur J. Toscano, a metal and nonmetal Mine Safety and 

Health ("MSHA") inspector since 1975, stated that on February 25, 

1992, he went to the Minntac Plant to conduct an inspection as 

part of an ongoing inspection by MSHA of the entire facility. 

The inspection was in the morning, and during the inspection 

Toscano was accompanied by miners• representative Tim Kangas and 

by u.s. Steel safety engineer Robert Tomassoni. Tr. 15-16. 

Toscano arrived at the mine at approximately 8:00 a.m. 

Following an opening conference with Kangas and Tomassoni, during 

which the group discussed what they would do during the course of 

the day, the inspection party drove to the crusher building. 

While on their way to the crusher site, Toscano testified that he 

advised Tomassoni that he, Toscano, had received an MSHA policy 

memorandum dealing with the hoisting of men in work baskets and 

that "if [he] saw a man in a basket that didn't meet MSHA's 

requirements, that [he] would issue a citation." Tr. 18. 

The inspection party arrived at the crusher building at 

approximately 9:40 a.m. As they entered the building Toscano 

observed David Tacchio, a certified electrician, suspended in a 

work basket. Tr. 19, 72-73. The basket was hanging from an 

overhead traveling bridge-type crane. According to Toscano, 

Tomassoni asked if Toscano wanted to inspect the basket and 

Toscano said that he did. Tr. 19. Tomassoni shouting 

instructions to the crane operator who brought the work basket to 

the plant floor. Id. Toscano testified that at this time his 

sole concern was with the nature of the basket's cable 

connections. Tr. 42. 

Toscano testified that Tocchio unhooked his safety line and 

left the basket. Tr. 44. Toscano was sure that while Tocchio 

was in the basket he had on all of his personal safety equipment, 

including a safety belt and line. Tr. 44. However, because the 

basket had two cable connections rather than four, Toscano told 

Tomassoni that he would issue a citation for a violation. He 

2 Section 56.14105 requires in pertinent part that: 

Repairs or maintenance of machinery or 

equipment shall be performed only after 

the power is off and the machinery or 

equipment has been blocked against 

hazardous motion. 

1155 
stated that he understood the MSHA policy memorandum and an 

applicable mandatory safety standard (he did not specify which) 

to require four connections. Tr. 20. 3 

Toscano then spoke with Tocchio and the crane operator about 

their training and the job they were about to do. They explained 

to Toscano that they were in the process of preparing the crusher 

for some electrical repair work. Tocchio also stated that prior 

to Toscano arriving that morning, he already had done some 

preliminary work inside the crusher. Tr. 23, see also Tr. 26. 

Toscano testified that as he looked over the railing into 

the crusher he noticed that two doors covering the crusher 

(the "hatch doors") were open. (They were in a verticle position 

rather than lying in a horizontal position across the crusher 

opening. Tr. 21.) The hatch doors were constructed of steel 

plate, were approximately 12 feet by 15 feet in size and weighed 

several tons each. Tr. 27, 29. Toscano stated that when closed, 

the doors fitted together tightly. 

Toscano also stated that the doors were opened and closed by 

an electric winch that let out and retrieved wire ropes attached 

to the doors by eyelets. Tr.28. The purpose of the doors was to 

keep dust and noise from reaching the upper floors of the crusher 

building. Tr. 55. 

Upon further investigation Toscano discovered that the doors 

were not de-energized or physically blocked against unintentional 

motion. 4 Tr. 25-26. Toscano stated, "the electrical control 

circuit was in the on or energized position and there was no 

physical means of blocking those vertical hatch doors from 

unintentionally being lowered in the work area." Id. To 

physically block the hatch doors, u.s. Steel personnel usually 

pinned each door with a steel bar. The bar kept the doors in an 

upright position if the cables were activated for some reason or 

if they failed. 

Toscano did not know why the bars were missing. 

Tr. 26-27. He feared that if someone were purposefully or 

accidentally to activate the winch's start/stop buttons (and 

Toscano stated that he noticed miners work gloves, a broom and 

other materials used by miners within inches of the start/stop 

3 The following day Toscano spoke with his supervisor and was 

advised that two connections were acceptable to MSHA. Toscano told Tomassoni 

about the error and did not issue a citation for two cable connections. 

Tr. 20-21. 

4 However, Toscano determined that the crusher was locked out and 

that everything else that should have been blocked against motion was blocked. 

Tr. 42. 

1156 
buttons) nothing would have prevented the hatch doors from moving 

down into a closed position. Tr. 29. Toscano agreed, however, 

that the start/stop buttons were probably spring loaded and that 

if they were working properly they would only have activated the 

winch so long as whatever contacted them remained in touch to 

keep them engaged. Toscano was asked whether the buttons could 

have stuck and he stated that if they were just touched they 

probably would not have stuck. They would have had to be 

"smashed." Tr. so. He also stated that he had not inspected the 

buttons. Id., 67. 

Toscano believed that he advised Tomassoni that he was 

issuing a imminent danger order of withdrawal and that there 

would be no work done in the area until the doors were deenergized and until they were physically blocked. (Toscano did 

not recall exactly what he told Tomassoni and the others who were 

with Tomassoni when he issued the order, but whatever he said, he 

did not actually write the order of withdrawal until later in the 

afternoon. Id.) Tr. 46. 

Toscano testified that when he first observed Tocchio, 

Tocchio was suspended about four or five feet above the floor and 

was being moved toward the crusher cavity. Tr. 40-41. To reach 

the work area Tocchio would have had to be lowered through the 

upraised, unblocked, energized hatch doors. Tr. 30, 57. 

After the order was issued, Tomassoni promptly ordered that 

corrective measures be taken and the order was terminated when 

u.s. Steel personnel placed steel bars through the eyelets 

blocking all unintentional motion on the hatch doors and when 

they also de-energized and electrically locked out the doors. 

Tr. 38. 

Toscano stated that after the order was issued he determined 

that when preliminary work had been done on the crusher earlier 

in the shift, the crew doing the work, including Tocchio had 

gained access to the crusher by using man-doors at and below the 

floor level of the work station from which he had observed 

Tocchio being lowered. Tr. 45. They had not, as first he had 

supposed, gone down in the basket. To reflect the fact that the 

order/citation was issued prior to Tocchio actually having been 

lowered past the doors, Toscano modified the order in part as 

follows: 

One employee had been assigned repair 

work below the unsecured hatches and was 

observed suspended in a work basket (with 

two anchor points.) He was in the process 

of being hoisted through the opening created 

by the vertical hatches, which were not 

de-~nergized and were not blocked against 

1157 
hazardous motion, utilizing a P&H-type overhead crane. 

Resp. Exh. 1 at 2 (emphasis in original). 

Toscano described the imminent danger that he believed existed: 

• 

[T]here was a very . . . likely occurrence 

of an energized motor being started up, 

sometimes accidentally, and beginning a 

downward motion of these doors . . . the 

cables [of the basket] could get tangled in 

the closing action of the doors, you could 

bounce the man around . . . If [the doors) 

made it all the way down to the closed 

position, [the doors] could . . . crimp . . . kink • . . or . cut . . . [the) wire 

rope[s] to drop the basket with the man in 

it. 

Tr. 29-30. Later Toscano expanded upon what he believed the 

imminent danger to be: 

[T]he worst scenario in my mind would be if 

an eyelet or a connection anywhere around 

the support cables failed, it would cause 

a gravity dropping or slamming motion . . . [I]f someone just touched the button .•. 

[i]t would just be enough to cause high 

stress points on the support cables in an 

eyelet on the door and if the eyelets failed 

or the rope broke or a coupling . . . it 

would be a slam. 

Tr. 59. 5 He also stated that even though Tocchio wore a safety 

line, he could have been jostled and thrown from the basket and 

if he did not have the right length of line Tocchio could have 

fallen head first into the crusher. Tr. 34, 59. 6 Moreover, if 

either of the doors had hit the basket, they could have crushed 

portions of the basket and caused a fatal injury. Tr. 33. 

Toscano stated his understanding of the concept of imminent 

danger: 

5 Toscano testified that he had inspected the hoisting ropes and 

found nothing wrong with them. He did not inspect the electrical system that 

powered the opening and closing of the hatch doors. Tr. 67. 

6 

feet long. 

Tr. 44. 

Toscano stated that Tocchio's safety line was approximately three 

Tr. 43. He did not recall how Tocchio had secured the line. 

1158 
Tr. 32-33. 

[S]ection 107(a) provides for .•• [an 

inspector] to withdraw people from an area 

[in] which he feels a person could be hurt 

• • . if nothing is done and everything 

remains the same and a job is allowed to 

continue, [and] an inspector feels that 

there's a good likelihood that somebody is, 

going to get seriously hurt and that's when I 

exercise . • . authority under section 

107 (a) . 

Toscano was shown a company document entitled Safe Job 

Procedure. Resp. Exh. 4. 7 Toscano was of the opinion that it 

stated safety procedures required when repair work, such as that 

done on February 25, was performed on the crusher. Toscano 

interpreted safety procedure 7.b., which states "[l]ock out 

overhead doors over crusher cavity," to mandate that the hatch 

doors be de-energized. Tr. 37. 

According to Toscano, u.s. steel's failure to de-energize 

the doors and to pin them so they could not move prior to miners 

working on, around and under them, in addition to creating an 

imminent danger, also constituted a violation of section 

56.14105. Tr. 33. With regard to the "hazardous motion" against 

which the standard is to guard, Toscano stated that he had seen 

the doors close and he estimated they took approximately 20 

seconds for them to do so. Tr. 47. If they struck the basket or 

its supporting wires they could cause serious or even fatal 

injuries. Id., 38. 

He also believed it highly likely that such an accident 

would occur. Because the doors were not de-energized they could 

start closing if the stop/start buttons were pushed accidentally 

or on purpose. Tr. 29, 38. Or, they could start down if an 

electric short ran through their control circuit. Id. 

DAVID TOCCHIO 

Tocchio testified under subpoena. He stated that on 

February 25, he had been assigned to change a broken conduit 

underneath the crusher. Tr. 73. When Tocchio first saw Toscano 

and the inspection party he was suspended in the basket about 

four feet off of the floor. Tocchio explained that the basket 

had to be lifted from the floor of the work station, over a 

7 The document sets forth safety procedures to be followed by the 

electronic repair department at the Minntac Plant. It states that it is for 

the following job: "052 Crusher Mantal Position Trouble Shoot and Calibrate -- Step I & II." Resp. Exh. 4. 

1159 
railing, swung out over the crusher and lowered through the hatch 

doors into the crusher and that when Tomassoni stopped the 

procedure the basket had just started to move toward the hatch 

doors. Tr. 75. Had it not been stopped, it would have taken 

approximately 20 to 30 seconds for him to be lowered through the 

hatch doors. Tr. 75-76. 

Once inside the crusher Tocchio would not have left the 

basket, but rather would have worked from it. Tr. 77. Before 

Tocchio could change the conduit he had to clean rock from the 

crusher. Normally, such work was done by maintenance personnel 

and that was why he never had any training in safe job procedures 

for being lowered into the crusher through the hatch doors. 

Tr. 77. 

However, he was aware that pins were used to block the hatch 

doors because he had done a job one other time requiring him to 

be lowered through the doors and he had been told about the pins 

and had put them in place. Tr. 82. In addition, the doors had 

been de-energized and locked out. Tr. 79. He did not know why 

the pins had not been installed this time, except that 

"[m]aintenance just normally did it." Tr. 82, see also Tr. 78. 

He did not check to see if the pins were in place before he got 

into the basket. He observed, "It's not a very good excuse I 

guess." Tr. 83. 

U.S. STEEL'S WITNESS 

ROBERT TOMASSONI 

Robert Tomassoni, safety engineer for u.s. Steel, was the 

company's sole witness. (Tomassoni testified that he has been 

the company's safety engineer for approximately one year. 

Tr. 144.) Tomassoni stated that upon entering the crusher 

building he saw Tocchio who was in the process of getting into he 

basket and was putting on his safety belt. Tr. 87. Tomassoni 

saw also that the basket only had two cable connections and he 

asked if Toscano would cite that as a violation? According to 

Tomassoni, Toscano said he would and Tomassoni immediately 

signaled for Tocchio and the basket to be returned to the work 

station. As Tomassoni remembered it, Tocchio had gotten only 

three or four feet above the floor. The basket had been 

ascending vertically and Tomassoni did not believe that it had 

yet moved laterally toward the crusher. Tr. 88. 

Tomassoni called his supervisor to report what had happened 

and when the call was concluded Toscano asked to see the pin 

locations and the electrical disconnect for the hoist mechanism 

for the doors. Tr. 90. 

After Toscano found out that the pins were not in place and 

the hoist mechanism was not de-energized or locked out, Tomassoni 

1160 
was made aware that u.s. Steel would receive a citation for a 

violation of a mandatory standard. He stated that he was not 

made aware that an imminent danger order of withdrawal would be 

issued and, as best he could recall, he did not know that an 

order had been issued until an hour or two after the inspection 

party had observed the conditions. Tr. 93-94. In addition, even 

though the orderjcitation on its face stated that it•was 

terminated at 10:40 a.m., 45 minutes after it was issued, 

Tomassoni did not recall 'I: .. ~cano telling him about the 

termination. Tr. 94. 

In any event, Tomassm .•. did not believe that the cited 

conditions constituted an 'inent danger. In his opinion, it 

was highly improbable th~t oomeone would . . . push the buttons 

or the cables would break." Tr. 95. 

Tomassoni testified that there are two spring-activated 

buttons for the doors -- one to raise them and one to lower them. 

After the order/citation had been issued the buttons were tested 

and found in good working condition. As described by Tomassoni, 

the buttons have a chrome safety guard over their tops so that 

they can not be activated by being leaned on or by being struck 

from above. Tr. 95-96. 

Tomassoni stated that it takes thirty-one seconds to lower 

the doors to a horizontal position. Tr. 96. One door lowers 

approximately two to three seconds ahead of the other. If the 

cables attached to the doors were to break, the doors would come 

down much quicker, but Tomassoni was not unaware of any cable 

failures at the plant. Tr. 102-103. If Tocchio had been lowered 

into the crusher, Tocchio would have been approximately fifteen 

feet from the control panel for the doors. Tr. 98. Had he 

wanted to get the attention of someone near the control panel he 

probably would have had to yell because of the noise in the 

plant. Tr. 98. (Tomassoni agreed, however, if the doors had 

fallen, yelling would have done no good. Tr. 103.) 

Tomassoni indicated the reason the doors were not pinned, 

de-energized and locked out was because Tocchio had not made sure 

it was done. 

IMMINENT DANGER 

Section 3(j) of the Act, 30 u.s.c. § 802(j), defines an 

imminent danger as "the existence of any condition or practice in 

a coal or other mine which could reasonably be expected to cause 

death or serious physical harm before such condition or practice 

can be abated." The Commission has noted that "the u.s. Courts 

of Appeals have eschewed a narrow construction and have refused 

to limit the concept of imminent danger to hazards that pose an 

immediate danger." Rochester & Pittsburgh Coal Co., 11 FMSHRC 

2159, 2163 (November 1989) (citations omitted). The Commission 

1161 
also has noted that the courts have held that "an imminent danger 

exists when the condition or practice observed could reasonably 

be expected to cause death or serious physical harm to a miner if 

normal mining operations were permitted to proceed in the area 

before the dangerous condition is eliminated." Id., quoting 

Eastern Associated Coal Corp. v. Interior Bd. of Mine Op. Appl., 

491 F.2d 277, 278 (4th Cir. 1974). Finally, the commission has 

adopted the Seventh Circuit's holding that an inspector's finding 

of an imminent danger must be supported "unless there is evidence 

that he has abused his discretion or authority." 11 FMSHRC at 

2164, guoting Old Ben Coal Corp. v. Interior Bd. of Mine Op. App. 

523 F.2d 25,31 (7th Cir. 1975), see also Wyoming Fuel Co., 14 

FMSHRC 1282, 1291 (August 1992). 

While the inspector has considerable discretion in 

determining whether an imminent danger exists, there must be some 

degree of imminence to support an imminent danger finding, and 

the Commission also has observed that use of the word imminent 

means the danger must be "ready to take place(;] near at hand[;] 

impending ••• [;] hanging threateningly over one's head(;] 

menacingly near." Utah Power & Light Co., 13 FMSHRC 1617, 1621 

(October 1991). 

In challenging the validity of the order, u.s. Steel in 

essence argues the evidence does not establish that if normal 

mining operations had continued it was reasonably likely that the 

feared accident would have occurred. u.s. Steel catalogues the 

reasons why: 

The hoist and ropes had no safetyrelated problems and the control 

buttons operated the doors properly. 

The buttons were spring-loaded and 

guarded against accidental contact. 

Tocchio was tied off • . • and could 

communicate with the other employees if a 

descending door presented a hazard. 

Barring a total failure of a cable 

(which had no observable defect), 

someone would have had to stand at the 

control panel in view of Tocchio and 

depress the button . • • to get the 

doors to a position where they could 

create a hazard. Under such circumstances 

it is inconceivable that Tocchio could · have been killed or seriously injured 

by the conditions cited on February 25, 

1992. 

U.S. Steel Br. 9. 

1162 
The Secretary counters that he need not prove that a 

reasonable likelihood of an accident existed, that the test to be 

applied is what a reasonable person with the experience and 

eduction of a qualified MSHA inspector would consider an imminent 

danger. Sec. Br. 9. Here, according to the Secretary, he has 

proven that the cited doors were energized and not b~ocked 

against motion at the time Tocchio was going to be lowered 

through the doors with the resulting danger of him being crushed 

or thrown from the basket. Id. 

I believe u.s. Steel has the better part of the argument and 

that the Secretary has not established the existence of an 

imminent danger. It is undisputed that the doors were not pinned 

and that they were not de-energized and locked out. Under u.s. 

Steel's own safe job procedures these steps should have been 

taken. 8 Tocchio testified without contradiction that when he had 

done a similar job in the past, the procedures had been 

implemented. Tr. 79, 82, see also Tr. 105-106. I conclude from 

this that without implementation of these safety precautions, a 

hazard existed to miners working in the vicinity of the doors. 

Indeed, common sense compels such a conclusion. The descent of a 

12 feet by 15 feet steel door or doors onto a work basket or onto 

hoisting cables attached to the basket clearly would subject any 

person in the basket to the danger of being jostled and thrown 

from the basket if not of being crushed outright. 

Still, the existence of a hazard alone does not warrant 

imposition of a withdrawal order pursuant to section 107(a). As 

noted above the hazard must be imminent, that is there must be a 

reasonable potential to cause death or serious harm within a 

short period of time, and I conclude that it is here the 

Secretary's case fails. 

Toscano viewed the start up of the motor controlling the 

doors as "very likely". Tr. 29. Yet, the circumstances which 

would have caused this to happen were anything but. Someone 

would have had to purposefully activate the button controlling 

the winch, a circumstance that was extremely remote since, as 

u.s. Steel points out, any person standing at the button would 

also have a view of a person suspended in the work basket. Or, 

the button would have had to be activated accidentally by being 

"smashed", simply touching the button would not have kept the 

doors in motion. Tr. 50. Toscano offered no convincing 

8 Tomassoni believed that pinning of the doors was all that was 

required under U.S. Steel's safety procedures at the time the order was 

issued. He stated "pinning the doors was satisfactory because the doors are 

not powered in the down position, it's gravity controlled, gravity descent." 

Tr. 106. However, Resp. Exh. R-4 indicates the power also should have been 

turned off and Tocchio's testimony of his past work practice strongly suggests 

this was in fact the rule. 

1163 
explanation of how the button could reasonably have been expected 

to be struck hard, let alone have been "smashed." 

Toscano did offer a "worse case" scenario for how the doors 

could have fallen. In this version of the hazard the cables or 

the eyelets would have failed. Tr. 59. Yet, once Toscano 

inspected the cables he found that they were not defective and 

there is simply no evidence indicating that cable failure was 

reasonable to anticipate. Further, Tomassoni's testimony that he 

was unaware of any previous cable failures at the Minntac Plant, 

was not refuted and suggests that such failures were unheard of 

since u.s. Steel's safety engineer would certainly have known 

about them had they occurred. Tr. 103. In addition, no 

testimony or documentary evidence was offered concerning the 

eyelets. 

Finally, Toscano made a passing reference to the doors 

starting to close if activated by an electric short in their 

control circuit. Tr. 38. However, no credible evidence was 

offered to prove that there was any reasonable likelihood that 

such a thing could occur and without the doors closing there 

could have been no reasonable expectation of serious injury or 

death. 

Obviously, almost anything can happen. But the fact that 

conditions create circumstances in which hazards can occur does 

not make them imminently dangerous. The Secretary must establish 

more than the speculative possibility that a miner or miners may 

be endangered. Because he has not done so, the inspector's 

finding of an imminent danger must be vacated. 

VIOLATION OF SECTION 56.14105 

As previously noted, section 56.14105 requires that when 

repairs or maintenance are performed on machinery or equipment 

the machinery or equipment shall be blocked against hazardous 

motion. The doors were not pinned and, as Toscano testified, the 

motion against which pinning would have guarded was their 

downward descent. Tr. 47. The motion was hazardous because it 

could have subjected Tocchio to serious injury or even death. 

Tr. 33-34. 

u.s. Steel argues that this is not a violation of the cited 

standard because the crusher was the machinery being repaired, 

not the doors. u.s. Steel Br. 13-14. u.s. Steel observes that 

the crusher was locked out and de-energized. I reject this 

argument and find that the violation existed as charged. The 

doors, while not part of the mechanism that did the actual 

crushing of the ore at the plant, were an integral part of the 

crusher unit. They covered the crusher mechanism and, as Toscano 

1164 
explained, were designed to keep the dust and noise produced by 

the crushing of ore from the upper levels of the plant. Tr. 55. 

As part of the crusher unit which could cause injury to mine 

personnel if they descended, the doors should have been blocked 

against motion. 

The Commission has held that a violation is "significant and 

substantial" 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 further explained: 

In order to establish that a violation 

of a mandatory safety 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. 

Here I have concluded that a violation of mandatory safety 

standard section 56.14105 existed as charged. Moreover, the 

evidence establishes there was a discrete safety hazard 

contributed to by the violation in that there was a possibility, 

however remote, the cables or eyelets holding the doors in place 

could have failed or that the buttons controlling the descent of 

the doors could have been "smashed" and that the doors could have 

fallen endangering anyone passing in the work basket. Moreover, 

any injuries a person in the basket would have suffered from 

having been struck by the doors or jostled in the basket or 

thrown from it reasonably could have been expected to be of a 

serious nature. 

As is frequently the case when the Secretary alleges that a 

violation is S&S, the question is whether the Secretary has 

established a reasonably likelihood that the hazard would have 

resulted in an injury? In other words, had normal mining 

operations continued would th~re have been a reasonable 

likelihood of "an event in which there [would have been) an 

injury?" u.s. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 

1984). I conclude the answer is "no." 

1165 
As I have stated in discussing the nature of the Secretary's 

imminent danger allegation, in my view the Secretary has 

established only an extremely remote possibility of an injury 

causing event. To prove s&s he must do more. There is no 

evidence regarding the likelihood of cable or eyelet failure or 

the likelihood of objects smashing the start/stop buttons. 

(Indeed, the testimony of Tomassoni suggests that such 

occurrences would be highly unusual. Tr. 103.) Therefore, I 

conclude that the violation of section 56.14105 was not S&S. 

Section l07(a) Order/Citation No. 4097164 must be modified to a 

section 104(a) citation. The inspector's finding of an imminent 

danger must be vacated and his S&S finding must be deleted. 

DOCKET NO. LAKE 92-428-RM 

CITATION NO. 4097166, 2/25/92 

Citation No. 4097166 charges as follows: 

Step 2 - Coarse Crusher 

An employee was observed working below 

the primary crusher dumping station. A 

readily visible warning sign or signs were 

not posted at all approaches, notifying 

persons above that work was being done 

below the open, unbarricaded dump station. 

The hazard to the employee of dumping, 

dropping or throwing material into the 

opening, would not be readily obvious to 

persons working, traveling, or cleaning-up 

at track level. 

Resp. Exh. 2. The citation alleges that the conditions 

constituted a violation of 30 C.F.R. § 56.20011 and that the 

alleged violation was S&S. 9 

SECRETARY'S WITNESS 

Toscano testified that after the inspection party had 

completed its observation of the area of the hatch doors, the 

party entered the area of the primary dump site (also known as 

the lower crusher area) where the ore cars dump into the crusher. 

Tr. 108. Toscano stated that from his discussion with Tocchio, 

he knew that earlier in the shift Tocchio had been working in 

this area. In addition, Toscano said that Tocchio told him that 

9 Section 56.20011 requires in pertinent part that "[A)reas where 

safety hazards exist that are not immediately obvious to employees shall 

be barricaded or warning signs shall be posted at all approaches." 

1166 
millwrights also had worked there earlier in the shift. Tr. 110, 

130, 135. Toscano feared that given the area where Tocchio and 

others had been working and where Tocchio would have been 

required to work had the job gone ahead as planned, train loads 

of ore could have been dumped on the men or material could have 

been thrown down upon them because they could not have been seen 

from the dumping area above. 

Toscano observed that there were no signs posted to warn 

anyone on the upper level that persons were working below. 

Tr. 109. Nor were there an" barricades. Tr. 113. When asked 

what constituted the viola· n Toscano replied: 

The violation would be . . . the failure 

to post at all approaches an appropriate 

sign describing wh~~ protective action 

would be needed. [T]he person who 

would be protected would be for instance 

• . • Tocchio or any other persons working 

below . • . the main dumping station. The 

person who would not know •.. Tocchio [was] 

there is the person who would have to be 

able to see the sign if he was traveling 

or working or walking through the area. 

Tr. 110. Although Toscano did not see anyone working in the area 

that he believed should have been posted, he thought that he 

recalled having seen miners walking through it. Tr. 110-111. 

The standard requires where there is not an immediately 

obvious health or safety hazard existing, the area should be 

posted or barricaded. Toscano explained that under normal 

operating procedures, a locomotive would pull ore cars into the 

dumping station. The cars would be grabbed by a rock dumping 

mechanism, be rotated and they would each in sequence dump up to 

100 tons of ore into the hopper feeding the crusher. The one 

would fall 20 to 25 feet to the lower level where Tocchio h~d 

been. Tr. 111-112. 

Not only would the dumping of the cars endanger anyone 

working below, but, in Toscano's opinion, it would not be unusual 

for a miner walking the track to pick up spillage from the cars 

and "throw it where it [was] going to go anyhow." Tr. 113. 

Toscano admitted however that should material fall from 

above, anyone in the basket would have been provided some 

protection in that the basket was enclosed on three sides to 

waist height. Also, the person would have been afforded 

protection by the basket's overhead canopy. Tr. 123. In 

addition, a "safety tub" could be lowered around the basket and 

the tub would have provided additional protection. Tr. 125-127. 

1167 
Toscano recognized that there were safety lights outside the 

crusher building that were used to signal the train operator not 

to enter and dump. Tr. 129-130. There was also a warning light 

inside that Toscano believed a train operator could probably see. 

Tr. 136. All rail traffic was controlled by computer from a 

building separate from the crusher building. Tr. 137. 

Toscano stated that he believed it was reasonably likely for 

someone who was not aware of miners working below to throw 

something down to the lower level. Tr. 114. He also stated that 

he knew of an incident in 1977 in which a miner was fatally 

injured by having rock dumped on him while working in the hopper 

unbeknownst to the person who dumped the rock. Tr. 114-115. 

Nonetheless, he agreed that when he observed the pertinent area 

on February 25, it was clean and there were no ore cars present 

nor other equipment present (such as a backhoe) capable of 

dumping material into the crusher. Tr. 118. Moreover, the doors 

to the crusher building were closed and Toscano stated that 

ordinarily he would not expect a locomotive to pull loaded cars 

into the building under those circumstances. Tr. 118-119. 

Finally, Toscano stated that the violation was timely abated 

when the company provided readily visible signs reading "danger, 

men working below." Tr. 118, 147. 

U.S. STEEL'S WITNESS 

Tomassoni described the system of rail traffic control at 

the crusher building. He stated that inside the building there 

were warning lights at the crusher dump station and also at the 

site where the train dumped its load. When the lights were "on", 

they indicate that there is to be "no dumping." Tr. 139. 

However, he agreed that the placement of the inside lights was 

such that anyone using an end-loader or moving materials by hand 

would have had his back to the lights. Tr. 144. 

With regard to the outside lights Tomassoni's testimony was 

conflicting -- although he stated he believed a red light outside 

on the building indicated "no dumping," he also testified, "We do 

not look at the outside lights on the building." Id. However, he 

added that he was unaware of any instances in which loads had 

been dumped even though the red lights were on. Tr. 144. He 

also acknowledged that lights burn out and that burned out lights 

were a problem at the plant. Tr. 145. 

Tomassoni did not consider the lack of signs a violation of 

the cited standard, because the people working in the crusher 

building were a small, closely knit group and their jobs were 

coordinated. Further, the area had been cleaned and Tocchio was 

"well protected" while in the basket. Tr. 141. Moreover, in his 

opinion, the basket could have been observed from the track 

level. Tr. 142. I 

1168 
STEELWORKERS' WITNESS 

Timothy Kangas testified on behalf of the Steelworkers. 

Kangas, a millwright at Minntac, is also the acting co-chairman 

of the union safety committee. He testified that in 1989, he 

monitored an investigation of an incident when a tra~n pulled 

into the dump area against a red light and directly over an 

electrician working from a work basket. Tr. 148-149. 

VIOLATION OF SECTION 56.20011 

U.S. Steel observes that the standard does not require 

warning signs in all areas where work is being performed, but 

only in areas where safety hazards exist that are not immediately 

obvious to employees and it argues, in effect, that at the time 

the citation was issued, its employees were aware of the 

potential hazard to Tocchio. "The employees in the area, i.e., 

the crane operator, electrician, and attendant, were there to 

assist Tocchio; it is unreasonable to believe that they would 

drop material on him." u.s. Steel Br. 15. 

I conclude otherwise. While I accept the testimony of 

Tomassoni that those working in the crusher building were a 

closely-knit group who knew one another's job assignments, it 

seems to me that the purpose of the standard is to remind such 

personnel that one or more of their number who is not always 

readily observable is in a potentially hazardous area -- people 

do afterall forget -- as well as to advise other miners coming 

into the area of the situation existing therein. 

Here the presence of miners working below was not 

immediately obvious. The basket may well have been observable 

from the track area if one looked, but it would have been 

suspended below the track level and one would have had to look. 

Also, any miners working below and not in the basket would have 

been even less obvious. 

Further, there was a potential for injury. Trains could 

have entered the building and dumped while Tocchio was suspended 

or others were working below. Even though the doors to the 

buildings were closed, even though there were warning lights in 

existence, even though, as discussed infra, Toscano later 

accepted u.s. Steel's explanation that when he cited the 

violation the switching system for the rail line to the crusher 

was in such a position that trains were shunted away from the 

building, all such added protective features could.have failed. 

Thus, Tocchio and any other of his colleagues working on the 

crusher were in a hazardous position and warning signs should 

have been posted. I conclude, therefore, that in failing to post 

1169 
the warning signs or to barricade the area u.s. Steel violated 

section 56.20001. 10 

The violation existed as charged. As I have stated in 

finding that the violation existed, the warning signs would have 

served as an ever-present reminder to others that a miner or 

miners, who were not immediately obvious, were at work in a 

potentially hazardous area. They would have jogged the memory of 

not only those on the section who were aware of the presence of 

such miners but also they would have advised newcomers of the 

miners' situation. Thus, they would have protected miners from 

what was in fact a discrete safety hazard, the potential of 

having material dumped or thrown down upon them. Obviously, if 

such had happened, any miner struck would have been lucky to have 

escaped with only serious injuries. 

As with consideration of the S&S nature of the previous 

violation, the critical question is whether the Secretary has 

established a reasonable likelihood of an event in which there 

would have been an injury had normal mining operations continued? 

Again I conclude that the answer is "no." 

Continued normal mining operations did not mean the usual 

movement of trains to the crusher but rather the repair of the 

crusher. That was the work being undertaken in the crusher 

building on February 25. When the work was completed, trains 

would again purposefully enter the building to discharge their 

loads. However, by that time, the crusher would have been 

repaired and Tocchio and any others working on it would have 

left. 

Thus, under normal m1n1ng operations Tocchio or others 

repairing the crusher would have been subjected to the likelihood 

of injury from the dumping of ore only if trains entered the 

crusher building in spite of the protection afforded by the 

building's closed doors, warning light system and, most 

important, by the switches thrown to shunt trains away from the 

building. See discussion, infra. The chance that these 

precautions would have been ignored or would have failed is, in 

10 The essence of u.s. Steel's arguments that it did not violate the 

standard really go to the question of how likely an accident would been under 

the circumstances, a question whose answer is essential in resolving the issue 

of S&S. 

1170 
my opinion, remote at best. 11 Therefore, I cannot find that on 

February 25, had normal mining operations continued there would 

have been a reasonable likelihood of "an event in which there 

[would have been) an injury." U.S. Steel, 6 FMSHRC at 1836. 12 

For the foregoing reasons I conclude that the violation 

of section 56.20011 was not S&S. The citation must be modified 

to delete the inspector's S&S finding. 

DOCKET NO. LAKE 92-249-RM 

CITATION NO. 4097167, 2/25/92 

Citation No. 4097167 charges as follows: 

Step 2 - Course Crusher 

An employee was observed performing work 

on the primary crusher. He was situated below the railroad track level and adjacent 

to the dump station and feeder. Although a 

red light was "on" to "block" trains 

approaching, the employee was not protected 

from moving or runaway rail equipment with 

a stop block, detailer or other stopping 

device. 

Resp. Exh. 3. The citation alleges that the conditions 

constituted a violation of 30 C.F.R. § 56.9302. 13 Although 

Toscano originally found that the alleged violation was s&s, 

subsequently he modified the citation to indicate injury was 

11 The danger of a rail car discharging onto Tocchio and any others 

working to repair the crusher is the "event in which there (would have been) 

an injury." u.s. Steel, 6 FMSHRC at 1836. Toscano agreed that the area along 

the track had been cleaned and there being nothing for backhoes to pick up, 

nor any backhoes present, it seems unlikely that any danger would have come 

from that source or from any miner picking up spillage and throwing it into 

the crusher. 

12 While I was impressed with the testimony of Kangas involving a 

previous incident at the plant where a train had moved into the dumping area 

and was preparing to dump not only against the lights but over an electrician 

in a work basket -- the very thing Toscano feared -- there was no testimony 

indicating the train also had entered in spite of the crusher building's 

closed doors and because of a failed railroad switch or switches. 

13 Section 56.9302 states: 

Stopblocks, derail devices, or other 

devices that protect against moving or 

runaway rail equipment shall be installed 

whenever necessary to protect persons. 

1171 
unlikely and to delete the S&S designation. He based the 

modification upon the fact that: 

Id. at 2. 

Additional information indicated that at the 

time of this citation, [a] track switch was 

thrown to direct tract movements away from he 

Step 2 Crusher. The switch and .•• track 

were in view of the mine traffic controller, 

who had 2-way radio communication with mine 

trains. 

