FEBRUARY 1988 

COMMISSION DECISIONS 

2-10-88 

2-10-88 

2-10-88 

2-26-88 

Harlan L. Thurman v. Queen Anne Coal Company 

Southern Ohio Coal Company 

U.S. Steel Mining Company, Inc. 

Sec. Labor for John Bushnell v. Cannelton 

Industries, Inc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

2-03-88 

2-09-88 

2-09-88 

2-10-88 

2-12-88 

2-16-88 

2-23-88 

2-23-88 

2-29-88 

Target Industries, Inc. 

Universal Coal & Energy Co., Inc. 

Green River Coal Company, Inc. 

Farco Mining Company 

Mid-Continent Resources, Inc. 

Martin Marietta Aggregates 

BethEnergy Mines, Inc. 

Consolidation Coal Company 

Bananza Materials, Inc. 

SE 

WEVA 

WEVA 

WEVA 

PENN 

CENT 

KENT 

CENT 

WEST 

SE 

PENN 

WEVA 

WEST 

86-121-D 

86-35-R 

86-371 

85-273-D 

87-120 

87-95 

87-34 

87-54 

85-15 

87-84-M 

87-200-R 

87-238 

87-85-M 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

131 

138 

146 

152 

161 

170 

177 

184 

191 

210 

224 

239 

241 
FEBRUARY 1988 

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

Secretary of Labor, MSHA v. Birchfield Mining Inc., Docket No. WEVA 87-272. 

(Judge Melick, December 29, 1987) 

Greenwich Collieries v. Secretary of Labor, MSHA, Docket No. PENN 85-188-R, 

etc. (Interlocutory Review of Judge Maurer's Partial Summary Decision of 

December 7, 1987) 

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

Secretary of Labor, MSHA on behalf of Richard W. Haviland v. Occidental 

Chemical Co., and International Chemical Workers Union, Docket No. 

SE 87-44-DM, SE 87-89-DM. (Judge Broderick, December 30, 1987) 
COMMISSION DECISI,ONS 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

HARLAN L. TIDJRMAN 

v. 

QUEEN ANNE COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 10, 1988 

Docket No. SE 86-121-D 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

In this discrimination proceeding arising under the Federal Mine 

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

Act" or "Act"), Commission Administrative Law Judge Avram Weisberger 

dismissed a discrimination complaint filed by Harlan L. Thurman. 

9 FMSHRC 419 (March 1987) (ALJ). We granted Thurman's petition for 

discretionary review, which he prepared without assistance of counsel. 

For the reasons that follow, we conclude that the judge's findings are 

supported by substantial evidence and are consistent with applicable 

law. Accordingly, we affirm. 

Prior to March 1986, complainant Thurman had been employed 

continuously for three years on the nighttime maintenance shift at the 

underground coal mine of Queen Anne Coal Company ("Queen Anne"). As 

part of a four-person supply and maintenance crew, Thurman remained on 

the surf ace at the beginning of each shift in order to load supplies on 

the belt conveyor and to transport them into the mine for the other crew 

members to unload. Upon completion of this task, Thurman would reverse 

the belt conveyor for the crew's eventual exit and crawl unaccompanied 

to the working section to complete his shift. Once Thurman entered the 

mine, no employee remained on the surface at the mine entrance to be 

within telephone contact of the miners below. 1/ 

!/ According to the testimony of Queen Anne's president, Bob Swisher, 

it had been the practice for eight or nine years to have only a night 

watchman on the surf ace while the non-production night shift was 

underground. He testified that the telephone communication system for 

the mine had been approved by the Department of Labor's Mine Safety and 

Health Administration, but admitted that the night watchman, who was 

five miles away near the locked gate of the mine property, was not in 

telephone communication with the miners underground. Tr. 168, 173-77, 

131 
According to Thurman's testimony at the hearing, he was harassed· 

persistently by the two other crew members and the shift foreman, 

Crawford Harness, during his three-year period of employment. While the 

greater part.of Thurman's complaints concerned episodes of personal 

harassment, ~/ Thurman also testified to two occasions of being directed 

by Harness to work alone in an adjacent underground section and another 

when Harness operated a continuous mining machine to make a crosscut 

without anyone remaining on the surface. 

On March 6, 1986, Thurman began his shift as usual at 4:30 p.m., 

but left early at 10:30 p.m. without notifying the other members of the 

crew. The next morning, Friday, March 7, he appeared at the mine office 

and told Emory Haggard, the bookkeeper and one-third owner of Queen 

Anne, "what had been going on and some of the stuff that had been 

happening." Tr. 32. In response, Haggard arranged for Thurman to meet 

with Bob Swisher, the mine president, the following Monday, March 10. 

Thurman and his wife met with Swisher as scheduled. Upon hearing 

some of Thurman's complaints, Swisher agreed to Thurman's request to 

arrange a meeting with all the crew members on Thursday, March 13. At 

this latter meeting, Thurman repeated the allegations of harassment and 

other'complaints that he had presented to Swisher on March 10, including 

his concern about the lack of an outside person. Tr. 31, 35. The other 

crew members admitted to a few episodes of so-called "horseplay," but 

denied the allegations of harassment. Tr. 256, 290, 322. In response, 

Swisher admonished the crew members that he would not tolerate any 

horseplay. Tr. 77-78, 156. 

Near the close of the meeting, Swisher repeated a story that he 

had told the Thurmans on March 10 about a fatal accident involving 

another mine employee, who was killed when he applied a blow torch to a 

fuel storage tank he had failed to flush. According to Swisher, the 

miner had been suffering from emotional problems. Swisher testified 

that he told the story in order to relate his personal efforts in 

helping the miner to return to work prior to the accident and to 

demonstrate how much he personally cared for the welfare of his 

employees. Tr. 150-52. 

At the conclusion of the meeting on March 13, Swtsher suggested to 

Thurman that he return to work on the night shift and it was the 

understanding of all in attendance that Thurman intended to do so. 

190. 30 C.F.R. § 75.1600-1 requires a mine operator to have a telephone 

or equivalent two-way communication facility located on the surface 

within 500 feet of all the main portals. At least one of the communication facilities must be located where a responsible person on duty at 

all times when miners are underground can hear the communication 

facility and respond immediately in the event of an emergency. 

~/ The personal harassment recounted by Thurman included such 

episodes as tying his clothes in knots, pouring dish washing liquid on 

his clothes, locking him into the mine property, putting grease on the 

seat of. his truck, placing. logs under the wheels of his truck, and 

breaking a headlight on his truck. Tr. 42-43. 

132 
Shortly after leaving the meeting, however, Thurman returned to 

Swisher's office to request a lay-off slip and to tell Swisher and the 

mine superintendent, Demp Lindsay, that he could no longer work underground with the men on the shift. He stated that he feared for his life 

because Lindsay and Harness had been friends for 20 years, drank 

together, and were "a clique." Tr. 107-08. Swisher refused to issue 

Thurman a lay-off slip because work was available. Nevertheless, 

Swisher instructed Lindsay to try to find Thurman a job on Queen Anne's 

day shift. Tr. 187, 246. Lindsay was not successful in persuading 

anyone on the day shift to switch to the night shift, but he did inform 

Thurman shortly thereafter of an underground job opening on the day 

shift at the nearby S&H Coal Company. S&H is owned in part by Swisher, 

and Thurman had worked there previously. Tr. 246-47. Thurman did not 

return to work at Queen Anne after he left in the middle of his shift on 

March 6, nor did he seek employment at S&H. He subsequently obtained 

other non-mining employment. 

After departing Queen Anne, Thurman filed a discrimination 

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

Administration ("MSHA"). 30 U.S.C. § 81S(c)(2). After investigation, 

MSHA determined that a violation of the Mine Act had not occurred and 

declined to prosecute a complaint on Thurman's behalf. 30 U.S.C. 

§§ 815(c)(2) & (3). Thurman then filed a complaint on his own behalf 

before this independent Commission pursuant to section 10S(c)(3) of the 

Act. 30 U.S.C. § 81S(c)(3). 

Following an evidentiary hearing, Administrative Law Judge 

Weisberger concluded that Thurman had failed to establish a prima facie 

case of discrimination. The judge found that Thurman's complaints about 

the lack of an outside person and the operation of a continuous mining 

machine contained allegations of safety violations and were protected 

activities. 9 FMSHRC at 422. He further found that the balance of 

Thurman's complaints were either allegations of personal harassment or 

were not safety-related and, thus, were not complaints protected by the 

Mine Act. Id. However, the judge determined that Queen Anne had not 

taken any adverse action against Thurman that was in any part motivated 

by his safety complaints, since there was no evidence that Thurman made 

any complaints about these conditions to MSHA or management prior to his 

leaving work on March 6. 9 FMSHRC at 423-24. He further found that 

Swisher's suggestion to Thurman on March 13 that he return to his 

section was not a constructive discharge. 9 FMSHRC at 423. The judge 

also rejected Thurman's apparent argument that Queen Anne's practice of 

operating without an outside person continued to be an adverse action, 

concluding that the failure to provide a miner with a safe work place 

may be a violation of the Act'but does not, without more, constitute 

discrimination. 9 FMSHRC at 424. Therefore, the judge dismissed 

Thurman's discrimination complaint. 

On review, Thurman essentially challenges the judge's factual 

findings. The Commission's role in reviewing a judge's decision is to 

determine whether his factual findings are supported by substantial 

evidence and whether the judge correctly applied the law. 30 U.S.C. 

§ 823(d)(2)(A)(ii). See,~·· Hall v. Clinchfield Coal Co., 8 FMSHRC 

1624, 1628 (November 1986). After reviewing the record, we conclude 

133 
that the judge's decision is supported by substantial evidence and is 

consistent with applicable Commission precedent. 

The general principles governing analysis of discrimination cases 

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

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

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

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

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

behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 

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

Marshall, 633 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of 

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

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

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

motivated by protected activity. If an 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 in any event for the unprotected 

activity alone. Pasula, supra; Robinette, supra. See also Eastern 

Assoc. Coal Corp v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan 

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

Baich 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, 397-4~(1983) (approving 

nearly identical test under National Labor Relations Act). 