SECRETARY'S WITNESS 

Toscano testified that continuing the inspection of the same 

general area that Tocchio had been assigned to work, he walked up 

the track, in the direction from which loaded trains would have 

come, and he asked if any derailer or other device to prevent 

unauthorized entry of trains into the area was present? When 

none was found, Toscano told Tomassoni that the company was in 

violation of section 56.9302. Tr. 152-153. 

Toscano stated that Tocchio would have been exposed to any 

runaway train or rail car entering the area. Toscano believed a 

stopblock or derailer should have been placed far enough from the 

dumping area so that any runaway would derail before it entered 

the area. Tr. 153. No trains were traveling the track at the 

time Toscano issued the citation. Id. 

Later in the day Kangas told Toscano that he thought the 

company had a safe job procedure requiring the installation of a 

derailer. Tr. 156. 

Approximately three or four days later Toscano stated he 

conferred with Tomassoni and Kangas about the citation. 

Tomassoni emphasized the existence of the warning light system 

used to prevent trains from entering the building and from 

dumping. Also, Tomassoni showed Toscano the computerized control 

center that directed rail traffic and switches at the plant. It 

was then brought to Toscano's attention that on the morning of 

February 25, 1992, the switching system had been activated to 

prevent trail traffic from entering the building. Toscano 

therefore changed his assessment of the likelihood of injury due 

to the violation from reasonably likely to unlikely and he 

deleted the S&S finding. Tr. 156-157. 

However, Toscano did not agree with Tomassoni that the 

lights and the computerized control system were the equivalent of 

a stopblock or a derailer and he refused to vacate the citation. 

Toscano rejected Tomassoni's connection because in his experience 

and for various reasons (ice, rain, moisture), switches have been 

1172 
known to fail so that the person operating the control system 

will think they have been thrown when, in fact, they have not. 

Tr. 158. On the other hand a stopblock or derailer "is a 

physical means when other systems fail to make sure that 

approaching equipment does not get into a danger zone." Id. 

Toscano stated that the violation was abated when a derailer 

was installed. Tr. 159-160. 

U.S. STEEL'S WITNESS 

Tomassoni described rail traffic control at the Minntac 

Plant as being under the direction of a clerk and a control 

supervisor. It is the control supervisor's job to direct all 

rail traffic hauling ore to the crushers for processing. 

Tr. 166. This is done in part through computers logging the 

direction of locomotives and switches. Because information 

regarding all switches that are thrown is stored in the 

computer's memory, Tomassoni was able to determine that on the 

day the subject citation was issued switches had been in such a 

position that all rail traffic would have been turned away from 

the crusher building. Tr. 168. Thus, he was sure that no rail 

traffic had been routed to the crusher building on February 25. 

Moreover, Tomassoni stated that the control supervisor had been 

advised early on February 25 that the No. 2 Crusher was "down" 

that day. For these reasons, Tomassoni did not believe that u.s. 

Steel had violated section 56.9302. Tomassoni admitted however 

that a company safe job procedure in effect when the citation was 

issued required a derail device. Tr. 170, 173, see also Resp. 

Exh. 4 at 2. 

VIOLATION OF SECTION 56.9302 

There is no dispute a device that could stop or derail a 

moving or runaway train or rail car was not in place on the track 

leading to the No. 2 Crusher dump area. The question is whether, 

given the circumstances at issue, such a device was, in the words 

of the regulation, "necessary to protect persons?" I conclude 

that it was. 

As Toscano noted, Tocchio was working that day in the area 

of the primary crusher. The testimony also makes clear that 

other miners occasionally worked and traveled the area. These 

people needed protection from moving or runaway trains or rail 

cars, and I agree with Toscano that the computerized traffic 

control system and switch monitoring system at the.plant, while 

lessening the chances of miners being injured by such vehicles, 

did not obviate the need to comply with the standard. Toscano 

put it well, the required devices are "a •.. means when other 

systems fail to make sure that approaching equipment does not get 

into a danger zone." Tr. 157. 

1173 
Toscano's testimony that the switches could malfunction due 

to ice, rain or humidity was not refuted. Further, the warning 

light system, while it hopefully would have alerted a locomotive 

operator not to enter the crusher building, obviously would have 

had no effect on a runaway train or rail-car. In addition, the 

control supervisor could have forgotten the crusher was "down" or 

could have been unaware that a failed switch had not responded as 

the system indicated. All of which may be why the need for such 

a device was not recognized by government regulation alone but 

was also required by u.s. Steel's own safety procedures, as 

Tomassoni candidly admitted. 

Therefore, I find that in failing to have installed a 

stopblock, derail device or other device on the track leading to 

the No. 2 Crusher dump area, u.s. Steel violated section 56.9302. 

FINDINGS AND CONCLUSIONS 

Based on the forgoing it is concluded that Order/Citation 

No. 4097164, 2/25/92, properly sets forth a violation of section 

56.14105 but fails to validly state a condition or practice 

constituting an imminent danger and fails validly to state that 

the violation was S&S. It also is concluded that Citation 

No. 4097166, 2/25/92, properly sets forth a violation of 

section 56.20011 but fails validly to state that the violation 

was S&S. Finally, it is concluded that citation No. 4097167, 

2/25/92, properly sets forth a violation of section 56.9302. 

ORDER 

The findings of imminent danger and S&S made in connection 

with Order/Citation No. 4097164 are VACATED. The Secretary is 

ordered to MODIFY the Order/Citation to a citation issued 

pursuant to section l04(a) of the Act. 

Citation No. 4097166 is AFFIRMED. The S&S finding made in 

connection with the citation is vacated. The Secretary is 

ORDERED to modify the citation accordingly. 

Citation No. 4097167 is AFFIRMED. 

_])~; r.l /,"' .811A ~,_ David F. Barbour 

Administrative Law Judge 

1174 
Distribution: 

Billy M. Tennant, Esq., U.S. Steel Corporation, 600 Grant Street, 

Room 1580, Pittsburgh, PA 15219 {Certified Mail) 

Miquel J. Carmona, Esq., Office of the Solicitor, u.s. Department 

of Labor, 230 s. Dearborn Street, Chicago, Il 60604 {Certified 

Mail) 

Mr. James Ranta, United Steelworkers of America, Local 1938, 307 

First Street, North, Virginia, MN 55792 {Certified Mail) 

fepy 

1175 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUH 161993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

THE HARRIMAN COAL CORPORATION, 

Respondent 

DEC:IS:ION 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 92-648 

A. C. No. 36-06440-03512 

PenagfGoodspring No. 1 

Mine East & West 

Appearances: Richard W. Rosenblitt, Esq., Office of the 

Solicitor, u. s. Department of Labor, Philadelphia, 

Pennsylvania, for the Secretary; 

Mr. Herbert Trovinger, Brockton, Pennsylvania, for 

Respondent. 

Before: Judge Maurer 

This proceeding was filed by the Secretary of Labor, under 

section 110(a) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 820(a) (hereinafter the Act), to assess civil 

penalties against the Harriman Coal Corporation (Harriman). 

Pursuant to notice, this matter was heard on January 22, 

1993, in Reading, Pennsylvania. Both parties appeared, 

introduced evidence and made oral argument on the record, which I 

have considered in making this decision. 

With regard to the history of previous violations by 

Harriman, I find the number of violations in the 2 years previous 

to the inspection at issue to be few and that the size of 

Harriman can be considered small. Furthermore, in the absence of 

any specific evidence to the contrary, I find that the proposed 

penalties, if they are assessed in that approximate amount, will 

not affect the ability of Harriman to continue in business. 

\ 1176 

'·• 
Citation No. 3079894 

The inspector alleged in the citation that: 

The Caterpillar Excavator, Model 245, Serial 

No. 84X620 being used to move overburden at the mine 

site was not provided with handrails along and around 

the walkways or platforms on each side of the machine. 

30 C.F.R. § 77.409(b) provides that: 

Shovels and draglines shall be equipped with 

handrails along and around all walkways and platforms. 

Inspector Harold J. Smith, a mine inspector employed by MSHA 

for approximately 4 years, had occasion to issue the above citation on September 25, 1991. He testified that the subject 

Caterpillar Model 245 Excavator, which could be described as a 

shovel, was not provided with an adequate and proper handrail 

along the outer edge of the walkways or platforms on either side 

of the machinery. He considered this to be a violation because 

the mandatory standard found at 30 C.F.R. § 77.409(b) specifically requires that shovels be so equipped. 

Harriman does not dispute these facts, but for their defense 

cite the fact that the manufacturer, Caterpillar, has not seen 

fit to install these handrails on the outer side of the walkway, 

but rather has put handholds on the inner side of the walkway. 

Harriman believes this is sufficient to comply with the cited 

mandatory standard. 

I disagree. There is no handrail provided to prevent a 

worker from slipping and falling off the equipment, and this is 

what is specifically required by the standard. The pertinent 

language recites that handrails will be "along and around" all 

walkways and platforms. I read this to require the handrails to 

be on the outer side of the walkways. I also find that the 

violation is "S&S" because in inclement weather conditions, such 

as rain, sleet or snow, it is reasonably likely that a worker 

would slip and fall off this equipment and sustain a serious 

injury. 

I accordingly affirm Citation No. 3079894 as an "S&S" 

violation and find that a civil penalty of $50 is appropriate, 

considering the statutory criteria contained in section 110(i) of 

the Act and the evidence adduced in this record. 

1177 
Citation No. 3079895 

The inspector issued this citation on September 25, 1991, 

for an alleged violation of 30 C.F.R. § 77.410 for the following 

condition: 

The Ford truck, Model 8000, used by the mechanic 

at the mine site is not equipped with an automatic 

warning device which shall give an alarm when such 

equipment is put in reverse. 

30 C.F.R. § 77.410(a) (1) provides that: 

(a) Mobile equipment such as front-end loaders, 

forklifts, tractors, graders, and trucks except pickup 

trucks with an unobstructed rear view, shall be 

equipped with a warning device that--

(1) Gives an audible alarm when the equipment is 

put in reverse. 

Respondent stipulates that the truck was being operated on 

mine property on the day in question without a back-up alarm, 

that a back-up alarm is required on the truck, and it therefore 

was a violation of the cited standard. (Tr. 62-64) I could not 

agree more, and I also find that violation to be "S&S", and 

serious because of the obvious danger of an inattentive person 

standing or walking behind the vehicle being run over. 

Taking into account the seriousness of the violation as well 

as the other statutory factors contained in section 110(i) of the 

Act, I conclude and find that a civil penalty of $100 is appropriate for the violation found herein. 

ORDER 

Based upon the above findings of fact and conclusions of 

law, IT IS ORDERED that: 

1. Citation Nos. 3079894 and 3079895 ARE AFFIRMED. 

2. Respondent, Harriman Coal Corporation, shall pay to the 

Secretary of Labor a civil penalty in the sum of $150 within 

30 days of the date of this decision. 

aurer 

s rative Law Judge 

1178 
Distribution: 

Richard w. Rosenblitt, Esq., Office of the Solicitor, U. s. 

Department of Labor, 3535 Market street, Philadelphia, PA 19104 

(Certified Mail) 

Ronald Lickman, President, The Harriman Coal Corporation, 

101 N. Centre Street, Suite 309, Pottsville, PA 17901-2911 

(Certified Mail) 

dcp 

1179 
OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

OGLEBAY NORTON TACONITE 

COMPANY, 

Respondent 

JUN 211993 

. . 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 93-52-M 

A.C. No. 21-00828-05591 

Fairlane Plant 

: Docket No. LAKE 93-53-M 

: A.C. No. 21-00200-05572 . . Docket No. LAKE 93-54-M 

A.C. No. 21-00200-05573 

Docket No. LAKE 93-55-M 

A.C. No. 21-00200-05574 

Thunderbird Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

These cases are before me due to Judge Melick's illness. 

The parties have now filed an amended settlement motion. 

The motion explains that the 53 citations in these cases all 

were issued during the same inspection for failure to report 

mine site injuries which were reportable under Part 50 of the 

regulations. In forty-five instances, the injured miner had 

not reported the injury while on the mine property, but 

sought treatment later from a physician or chiropractor and 

the injury did not result in lost time. The clerical staff of 

the operator failed to recognize the information on the forms 

sent to the mine as injuries reportable to MSHA. In light of 

the foregoing, the parties represent that these violations were 

not intentional and that, therefore, negligence was less than 

originally thought. The amended settlement motion also sets 

forth information regarding the six criteria of section 110(i) 

of the Act. A penalty of $200 is recommended for each of these 

violations which I find is appropriate under the Act in light 

of the finding of reduced negligence which I accept. 

The parties further represent that in eight citations 

the operator should clearly have recognized the fact that the 

injuries which occurred were reportable under Part 50 because 

the injuries resulted in lost time. The parties recommend 

1180 
settlements in the amount of $400 for each of these violations. 

This was the amount of the Secretary's original assessment. 

I conclude that these settlements are consistent with the 

standards of section 110(i) of the Act. Finally, I am persuaded that the total amount of penalties assessed herein 

will have the deterrent effect anticipated by the Act. In 

this connection I note the assurances given me by operator's counsel in a conference telephone call on May 28, 1993, that 

the operator now understands its responsibilities under the 

Act and is presently complying with the reporting requirements. 

ACCORDINGLY, it is ORDERED that the recommended settlements 

be Approved. 

It is further ORDERED that in Docket No. 

the operator, within 30 days from the date of 

$3,400. 

It is further ORDERED that in Docket No. 

the operator, within 30 days from the date of 

$4,600. 

It is further ORDERED that in Docket No. 

the operator, within 30 days from the date of 

$4,000. 

It is further ORDERED that in Docket No. 

the operator, within 30 days from the date of 

$200. 

Paul Merlin 

IAKE 

this 

IAKE 

this 

LAKE 

this 

IAKE 

this 

93-52-M, 

order, pay 

93-53-M, 

order, pay 

93-54-M, 

order, pay 

93-53-M, 

order, pay 

Chief Administrative Law Judge 

Distribution: 

Lisa A. Gray, Esq., Office of the Solicitor, u.s. Department 

of Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 

60604 (Certified Mail) 

J. Kent Hendricks, Esq., Hanft, Fride, O'Brian, Harries, 

swelbar and Burns, P.A., 100 First Bank Place, 130 West 

Superior Street, Duluth, MN 55802 (Certified Mail) 

\lh 

1181 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

June 21, 1993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

MID-CONTINENT RESOURCES INC., 

Respondent 

. . 

. . 

. . 

Docket No. WEST 91-168 

A.C. No. 05-00301-03764 

: Dutch Creek Mine . . 

AMENDED DECISION APPROVING PARTIAL SETTLEMENT 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

u.s. Department of Labor, Denver, Colorado, 

Before: 

for Petitioner; 

Edward Mulhall, Jr., Esq., Glenwood Springs, 

Colorado, 

for Respondent. 

Judge Morris 

This is a civil penalty proceeding initiated by Petitioner 

against Respondent pursuant to the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. S 801, et seq. {the "Act"). The civil 

penalties sought here are for the violation of mandatory regulations promulgated pursuant to the Act. 

1. Respondent was issued five orders herein pursuant to 

the Federal Mine Safety and Health Act of 1977 as follows: 

Citation/Order 30 C.F.R. 

Number Date Reaulation 

3410800 May 01, 1990 § 75.400 

3410363 May 02, 1990 s 75.316 

3410351 May 29, 1990 s 75.499 

3410391 June 19, 1990 s 75.316 

3411019 June 27, 1990 s 75.1704 

1182 
2. However, one of the orders, Order No. 3410351, is the 

subject matter of a discretionary review now pending before the 

Federal Mine Safety and Health Review Commission in Docket Nos. 

WEST 91-594 and WEST 91-626. Order No. 3410351 was erroneously 

included in the decision for partial settlement as well as the 

order of the Commission entered thereon. 

3. Order No. 3410800 was reassessed and settled in Docket 

No. WEST 92-717, therefore, it should be deleted from this civil 

penalty proceeding. 

4. Respondent has previously agreed to reduce the proposed 

penalties of the remaining orders by 40 percent based on Respondent's ability to pay. 

5. Accordingly, Petitioner has previously agreed to amend 

the proposed penalties as follows. Such amendment is to be effective upon the approval of this settlement agreement by the 

Federal Mine Safety and Health Review Commission. 

Order No. 

3410363 

3410391 

3411019 

Proposed Penalty 

$1,000.00 

1,100.00 

1,600.00 

$3,700.00 

Amended 

Proposed Penalty 

$ 600.00 

660.00 

960.00 

$2,220.00 

In support of their motion, the parties submitted information relating to the statutory criteria for assessing civil 

penalties as contained in 30 u.s.c. § 820(i). 

I have reviewed the proposed settlement and I find it is 

reasonable and in the public interest. It should be approved. 

Accordingly, I enter the following: 

ORDER 

1. Order No. 3410351 was erroneously included in the 

motion for settlement as well as in the Order of the Commission 

entered thereon and said Order is deleted from this amended 

decision. 

1183 
2. Order No. 3410800 was reassessed and settled in WEST 

92-717. Accordingly, it is deleted from this penalty proceeding. 

3. Citation Nos. 3580363, 3410391, and 3411019, and the 

amended proposed penalties are AFFIRMED. 

4. Respondent filed a case under Chapter 11 of the 

Bankruptcy Code and is operating its bankruptcy estate as a 

debtor-in-possession. Accordingly, upon approval of the United 

States Bankruptcy Court in Case No. 91-11658 PAC, it is ORDERED 

that civil penalties be assessed against the Respondent in the 

amount of $2,200.00 and Petitioner is authorized to assert such 

assessment as a claim in Respondent's Bankruptcy case. 

5. The undersigned Judge retains jurisdiction of :this case 

and related cases not otherwise disposed of by the settlement 

herein. 

Law Judge 

Distribution: 

Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor, 1585 Federal Office Building, 1961 Stout street, 

Denver, co 80294 (Certified Mail) 

Edward Mulhall, Jr., Esq., DELANEY & BALCOMB, P.C., P.O. Drawer 

790, 818 Colorado Avenue, Glenwood Springs, co 81602 (Certified 

Mail) 

ek 

1184 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

JUN 211993 

ENERGY WEST MINING COMPANY 1 . . CONTEST PROCEEDING 

Contestant 

v. 

. . 

. . 

. . 

. . 

Docket No. WEST 92-216-R 

citation No. 3583185; 12/26/91 

SECRETARY OF LABOR, . . Deer Creek Mine 

MINE SAFETY AND HEALTH . . ADMINISTRATION (MSHA), . . Mine I.D. 42-00121 

Respondent . . 

. . 

. . 

. . SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH . . ADMINISTRATION (MSHA), . . Docket No. WEST 92-421 

Petitioner A.C. No. 42-00121-03763 . . 

. . v. . . Deer Creek Mine . . ENERGY WEST MINING COMPANY 1 . . Respondent . . 

DECISION 

Before: Judge Lasher 

This matter arises upon the filing by Energy West of a 

Motion for Summary Decision seeking to vacate Citation No. 

3583185 issued by Inspector Robert,L. Baker which alleges the 

following condition or practice was a violation of 30 c.F.R. 

s 75.316. 

~he approved ventilation, methane, and dust control 

plan was not being complied with in the 6th Right 

longwall •action a• the plan requires 30,000 CFM of 

air to reach the intake end of the longwall face, the 

air reading was 22,680 CFM reaching the intake end of 

the longwall. The crew had been withdrawn to the 

headgate before my arrival on the •action. 

1185 
Both parties have agreed that summary decision is appropriate in this matter and following Energy West's motion, the Secretary filed a cross motion for summary decision and Energy West 

filed a response thereto. 

In summary, Energy West contends (1) that the Citation 

should be vacated because the Secretary-cannot prove that the 

Mine's Section 75.316 Ventilation Plan was violated when less 

that 30,000 CFM of air was supplied to a longwall face during an 

idle shift, (2) that the regulations in effect at the time, Section 75.301 et seq. (1991), required certain minimums (3000 CFM 

or 9000 CFM) at each working face unless otherwise specified in 

the ventilation plan, and (3) that while at Deer Creek its Ventilation Plan did specify otherwise for longwalls during mining, 

and required 30,000 CFM on the "water spray diagram" pages thereof which described the dust controls and practices required for 

the operation of each longwall MMU, the context makes clear that 

the 30,000 CFM requirement can only reasonably be construed to 

apply during coal producing operations, (a) because such high 

volume of air could only be needed for methane or dust control 

when the longwall is operating, producing dust and potentially 

producing methane 1

; and (b) because that page of the Plan entitled "Water Spray Diagram," also contains requirements for the 

number of sprays that must be operating and the number of gallons 

per minute ("GPM") of water they must be spraying to keep down 

the dust generated by longwall operations--and no one contends 

that the water sprayers need to be operating during idle shifts. 

See Energy West's Motion and Attachment B and Exhibit 1 thereto. 

Thus Energy West maintains it only makes sense to construe the 

30,000 CFM standard, like the water spray standards, to apply to 

coal production periods, not to idle shifts. 

Energy West explains that other references in the plan show 

that the increased air quantity was only required during mining 

and that Section XVII of the Ventilation Plan is clear that the 

Plan's ventilation quantities during the period of longwall setup and extraction need not be followed. Exhibit 1 to Attachment 

B, Energy West's Motion. Energy West also maintains that it was 

its intent in the Ventilation Plan to require 30,000 CFM only 

during mining, not during idle periods when dust is not being 

generated and methane is not potentially being released by the 

use of the longwall, referring to Attachment B of its Motion. 

Alternatively, Energy West contends that even if the scope 

of the 30,000 CFM provision were deemed not limited to operating 

longwalls, the plan would be ambiguous and unenforceable under 

1 The Deer Creek Mine is virtually methane free. Only trace quantities 

of methane have ever been detected at this Mine. 

1186 
Commission precedents governing the interpretation and enforcement of such plans. 

In a "Statement of Facts" contained in its motion, Energy 

WEST sets forth a list of 14 facts as to which it believed there 

was not genuine dispute. The Secretary, however, does not concur 

in items numbered 9 and 10, 13 and 14 therein. Thus the Secretary denies the contention of paragraph 9 of the Statement of 

Facts that "it (Energy West) intended [emphasis supplied] the air 

quantity requirement of 30,000 CFM ••• to apply only during periods of coal production," and the allegation stated in paragraph 

10 that "Energy West has consistently interpreted the 30,000 CFM 

requirement to apply only during periods of coal production." 

The Secretary states that theses statement as well as the arguments propounded at paragraphs 13 and 14, all of which ~~e based 

upon the Affidavit submitted by Energy West's Director of Health 

and Safety, Dave Lauriski, cannot be adopted by the Secretary." 

The Secretary does accept Energy West's Facts numbered 1-8 

and 11-12 and this is reflected in the "Findings" which follow. 

The parties agree that if the Citation should be affirmed, then 

the $20 penalty proposed in Docket No. WEST 92-421 would be 

appropriate. 

PINDINGS 

Based on the facts set forth and agreed to in the motions, 

the following findings of fact are made: 

1. Energy West Mining Company owns and operates the Deer 

Creek Mine in Emery County, Utah. 

2. The Deer Creek Mine is subject to the jurisdiction of 

the Federal Mine Safety and Health Act of 1977 (the "Act"). 

3. The presiding Administrative Law Judge has jurisdiction 

over this proceeding pursuant to Section 105 of the Act. 

·-

. 4. - The citation was issued on December 26, 1991, by Inspector Robert Baker, alleging that Energy West violated 30 

c.F.R. S 75.316 by failing to comply with the approved ventilation, methane, and dust control plan at the 6th right longwall 

section insofar as the Plan allegedly required 30,000 cubic feed 

per minute ("CFM") of air to reach the intake end of the longwall 

face. The citation was terminated on December 30, 1991. 

5. The applicable standards for measuring Energy West's 

compliance with 30 c.F.R. S 75.315 are set forth in the Ventilation System and Methane and Dust control Plan (October 2, 1989) 

("Plan") prepared by Energy West (then known as Utah Power and 

Light company, Mining Division), and initially approved by the 

1187 
Mine Safety and Health Administration ("MSHA") on November 1, 

1989. MSHA subsequently approved amendments on various dates in 

1990 and 1991. See Plan excerpts attached as Exhibit 1 to Affidavit of Dave D. Lauriski, appended as Attachment B to Energy 

West's motion. 

6. The air quantity requirement on which the Citation is 

based is set forth on the individual water spray schematic for 

mechanized mining unit ("MMU") No. 051-0 in Part V of the Plan 

and was approved by MSHA on November 2, 1990. 

7. The individual water spray schematic on which the 

Citation is based states that the "minimum quantity of air 

reaching the intake end of the longwall face shall be 30,000 

CFM." This schematic is the sole basis for the Secretacy.'s 

Citation alleging that the failure to maintain air velocity at 

30,00 CFM constituted a violation of 30 C.F.R. S 75.316. 

8. At the time the Citation was issued, the air quantity 

measured 22,680 CFM at the intake end of the longwall face. 

9. At the time the Citation was issued, no coal production 

was occurring. 

10. At the time the Citation was issued, the 6th right 

longwall was idle. 

After consideration of the arguments, evidence presented by 

the parties and analysis of the supporting affidavits (one each 

by Energy West and the Secretary), it is concluded that the Secretary's position is meritorious and it is here adopted. 

A ventilation plan such as that involved here must be approved by the Secretary and adopted by the mine operator pursuant 

to Section 75.316 and Section 303(o) of the Mine Act. 30 u.s.c. 

S 863(o). Once the plan is approved and adopted, its provisions 

are enforceable as mandatory standards. Jim Walter Resources. 

Inc., 9 FMSHRC 903, 907 (May 1987); Zeialer Coal Co. v. Kleppe, 

536 F.2d 398, 409 (D.C. Cir. 1976); Carbon County Coal Co •• 

7 FMSHRC 1367, 1371 (September 1985); Penn Alleqh Coal Co., 

3 FMSHRC 2767, 2771 (December 1981). . 

Coal Mine Inspector Robert Baker issued Citation No. 3583185 

on December 26, 1991. 

The ventilation plan referenced in the Citation clearly and 

unequivocally states: "The minimum velocity of air reaching the 

intake end of the lonqwall face shall be 30,000 CFM." (See Tab 

A; Ex. 1, Diagram at pg. 4 in Energy West motion). 

1188 
The plan does not in any manner qualify the requirement of 

30,000 CFM. The word "shall" is not ambiguous as explained below. 

As previously noted, while the Secretary agrees that at the 

time the Citation was issued, coal was not being produced since 

the MMU was being repaired, the Secretary contends that the air 

quantity must be maintained at 30,000 CFM regardless of whether 

or not coal is actually being mined at any given moment. Such 

contention is based on the regulations: 

30 c.F.R. S 75.301 states in pertinent part that: 

••• the minimum quantity of air reaching the intake 

end of a pillar line shall be 9000 cubic feet a minute 

The authorized representative of the Secretary 

may require in any coal mine a greater quantity and 

velocity of air when he finds it necessary to protect 

the health or safety of miners. (Emphasis added]. 

30 C.F.R. S 75.301-3(c) states that "When longwall 

mining is practiced the volume of air shall be 

measured in the intake entry or entries at the intake 

end of the longwall face and the longwall shall be 

constructed as a pillar line." 

Thus, the C.F.M. that is required by the District Manager 

and specified in the approved ventilation plan is to be maintained at the intake end of the pillar line. The word "shall" 

means at all times, since there is no qualifying language restricting the requirement to when coal is being mined. 

30 C.F.R. S 75.301-3(c) requires that longwall face~ are to 

be: "Constructed as a pillar line" for determining air quantity 

locations. This means that the intake end of the pillar line 

applies to longwall faces. Since the air quantity must be maintained at all times at the intake end of the pillar line, the 

30,000 CFM, in Deer Creek's case, must be maintained at all 

times. I find no ambiguity in theses requirements. 

Also, as stated in the Affidavit of MSHA Supervisory Mining 

Engineer, William Reitze, the reasons for requiring this air 

quantity at this location at all times is to ensure that during 

idle face periods not only is there sufficient air to maintain 

the face clear of methane and other harmful or noxious gases but 

that there is an adequate volume of air to ensure that the bleeder system is being provided with sufficient air to control methane and other harmful or noxious gases. He indicates therein 

that it has always been understood by operators and enforced by 

MSHA that the quantity of air at the last open crosscut and at 

the intake end of the pillar line must remain constant at or 

above the approved ventilation plan quantity, regardless of 

whether coal is being produced or the MMV is idle. This ration1189 
ale satisfactorily rebuts any contention that the Secretary's 

interpretation would result in an absurdity. 

In Energy Fuels Coal. Inc., 12 FMSHRC 698 (April 1990) it 

was held: 

It is a cardinal principle of atatutory and regulatory 

interpretation that words that are technical in nature 

"are to be given their usual, natural, plain, ordinary, and commonly understood meaning." Old Colony R. 

Co. v. Commissioner of Internal Revenue, 284 u.s. 552, 

560 (1932), When the meaning of the language of a 

statute or regulation must be interpreted according to 

its terms the ordinary meaning of its words prevails, 

and it cannot be expanded beyond its plain meaning. 

Old Colony R. Co. v. Commissioner of Internal Revenue, 

supra; see Emery Mining Corp. v. Secretary of L&bor, 

783 F.2d 155, 159 (lOth Cir. 1986). 

The issue presented in this matter, i.e., whether the plan 

requirements of 30,000 CFM apply only when coal is actually being 

produced and not during idle periods, has been addressed and 

decided by the Commission. 

In Mid-Continent Coal and Coke, 3 FMSHRC 2502, 2504 (Nov. 

1981), the Federal Mine Safety and Health Review Commission held: 

The parties do not dispute that the requirements of a 

duly adopted ventilation plan are generally enforceable under the Act. Zeigler Coal Company, 4 IBMA 30, 

aff'd 536 F.2d 398, 409 (D.C. Cir.) (April 22, 1976). 

Here, the area cited was a working face, the continuous miner had just backed away form the face to allow 

the crosscut to be cleaned up and ventilation reestablished for further cutting in the production of coal. 

A temporary halt in cutting, mining, or loading to 

permit other mining activities in preparation for 

further mining and production does not interrupt the 

ventilation requirements of 30 C.F.R. S 75.316. ~ 

hold otherwise would allow unsafe conditions, as in 

this instance, to escape sanction unless the operator 

were caught in the act of cutting, mining, or loading. 

The Judge's finding of violation ia affirmed. 

(Emphasia aupplied]. 

Commission Judges have uniformly adopted the reasoning of 

Mid-Continent coal and Coke, supra. 

In Consolidation Coal Company, 3 FMSHRC 2207 (September 

1981), Judge Gary Melick affirmed a violation of Section 75.316 

for the failure by the operator to ventilate an entry with a line 

curtain. Although the evidence established that the certain had 

been in place 2.5 hours prior to the issuance of the Citation, 

but had been taken down for some unexplained reason, the Judge 

1190 
found that the absence of the curtain at the time the Citation 

was issued was still a violation. 

In Windsor Power House Coal Company, 2 FMSHRC 671 (March 

1980) (Commission review denied April 21, 1980), Judge Melick 

affirmed a violation of Section 75.316 because of the operator's 

failure to maintain adequate ventilation oat a working face as 

required by its ventilation plan. Even though the evidence 

showed that mining was temporarily halted in the cited area 

because of a mechanical breakdown, it was held that the absence 

of the required ventilation constituted a violation. 

In Co-op Mining Company, 5 FMSHRC 2004 (November 1983), 

Judge Virgil Vail affirmed a violation of Section 75.316, because 

of an operator's failure to install a line curtain as required by 

its ventilation plan. Although Judge Vail considered the fact 

that the curtain may have been down for only a short time due to 

possible rib sloughage, he found that such an unusual occurrence 

was no defense. Citing Zeigler Coal Co., 4 IBMA 30 (1975), 

aff'd, 536 F.2d 398 (D.C. Cir. 1976), and Consolidation Coal Co., 

supra, the Judge found that when an operator departs from his 

ventilation plan, a violation of Section 75.316 is established. 

In Consolidation Coal Co.m, 8 FMSHRC 612 (April 1986), Judge 

John J. Morris affirmed a violation of Section 75.316, because of 

the operator's failure to maintain the proper air velocity at a 

face, as required by its ventilation plan, even though the air 

reaching the face may have been interrupted for no more than 30 

seconds because of a ventilation curtain being pushed against a 

rib by a shuttle car trailing cable. 

In Western States Coal Corp., in a decision that preceded 

the Commission's Mid-Continent Coal and Coke holding, Judge 

George Koutras found: 

Failure by an operator to comply with any provision of 

its ventilation plan constitutes a violation of the 

provisions of 30 C.F. R. S 75.316. Pe&body eoal 

Cgmpany, 8 IBMA 121 (1977)1 Valley Camp Coal Company, 

3 IBMA 176 (1974)1 Zeigler Qoal Cgmpany y. Kleppe, 536 

F.2d 398 (D.C. Cir. 1976). The fact that coal was not 

being cut or loaded at the precise moment that the 

Inspector arrived on the scene and observed that the 

line curtain had not been advanced as required is 

immaterial, and respondent's proposed interpretation of the standard cited is rejected. · 

Western states Coal Corp. 1 FMSHRC 2059, 2061 - 1st unnumbered 

FMSHRC Bluebook at page 24 (March 1979). 

1191 
Since the minimum quantity of air reaching the intake end of 

the longwall face was less than 30,000 CRFM as required by the 

Approved Ventilation Plan, the contest lacks merit and the 

subject citation is AFFIRMED. 

ORDIR 

1. Docket No~ WEST 92-216-R is DISMISSED. 

2. In related Penalty Docket No. WEST 92-421 the penalty 

of $20 stipulated to by the parties in the premises is here 

ASSESSED for Citation No. 3583185 and Respondent SHALL PAY the 

same TO THE SECRETARY OF LABOR within 30 days from the date of 

issue of this decision. 

Distribution: 

~£???. ~/}, Michael A. Lasher, Jr. 

Administrative Law Judge 

Thomas C. Means, Esq., ·J. Michael Klise, Esq., CROWELL & MORING, 

1001 Pennsylvania Avenue, NW, Washington, DC 20004-2505 

(Certified Mail) 

Robert J. Murphy, Esq., Office of the Solicitor, u.s. Department 

of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, co 80294 (Certified Mail) 

ek 

1192 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUH "L, 11993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

. . 

. . Docket No. WEVA 92-1194 

A.C. No. 46-01455-03928 R 

v. . . Osage No. 3 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

. . 

: 

Appearances: 

Before: 

PARTIAL DECISION 

Wanda Johnson, Esq., Office of the Solicitor, 

u.s. Department of Labor, Arlington, Virginia, for 

the Petitioner; 

Daniel E. Rogers, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for the 

Respondent. 

Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding filed by the petitioner 

against the respondent pursuant to section 110(a) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a), seeking 

civil penalty assessments for thirteen (13) alleged violations of 

certain mandatory safety standards found in Part 75, Title 30, 

Code of Federal Regulations. 