We first consider whether Thurman engaged in protected activity. 

While a reading of the record reveals that Thurman's most emphatic 

complaints involved allegations of personal harassment, Thurman did 

communicate to Swisher his concern about the lack of an outside person 

at the meetings on March 10 and 13. Tr. 30-32. He also informed 

Swisher of the episode when Foreman Harness had operated the continuous 

mining machine while no one remained on the surface. Tr. 198-99. These 

concerns focused on the safety implications of operating a shift without 

a responsible person on duty at a surface communication facility to 

respond to the miners underground in the event of an emergency as 

required by 30 C.F.R. § 1600-1 (note 1, supra). Therefore, we affirm 

the judge's conclusion that these allegations of safety violations were 

protected complaints and conclude that Thurman established the first 

element of a prima facie case of discrimination. 

As to the second element of a prima facie case, however, we agree 

with the judge that Thurman failed to show that there was adverse action 

by Queen Anne motivated in any part by his safety complaints. When 

Thurman voluntarily walked off his shift on March 6, he did so without 

notice or contemporaneous explanation to the other crew members or to 

mine management. Subsequent to his leaving, the operator responded 

supportively to Thurman's complaints. When Thurman appeared at the mine 

office the next day, arrangements were made for a meeting with Swisher. 

On March 10, Swisher heard Thurman's complaints for the first time and 

agreed to Thurman's request for a meeting with all the miners on the 

shift. At that meeting on March 13, Swisher admonished the other crew 

members against "horseplay" and offered to put Thurman back to work on 

134 
the night shift. After Thurman returned to Swisher's office to request 

a lay-off slip, Swisher instructed the mine superintendent to try to 

place Thurman on Queen Anne's day shift. When that effort failed, the 

mine superintendent informed Thurman of a position on the daytime 

production shift at nearby S&H Mine. 

These actions do not reveal a retaliatory motive by the operator. 

The record indicates that when confronted with Thurman's complaints 

Swisher responded in good faith to remedy what he thought was 

essentially an unfortunate interpersonal conflict among his employees. 

Thurman was not fired, demoted or transferred as a result of his 

complaints to Swisher. To the contrary, Swisher attempted to accommodate Thurman's requests. Therefore, we conclude that substantial 

evidence supports the judge's finding that there was no adverse action 

on the part of Queen Anne resulting from an impermissible motive of 

retaliation against Thurman for engaging in protected activities. }I 

Finally, even if Thurman's actions in leaving Queen Anne's 

employment on March 13 are analyzed from the standpoint of a continuing 

complaint, a work refusal, or a constructive discharge, the result would 

be the same. The evidence reveals that the operator reacted to 

Thurman's concerns in a reasonable and supportive manner. Although the 

effort to find a position for Thurman on Queen Anne's day shift failed, 

the operator offered alternative employment at S&H. As far as this 

record indicates, such employment would have served to resolve Thurman's 

conflict with his co-workers at the Queen Anne mine and also should have 

alleviated his concern about working underground without an outside 

person, absent any indication of a similar violative condition on the 

S&H daytime production shift. 

Further, our review of the record suggests an unwillingness on 

Thurman's part to consider or accept any of the operator's efforts in 

response to his complaints, with the possible exception of his desire 

for reassignment to the day shift as an outside person. Tr. 129-30. 

The rec9rd suggests that Thurman's personal dissatisfaction with the 

members of his crew and mining in general was a strong motivation for 

his leaving Queen Anne's employment. Id. When he requested his lay-off 

slip, Thurman told Swisher that he "could not work with those men." Tr. 

66, 79. Also, Lindsay, the mine superintendent, testified that when he 

informed Thurman of the day-shift position at S&H, Thurman requested a 

letter of reconunendation for non-mining employment and. told Lindsay that 

he was through with mining. Tr. 223. 

}I Thurman also suggests on review that Swisher's tank explosion 

story was meant as a threat on his life. As noted, Swisher testified 

that he told the story to demonstrate his concern for his employees. 

Nothing in the record suggests that Swisher's telling of the story was 

an impermissible interference or adverse action motivated in any part by 

Thurman's complaints. In addition, there is no evidence in the record 

to.suggest that Swisher's offer to Thurman that he return to the night 

shift was calculated to force him to quit or was impermissibly motivated 

by his complaints. 

135 
We do not intend to diminish the significance of the violative 

condition at the Queen Anne mine suggested by this record. The 

obligation imposed on an operator by the requirement of 30 C.F.R. 

§ 75.1600-1 that there be an outside person to respond to miners 

underground in the event of an emergency is an important requirement and 

any violation of the standard has serious safety implications. However, 

the present matter is a discrimination case, not an enforcement 

proceeding brought by the Secretary of Labor for a violation of this 

mandatory standard. Given the judge's finding of the absence of any 

wrongful action under section lOS(c) of the Mine Act by the operator for 

Thurman's safety-related activities, a finding supported by substantial 

evidence, the dismissal of Thurman's discrimination complaint must be 

affirmed. 

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

~ ./) 

( .. ~~:--·'~ Richard V. Backley, Commissioner 

~~e 

~!l~l_ A. Doyle, Commissi er 

Lastowka, 

if-4~ /[e£'"-~ L·. Clair Nelson, Commissioner 

136 
Distribution 

Charles A. Wagner, III, Esq. 

Wagner, Myers & Sanger 

1801 Plaza Tower 

P.O. Box 1308 

Knoxville, TN 3790.;l 

for Queen Anne Coal Co. 

Mr. Harlan Thurman 

P.O. Box 561 

Norris, Tennessee 37828 

Mr. Robert Swisher 

Queen Anne Coal Company 

P.O. Box 480 

Lake City, Tennessee 37769 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety & Health. Review Commission 

5203 Lees?>urg Pike, Suite 1000. 

Falls Church, Virginia 220.41 

137 
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 

February 10, 1988 

Docket Nos. WEVA 86-35-R 

WEVA 86-48-R 

WEVA 86-102 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

This proceeding arises under the Federal Mine Safety and Health 

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

three issues: (1) whether substantial evidence supports Commission 

Administrative Law Judge William Fauver's finding of a violation of 30 

C.F.R. § 75.200; (2) whether the violation, alleged in a section 

104(d)(2) withdrawal order, was caused by Southern Ohio Coal Company's 

("Socco") "unwarrantable failure" to comply with section 75.200; and 

(3) whether the judge erred in failing to modify a second section 

104(d)(2) withdrawal order to a section 104(a) citation. For the 

reasons that follow, we affirm the judge's finding of a violation of 

section 75.200, reverse the finding of unwarrantable failure, ap.d modify 

the section 104(d)(2) withdrawal orders to citations issued pursuant to 

section 104(a). 

I. 

Sacco's Martinka No. 1 Mine is an underground coal mine located in 

Fairmont, West Virginia. On the evening of October 10, 1985, David 

Workman, an inspector of the Department of Labor's Mine Safety and 

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

during which he observed a recently excavated "boom hole" in the 

roof. ll The boom hole, located at the intersection of a crosscut and 

an entry, extended approximately three feet into the roof and was 15~ 

!/ A "boom hole" is an area of the mine where a portion of the roof 

has been intentionally cut away in order to increase height or 

clearance. June 18 Tr. 134. 

138 
feet long by 19~ feet wide. The hole was cut earlier that day by a, 

continuous mining machine in order to prepare the area as a belt 

transfer or dumping point. As a result of the excavation, four "brows" 

or edges were created, one on each side of the boom hole. II After 

excavating the boom hole Socco had installed bolts in the roof of the 

boom hole. The bolts that were in the brows were those that had been 

placed in the roof of the intersection prior to the excavation of the 

boom hole. 

In Inspector Work.man's view, two of the four brows of the boom 

hole were not adequately supported because roof bolts were located too 

far from the edges of the brows. The four bolts on one of the brows 

were 2', 2'5", 2'5", and 2'5" from its edge, while the four bolts on the 

other.brow were 1'2", 2', 11 811 and 2'2" from its edge. The inspector 

testified that in this mine bolts average 12 to 14 inches from the edge 

of a boom hole brow and that he uses a two-foot standard as the point at 

which he considers bolts to be too far from the edge. June 19 Tr. 74, 

77-78. The inspector further stated that the condition of the brows 

should have· been observed by Sacco's personnel during one of the 

required preshift or on-shift examinations conducted after the boom hole 

was cut. As a result of his observations the inspector issued an order 

of withdrawal to Socco (Order No. 2564613) pursuant to section 104(d)(2) 

of the Mine Act. 30 U.S.C. § 814(d)(2). 11 The order alleged a 

violation of section 75.200 and that the violation was caused by Sacco's 

unwarrantable failure to comply with that standard. ~/ Socco abated the 

'];_/ "Brows" are the adjacent roof or sides of the boom hole that have 

not been cut away. Govt. Exh. 6, p. 2. 

3/ A section 104(d)(2) withdrawal order is issued subsequent to an 

issuance of a section 104(d)(l) withdrawal order upon findings by an 

inspector of a violation of any mandatory health or safety standard 

caused by the unwarrantable failure of the operator to comply. Section 

104(d)(2) of the Mine Act states: 

(2) If a withdrawal order with respect to any 

area in a coal or other mine has been issued 

pursuant to paragraph (1), a withdrawal order shall 

promptly be issued by an authorized representative 

of the Secretary who finds upon any subsequent 

inspection the existence in such mine of violations 

similar to those that resulted in the issuance of 

the withdrawal· order under paragraph (1) until such 

time as an inspection of such mine discloses no 

similar violations. Following'an inspection of such 

mine which discloses no similar violations, the 

provisions of paragraph (1) shall again be 

applicable to that mine. 

30 u.s.c. § 814(d)(2). 

~/ Section 75.200, which restates section 302(a) of the Mine Act, 30 

139 
section 75.200 violation by installing additional bolts closer to the 

edges of the two brows. 

Sacco contested the order, asserting that it was not in violation 

of section 75.200 and that, in any event, the violation was not the 

result of its unwarrantable failure to comply with the regulation. 

Following an evidentiary hearing, the judge credited the testimony of 

the inspector and the miners' representative that ·the two brows should 

have been bolted closer to the edge to provide adequate support. 

8 FMSHRC at 2011. The judge concluded that their testimony was 

sufficient to establish that the two brows were not adequately 

supported. 8 FMSHRC at 2012. 

In concluding that the violation of section 75.200 was the result 

of Sacco's unwarrantable failure to comply, the judge determined that 

debris from the excavation prevented the roof bolters from getting the 

roof bolting machine into position so as to install the bolts; that the 

foreman and roof halters knew or should have known that additional bolts 

were needed closer to the brows' edges; and that there was no justification for leaving the job incomplete. 8 FMSHRC at 2013. In addition, 

the judge concluded that the "inadequate bolting pattern" should have 

been observed during one of the required preshift or on-shift 

examinations. 8 FMSHRC at 2013-14. 

II. 

Sacco contends that the finding of a violation of section 75.200 

is not supported by substantial evidence, since it did not violate any 

provision of its roof control plan and, in any event, it adequately 

supported the brows. Socco asserts that there is no conunon understanding within the mining industry as to how close to the edge the 

brows of a boom hole should be bolted. Furthermore, it submits that the 

witnesses for both parties agreed that the brows were stable at the time 

the order was issued and that the roof was above-average. 

The fact that Socco did not violate its roof control plan is not 

controlling for purposes of determining the existence of the violation 

U.S.C. § 862(a), provides in part: 

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 underg~ound roadways, travelways, 

and working places shall _be suEPorted 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 .••• 

(Emphasis added.) 

140 
at issue. Section 75.200 requires both compliance with a roof control 

plan approved by the Secretary and that the roof be supported or 

otherwise controlled adequately. An operator's failure to comply with 

either requirement violates the standard. See North American Coal 

Corp., 3 IBMA 93, 103 (April 1974); Zeigler Coal Co., 2 IBMA 216, 222 

(September 1973). 

Here, the violation of section 75.200 is predicated upon the 

standard's requirement that the roof and ribs be supported or otherwise 

controlled adequately. Liability under this part of the standard is 

resolved by reference to whether a reasonably prudent person, familiar 

with the mining industry and the protective purpose of the standard, 

would have recognized that the roof or ribs were not adequately 

supported or otherwise controlled. Specifically, the adequacy of 

particular roof support must be measured against what the reasonably 

prudent person would have provided in order to afford the protection 

intended by the standard. Quinland Coals, Inc., 9 FMSHRC 1614, 1617-18 

(September 1987); Canon Coal Co., 9 FMSHRC 667, 668 (April 1987). Cf. 

Ozark-Mahoney Co., 8 FMSHRC 190, 191-92 (February 1986); Great Western 

Electric Co., 5 FMSHRC 840, 841-42 (May 1983). Measured against this 

test, we hold that substantial evidence supports the judge's conclusion 

that two brows of the boom hole were not supported adequately. 

In concluding that Sacco violated section 75.200, the judge 

credited the testimony of the inspector and the miners' representative. 

The inspector testified that the brows, being approximately 2 feet wide 

by 15~ feet long on each side, needed additional bolting closer to the 

brow edges. June 18 Tr. 143. In reaching this determination, the 

inspector stated that he was influenced by the mine's history of roof 

falls and the fact that the roof material in this area of the Martinka 

No. 1 mine was slate, which lacks interlocking qualities. June 18 Tr. 

134, 139, 142, 150, 159. 5/ The inspector was concerned that the weight 

of the slate on the brows~ without additional support, could reasonably 

be expected to cause the brows to loosen, crack and fall. In this 

regard, the inspector stated that the cutting of the boom hole by the 

continuous mining machine had already subjected the roof to excessive 

vibration. June 18 Tr. 167. He testified that in situations such as 

the one cited roof bolts are "always [put) right along the edge of the 

brow" in order to provide adequate support. June 18 Tr. 143. 

The testimony of the roof bolter who served as miners' representative during the inspection corroborated that of the inspector. The 

miners' representative stated several times that Sacco's foremen 

instruct the roof bolters of the mine to bolt as close to the brows' 

edges as possible, because "that is where they're supposed to be. 11 June 

18 Tr. 184. See also June 18 Tr. 179, 189. Testimony by Sacco's safety 

director lends further support for the inspector's views. He stated 

that the average distance of bolts from the brow edges of other boom 

holes that he had observed was "around one foot, four inches" (June 19 

2_/ Slate is "[a) fine-grained metamorphic rock which breaks into thin 

slabs or sheets." U.S. Department of the Interior, A Dictionar_y_9f 

Mining, Mineral, and Related Terms 1024 (1968). 

141 
Tr. 29-30). This distance is consistent with the inspector's belief 

that brows must be bolted within two feet of their edges to provide 

adequate support. 

In view of the inspector's testimony, the testimony of the miners' 

representative that brows should be bolted as close to their edges as 

possible, and the safety director's acknowledgement that most brows 

observed by him had been bolted closer to their edges than the cited 

brows, we conclude that substantial evidence supports the judge's 

finding that the brows were not supported adequately and, consequently, 

that Sacco violated section 75.200. 

III. 

In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987), 

petition for review filed, No. 88-1019 (D.C. Cir. January 11, 1988), 

and Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 (December 1987), 

we concluded that "unwarrantable failure means aggravated conduct, 

constituting more than ordinary negligence, by a mine operator in 

relation to a violation of the Act. 11 This conclusion was based on the 

ordinary meaning of the term "unwarrantable failure," the purpose of 

unwarrantable failure sanctions within the Mine Act, the Act's 

legislative history and judicial precedent. We stated that whereas 

negligence is conduct that is "inadvertent," "thoughtless," or 

"inattentive," conduct constituting an unwarrantable failure is conduct 

that is "not justifiable" or "inexcusable". Only_ by construing 

. unwarrantable failure by a mine operator· to··mean aggravated conduct 

constituting more than ordinary negligence, can unwarrantable failure 

sanctions assume their intended distinct place in the Act's enforcement 

scheme. See Emery, at 2001. Applying these principles to the case at 

hand, we hold that substantial evidence does not support the judge's 

finding that the violation of section 75.200 was the result of Sacco's 

unwarrantable failure to comply. 

Witnesses for both parties agreed that the roof control plan for 

the Martinka No. 1 mine did not address specifically the support 

required for the brows of boom holes, and that MSHA had not issued any 

policy memoranda on the proximity of roof bolts to the edges of brows. 

In addition, all witnesses, including the Secretary's, agreed that the 

brows appeared stable at the time that the order was issued. 

Witnesses for Socco testified that at the Martinka No. 1 mine the 

support required for boom hole brows is determined on a-case-by-case 

basis. The section foreman who supervised the excavation stated that 

the roof appeared to be hard, solid and stable, with no f·laking or other 

adverse conditions, and that after he installed the bolts in the 

interior of the boom hole he recommended no additional bolting of the 

brows. June 19 Tr. 42-45, 46, 54. Sacco's safety director agreed with 

the section foreman's evaluation of the roof. conditions, testifying that 

the roof in the area was above average and was stable with no 

deterioration. June 19 Tr. 18, 29-30, 34, 38-39. The afternoon shift 

foreman at the time the order was issued also testified that the roof 

was solid, that the brows were firm, and that no additional bolting of 

the brows was necessary. June 18 Tr. 208, 211. Furthermore, the 

142 
inspector and the roof bolter serving as the miners' representative also 

testified that the brows were stable at the time the order was issued. 

June 18 Tr. 157, 182. 

Although the judge found that the brows were not bolted closer to 

their edges because debris prevented the roof bolters from getting the 

roof bolting machine into position, the undisputed testimony of Sacco's 

personnel establishes that Socco failed to rebolt the cited brows, not 

because of the presence of the debris, but because Sacco's sup~rvisors 

uniformly believed that the brows were stable and needed no additional 

support to protect persons from roof falls. Given this testimony, the 

fact that the roof control plan does not specify how close to the boom 

hole brows roof support must be placed, and the agreement of all 

witnesses regarding the stability of the brows, we conclude that Socco 1 s 

decision that bolting the brows closer to their edges was unnecessary, 

did not constitute aggravated conduct exceeding ordinary negligence. 

Cf. Emery, 9 FMSHRC at 2004-05. 

This conclusion rests solely upon the testimony offered by the 

parties relating to the particular boom hole and brows observed by the 

inspector. It is apparent from the record, however, that a more 

inclusive approach to the issues of roof support for the brows of boom 

holes at this mine is desirable if future similar controversies are to 

be avoided. Section 75.200 requires the Secretary to approve and the 

operator to adopt a roof control plan "suitable to the roof conditions 

and mining system of each coal mine. 11 Approval by the Secretary and 

adoption by Sacco of specific provisions for the support of a boom hole 

and its brows in the roof control plan of the Martinka No. 1 Mine will 

significantly enhance the miners' safety and lessen the chances for 

disagreement regarding what constitutes adequate roof support. As we 

have pointed out, coordination between the Secretary and the operator in 

developing conclusive and suitable plans is of paramount importance to 

insure the safety of the miners and to implement the policy of the Mine 

Act. Cf. Jim Walter Resources, Inc., 9 FMSHRC 903, 909 (May 1987). 

IV. 

The final issue concerns a second withdrawal order (No. 2706704) 

that was issued by Inspector Workman pursuant to section 104(d)(2). The 

parties stipulated that the cited conditions constituted a violation of 

section 75.200 and that the violation was of a "significant and 

substantial" nature. 30 U.S.C. § 814(d)(l). Therefore, the only issue 

to be decided by the judge was whether the violation was caused. by 

Sacco's unwarrantable failure to comply. 8 FMSHRC at 2016. The judge 

found that there was no evidence to support the allegation of unwarrantable failure, but did not modify the section 104(d)(2) order to a 

section 104(a) citation. 8 FMSHRC at 2021. 