The respondent filed a timely answer and contest, and in 

response to a prehearing order the parties informed me that they 

proposed to settle eleven (11) of the alleged violations. During 

a subsequent prehearing conference, the parties presented 

arguments in support of their proposed settlements, and they were 

tentatively approved by me pending disposition of the two 

remaining alleged violations which the parties were unable to 

settle. The citations, initial assessments, and the settlement 

amounts are as follows: 

30 C.F.R. 

Citation No. Date Section Assessment Settlement 

3716253 9/9/91 75.1105 $20 $20 

3716194 9/11/91 75.1403-S(d) $227 $227 

3716047 10/11/91 75.1403-9(c) $276 $276 

3716050 10/11/91 75.220 $276 $276 

1193 
30 C.F.R. 

Citation No. Date Section Assessment Settlement 

3716051 10/11/91 75.202(a) $206 $206 

3716052 10/11/91 75.1403 $227 $206 

3716121 10/16/91 75.313 $276 $276 

3716122 10/17/91 75.1403-9(a) $227 $227 

3315900 10/23/91 75.314 $413 $248 

3716127 10/25/91 75.400 $276 $166 

3716128 10/25/91 75.1100-3 $276 $166 

Qiscussion 

In support of the proposed settlements, the parties presented 

information pertaining to the six statutory civil penalty 

criteria found in section 110(i) of the Act. In addition, in the 

course of two prehearing conferences, the parties discussed the 

circumstances surrounding the issuances of the contested 

citations, and their proposed settlement dispositions. The 

respondent agreed to pay the full amount of the proposed civil 

penalty assessments for eight (8) of the citations and to accept 

the citations as issued. With respect to Citation Nos. 3315900, 

3716127, and 371628, the petitioner's counsel agreed to delete 

the "S&S" designations on the ground that the evidence at trial 

would not support those findings, and the respondent agreed to 

pay the modified civil penalty assessments for those citations in 

settlement of the violations. 

With regard to the two remaining citations in this proceeding 

(Citation Nos. 3716124 and 3716254), the parties were unable to 

reach a settlement, and the matters were consolidated for hearing 

with several other cases heard in Morgantown, West Virginia, on 

June 15, 1993. In the course of the hearings, the parties 

informed me that after further discussions and negotiations, they 

proposed to settle Citation No. 3716124, and they were afforded 

an opportunity to present supporting arguments on the record. 

Section 104{a) "S&S" Citation No. 3716124, concerns an alleged 

violation of mandatory safety standard 30 C.F.R. § 75.604(b), 

issued by MSHA Inspector Lynn Workley on October 25, 1991, for an 

improperly made splice in a shuttle car trailing cable. The 

petitioner's counsel stated that after further consultation with 

the inspector, who was present in the courtroom, the inspector 

agreed that the location of the splice made it unlikely that 

anyone would come in contact with it, and that under the 

circumstances, if the matter were to proceed to trial, the 

petitioner did not believe that the evidence would support the 

inspector's 11S&S11 finding. I take note of the fact that the 

splice was redone and properly insulated and sealed within 15 

minutes after the inspector issued the citation. The initial 

proposed penalty assessment for the violation was $276, and the 

parties proposed to settle the matter by deleting the 11S&S11 

1194 
finding, and the respondent agreed to pay a penalty assessment of 

$166, for the violation and modified citation. 

Findings and Conclusions 

After careful consideration of the pleadings, arguments, and 

submissions in support of the proposed settlement, and pursuant 

to the requirements of Commission Rule 31, 29 C.F.R. § 2700.31, 

the proposed settlement was approved from the bench, and my 

decision is herein reaffirmed. In addition, my previous 

tentative decisions approving the settlements with respect to the 

aforementioned eleven (11) citations are likewise finalized and 

reaffirmed. 

With respect to section 104(a) Citation No. 3176254, issued on 

September 9, 1991, citing an alleged violation of 30 C.F.R. 

§ 75.1105, the parties jointly moved that this citation be 

consolidated with three similar citations issued by the same 

inspector and which are pending for trial before Judge William 

Fauver in Docket No. WEVA 92-1193. In support of their oral 

motion, the parties confirmed that all of these contested 

section 75.1105 alleged violations involve identical factual and 

legal issues and that in the interest of judicial efficiency they 

should all be adjudicated by one judge. The motion was granted. 

ORDER 

The respondent IS ORDERED to pay civil penalty assessments in 

the settlement amounts shown above in satisfaction of each of the 

contested citations in question. Payment is to be made to the 

petitioner (MSHA) within thirty (30) days of the date of this 

partial decision and order. Further administrative action will 

be taken to transfer the remaining Citation No. 3716254, to 

Judge Fauver, and the parties will be further notified when this 

is done. 

~4\,~ Administrative Law Judge 

Distribution: 

Wanda Johnson, Esq., Office of the Solicitor, u.s .. Department of 

Labor, 4015 Wilson Blvd., Rm. 516, Arlington, VA 22203 

(Certified Mail) 

Daniel E. Rogers, Esq., Consolidation Coal Company, Consol Plaza, 

1800 Washington Road, Pittsburgh, PA 15241-1421 (Certified 

Mail) 

jml 

1195 
PBDBRAL Jll:IIB SAPBTY DID BBALTB REVIEW COIDUSSIOII 

CLIFFORD MEEK 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN ~ 2 1993 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. LAKE 90-132-DM 

MSHA Case No. UC-MD-90-06 

ESSROC CORPORATION, 

Respondent 

Appearances: 

Before: 

DECISION ON REMAND 

Robert J. Tscholl, Esq., Canton, OH, for 

Complainant; 

John c. Ross, Esq., and Monty Donohew, Esq., 

Canton, OH, for Respondent. 

Judge Fauver 

On April 27, 1993, the Commission affirmed the judge's 

decision except for the failure to deduct Meek's unemployment 

compensation from backpay. It remanded for "further findings on 

the amount of unemployment compensation Meek received during the 

backpay period" with direction to deduct the sum from Meek's 

backpay award. 

After remand, the parties moved the judge for various forms 

of relief, with a number of contested issues. A hearing was held 

at Cleveland, Ohio on June 9, 1993. 

The issues were simplified and narrowed to the following, 

all other issues raised by the parties being withdrawn or 

abandoned: 

1. Does the judge have jurisdiction to award the 

miscellaneous expenses specified in Paragraph 2 of Exhibit C-1 

(Mr. Tscholl's letter to Mr. Ross, dated May 13, 1993)? If so, 

are the expenses reasonable? 

2. Does the judge have jurisdiction to update the backpay 

award and award of an attorney fee and litigation costs incurred 

since March 2, 1992? If so, are the sums presented in Exhibit 

C-1 accurate and reasonable? 

3. Should the judge grant Respondent's oral motion to stay 

his reinstatement and backpay orders pending any appeal to the 

courts? 

1196 
After evidence was taken and before oral argument on 

above issues, the judge issued a bench provisional order 

expressing the intention of his reinstatement and backpay 

as to two points, giving an opportunity to the parties to 

any objection or disagreement with the provisional order. 

minor editing, these points are: 

the 

orders 

raise 

With 

1. Respondent's liability for backpay, interest, an 

attorney fee and litigation costs will continue to 

accrue until Respondent, in writing, offers Complainant 

reinstatement in compliance with the reinstatement 

order of December 24, 1991, and either (A) Complainant 

accepts reinstatement and goes to work or (B) 

Complainant rejects the offer or within a reasonable 

period (which the judge would deem to be five business 

days) after receiving the offer, Complainant fails to 

accept the offer. Until either event (A) or (B) 

occurs, Respondent shall continue to be liable for 

backpay, interest, a reasonable attorney fee, and 

litigation costs incurred after March 2, 1992, as well 

as the initial award of backpay, interest, an attorney 

fee and litigation costs up to March 2, 1992. 

2. The intention of the judge's backpay award of 

March 31, 1992, is that Complainant shall receive all 

of such award without reduction for any attorney fee 

(e.g. a contingency fee); and that the only attorney 

fee allowable in this case will be the attorney fee 

awarded by the judge. 

The parties indicated they had no objection to the above 

interpretation of the judge's reinstatement and backpay orders. 

Recognizing this, Respondent moved to stay the orders pending any 

appeal to the courts. 

DISPOSITION OF THE ISSUES 

1. A judge's jurisdiction on remand is limited to the 

issues specifically remanded by the Commission. See generally 

Hermann v. Brownell, 274 F.2d 842, 843 (9th Cir.), cert. denied, 

364 U.S. 821 (1960); Secretary on behalf of Mullins v. 

Consolidation Coal Co., 4 FMSHRC 1622, 1624, n.2 (1982); and 

Boswell v. National Cement Company, 15 FMSHRC ___ (June 7, 1993). 

Here, the Commission has directed the judge to determine the 

amount of unemployment compensation Complainant received in the 

backpay period and to deduct that sum from the backpay award. 

The judge's Final Order of March 31, 1992, awarded $24,000.00 in 

backpay and interest for the period from February 27, 1990, 

through March 2, 1992, and an attorney fee and litigation costs 

of $17,065.80 for the same period. The order then provided that 

liability for backpay, interest, an attorney fee and litigation 

costs incurred after March 2, 1992, would continue to accrue 

until conclusion of the case including any appeals. 

1197 
I conclude that my jurisdiction on remand is limited to 

finding and deducting the unemployment compensation received in 

the period for the initial backpay award (i.e., from February 27, 

1990, through March 2, 1992). The evidence indicates that Meek 

received $6,942.00 in unemployment compensation during this 

period. His net backpay with interest through March 2, 1992, is 

therefore $17,058.00 ($24,000.00 less $6,942.00). 

As to damages incurred after March 2, 1992, I observe that 

the Commission affirmed the judge's decision in all respects 

other than the unemployment compensation point, including the 

provision that: 

Respondent's liability for back pay, interest and an 

attorney fee and litigation costs after March 2, 1992, 

shall continue to accrue until this case including any 

appeals is concluded. [Judge's Final Order, March 31, 

1992.] 

Respondent states that it intends to appeal for judicial 

review of the Commission's decision. There is therefore no 

necessity at this time to make findings on damages incurred after 

March 2, 1992. If the case is appealed, any final order on 

damages would have to be updated after the appeal. If there is 

no appeal, Complainant may seek a court injunction to enforce the 

judge's reinstatement order and order for monetary relief as 

final orders of the Commission. In such an action, it may be 

expected that the court will remand the case to the Commission 

for findings as to the final amounts of backpay, interest, a 

reasonable attorney fee and litigation costs due to Complainant. 

In either case, any final computation of backpay incurred after 

March 2, 1992, will be subject to deduction for unemployment 

compensation in accordance with the Commission's ruling. 

2. Section 106(c) of the Act provides that "The 

commencement of a [judicial review) proceeding .•. shall not, 

unless specifically ordered by the court, operate as a stay of 

the order or decision of the Commission •••. " I find that the 

question of a stay of the judge's reinstatement order and order 

for monetary relief should be addressed to the court in the event 

of an appeal, and that no adequate showing has been made for a 

stay by this judge. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. The Final Order dated March 31, 1992, is AMENDED to 

change the backpay award at p. 2, to read: "Backpay and Interest --- $17,058.00 (after deducting $6,942.00 for unemployment 

compensation received in this period)" and to change the total 

award to read "$34,123.80" instead of "$41,065.80" for the period 

up to March 2, 1992. In all other respects, the Final Order is 

unchanged. 

1198 
2. Complainant's motion to find at this time the amounts of 

backpay, interest, an attorney fee and litigation costs incurred 

after March 2, 1992, is DENIED. 

3. Respondent's motion to stay the judge's reinstatement 

order and order for monetary relief is DENIED. 

Distribution: 

M~ 4AMVV\._ 

William Fauver 

Administrative Law Judge 

Robert J. Tscholl, Esq., Roetzel & Andress, 220 Market Avenue, 

south, Suite 520, Canton, OH 44702 (Certified Mail) 

John c. Ross, Esq., Monty Donohew, Esq., Ross & Robertson, P. o. 

Box 35727, Canton, OH 44735 (Certified Mail) 

jfcca 

1199 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLJ ttNRZH!3 vlS~~A 22041 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PENN 92-895 

A. C. No. 36-00840-03845 

v. 

Mine No. 33 

BETHENERGY MINES, INC., 

Respondent 

Appearances: 

DECISION 

Pamela W. McKee, Esq., u.s. Department of Labor 

Office of the Solicitor, Arlington, Virginia for 

Petitioner; 

R. Henry Moore, Esq., Buchanan Ingersoll 

Professional Corporation, Pittsburgh, 

Pennsylvania, for Respondent. 

Before: Judge Weisberger 

Statement of the Case 

This case is before me based on a petition for assessment of 

civil penalty filed by the Secretary (Petitioner) alleging a 

violation by the operator of 30 C.P.R. § 75.316. Subsequent to 

notice, a hearing was held in Johnstown, Pennsylvania on 

March 10, and 11, 1993. At the hearing, John A. Kuzar, Gerald A. 

Krosunger and Gene Ray testified for Petitioner. Robert L. 

Price, Edward J. Fedorko, Stephen Horvath, and John M. Gallick 

testified for Respondent. 

On May 11, 1993, Respondent filed its Brief. Petitioner's 

Brief was filed May 13, 1993. On May 19, 1993, Petitioner filed 

a Reply Brief. 

Findings of Fact and Discussion 

1. In May 1992, the 10 Left (LT) Longwall Section at 

Respondent's Cambria Slope Mine No. 33, consisted of a return, an 

intake, and a belt entry. The intake entry was between the 

return and belt entries. 

2. Four carbon monoxide sensors were situated in the belt entry 

to provide early warning, by way of a visual and auditory alarm, 

of carbon monoxide (CO) in the atmosphere (indicating flaming or 

combustion). One was placed 100 feet outby the drive at the head 

1200 
of the belt. The second sensor was situated 1,000 feet inby. 

The third sensor was 1,000 inby the second. The fourth sensor 

was 100 feet outby the tail of the belt. 

3. According to the Guidelines for the Installation and 

Maintenance of a Mine Wide Carbon Monoxide Detection System at 

cambria Slope Mine No. 33C BethEnergy Mines Inc .. CMSA. Dan 

System), {"Ventilation Plan"), it is required that the co sensors 

emit a visible and audible "warning" alarm when exposed to carbon 

monoxide at a level more than 10 parts per million ("PPM"), above 

the ambient1 but less than 15 PPM. An "unannounced" alarm is 

required to be emitted when the sensor is exposed to carbon 

monoxide at a level of 15 PPM or more, and the source is unknown. 

This alarm results in the activation of the fire defense and 

evacuation plan. 

4. In actual practice, the carbon monoxide sensors at issue 

were set to provide a "warning" at 4 PPM and an "alarm" at 7 PPM. 

The presence of carbon monoxide at these levels is evidence of a 

smoldering, flameless, combustion. 

5. The Ventilation Plan requires that "Air velocity along the 

belt will be no less than 50 FPM." 

6. On May 16, 1992, John A. Kuzar an MSHA inspector-supervisor, 

and Gene Ray, an MSHA inspector, inspected the intake entry of 

the 10 (LT) longwall section at the subject mine. An air 

reading at the mouth of the intake entry indicated a velocity 

above 50 feet per minute ("FPM"). An air reading taken at the 

overcast of the mouth of the entry in question on May 19, 1992 

indicated a velocity of 107 FPM. The section had extended only a 

few hundred feet on May 19, 1992, and the inspectors were 

concerned that air velocity would decrease as the entry 

lengthened. According to Kuzar, the mine foreman, Edward J. 

Fedorko, " ... was informed that there could be a problem 

maintaining the 50 velocity on the belt if someone opens doors or 

knocks one of their checks down on the track. He agreed. I put 

him on notice that they would have to watch the amount of air 

because ten left could be warranting without fire protection." 

(sic) (Tr. 55) 

According to Fedorko, it was his recollection that the 

discussions with Kuzar on May 19, regarding ventilation, related 

to the latter's concern about the use of check curtains. 

However, Fedorko did not explicitly rebut or contradict the 

testimony of Kuzar that he (Fedorko) was informed by Kuzar of the 

need to pay attention to the velocity of the air in the belt 

entry. Nor did Stephen Horvath, the mine superintendent, who was 

1

The ambient, considered as the normal background carbon 

monoxide present in the atmosphere, was set at 11 0 11 • 

1201 
present on May 19, when Kuzar spoke to Fedorko, specifically 

contradict Kuzar's testimony. I therefore accept Kuzar's version 

of the conversation he had with Fedorko and Horvath on May 19, 

1992. 

7. On July 6, 1992, at the end of the day shift, Horvath was 

informed by the foreman of the day shift that the air velocity in 

the belt entry, 10 LT, was more than 50 FPM, but was less than 

normal. Horvath assigned Tom Corber, the shift foreman of the 

next shift, to check the beltline and "make sure everything was 

the way it was supposed to be." (Tr. 252) (sic). According to 

Horvath, Corber advised him that readings that he took at 

"several" locations indicated air velocity in the 70's, and that 

independent readings taken by the Section foreman indicated an 

air reading of 77 FPM. (Tr. 252) 

8. Examinations of air velocity in the belt entry on the day and 

night shifts on July 6, on all three shifts July 7-8, and on the 

midnight shift, July 9, all indicated velocities in excess of 50 

FPM. 

9. On July 9, 1992, Kuzar inspected the 10 LT longwall section 

at the sub~ect mine along with Gerald A. Krosunger, an MSHA 

inspector. At about 9:30 a.m. Kuzar took 5 traverse smoke tube 

tests of the air movement in the belt entry 100 feet outby 

station 7920, which indicated air velocity of 26.54 feet per 

minute. 3 An order was issued under Section 104(d) (2) of the Act, 

alleging a violation of 30 C.F.R. § 75.316. 

10. About 40 minutes after the Order was issued, Horvath and 

Fedorko traveled from other areas of the mine to the 10 Left 

section. Along the way, Fedorko made a minor adjustment in a 

check curtain that was installed in the track entry. This 

adjustment did not affect the ventilation in the belt entry in 

the 10 left section. Once Fedorko entered the 10 left belt 

entry, he took an anemometer reading near the mouth of the 

section between survey stations 7778 and 7785. The reading 

indicated a velocity of 80 FPM. As he walked up towards the 

section, he took four or five more readings along the belt, and 

they were all between 70 and 80 FPM. When he arrived at the 

tailpiece and met with Kuzar and Krosunger, he took a reading 

that indicated a velocity of 68-70 FPM. 

2

0n July 9, 1992, Krosunger had not yet received his 

certification as an authorized representative of the Secretary. 

3In taking the smoke tube test, Kuzar and Krosunger stood 10 

feet apart, and timed the flow of smoke between them. An order 

was issued alleging a violation of the Ventilation Plan. 

1202 
11. Approximately 1 1/2 hours after the order in question was 

issued by Kuzar, Horvath took an anemometer reading of 67 FPM at 

the location where Kuzar had taken the initial smoke tube tests. 

Kuzar then took smoke tube tests which indicated an air velocity 

of 53 FPM and the order was terminated. 

Discussion and Additional Findings of Fact 

I. Violation of the Ventilation Plan 

It is the position of Respondent, that Petitioner has not 

met his burden of proof in establishing that a violation occurred 

herein i.e., that the air velocity was less than 50 FPM. 

Respondent argues, in essence, that readings taken by Fedorko 

after the order in question was issued, and all prior readings 

indicated air velocities more than 50 FPM, including one taken a 

few hours prior to the issuance of the order. Respondent also 

argues that the smoke tube readings may have been inaccurate. In 

this connection, Respondent cites the fact that Kuzar utilized a 

10 percent correction factor, which reduced the figure arrived at 

by results of the smoke tube tests by 10 percent, whereas Horvath 

testified that he has never utilized such a correction factor. 

Respondent also argues, on the basis of responses given by 

Krosunger on cross-examination, that in performing the smoke 

tube test, at the time of the arrival of the smoke Kuzar had to 

simultaneously observe the smoke, and the face of his watch. 

Respondent also points to the disparity between the smoke tube 

test results indicating an air velocity of 53 FPM which formed 

the basis of the termination of the Order at issue, and the 

anemometer readings, on two different types of anemometers, of 66 

and 67 FPM. I do not find Respondent's arguments to be 

persuasive for the reasons that follow. 

The Ventilation Plan requires that air velocity in the area 

in question be at a minimum 50 FPM. Five smoke tube tests taken 

by Kuzar indicated a velocity of only 26.54 FPM which, even 

adding on to this figure the 10 percent that had been reduced by 

Kuzar as a correction factor, results in a velocity of 26.89 FPM 

which is significantly less than the required 50 FPM. Anemometer 

readings taken before and after those taken by Kuzar indicated an 

adequate velocity of air, and there was a disparity between the 

smoke tube tests and anemometer test results at the time of 

termination. However, I place most significance on the fact 

that there were no anemometer tests taken at the same time, at 

the same place as those smoke tube tests taken by Kuzar which 

indicated a velocity less than 50 FPM. Hence, there are no 

anemometer results, or other physical evidence which directly 

contradict the results obtained by the smoke tube tests taken by 

1203 
Kuzar. 4 I find that the smoke tube tests taken by Kuzar 

establish that at about 9:00a.m., July 9, the air velocity in 

the belt entry at the site of the tests was significantly less 

than so FPM. Hence, I conclude that Respondent did violate its 

Ventilation Plan, and hence a violation 30 C.F.R. § 75.316 

occurred as alleged in the order at issue. 

II. Significant and Substantial 

In analyzing whether the facts herein establish that the 

violation was significant and substantial, I take note of the 

recent decision of the Commission in Southern Ohio Coal Company, 

13 FMSHRC 912, (1991), wherein the Commission reiterated the 

elements required to establish a significant and substantial 

violation as follows: 

We also affirm the judge's conclusion that the 

violation was of a significant and substantial nature. 

A violation is properly designated as significant and 

substantial "if, based on the particular facts 

surrounding that 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 

4I reject, as mere conjecture, Respondent's argument that 

the smoke tube tests readings may have been inaccurate, as mere 

conjecture. Respondent argues that Kuzar had to simultaneously 

observe smoke and his watch face. This conclusion is not based 

on any portion of Kuzar's testimony, but on responses given by 

Krosunger on cross-examination. In this connection, Krosunger, 

who at the time of the testing stood 10 feet from Kuzar, 

testified as follows on cross-examination: "Q. Okay. So he 

said to you now and then you release the smoke? A. Correct. Q. 

And then the smoke would travel down to Mr. Kuzar? A. Correct. 

Q. And he would look at his watch to see how long it took the 

smoke to travel? A. Correct. Q. And he would do that --- or 

he did that by watching a smoke cloud and simultaneously looking 

at his watch? A. Correct." (Tr. 159) I find this testimony 

insufficient to impeach the test results obtained by Kuzar. 

1204 
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. 

See also Austin Power Co. v. Secretary, 861 F.2d 

99, 103-04 (5th Cir. 1988), aff'g, 9 FMSHRC 2015, 2021 

(December 1987) (approving Mathies criteria). 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)), and also that the likelihood 

of injury be evaluated in terms of continued normal 

mining operations (U.S. Steel Mining Co., Inc. 6 FMSHRC 

1573, 1574 (July 1984); see also Halfway, Inc., 8 

FMSHRC 8, 12 (January 1986)." {Southern Ohio, supra at 

916-917). 

Hence, as elaborated upon by u.s. Steel, supra, in order to 

establish the third element set forth in Mathies supra, it must 

be established that there was a reasonable likelihood of the 

occurrence of an injury producing event, i.e., in this case a 

fire. {Petitioner's Post Hearing Brief, p.15) Petitioner 

concedes that at the time of the violation there was "no evidence 

of fire potential". Petitioner argues that the situation must be 

viewed in terms of continued mining operations, and refers to the 

testimony of the inspectors which Petitioner summarizes as 

follows: "During the normal course of mining, the possibility of 

hot rollers, coal spills, and problems with electrical 

components, the belt drive, or the starter box all contributed to 

the reasonable possibility of a fire, which would go undetected 

for a longer period because of the reduced air velocity." 

(Emphasis added) (Petitioner's Brief P.6) Certainly the fire 

producing conditions referred to by the inspectors could have 

occurred in the normal course of mining, but the record does not 

establish that these conditions were reasonably likely to have 

occurred. To the contrary, I take cognizance of the existence of 

the following conditions within the framework of which it must be 

considered whether a fire was reasonably likely to have occurred: 

the lack of any accumulation of combustible materials along the 

belt; the effect of the height of the belt and the reduction in 

potential for friction between the belt or a belt roller and an 

accumulation of combustible materials; the belt slip switches 

were in good working order, reducing the potential for frictional 

heating of the belt; the belt sequence switches were in good 

working order, reducing the potential for an accumulation of coal 

because of malfunction of an outby belt; the belt was in good 

alignment on July 9, reducing the likelihood of spills or 

frictional rubbing of the belt; there were no electrical defects 

along the belt; there were no defective rollers along the belt; 

the conveyor belt was fire resistant; and the lack of any history 

1205 
of reportable belt fires at the subject mine. 

Within the framework of this record, I conclude that it has 

not been established that there was a reasonable likelihood of 

the occurrence of a fire herein. Accordingly the third element 

of Mathies supra, has not been established. Thus, I conclude 

that it has not been proven that the violation herein was 

significant and substantial. 

III. Unwarrantable failure 

According to Petitioner, the violation herein resulted from 

Respondent's unwarrantable failure. In this connection, 

Petitioner argues that on May 19, 1992, Kuzar had put Respondent 

on notice of his concern that there could be problems with the 

air velocity in 10 left; that management was aware that the air 

velocity was marginal; that when Horvath was informed on July 6, 

1992 that there was a "surge" in the air velocity he should 

thereby have become aware that there were velocity problems in 10 

left; and that Respondent had failed to ensure that velocity 

readings were taken toward the tail where the readings would most 

accurately reflect the velocity along the entire belt entry. For 

the reasons that follow I reject Petitioner's arguments. 

In Emery Mining Corp, 9 FMSHRC 1997, 2004 (December 1987), 

it was determined by the Commission that unwarrantable failure is 

aggravated conduct which constitutes more than ordinary 

negligence. Management was made aware by Kuzar on May 19, that 

there could be problems with the air velocity on the 10 Left 

Section. However, there is insufficient evidence that the 

specific violative condition herein i.e., air velocity below 50 

FPM at approximately 9:30 a.m. on July 9, was the result of 

Respondent's aggravated conduct. There is no evidence in the 

record as to the cause of the decrease in the air velocity 

observed by Kuzar. Nor is there any evidence that the decrease 

in the air velocity below the requirement of the Ventilation Plan 

had existed for any significant period of time. To the contrary, 

testing of the air velocity on July 6, on all three shifts July 7 

and 8, and during the pre-shift examination between approximately 

3:30 a.m. and 4:30 a.m. on July 9, all indicated air velocities 

in excess of 50 FPM. 5 Further, according to Horvath, whose 

testimony I found credible on this point based on observations of 

his demeanor, when he had informed Kuzar on July 10 that he knew 

the air was marginal, he meant to refer to an incident that had 

occurred on July 6, 1992. On that date, he was advised by the 

foreman at the end of the day shift that there was a surge in the 

air velocity, and that although the air velocity was more than 50 

FPM, it was less than normal. It is significant to note that 

5The pre-shift examination of air velocity was made 100 feet 

outby the tail. 

1206 
upon receipt of this information, Horvath assigned the shift 

foreman of the next shift to check the belt entry, and the latter 

reported that air velocity readings were in excess of 50 FPM. 

Within the framework of the evidentiary record as set forth 

above, I conclude that it has not been established that the 

violation herein resulted from any aggravated conduct on the part 

of Respondent. Hence, I conclude that the violation herein did 

not result from any unwarrantable failure on the part of 

Respondent. 

IV. Penalty 

In analyzing the gravity of the violation herein, I find 

that in the event of a fire, or if smoke is present, time is of 

the essence in warning miners to escape, these hazards. In this 

connection, I note that carbon monoxide in a stream of air, as a 

result of a fire or smoke, would travel to the first sensor in 

the belt entry in 2 minutes if the air velocity is 50 FPM. In 

contrast, if the air velocity is only 26 FPM, it would take 

approximately 4 minutes for the air stream to reach the sensor. 

However, it was the testimony of John M. Gallick, who was 

Respondent's Director of Safety at the dates in question, that, 

in essence, in the event of a fire producing co, the relative 

amount of co that would be found in a quantity of air (expressed 

as PPM) is related to the velocity of the air. The lower the 

velocity of the stream of air, the greater would be its 

concentration of co. Accordingly, he opined that a warning 

sensor set at 4 PP~ would detect co in an air stream moving at 

25 FPM at about the same time as a sensor set at 10 PPM7 • I 

accept this testimony since it was not contradicted or impeached. 

I find Respondent's negligence herein to have been mitigated 

by the factors discussed above, III infra. 

Considering all the above, and taking into account the 

remaining factors set forth in Section 110{i) of the Act, as 

stipulated to by the parties on the record at the commencement of 

the hearing on March 10, 1993, I find that a penalty of $200 is 

appropriate for the violation found herein. 

~espondent's actual sensor setting for a warning alarm. 

7

The Plan's requirement for a warning alarm. 

1207 
ORDER 

It is ORDERED that Respondent pay a civil penalty of $200 

within 30 days of this decision. It is further ORDERED that 

Order No. 2689541 be amended to a Section 104(a) citation to 

reflect the fact that the violation cited therein was not as a 

result of Respondent's unwarrantable failure, and was not 

significant and substantial. 

'~ 

., I ' I 

--Av am eJ.sberger . Administrative Law Judge 

Distribution: 

Pamela W. McKee, Esq., Office of the Solicitor, U.S. Department 

of Labor, 3535 Market Street, 14480 Gateway Building, 

Philadelphia, PA (Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll Professional 

Corporation, USX Tower, 57th Floor, 600 Grant Street, Pittsburgh, 

PA 15219 (Certified Mail) 

nb 

1208 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203LEESBURG ~KE 

FALLS CHURCH, VIRGINIA 22041 

JUN 2 31993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 92-1075 

A. C. No. 46-01977-03737R 

v. 

vc No. 12-A Mine 

VALLEY CAMP COAL COMPANY, 

Respondent 

Appearances: 

DECISION 

Pamela s. Silverman, Esq., u.s. Department of 

Labor, Office of the Solicitor, Arlington, 

Virginia, for Petitioner; 

David J. Hardy, Esq., Jackson & Kelly, Charleston, 

West Virginia, for Respondent. 

Before: Judge Weisberger 

This case is before me based upon a Petition for Assessment 

of Civil Penalty filed by the Secretary of Labor (Petitioner) 

alleging a violation by Valley Camp Coal Company, (Respondent) of 

30 C.F.R. § 75.316. Pursuant to notice, the case was heard in 

Charleston, West Virginia, on April 20, 1993. At the hearing, 

Sonny A. Davenport, testified for Petitioner, and Richard Waugh, 

and Harold L. Proctor, testified for Respondent. 

Subsequent to the hearing, on June 1, 1993, Petitioner filed 

a Brief, and Respondent filed an Argument in Support of Findings 

of Fact and Conclusions of Law. Respondent's Reply was received 

on June 7, 1993, and Petitioner's Reply Brief was received on 

June 11, 1993. 

Findings of Fact and Discussion 

I. Violation of 30 C.F.R. § 316 

On April 24, 1990, Sonny A. Davenport, an MSHA inspector, 

inspected Respondent's No. 12-A Mine. He observed that in the 

One Right Section, between entries 2 and 3, there were no 

stoppings in the first two crosscuts outby the face. He also 

observed that there were only check curtains in the 3rd and 4th 

crosscuts outby the face. He issued a Section 104(d) (2) order 

alleging a violation of 30 C.F.R. § 75.316. Section 75.316 

supra, in essence, requires a mine operator to comply with its 

ventilation plan. That plan, as pertinent, provides as follows: 

1209 
"Permanent stoppings shall be erected between the intake and 

return air courses and shall be maintained to and including the 

third connecting crosscut outby the faces of entries ...• " 

{Government Exhibit No. 3, p.3) Respondent has conceded the 

violation, and I find based on the testimony of Davenport, that 

Respondent herein did violate Section 316, supra. 

II. Unwarrantable Failure 

According to the uncontradicted testimony of Davenport, when 

he examined the return entry at approximately 9:00 a.m. on 

April 24, there were permanent stoppings only up to the 5th 

crosscut outby the face, and there were no permanent stoppings in 

the 4th and 3rd crosscuts outby the face, in violation of the 

ventilation plan. Thus, Respondent initially had been in 

violation of the ventilation plan when the present 2nd crosscut 

outby the face was initially cut through, as the record does not 

establish that there were permanent stoppings installed in the 

3rd crosscut outby the face {the present 4th crosscut outby the 

face)as required by the ventilation plan. The record does not 

contain the testimony of any persons having personal knowledge as 

to the amount of time that elapsed between when Respondent was 

first in violation of the ventilation plan, and when the 

violative conditions were observed and cited by Davenport. 1 Nor 

is there any documentary evidence on this point. 

1

According to Respondent's Safety Director, Richard Waugh, 

it takes approximately an hour to cut a 30 foot break or crosscut 

between two entries, and its takes approximately an hour and 

a-half to cut an advance into the face, which is a 45 foot cut. 

There is no evidence in the record as to the actual mining 

sequence that took place i.e., the number of cuts taken between 

the time the violative condition initially occurred, and the 

state of development of the section as observed by Davenport on 

April 24. According to Harold L. Proctor, who was the foreman of 

the day shift at the time in question, a sequence of mining 

straight across all six entries, as depicted in numerical order 

on Government Exhibit No. 4, was the sequence that was used "most 

of the time". {Tr.120) Considering the number of cuts in this 

sequence, and the lack of coal production during the mid-night 

shifts, it would have taken approximately 26 hours for mining to 

have progressed from the time the crosscut creating the violative 

condition was cut through, until the state of development was in 

place as observed by Davenport. However, according to Proctor, 

Respondent also utilized other sequences "a lot" {sic) {Tr.121) 

in which only three entries were advanced at a time. Under this 

sequence approximately 18 1/2 hours would have elapsed between 

the time the violative condition was created, and the extent of 

the development of the section that was observed by Davenport. 

1210 
The Preshift Mine Examiner's Report for the area in question 

for April 23, 1990, indicates that an examination was made 

between 2:00 p.m. and 2:30 p.m. but there is no notation that 

stoppings were needed. However, the Preshift Mining Examiner's 

Report for April 24, 1990, for the area in question indicates an 

examination between 4:00p.m. and 4:30p.m., and notes as 

follows: "need stopping intake and return". The Preshift Miner 

Examiner's Report for April 23, 1990, indicates an examination 

of the area in question between 9:30p.m. and 10:30 p.m., and 

contains the following notation: "need stoppings intake and 

return". 

There is insufficient evidence in the record that Respondent 

had taken timely action to correct the violative conditions. 

According to Davenport, when he made his inspection on April 24, 

no one was working on constructing the stoppings, and he did not 

observe any stacks of blocks or construction materials. Richard 

Waugh, Respondent's Safety Director, who was present with 

Davenport, did not indicate that he observed any work being 

performed on the construction of stoppings. However, he 

indicated that Harold Proctor, the day shift foreman, had 

informed him on April 24, after Davenport issued the order in 

question, that when the crew had first arrived on the section 

that day, he (Proctor) had assigned two men to get blocks for the 

stoppings. However, Proctor testified that he did not remember 

talking to Waugh, nor did he remember anything about the 

construction of stoppings on the morning in question. Nor did he 

recall telling two Inen on the crew to get blocks for stoppings. 