We agree with Socco's contention that the judge erred in failing 

to modify the order. In Consolidation Coal Co., 4 FMSHRC 1791, 1793-94 

(October.1982), the Commission noted that sections 104(h) and 105(d) of 

the Mine Act expressly authorize the Commission to "modify" any 11 orde-rs 11 

issued under section 104. 30 U.S.C. §§ 814(h), 815(d). The Commission 

pointed out that allegations of violation can survive vacation of an 

143 
order, and that "modification is .•. the appropriate means of assuring 

that-they do [survive]." 4 FMSHRC at 1794 n.9. In United States Steel 

Corp., 6 FMSIIRC 1908, 1915 (August 1984), the Commission noted that 

"[i]f ... the judge determines that modification to a section 104(d)(l) 

order or citation is not possible then the violation should have been 

reduced to a section 104(a) citation." Thus, even without a finding of 

unwarrantable failure, the violation in this case survives. The order 

cannot be modified to a section 104(d)(l) order or citation, and as a 

result, must be modified to a section 104(a) citation. 

v. 

Accordingly, regarding Order No. 2564613, we hold that substantial 

evidence supports the findings of the judge that Sacco violated section 

75.200, but we reverse the judge's finding that the violation was caused 

by Sacco's unwarrantable failure to comply and modify the order to a 

section 104(a) citation. Regarding Order No. 2706704, we modify the 

section 104(d)(2) order to a citation issued pursuant to section 104(a). 

···~ 

·; -'-~d.&-1'..L~~~ . Richard V. Backley, CoI!llI}issioner 

-

~ y~le, (),~ CommiSSiOil 

i~td:~ -~· .':&~v_~ L. Clair Nelson, Commissioner 

144 
Distribution 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

David A. Laing, Esq. 

Alvin J. McKenna, Esq. 

Porter, Wright, .Morris & Arthur 

41 South High Street 

Columbus, Ohio 43215 

Administrative Law Judge William Fauver 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

145 
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 

February 10, 1988 

Docket No. WEVA 86-371 

U.S. STEEL MINING COMPANY, INC. 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding involving U.S. Steel Mining Company, 

Inc. ("USSM"), arises under the Federal Mine Safety and Health Act of 

1977. 30 U.S.C. § 801 et seq. (1982) (the "Mine Act" or "Act"). The 

issue is whether USSM's Winifrede Central Shop (the "Shop"), a facility 

for the repair and maintenance of electrical and mechanical coal mining 

equipment, is subject to the provisions of 30 C.F.R. § 77.1713(a), a 

mandatory safety standard requiring examinations of surf ace coal 

mines. 1/ Deciding the case on the basis of the parties' stipulations, 

Commission Administrative Law Judge Gary Melick held that the facility 

was covered by the standard and assessed a civil penalty of $50. 

ll 30 C.F.R. § 77.1713(a) provides: 

paily inspection of surface coal mine; certified 

person; reports of inspection. 

At least once during each working shift, or more 

often if necessary for safety, each active working 

area and each active surface installation shall be 

examined by a certified person designated by the 

operator to conduct such examinations for hazardous 

conditions and any hazardous conditions noted during 

such examinations .shall be reported to the operator 

and shall be corrected by the operator. 

146 
8 FMSHRC 1962 (December 1986)(ALJ). For th.e reasons set forth below, we 

affirm the judge's decision in result. 

As noted, the parties stipulated to the relevant facts. USSM 

operates the Shop in Winifrede, West Virginia. The Shop's function is 

to repair and maintain electrical and mechanical equipment from three of 

USSM's coal mining facilities: the No. SO Surface Mine, the Morton 

Underground Mine, and the Winifrede Central Cleaning Plant. The Shop, 

which is composed of a one-story electrical shop building and a onestory automotive repair building, is located approximately eight and 

one-half miles from the No. SO Surface mine; five miles from the Morton 

Mine; and one-half mile from the cleaning plant. Sixteen employees 

usually work at the Shop, during which time they are subject to the 

hazards inherent in moving heavy equipment, performing electrical work, 

and engaging in various grinding, cutting, sharpening, and welding 

tasks. In addition, work areas of the Shop contain flammable and 

caustic liquids. The Shop has USSM supervision separate from that of 

any of the other three facilities. The Shop also has a separate 

Department of Labor, Mine Safety and Health Administration ( 11MSHA11 ) mine 

identification number. From March 3, 1984, until March 3, 1986, the 

Shop was cited by MSHA for twenty-one violations of mandatory surface 

coal mine standards under 30 C.F.R. Part 77. 

On March 3, 1986, an MSHA inspector conducted an inspection of the 

Shop and found that examinations of the active working areas of the Shop 

had not been made during each working shift. The inspector issued to 

USSM a citation alleging a violation of section 77.1713(a). Subsequently, the Secretary petitioned this Commission for the assessment 

of a civil penalty. The parties agreed to waive a hearing and to submit 

the matter for decision on the basis of stipulated facts. 

USSM did not dispute that the Shop's active working areas were not 

inspected during each working shift in accordance with section 

77.1713(a). Rather, it argued that the Shop is an entity separate from 

and independent of the mining facilities that it services and that the 

standard is "not intended to apply to independent service facilities 

such as the Shop. 11 USSM Br. S. USSM cited an MSHA policy memorandum in 

effect when the citation was issued, providing that surface work areas 

of underground mines are exempt from the examination requirements of 

section 77.1713 and that the standard applies only to active working 

areas of surface mines, to active surface installations at surface 

mines, and to preparation plants not associated with underground mines. 

MSHA Policy Memorandum No. 8S-46, "Application of 30 C.F.R. 77.1713, 11 at 

1-2 (April 8, 198S). ll USSM argued that the Shop does not fall into 

any of these categories. In response, the Secretary contended that the 

Shop is itself a surface coal mine and therefore subject to the 

standard. USSM Br. 4-S; Sec. Br. 2-S. 

In his decision, the judge noted that the standard applies to 

"surface coal mine[s]," and t:.hat it "[m]ore specificaliy ... applies to 

~/ This policy memorandum expired on April 8, 1986. On January 27, 

1987, it was reinstated as MSHA Policy Memorandum 87-lC. 

147 
'each working area and each active surface installation [of such surface· 

mines]'." 8 FMSHRC at 1964. The judge observed that the Shop is "used 

to repair and maintain electrical and mechanical equipment from, among 

other places, the nearby (only 8.5 miles away) No. 50 Surface Coal 

Mine." He concluded that "it may reasonably be inferred that the .•. 

Shop [is] an 'active surface installation• of the No. 50 Surface Coal 

Mine" and as such is subject to section 77.1713(a). Id. Therefore, the 

judge concluded that USSM had violated the cited standard. 

On review, USSM argues that the standard is not intended to apply 

to independent service facilities such as the Shop. USSM argues that it 

is as logical to view the Shop as a surface facility of its nearby 

underground mine as it is to view it as a surface facility of its nearby 

surface mine. It contends that as such a surface facility of an underground mine, it is exempt from the examination requirements of section 

77.1713(a) pursuant to the Secretary's policy memorandum. USSM asserts 

that the "plain intent" of the policy memorandum is that "the requirement for examinations not be extended to facilities not located at 

surface coal mines." Petition for Discretionary Review 3. (Emphasis in 

original). While the Secretary argues that the Shop could be deemed an 

active surface installation of the No. 50 Surface Coal Mine, the main 

thrust of the Secretary's contention on review is that the Shop itself 

is a surface coal mine subject to the examination requirements of the 

standard. Sec. Br. 4-7, 7-9. 

Based on the stipulated facts, we agree with the Secretary that 

the Shop itself is a separate surface "coal mine" within the meaning of 

the Act and the cited standard and, as such, is subject to the cited 

standard 1 s examination requirements. Because we conclude that the Shop 

itself is a surface "coal mine," there is no need to further consider 

whether the Shop is an "active surface installation" of other mines. 

The applicable legal framework is clear. "Coal mine," is defined 

in relevant part as "lands ... structures, facilities, equipment, 

machines, tools, or other property .•. on the surface ..• used in, or to 

be used in •.• the work of extracting [coal] from [its] natural deposits 

... or the work of preparing coal."]_/ This definition, while not 

]_/ Section 3(h)(l) of the Mine Act states: 

"[C]oal ... mine means .... (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 tailing ponds, on 

the surface or underground, used in, or to be used 

in, or resulting from, the work of extracting such 

minerals from their natural deposits in nonliquid 

form, or if in liquid form, with workers under148 
without bounds, is expansive and is to be interpreted broadly. See, 

~·· Dilip K. Paul v. P.B. - K.B.B., Inc., 7 FMSHRC 1784, 1787-88 

(November 1985), aff'd sub nom. Dilip K. Paul v. FMSHRC, 812 F.2d 717, 

719-20 (D.C. Cir. 1987), cert. denied, U.S. , 107 S.C. 3269 (1987); 

Oliver M. Elam, 4 FMSHRC 5, 6 (January 1982). Part 77 contains 

mandatory safety standards applicable in relevant part to "surface coal 

mines" (30 C.F.R. § 77.1) and section 77.1713 requires inspection of 

surface coal mines at least once during each working shift. Here, the 

parties have stipulated that the Shop is a surface facility that exists 

and functions to repair and maintain electrical and mechanicai equipment 

used in or to be used in USSM's underground and surface coal mines and 

its coal cleaning plant. The Shop has a separate federal mine 

identification number and has a history of regulation and citation by 

MSHA as a separate facility under Part 77. Stipulations 3, 4, 9; Exh. 

A. (USSM concedes that "the Shop is subject to inspections under the 

Act." Petition for Discretionary Review 2.) Given these stipulations 

regarding the nature of the Shop and its regulatory history, we hold 

that the Shop consists of "lands ... structures, facilities, equipment, 

machines, tools, or other property ... on the surface ... used in, or to 

be used in .•• the work of extracting [coal) ... or the work of 

preparing coal" and, therefore, is a surface coal mine subject to the 

examination requirements of section 77.1713(a). 

In light of this conclusion, it is unnecessary to further 

determine whether the judge correctly found that the shop is an "'active 

surface installation' of the No. 50 Surface Coal Mine." 8 FMSHRC at 

1964. Further, it is unnecessary to gauge the effect, if any, of MSHA's 

policy memorandum upon the interpretation of section 77.1713. 

ground, 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 •••• 

30 u.s.c. §802(h)(l). 

149 
Accordingly, we affirm in result the judge's conclusion that the 

provisions of section 77.1713(a) apply to the Shop. USSM has not 

otherwise challenged the judge's findings and conclusions. Therefore, 

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

Lastowka, Commissioner 

\ ~ / 'i. I '--Jl " . 

(~-a__~v I Q__)(.\J_~"-1'\.._/ L. Clair Nelson, Commissioner 

1.50 
Distribution 

Mary Griffin, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

B~lly M. Tennant, Esq. 

United States Steel Corporation 

600 Grant Street, Room 1580 

Pittsburgh, PA 15230 

Michael Holland, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge Gary Melick 

Federal Mi.ne Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

151 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, on behalf 

of JOHN W. BUSHNELL 

v. 

CANNELTON INDUSTRIES, INC. 

February 26, 1988 

Docket No. WEVA 85-273-D 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

This proceeding involves a discrimination complaint filed by the 

Secretary of Labor on behalf of John W. Bushnell pursuant to the Federal 

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

Act" or 11Act 11 ). The complaint alleges that Cannelton Industries, Inc. 

("Cannelton"), discriminated against Bushnell in violation of section 

105(c)(l) of the Mine Act when, after a job transfer that occurred as 

part of a company-wide work force reduction and realignment, he was paid 

at a rate lower than the rate he was receiving immediately prior to his 

transfer .. 1/ This job transfer occurred several years after his initial 

lf Section 105(c)(l) provides in relevant part: 

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 ... in any coal or other mine ..• because such 

miner ... is the subject of medical evaluations and 

potential transfer under a standard published 

pursuant to section [101) of this [Act) ... or 

because of the exercise by such miner ..• on behalf 

of himself or others of any statutory right ·afforded 

by this [Act]. 

30 U.S.C. §815(c)(l). 

30 C.F.R. Part 90 contains mandatory health standards published 

pursuant to section 101 of the Mine Act. 30 U.S.C. § 811. Under 

152 
transfer without loss of pay to a low dust job pursuant to 30 C.F.R. 

Part 90. Conunission Administrative Law Judge William Fauver determined 

that Cannelton unlawfully discriminated against Bushnell when it failed 

to compensate him at the same rate of pay after his transfer as he had 

received before the transfer. Judge Fauver awarded Bushnell back pay of 

$161.14 plus interest on that sum and assessed Cannelton a civil penalty 

of $25 for the violation of section 105(c)(l) the Act. 8 FMSHRC 1607 

(October 1986) (ALJ). We conclude that Cannelton's failure to retain 

Bushnell's previous rate of pay when Bushnell was transferred to a lower 

paid position for reasons unrelated to dust exposure, as part of a 

legitimate work force realignment, did not violate rights granted by the 

Mine Act or Part 90. Accordingly, we reverse. 

I. 

The parties waived an evidentiary hearing and stipulated to the 

facts. 8 FMSHRC at 1607-1608. When this case arose in 1984, Bushnell 

had been employed by Cannelton for approximately 17 years as a miner at 

its Pocahontas No. 3 and No. 4 underground coal mines in West Virginia. 

In 1972 Cannelton was informed that Bushnell had evidence of pneumoconiosis and was eligible for transfer to a low-dust job pursuant to 

section 203(b) of the Federal Coal Mine Health and Safety Act of 1969, 

30 U.S.C. § 801 et seg. (1976) (amended 1977)("Coal Act 11 ), and 30 C.F.R. 

Part 90 (1972). lf However, Bushnell deferred the exercise of his 

transfer rights until 1980 when he was placed as a Part 90 miner in the 

low-dust surface position of dispatcher. From September 1980 through 

September 16, 1984, Bushnell earned $113.28 for an eight-hour shift as a 

dispatcher. 

The parties stipulated: 

On September 17, 1984 the work force of the 

Pocahontas Nos. 3 and 4 mines was reduced due to 

economic conditions. The remaining employees were 

realigned in accordance with [Cannelton's] labor 

agreement. On September 17, 1984 [Bushnell] 

Part 90, a miner who, in the judgment of the Secretary of Health and 

Human Services, has evidence of the development of pneumoconiosis (Black 

Lung disease) is given the option to transfer, without loss of pay for 

such work, to another position in an area of the mine where the average 

concentration of respirable dust in the mine atmosphere during each 

shift to which that miner is exposed is continuously maintained at or 

below 1.0 milligrams per cubic meter of air ("mg/m3"). 30 C.F.R. §§ 

90.3 & 90.103. See generally Gary Goff v. Youghiogheny & Ohio Coal Co., 

7 FMSHRC 1776, 1778-82 (November 1985) ("Goff 111 ). 

lf Section 203(b) of the Coal Act, 30 U.S.C. § 843(b) (1976), 

providing for the transfer of miners evidencing pneumoconiosis, was 

carried over in 1977 as section 203(b) of the Mine Act. 30 U.S.C. 

§ 843(b) (1982). The original Part 90 regulations implementing the Coal 

Act's statutory transfer right were repl~ced by the current Part 90 

regulations in 1980. The present Part 90 regulations also supersede 

section 203(b) of the Mine Act. 30 U.S.C. §8ll(a); 30 C.F.R. §90.1. 

153 
was realigned from his dispatcher position to 

general inside laborer as part of the general 

realignment noted above. 

Stipulations No. 6 & 11 (p.2)(July 15, 1986). It is undisputed that the 

transfer was not exposure-related, was the result of a bona fide work 

force reduction and realignment, and was not motivated by Bushnell's 

Part 90 status. There is no evidence in the record that the new 

position subjected Bushnell to dust levels in excess of those permitted 

under Part 90. When Bushnell was transferred, his company occupation 

code was changed and his pay was reduced to that of the laborer's 

position, $104.78 for an eight-hour shift. On October 1, 1984, the 

Pocahontas mines were closed and the remaining employees, including 

Bushnell, were laid off. Bushnell incurred lost wages totaling $161.14 

as a result of his transfer to the laborer's position. 

Bushnell filed a discrimination complaint with the Department of 

Labor's Mine Safety and Health Administration ("MSHA") alleging that he 

had been illegally discriminated against in contravention of his Part 90 

pay protection rights. Following MSHA's investigation of the complaint, 

the Secretary of Labor filed a discrimination complaint with this 

independent Commission on Bushnell's behalf pursuant to section 

105(c)(2) of the Mine Act. 30 U.S.C. § 815(c)(2). 

In his decision, Judge Fauver focused upon a portion of the Part 

90 regulations providing that "[w]henever a Part 90 miner is 

transferred, the operator shall compensate the miner at no less than the 

regular rate of pay received by that miner immediately before the 

transfer." 30 C.F.R. § 90.103(b). The judge noted that the Part 90 

regulations define "transfer" as "any change in the occupation code of a 

Part 90 miner." 30 C.F.R. §90.2. The judge construed the "whenever" in 

section 90.103(b) to include all transfers of Part 90 miners, including 

transfers not resulting from dust exposure considerations. He stated: 

"[W]henever a Part 90 miner has a change in his occupation code, the 

regulation require[s] that he be paid at no less than the regular rate 

of pay received prior to that change." 8 FMSHRC at 1608. Reasoning 

that Bushnell was a Part 90 miner whose occupation code had been changed 

without retention of the rate of pay received previously, the judge held 

that Cannelton 1 s failure to maintain Bushnell's rate of pay after 

transfer was "contrary to the plain language of the regulation" and 

"constitute[d] interference with a protected right." 8 FMSHRC at 1609. 

II. 

The question presented is whether Bushnell's transfer to a lesser 

paying position during Cannelton's reduction in force and realignment 

violated section 105(c)(l) of the Mine Act by infringing upon any right 

conferred by the Part 90 regulations. It is clear that a Part 90 miner, 

upon exerc1s1ng his option to work in a low dust area of a mine, enjoys 

the right to be paid in the new position at a rate not less than the 

regular rate of pay received immediately before his exercise of that 

option. We conclude, however, that the pay protection provisions of the 

Mine Act and the Part 90 regulations do not grant Part 90 miners a 

vested pay entitlement that insulates them against all negative business 

154 
and economic contingencies affecting their employers. We hold that the 

reduction in Bushnell's pay after his transfer to the laborer's position 

under the circumstances presented in this case did not violate the Act. 

The general principles governing analysis of discrimination cases 

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

case of prohibited discrimination under section 105(c) of the Act, a 

complaining miner bears the burden of proving (1) that he engaged in 

protected activity and (2) that the adverse action complained of was 

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

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

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

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

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 not motivated 

in any part by protected activity. Robinette, 3 FMSHRC at 818 n. 20. 

If an 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 in any event for the unprotected activity alone. Pasula, 

supra; Robinette, supra; See also Eastern Assoc. Coal Corp. v. FMSHRC, 

813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford Constr. Co., 732 

F. 2d 954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F. 2d 194, 195-

96 (6th Cir. 1983) (specifically approving Commission's Fasula-Robinette 

test). Cf. NLRB v. Transportation Management Corp., 462 U.S. 393, 397-

413 (1983) (approving nearly identical test under National Labor 

Relations ·Act). 

We have held that section 105(c)(l) of the Act bars discrimination 

against or interference with miners who are "the subject of medical 

evaluations and potential transfer" under the Part 90 regulations. Goff 

1• supra, 7 FMSHRC at 1780-81. We have emphasized repeatedly the 

importance of the rights and protections conferred by Part 90 and 

related provisions of the Act (Jimmy R. Mullins v. Beth-Elkhorn Coal 

Corporation, et al., 9 FMSHRC 891 (May 1987); Gary Goff v. Youghiogheny 

and Ohio Coa·l Co., 8 FMSHRC 1860 (December 1986) ("Goff II"); Goff I, 

supra), but we have also recognized that their extent is not unlimited 

and that "[c]laims of protected activity and discrimination in this 

context must be resolved upon the basis of a careful review of the 

structure of miners' rights and operators' obligations contained in the 

pertinent statutory and regulatory texts." Mullins, supra, 9 FMSHRC at 

896. Accordingly, we look first to the language of the statute and the 

implementing regulations. 