In essence, Respondent argues that it fully heeded all the 

notations in the Preshift Mine Examiner's Report, and did all the 

requisite work with the exception of the construction of the 

stoppings in the return entries. However, no evidence was 

adduced by personnel having personal knowledge as to why 

Respondent had not installed permanent stoppings as required by 

the ventilation plan in a timely fashion i.e., no evidence was 

presented to mitigate its negligent action in this regard. In 

this connection, I find that the record establishes that: (1) 

Respondent initially violated its plan when it cut through the 

present second crosscut outby the face without constructing a 

permanent stopping in the third crosscut outby the face (the 

present 4th crosscut outby); (2) Respondent continued mining 

until, when observed by Davenport on 9:00 a.m. April 24, the face 

had advanced, and an additional crosscut had been cut; and (3) 

when observed by Davenport, Respondent was in violation of having 

no permanent stoppings at both the 3rd and 4th crosscuts outby 

the face. 

Within the framework of the above evidence, I conclude that 

the degree of Respondent's negligence herein was more than 

1211 
ordinary, and constituted aggravated conduct. 2 (See, Emery 

Mining Corp., 9 FMSHRC 1997, 2004 (1987)). 

III. Penalty 

Although the gravity of the violation herein was low 

considering the fact that there was no methane present, and the 

air velocity was more than adequate, the violation resulted from 

Respondent's high degree of negligence as set forth above (II, 

infra). Taking this factor into account, as well as the other 

statutory factors set forth in Section 110(i) of the Act, as 

stipulated to by the parties at the hearing, I conclude that a 

penalty of $500 is appropriate for the violation found herein. 

ORDER 

It is hereby ORDERED that the Order issued by the inspector 

be affirmed as written. It is further ORDERED that Respondent 

shall, within 30 days of this decision, pay $500 as a civil 

penalty for the violation found her;6f. ~ 

~sberger Administrative Law Judge 

Distribution: 

Pamela s. Silverman, Esq., Office of the Solicitor, u.s. 

Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington, 

VA 22203 (Certified Mail) 

David J. Hardy, Esq., Jackson & Kelly, P.O. Box 553, Charleston, 

WV 25322 (Certified Mail) 

nb 

2

Davenport indicated that in his view unwarrantable failure 

means "knew or should have known" (Tr.54). It thus appears that 

he did not use the proper test, as set forth by the Commission in 

Emery, supra, in concluding that Respondent's negligence herein 

constituted an unwarrantable failure. I find however, based upon 

a de novo analysis of the record, that the evidence before me 

establishes an unwarrantable failure, as defined in Emery supra, 

on the part of Respondent. 

1212 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 2 31993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. YORK 92-124-M 

A.C. No. 18-00035-05508 

v. 

Medford Quarry 

GENSTAR STONE PRODUCTS CO., 

Respondent 

Appearances: 

Before: 

DECISION 

Gayle Green, Esq., Office of the Solicitor, 

u.s. Department of Labor, Philadelphia, 

Pennsylvania, for the Petitioner; 

Kevin Sniffen, Esq., Genstar Stone Products 

Company, Hunt Valley, Maryland, 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 110(a)of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 820(a), seeking a civil penalty assessment of 

$168 for an alleged violation of mandatory safety standard 

30 c.F.R. § 56.14131(a), which requires seat belts to be provided 

and worn in haulage trucks. The respondent filed a timely 

contest and answer conceding the fact that the cited truck 

operator was not wearing the seat belt, but contesting the 

inspector's finding that the violation was "significant and 

substantial" (S&S). A hearing was held in York, Pennsylvania, 

and the parties filed posthearing briefs which I have considered 

in the course of my adjudication of this matter. 

Issues 

The issues presented in this proceeding are (1) whether the 

respondent has violated the cited standard as alleged in the 

proposal for assessment of civil penalty, (2) whether the 

violation was "significant and substantial", and (3) the 

appropriate civil penalty that should be assessed based on the 

criteria found in section llO(i) of the Act. Additional issues 

1213 
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, 

Pub. L. 95-164, 30 u.s.c. § 801 et seq. 

2. Section 110(i) of the 1977 Act, 30 u.s.c. § 820(i). 

3. 30 c.F.R. § 56.14131(a). 

4. Commission Rules, 20 C.F.R. § 2700.1 et seq. 

Stipulations 

The parties filed the following prehearing stipulations: 

1. Medford Quarry is owned and operated by the respondent. 

2. Medford Quarry is subect to the jurisdiction of the 

Federal Mine Safety and Health Act of 1977 ("the Act"). 

3. The presiding Administrative Law Judge has jurisdiction 

over the proceeding pursuant to § 105 of the Act. 

4. The citation and termination were properly served by a 

duly authorized representative of the Secretary upon an 

agent of the respondent at the date, time, and place stated 

therein and may be admitted into evidence for the purpose of 

establishing their issuance. 

5. The parties stipulate to the authenticity of their 

exhibits but not to the relevance or the truth of the 

matters asserted therein. 

6. The alleged violation was abated in a timely manner. 

7. The violation of 30 c.F.R. § 56.14131(a), occurred as 

described in Citation No. 3869428, issued March 24, 1992. 

The parties do not agree, however, with respect to the 

Inspector's assessment of the gravity and negligence of the 

violation. 

8. The computer printout reflecting the respondent's 

history of violations is an authentic copy and may be 

admitted as a business record of the Mine Safety and health 

Administration. 

With regard to the proposed stipulations concerning the 

Quarry production, Nos. 8 and 9, the respondent's counsel stated 

that the total annual production of the Medford Quarry is 

1214 
approximately 600,000 to 700,000, tons per year, rather than the 

65,630, stipulated amount previously submitted by the parties, 

and that the total company production is greater than the 1.8 

million production figure submitted by the parties (Tr. 7). 

Discussion 

The contested section 104(a) "S&S" Citation No. 3869428, 

issued by MSHA Inspector Elwood s. Frederick, on March 24, 1992, 

citing an alleged violation of mandatory safety standard 

30 C.F.R. § 56.14131(a), states as follows: 

The operator of the stock truck company No. 603 was not 

wearing his seat belt. This truck was being operated 

in and around the plant area hauling material to 

stockpiles. 

Petitioner's Testimony and Evidence 

MSHA Inspector Elwood s. Frederick confirmed that he issued 

the citation in question in the course of a regular inspection at 

the respondent's quarry site on March 24, 1992, and that he was 

accompanied by the mine superintendent. Mr. Frederick stated 

that while with the superintendent in his pickup truck in the bin 

area he noticed that the cited truck that had just dumped a load 

of crushed stone material was proceeding down the slight grade 

from the stockpile with the truck bed in the air. The driver 

was lowering the bed as he was traveling down the road. 

Mr. Frederick stated that he waited until the truck pulled into 

the bin area, and as it was pulling in under the bin he walked 

toward the truck and motioned the driver to open the door because 

he wanted to speak with him about traveling with the truck bed in 

the air. When the driver opened the door Mr. Frederick observed 

that the seat belt was hanging down between the door and the 

seat. When he asked the driver about it, the driver informed him 

that he unhooked the seat belt when Mr. Frederick motioned to him 

and that the belt fell down. Mr. Frederick stated that he 

observed that the driver had both hands on the steering wheel as 

he was pulling into the bin area and he informed the driver that 

he was issuing a citation for not wearing his seat belt and told 

him that he was not to travel around the plant with the truck bed 

in the air (Tr. 14-16). 

Mr. Frederick stated that the superintendent informed him 

that his people are instructed not to travel with truck beds 

raised in the air (Tr. 17). Mr. Frederick did not believe that 

the driver had just unhooked his seat belt after he motioned to 

him because he observed the driver with both hands on the wheel 

and that the driver "had to be pretty fast to unbuckle that" 

(Tr. 18). Mr. Frederick stated that "the road was fairly wide 

and in fairly decent shape", and that the cited truck was 

1215 
traveling approximately ten miles an hour and one other truck was 

also hauling material (Tr. 20-21). 

Mr. Frederick stated that he considered the violation to be 

significant and substantial because the truck bed was raised and 

the driver was coming down a slight grade. With the bed in the 

air, the center of gravity of the truck changed and it could 

upset very easily. Mr. Frederick was aware of documented 

accidents where trucks have hit potholes and overturned, or a 

driver applies his brakes to avoid another truck and loses 

control of the vehicle (Tr. 22). Mr. Frederick did not cite the 

truck for having the bed raised, but in hindsight, stated that 

"I should have issued an imminent danger order" (Tr. 24). 

Mr. Frederick stated that traveling with the truck bed 

raised was not a good safety practice, and MSHA requires that the 

bed be down to the horizontal position after a driver dumps a 

load at the stockpile and leaves the area. He also alluded to 

several hazards associated with stockpiles, and confirmed that 

the stockpile in question was well-maintained (Tr. 25-29). He 

confirmed that he based his "S&S" finding on the raised bed of 

the truck changing the center of gravity of the truck, and not 

because of any stockpile conditions. He also indicated that 

there was one other vehicle in the area, and that if the driver 

hit a pothole or something in the road, "he has more likelihood 

of upsetting that truck" (Tr. 30). He also believed that by 

allowing the driver to continue to operate the truck with the bed 

in the air "it's reasonably likely if nothing's ever done that 

there will be an accident". The failure to wear a seat belt 

would contribute to the severity of an accident if one were to 

occur, and he was aware of accident reports where a driver not 

wearing a seat belt was propelled about his cab and was killed 

after striking his head. He believed that a driver with his seat 

belt fastened "stands a greater chance of not coming out with 

serious injury or fatality than he does if he's not wearing a 

seat belt" (Tr. 31-33). 

Mr. Frederick stated that he based his "moderate" negligence 

finding on the fact that the respondent "does a good job", and 

had a seat belt policy which it enforced, including disciplinary 

action against its employees (Tr. 34, 37). Mr. Frederick stated 

that if the truck bed were not raised, he would not consider the 

failure to wear a seat belt to be "S&S" because the truck would 

have been stable with the bed down (Tr. 42). The violation was 

abated the same day it was issued after he instructed the truck 

driver to hook up his belt and the driver was disciplined by the 

respondent (Tr. 44). 

On cross-examination, Mr. Frederick confirmed that he was 

familiar with MSHA's policy guidelines concerning "S&S" 

violations, and the requirement that any "S&S" finding should be 

consistent with the information recorded in his notes and 

1216 
evaluation of all of the facts. He confirmed that the citation 

and his notes do not mention that the raised truck bed was the 

basis for his "S&S" finding (Tr. 47). He stated that the fact 

that the bed was raised was significant, but that " a lot of 

things we don't put in our notes", and he conceded that "to a 

certain degree", he did not comply with MSHA policy in this 

regard (Tr. 48). 

Mr. Frederick confirmed that when he issued the citation, 

the stockpile was in good shape and the road was smooth and wellmaintained "to a degree", and the truck was traveling on a slight 

incline at a safe speed (Tr. 52). He reiterated that he based 

his 11S&S 11 finding on the fact that the truck bed was in the air, 

thereby changing the center of gravity of the truck, and the 

presence of other vehicles in the area (Tr. 57). The raised 

truck bed was a contributing factor to his "S&S" finding, and the 

failure to wear a seat belt contributed to the severity of any 

accident (Tr. 57-59). Mr. Frederick confirmed that he has issued 

seat belt violations which he did not consider were "S&S" 

violations (Tr. 63-64). 

In response to further questions, Mr. Frederick confirmed 

that the truck driver in question was beginning to lower his 

truck bed as he drove away from the stockpile, and it was down 

when he pulled into the bin area (Tr. 67-68). He confirmed that 

the respondent had established "rules of the road and traffic 

patterns" for its vehicles (Tr. 71). He confirmed that the other 

truck that he previously referred to was not in close proximity 

to the truck that he cited, but it was possible for both trucks 

to pass each other in opposite directions on the roadway 

(Tr. 71). Mr. Frederick also explained the dumping of material 

at the stockpile, and he conceded that he had no knowledge as to 

whether the driver was wearing his seat belt while operating at 

the stockpile area (Tr. 75-77). Mr. Frederick was not aware of 

any prior seat belt violations at the respondent's quarry 

(Tr. 81). 

Respondent's Testimony and Evidence 

Gene Larrick, quarry superintendent, confirmed that he was with 

Inspector Frederick at the time the citation was issued. 

Mr. Larrick confirmed that he observed the truck leaving the 

stockpile with the truck bed up, but he did not observe the 

driver without his belt on. Mr. Larrick also confirmed that the 

driver was disciplined for driving with his truck bed raised and 

for the seat belt violation (Tr. 90). He confirmed that the 

respondent has a policy that drivers not leave dumping areas with 

their truck beds raised, and that he and his supervisors 

periodically check to see that employees wear their seat belts. 

He stated that the respondent has a mandatory policy requiring 

the wearing of seat belts at all times on equipment without 

rollover protection (Tr. 91). He also confirmed that the 

1217 
respondent has a Job Safety Analysis (JSA) for employees covering 

safety procedures at dumping areas and that seat belt training is 

provided to employees (Tr. 91-92). 

Mr. Larrick stated that he remained in his pickup truck in 

the bin area while Mr. Frederick went to the truck to speak to 

the driver, and that Mr. Frederick returned and told him that the 

driver did not have his seatbelt on. Mr. Larrick confirmed that 

he did not speak to the driver himself, and that Mr. Frederick 

served the citation on him at the end of his inspection review. 

Mr. Larrick stated that he spoke to the driver at a later time 

and the driver told him that he had his seat belt on (Tr. 100). 

Mr. Larrick confirmed that the driver received a written warning 

for 11 a combination of the bed up and not wearing the seat belt 11 

(Tr. 105). Mr. Larrick stated that he used the inspector's 

observation to support the warning given to the driver for not 

wearing a seat belt (Tr. 106). 

On cross-examination, Mr. Larrick agreed that driving a 

truck with the bed raised is a poor safety practice and against 

company policy. The policy is based on safety considerations 

(Tr. 107-108). Since he did not accompany the inspector when he 

approached the truck to speak with the driver, Mr. Larrick could 

not give an opinion as to whether or not the driver had just 

disconnected his seat belt at that time (Tr. 109). Mr. Larrick 

agreed that a raised truck bed could cause a problem with the 

truck's center of gravity under certain conditions. Insofar as 

the truck striking a pothole and becoming unstable is concerned, 

Mr. Larrick stated that one would have to define a 11 pothole 11 and 

stated 11 yes, it could happen. Anything can happen" (Tr. 110-111) 

Jeff Carrey, respondent's safety supervisor, explained the 

respondent's training policy with respect to safety and seat 

belts (Tr. 112-114). He confirmed that he was familiar with the 

citation issued by Mr. Frederick in this case and that he 

participated in the closing inspection conference and discussed 

the citation with the inspector (Tr. 115). He stated that he was 

told at these meetings that "it was being written as 11S and S11 

because the program policy manual indicated that they had to 

write it 11S and S" and that the inspector's 11 hands were tied" 

because of the policy. The raised truck bed was discussed as a 

separate issue (Tr. 115). 

On cross-examination, Mr. Carrey confirmed that he was aware 

of MSHA's program policy concerning seat belts and whether it 

should be an 11S&S" violation, and he stated that 11 1 see a lot of 

MSHA inspectors, and their interpretation to me has been that the 

seat belt violation is always an "S&S11 violation (Tr. 119). He 

.confirmed that his understanding of the policy language is that 

11 under most circumstances 11 , such a violation is 11S and S11 

(Tr. 119). 

1218 
Mr. Carrey confirmed that the truck driver who was warned 

took the matter no further (Tr. 120). He also confirmed that the 

driver had previously been disciplined for leaving work early, 

and that he had been involved in past accidents when he collided 

with two county trucks (Tr. 128-129). Mr. Carrey further 

confirmed that the quarry had never been previously cited for any 

seat belt violations (Tr. 129). 

Insoector Frederick was recalled by the presiding judge, and 

he reiterated how he determined that the truck driver in question 

was not wearing his seat belt. Mr. Frederick stated that the 

driver told him that he had his seat belt on, and Mr. Frederick 

stated that he informed the driver that "the indications to me as 

an inspector, you did not" (Tr. 123). Mr. Frederick stated that 

the driver was not sitting on the seat belt, that it was hanging 

down between the door and the seat, and he explained further as 

follows at (Tr. 125): 

A. Well, I based everything on the fact that when he 

opened the door that I seen the seat belt hanging down. 

Now, if it was laying up on his lap, it's very possible 

that he could have unhooked it and it was unhooked 

laying on his lap. But with the belt hanging down 

between the seat and the door it was an indicator to me 

that he did not have it on. He was not getting out of 

the truck. He was still sitting in the seat of the 

truck. 

Roger McClintock, MSHA Special Investigator, was called as a 

rebuttal witness by the petitioner. He explained his duties and 

confirmed that he was familiar with MSHA's enforcement policies. 

He stated that he has also served as an MSHA inspector and 

training specialist, and he explained that the seat belt policy 

is only a "guideline" for an inspector to use when evaluating a 

seat belt violation. Mr. McClintock explained his understanding 

of why Inspector Frederick found the violation to be "S&S", and 

he indicated that if an accident occurs without the driver 

wearing a seat belt, "the severity of that accident is going to 

be much greater" (Tr. 135). He agreed with Mr. Frederick's "S&S" 

finding because "he knew the operator did not have his seat belt 

on • • • and he suspected that he came off the . . .possibly came 

off the pile with the bed in the air and with the machine in an 

unstable, you know, condition" (Tr. 138). 

On cross-examination, Mr. McClintock confirmed that he was 

aware of the definition of "significant and substantial", and in 

his opinion, although the failure to wear a seat belt may not 

cause an accident, it can affect an accident (Tr. 139). 

Mr. McClintock further confirmed that there has to be a 

reasonable likelihood of an accident and not just a remote 

possibility. He confirmed that he was not present at the time 

1219 
the citation was issued and could not attest to the prevailing 

conditions 

(Tr. 142). 

Findings and Conclusions 

Fact of Violation 

The respondent is charged with a violation of mandatory 

standard 30 c.F.R. § 56.14131(a), which states that "Seat belts 

shall be provided and worn in haulage trucks". In support of the 

violation, the petitioner points out that in its answer filed in 

this case the respondent stated that it "does not dispute the 

fact that the operator of the stock truck was not wearing his 

seat belt". The petitioner also relies on the inspector's 

testimony that when the driver opened the truck cab, he observed 

that the seat belt was hanging down between the door and the 

seat, and that when the driver was pulling his truck into the bin 

area just prior to stopping and opening his door, both of his 

hands were on the steering wheel. The petitioner concludes that 

the clear inference from the time sequence of these observations 

by the inspector is that the driver was not wearing his seatbelt 

while driving the truck. 

The petitioner asserts that the only indication of record 

that the facts were not as stated above is the signed statement 

of the truck driver, Mr. Francis Dorsey (Exhibit R-1). The 

statement, which is dated March 9, 1993, reads in relevant part 

as follows: 

•••• The safety inspector Gene Larrick was setting in 

Gene's truck talking about 50 Ft. away. The inspector 

got out was (sic) coming toward my truck being (sic) 

loaded. I open my door starte (sic) out to meet (sic) 

because in our J s A no one should walk under bins when 

plant (sic) in operator (sic). He pointed and yelled 

get back in and close door. I did not put my seat back 

(sic) on. Its Genstar's rule that everyone must wear 

seat belts when driving truck and etc. 

The petitioner maintains that Mr. Dorsey's statement is mere 

hearsay and is entitled to little, if any, weight. In addition 

to the fact that the statement was not given under oath, the 

petitioner asserts that it is also ambiguous and unclear. As an 

example, the petitioner states that it is unclear· who Mr. Dorsey 

was referring to in the phrase "he pointed and yelled get back 

in" or what the statement "I did not put my seat back on" means. 

Under the circumstances, the petitioner concludes that 

Mr. Dorsey's statement is highly unreliable evidence, and that it 

contradicts the other evidence in the record. The petitioner 

1220 
points out that neither the inspector, nor superintendent 

Larrick, who waited in his truck while the inspector and 

Mr. Dorsey talked, reported seeing Mr. Dorsey make any attempt to 

get out of the truck. 

The petitioner concludes that Mr. Dorsey's statement cannot 

overcome the sworn testimony of the inspector, which was subject 

to cross examination, as to what happened. Further, given the 

fact that Mr. Dorsey was disciplined for not wearing his seat 

belt, the petitioner concludes that even the respondent believed 

the inspector's conclusion that Mr. Dorsey was not wearing his 

seat belt, and did not believe Mr. Dorsey's story. 

Relying on Mr. Dorsey's statement, the respondent maintains 

that Mr. Dorsey was wearing his seatbelt at the time of the 

alleged violation. The respondent asserts that Mr. Dorsey's 

explanation is logically supported by the facts presented, and it 

relies on Mr. Dorsey's contention that he was attempting to get 

out of the truck when the inspector motioned for him to open the 

door of the truck, and concludes that it was then that Mr. Dorsey 

most likely unbuckled his seatbelt. Since the seatbelt was 

between the door and the seat, the respondent believes that the 

belt was buckled and then fell off Mr. Dorsey's lap when he 

unbuckled it, as opposed to not having been worn at all and found 

on the seat under him. 

The respondent points out that the inspector admitted that 

he did not actually see Mr. Dorsey operating the truck without 

wearing his seatbelt, and simply observed that the belt fell out 

of the truck when Mr. Dorsey opened the door. Under the circumstances, the respondent concludes that the inspector relied on 

circumstantial evidence that Mr. Dorsey was not wearing his 

seatbelt. Acknowledging the fact that it is almost impossible to 

catch a driver "in the act" of not wearing his seatbelt, the 

respondent contends that the inspector ignored persuasive and 

convincing evidence that Mr. Dorsey had his seatbelt on and 

unbuckled it to open the door when the inspector approached his 

truck, as he was trained to do under the respondent's policy and 

common practice. The respondent believes that Mr. Dorsey's 

story is the more credible and logical explanation of the facts 

and refutes the circumstantial evidence presented by the 

petitioner. Finally, the respondent asserts that Mr. Dorsey 

contested the violation and the reprimand he received "by writing 

and meeting with MSHA (the MSHA inspector and his-supervisor) and 

Genstar's representatives to discuss the alleged violation". 

In its answer filed on October 8, 1992, the respondent 

stated as follows: "Genstar does not dispute the fact that the 

operator of the stock truck was not wearing his seat belt". 

1221 
Further, the record reflects that on February 18, 1993, the 

petitioner's counsel submitted prehearing stipulations agreed to 

by the parties, and included therein is stipulation No. 7, which 

states as follows: 

The violation of 30 c.F.R. § 56.14131(a), occurred as 

described in Citation No. 3869428, issued March 24 8 

1992. The parties do not agree, however, with respect 

to the inspector's assessment of the gravity and 

negligence of the violation. 

I take note of the fact that at the time the stipulations 

were submitted the parties reserved the right to amend or 

supplement their prehearing statements following further trial 

preparation and within a reasonable time before the hearing. 

However, during opening statements at the hearing, the previously 

filed stipulations were reviewed by the parties, and except for a 

minor disagreement concerning the respondent's production, 

respondent's counsel agreed with the remaining stipulations, 

including Stipulation No. 7, quoted above (Tr. 6-8). Further, at 

the close of the petitioner's case, the respondent's counsel 

agreed that there was no dispute as to the fact of violation (Tr. 

82). However, he then proceeded to rely on Mr. Dorsey's 

statement in support of his motion for summary judgement, and 

argued that the statement establishes that Mr. Dorsey unbuckled 

his seat belt when he got out of his truck, or was exiting the 

vehicle, "the inference being that he was wearing his belt up to 

that point" (Tr. 83). The motion for summary judgement was 

denied (Tr. 85), and counsel's alternative motion for judgement 

on the ground that the evidence did not support the inspector's 

"S&S" finding was taken under advisement, and counsel proceeded 

with his defense (Tr. 87-88). 

Mr. Dorsey was not called to testify in this proceeding, nor 

was he deposed by either party. Insofar as his unsworn statement 

is concerned, I find it lacking in reliability and somewhat 

confusing and I have given it little weight. Although the 

respondent's counsel suggested that the statement was prepared 

and witnessed by Mr. Larrick, when asked if this was true, 

Mr. Larrick responded "it was just prepared and then I did read 

the statement" (Tr. 92). Further, although Mr. Larrick confirmed 

that he questioned Mr. Dorsey after the citation was issued and 

stated that Mr. Dorsey told him that he did have his seat belt 

on, I take note of the fact that Mr. Dorsey's statement is dated 

March 9, 1993, more than a year after the issuance of the 

citation. 

Mr. Larrick testified that he remained in his own pickup 

truck while the inspector approached Mr. Dorsey's truck, and 

although Mr. Larrick stated that most drivers will get out of 

their trucks and come to his truck when he is in the bin area, he 

did not state that this was case with Mr. Dorsey. Indeed, 

1222 
Mr. Larrick doubted that Mr. Dorsey knew that Mr. Frederick was 

an inspector when he approached his truck, and he indicated that 

Mr. Dorsey initially opened the door as the inspector approached 

his truck, and then closed it again (Tr. 94). 

Inspector Frederick testified that as he approached 

Mr. Dorsey's truck, he motioned for him to open his door because 

he wanted to discuss his travelling with the truck bed in the 

air. When the door was opened, Mr. Frederick noticed the seat 

belt hanging down between the door and the seat, and he stated 

that Mr. Dorsey told him that he had just unhooked it after 

Mr. Frederick had motioned to him (Tr. 15-16). However, 

Mr. Frederick obviously did not believe him since he issued the 

citation, and he did so because he observed that Mr. Dorsey had 

both hands on the steering wheel as he pulled into the bin area 

and did not believe that he had time to unhook his belt as he 

claimed (Tr. 16, 18). 

Mr. Larrick testified that Mr. Dorsey was disciplined for 

having his truck bed up as well as not having his seat belt on 

(Tr. 105). Mr. Larrick confirmed that he did not personally see 

the seat belt when Mr. Dorsey opened the truck door for the 

inspector and that he could not state an opinion as to whether or 

not Mr. Dorsey had just disconnected his seat belt before opening 

the door. Mr. Larrick further confirmed that he relied on the 

inspector's observations to support the disciplinary action taken 

against Mr. Dorsey (Tr. 106). 

The respondent's assertion that Mr. Dorsey contested the 

violation and the company's disciplinary action taken against him 

suggests that Mr. Dorsey formally appealed his reprimand and 

therefore lends credence to his claim that he was wearing his 

seat belt. I reject any such conclusion. The respondent's 

safety supervisor, Jeff Carrey, explained that in addition to the 

inspection closing conference, Mr. Dorsey sent a letter to MSHA, 

and met with the inspector and his supervisor, to state his 

position and disagreement with the inspector's finding that he 

did not have his seat belt on (Tr. 114). However, Mr. Carrey 

confirmed that since no company official observed the incident 

regarding the seat belt citation, the respondent agreed with the 

inspector and gave Mr. Dorsey a warning, and the matter went no 

further within the company {Tr. 120-121). Mr. Larrick confirmed 

that Mr. Dorsey has been involved in other "incidents" with the 

truck other than seat belts, including collisions with two county 

trucks (Tr. 128-219). 

After careful review of all of the testimony and evidence 

adduced in this proceeding, and apart from any admissions and 

stipulations made by the respondent with respect to the 

violation, I conclude and find that the petitioner has 

established through a preponderance of all of the credible 

evidence and testimony, albeit circumstantial, that Mr. Dorsey 

1223 
was not wearing his seat belt when he drove his truck into the 

bin area after departing from the stockpile area on the day in 

question. I further conclude and find that the failure by 

Mr. Dorsey to wear his seat belt constitutes a violation of the 

cited section 56.14131(a), and the violation issued by the 

inspector IS AFFIRMED. 

Significant and Substantial Violations 

A "significant and substantial" violation is described in 

section 104(d) (1) of the Mine 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." 

30 C.F.R. § 814(d) (1). 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 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 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: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to safetycontributed 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 104(d) (1), 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). 

1224 
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 

(December 1987). Further, any determination of the significant 

and substantial nature of a violation must be made in the context 

of continued normal mining operations. National Gypsum, supra, 

3 FMSHRC at 825; U.S. Steel Mining Company, 6 FMSRC 1573, 1574 

(July 1984); U.S. Steel Mining Co., Inc., 7 FMSHRC 327, 329 

(March 1985). Halfway, Incorporated, 8 FMSHRC 8, (January 1986). 

The Petitioner's Argument 

The petitioner maintains that the violation was significant 

and substantial (S&S). In support of its position, the 

petitioner asserts that the record reflects the existence of a 

discrete safety hazard, or a measure of danger to safety, 

contributed to by the violation. The petitioner argues that 

there was extensive testimony concerning the safety effects of 

not wearing seat belts in haulage truck accidents, and it cites 

Inspector Frederick's testimony concerning accident reports that 

he had studied and reviewed showing injuries and fatalities 

resulting from the failure to wear seat belts, and establishing 

that a person secured in a seat belt stands a greater chance of 

avoiding serious injury or death in an accident. The inspector 

alluded to operators being propelled around inside their truck 

cab or being ejected from the truck and either sustaining serious 

injuries on impact from the fall or being struck or run over by 

the truck itself. The petitioner also cites the testimony of 

Supervisory Special Investigator McClintock concerning his review 

of numerous haulage truck accidents, both fatal and non-fatal, 

which the petitioner believes establishes that the failure to 

wear seat belts constitutes a discrete safety hazard that 

contributes to a measure of danger to safety because it 

contributes to the severity of an injury suffered in an accident, 

and can mean the difference between severely disabling injuries 

and minor injuries. 

The petitioner further argues that the facts presented in 

this case support a conclusion that there was a reasonable 

likelihood that the hazard contributed to by the violation would 

result in a reasonably serious injury from a haulage truck 

accident, and that it was reasonably likely that such an 

accident, and resulting injury, would occur. In support of this 

conclusion, the petitioner asserts that a truck travelling with 

its bed in the air causes the center of gravity of the truck to 

shift, and it becomes less stable and easily subject to upset. 

The petitioner points out that the respondent admitted that 

travelling with the bed up is an unsafe practice that affects the 

stability of the vehicle, that it is against company policy, and 

that employees have been instructed not to do it. 

1225 
The petitioner maintains that the practice of traveling with 

the truck bed raised itself makes it more likely that a haulage 

accident will occur, and that other factors observed by the 

inspector, in combination with the raised bed, made an accident 

reasonable likely. These "other factors" included twodirectional traffic on the same road going to the stockpile, 

another haul truck operating in the same area and at the same 

time hauling from the bins to the stockpile, a slightly graded 

roadway, and the existence of a stockpile which is made of 

material that is not compacted and is affected by weather 

conditions. The petitioner asserts that all of these factors 

contributed to the inspector's assessment that an accident was 

reasonably likely, and that any injury received as a result of 

the accident would be reasonably serious. 

The petitioner denies the respondent's contention that 

Inspector Frederick based his "S&S" findings on MSHA's June 27, 

1990, Program Policy Letter regarding the wearing of seat belts, 

and his belief that the policy required all seat belt violations 

to be cited as "S&S", rather than on the facts and conditions 

that he observed at the time the citation was issued. The 

petitioner points out that the policy letter does not state that 

all seat belt violations are "S&S", and merely states that the 

failure to provide, maintain, or wear seat belts is a serious 

safety hazard and under most circumstances should be a 

significant and substantial violation. The petitioner agrees 

that the appropriateness of an "S&S" designation depends on the 

facts and circumstances observed at the time a·citation is 

issued, and it maintains that the inspector's testimony 

establishes that he relied on all of the aforementioned 

conditions he observed. The petitioner also points out that 

Inspector Frederick has issued non-"S&S" seat belt citations in 

the past and confirmed that he would not have designated the 

contested citation as "S&S" if the conditions had been different. 

Commenting on three cases cited by the respondent's counsel 

in the course of the hearing in which seat belt violations were 

found not to be "S&S", the petitioner points out that in two of 

those cases, the inspectors did not cite the violations as "S&S" 

(Island Construction Co .. Inc., 11 FMSHRC 877 (April 1990); Brown 

Brothers Sand Co., 12 FMSHRC 877 (April 1990). In Brown 

Brothers, the petitioner states that the violation was not "S&S" 

because the loader was being operated in a level area and there 

were no facts that would make it likely that it would strike 

other equipment or roll over. In the third case; Bennett 

Trucking Co. and B & s Trucking Company, 12 FMSHRC 1038 (May 

1990), the petitioner points out that the cited regulation, 

section 77.1710(i), applied only to vehicles where there was a 

danger of overturning, which was not established in that case, 

whereas the language of the cited seat belt regulation in the 

instant case is mandatory for all haulage trucks. Further, as 

previously discussed, the petitioner states that there were a 

1226 
combination of factors, the most important one being the fact 

that the truck was travelling with its bed raised, in itself an 

unsafe practice against company policy, that made it reasonably 

likely that an accident would occur. Under the circumstances, 

the petitioner concludes that the cases relied on by the 

respondent do not lend support to its position that the violation 

should not have been cited as "S&S". 

The Respondent's Argument 

Citing the Commission's National Gypsum Company decision, 

supra, and MSHA's policy manual guidelines for determining "S&S" 

violations, the respondent maintains that it must be shown that 

there was a reasonable likelihood of a serious accident, based on 

the surrounding facts of the case, before the contested violation 

can be designated as "S&S". The respondent asserts that an 

objective standard of reasonable likelihood requires that the 

probability of a serious accident resulting from a violation be 

more than just remote or speculative. On the facts of this case, 

the respondent concludes that there did not exist a reasonable 

likelihood that a hazard or accident would have occurred on the 

day in question. 

The respondent further argues that MSHA's policy manual 

states that before designating a violation as "S&S", a serious 

injury must be "reasonably likely" to occur if the violation is 

not abated. Citing Bennett Trucking Company, 12 FMSHRC 1038 

(May 1990), the respondent maintains that the petitioner must 

first establish the danger of the truck overturning before a 

seatbelt violation could be designated as "S&S". The respondent 

submits that MSHA's policy, and the case law, require that such 

danger be reasonably likely, not just possible, and that the 

inspector supported this position by admitting that he had first 

determined that an accident was reasonably likely from the 

truck's bed being in the air before stating that the seatbelt 

violation would only then contribute to the severity of any 

injuries. 

The respondent contends that the evidence in this case does 

not support the inspector's application of the "reasonable 

likelihood" standard. In order for the inspector to have 

properly determined that the violation was "S&S", the respondent 

believes that he would have been required to find that there 

existed the "reasonable likelihood" that the truck would have 

overturned simply from having its bed being lowered as it pulled 

away from a stable stockpile. The respondent asserts that there 

was no evidence of any other unsafe conditions that could have 

contributed to a potential accident, and that without the 

presence of other factors, such as an unstable stockpile, or a 

roadway pot hole, the probability of the truck overturning is 

speculative at best, much less reasonably likely to have 

occurred. 

1227 
The respondent concludes that the petitioner offered no 

other evidence to support the inspector's 11S&S" finding other 

than references to irrelevant cases and studies which involved 

factors not present in the instant case. 

The respondent emphasizes the fact that there has never been 

an instances at its quarry where a truck has overturned from 

lowering its bed while safely proceeding down a slight grade, and 

that the inspector could not recall of any instances in his 

experience where this has occurred without some other unsafe 

force or factor involved. 

The respondent points out that MSHA's policy manual dealing 

with "S&S" violations provides that an inspector shall include 

all of the factors relevant to his evaluation of a violation as 

"S&S" in his inspection notes. Although the inspector claimed at 

the hearing that he based his "S&S" finding on the fact that the 

truck bed was up, and that he tries to include pertinent 

information in his notes "right there on the spot", the 

respondent points out that he made no mention of the truck bed 

being up in the air in his notes or in the citation. The 

respondent contends that the inspector gave little weight to the 

raised truck bed when he designated the violation as "S&S". In 

support of this conclusion, the respondent relies on the absence 

of this information in the inspector's notes, and his statement 

at the closing conference that his hands were tied because of 

MSHA's seatbelt policy. The respondent submits that the raised 

truck bed only became a significant factor once it decided to 

challenge the seatbelt policy. 

Finally, the respondent maintains that on the basis of its 

dealings with MSHA, it believes that the inspectors are 

overzealously assessing all alleged seatbelt violations as "S&S" 

pursuant to its policy statement, irrespective of mitigating 

circumstances. Even assuming the existence of mitigating 

circumstances, the respondent still believes that MSHA's policy 

does not state the proper standard by which "S&S" violations 

should be judged as required by its own policy that requires an 

inspector to find that there is a "reasonable likelihood" of an 

injury or illness in order to designate the violation as "S&S", 

and not just a remote possibility of an accident, or the 

presumption of an 11S&S" violation based on the policy manual. 

The respondent concludes that the inspector in this case 

improperly applied MSHA's policy, as well as the case law, in 

finding that the violation was "S&S". 

I conclude and find that whether or not Inspector Frederick 

relied on MSHA's policy manual as the basis for his "S&S" finding 

is not particularly critical. The Commission has held that such 

policy instructions "are not officially promulgated and do not 

prescribe rules of law binding upon an agency" (Commission) • Ql9. 

Ben Coal Company, 2 FMSHRC 2806, 2809 (October 1980). However, 

1228 
since the policy manual guidelines and instructions are intended 

to provide instructions and assistance to inspectors as they go 

about their daily inspection duties, and are relied on by the 

industry so that it may be aware of MSHA's interpretations and 

applications as a means of staying in compliance, I would expect 

an inspector to follow the policy. In this case, the inspector 

conceded that he failed to follow the policy with respect to 

noting and documenting each essential factor that prompted him to 

make his "S&S" finding. 

Although I find some merit in the respondent's suggestion 

that MSHA's policy guidelines with respect to seat belt 

violations provide a ready formula for an inspector to conclude 

that all such violations are per se "S&S", I cannot conclude that 

the inspector in this case made a per se finding of "S&S" based 

solely on such a policy. However, I do take note of the fact 

that the policy instructions which state that "the failure to 

wear seat belts is a serious hazard and under most circumstances 

should be a significant and substantial violation"; that "all 

citations issued for failure to wear seat belts should be 

reviewed for special assessment", e.g., violations cited as 

contributing to serious injury or fatality, or violations 

evaluated as having extraordinarily high gravity (highly likely 

and fatal); and that "without mitigating circumstances, the 

gravity evaluation of reasonably likely or highly likely, and 

fatal would usually be justified" (without identifying examples 

of mitigating circumstances), are rather suggestive and do 

provide convenient and expedient ingredients for an inspector to 

conclude that all seat belt violations are per se "S&S", without 

considering all of the prevailing conditions mandated by the case 

law to support such a finding. 

At the heart of the petitioner's case is its contention that 

the raised truck bed, in combination with other factors, such as 

two-directional traffic of the roadway, another truck hauling 

from the bins to the stockpile, a slightly graded roadway, and a 

stockpile made of material that is not compacted and is affected 

by weather conditions, support the inspector's belief that an 

accident was reasonably likely. However, as indicated by the 

discussion which follows below, the testimony of the inspector 

himself does not support the petitioner's suggestions that these 

"other factors" made it reasonably likely that an accident would 

have occurred. Having viewed the inspector in the course of the 

hearing, and having carefully reviewed his testimony, I find it 

to be rather contradictory, equivocal, and lacking. in credible 

support for his asserted reasons for his "S&S" finding. 

Inspector Frederick initially testified that he based his 

"S&S" finding on the fact that the truck driver was travelling 

down a slightly graded roadway with his truck bed in a raised 

position, and the inspector believed that the truck could easily 

upset because its center of gravity would shift with the bed in 

1229 
the air (Tr. 22, 45). Although the inspector suggested that this 

was an imminently dangerous situation, he did not issue an 

imminent danger order or otherwise cite the raised truck bed 

condition (Tr. 24). The inspector later testified that the 

raised truck bed "was one of the contributing factors", rather 

than "the direct cause" for his "S&S" finding (Tr. 57). He also 

stated that any determination as to the type of citation he would 

issue would depend on "the conditions at the time that the 

violation is cited", and that MSHA's seat belt policy statement 

"is only a guidance, it's not a set forth enforcement tool" 

(Tr. 64) • 

Inspector Frederick testified that the roadway was "fairly 

wide and in fairly decent shape" (Tr. 19). Although 

Mr. Frederick relied on several accident reports concerning 

incidents at other mining operations where truck drivers hit 

potholes and lost control of their vehicles, causing an overturn, 

or encountered other vehicles on a roadway and lost control after 

hitting their brakes (Tr. 22), there is no evidence that any of 

these conditions ever existed at the respondent's mine or at the 

time of the inspection. Indeed, while testifying that he also 

relied on a general "history" of poorly maintained stockpiles and 

trucks encountering overhead wires, the inspector conceded that 

these conditions were different and distinguishable from those 

presented in this case (Tr. 64-65). With regard to the accident 

reports mentioned by special investigator McClintock, there is no 

evidence that any of the conditions that may have been present 

during those events were present in the instant case, and Mr. 

McClintock confirmed that he was not present when the citation 

was issued by Inspector Frederick,and Mr. McClintock could not 

attest to the conditions that prevailed at that time (Tr. 142). 

There is no evidence in this case to establish that the 

raised bed of the truck in question in fact changed its center of 

gravity or affected its stability. Although the respondent 

conceded that driving with the truck bed up was an unsafe 

practice and against company policy, superintendent Larrick 

testified that whether or not the truck's center of gravity could 

be affected would depend on certain conditions. The evidence 

establishes that the driver was lowering the truck bed as he 

departed the stockpile area at a low rate of speed and there is 

no evidence that he travelled for any substantial distance with 

the bed completely in the air. Under the circumstances, I cannot 

conclude that in the normal course of mining activities the 

driver would have driven the truck with the truck bed 

continuously in a raised position. Indeed, the evidence 

establishes that when the truck reached the bin area, the truck 

bed was completely down, and the inspector conceded that with the 

bed down the truck would have been stable and he would not have 

considered the fact that the driver did not have his seat belt 

fastened to be an "S&S" violation (Tr. 41-42). 

1230 
Inspector Frederick confirmed that the driver "wasn't really 

travelling fast", and he estimated the speed of the truck at 8 to 

10 miles an hour as it left the slight incline away from the 

stockpile area. The inspector also confirmed that the driver did 

not travel the entire distance of 150 to 200 feet from the 

stockpile area to the bin area with his truck bed raised, and 

that he was lowering the bed as he left the stockpile area 

(Tr. 68). The inspector further confirmed that the respondent 

had established "rules of the road", passing routes, and a righthand traffic pattern in place (Tr. 70). Although he alluded to 

other vehicle traffic on the roadway in question, he could not 

recall any traffic in close proximity to the cited truck at the 

time of his inspection (Tr. 71). 

The inspector conceded that he did not observe the driver 

dumping his load at the stockpile, and that he did not know 

whether he had his belt on or off when he was at the stockpile 

area prior to pulling the truck into the bin area (Tr. 76-77). 

The inspector also confirmed that the stockpile area "was well 

maintained" (Tr. 28) and I find no evidence to support the 

petitioner's suggestion that the stockpile materials in question 

were not compacted or otherwise unstable. 

In view of the foregoing, and after careful consideration of 

all of the evidence and testimony adduced in this case, including 

the arguments advanced by the parties in support of their 

respective positions, I conclude and find that the petitioner has 

failed to make a case in support of its contention that the 

violation cited by the inspector was significant and substantial 

(S&S). Accordingly, the inspector's "S&S" finding IS VACATED, 

and the contested citation IS MODIFIED to a non-"S&S" section 

104(a) citation. 

Size of Business and Effect of Civil Penalty Assessment on the 

Respondent's Ability to Continue in Business 

I conclude and find that the respondent is a small-to-medium 

size operator, and I find nothing to suggest that the payment of 

the civil penalty assessment for the violation in question will 

adversely affect the respondent's ability to continue in 

business. 

History of Prior Violations 

The parties stipulated to the admissibility of a computer 

print-out purportedly containing a record of the respondent's 

compliance record (Exhibit G-3). However, the document contains 

no meaningful information. The inspector had no knowledge of the 

respondent's compliance record and was unaware of any prior seat 

belt citations issued at the quarry (Tr. 80-81). The 

petitioner's counsel and MSHA supervisory Inspector McClintock 

agreed that the document reflects no prior history of violations 

1231 
for the two-year period preceding the issuance of the contested 

citation in this case (Tr. 148-150). Under all of these 

circumstances, and for purposes of a civil penalty assessment for 

the violation which has been affirmed, I conclude and find that 

the respondent has no history of prior assessed violations. 

Negligence 

The inspector found that the violation resulted from a 

"moderate" degree of negligence on the part of the respondent. 

He confirmed that the respondent did a good job with its seat 

belt program and that it held safety meetings, instructed its 

drivers in the use of seat belts, periodically checked to make 

sure its employees were in compliance, and disciplined them if 

they were not (Tr. 34). The inspector testified that the 

respondent "did a lot of things to protect their employees. They 

had the seat belt policy, they enforced the seat belt policy, 

they disciplined the people" (Tr. 37). The inspector indicated 

that the cited driver "for some reason, I guess, forgot or didn't 

pay much attention to what was going on and drove with the bed in 

the air" (Tr. 67-69). Under all of these circumstances, I 

conclude and find that there was a low degree of negligence on 

the respondent's part. 

Good Faith Compliance 

The parties have stipulated that the violation was abated in 

a timely manner, and the inspector confirmed that it was 

terminated the same day it was issued. I conclude and find that 

the respondent demonstrated rapid good faith compliance in taking 

the appropriate action to abate the cited condition. 

Gravity 

I conclude and find that on the facts of this case, the 

violation was non-serious. 

Civil Penalty Assessment 

On the basis of the foregoing findings and conclusions, and 

taking into account the civil penalty assessment criteria found 

in section 110(i) of the Act, I conclude and find that a civil 

penalty assessment of $50 is reasonable and appropriate for the 

violation which has been affirmed. 

1232 
ORDER 

The respondent IS ORDERED to pay a civil penalty assessment 

of $50, within thirty (30) days of the date of this decision and 

order. Payment is to be made to the petitioner (MSHA), and upon 

receipt of payment, this matter is dismissed. 

4&0~ Administrative Law Judge 

Distribution: 

Gayle M. Green, Esq., u.s. Department of Labor, Office of the 

Solicitor, 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Kevin E. Sniffen, Esq., Genstar Stone Products Co., Executive 

Plaza IV, Hunt Valley, MD 21031-1091 (Certified Mail) 

jml 

1233 
PBDBRAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

C.W. MINING COMPANY 

Respondent 

JUN 2 4 1993 

. . 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-204 

A.C. No. 42-01697-03637 

Bear Canyon No. 1 

Appearances: Robert J. Murphy, Esq., Office of the Solicitor, 

u.s. Department of Labor, Denver, Colorado, 

for Petitioner; 

Carl E. Kingston, Esq., Salt Lake City, Utah, 

for Respondent. 

Before: Judge Cetti 

This civil penalty proceeding arises under the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. S 801 et seq., (1988) 

("Mine Act" or "Act"). The Secretary of Labor issued a citation 

to c.w. Mining Company (C.W. Mining) alleging a violation of 30 

C.F.R. S 75.220(a) (1) (1991) 1 for operating a mine without an 

approved roof control plan. 

It is c.w. Mining's contention that there was no violation 

of 30 C.F.R. § 75.220(a) (1), that the mine's old roof control 

plan was improperly revoked, that MSHA did not negotiate in good 

faith, that the mine's old roof control plan was adequate, more 

suitable and a safer roof control plan than the new current plan, 

that the current roof control plan was submitted by the operator 

to the MSHA district manager for approval under protest and for 

these reasons the citation charging the operator for operating 

the mine without an approved roof control plan should be vacated. 

30 C.F.R. S 75.220(a)(1) (1991), provides as follows: 

Each mine operator shall develop and follow a roof 

control plan, approved by the District Manager, that is 

suitable to the prevailing geological conditions, and 

the mining system to be used at the mine. Additional 

measures shall be taken to protect persons if unusual 

hazards are encountered. 

1234 
SYNOPSIS 

With the safety of the miners, my evaluation of the evidence 

and the established applicable law in mind, I find on careful. 

review of the record that within the framework of the evidence 

presented, MSHA has carried its burden of proof on the critical 

central issues in this case and conclude the violation of 30 

C.F.R. S 75.220(a) (1) was established. 

STIPULATIONS 

At the hearing the parties entered into the following 

stipulations, which I accept. 

1. c.w. Mining Company is engaged in mining and selling of 

bituminous coal in the United States and its mining operations 

affect interstate commerce. 

2. c.w. Mining Company is the owner and operator of Bear 

Canyon No. 1 Mine, MSHA I.D. No. 42-01697 an underground coal 

mine. 

3. c.w. Mining Company is subject to the jurisdiction of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. §§ 801 

et ~ ("the Act"). 

4. The Administrative Law Judge has jurisdiction in this 

matter. 

5. The subject citations and orders were properly served by 

duly authorized representatives of the Secretary upon agents of 

c.w. Mining Company on the dates and places stated therein, and 

may be admitted into evidence for the purpose of establishing 

their issuance, and not for the truthfulness or relevancy of any 

statements asserted therein. 

6. The exhibits to be offered by c.w. Mining Company and 

the Secretary are stipulated to be authentic but no stipulation 

is made as to their relevance or the truth of the matters 

asserted therein. 

7. The proposed penalty will not affect c.w. Mining 

Company's ability to continue business. 

8. c.w. Mining Company is a medium size mine operator with 

551,084 tons of production in 1990. 

9. The certified copy of the MSHA Assessed Violations 

History accurately reflects the history of this mine for the two 

years prior to the date of the citation. 

1235 
c.w. Mining is the owner and operator of the Bear Canyon No. 

1 Mine 2 in Huntington, Utah. The Bear Canyon Mine is an underground coal mine required by the Mine Act to operate under an 

approved roof control plan. At all times prior to october 23, 

1991, the date the citation in question was issued, c.w. Mining 

operated the Bear Canyon Mine under a roof control plan approved 

by the Secretary of Labor. In June 1991, when its roof control 

plan came up for its six-month review as provided by 30 C.F.R. 

s 75.223(d), 3 MSHA proposed certain revisions of the plan that 

c.w. Mining found unacceptable. The parties communicated for 

several months particularly with respect to the two primary 

differences in the old plan and the new current plan. The two 

primary differences between the old plan and the new or current 

approved roof control plan are (1) the distance that the miners 

can mine before permanent roof bolts are installed and (2) the 

manner and sequence of the steps taken in pulling (extracting) 

pillars. 

Under the old plan the operator was allowed to advance 120 

feet where adequate top coal was available to provide temporary 

roof support between 120 foot bolting cycles. Only where adverse 

roof conditions were encountered or where insufficient top coal 

existed, was the operator required by the old plan to roof bolt 

every 20 feet and not allow miners inby the last row of roof 

bolts. 

Under the new current plan, top coal irrespective of its 

thickness and strength cannot be used as temporary roof support 

and Respondent must be on a 20 foot bolting cycle at all times, 

regardless of the condition or the amount of the top coal. With 

respect to extracting pillars under the old plan, roof bolting 

the splits was not required when adequate top coal was available 

for support. Under the current plan, all pillar splits are 

required to be roof bolted, regardless of good or bad roof 

conditions and the required fender cut sequence is different than 

the sequence under the old plan. (Tr. 54, 88-89, 531, 601-602, 

604). 

2 This mine is also referred to by its former name the "Coop Mine" in 

the exhibits and the transcript of testimony. 

3 30 C.F.R. 5 75.223(d) provides: 

(d) The roof control plan for each mine shall be 

reviewed every six months by an authorized representative of the Secretary. This review shall take into 

consideration any falls of the roof, face and ribs and 

the adequacy of the support systems used at the time. 

1236 
Under the new current plan miners always work under a fully 

bolted roof. This follows from the fact that C.W. Mining under 

the current plan is limited to 20 foot cuts with a 20 foot roof 

bolting cycle. It is undisputed that 20 feet is the maximum · 

distance Respondents' continuous miners is able to travel under 

remote control. 

BRIEF PROCEDURAL AND FACTUAL HISTORY OF 

NEGOTIATIONS LEADING TO APPROVAL 

OF CURRENT ROOF CONTROL PLAN 

In 1988 the regulations concerning roof support in 30 

C.F.R., subpart c were revised. Section 30 C.F.R. 75.220(f) as 

revised mandated that existing roof control plans that conflict 

with the revised regulations meet the requirements of the revised 

roof regulations by September 28, 1988. c.w. Mining's president, 

superintendent and engineering consultant met with District 9 

roof control specialist in early January 1989 and the roof control plan was reviewed and revised. This old plan was approved 

by the district manager on January 26, 1989. Thereafter, the 

roof control plan was reviewed by MSHA every six months and on 

each review was found to be adequate until August 9, 1991, when 

MSHA informed the operator that the roof control plan was inadequate. (Tr. 522-524). This is the same plan that was later 

rescinded by MSHA on October 23, 1991. The citation in question 

was issued the same day the plan was revoked when mining operations continued without an approved roof control plan. MSHA gave 

the operator several extensions to abate the citation to permit 

uninterrupted production until the citation was abated on 

November 4, 1991. 

Abatement was accomplished by c.w. Mining submitting under 

protest the current plan which was approved November 4, 1991 by 

the MSHA district manager. 

The sequence of the Bishop type negotiations in this case 

for a suitable roof control plan can be summarized as follows: 

June 29, 1991, c.w. Mining sent to the MSHA District 9 

Manager for the six months review its 22 page roof control plan 

for Bear Canyon #1 Mine last approved March 5, 1990. In the 

letter transmitting the plan c.w. Mining stated that it did not 

feel any changes were needed at that time. (Govt~ Ex. 2). 

August 9, 1991, MSHA sent a five page letter to c.w. Mining 

stating that on review by MSHA personnel the plan was found to be 

inadequate. The letter listed 30 "necessary" changes in the 

pillar section of the roof control plan and 10 "necessary" 

changes in the development section of the roof control plan. 

(Govt. Ex. 3). MSHA requested c.w. Mining to submit a new plan 

1237 
by August 26, 1991 addressing the 40 concerns MSHA set forth in 

the letter. 

August 22, 1991, c.w. Mining sent a letter to MSHA stating 

that the roof control systems set forth in the plan submitted for 

review had been used at the mine for 30 years and there had been 

no uncontrolled roof falls during that time. c.w. Mining once 

again asked that the submitted plan be approved with no change. 

The letter did not otherwise respond to the 40 concerns MSHA 

listed in its letter of August 9, 1991. 

September 9, 1991, MSHA sent a second letter to MSHA (Govt. 

Ex. 6) requesting that c.w. Mining respond to and comply with 

MSHA's letter of August 9, 1991. This letter also informed c.w. 

Mining that if an acceptable plan was not received by the due 

date, September 30, 1991, that the plan may be rescinded and that 

any further mining activity would result in the issuance of a 

citation charging a violation of 30 C.F.R. S 75.220. 

It is the Secretary's contention that as of September 9, 

1991, all the requirements of the Bishop decision were fulfilled. 

MSHA nevertheless agreed to extend the deadline so that a faceto-face discussion could be held with c.w. Mining concerning the 

reasons that the roof control plan had to be revised. The due 

date was extended to September 24, 1991. 

On September 24, 1991, a face-to-face meeting of mine management and MSHA was held in Price, Utah. Present at the meeting 

in Price included the following: 

Bill Stoddard - President of c.w. Mining 

Ken Defa - Superintendent of Bear canyon No. 1 

Mine 

Jerry Taylor - MSHA District Engineering Coordinator 

(Acting District Manager 

William Ponceroff - MSHA District Roof Control 

Supervisor 

Tony Gabossi - MSHA Acting Subdistrict Manager 

Bill Ledford - MSHA Field Office Supervisor 

At the meeting the need for full roof bolting was discussed 

in detail as well as other requested changes addressed in MSHA's 

second disapproval letter dated September 9, 1991. 

On October 4, 1991, the district manager sent a follow-up 

letter to c.w. Mining recapping the discussion and agreement 

reached at the September 24, 1991, face-to-face meeting. The 

letter concludes as follows: 

During a phone conversation with William 

Ponceroff, District Roof Control Supervisor, 

on September 30, 1991, Mr. Bill Stoddard, 

1238 
President, C.W. Mining Co., agreed to submit 

an acceptable plan within two weeks. It is 

agreeable to extend the deadline for the 

submittal of an acceptable roof control plan 

to October 11, 1991. 

As discussed in the meeting held on September 24, 1991, deadlines for ending the 

review process have been extended too many 

times. c.w. Mining Co. must make the necessary revisions and submit an acceptable 

roof control plan by October 11, 1991, or the 

currently approved roof control plan will be 

rescinded. Any further mining activities 

without an approved plan would be a violation 

of 30 CFR 75.220. 

Be advised that the requirements for the 

Bishop decision and Program Policy Letter No. 

P89-V3 (copy attached) have been fulfilled. 

c.w. Mining Co. must have an acceptable roof 

control plan ready for submittal in order to 

prevent loss of production. The company may 

then contest the provisions of the roof 

control plan on the basis of a technical 

citation. 

If you have any questions. please contact 

this office at (303) 231-5462. 

Sincerely, 

fsf William A. Holgate 

October 12, 1991, c.w. Mining submitted a "new revised" roof 

control plan (Govt. Ex. 12) which MSHA found unacceptable and 

rejected. 

October 22, 1991, MSHA faxed to c.w. Mining 16 reasons why 

it found the "new revised" roof control plan unacceptable. 

(Govt. Ex. 13). The hard copy of the same date, October 22, 

1991, in addition to specifying the reason the plan was 

unacceptable again recapped the history of negotiation and 

concluded as follows: 

This requested rev1s1on is necessary to 

formulate a plan suitable to the present 

conditions and mining systems at the mine, 

and to ensure the health and safety of the 

miners when future mining occurs. ·since all 

negotiations concerning the development of an 

acceptable roof control plan, in accordance 

1239 
with 30 CFR 75.220, remain at an impasse, the 

currently approved roof control plan is rescinded. Any further mining activities without an approved plan is a violation of 30 CFR 

75.220. 

If you have any questions, please contact 

this office at (303) 231-5462. 

On October 23, 1991, the date that the old roof plan was 

revoked and the citation issued for violation of 30 C.F.R. 

S 75.220, c.w. Mining submitted another revised roof control plan 

that was similar to the current approved plan. In its transmitted letter, c.w. Mining stated as follows: 

Under protest we do agree to the enclosed 

plan as dictated by your office. We still 

believe the original roof control plan is 

just as safe, and in pillar extraction your 

system is less safe because it puts our 

people in the pillar splits where they are 

exposed to sloughing ribs and possible injury 

while bolting. It also forces us to extract 

more than one pillar at a time and will cause 

the pillars to load up and be more apt to 

cause out bursts. 

We also feel more comfortable with the 

pillar extraction sequence we have used for 

over 30 yrs. with no serious accidents or 

injures (sic) related to roof problems. We 

found it works better and has proven to be 

safer than other systems we have tried, including the system Mr. Ponceroff is forcing 

us to use. 

In rebuttal to the c.w. Mining claim that MSHA dictated the 

new plan, counsel for the Secretary points to Mr. Ponceroff's 

testimony at the hearing as follows: 

We did not dictate this plan. We approve 

plans, we don't say what goes in them. As 

long as they comply with statutory provisions 

and good mining principle as determin~d by 

the district and the representative of techs 

and the mining industry as a whole in relation to site specific instances in that mine, 

we approve them. [TR 95) 

On October 29, 1991, the Mine Superintendent, Ken Defa, 

after a telephone conversation with Mr. Ponceroff, MSHA Supervisory Roof Control Specialist, sent MSHA revised plans concern1240 
ing the pillar extraction sequence that Mr. Ponceroff had 

requested. (Govt. Ex. 16). 

October 30, 1991, the District Manager sent the mine operator, Mr. Stoddard, six detailed specific reasons the submitted 

roof control plan remained unacceptable. In response to the 

District Manager's letter, C.W. Mining that same day (October 30, 

1991), faxed the six revisions to the plan that were specifically 

requested by the District Manager. (Govt. Ex. 19). 

November 4, 1991, the MSHA District Manager approved the 

revised c.w. Mining roof control plan. 

November 25, 1991, the District Manager corrected an inadvertent error on page 15 of the approved plan and reissued a new 

copy of the entire approved plan consisting of 18 pages. The 

approved plan included the disputed 20 foot roof bolting cycle 

and the new disputed pillar extraction procedure and fender cut 

sequence. (Govt. Ex. 35-A). 

XII 

DISCUSSION AND FINDINGS 

Preliminarily it should be noted that in Dole, 870 F.2d 662 

at 667 the court stated,"[t]he specific contents of any individual mine [roof control] plan are determined through consultation 

between the mine operator and the [MSHA] district manager." In 

Peabody Cole Company, 15 FMSHRC 389 (March 1993) the Commission 

held that "both the Secretary and the operator are required to 

enter into good faith discussions and consultation over mine 

plans." The Commission in Peabody, supra, further explained this 

process and quoted their decision in Carlson County, 7 FMSHRC 137 

as follows: 

The requirement that the Secretary approve 

an operator's mine ventilation plan does not 

mean that an operator has no option but to 

acquiesce to the Secretary's desires regarding the contents of the plan. Legitimate 

disagreements as to the proper course of 

action are bound to occur. In attempting to 

resolve such differences, the Secretary and 

an operator must negotiate in good faith and 

for a reasonable period concerning a disputed 

provision. Where such good faith negotiation 

has taken place, and the operator and the 

Secretary remain at odds over a plan provision, review of the dispute may be obtained 

by the operator's refusal to adopt·the disputed provision, thus triggering litigation 

1241 
before the Commission. 7 FMSHRC at 1371 

(citation omitted) (emphasis added). 

Section 302(a) of the Mine Act mandates each operator to 

carry out on a continuing basis a program to improve the roof 

control system of each mine as follows: 

Sec. 302. (a) Each operator shall undertake 

to carry out on a continuing basis a program 

to improve the roof control system of each 

coal mine and the means and measures to 

accomplish such system. The roof and ribs of 

all active underground roadways, travelways 

and working places shall be supported or 

otherwise controlled adequately to protect 

persons from falls of the roof or ribs. A 

roof control plan and revisions thereof 

suitable to the roof conditions and mining 

system of each coal mine and approved by the 

Secretary shall be adopted and set out in 

printed form within sixty days after the 

operative date of this title. The plan shall 

show the type of support and spacing approved 

by the Secretary. (Emphasis added). 

30 u.s.c. S 862(a) 

Upon review of the exhibits referenced above, the testimony 

of the witnesses and the records as a whole I find that both the 

operator and the Secretary negotiated in good faith and for a 

reasonable period of time over their legitimate differences. 

Nevertheless, the parties were unable to resolve their differences. Consequently, in order to continue production after 

revocation of the old plan the operator under protest submitted 

the revised current approved plan. 

Although the operator and the Secretary in an attempt to 

resolve their legitimate differences negotiated in good faith and 

for a reasonable period of time, they remained at odds. In Dole 

supra the court of Appeals at page 669 footnote 10 4 states that 

4 Dole supra at footnote 10. We note that while the mine 

operator had a role to play in developing plan contents, 

MSHA always retained final responsibility for deciding 

what had to be included in the plan. In 1977 Congress 

"caution[ed) that while the operator proposes a plan and 

is entitled, as are the miners and representatives of 

miners to further consultation with the Secretary over 

revisions, the Secretary must independently exercise his 

judgment with respect to the content of such plans in 

connection with his final approval of the plan." s. 

Rep. No. 95-181, 95th Cong., 1st Seas. 25 (1977), 

1242 
while the mine operator had a role to play in developing plan 

contents, MSHA always retained final responsibility for deciding 

what had to be included in the plan. 

IV 

MSHA'S REASONS FOR REVOCATION OF OLD PLAN 

The reasons why the MSHA District Manager revoked the old 

roof control plan are summarized by MSHA in its Post-Hearing 

Brief, page 6 and 7, as follows: 

The roof control plan was revoked for several 

reasons: 

1. Under the old plan, men were allowed to 

work and travel under unsupported roof. 

Mining experience has shown that traveling 

under unsupported roof is the most hazardous 

conduct in mining. Roof falls are the 

largest cause of fatalities in underground 

mines today. Statistics show that persons 

are killed by going under unsupported roof. 

[TR 34-37; 126-127]. 

2. Under the old plan, c.w. Mining was only 

required to bolt when it believed that it was 

necessary, yet it is too difficult to know 

when it might be necessary to fully bolt. 

The transitional areas between good roof and 

bad roof can only be determined under the old 

plan by human judgment. Offset in the roof 

observed by Mr5 Ponceroff indicates that the 

company was not successful in determining 

when the conditions were bad. They must be 

aware of the conditions, before someone goes 

under them, not after. The only way to avoid 

that is to fully bolt. [TR 40-44; 83-84]. 

3. Transitional areas between good roof and 

bad roof can only be determined under the old 

plan, by human judgment and the violation 

history at this mine shows that numerous 

citations and orders existed for failure to 

follow the roof control plan. Also preshift, 

and on shift violations were issued for 

failure to properly examine the mine roof, 

and an imminent danger order for a bad roof 

has been issued at this mine, further indiU.S.Code Cong.&Admin. News 1977, p.3425. 

1243 
eating the unwillingness of the operator to 

keep the roof in good condition. 

4. The operator maintained that 1 to 3 feet 

of top coal was the primary roof support at 

this mine. However, roof bolts were being 

installed systematically throughout all 

development sections. Hence the mine has 

agreed that the roof is bad in many 

locations. 

5. Conditions of the mine observed by 

inspectors, District 9 specialists and MSHA 

technical support indicate that it is an 

extremely unsafe practice for the miners to 

work under roof that is not supported, since 

it is uncertain what a miner may encounter. 

All sections of the roof must be bolted 

before anyone goes under the roof. 

6. History of Violations - roof falls at this 

mine. (Exhibit Nos. 1 and 4). 

7. c.w. Mining had a particularized history 

of violations of its own Roof Control Plan. 

(Exhibit 25). 

Based upon all of the information provided by 

the on site inspectors, the visits made by 

Technology Center experts, the history of 

this mine and the newly revised roof control 

regulations, Mr. Ponceroff recommended that 

changes be made in the old roof control plan. 

Those changes primarily related to a system 

of full-bolting. That is a system where the 

area is bolted before any miner is required 

to work or travel under the roof. The result 

of the recommendation was that c.w. Mining 

would be limited to 20 foot cuts with its 

continuous miner, since that is the distance 

that the equipment can travel under remote 

control. Under the old system, the miner 

operator could go under the roof in areas 

just cut, without supporting, and could 

develop a distance of more than 100 feet. 

Under the new plan with full bolting, the 

distance is reduced to 20 feet. 

* * * * * 

The Commission has taken note of the fact 

that mine roofs are inherently dangerous and 

1244 
that even a good roof can fall without 

warning. Consolidation coal Company, 6 

FMSHRC 34, 37 {January 1984). It has also 

stressed the fact that roof falls remain the 

leading cause of death in underground mines, 

Eastover Mining co., 4 FMSHRC 1207, 1211 

{July 1982), Halfway Incorporated, 

8 FMSHRC 8, 13 (January 1986). 

v 

Respondent presented considerable evidence to support its 

contention that its old roof control plan last approved by the 

District Manager on March 5, 1990, was adequate and appropriate 

for the particular conditions at the mine and therefore should 

not have been revoked. Respondent presented the testimony not 

only of its officials and employees but also the testimony of 

three federal coal mine inspectors to this effect. These MSHA 

coal mine inspectors were quite familiar with the particular 

conditions at the mine. Their testimony supports Respondent's 

contention that in most areas of the mine top coal was of adequate thickness and strength to be used as temporary roof support 

for the 120 foot cuts and bolting cycles used under the old plan. 

Evidence was also presented that a 20 foot full roof bolting 

cycle was used by c.w. Mining under the old plan when adverse 

roof conditions were encountered. The mine inspectors called by 

Respondent also testified that the pillar extraction procedure 

under the old roof control plan was safe and even safer than the 

pillar extraction procedure under the current approved roof 

control plan. 

VI 

Respondent's expert witness Dr. Krishma Sinha, a geological 

engineer, based upon the tests he performed and his computer analysis of the results he obtained, testified that there was no 

added safety benefit in requiring roof bolts to be installed in 

20 foot cycles over 120 foot cycles. Dr. Sinha's testimony was 

not persuasive. He did not take or supervise the taking of samples used in his analysis. He did not know who took the samples 

or·even what part of the mine from where the samples were allegedly taken. (Tr. 993)• He took neither tensile nor sheer 

strength tests. (Tr. 995). He assumed the material to be homogeneous. (Tr. 999). Mr. Ropchan the mining engineer employed by 

the MSHA Technology Center testified this assumption was a fatal 

miscalculation. Mr. Ropchan stated that Mr. Sinha's computer 

analysis failed to consider the joints and fractures of the coal. 

(Tr. 996-998, 1091). 

The Secretary in support of his position presented the testimony of M. Terry Hoch, the mining engineer who heads the Roof 

Control Division of the MSHA Safety and Health Technology Center 

1245 
in Pittsburg (Tr. 381, Govt. Ex. 27); Jerry Davidson, a geologist 

employed by the MSHA Safety and Health Technology Center and 

David Ropchan, a mining engineer for the MSHA Safety and Health 

Technology Center since 1971. (Tr. 315). All of these experts 

visited the mine in question and made visual observations of the 

mine conditions. 

David Ropchan testified that the method of pillar extraction 

used under the old plan was more dangerous than pillar extraction 

under the current plan since the old plan opened up more ground 

and thus exposed the miners to more unsupported roof. He stated 

that stress on the roof increases with the square of the span of 

the roof and when the roof span increases, tensil stress is 

greatly increased. (Tr. 1088-1089). 