Section 101(a)(7) of the Mine Act states that mandatory standards 

promulgated by the Secretary may provide that "where a determination is 

made that a miner may suffer material impairment of health or functional 

capacity by reason of exposure to [a] hazard covered by such mandatory 

standard, that miner shall be removed from such exposure and 

155 
reassigned." ]_/ Section 101(a)(7) further provides: "Any miner 

transferred as a result of such exposure shall continue to receive 

compensation for such work at no less than the regular rate of pay for 

miners in the classification such miner held immediately prior to this 

transfer." Finally, that section states: "In the event of [such] 

transfer of a miner ... , increases in the wages of the transferred miner 

shall be based upon the new work classification." 

As we stated in Goff I, "Part 90 implements this statutory mandate 

by providing for the transfer of miners who, as a result of exposure to 

the health hazard of respirable dust, have developed pneumoconiosis." 

7 FMSHRC at 1778 n.3. In most instances, the Part 90 program allows 

eligible miners the option of transferring to an area of a mine where 

the average concentration of respirable dust is continuously maintained 

at or below 1.0 mg/m3 , a concentration below the maximum level specified 

in the general respirable dust standards. 30 C.F.R. §§90.3 & 90.100. 

The Part 90 regulation protecting miners from pay loss upon such 

transfer, 30 C.F.R. §90.103, provides in relevant part as follows: 

(a) The operator shall compensate each Part 90 

miner at not less than the regular rate of pay 

received by that miner immediately before exercising 

the [transfer] option under §90.3 .... 

(b) Whenever a Part 90 miner is transferred, the 

operator shall compensate the miner at not less than 

the regular rate of pay received by that miner 

immediately before the transfer. 

(d) In addition to the compensation required to be 

paid under paragraphs (a) [and] (b) ... of this 

]_/ In relevant part, section 101(a)(7) provides: 

Where appropriate, [any mandatory health or safety 

standard promulgated under this subsection] shall 

provide that where a determination is made that a 

miner may suffer material impairment of health or 

functional capacity by reason of exposure to [a] 

hazard covered by such mandatory standard, that 

miner shall be removed from such exposure and 

reassigned. Any miner transferred as a result of 

such exposure shall continue to receive compensation 

for such work at no less than the regular rate of 

pay for miners in the classification such miner held 

immediately prior to this transfer. In the event of 

the transfer of a miner pursuant to the preceding 

sentence, increases in wages of the transferred 

miner shall be based on the new work classification. 

30 U.S.C. §81l(a)(7). 

156 
section, the operator shall pay each Part 90 miner 

the actual wage increases that accrue to the 

classification to which the miner is assigned. [~/] 

On review, the Secretary emphasizes the language of section 

90.103(b) of the Part 90 regulations and argues that the pay protection 

provision of the Act and the regulations apply "whenever a Part 90 miner 

is transferred." S. Br. 11-12 (emphasis added). The Secretary asserts 

that "[a]ll transfers, including those resulting from economic factors, 

entitle Part 90 miners to the pay protection provisions of that 

section.•i S. Br. 12 (emphasis added). The Secretary interprets the pay 

protection provision of section 101(a)(7) and Part 90 as vesting 

permanently when a miner exercises the Part 90 transfer option. Thus, 

in the Secretary's view, when Bushnell exercised his Part 90 rights by 

transferring to a less dusty job, he gained protection from any future 

reduction in his pay resulting from a subsequent job transfer 

irrespective of the reason for the subsequent transfer. 

This argument reaches beyond the language and the intent of the 

Mine Act and of the Secretary's own regulations. First, the words of 

section 101(a)(7) of the Act condition pay protection upon an exposurerelated transfer. Section 101(a)(7) states: "Any miner transferred ~ 

a result of [respirable dust] exposure shall continue to receive 

compensation for such work at no less than the regular rate of pay for 

miners in the classification such miner held immediately prior to his 

transfer." (Emphasis added.) Thus, the express language of the Act 

limits compensation protection to transfers resulting from the removal 

of miners 'from dusty work environments. Section 101 provides no basis 

for the Secretary's position that all subsequent, nonexposure-related 

transfers are subject automatically to statutory pay protection. The 

word "whenever" in 30 C.F.R. §90.103(b), supra, upon which the 

Secretary's argument turns, must be read in its proper context. Section 

90.103(a) refers to exposure-related transfer upon exercise of the Part 

90 transfer option. Hence, the "whenever" in subsection (b) of section 

90.103 refers back to Part 90 dust exposure-related transfers only. The 

judge's afld Secretary's ascription of a more global meaning to the 

"whenever" in section 90.103(b) is not supported by a plain reading of 

~/ As mentioned earlier (n.2, supra), the present Part 90 standards 

supersede section 203(b) of the Mine Act, which, carried over from the 

Coal Act, specifically afforded miners evidencing pneumoconiosis the 

option of transferring to a low-dust area and further provided that 11 [a]ny miner so transferred shall receive compensation for such work at 

not less than the regular rate of pay received by him immediately prior 

to his transfer." 30 U.S.C. §843(b)(3). 

30 C.F.R. §90.103 also requires that "section 203(b) miners" as of 

January 31, 1981, were to be compensated at no less than the regular 

rate of pay that they were entitled to receive undsr section 203(b) of 

the Act immediately before the effective date of the present Part 90 

regulations (section 90.103(c)), and that section 203(b) miners are also 

entitled to receive the wage increases accruing to the positions to 

which they are transferred (section 90.103(d)). 

157 
the underlying statutory and regulatory texts. 

The pertinent legislative and regulatory histories also 

demonstrate that the basic purpose of the wage saving provisions is to 

provide immediate financial protection to the wages of miners 

transferred for health reasons. In enacting section 203(b) of the Coal 

Act, the predecessor provision to section 101(a)(7) and Part 90, 

Congress emphasized the health-related nature of the provision. A key 

House report states: "The committee considers this section ..• equal in 

importance to the dust section for decreasing the incidence and 

development of pneumoconiosis. 11 H. Rep. No. 563, 91st Cong., 1st Sess. 

20 (1969), reprinted in Senate Subcommittee on Labor, Committee on Labor 

and Public Welfare, 94th Cong., 1st Sess., Part I Legislative History of 

the Federal Coal Mine Health and Safety Act of 1969, at 1050 (1975); See 

also Id. at 1071-72 & 1199. The legislative history of the Mine Act 

also reveals Congress' intent to link the wage saving provision to 

health-based transfers. The Conference Committee made clear that a 

miner is immediately protected against reduction in compensation if it 

is determined that reassignment is necessary to avoid material 

impairment of health or function: 

[A] miner who is reassigned to a different job 

classification will suffer no reduction in 

compensation if such reassignment is the result of a 

medical examination indicating that such miner may 

suffer material impairment of health or functional 

capacity by further exposure to a toxic substance or 

·harmful physical agent. After reassignment, 

however, such miner will be entitled only to the 

same dollar rate increase applicable to his new job 

classification. The conferees intend this provision 

to encourage miner participation in medical 

examination programs by insuring that miners who do 

participate in such programs shall suffer no 

immediate financial disadvantage if a medical 

examination results in a job reassignment. 

Conf. Rep. No. 461,. 95th. Cong., 1st. Sess. 42 (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 1320 (1978) (emphasis added). Not only does this 

history militate in general against the Secretary's interpretation of 

permanently vested pay protection but it also indicates that, in tying 

wage increases to the new job classification, the Mine Act imposed a 

limitation on Part 90 miners' pay rights. 

Despite the Secretary's arguments on review that the wage saving 

provisions of Part 90 apply to all subsequent, nonexposure-related 

transfers of Part 90 miners, his official comments in promulgating the 

Part 90 regulations lend support to our contrary conclusion. In those 

comments, the Secretary noted the causal connection between a miner's 

removal from exposure to a hazardous substance and the pay protection 

provision of section 101(a)(7). The Secretary stated: "By adopting 

section 101(a)(7) Congress recognized that miners may be forced to 

158 
choose between continued exposure to hazardous substances or significant 

wage reduction if work in cleaner environments is sought. To correct 

this situation, section 101(a)(7) explicitly states that a reassigned 

miner retain at least the previous rate of pay received, and 

specifically addresses the issue of subsequent wage increases." 45 Fed. 

Reg. 80,760, 80,767 (December 5, 1980). Of equal significance, the 

Secretary acknowledged Congress' intent that the wage saving provision 

provide immediate protection against financial disadvantage. 

Id. 

[R)ather than extending the full protection of wage 

increases to the miner's preassigrunent job 

classification, Congress purposefully placed a 

special limit on wage increases received by the 

miners: " ... increases in wages of the transferred 

miner shall be based upon the new work 

classification." The Conference Committee Report 

reflects Congressional concern that miners who 

participated in programs authorized under section 

101(a)(7) and are reassigned jobs should not suffer 

"an immediate financial disadvantage." 

Thus, we find nothing in the language, purpose, or history of the 

Mine Act or Part 90 supporting the pay protection right claimed by 

Bushnell. Here, there is no dispute that Bushnell's September 17, 1984 

transfer to the laborer's position (1) occurred several years after his 

initial Part 90 transfer to the dispatcher's position, (2) was not 

exposure-related, (3) represented an otherwise legitimate job realignment pursuant to Cannelton 1 s collective bargaining agreement and was 

carried out in the context of layoff and mine closure affecting all of 

Cannelton's miners at the Pocahontas mines, and (4) did not result in 

exposure to respirable dust in excess of the level specified in Part 90. 

For the reasons articulated above, we cannot conclude that the immediate 

pay protection right enjoyed by Bushnell when he was initially transferred to the dispatcher's position obtained when he was transferred 

subsequently to .Che laborer's position. 

We further note that the stipulated record is devoid of any 

evidence that Cannelton's business actions were tainted by any intent to 

discriminate, retaliate, or interfere with any legitimate statutory or 

Part 90 rights available to Bushnell. Cf. Mullins, 9 FMSHRC at 899. 