Jerry Davidson, the MSHA geologist, testified he did not 

consider pillar extraction under the old plan a safe way to 

extract pillars "because under the old plan a lot of ground (is) 

opened up" and practically no ground support was installed. Thus 

under the old plan the continuous miner operator, his helper and 

the shuttle car operator and possibly the section foreman would 

be exposed to a greater hazard of roof falls than under the 

current plan which involves "opening up" less ground. 

Mr. Hoch who heads the MSHA Technology Roof Control Division 

testified that District 9, where the mine in question is located, 

was the only district that still has a roof control plan that 

permitted miners to travel under an unsupported coal roof or a 

roof supported only by head (top) coal. (Tr. 393-394). He explained that a coal roof cannot be a sole means of support 

because as a material, it is inconsistent, it is jointed, has 

cleats and, most importantly, can and will fall. (Tr. 448-449). 

Mr. Hoch stated that the primary thrust of the 1988 revised 

roof control regulations was to "incorporate new technologies so 

that miners would not be required to work or travel in areas 

where roof was not supported. He stated that head or top coal 

can "mask" roof problems so you can't see hazards such as joints 

and fractures. He also stated that coal left on the roof can 

enhance the resistance to absorption of humidity increasing the 

dangers of roof falls. 

Based on the testimony of the experts from the Safety and 

Health Technology Center and the undisputed fact that the operator was encountering changing adverse roof conditions in the mine 

that all parties agree required a 20 foot roof bolting cycle, I 

find that the new current roof control plan is suitable for the 

mine in question and is mine specific. It is not necessary or 

appropriate in this case to reach the question of whether the use 

of top coal alone to support the roof is proscribed by the present roof control regulations. 

1246 
Respondent argues that its witness should be credited since 

its witnesses were more familiar over a longer period of time 

with the particular conditions at the mine and spent more time 

observing the mine in operation rather than MSHA's witnesses who 

were less familiar with the mine and who spent less time observing and examining the conditions of the mine. The Commission in 

Cyprus Tonopah Mining Corp., 15 FMSHRC 367 at 372 (March 1993) 

quotes from its earlier decision Asarco, Inc., 14 FMSHRC 941, at 

949 (June 1992) as follows: 

The Commission has recognized that: 

[e]xpert witnesses testify to offer their 

scientific opinions on technical matters to 

the trier of fact. If the opinions of expert 

witnesses conflict in a proceeding, the judge 

must determine which opinion to credit, based 

on such factors as the credentials of the 

expert and the scientific bases for the 

expert's opinion. 

Based upon their superior credentials I credit the op1n1on 

of the Secretary's Safety and Health Technology Center experts. 

Based upon their testimony and the undisputed fact that there 

were changing adverse roof conditions in the mine that required 

full roof bolting on 20 foot cycles, I find that the old roof 

plan was no longer suitable to the conditions of the mine in 

question and was properly revoked. On the same basis I also find 

the current approved roof control plan is suitable to the 

conditions of the Bear Canyon No. 1 Mine as contemplated by 30 

C.F.R. S 75.220(a) (1) and section 302(a) of the Mine Act. 

Consistent with the above findings and conclusions I find 

the violation of 30 C.F.R. S 75.220(a) (1) as charged in the 

citation was established. The violation is technical nature. 

Consequently the $20 penalty MSHA proposes is appropriate. 

ORDER 

1. Citation No. 3582718 and the MSHA proposed $20 penalty 

are affirmed. 

2. Respondent shall pay a civil penalty of $20 to the 

Secretary of Labor within 30 days of this decision and upon 

receipt of payment, this proceeding is dismissed. 

1247 

A st F. Cetti 

Administrative Law Judge 
Distribution: 

Robert J. Murphy, Esq., Office of the Solicitor, u. S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, co 

80294 (Certified Mail) 

Carl E. Kingston, Esq., 3212 South State Street, P.O. Box 15809, 

Salt Lake City, Utah 84115 (Certified Mail) 

sh 

1248 
FEDERAL IIDIB SAFETY A1ID BBAI.TH REVIEW COJOITSSIOlf 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. 

ISLAND CREEK COAL COMPANY, 

Respondent 

JUN 2 51993 

: 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 92-625 

A.C. No. 15-03178-03713 

Ohio No. 11 Mine 

ORDER OF DISMISSAL 

Before: Judge Melick 

This case is before me upon remand by order of the 

Commission dated June 23, 1993. Pursuant to said r and, 

upon the joint request of the parties and for demon rated 

good cause, the Decision Appr ving Settlement in th' case 

dated May 4, 1993, is hereby acated nd this case 

dismissed. 

Distribution: 

Gary Me ck 

Adminis i;ative 

Anne T. Knauff, Esq., Office of the icitor, 

u.s. Department of Labor, 2002 Richa Jones Road, 

Suite B-201, Nashville, TN 37215-2862 (Certified Mail} 

Marshall s. Peace, Attorney at Law, 201 W. Vine Street, 

Lexington, KY 40575 (Certified Mail} 

/lh 

1249 
FEDERAL IIDIE SAFETY Aim HRAIII'H REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 2 51993 

SECRETARY OF LABOR, . . DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

. . 

. . Docket No. SE 93-48-DM 

ON BEHALF OF RONNY BOSWELL, 

Complainant . . MSHA Case No. SE MD-92-05 

v. . . Ragland Plant 

NATIONAL CEMENT COMPANY, INC., 

Respondent . . 

Appearances: 

Before: 

DECISION 

William Lawson, Esquire, Office of the 

Solicitor, u.s. Department of Labor, 

Birmingham, Alabama, for Complainant; 

Thomas F. campbell, Esquire, Lange, 

Simpson, Robinson and Somerville, 

Birmingham, Alabama, for Respondent 

Judge Melick 

This case is before me upon the complaint by the Secretary 

of Labor on behalf of Ronny Boswell pursuant to Section 105(c)(2) 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 801, 

et seg., the "Act," alleging that National Cement Company, Inc. 

(National Cement) issued Mr. Boswell a three day suspension in 

violation of Section 105(c)(1) of the Act. 1 

Section 105(c)(1) 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 operator's agent, or the representative of 

the miners at the coal or other mine 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 of medical evaluations and 

potential transfer under a standard published pursuant to 

section 101 or because such miner, representative of miners 

or applicant for employment has instituted or caused .to be 

1250 
More particularly it is alleged that Mr. Boswell's 

suspension was the result of certain activities protected 

by the Act, namely: 

* * * 

(a) During the course of the work shift 

on or about December 27, 1991, Complainant made a 

daily inspection of loader no. 950 and noted that 

the lights were 'faulty' and further noted under 

remarks: total disregard by the company to keep 

mobile equipment in proper working order may lead 

to damage to equipment are [sic] possible harm to 

employees. 

(b) On or before December 27, 1991, 

Complainant's supervisor questioned him regarding 

the information complainant had entered on the 

daily inspection report. 

(c) Complainant was then instructed to 

shut down the 950 loader for the rest of the night 

and to commence operating a different piece of 

equipment, a 540 loader. 

(d) Complainant did as he was instructed 

and operated the 540 loader until the odor of antifreeze affected his ability to operate the loader. 

(e) Upon notifying his supervisor of 

the condition in the 540 loader, complainant was 

instructed to resume his work duties by operating 

the 950 loader which had previously been shut down 

by the supervisor. 

(f) Complainant informed his supervisor 

that it would be a violation of the company's safety 

procedures and requirements as well as federal regulations if the 950 loader was placed back in service 

without correcting the safety defects for which it 

had been shut down by management. 

fn. 1 (continued) 

instituted any proceeding 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." 

1251 
(g) A safety review was eventually 

requested by complainant. 

(h) The safety director for the company 

was summoned to the area and the lighting defects 

ultimately corrected. Complainant then proceeded 

to operate the 950 loader for the remainder of the 

shift. 

The Commission has long held that a miner seeking to 

establish a prima facia case of discrimination under section 

105(c) of the Act bears the burden of persuasion that he 

engaged in protected activity and that 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. Consolidation Coal Co., v. Marshall, 663 F.2d 1211 

(3rd Circuit 1981); Secretary of Labor on behalf of Robinette 

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

The operator may rebut the prima facia case by showing either 

that no protected activity occurred or that the adverse 

action was in no part motivated by any protected activity. If an operator cannot rebut the prima facia case in this 

manner, it may nevertheless defend affirmatively by proving 

that it would have taken the adverse action in any event on 

the basis of the miner's unprotected activity alone. Pasula, 

supra; Robinette, supra. See also Eastern Assoc. Coal Corp. 

v. FMSHRC, 813 F.2d 639, 842 (4th Cir. 1987); Donovan v. 

stafford Construction 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 nearly identical tests under National 

Labor Relations Act. 

Ronny Boswell has been an employee of National Cement for 

18 years and has been a payloader operator since 1990. The 

Ragland Plant where he had been working operates 3 shifts, 

24 hours a day and Boswell rotates on all three shifts. On 

December 27, 1991, Boswell was to work the night shift on the 

950 Payloader. According to Boswell, following company safety 

procedures, before starting the equipment, the operator must 

complete a daily inspection report. This safety inspection 

report is then given to the foreman near the beginning of the 

shift. 

On December 27, Boswell wrote on the daily inspection 

report for the 950 Payloader that the lights were "faulty" 

and noted in the remarks column "total disregard by the 

company to keep mobile equipment in proper working order 

may lead to damage to equipment are [sic] possible harm to 

employee" (Government Exhibit No. 1). Boswell had similarly 

1252 
reported the lights as being "faulty" and noted a bent left 

lower headlight bracket on reports dated December 15, 16, 

17, 19, 24 and 26, 1991 (Government Exhibit No. 2). Boswell 

explained that there are actually two pairs of lights on the 

front of the 950 Payloader, one factory installed pair 7 feet 

above ground and an additional pair on the upper cab 12 feet 

above ground and explained that his reports related only to 

the upper lights. 

After filing his report on December 27, Boswell 

returned to the 950 loader and resumed working at the "clay 

house" where ample overhead lighting existed and obviated the 

need for any lights on the payloader. Around 12:00 or 12:30 

that night substitute foreman Rudy Hall approached inquiring 

about the daily inspection report. Boswell acknowledges that 

he never refused to operate the 950 Payloader because of 

inadequate lighting and never told Hall that the loader was 

unsafe. Indeed, Boswell has always maintained that the loader 

was not unsafe to operate and presented no hazard. Following 

this discussion Hall nevertheless told Boswell "shut it down 

and get on the 540 loader -- turn the ignition off and let it 

sit where it [is]." 

According to Boswell, the 540 Payloader was 7 years 

older than the 950 and after operating it for 20 to 25 minutes 

antifreeze fumes "got to me." He told Foreman Hall that he 

could not operate the 540 loader because he "couldn't breathe." 

Hall accommodated Boswell's difficulty with the 540 loader and 

told him to return to the 950 loader. Boswell then refused 

telling Hall that "it's in the company safety book that you 

can't start it up until the problem is fixed." Boswell 

maintains that he had the "company safety requirements" in 

his possession at the time and maintains that he was referring 

to paragraph (g) on page 4 of a document entitled "National 

Cement Company Safety Procedures and Requirements" (Government 

Exhibit No. 3). The cited provision states as follows: 

Report and, if possible, repair any defects found. 

Do not use machine with uncorrected safety defects 

which present a hazard. If the loader is unsafe 

and removed from service, tag it to prohibit 

further use until repairs are completed. 

Boswell also maintains, although it is not clear he raised 

this contention with Hall at the time, that he understood from 

Federal regulations in his possession that he was also prohibited 

by those regulations from resuming operation of the 950 loader. 

In particular, he cited the provisions of 30 C.F.R. § 57.14100(c) 

which provide as follows: 

1253 
When defects make continued operation hazardous 

to persons, the defective items including selfpropelled mobile equipment shall be taken out of 

service and placed in a designated area posted 

for that purpose, or a tag or other effective 

method of marking the defective items shall be 

used to prohibit further use until the defects 

are corrected. 2 

According to Boswell, Hall became "very upset" when he 

continued to refuse to start the 950. Boswell states that 

Hall then asked him what he was to do and Boswell responded 

11 I'm not going to start the 950 loader back up to get your 

ass out of a crack." Hall made further inquiry as to what 

it would take to resolve the impasse and Boswell made it 

clear that he was not refusing to operate the loader because 

it had been shut down for safety reasons but only that it 

could not be restarted without violating Federal regulations 

and company rules. 

Boswell then asked for a "safety review" -- apparently 

a procedure wherein union representatives review an employee safety complaint for possible further action. According to 

Boswell, Hall would not call the union safety representative 

but subsequently Cedrick Phillips, the company safety director, 

reported to the plant, examined the loader and had the brackets 

straightened. The light was replaced by Boswell himself. 

Boswell then restarted the 950 Payloader and operated it for 

the remainder of his shift. The above recitation of facts 

taken from the testimony of Boswell is uncontradicted. 

Rudy Hall was present at trial but was never called as a witness. 

On January 13, 1992, Boswell attended a meeting at which 

he was given a disciplinary action report and was notified of 

his three-day suspension (Government Exhibit No. 6). Boswell 

acknowledges that although a number of reasons for his suspension 

were cited in the "disciplinary action report" (and mine manager 

Remy Demont later testified that he also considered prior oral 

and written warnings in Boswell's personnel file) he conceded 

and understood that the disciplinary action related only to 

events that occurred on December 27. 

Within this framework of undisputed evidence it is clear 

that Boswell has established a prima facia case that he engaged 

in protected activities by (1) reporting in the daily equipment 

2 On cross examination Boswell acknowledged that the 

950 loader had never in fact been "tagged out" nor "taken out 

of service and placed in a designated area posted for that 

purpose." 

1254 
inspection report for the 950 Payloader on December 27, 1991, 

and on at least nine other prior occasions, that its lights 

were "faulty" and (2) in complaining about and refusing to 

operate the 540 loader on the evening of December 27, 1991, 

because of the complaints regarding antifreeze leakage and 

fumes causing difficulty in breathing. I further find that 

the disciplinary action taken against Boswell was motivated at 

least in part by the latter protected activity. Plant Manager 

Remy Demont, who made the decision to suspend Boswell, in fact 

testified that the suspension was based in part upon Boswell's 

refusal to operate the 540 Payloader. 

It may also reasonably be inferred because of its close 

relationship to his later refusal to operate the 950 loader 

on the evening of December 27, 1991, that Demont also was 

motivated at least in part in suspending Boswell based on his 

complaints in the daily inspection reports noted above. Under 

the circumstances the Secretary has established a prima facia 

case of discrimination under Section 105(c) of the Act in proving 

that indeed, Boswell engaged in protected activities and his 

suspension was motivated in part by those activities. Pasula, 

supra; Robinette, supra. 

I find, however, that National Cement has affirmatively 

defended against that prima facia case by proving that it 

would have taken the adverse action in any event on the basis 

of Boswell's unprotected activity alone, i.e., his subsequent 

insubordination in refusing to operate the 950 Payloader for 

reasons not related to any safety or health hazard. Pasula, 

supra; Robinette, supra. In this regard I find credible the 

testimony of Plant Manager Demont that the triggering event 

for Boswell's discharge was in fact this insubordination in 

refusing to operate the 950 Payloader. Demont further explained 

that Boswell's demand for a "safety committee review" while 

admitting there was no safety hazard on the 950 loader was the 

specific causative grounds for his suspension. The critical 

issue to be determined then is whether Boswell's refusal to 

operate the 950 Payloader on the evening of December 27, 1991, 

was a protected work refusal. 

A miner has the right under Section 105(c) of the Act to 

refuse work, if the miner has a good faith, reasonable belief 

in a hazardous condition. Pasula, 663 F.2d at 1216 n. 6, 1219; 

Miller v. Consolidation Coal Co., 687 F.2d 194, 195 (7th Cir. 

1982). The complaining miner has the burden of proving both the 

good faith and the reasonableness of his belief that a hazard 

existed. Robinette, 3 FMSHRC at 807-12; Secretary on behalf of 

Bush v. Union Carbide Corp., 5 FMSHRC 993. A good faith belief 

"simply means a honest belief that a hazard exists." Robinette, 

at 810. The purpose of this requirement is to "remove from the 

Act's protection work refusals involving frauds or other forms 

of deception." Id. 

1255 
Since Boswell acknowledges that he did not refuse to 

operate the 950 loader because of any hazard, this work 

refusal is clearly not protected. The Secretary nevertheless argues that a miner has a right to refuse to work if 

the miner has a good faith, reasonable belief that he would, 

by continuing to work, violate a mandatory safety standard. 

In this regard, the Secretary maintains that to operate the 

950 loader once it had been removed from service pursuant 

to 30 C.F.R. § 57.14100(c) would constitute ~violation of 

that standard. 

Even assuming, arguendo, that the Secretary's legal 

theory is correct in this regard, the credible evidence in 

this case does not demonstrate that the 950 Payloader had 

ever been removed from service pursuant to that mandatory 

standard. It was admittedly never "tagged out" nor "taken 

out of service and placed in a designated area posted for 

that purpose" as would be required under the standard and 

there is no evidence that it was ever cited by the Secretary. 

Moreover, Boswell himself at all times insists that the 

lighting problems on the 950 Payloader did not create any 

hazard. Under the circumstances the Secretary is disingenuous 

in claiming on behalf of Boswell that the 950 Payloader was in 

a hazardous condition and was taken out of service under the 

cited standard. In summary, I cannot find that Boswell has 

met his burden of proving that he entertained a good faith 

and reasonable belief that to operate the 950 loader would 

have been hazardous or that it would have violated the cited 

mandatory standard. Thus, in any event, his complaint herein 

must fail. 

ORDER 

Discrimination Proceeding Docket No. SE 

DISMISSED. 

1256 

-48-DM is 

... 

Law Judge 
Distribution: 

William Lawson, Esq., Office of the Solicitor, 

U.S. Department of Labor, 2015 Second Avenue North, 

Suite 201, Birmingham, AL 35203 (Certified Mail) 

Thomas F. Campbell, Esq., Lange, Simpson, Robinson 

and Somerville, 1700 First Alabama Bank Building, 

Birmingham, AL 35203 (Certified Mail) 

Mr. Ronny Boswell, P.O. Box 220, Ragland, AL 35131 

(Certified Mail) 

\lh 

1257 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

JUN 2 8 1993 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 92-818 

A. C. No. 15-14074-03614 

Martwick Underground 

Docket No. KENT 92-869 

A. C. No. 15-02705-03754 

Docket No. KENT 92-986 

A. C. No. 15-02705-03763 

Camp No. 2 Mine 

Appearances: w. F. Taylor, Esq., Office of the Solicitor, 

U. S. Department of Labor, Nashville, Tennessee, 

for the Secretary; 

David R. Joest, Esq., Henderson, Kentucky, for 

Respondent. 

Before: Judge Maurer 

In these three proceedings, the Secretary seeks to impose 

civil penalties on the respondent, Peabody Coal Company (Peabody) 

under section 105(d) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 801 et seq., for three alleged violations of 

the mandatory standard found at 30 C.F.R. § 75.316. The 

respondent filed timely answers contesting the alleged violations 

and these cases were in due course docketed for hearing. Pursuant to notice, an evidentiary hearing was held in Owensboro, 

Kentucky, on March 9, 1993. 

Subsequent to that hearing, the parties filed a written 

joint motion to approve their proposed settlement with regard to 

Docket Nos. KENT 92-869 and KENT 92-986. In Docket No. 

KENT 92-869, the parties propose to reduce the assessed civil 

penalty from $2900 to $2600 and in KENT 92-986, no reduction of 

the assessed $5000 penalty is proposed. Based on the representations of the parties, I conclude that the proffered settlement is 

appropriate under the criteria contained in section 110(i) of the 

Mine Act and it is approved. The financial terms of this 

1258 
settlement agreement will be factored into my order at the end of 

this decision. There remains for my decision on the merits, a 

single section 104(a) citation: Citation No. 3552659, contained 

in Docket No. KENT 92-818. I make the following decision. 

DISCUSSION AND FINDINGS 

Citation No. 3552659, issued pursuant to section 104(a) of 

the Mine Act, alleges a violation of the mandatory standard at 

30 C.F.R. § 75.316 and charges as follows: 

The methane and dust control plan was not being 

followed in that the air behind the curtain in No. 3 

entry was 4000 cfm while the wet bed scrubber was off. 

Mine Safety and Health Administration (MSHA) Inspector 

George Newlin issued the citation at bar on May 28, 1992, during 

a respiratory dust survey. In a nutshell, the inspector felt 

that the company was operating in violation of its approved 

ventilation plan because the plan calls for 5000 cubic feet of 

air at the end of the line curtain while the miner is cutting 

coal and when he took his air reading, he only found 4000 cubic 

feet of air moving. Specifically, the plan provides in relevant 

part: "A minimum of 5000 cfm of air shall be delivered to the 

inby end of the line brattice before the scrubber is started and 

shall be maintained until the cut has been completed." 

The overriding issue in this case then is whether or not the 

miner operator cut out a load of coal just before the inspector 

took his air reading. Because if he did not, then everyone 

agrees, there is no violation. That seems simple enough, but 

there is a complicating feature present in the case. From where 

the inspector was positioned in the crosscut waiting for the 

miner to start cutting before he took his air reading, he could 

not see the continuous miner machine in the No. 3 entry. 

Therefore, the inspector did not see the miner operator cut coal, 

nor did he see any coal being loaded into the shuttle car, but he 

believes that he heard the miner cut into the coal and he then 

went into the entry to take his reading. Peabody's evidence is 

to the contrary, i.e., they did not start cutting coal until 

later that morning. 

Mr. Geary, a maintenance supervisor at the mine, testified 

that as part of the federal dust survey, they have to maintain 

17 water sprays on the miner with a minimum of 100 psi pressure 

with the sprays running and, also, in the wet bed scrubber 

itself, there is one spray that has to also be operating with 

100 psi with the wet bed running. In order to check the pressure 

on these water sprays, you have to unhook a spray or a hose from 

1259 
the miner and then hook another hose with a pressure gauge teed 

into it in its place. While this apparatus is installed, you 

cannot mine coal; but in order to check the water pressure on the 

sprays, you do have to turn the scrubber on. 

After Mr. Geary had checked the water pressure on the 

sprays, he sent someone to get the inspector to perform his 

pressure check. When he came over, but before he checked the 

pressure on the sprays, he checked the air behind the wing 

curtain and said they did not have enough air to run coal with. 

The inspector concurs with that chronology of events (Tr. 34). 

I find the testimony of Mr. Geary to be most convincing. 

The pressure-checking apparatus was installed on the miner until 

after the inspector checked the water pressure, and even the 

inspector agrees that this was in turn after he took the air 

check which prompted the citation at bar. At the same time, it 

is uncontroverted that while the pressure-checking apparatus is 

installed it is not possible to cut coal. Therefore, the only 

logical explanation that takes into consideration all the facts 

is that the inspector's assumption vis-a-vis cutting coal is 

wrong. The inspector apparently mistook the sound of the 

scrubber running on the miner for the somewhat similar sound of 

the miner cutting coal. Although there is testimony on the 

record that it is possible to tell the difference in sound 

between the miner setting with its scrubber running and the miner 

cutting coal, it was also stated that the farther away a person 

is from the miner, the harder it would be to detect the 

difference. I believe that is exactly what happened in this 

instance. Accordingly, Citation No. 3552659 will be vacated. 

ORDER 

Based upon the above findings of fact and conclusions of 

law, it IS ORDERED that: 

1. Citation Nos. 3547038 and 3552661 ARE AFFIRMED. 

2. Citation No. 3552659 IS VACATED. 

3. Peabody Coal Company SHALL PAY a civil penalty of $7,600 

within 30 days of the date of this decision. 

Law Judge 

1260 
Distribution: 

w. F. Taylor, Esq., Office of the Solicitor, U. s. Department of 

Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 

{Certified Mail) 

David R. Joest, Esq., 1951 Barrett Court, P. 0. Box 1990, 

Henderson, KY 42420-1990 {Certified Mail) 

dcp 

1261 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5267/FAX (303) 844-5268 

June 29, 1993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MID-CONTINENT RESOURCES INC., 

Respondent 

. . 

. . 

Docket No. WEST 91-168 

A.C. No. 05-00301-03764 

Dutch Creek Mine 

AMENDED DECISION APPROVING PARTIAL SETTLEMENT 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

u.s. Department of Labor, Denver, Colorado, 

for Petitioner; 

Edward Mulhall, Jr., Esq., DELANEY & BALCOMB, 

P.C., Glenwood Springs, Colorado, 

for Respondent. 

Before: Judge Morris 

This is a civil penalty proceeding initiated by Petitioner 

against Respondent pursuant to the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. S 801, et seg. (the "Act"). The civil 

penalties sought here are for the violation of mandatory regulations promulgated pursuant to the Act. 

A hearing in this case and related cases commenced in Glenwood Springs, Colorado, on April 15, 1992. The parties reached a 

partial amicable settlement and subsequently filed a written 

Joint Motion to Approve settlement. 

Respondent further filed a suggestion of bankruptcy. 

The Citations, the original assessments, and the proposed 

disposition are as follows: 

Citation/Order 

lfUmber 

3410363 

3410391 

3411019 

Proposed 

Penalty 

$1,000.00 

1,100.00 

1.600.00 

$3,700.00 

1262 

Amended 

Proposed Penalty 

$ 600.00 

660.00 

960.00 

$2,220.00 
In support of that motion, the parties submitted information relating to the statutory criteria for assessing civil 

penalties as contained in 30 u.s.c. S 820{i). 

I have reviewed the proposed settlement and I find it is 

reasonable and in the public interest. It should be approved. 

Accordingly, I enter the following: 

ORDER 

1. citation Nos. 3410363, 3410391, and 3411019 and the 

amended proposed penalties are AFFIRMED. 

2. Order No. 3410800 was reassessed and settled in WEST 

92-717. Accordingly, it is deleted from this penalty proceeding. 

3. Respondent filed a case under Chapter 11 of the Bankruptcy Code and is operating its bankruptcy estate as a debtorin-possession. Accordingly, upon approval of the United States 

Bankruptcy Court in Case No. 91-11658 PAC, it is ORDERED that 

civil penalties be assessed against the Respondent in the amount 

of $2,200.00 and Petitioner is authorized to assert such assessment as a claim in Respondent's Bankruptcy case. 

4. The undersigned Judge retains jurisdiction of this case 

and related cases not otherwise disposed of by the settlement 

herein. 

Distribution: 

Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, CO 80294 {Certified Mail) 

Edward Mulhall, Jr., Esq., DELANEY & BALCOMB, P.C., P.O. Drawer 

790, 818 Colorado Avenue, Glenwood Springs, co 81602 {Certified 

Mail) 

ek 

1263 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 3 0 1993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

. . 

. . 

: 

Docket No. WEVA 92-992 

A.C. No. 46-01453-04013 

Docket No. WEVA 92-993 

A.C. No. 46-01453-04014 

Docket No. WEVA 92-1042 

A.C. No. 46-01453-04020 

: Humphrey No. 7 Mine 

PARTIAL DECISION PENDING FINAL ORDER 

Appearances: Charles M. Jackson, Esq., Office of the Solicitor, 

u.s. Department of Labor, Arlington, Virginia, 

for Petitioner; 

Daniel E. Rogers, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, 

for Respondent. 

Before: Judge Barbour 

STATEMENT OF THE CASE 

In these civil penalty proceedings arising under the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. S 801 et seq. (the 

"Mine Act" or "Act"), the Secretary of Labor ("Secretary"), on 

behalf of the Mine Safety and Health Administration ("MSHA"), 

charges Consolidation Coal Company ("Consol") with violating 

various safety regulations for underground coal mines, 

promulgated by the Secretary at Title 30, Part 75 of the Code of 

Federal Regulations ("C.F.R."). In addition, the Secretary 

charges that certain of the violations constituted significant 

and substantial contributions to mine safety hazards ("S&S" 

violations) and that one was the result of Consol's unwarrantable 

failure to comply with the cited regulation. 

A hearing on the merits was conducted in Morgantown, West 

Virginia. At the commencement of the hearing, counsels advised 

me they had agreed to stipulations applicable to all of the 

violations they would try. Tr. 9. They advised me further they 

had agreed to settle one of the violations at issue and they 

requested a stay in the contest of another citation pending the 

then forthcoming decision of another Commission administrative 

law judge. They added that they would resolve their. differences 

with respect to the stayed contest based upon that judge's 

decision. Tr. 13-14. In response, I requested the parties read 

1264 
their stipulations into the record. I 

would entertain on the record a motion 

and would rule upon the motion in this 

indicated that I would grant the stay. 

also indicated that I 

to approve the settlement 

decision. Finally, I 

Tr. 13-15. 

STIPULATIONS 

The parties stipulated as follows: 

~ Tr. 9-10. 

Citation Bo. 

3108615 

1. Consol is the owner and operator 

of the Humphrey No. 7 Mine; 

2. Operations of Consol are subject 

to the jurisdiction of the Mine 

Act; 

3. This case is under the jurisdiction 

of the Federal Mine Safety and Health Review 

Commission and its designated administrative 

law judge pursuant to sections 105 and 113 

of the Mine Act; 

4. The individual whose signature 

appears on the citations at issue, 

Thomas w. May, Sr., was acting in his 

official capacity as an authorized 

representative of the Secretary of 

Labor when each of the citations was 

issued; 

5. True copies of each of the citations 

at issue in this case were served on 

Consol or its agent as required by the 

Mine Act; 

6. The total proposed penalty for the 

citations contested by Consol in this 

case will not affect Consol's ability 

to continue in business. 

~ 

2/3/92 

'IJIB SBTTLBMBNT 

pocket NO. WBVA 92-992 

30 C.P.R. 

section 

77.402 

Assessment 

$20 

Settlaent 

$20 

The citation was issued because a Black & Decker hand-held 

drill did not have controls requiring constant hand or finger 

1265 
pressure to activate. Rather, the drill was equipped with a lock 

on its trigger switch. Thus, the drill had a safety device, but 

not the kind of protective device required by the standard. The 

inspector found that the violation was not S&S and was due to 

Consol's moderate negligence. The inspector also indicated it 

was unlikely the drill operator would have been injured due to 

the violation. The parties stated that the had agreed that 

Consol would pay the proposed civil penalty. 

Considering the fact that the drill was protected from 

accidental activation by a safety device and taking account of 

the inspector's low assessment of gravity and his finding of 

moderate negligence, as well as the other civil penalty criteria 

set forth at the close of this decision, I conclude that the 

proposed settlement is warranted and I approve it. Subsequently, 

I will order Consol to pay the agreed amount. 

Citation No. 

3108613 

'l'JIE STAY 

DOCKET NO. WEVA 92-992 

Date 

1/28/92 

30 C.P.R. 

Section 

75.1003(c) 

Assessment 

$206 

Counsel for the Secretary stated the parties' request that 

the contest of the penalty proposed for this alleged violation be 

stayed pending a decision by Commission Administrative Law Judge 

Avram Weisberger. He further stated that the parties expected to 

resolve their differences regarding this violation based upon 

that decision. I granted the parties' request. 

Judge Weisberger's decision was issued subsequent to the 

hearing on this matter. Consolidation Coal Co., 15 FMRHRC 436 

(March 1993). The parties have yet to advise me that they have 

resolved their differences. Therefore, at the close of this 

decision I will order the parties to file their settlement 

agreement and to move for my approval of said agreement. This 

decision will not become final until all issues concerning 

Citation No. 3108613 have been resolved. 

CONTESTED CITATIONS AND ORDER 

QRDER 01' PROCEEDING 

I will discuss and decide the contests in the sequence in 

which the parties chose to try them: Docket No. WEVA 92-993, 

Docket No. WEVA 92-992 and Docket No. WEVA 92-1042. 

1266 
POCKET NO. WBVA 12-113 

Section 104Cal Citation No. 3108745. 2/6/92. 30 C.F.R. S 75.305 

The citation states: 

The weekly examination for 

hazardous conditions conducted on 

2/3/92 by R. Calonero was not 

adequate. The examination was of 

the 12 East return aircourse. 

There was damage to one stopping 

and a 1/2 block out of another 

stopping that was not listed in the 

record book. 

G. Exh. 5. The citation charged that the condition constituted a 

violation of section 75.305 and that the violation was S&S. 1 

THE TESTIMONY \ 

'l'IIOMAS W. MAY 

Thomas w. May, an inspector employed by MSHA, was the sole 

witness for the Secretary. May stated that on February 6, 1992, 

he arrived at Consol's Humphrey No. 7 Mine at approximately 

7:45 a.m. He was at the mine to conduct a regular inspection. 

Tr. 28-29. Shortly after arriving, May went underground 

accompanied by Stanley Brozik, Consol's safety supervisor, and by 

the representative of miners, Sam Woody. Tr. 29. As the 

inspection party traveled the 12 east return aircourse, May noted 

two defects in stoppings located between the number three and 

number four entries. 

One of the defects was "a place 

a block had been left out." Tr. 29. 

as a hole approximately eight inches 

that such a hole normally is made to 

in the stoppings where half 

(May described the "place" 

square. ~) May explained 

permit the hose from a rock 

1 30 C.F.R S 75.305 which was in effect when the subject citation 

was issued and which subsequently has been revised effective August 16,1992, 

57 PR 20914 (March 15, 1992), required in pertinent part, that in addition to 

preshift and daily examinations, examinations for hazardous conditions be made 

at least once each week by a certified person designated by the operator at 

certain specified areas and that if any hazardous condition is found it shall 

be reported to the operator promptly and that a record of the examinations 

shall be kept in a book on the surface by the operator and open to inspection 

by interested persons. Section 75.305 was replaced by 30 C.F.R. S 75.364. 

1267 
dusting machine to pass through the stopping. 

has been completed, the hose is withdrawn and 

patched. In this case, although the hose was 

one had repaired the stopping. Tr. 29-30. 

After rock dusting 

the hole is 

no longer there, no 

Also, May observed another stopping that was being crushed 

due to "heaving" of the floor. (May described "heaving" as 

"where the bottom actually goes into an arch. The pressure on 

the coal pillars shoves down and the bottom in the open entries 

then comes up." Tr. 31.) May testified that the crushing of the 

stopping created gaps in the stopping around the frame of its man 

door and May said he could hear air leaking through the gaps. 

Tr. 33. 

Plastic had been placed over the stopping in what May 

speculated was an attempt to stop the air from leaking. 

According to May, this was not successful and the "plastic was 

flapping (in the leaking air] and making all kinds of noise." 

Tr. 37. The plastic was on the intake side of the stopping, and 

May was walking the return side. Nonetheless, May could see the 

plastic through the holes and could hear it flapping. He 

believed that Robert Calonero, who had conducted a weekly 

examination for hazardous conditions on February 3, and who had 

walked the return entry as part of that examination, likewise 

could have seen and heard the plastic. Tr. 51-52. 

With regard to the hazards presented by the crushed 

stopping, May noted that the air was leaking from the intake 

entry into the return entry and he was fearful the leaking air 

would cause a short-circuit of the ventilation of the working 

section, which in turn would result in a velocity of air at the 

face that was inadequate to render harmless and carry away 

methane and respirable dust. Tr. 34. In addition, the hole in 

the first stopping would contribute to the recirculation. 

May explained that he believed the hole in the first 

stopping was purposefully cut to allow the hose from the rock 

dusting machine to pass through the stopping. Although he did 

not know exactly when this had happened, he had observed a 

person's footprints on the rock dusted floor of the return entry 

and he believed that the footprints were made by Calonero when he 

examined for hazardous conditions on May 3. Tr. 30. May also 

explained that he believed the second stopping had been subjected 

to heaving pressures for a long time and that the condition of 

the stopping had deteriorated progressively until it had reached 

the stage in which he found it. 

Upon returning to the surface, May inspected the book in 

which the reports of the weekly examination for hazardous 

conditions were kept. He noted that not only was the examination 

report for February 3 missing a reference to the condition of the 

stoppings, but also that there was no reference to the condition 

in the report of the examination conducted previous to 

1268 
February 3. Tr. 36-37, 43-44. May found the failure to report 

the condition of the stoppings to be a violation of 

section 75.305. Tr. 40. 

May also found that the violation was S&S. He stated that 

the mine liberates methane at the rate of more than one million 

cubic feet every twenty-four hours. Tr. 40. Had the condition 

of the stoppings been allowed to continue unabated during normal 

mining operations, he believed that ventilation in the return 

entry would have been short circuited to the extent that it was 

reasonably likely an explosive concentration of methane would 

have accumulated and an ignition or an explosion ignited by 

friction from the bits on the continuous mining machine cutting 

into rock at the face would have occurred. Tr. 41, 62. 

He explained that without the condition of the stoppings being 

recorded, the stoppings probably would not have been repaired, 

and it was reasonably likely that the stopping that was being 

crushed would have collapsed completely and short-circuited the 

air. Tr. 62-63. In May's opinion, by recording the condition of 

the stoppings in the examination book, "the mine foreman can 

address the situation, get it corrected in a timely manner and 

eliminate the hazard." Id. (However, May also confirmed that at 

the time he observed the condition of the stoppings there was 

27,450 cfm at the face of the affected section-- three times 

more than the required minimum and that he had found point-one 

percent (.1%) methane in the return air, as low a reading as he 

could obtain using his methane detector. Tr. 57-58, 61-62.) 

Further, May believed Consol was negligent in failing to 

note the condition in the weekly examination book. May testified 

that the foreman, Earl Hagedorn, had told him that he did not 

want such conditions put in the book and that he preferred miners 

write descriptions of conditions needing correction on slips of 

paper and give him the slips. Tr. 44-45. May told Brozik what 

Hagedorn had said and Brozik told Hagedorn that the conditions 

"had to be put in the book." Tr. 45. 

May also testified he believed that Calonero should have 

been aware of his failure to perform an adequate examination on 

February 3. Tr. 47. May testified that he believed the 

footprints in the rock dust on the floor of the return entry were 

Calonero's and were made after the hole for the rock dusting 

machine's hose had been cut in the stopping. He believed this 

because the footprints went straight up the entry the way an 

examiner would have walked, rather than back and forth across 

it, the way a miner rock dusting the entry would have traveled. 

Tr. 54-55, 83-84. Moreover, and in May's opinion, the stopping 

that was being crushed-out had deteriorated gradually and thus 

should have been readily observable on February 3. Tr.87-88. 

1269 
When asked by counsel whether the violation cited was for 

failing to record the condition of the stoppings or for failing 

to notice the conditions during the weekly examination, May 

replied, "It would be one and the same • • • If he did not record 

them, then the only thing that I can assume is that he didn't 

notice them or did not do his exam properly as the regulation 

requires." Tr. 48. May added, "He failed to report the stopping 

damage, so the only thing that you can assume from that was that 

he was unaware [of the condition of the stoppings] because he 

wasn't doing the job that was required by section 75.305. 11 

Tr. so. 

Finally, May stated that the ventilation plan for the 

Humphrey No. 7 Mine required the stoppings to be reasonably air 

tight and that the conditions he found on February 3 violated the 

plan. Nonetheless, he wrote the citation solely "for the 

examination." Tr. 56, 61. 

ILDON HAGEDORN 

Eldon Hagedorn, the mine foreman at Humphrey No. 7 Mine, was 

the first witness to testify for Consol. Not surprisingly, 

Hagedorn had a different view of the conversation in which he 

told May that he wanted conditions requiring correction to be 

written down and the written reports to be given to him. He 

stated the practice at the mine was for the shift foremen to 

advise him of conditions that were not yet hazardous but which 

had the potential for so becoming. He wanted to be advised of 

the conditions in order to make certain they were taken care of. 

Tr. 94-95. He stated that he had never given instructions that 

hazardous conditions should not be entered in the weekly 

examination book because, "It would be my job." Tr. 95. 

Calonero, he added, had not told him about the condition of the 

subject stoppings nor ever given him a written slip of paper 

referring to it. Tr. 95-96. 

STANLEY BROZIK 

Stanley Brozik, safety supervisor at the Humphrey No. 7 

Mine, was Consol's last witness. He accompanied May when May 

issued the citation, and he agreed that the stoppings were 

basically as described by May. Tr. 100-101. Further, he stated 

that if the stopping that was being crushed had failed completely 

there would have been a significant reduction of ventilation at 

the face. He explained that the intake air would have leaked 

directly into the return entry at the crushed stopping, robbing 

the face of ventilation. Tr. 101-102. He noted, however, that 

had normal mining operations continued at the face, the 

continuous mining machine was equipped with a methane monitor 

which would have "knock[ed] the power" long before the methane 

content of air at the face would have reached an explosive level. 

Tr. 102. He also noted that the continuous mining machine 

1270 
operator had to check for methane every twenty minutes and that 

the section foreman had to check every two hours. Tr. 102-103. 

Brozik speculated that the crushed stopping would not have 

collapsed the next day or the following day. He stated that it 

might have lasted "over a period of years" but he admitted this 

was "only ••• speculation." Tr. 106. 

'l'RE VIOLATION 

Consol is charged with an inadequate weekly examination for 

hazardous conditions. There is no serious dispute that the 

stoppings were in the condition described by May. There is 

likewise no dispute that the condition of the stoppings was not 

entered in the weekly examination book. Section 75.305 requires 

hazardous conditions found by the examiner during the course of 

the weekly examination of a return aircourse to be reported 

promptly and a record of the examinations to be recorded in a 

book kept on the surface. As May testified, and as common sense 

indicates, a main purpose of the recording requirement is to 

alert miners to the hazardous conditions and to facilitate their 

correction, an action also required by the regulation. 

Because the condition of the stoppings was not recorded, the 

question is whether the condition was hazardous? I fully credit 

May's testimony regarding the danger presented by the defective 

stoppings, and I note that May was not alone in recognizing the 

hazard. Brozik too agreed that had the second stopping been 

crushed-out, air reduction at the face would have been 

significant. I conclude that the condition of the stoppings 

created the potential for a serious mine accident and I find that 

the condition was hazardous. 

I also conclude that the condition existed on February 3 

when the weekly examination was conducted. I am fully persuaded 

by May's explanation that the footprints he observed in the entry 

were most likely those of Calonero. Certainly, none of Consol's 

witnesses offered as plausible an explanation. Moreover, the 

weight of the evidence establishes that the hole in the first 

stopping was purposefully made to accommodate the hose of the 

rock dusting machine. Obviously, the entry had to have been 

rockdusted before Calonero's footprints could have appeared in 

the dust. Thus, I infer that the hole existed when Calonero 

passed it. 

With respect to the crushed stopping, May's testimony that 

such a condition happens over time is persuasive and was not 

refuted. While the stopping may not have been as badly crushed 

on February 3 as when May saw it three days later, I conclude 

that it was nonetheless in a noticeably deteriorated state and 

its condition should have been recorded. 

1271 
I therefore aqree with May that consol's failure to record 

the condition of the subject stoppinqs in the surface examination 

book establishes that the weekly examination for hazardous 

conditions conducted on February 3 was inadequate and that the 

Secretary has proved a violation of section 75.305. 

In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the 

Commission set forth the four elements of a "siqnificant and 

substantial" violation. The Commission explained that to find a 

violation S&S, the Secretary has the burden of provinq an 

underlyinq violation of a mandatory safety standard, a discrete 

safety hazard (a measure of danqer to safety) contributed to by 

the violation, a reasonable likelihood that the hazard 

contributed to will result in an injury, and a reasonable 

likelihood that the injury in question will be of a reasonably serious nature. In u.s. Steel Mining co., 6 FMSHRC 1834, 1836 

(Auqust 1984),the Commission amplified the meaninq of the third 

element of the Mathies test, explaininq it "requires that the 

Secretary establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there is an 

injury." 

Here, I have found that there indeed was a properly cited 

violation of section 75.305. Moreover, I aqree with May that the 

failure to adequately inspect for hazardous conditions 

contributed to a discrete safety hazard -- a failure to fix the 

stoppings and the resulting danger of inadequate ventilation at 

the face leading to the buildup of methane and the exposure of 

miners at the face and on the section to an ignition and 

explosion hazard. I further agree with May that had there been 

an ignition and explosion the incident would have resulted in 

reasonably serious, even fatal, injuries to miners. 

The question is whether the Secretary has established a 

reasonable likelihood that the failure to repair the stoppings 

would have resulted in an event in which there would have been an 

injury? I conclude that he has. I note the Commission's 

admonition that the likelihood of injury must be evaluated in_ 

terms of continued normal mining operations, u.s. steel Mining 

Co., 6 FMSHRC 1573, 1574 (July 1984), and further that the 

operative time frame for determining if a reasonable likelihood 

of injury exists includes the time the violations would have 

existed if normal mining operations had continued. Halfway, Inc., 

8 FMSHRC 8,12 (August 1986), U.S. Steel Mining Co. 7 FMSHRC 1125, 

1130 (Auqust 1985). 

In essence, Brozik agreed with May that had normal mining 

continued, the stopping that was being crushed would have 

collapsed and that this would have led to a loss of ventilation 

at the face. Their fears were warranted in view of the nature of 

1272 
the pressures to which the stopping was being subjected and in my 

view establish the reasonable likelihood that face ventilation 

would have been disrupted and given the gassy nature of the of 

the mine, that methane would have accumulated to explosive 

levels. I come to this conclusion because the testimony 

establishes that the pressure on the stopping was continuous and 

that the resulting deterioration of the stopping was ongoing. In 

addition, the area in which the stoppings existed was not 

inspected on a daily basis and one of the premises of the 

standard's requirement to record reported hazardous conditions 

obviously is that the recording will serve as a signal for 

correction. In short, the failure to adequately comply with 

section 75.305 on February 3, was causally linked with the 

condition of the stoppings on February 6, and would have remained 

so linked had normal mining operations continued. 

GRAVITY AND NEGLIGENCE 

This was a serious violation. The importance of adequate 

compliance with the cited regulation was pointed out by May and 

is implicate in the standard itself. As I have noted, the 

recording of hazardous conditions can be fundamental to their 

correction and, in my opinion, is especially important when the 

hazard relates to something so central to safety as the 

ventilation of the face in a gassy mine. 

The fact that the condition of the stoppings was visually 

obvious and was not entered in the weekly examination book, in 

and of itself establishes Consol's negligence. The regulations 

requires such recording and in failing to comply Consol failed to 

meet the standard of care required by the regulation. 2 

Section 104Cal Citation No. 3108748, 2/12/92. 30 C.F.R.§ 75.503 

The citation states: 

The Joy continuous miner on the 12 East 

section is not maintained in permissible 

condition. The continuous miner is in 

the face of the [No.] 1 entry and there 

are two headlights that are not securely 

mounted on the equipment. The headlight[s) 

are at the roof bolting station opposite 

the operator. One headlight is loose 

and the other has one bolt missing. 

2 I am not persuaded, however, that Hagedorn instructed miners to 

di•regard section 75.305's requirement to record hazardous conditions. He 

denied it, and as he said, such instructions would have been cause for his 

dismissal. Moreover, in the context of running a productive mine, Hagedorn's 

explanation that he wanted to be advised in writing about conditions that were 

not yet hazardous but that could deteriorate to that level is both pragmatic 

and plausible. 

1273 
G. Exh. 6. The citation charges that the condition constituted a 

violation of section 75.503 and that the violation was S&S. 3 

THE TESTIMONY 

THOMAS W. MAY 

May testified that on February 12, 1992, he conducted an 

inspection at the Humphrey No. 7 Mine in the company of Consol 

safety escort, Robert Smith, and miners• representative, Sam 

Woody. While visiting the 12 east section, May checked the 

continuous mining machine to determine whether it was maintained 

in permissible condition. Tr. 113-114. On the left side of the 

machine May observed two headlights. Each light had two bolts 

that attached the light to the frame. The bolts holding one of 

the headlights to the frame were loose. The other headlight also 

had a bolt missing and May described its second bolt as 

"extremely loose." Tr. 115. According to May only "a couple of 

threads" held the second bolt to the frame. The nut that should 

have secured the bolt to the frame had fallen off. Tr. 116. 

May stated that when he observed the continuous mining 

machine it was inby the last open crosscut. The machine was 

energized but was not mining. If it had been mining, the 

headlights would have been approximately ten feet from the face. 

Tr. 117. May could not say for certain whether the continuous 

mining machine had been in use prior to his arrival on the 

section, but he believed that if it had not been, it was ready to 

start mining. Tr. 180-181. (May testified that he asked the 

mining machine operator if he were ready to begin and the 

operator answered, "Yeah." Tr. 178.) May stated that when he 

called the condition of the headlights to Smith's attention, 

Smith summoned a mechanic who replaced the missing bolts and nut 

and who then tightened the headlights to the frame. Tr. 117. 

May was asked his opinion as to whether the condition of the 

headlights violated a mandatory safety standard? He stated that 

section 75.503 requires electric face equipment taken into or 

used inby the last open crosscut to be maintained in permissible 

3 Section 75.503 states: 

The operator of each coal mine 

shall maintain in permissible condition 

all electric face equipment required by 

SS 75.500, 75.501, 75.504 to be 

permissible which is taken into or used 

inby the last open crosscut of any such 

mine. 

Consol does not challenge the Secretary's contention that the cited continuous 

mining machine is "electric face equipment." 

1274 
condition. According to May, "permissible condition" means that 

such equipment be maintained as approved by MSHA. May stated 

that the regulations setting forth the standards for approval are 

found at 30 C.F.R. Part 18. In particular, he noted that section 

18.46(b) requires headlights to be protected from damage by 

guarding. Tr. 119-120, 145-147. 4 

Regarding the hazard presented by the violation, May stated 

that had the mining machine continued in operation, the vibration 

of the machine could have caused the headlights to fall from the 

machine. In fact, in his opinion, the headlight that was missing 

one bolt altogether and had the nut missing from the other bolt 

would have fallen during the course of the shift on which the 

violation was cited. Tr. 123. Further, the other headlight would 

have continued to loosen during ongoing mining, and it too 

ultimately would have fallen, although perhaps not during the 

course of the ongoing shift. Tr. 157. 

Had one or both of the lights fallen from the frame they 

would have pulled their conductors loose, which in turn would 

have exposed bare, uninsulated wires. If the exposed wires had 

contacted a person (and May noted the miner installing roof bolts 

at the face usually worked within one foot of the lights) the 

person could have been seriously shocked or even electrocuted. 

Or, had the uninsulated conductors touched one another, they 

could have sparked and become an ignition source for methane or 

coal dust at the face. Tr. 124-127. In addition, any arc or 

spark could have ignited the lubricant used to grease the mining 

machine's ripper heads. Tr. 157-158. In May's opinion, the 

situation created by the condition of the headlights was "very 

dangerous." Tr. 129. 

May believed it reasonably likely that a miner would have 

been shocked had one of the headlights become detached from the 

machine. He noted that the roof bolter's proximity to the light 

and the fact that the miner installing the roof bolts would have 

had his back to the machine while he was working and would have 

been unable to see the condition of the headlights. Tr. 129-130. 

May also believed it "real likely" an instantaneous arc or 

spark sufficient to ignite methane or coal dust at the face or to 

ignite the lubricant on the machine would have occurred when a 

headlight fell from the machine. Tr. 131. May acknowledged that 

the machine had short circuit protection, however he stated that 

4 Section 18.46(b) states: 

Headlights shall be mounted to 

provide illumination where it will be 

effective. They shall be protected from 

damage by guarding or location. 

1275 
power to the machine would not have deactivated necessarily if 

the conductors touched. Tr. 150-151. 

May was of the opinion that consol manageme.nt should have 

been advised of the condition of the headlights through having 

been told by the continuous mining machine operator or the miner 

installing roof bolts. or, management should have known of their 

condition through the foreman's on-site observation. 

Tr. 136-140. May emphasized that the condition of one of the 

lights was visually obvious because due to the missing and loose 

bolts the light was not "sitting square." Tr. 141. In fact, its 

out of kilter position had alerted May to check the condition of 

both headlights. Tr. 144. 

ROBERT SMITH 

Company safety escort Smith agreed with May that the 

headlights were loose. Tr. 166. However, he did not recall 

whether one of the lights was missing a bolt. Tr. 169. Smith 

stated that the continuous mining machine operator would have 

checked the headlights before he started to mine. Although the 

fan was on and the section was ventilated, Smith did not believe 

mining had actually started when the inspection party arrived on 

the section. Tr. 170-171. Smith admitted that the party had not 

arrived on the shift until two hours after the shift had 

commenced and he acknowledged that this would have been a late 

time to have begun mining, however, he explained the late start 

by speculating, "things ••• break down." Tr. 172. Smith 

reviewed notes he had written after the violation had been cited. 

They indicated that "the people on the section had not had time 

yet to make the checks on the miner. At the time of the 

inspection, the crew had not started mining." Tr. 174. Smith 

stated that although he did not recall May asking the foreman if 

he was ready to start mining, it would not have surprised him if 

May had done so. Tr. 175. 

THE VIOLATION 

I conclude that May properly cited Consol for a violation of 

section 75.503. That regulation requires to be in permissible 

condition all electric face equipment taken into or used inby the 

last open crosscut. There is no doubt, and I find, that the 

headlights were loose as described by May. Nor is there any 

doubt but that the continuous mining machine is electric face 

equipment and that when it was observed by May it was inby the 

last open crosscut. Indeed, it had been backed but a little 

distance away from the face in order to bring it under supported 

roof. Tr. 179. The question is whether the condition of the 

lights meant that the continuous mining machine was no longer in 

permissible condition? 

1276 
May and counsel for the Secretary believe that the missing and loose bolts and the resulting loose nature of the lights establish they were not adequately protected from damage by 

guarding or location and thus were not permissible pursuant to 

section 18.46(b). ~ Tr. 191. I disagree with this rationale. 

It seems to me that when section 18.46(b) refers to protection 

from damage by "guarding or location" it references the design of 

the equipment, not defects in the implementation of the design. 

Moreover, as I read the testimony, there is no basis for 

concluding the "location" of the headlights failed to protect 

them, and May was clear in his belief that the headlights did not 

require a quard. 

In any event, I need not rule on the adequacy of the 

Secretary's permissibility theory because there is another well 

established basis for finding the headlights were not maintained 

in permissible condition. Section 75.506, 30 C.F.R. § 75.506, 

sets forth the requirements for permissibility. Section 

75.506(a), 30 C.F.R. S 506(a), states that permissibility is 

dependent upon two criteria: (1) equipment must be built 

according to Schedule 2G or a modification thereof, and (2) it 

must be maintained according to schedule 2G or a modification 

thereof. Schedule 2G contains the substantive prerequisites of 

permissibility for, among other things, continuous mining 

machines. Appendix II of Schedule 2G lists various conditions 

that must be satisfied to retain permissibility, and one of the 

conditions is that "all bolts, nuts, screws and other means of 

fastening • • • shall be in place, properly tightened and 

screwed." Nor should this requirement come as a surprise to 

either Consol or the Secretary, for it has long been recognized. 

See Kaiser Steel Corporation, 1 MSHC 1229, 1233 (December 24, 

1974). 

As I have found, all bolts and nuts on the two lights were 

not in place and properly tightened. Therefore, the violation 

existed as charged. 

I conclude that the Secretary also has established the S&S 

nature of the violation. May was specific in describing the 

potential hazards presented to miners, both in terms of a shock 

hazard and in terms of an explosion and fire hazard, and I find 

that both discrete safety hazards were established by his 

testimony. It makes sense, given the missing and loose bolts and 

the vibration of the lights caused by the operation of the 

continuous mining machine that, as May testified, one of the 

lights would have fallen during the shift on which the violation 

was cited, and it makes equal sense that the falling light would 

have pulled the conductors loose and exposed the bare wires, 

either touching them to the frame of the machine or to each 

other. (There was, afterall, nothing to restrain the lights 

1277 
should they have started to fall from the frame.) The fact that 

the continuous mining machine had short-circuit protection, while 

lessening the chances of a shock injury, did not defeat it 

because, as May testified, such protection could have failed. 

Moreover, an arc or spark sufficient to serve as an ignition 

source in the gassy mine would have occurred almost 

instantaneously upon the conductors contacting the frame or one 

another and before the short-circuit protection could have 

"kicked in." Further, May's testimony clearly establishes, the 

presence in the immediate vicinity of the lights of at least two 

miners -- the continuous mining machine operator and the miner 

installing roof bolts -- who would have been subjected to the 

hazards had mining continued. 

In my view, the testimony also establishes the reasonable 

likelihood that a shock injury or a methane explosion or fire 

would have occurred. I credit May's statement that he was told 

mining was about to begin on the section. While Smith's notes 

indicated there had not yet been time to check the continuous 

mining machine, the shift was already two hours old and there is 

no indication that the lights would have been checked and their 

condition detected and corrected before mining. In addition, 

while there was no testimony regarding the presence of methane on 

the section or coal dust or combustible lubricants on the machine 

when the violation was cited, all could have accumulated as 

mining progressed during the course of the shift and this is 

especially so of methane, given the fact that the Humphrey No 7 

Mine is a gassy mine. See u.s. Steel Mining co., 6 FMSHRC 

1866,1868-69 (August 1984). 

Finally, I credit May's belief that had a miner been shocked 

or subject to an ignition or explosion, the resulting injuries in 

all likelihood would have been of a reasonably serious nature. 

Indeed, had the hazard occurred the continuous mining machine 

operator and/or the miner installing roof bolts would have been 

lucky to have been only seriously injured. 

GRAVITY AND NEGLIGENCE 

This was a serious violation. The magnitude of the injuries 

that could have been triggered by the violation and the fact that 

miners on the section were exposed to hazards that were 

reasonably likely to occur establishes its grave nature. 

Moreover, the violation was the result of n~gligence on 

Consol's part. As May noted, one of the lights was obviously 

skewed due to its missing and loose bolts, and this visual clue 

led May to check both headlights and to detect the violation. 

When he found that both headlights were loose, miners had been on 

the section for over two hours. Mining may not have commenced, 

but there were miners in the immediate vicinity of the continuous 

mining machine and they were ready to begin mining. Therefore, I 

1278 
agree with May that·the section foreman should have detected the 

condition and should have had it corrected. 

POCKET HO. WEVA 92-992 

Section 104Cal Citation No. 3108607. 1/28/92, 30 C.F.R. s 

75.1722{b) 

The citation states: 

The guard on the stationery 

dolly takeup pulley is not guarded 

for a distance sufficient to 

prevent a person from reaching 

behind the guard and becoming 

caught between the belt and the 

pulley. The guard is 33 inches wide 

and 20 inches high. It is 11 inches 

from the end of the guard to the 

pulley. There is another guard 

that has been removed from this 

area that is against the coal rib. 

There has been no shoveling done in 

the area of the guard that would 

have constituted removal of the 

guard when the belt was out of 

service. This condition is on the 5 

Northwest section belt. 

G. Exh. 10. The citation charges that the condition constituted 

a violation of section 75.1722(b) and that the condition was 

s&s. 5 

THE TESTIMONY 

THOMS W. KAY 

May testified that on January 28,1992, he conducted an 

inspection of the Humphrey No. 7 Mine in the company of Smith and 

Sam Woody, the miners' safety representative. The inspection 

party proceeded to the Five Northwest Section conveyor belt 

drive. The drive mechanism powered the conveyor carrying coal 

from the longwall face. Tr. 235. Upon arriving at the drive May 

5 Section 1722(b) states: 

Guards at conveyor-drive, conveyorhead, and conveyor-tail pulleys shall 

extend a distance sufficient to prevent a 

person from reaching behind the guard and 

becoming caught between the belt and the 

pulley. 

1279 
saw that the guard over the top of the drive pulley had been 

removed and placed against the rib. Tr. 206. The pulley itself 

was stationary, and as May acknowledged, guided the belt but did 

not drive it. Still, in his view the stationary pulley was part 

of the belt drive unit and thus was a "conveyor-drive pulley" as 

that term is used in section 75.1722. Tr. 233-234. As May 

stated, "You can have pulleys in your drive unit that do not have 

power going to them." Tr. 234. (He explained that the pulley 

helped to keep tension on the belt so that the belt would not 

slip. Without the pulley the conveyor belt drive mechanism could 

not drive the belt. Tr. 233.) 

May described the removed guard as being approximately 4 by 

6 feet in size. The guard had been fastened to the belt 

structure and had hung down over the point where the conveyor 

belt passed the drive pulley. Tr. 207. In place of this larger 

guard a smaller guard had been installed, it being about 30 

inches wide by 20 inches high. According to May, the smaller 

guard left a gap of approximately 11 inches between the end of 

the guard and the pinch point. Tr. 206-207. Further, the rib 

was about 24 inches from the guard. Tr. 209. The area between 

the rib and the belt structure was used as a walkway. Tr. 210. 

Although usually the belt was positioned in the middle of the 

entry (Tr. 262), in this instance it was off to one side (the 

right hand side when facing outby) and thus a wider walkway 

existed on the left side of the belt than on the right side. 

May agreed that there was screening all along the left side of 

the belt to prevent access to the belt. Tr. 235-236 and 238. 

In addition, there were crossovers and crossunders at intervals 

along the belt to provide access to the narrow side of the belt 

to those walking the right side and vise versa. Tr. 238. In 

fact, there was a crossunder just outby the subject belt drive 

unit. ~ According to May the narrow walkway on the right side 

(the walkway between the rib and the belt drive pulley guard) was 

used by preshift examiners on alternate shifts during their 

examinations of the belt. (In other words, preshift examiners 

walked both sides of the belt on an alternate basis.) According 

to May the narrower walkway also was used by miners assigned to 

clean the belt and by miners who were required to travel to the 

regulator. Tr. 210-212. 

In May's opinion the smaller guard was inadequate because 

the 11 inch gap would have allowed a miner to reach in and become 

caught in the pinch point between the belt and the pulley. 

Tr. 208. 

May also testified that the area involved had an "area 

guard," which purportedly guarded the entire area containing the 

conveyor belt drive mechanism. The area guard consisted of 

pieces of screen secured to the belt structure and extending to 

the right side ribs at both ends of the drive mechanism. One 

screen was located approximately 10 to 15 feet from the area 

1280 
where the belt drive pulley guard was in place and the second 

screen was located at the other end of the belt drive belt 

mechanism. May could not recall how far that was from the 

pulley, but estimated that it might have been 200 feet. 

Tr. 238-241, 250-252. According to May, the screen nearest the 

pulley was not locked or fastened in any way and to enter the 

area that had been screened-off all that was necessary was to 

push the screen back. Tr. 214. May could not recall whether 

there were any warning signs on or near the screen. Tr. 215. 

May had first seen this area guard during an inspection on 

January 15. Smith was with him then and Smith told May that MSHA 

had accepted area guards as satisfactory to guard the entire area 

they enclosed. Tr. 213. May had never observed area guarding 

before and he advised Smith that he would discuss it with his 

supervisor and fellow inspectors. Tr. 213. May went back to his 

office (the MSHA office located in Fairmont, West Virginia) where 

he was advised that when the Humphrey No. 7 Mine had been 

transferred for inspection purposes to the Fairmont office from 

the Morgantown, West Virginia MSHA office in April 1991, another 

MSHA inspector, one of the first from the Fairmont office to 

inspect the mine, had told mine management that area guarding was 

not acceptable to MSHA and that although the area guarding could 

be left in place the individual drive pulleys also would have to 

be guarded to meet the requirements of section 75.1722(b). 

Tr. 217. (May testified that he did not know what MSHA policy 

was with respect to area guarding when the mine had been 

inspected out of the Morgantown office. Tr. 245.) 

On January 27, a meeting was conducted involving various 

officials from mine management, including Smith, Brozik, and mine 

foreman Eldon Hagedorn. MSHA officials involved including May 

and Fairmont MSHA office supervisor, Cecil Branham. Union 

representatives also participated. Tr. 219. Area guarding was 

among the subjects discussed. May believed that prior to the 

January 27 meeting Branham had already told Brozik in a telephone 

conversation that MSHA would not accept area guarding as 

complying with section 75.1722 and, according to May, Branham 

reiterated this position at the January 27 meeting. May 

testified that Branham stated that he would accompany May to the 

mine to see for himself whether Consol was complying with the 

guarding regulations by guarding the actual pulleys rather than 

the area around the pulleys. Tr. 220. 

May was shown and identified the section from MSHA's Program 

Policy Manual ("PPM") that relates to section 1722. G. Exh 11. 6 

6 The PPM states in pertinent part: 

75.1722 Mechanical Equipment Guards 

(continued ••• ) 

1281 
Citing to item 4 of the policy, May stated: "The guard that was 

installed that day was not of adequate size to prevent anyone 

from reaching in or slipping, tripping and falling in, and their 

arm from coming in contact with this pinch point." Tr. 221. May 

rejected the idea that the screens between the belt structure and 

rib met the requirements of the standard. He noted that section 

75.1722 "doesn't say anything about area guarding" and he 

observed that the screen nearest the pulley was not secured to 

prevent anyone from walking through it. Tr. 222-224. 

May explained that in order for an individual to have had 

his or her hand go through the guard opening and be caught in the 

pulley's pinch point, the person would have had to fall or slip 

to come in contact with the point, or would have had to reach 

purposefully through the opening. Injuries likely to have 

resulted from such an accident ranged from dismemberment to 

death. Tr. 225-226. 

May believed it was reasonably likely that a miner would 

have been caught in the pinch point due to the inadequate guard. 

This was because the area between the rib and the guard was 

narrow and thus miners who had to travel past the guard when 

conducting required inspections were in close proximity to the 

pinch point. Tr. 227. (May stated that miners had to travel and 

examine the right side of the belt in order to check for belt 

spillage and accumulations of coal dust. Tr. 253.) May 

testified that from his discussions with miners who worked on the 

belt he was sure that the area inside the screens was traveled by 

preshift examiners. Tr. 229. In addition, May testified the 

miners had told him that they were required to enter the area to 

shovel coal spillage from underneath the belt. Tr. 242-243. (As 

May remembered it, Smith had been present during these 

conversations. However, May later stated that he could have been 

6( ••• continued) 

Guards installed to prevent contact with moving parts of 

machinery shall: 

G. Exh 11. 

1. Be of substantial construction; 

2. Be of such construction that openings 

in the guard are too small to admit a 

person's hand; 

3. Be firmly bolted or otherwise installed 

in a stationary position; and 

4. Be of sufficient size to enclose the moving 

parts and exclude the possibility of any part 

of a person's body from contacting the moving 

parts while such equipment is in motion. 

1282 
mistaken in believing Smith was there. Tr. 272.) In addition, 

May believed that miners were assigned to "sweep or drag" the 

narrow side of the belt to mix the coal dust with rock dust. 

Tr. 253. 

Because of normal sloughage from the belt, coal would be on 

the floor of the walkway in the vicinity of the pulley which 

would make slipping and tripping likely. Tr. 227. In May's view 

the coal on the floor would have made it "very easy" for miners 

to slip. Tr. 228. 

In addition, miners frequently would have had to enter the 

guarded area to pull debris off the belt, and the gap in the 

guard would have made it tempting for them to do this without 

first shutting down the belt. Tr. 228. Had the regular guard 

(the guard May observed sitting against the rib) been in place, 

miners could not have gained access to the pinch point either 

inadvertently or purposefully. Tr. 242. 

With regard to Consol's negligence in allowing the violation 

to exist, May stated that the inadequate guard was attached on 

the midnight shift (the prior shift). May was not certain 

whether the larger guard had been taken off before or after the 

preshift examination for the shift on which he observed the 

condition had been completed, but in either event the violation 

should have been observed. If the larger, adequate guard had 

been removed prior to the preshift examination, the preshift 

examiner should have noted the remaining inadequate guard. If 

not, the section foreman should have observed it. Tr. 230-231. 

(May maintained that because miners were working in the vicinity 

of the drive pulley, the section foreman "would have had to have 

walked right past [the inadequate guard]." Tr. 231.) 

STANLEY BROZIK 

Brozik described how the entire left side (the wide side) of 

the belt drive area was guarded by screening. Tr. 255-256. 

(Once outside the drive area the rest of the belt was not 

guarded.) He further explained the history of guarding at the 

mine -- how in the face of repeated guarding violations he had 

asked two MSHA supervisors, including Branham, if he could cure 

the problem by putting gates at the front end of the drive 

mechanism and at the stationary pulley and how he also proposed 

bolting "on and off" switches for the belt on each side of the 

belt at the crossovers and crossunders nearest the mechanism, as 

well as installing signs at both ends of the drive mechanism 

saying "do not enter while belt is running." Tr. 257-258. Brozik 

indicated that MSHA officials in Morgantown approved this 

arrangement. 

According to Brozik, area guarding had been employed first 

at Humphrey No. 7 Mine at some time during the mid to late 1980s . 

• 

1283 
Tr. 258, 260. (Brozik could not recall the exact year.) 

However, in 1991, when inspection of the mine was transferred to 

Fairmont, Consol was advised that its prior arrangements were no 

longer acceptable and that the pulleys themselves would have to 

be guarded. Tr. 258. At that point, guards were put on the 

pulleys. Nonetheless, the area guards were left in place. ~ 

Brozik also stated that after the January 27 meeting, in 

which Consol was told that area guarding was not acceptable, he 

had advised someone, he believed it was Hagedorn, that he wanted 

to make certain the pulleys were guarded. The large guard that 

May found against the rib was the result of this instruction. 

Tr. 259. As to why the smaller guard had been installed, Brozik 

simply stated, "someone though that [the larger guard] was 

inadequate so they put a smaller one there." Tr. 259. The 

condition was corrected by welding the larger guard over the 

smaller guard. Tr. 260-261. 

With regard to the hazard presented by the supposedly 

inadequate guard, Brozik stated that he never had been informed 

that anyone was ever in the area of the pulleys while the belt 

was running and that he never had observed a miner in that 

position. Tr. 260, 265. Brozik agreed that it was a practice at 

the mine for examiners to walk. both sides of the belt. The belt 

was not shut off when they conducted their inspections. Tr. 262-

263. However, if the belt was running and an examiner came to an 

area guard, the examiner would not go inside the guard but would 

cross at the crossover or crossunder. Tr. 264-265. Brozik 

emphasized that it was Consol's policy that DQ person go inside 

the area guards while the belt was running. Tr. 263-265. 