Th.us, the sole and undisputed reason for Bushnell's reassignment to the 

laborer's position was the reduction in force and realignment of 

Cannelton's employees due to adverse economic conditions. Accordingly, 

we hold that Bushnell's transfer did not violate section 105(c)(l) of 

the Act. 

III. 

In sum, we conclude that Cannelton did not violate section 

159 
lOS(c)(l) of the Mine Act by failing to compensate Bushnell at a pay 

rate equal to his previous pay rate when it transferred him from the 

position of d_ispatcher to the position of general inside laborer during 

the realignment of employees. Therefore, we reverse the decision of the 

judge, vacate the back pay award and the civil penalty assessed, and 

dismiss the complaint of discrimination. 

Distribution 

John W. Bushnell 

Box 26 

Kimball, West Virginia 24853 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Michael J. Bommarito, Esq. 

Jackson, Kelly, Holt & O'Farrell 

P.O. Box 553 

Charleston, West Virginia 25322 

ame~ A./Las owkfi, 

"-....;, I~- . . /1 '; ,~· . c:h Lx:-iA-\... v· I u.LtL-O--t·L... · 

L. Clair Nelson, Commissioner 

Administrative Law Judge William Fauver 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

160 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 FEB 3 1988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. 

TARGET INDUSTRIES, INC., 

Respondent 

Docket No. PENN 87-120 

A. C. No. 36-06873-03536 

No.· 1 Mine 

DECISION 

Appearances: Susan M. Jordan, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner~ 

J. E. Ferens, Esq., Waggoner & Ferens, Uniontown, 

Pennsylvania, for Respondent. 

Before: Judge Maurer 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor (Secretary} pursuant to Section 

105(d} of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq.~ the "Act," for two alleged violations 

of the mandatory-safety standards. The general issues before 

me are whether Target Industries, Inc., (Target} has violated 

the cited regulatory standards and, if so, what is the appropriate civil penalty to be assessed in accordance with Section 

llO(i} of the Act. Additional issues are also addressed in 

this decision as they relate to a specific citation or order. 

The case was heard in Pittsburgh, Pennsylvania, on June 24, 

1987. Supplemental evidence in the form of depositions was submitted into the record on January 22, 1988. Both parties have 

waived the filing of post-hearing briefs. 

STIPULATIONS 

The parties stipulated to the following: 

1. The Target No. 1 Mine is owned and operated by the 

Respondent, Target Industries, Inc. 

2. The Target No. 1 Mine is subject to the jurisdiction 

of the Federal Mine Safety and Health Act of 1977. 

3. The presiding Administrative Law Judge has jurisdiction over the proceedings pursuant to § 105 of the Act. 

161 
4. The citation, order, terminations and modifications, 

if any, involved herein were properly served by a duly authorized representative of the Secretary of Labor upon an agent 

of the respondent at the dates, times, and places stated therein, and may be admitted into evidence for the purpose of establishing their issuance. 

5. The parties stipulate to the ~uthenticity of their 

exhibits but not the relevance or the truth of the matters 

asserted therein. 

6. The alleged violations were aba.ted in a timely fashion. 

7. The total annual production of the respondent is 

approximately 120,000 tons of coal. The respondent employs 

approximately 31 employees at this mine. 

8. The computer printout reflecting the operator's 

history of violations iE an authentic copy and may be admitted 

as a business record of the Mine Safety and Health Administration. 

9. The imposition of the proposed civil penalties will 

have no effect on the respondent's ability to remain in business. 

DISCUSSION 

Section 104 (d) (1) Citation No. 2687303, issued at 

9:15 a.m. on December 9, 1986, cites a violation of 30 C.F.R. 

§ 75.303 and alleges the following condition or practice: 

There were no dates recorded on date boards along 

the main belts from the belt drift opening to the 

2 Left and 3 Left working section to indicate sucp 

belts were examined on 12-8-86 for the afternoon ,. 

shift. The day shift belt examiner stated he had 

completed his examination from no. 20 crosscut no. 

1 belt to the 2 Left section along main belts. 

The record book on the surf ace indicated no violation or hazardous conditions were observed for 

12-9-86. The following conditions were observed 

by the writer in the belt entry float coal dust 

from the drifting opening inby to 2 Left & 3 Left 

section, belt rollers contacting loose coal, coal 

dust, guarding removed from no. 3 tail roller and 

take up roller at no. 3 drive. 

162 
Section 104(d) (1) Order No. 2687304, issued at 10:00 a.m. 

on December 9, 1986, cites a violation of 30 C.F.R. § 75.400 

and alleges the following condition or practice: 

Float co~l dust was observed on rock-dusted surfaces 

from the belt drift opening to the feeder in 2 Left 

and 3 Left working sections. Float coal dust was 

observed on all belt drive structures (No. 2, No. 3, 

No. 4, and No. 5). Loose coal was permitted to accumulate and contact the belt and belt roller (bottom) 

between the air lock doors no. 1 belt, on the overpass top structure, and several locations along the 

no. 2 belt conveyor system. Loose coal and coal dust 

was shoveled from under the tail roller of no. 3 tail 

and piled against the coal rib to depth of 2 ft. The 

tail roller of no. 2 belt was also contacting coal 

dust. A program was not available indicating a regular clean up and removal of accμmulation of loose 

coal, coal dust, float coal dust, and other combustible materials. 

MSHA Inspector Charles Pogue testified as to his background 

and experience, and he confirmed that he inspected the mine on 

December 9, 1986, and issued the Section 104(d) (1) Citation and 

Order which are the subjects of these proceedings. 

He testified that accompanied by Mr. John Pesarsick, the 

mine superintendent, he left the surface and proceeded to 

inspect the belt lines. Starting his inspection, he went 

through the set of air-lock doors at the drift mouth opening. 

At that point, he found an accumulation of loose coal and 

coal dust, approximately four to six inches in depth, contacting the belt rollers and the bottom belt. They proceeded 

inby this location on down the No. 1 belt. The further they 

walked along the belt toward the number 2 belt drive, the 

darker .the belt became with coal dust. It was black in color. 

Once they got up to around the number 2 belt drive, the belt 

became very black, and there were accumulations on the belt 

drive. At the No. 2 drive, he continued inby, finding additional accumulations of loose coal, coal dust and float coal 

dust, particularly at a second set of air-lock doors and at 

an underpass on the No. 2 belt line. Inby those air-locks and 

underpass, he found approximately seven frozen belt rollers 

and an additional 10 to, 12 rollers that were contacting accumulations of coal. At the No. 3 belt drive there were accumulations of loose coal, coal dust and float coal dust approximately 

12 to 15 feet in length and 4 to 8 inches in depth. 

As he walked the belt he was also looking at the date 

boards which are located along the belt for date, time and 

initials that would indicate the belt had been examined on the 

afternoon shift of December 8, 1986. 

163 
Belt conveyors on which coal is carried are required to 

be examined after each coal-producing shift has begun by 30 

C.F.R. § 75.303. Inspector Pogue deter~ined from Mr. Pesarsick 

that coal h~d indeed been run on the afternoon shift of December 8, but he was unable to find any date boards along the 

belt line that had been signed by a belt examiner or fire boss 

on the afternoon of December 8, 1986, to indicate that the 

belt had been examined, as required. Section 75.303 also 

specifically requires the examiner to place his initials, the 

date and the time at all such places he examines. Because the 

date boards he observed were not so initialed, dated, and 

timed and because of the conqitions the inspector observed on 

the belt line, he came to the conclusion that the belt line 

had not been examined on the afternoon of the eighth and that 

therefore there had been a violation of 30 C.F.R. § 75.303. 

The inspector testified that along the No. 1 belt, between 

the air locks where he entered and the No. 2 drive there were 

3 date boards and beyond the No. 2 drive, a further undetermined number along the No. 2 belt line. He couldn't remember 

how many, but he did state that none he saw were initialed 

on the afternoon of December 8, 1986. He did, however, concede that he was unsure of whether or not he had observed 

each and every date board in existence on the belt lines. 

He also checked the mine examiner's book on the surface. 

The examiner who has inspected the belt conveyors is also 

required by 30 C.F.R. § 75.303 to record the results of his 

examination in a book on the surface. There is no indication 

of any hazardous conditions such as coal dust accumulations 

on the belt line reported as observed on December 8. To the 

contrary, the entry for the dayshift on the eighth of December 

indicated that no hazards had been observed, and there was 

no entry at all for the afternoon shift, at least according 

to the inspector. Mr. Pesarsick recalls that the book stated 

"none" under "hazardous conditions" for the afternoon shift 

of the 8th and that it was signed by John Kent, who had made 

the examination. Neither the book itself or a copy was 

produced at the hearing. 

Mr. Pesarsick testified that he likewise did not see 

John Kent's initials on any of the date boards that he passed 

on the No. 1 belt line up to the No. 2 drive, but he states 

that he was not specifically looking for them. 

Mr. Fisher, the dayshift fire boss, also testified. On 

the morning of December 9, he had been in the mine doing the 

preshift examination and after the coal-producing shift 

started, he walked the belts out. He starteq at the back of 

the mine, coming forward whereas Mr. Pesarsick and Inspector 

Pogue had started at the front of the mine and walked back. 

The three met at the No. 2 drive. Mr. Fisher states that he 

164 
saw John Kent's initials on two date boards that day. One 

was right there at the No. 2 drive and the other was at the 

underpass on. the No. 2 belt. He stated that he erased Kent's 

initials and date from the two date boards and replaced them 

with his own just prior to meeting up with Mr. Pesarsick and 

Inspector Pogue at the No. 2 drive. I do not credit this 

testimony, however, because it seems highly unlikely that 

Kent would have initialed all (both) the date boards on the 

No. 2 belt as Fisher states, but none of the three boards on 

the No. 1 belt if he had in fact examined both belt lines. 

Hence, even if I were to credit Fisher's testimony and find 

that Kent did examine the No_. 2 belt line, it only makes the 

case stronger that he did not examine the No. 1 belt line. 

Either way, there is a violation of the cited standard. 

Even Superintendent Pesarsick conceded that it was 

possible that the examination wasn't done on the afternoon 

of the eighth based on the conditions he observed along the 

No. 1 belt line on the morning of the ninth. 