ROBERT SMITH 

Smith, who accompanied May, testified that the screens used 

as area guards had signs hung on them stating "Do Not Enter When 

Belt Is Running", or words to that effect. Tr. 268. Smith did 

not believe that the guard May found inadequate could have been 

circumvented easily. Tr. 269. Nor did Smith believe the 

situation posed a reasonably likely chance of injury because no 

person "should have been • inside the area guard." Tr. 270. 

TIE VIOLATION 

Section 75.1722(b) requires guards at conveyor-drive pulleys 

sufficient to prevent a person from reaching behind the guard and 

becoming caught between the belt and the pulley. Consol argues 

that the pulley involved was a takeup pulley, a type of pulley 

not mentioned in subsection (b) and one that, according to 

Consol, does not come within the regulation. Tr. 284. The 

Secretary's position is that the conveyor drive would not have 

worked without the pulley and therefore "the stationary dolly 

take-up pulley was a conveyor drive pulley." Tr. 278. In my 

1284 
view the subject pulley was a "conveyor-drive pulley" and thus 

came within the scope of the regulation. 

A "drive pulley" is defined as a "pulley or drum driven 

through gearing by some source of power and which, through 

contact friction, drives a conveyor belt." u.s. Department of 

the Interior, A Dictionary of Mining, Mineral and Related Terms 

(1968) at 354. A "takeup pulley" is defined as "(a]n idler 

pulley so mounted that its position is adjustable to accommodate 

changes in the length of the belt as may be necessary to maintain 

proper belt tension." IsL.. at 1118. The subject pulley does not 

seem to fit squarely within either definition in that it was not 

driven by a source of power but rather turned as the belt passed 

over it and was not adjustable but rather was stationary, 

although it did serve to keep tension on the belt. Tr. 233-234. 

It cannot be expected that those who write safety and health 

regulations can specifically incorporate every technological 

variation into a regulation. Nor can it be expected that every 

objective situation faced by an inspector will fit neatly within 

the wording of a pertinent regulation. Thus, when faced with a 

hybrid situation such as this, the inspector must take into 

account the words of the standard, keep its intent in mind and 

apply a rule of reason. 

Here, it seems to me that May did just that. Under a 

reasonable interpretation of section 75.1722(b) the standard is 

broad enough to incorporate the subject pulley. As May noted, 

the pulley, while not having power going to it to drive the belt, 

was nonetheless a part of the drive unit. Tr. 234. The belt 

drive would not have operated correctly without it. I conclude 

therefore that in that broad yet reasonable sense the pulley was 

a conveyor-drive pulley, and as such it was required to be 

guarded to prevent a person from reaching behind and becoming 

caught between the belt and the pulley. 

Consol does not dispute that the 11 inch gap upon which May 

based the citation existed as described by May. However, it 

maintains that area guarding prevented persons from going into 

the vicinity of the pulley and thus that persons could not become 

caught between the pulley and the belt despite the presence of 

the gap. 

The regulation requires the pulleys to be guarded. While 

the area guards were sufficient to restrict access to the area 

adjacent to the pulley drive mechanism, they did not guard the 

cited specific pulley. Much as the use of chains to rail off 

access to walkways and travelways over moving machine parts and 

the presence of signs to warn against entry cannot, in my view, 

be regarded as compliance with the guarding regulations for 

surface metal and nonmetal mines-- overland Sand & Gravel Co., 

14 FMSHRC 1337, 1342, (August 1992), see alsoP PM, Vol V 

1285 
at 55(a) (6/18/91) -- so here the area guards fail to conform to 

what the regulation requires. 7 Rather than excuse the violation, 

the presence of the area guards and warning signs may mitigate 

the potential gravity of the violation and impact whether it is 

of a S&S nature. 

Because the 11 inch gap was sufficiently large for a 

person's hand andjor arm to enter and become caught between the 

belt and pulley, I find that the violation existed as charged. 

There are, in my op1n1on, several factors that warrant 

deletion of the inspector's S&S finding. I agree with Consol 

that the evidence does not establish a reasonable likelihood of a 

miner having a hand and/or arm caught between the pulley and the 

belt. In the first place, the testimony does not establish that 

it was a practice for miners to work or to travel immediately 

adjacent to the pulley while the belt was running. Although the 

belt was inspected from the walkway adjacent to the pulley and 

while miners might occasionally have had to clean up the walkway 

or clean up under the belt next to the pulley, there was no 

confirmation that any of these activities regularly occurred 

while the belt was running. May was told by an unidentified 

miner that miners had worked adjacent to the pulley while the 

belt was in operation, and I do not doubt the conversation took 

place and that, in fact, such occasionally happened, but I also 

do not doubt that Consol had a strict policy of barring access to 

the area of the belt drive while the belt was operating. The 

presence of the warning signs, whose existence I credit, and the 

presence of the area guards, corroborate the testimony of Brozik 

and Smith that such was the case. I also find credible Brozik's 

testimony that he had never been told about miners being in the 

area of the pulleys while the belt was running and never had seen 

them in that position and I conclude from this that it was rare 

indeed when such an incident occurred. 

Moreover, while it would have been possible for a miner to 

ignore the policy and to walk through the screens used as area 

guards and to have traveled or worked adjacent to the subject 

pulley, there was no testimony that the floor next to the pulley 

was slippery or uneven or that coal spillage from the belt 

habitually littered the walkway floor next to the pulley and I 

conclude from this that if a slipping or tripping hazard existed, 

it was infrequent. 

7 I note parenthetically that even had I held that area guarding 

could satisfy the regulation's mandate, the testimony of May that the 

screening had not been secured to the rib and could have been easily walked 

through would have lead me to the conclusion that the guarding was inadequate. 

1286 
Further, even if a miner had slipped or tripped and fallen 

toward the pulley while the belt was running, the miner's hand 

and/or arm would have had to be positioned so that the guard that 

was in place was missed and the gap was "hit," and it should be 

recalled that although the guard was inadequate, it covered a 

qood deal more space than the qap. I therefore conclude that the 

Secretary did not establish a reasonable likelihood that the 

failure to adequately guard the pulley would have resulted in a 

miner's hand or arm becoming caught in the pulley's pinch point, 

and I find that the violation was not S&S. 

GRAVITY AND NEGLIGENCE 

In assessing the qravity of the violation, both the 

potential hazard to the safety of miners and the probability of 

such hazard occurring must be analyzed. Clearly, the potential 

hazard was grave, a severe injury, even dismemberment could have 

been expected. However, such an accident was decidedly less than 

likely qiven the presence of the signs, the area quarding, 

Consol's policy of barring entry to the subject area while the 

belt was running and the presence of the pulley guard, inadequate 

thouqh it was. I conclude, therefore, that although the 

potential injuries resulting from the violation were extremely 

serious, the likelihood of them occurring was so remote as to 

make this a non-serious violation. 

I also conclude that Consol was negligent in allowing the 

violation to exist. The presence of the inadequate guard was 

visually obvious, especially so given the fact that the larger, 

adequate guard was leaning against the rib and, in effect, 

drawing attention to the condition of the pulley it no longer 

guarded. May's testimony that the inadequate guard was attached 

on the midnight shift was not refuted. Nor was his observation 

that the inadequate guard should have been observed either by the 

preshift examiner or the foreman supervising miners working in 

the area of the belt drive. Thus, Consol knew or should have 

known of the violation. 

WBYA 92-1042 

Section 104Cdl C2lOrder No. 3108651. 3/17/92/, 30 C.F.R. § 75.303 

The order states: 

The preshift examination record on the 

12 East, 13 East and 14 East section 

does not contain all areas that are 

required to be examine[d]. The following 

conditions were found: 12 East preshift 

record: 03-16-92, day shift, no record of 

the section track inby the mouth to the 

section. 03-16-92, afternoon shift, no 

1287 
record of the section track inby the mouth 

to the section. 03-17-92, midnight shift, 

no record of the section track inby the 

mouth. 

13 East preshift record: 03-16-92, midnight 

shift, no record of the belt line from 

40 block to the tailpiece at 70 block. 

03-16-92 midnight shift, no record of the 

section track. 03-16-92 afternoon shift, 

no record of the section track. 03-16-92 

afternoon shift, no record of the section 

belt from 41 block to the track at 70 block. 

14 East preshift record: The preshift of the 

7 North belt is maintained in this record 

book. 03-16-92, day shift and afternoon shift, 

no record of the 7 North belt from 13 East 

to the (car) loading point. This is 6,600 feet as 

measured on the mine map. 

The preshift examination records at this mine 

have been cited several times for no record 

of examined areas that are required, therefore 

the operator's negligence is high. The records 

have also been countersigned by the mine 

foreman. If these conditions were allowed to 

exist and the required examinations were not 

made, a condition would exist that would cause 

a lost workdays or restricted duty accident. 

I believe that this is unlikely because I 

assume that this is only record keeping, but the 

operator can not verify by the records that 

the examinations were made. 

Conferences with Robert Smith, Mr. Smith agrees 

with the gravity but disagrees with the action 

and the negligence because old habits are hard 

to break. 

G. Exh. 15. The order charges a violation of section 75.303 and 

that the condition was the result of Consol's unwarrantable 

failure to comply with the standard. 8 

•

1 Section 75.303 requires in pertinent part: 

(a) Within 3 hours immediately proceeding 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 shall examine 

1288 

(continued ••• ) 
Til TESTIMONY 

uopsw. QY 

May testified that he went to Humphrey No. 7 Mine on March 

17, 1992 to conduct a regular inspection. One of the first 

things he did after arriving at the mine was to examine the 

preshift examination records. Tr. 297. The records were kept in 

the foreman's office, and it was there that May reviewed them. 

With May at the time were Smith and Janet Todd, a representative 

of miners. May testified that upon reviewing the records he 

found several areas of the mine that were required to be examined 

and for which there were no records of a preshift examination 

having been performed. Tr. 298. May therefore issued the 

order in question for Consol's failure to record the 

examinations. Tr. 299. (There is no question but that Consol 

performed the required examinations. As May stated, "[A]ll of 

the areas had been covered but just not recorded." Tr. 311.) 

May explained that section 75.303 requires the examiner to 

report the results of the examination to a designated person on 

the surface and that this usually is done by calling out the 

reports on the mine telephone. The reports are then recorded and 

the mine examiner must countersign the reports when he comes out 

of the mine to make sure that what he has reported has been 

recorded accurately. Tr. 300, 302. 

8 ( ••• continued) such workings and any other underground 

area of the mine designated by the 

Secretary or his authorized 

representative. 

The regulation goes on to require the examination of every working section, 

other specified areas and the conducting of tests for gases and air velocity 

at designated places. The examiner is also required to examine for other 

hazards and violations of the mandatory safety and health standards. The 

regulation concludes: 

Upon completing his examination, such mine 

examiner shall report the results of his 

examination to persons authorized 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 

with ink or indelible pencil in a book 

approved by the Secretary kept for such 

purpose in an area on the surface of the 

mine • • • and the record shall be open for inspection by interested persons. 

1289 
May was asked what he believed to be the purpose of the 

reporting and recording requirements? He replied that the 

results of the examination have "to be called out so that the 

oncoming shift knows that the mine is safe so they can enter the 

underground area of the mine to go to work" and that recording 

the results of all areas examined is required so that the 

oncoming shift and mine management will be aware of any hazardous 

conditions they will encounter. Tr. 301. He described the 

recording requirement as "very important" because it assures that 

"problems are addressed and taken care of immediately." ~, see 

also Tr. 310-311. 

According to May, the problem was that Consol was not 

recording that areas specified in section 75.303 had been 

inspected and found safe, but rather was recording that larger 

sections of the mine that included the specific areas had been 

found safe and it was doing so by writing the phrase "section 

safe." Tr. 303-304. May maintained that writing the phrase 

"section safe" to indicate preshift examiners had detected no 

hazards did not comply with the recording requirements because 

the regulation itself does not refer to the examination of a 

"section" but rather to various parts of working areas -- "working sections," and specific areas within the working 

sections, as well as "belt conveyors on which coal is carried," 

etc. Tr. 323-328, 333, 335-336. May,objected to the "second 

safe" approach to compliance not only because it did not conform 

to the wording of section 75.303 but also because preshift 

examinations of all of the specified areas might not be done by 

the same person and the miner countersigning "section safe" 

might not know for certain that no hazardous conditions had been 

detected in the specified areas. May stated that Humphrey No. 7 

Mine was the only mine he had inspected where preshift 

examinations were recorded using the phrase "section safe." 

May maintained that this was not a new problem at the mine 

and he identified two citations that he had issued previously, on 

January 23, 1992 and February 18, 1992 (G. Exhs. 18 and 17), for 

the same violation. Tr. 306-308. May claimed when he issued the 

January and February citations he had spoken with Smith about the 

company's failure to specifically record the results of the 

preshift examinations but did not get any explanation from Smith 

about why the practice existed. Tr. 306. In addition, he had at 

least three conversations with various examiners prior to issuing 

the order in which he explained the inadequacy of recording 

"section safe." Tr. 258-9. Nonetheless, he believed that Smith 

had tired to instruct mine foremen in order to ensure the 

preshift examinations were properly recorded. Tr. 309. 

May believed that the violations of January and February 

were the result of Consol's "moderate negligence." However, due 

to the number of unrecorded areas that he found on March 17, the 

fact that the recording deficiencies existed for all three of 

1290 
that day's preshift examinations and due to his previous efforts 

to have the practice eliminated, May reached the conclusion that 

the failure to properly record the preshift examinations of March 

17 was the result of Consol's unwarrantable failure to comply 

with the cited standard. Tr. 310. May testified that he was 

offered no explanation for the existence of the violation other 

than that Smith told him, "[O]ld habits are hard to break." 

Tr. 313. 

STANLEY BROZIK 

Stanley Brozik testified that when the word "section" was 

used at the mine, it was generally understood to mean the area 

from the mouth all the way to the working face and that this area 

included the belt and the track. Tr. 339-340. Brozik maintained 

that state examiners had accepted the "section safe" designation 

as adequate. Tr. 340. 

ELDON HAGEDORN 

Hagedorn testified that he first assumed foreman's duties at 

the mine in 1969 and that in 1976 he was appointed mine manager, 

a position he has since held. During all of this time, the word 

"section" has meant the area "from the mouth of the section where 

you get the supply track to the face." Whenever Hagedorn saw the 

term "section safe" recorded it meant to him "that [the] section 

from the mouth and all the faces • • • belts, track, wire, were 

safe." Tr. 353. 

'l'BE VIOLATION 

I conclude that the violation existed as charged. The 

regulation requires that "the results of [th]e examination" be 

reported and that the "results of [the] examination" be recorded. 

The required "examination" is described in detail in the 

regulation, both with respect to the observations and tests that 

should be made during the examination and with resect to the 

areas where they should be made. 

I agree with May that a purpose of recording the results of 

the preshift examination is to appraise the oncoming shift of 

hazards and violations they may encounter so that they may 

correct the conditions and so that they may avoid the hazards 

before they can be corrected. Clearly, another purpose is to 

apprise "interested persons", e.g., state and federal inspectors 

and representatives of miners, of the same information, 

information that may alert such persons to compliance problems at 

the mine. 

May's view that the standard requires the recording of the 

results of the examinations of the areas it specifies and his 

collateral view that a blanket recording of "section safe" is not 

1291 
acceptable are, in my op1n1on, reasonable interpretations of the 

recording requirement set forth in section 75.303(a) in that they 

further the purposes of the requirement. His logic that a person 

reviewing a blanket recording -- even a person familiar with the 

interpretation of the word "section" at the mine -- would not 

always be able to determine for certain whether the required 

examinations had been conducted seems irrefutable, and the lack 

of certain knowledge that required examinations had been 

conducted would mean the person would likewise lack certain 

knowledge of possible hazards to correct andjor to avoid. I find 

therefore that Consol failed to record the results of preshift 

examinations as stated in Order No. 3108651 and in so doing 

violated section 75.303(a). 

GRAVITY 

This was not a serious violation. It bears repeating that 

although the preshift examinations were not properly recorded, 

they were conducted. Moreover, although use of the phrase 

"section safe" would not convey with certainty that the specified 

areas had in fact been inspected and found safe, it is clear from 

the testimony of Brozik and Hagedorn that the phrase was common 

parlance at the mine and might also at times accurately indicate 

that the "section" had been examined and that the area from the 

mouth of the section to its face was hazard free. 

As I have found, this does not excuse Consol's failure 

properly to record the preshift examinations, but it does lessen 

the likelihood of injury or illness as a result of the violation. 

tnnfARRANTABLE FAILURE AND NEGLIGENCE 

Whether the violation was the result of the "unwarrantable 

failure" of Consol to comply with the section 75.303(a) depends 

upon whether it was the result of aggravated conduct constituting 

more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 

2004 (December 1987). See also, Youghiogheny & Ohio Coal co., 

9 FMSHRC 2007, 2010 (December 1987). In Emery the Commission 

compared ordinary negligence (conduct that is inadvertent, 

thoughtless, or inattentive) with conduct that is not justifiable 

or inexcusable. 

I cannot find that the failure of Consol to properly record 

the cited preshift examinations of March 17 was the result of 

unjustifiable or inexcusable conduct. While I fully credit May's 

testimony that following issuance of the January and February 

citations he discussed with Smith the way to properly record the 

examinations, I am also struck by the fact that May believed that 

Smith, by instructing the appropriate foremen, had tried to 

ensure that the examinations were recorded correctly. Tr. 309. 

1292 
In addition, although I credit May's testimony that on at 

least three occasions he discussed with Consol foremen the way in 

which to properly record the examinations, I note as well 

Brozik' s testimony that state inspectors had acce-pted the "safe 

section" designation as adequate. From all that appears on the 

face of this record, I conclude that it was not until May raised 

the issue in January that Consol became aware that the way in 

which it had been recording the results of preshift examinations 

was not acceptable to MSHA. 

Further, I credit May's testimony that Smith explained the 

violation with the statement that "old habits are hard to break" 

and it appears to me that Smith's observation was right on the 

money. Tr. 313. Consol personnel were used to employing the 

"section safe" method of recording the results of its preshift 

examinations. Smith was trying to bring the practice into 

compliance with the regulation. This proved difficult, not 

because those recording the results were inexcusably negligent, 

but because they were in the habit of doing it the "old way" and 

through inadvertence or inattention continued in the habit. I 

would add that I do not find this surprising due to the fact that 

the violation was not serious and thus did not signal an 

immediately urgent need to comply. Tr. 313. 

Given the conclusion that Consol's failure was the result of 

inattention or inadvertence, I find that Consol was negligent in 

allowing the violation to exist but not guilty of an 

unwarrantable failure to comply. Thus, the section 104{d) {2) 

order must be modified to a section 104{a) citation, and the 

inspector's designation of "high" negligence must be modified to 

one of "moderate" negligence. 

OTHER CIVIL PENALTY CRITERIA 

As revealed by the proposed assessment forms contained in 

each docket, the Humphrey No. 7 Mine is a large mine and Consol 

is a large operator. 

The parties have stipulated that the penalties proposed will 

not affect Consol's ability to continue in business. Because of 

this and because of the fact that Consol is a large operator, I 

find that any penalties I assess for the subject violations will 

likewise have no affect upon Consol's ability to continue in 

business. 

In each instance where a violation has been found Consol 

demonstrated its good faith in abating the violations. 

The history of previous violations contained in the MSHA 

Office of Assessments print-out reveals that in the 24 months 

prior to the date of the first violation in this case a total of 

750 violations were cited at the Humphrey No. 7 Mine, of these 

1293 
there were 7 violations of section 75.305, 23 violations of 

section 75.503, 2 violations of section 75.1722(b), and 15 

violations of 75.303. While the other violations do not have a 

history warranting an increase in penalties that might otherwise 

be assessed, I conclude that the history of previous violations 

of section 75.503 is such that the penalty should be moderately 

increased. 

CIVIL P8HALTY ASSESSMENTS POR CONTESTED VIOLATIONS 

POCKET NO. JBVA 12-192 

Section 104Cal Citation No. 3108607. 1/30/92. 30 C.F.R. 

s 75.1722(b) 

The Secretary has proposed a civil penalty of $206. As I 

have found, this was a non-serious violation and Consol was 

negligent in allowing the violation to exist. Noting especially 

that Consol is a large operator and taking into account the other 

civil penalty criteria, I conclude that a civil penalty of $250 

is appropriate. 

POCKET NO. WBVA 12-913 

Section 104Cal Citation 3108745. 2/6/92. 30 C.F.R. § 75.305 

The Secretary has proposed a civil penalty of $206. As I 

have found, this was a serious violation and Consol was negligent 

in allowing the violation to exist. Noting especially that 

Consol is a large operator and taking into account the other 

civil penalty criteria, I conclude a civil penalty of $400 is 

appropriate. 

Section l04Cal Citation No. 3108748. 2/12/92. 30 C.F.R. S 75.503 

The Secretary has proposed a civil penalty of $206. As I 

have found, this was a serious violation and Consol was negligent 

in allowing the violation to exist. Noting especially that 

Consol is a large operator, that its history of previous 

violations of the cited standards warrants a moderate increase in 

the civil penalty that should otherwise be assessed and taking 

into account the other civil penalty criteria, I conclude that a 

civil penalty of $500 is appropriate. 

POCKET NO. WBVA 12-1042 

Section 104CdlC2l Order No. 3108651. 3/17/92. 30 C.F.R. S 75.303 

The Secretary has proposed a civil penalty of $1,200. As I 

have found, this was a non-serious violation and Consol was 

negligent in allowing the violation to exist. Noting especially 

that Consol is a large operator and taking into account the other 

1294 
civil penalty criteria, I conclude that a civil penalty of $250 

is appropriate. 

ORDER 

Consol is ORDERED to pay a civil penalty in the approved 

settlement amount shown above in satisfaction of the violation in 

question: Citation No. 3108615, 2/3/92, S 77.402 (Docket No. 

WEVA 92-992). Further, Consol is ORDERED to pay civil penalties 

in the assessed amounts shown above in satisfaction of the 

contested violations in questions. 

The Secretary is ORDERED to modify section 104(a) 

Citation No. 318607 by deleting the inspector's S&S designation. 

The Secretary is ORDERED to modify Section 104(d) (2) Order 

3108651 to a section 104(a) citation and to delete the 

inspector's finding of "high" negligence and to substitute a 

finding of "moderate" negligence. 

The parties are ORDERED to advise me within ten (10) days of 

the date of this decision of their settlement agreement with 

regard to citation No. 3108613, 1/28/92, 30 c.F.R. S75.1003(c) 

(Docket No. WEVA 92-992) in light of Judge Weisberger's decision 

in Consolidation Coal co., 15 FMSHRC 436 (March 1993), and to 

move for my approval of same. 

I retain jurisdiction in this matter until all issues with 

respect to Citation No. 3108613 have been resolved. Until such 

time, my decision in this matter is not final. Payment of 

approved and assessed civil penalties and modification of the 

citation and order are held in abeyance pending a final 

dispositive order. 

Distribution: 

3~/~~~~~~ David i.'ifa;bour 

Administrative Law Judge 

(703) 756-5232 

Charles M. Jackson, Esq., Office of the Solicitor, 

u.s. Department of Labor, 4015 Wilson Boulevard, Suite 516, 

Arlington, VA 22203 (Certified Mail) 

Daniel E. Rogers, Esq., Consolidation Coal Company, Legal 

Department, 1800 Washington Road, Pittsburgh, PA 15241 

(Certified Mail) 

fepy 

1295 
JUL-09-1993 14:38 FROM FED MINE SAFETY & HEALTH m 

OFFJCE CF AIIMI.lSTlATI\IE LAW .MXiES 

2 IICYLU1~ 1 10th FLOOR 

$20.5 UfSallla PJKE 

FAU.S QUU;"• '11fl$liUA 22041 

lA\' 2 5 1993 

92026535030 P.02 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

. . 

: 

TEMPORARY REINSTATEMENT 

PROCEEDING 

PERRY PODDEY I 

Applicant 

v. 

TANGLEWOOD ENERGY 1 iNC. 1 

Respondent 

. 

• 

. 

• 

. . 

: 

Docket No. WEVA 93-287-D 

MORG CD 93-01 

: Coal Bank No. 12 Mine 

" .. 

. . 

Befor~: 

OllDBR 01' TBIIPOUR.Y RIJMSTADIIBlft 

Judqe Amchan 

on April 30, 1993, the Secretary of Labor filed an 

application for temporary reinstatement, pursuant to section 

105(c) of the Federa1 Mine Safety and Health Act, 30 u.s.c. 

section 815(c), on behalf of Perry Poddey, a miner. The 

application alleged that Mr. Poddey bad been discharqed by 

respondent on January 6, 1993 in retaliation for engaging in 

protected safety activity. AttaChed to the application was the 

affidavit of Lawrence M. Beeman, Chief of MSHA•s Office of 

Technical Compliance and Investigation Division, and the miner•s 

complaint. Mr. Beeman's affidavit indicates that Mr. Poddey had 

talked to MSHA Inspector Ken Tenney on November J, ~992 and 

January 5, 1993 about a defective parkinq brake on the scoop he 

operated • MSHA citations were issued to Respondent on both 

those dates regarding the parking brake. 

Mr. &eeman's affidavit also indicates that the miner 

discussed the malfunctioning parking brake with his foreman in 

November and December, 1992. and on January 4, 1993. Mr. Seeman 

also found that Respondent admitted that Mr. Poddey reported the 

defective parking brake to his foreman on January 4, 1993. He 

further found that Mr. Poddey's foreman, Jeff Simmons had 

threatened to disoharqe the miner following the issuance of the 

citation of November 3, 1992, and that Mr. Poddey was in fact 

discharged the day after the second citation. The miner's 

complaint alleges that on the day he was fired he had a telephone 

conversation with General Mine Foreman Randy Key, who blamed him 

for the citation just issued to Respondent regarding the parking 

brake. 
JLIL -09-1993 14: 39 FROM FED 1"1 I I~E SAFETY & HERL TH m 92026535030 P.03 

Pursuant to the Commission's Rules of Procedure, 29 C .. F .. R .. 2700.45(c), Respondent had ten days from the date of receipt 

of the Secretary's application for temporary reinstatement to 

request a hearing on the application. As the application was 

received by the Commission on May J, 1993, Respondent had until 

May 18, 1.993., to request a bearing, taking into accowtt the 

five days allowed to respond to doou.ents served by .ail, 

29 C.F.R. 2700.8. 

On May l4, 1993, Respondent requested a hearing which was 

scheduled for May 25 and 26, 1993, in Elkins, West Virginia. SUbsequently on May 2~. RespOndent withdrew its hearinq request. The parties filed a stipulation in which the App~icant agreed 

to file his complaint by May 28, ~993, and initiate discovery 

by June ~~, ~993. The parties have also agreed, with qualifications, to the scheduling of the hearing on the discrimination 

complaint in August 1993. 

Commission Ru1e 45(c), 29 C .. F.R. 2700.45(c), provides 

that if no hearing is requested on an application for temporary reinstatement, the judge shall review the application and immediately issue an order of temporary reinstatement if 

the judge determines that the complaint vas not frivolously 

brought. Having reviewed the application, l conclude that 

the complaint was not frivolously brouqht and order that 

Respondent reinstate Mr. Poddey to the position from which 

he was discharged on or about January 6, ~993, or to an 

equivalent position,. at the same rate of pay, and with the 

same or equivalent duties. T.be application indicates that 

Mr. Poddey engaged in activity protected by the Mine Act in 

complaining about the defective parking brake to his foreman 

and to MSHA. The application also indicates that Respondent 

was aware of the protected activity and displayed animus 

towards the miner as a result of that activ.ity. The timing of the discharge, one day after Respondent was cited for a 

condition al:::tout which the ainer complained, creates an 

inference that Mr. Poddey would not have been discharged 

but for his protected activity. 

The application before me provides ample evidence to 

suqgest that Mr. Poddey was discharged in violation of 

Section 105(c) of the Mine Act. Secretary on hehalf of 

BQbinette v. United states Coal Company, 3 FMSHRC 803 (April 198~). Although the Secretary may not necessarily prevail at 

a trial on the merits of the discrimination complaint, he has ~t his burden of proving that the complaint was not frivolously 

brought. Given the fact that I would have ordered reinstatement 

on Kay 18, 1993, had no hearing request been filed, I will order 

reinstatement effective that date in view of the fact that 

Respondent's hearing request has been withdrawn. Tbe ~licant 

2 
JUL -09-1993 14: 40 FROM FED t'II NE SAFET~' & HEALTH TO 92026535030 P.04 

should not suffer any loss of pay by virtue of the fact that 

Respondent requested a hearing on the application for temporary reinstatement and then had second thouqhts. 

QRPf!R 

Respondent i.s hereby ordered to reinstate Perry Poddey to 

the position from which he was discharged on January 6, 1993, 

or to an equivalent position, at the same rate of pay, and with 

tbe same or equivalent duties, effective May 18, 1993. 

Distribution: 

!?~~ ~\&J.Amchan Administrative Law Judge 

703-756-4572 

Heather Bu.pp-Babuda, Esq., Office of the Solicitor, 

u.s. Department of Labor, 4015 Wilson Blvd., Room 516, 

Arlington, VA 22203 (Certified Mai1) 

Paulo. Clay, Jr., Esq., conrad and Clay, P.O. Drawer 958, 

Fayetteville, WV 25840 {Certified Mail) 

\lh 

TOTAL P.04 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET, N.W., 6TH FLOOR 

WASHINGTON, D.C. 20006 

JUN 111993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ASAMERA MINERAL (US), INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-802-M 

A. C. No. 45-02961-05553 

Cannon Mine 

ORDER DISAPPROVING SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

Before: Judge Merlin 

This case is before me upon a petition for the assessment of 

a civil penalty under section 105(d) of the Federal Mine Safety 

and Health Act of 1977. The parties have filed a joint motion to 

approve settlement of the one violation involved in this case. 

The settlement seeks a reduction in the penalty amount from the 

originally assessed amount of $100 to $50. 

A review of the file discloses that the citation was issued 

on the ground that the operator allegedly altered an accident 

scene before MSHA could investigate. MSHA issued a special 

assessment for the violation, although the narrative findings of 

the special assessment represents that the violation was not 

serious. The settlement motion asserts in part that the special 

assessment was not warranted and states further that negligence 

and gravity are reduced to a level where a single assessment of 

$50 is appropriate. 

The settlement motion is inadequate because it provides no 

reasons to support the 50% reduction in what was already a very 

modest penalty assessment. None of the circumstances under which 

the accident scene was altered are described. And there is no 

discussion of the effect of the alteration of the accident scene. 

As a general matter, alteration by the operator of a accident 

scene prior to investigation would seem to me to be a serious 

matter involving some degree of fault by the operator. In this 

connection, I note that the inspector on the citation found that 

negligence was high, but that the narrative statement appears to 

find only ordinary negligence, although the finding of high 

negligence is not specifically contradicted. The settlement 

motion does not discuss negligence beyond stating that the 

finding of negligence is supportable. High negligence is, of 

course not consistent with a penalty of $50. 

1299 
The amounts involved in this case are not significant, but 

the principles are. The parties are reminded that the Commission 

and its judges bear a heavy responsibility in settlement cases 

pursuant to section llO(k) of the Act. 30 u.s.c. § 820(k); See, 

s. Rep. No. 95-181, 95th Cong., 1st Sess. 44-45, 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 632-633 (1978). The Commission has 

the duty to determine the appropriate amount of penalty, in 

accordance with the six criteria set forth in section llO(i) of 

the Act. Sellersburg Stone Company v. Federal Mine Safety and 

Health Review Commission, 736 F.2d 1147 (7th Cir. 1984). 

Based upon the parties' motion, I cannot conclude that the 

recommended penalty reduction is warranted and that the suggested 

amount is consistent with the factors mandated in section llO(i). 

The parties must provide explicit reasons for the action they 

recommend. 

In light of the foregoing, it is ORDERED that the motion for 

approval of settlement be DENIED. 

It is further ORDERED that within 30 days of the date 

of this order the parties submit additional information to 

support their motion for settlement. Otherwise this case 

will be assigned and set for hearing. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Douglas White, Esq., Counsel, Trial Litigation, Office of the 

Solicitor, u.s. Department of Labor, 4015 Wilson Blvd., 

Arlington, VA 22203 (Certified Mail) 

Robert A. Friel, Esq., Office of the Solicitor, u. s. Department 

of Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101-3212 

(Certified Mail) 

'Mr. Melvin J. Wattula, Manager, Asamera Minerals (US), Inc., P.O. 

Box 398, Wenatchee, WA 98801 (Certified Mail) 

jgl 

1300 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET, N.W., 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ASAMERA MINERAL (US), INC., 

Respondent 

JUN 111993 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 93-105-M 

A. C. No. 45-02961-05557 

Cannon Mine 

ORDER DISAPPROVING SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

Before: Judge Merlin 

This case is before me upon a petition for the assessment of 

a civil penalty under section 105(d) of the Federal Mine Safety 

and Health Act of 1977. The parties have filed a joint motion to 

approve settlement of the one violation involved in this case. 

The parties seek approval of a reduction in the penalty amount 

from $157 to $20. 

A review of the file shows that the citation in this case 

was issued for an alleged violation of 30 C.F.R. § 50.10 because 

the operator failed to notify MSHA as soon as possible of an 

ignition of methane. The citation as modified was designated 

significant and substantial and the operator's negligence was 

characterized as moderate. The parties offer absolutely no 

reasons to support the reduction they seek. More importantly, 

they provide no basis for me to approve their suggested penalty 

under the six criteria set forth in section 110 (i) of the Act. 

30 u.s.c. § 820(i). 

The failure to report a methane ignition may well be 

serious. At the very least, the parties must explain why it is 

not. In addition, the findings of significant and substantial 

and of moderate negligence are inconsistent with a $20 penalty 

which I note is even less that what is now the Secretary's single 

penalty assessment. 

The parties are reminded that the Commission and its judges 

bear a heavy responsibility in settlement cases pursuant to 

section llO(k) of the Act. 30 u.s.c. § 820(k); See, s. Rep. No. 

95-181, 95th Cong., 1st Sess. 44-45, 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 632-633 (1978). It is the Commission's responsibility to determine the appropriate amount of penalty, in accordance with the six criteria set forth in section llO(i) of the 

Act. Sellersburg Stone Company v. Federal Mine Safety and Health 

Review Commission, 736 F.2d 1147 (7th Cir. 1984). A settlement 

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motion, such as the one filed in this case, is insufficient to 

allow the Commission to discharge its responsibilities under the 

Act, particularly where the suggested penalty amount is so very 

low. 

In light of the foregoing, it is ORDERED that the motion 

for approval of settlement be DENIED. 

It is further ORDERED that within 30 days of the date 

of this order the parties submit additional information to 

support their motion for settlement. Otherwise this case 

will be assigned and set for hearing. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Douglas White, Esq., Counsel, Trial Litigation, Office of the 

Solicitor, u.s. Department of Labor, 4015 Wilson Blvd., 

Arlington, VA 22203 (Certified Mail) 

Robert A. Friel, Esq., Office of the Solicitor, U. s. Department 

of Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101-3212 

(Certified Mail) 

Mr. Melvin J. Wattula, Manager, Asamera Minerals (US), Inc., P.O. 

Box 398, Wenatchee, WA 98801 (Certified Mail) 

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