The fact that the date boards along the No. 1 and No. 2 

belt lines were not initialed, dated and timed by John Kent, 

the belt examiner on the afternoon shift of December 8, 1986, 

is therefore unrefuted in the record and standing alone is a 

violation of 30 C.F.R. § 75.303. Moreover, the preponderance 

of circumstantial evidence compels the conclusion that the 

No. 1 belt line between the air locks and No. 2 drive and the 

No. 2 belt line to No. 3 drive were not examined on the 

afternoon shift of December 8, 1986, also a violation of 

§ 75.303. 

I specifically find that an onshift examination was not 

conducted on the No. 1 and No. 2 belt lines between the belt 

drift opening and No. 3 drive on the afternoon shift of 

December 8, 1986, in that an obvious accumulation of loose 

coal and coal dust existed along those belt lines and this 

condition had not been reported or recorded in the book 

provided for ~his purpose on the surface. In my judgment, 

this condition which was discovered on the morning of December 9 had existed on the afternoon of December 8 as well. 

Furthermore, I find that none of the date boards on the No. 1 

or No. 2 belt lines were initialed, dated or timed for the 

afternoon shift of December 8, which I find to be an addit~onal circumstance supporting the allegation that the 

examination was not performed in those areas that afternoon. 

This latter fact is, of course, a violation of the cited 

section in its own right, albeit perhaps a "technical" one. 

A violation is "significant and substantial" if (1) there 

is an underlying violation of a mandatory safety standard, (2) 

there is a discrete safety hazard, (3) there is a reasonable 
likelihood that the hazard contributed to will result in injury, 

and (4) there is a reasonable likelihood that the injury in · 

question will be of a reasonably serious nature. Secretary 

v. Mathies Coal Company, 6 FMSHRC 1 (1984). 

In this regard, Inspector Pogue testified that the belt 

examiner's purpose in walking these belts is to detect 

hazardous conditions and to report them and/or correct them. 

If these conditions go unfound or uncorrected, a mine fire or 

explosion could result from, for instance, the accumulation 

of combustible materials contacting the belt structure. 

Specifically, he observed ac9umulations of loose coal, 

coal dust and float coal dust present on the structure of 

the belt drives and on electrical equipment. Since the 

examination wasn't made in these areas, these conditions 

were not reported to mine management, and were permitted to 

exist and exacerbate. If a fire were to start, it would be 

reasonably likely to spread to the extent where it could 

cause serious injury. Under the circumstances, I find that 

the violation was "significant and substantial" and serious. 

The Secretary further urges that this violation was 

caused by the operator's "unwarrantable failure" to comply. 

Inspector Pogue, when asked by the Solicitor why he issued 

this violation as an unwarrantable failure replied: 

Because it is the obligation of the operator 

to insure that examinations o.f the belt entry are 

made after the coal.producing shift begins, for 

each coal producing shift . . . [S]o that the 

operator can be aware of conditions in the belt 

entry, any hazardous conditions that may exist 

in the belt entry. 

This is clearly insufficient cause, in and of itself, to 

issue an "unwarrantable failure" citation. Nor does my 

examination of the record turn up any better cause to term 

this violation an "unwarrantable failure." 

I therefore find that the violation was not caused by 

"unwarrantable failure." In Zeigler Coal Company, 7 IBMA 

280 (1977), the Interior Board of Mine Operations Appeals 

interpreted the term "unwarrantable failure" as follows: 

An inspector should find that a violation of any 

mandatory standard was caused by an unwarrantable 

failure to comply with such standard if he determines that the operator has failed to abate the 

conditions or practices ~onstituting such violation, ccinditions or practices the operator knew 

or should have .known existe.d cir which it failed 

166 
to abate because of lack of due diligence, or because of indifference or lack of reasonable care. 

The Commission has concurred with this definition to the 

extent that an unwarrantable failure to comply may be proven 

by a showing that the violative condition or practice was not 

corrected or remedied prior to the issuance of a citation or 

order, because of indifference, willful intent, or serious 

lack of reasonable care. United States Steel Corp. v .. 

Secretary of Labor, 6 FMSHRC 1423 at 1437 (1984). And most 

recently, in Emery Mining Corp. v. Secretary of Labor, 9 FMSHRC 

, slip op •. at 1, WEST 86:-35-R (December 11, 1987), the 

Commission stated the rule that "unwarrantable failure" means 

aggravated conduct, constituting.more than ordinary negligence, 

by a mine operator in relation to a violation of the Act. 

There is no evidence in this record that will support a finding that the operator exhibited aggravated conduct that exceeded ordinary negligence. For the.purpose of assessing the 

penalty, I find that negligence to be "moderate." 

Accordingly, I will modify the Section 104(d) (1) citation 

to a citation issued pursuant to Section 104(a) of the Act, 

and assess a penalty accordingly. 

Turning now to the violation of 30 C.F.R. § 75.400 alleged 

in Order No. 2687304, the cited standard requires that "coal 

dust, including float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be 

cleaned up and not be permitted to accumulate in active workings, or on electric equipment therein." 

Inspector Pogue described the violative conditions and 

areas. He testified that beginning at the air-lock doors at 

the drift mouth opening there was approximatelv four to six 

inches of dry coal dust contacting the belt rollers and the 

bottom belt. Proceeding inby up the No. 1 belt entry to the 

No. 2 belt drive, it got blacker as he went further. At the 

No. 2 belt drive was the first location that he saw accumulations on the belt drive. Proceeding inby on the No. 2 belt 

line, he came to an area where there were accumulations of dry 

loose coal and float coal dust on the top of an undercast 

measured by him to be 12 inches deep and ten feet in length 

contacting the belt roller and belt in that location. At 

No. 3 drive, he found further accumulations of loose coal, 

coal dust and float coal dust four to eight inches deep for a 

length of 12 to 15 feet. At the No .. 3 tail piece, he found 

coal thrown up against the rib, but this had apparently just 

been done by Mr. Fisher, preparatory to getting it cleaned up. 

Mr. Pesarsick agreed that the coal accumulations along 

the No .. 1 belt "needed some taking care of" and that the 

167 
"air-lock needed shoveling," but generally disagreed with the 

alleged severity of the problem. He was also aware, because 

Mr. Fisher told him, of the coal spill at No. 3 tailpiece. 

Mr. Fisher concurred that there were "some" accumulations 

along the No. 2 belt as well. 

I think it is a fair statement to say that the operator 

does not disagree that there was a violation, but disagrees 

with the alleged severity of that violation and strongly disagrees with the "unwarrantable failure" allegation. 

I find that the violation of 30 C.F.R. § 75.400 is proven 

as charged. I also find that it was a "significant and substantial" violation of the mandatory standard. Mathies Coal 

Company, supra. The record amply demonstrates that the violation presented a discrete safety hazard, i.e., explosion and 

fire. I accept Inspector Pogue's testimony that there were 

ignition sources present along the belts in proximity to the 

cited accumulations, and that had there been a mine fire or 

explosion, persons inby these locations could have suffered 

serious injury, possibly death. As an example, I note that the 

stuck or frozen rollers found by the inspector would be capable 

of creating enough frictional heat to ignite the combustible 

accumulations. I also note that the Commission has previously 

recognized the explosive character of float coal dust. Old 

Ben Coal Co., 1 FMSHRC 1954 (1979). 

With regard to the issue of unwarrantability, the inspector opined that these accumulations took a minimum of 5 days 

to build up under normal mining conditions and that therefore 

the operator knew or should have known of the violative condition in his mine. Therefore, at least to the inspector, this 

amounted to an "unwarrantable failure" to comply with the mandatory standard. 

I disagree. My reasoning relies in part on the i~tegrity 

of the mine examiner's book on the surface. There was an 

entry from the day before the inspector's visit; the day 

shift entry for the eighth. That entry did not make a note 

of any of the conditions which the inspector observed on the 

morning of December 9. This apparent discrepancy is explained 

by the operator, at least as to the accumulations around the 

air-locks and underpass as being caused by high air pressure 

on the belt lines causing such accumulations to build up 

quicker than normal. As to the other parts of the belt where 

there were accumulations, the operator credibly explained 

these as spills, which could have occurred since the last 

belt examination. One such spill, at the No. 3 tailpiece, 

was reported to mine management and clean-up ordered before 

the inspector saw it. This ~ituation is not congruent with 

the aggravated conduct test announced in Emery Mining Corp., 

supra. 

168 
I will, therefore, modify this Section 104(d) (1) order 

to a Section 104(a) citation and assess an appropriate civil 

penalty. 

In assessing the civil penalties herein, I find that 

both violations were serious and resulted from the operator's 

ordinary negligence, which I rate as "moderate." I have 

examined the operator's history of previous violations and 

take note here of the stipulations concerning operator size, 

good faith abatement and the effect civil penalties would 

have on the operator's ability to remain in business. I conclude that a civil penalty assessment of $200 for each violation is appropriate under ail the circumstances. 

ORDER 

Based on the above findings of fact and conclusions of 

law, IT IS ORDERED THAT: 

(1) Citation No. 2687303, issued December 9, 1986, under 

Section 104(d) (1) IS MODIFIED to delete the finding that the 

violation was caused by the operator's "unwarrantable failure" 

to comply with the standard. The citation is therefore 

hereby converted to one issued under Section 104(a), and a 

civil penalty of $200 is assessed. 

(2) Order No. 2687304, issued December 9, 1986, under 

Section 104(d) (1) IS MODIFIED to delete the finding that the 

violation was caused by the operator's "unwarrantable failure" 

to comply with the standard. The order is therefore hereby 

converted to one issued under Section 104(a), and a civil 

penalty of $200 is assessed. 

(3) Target Industries, Inc., is directed to pay a civil 

penalty of $400 within 30 days of the date of this decision. 

Distribution: 

;(_;J j;fA 0.MNV1j R~y .· J/~urer Admi~urative Law Judge 

Susan M. Jordan, Esq., Office of the Solicitor, u. S. Department 

of Labor, 3535 Market St., Philadelphia, ~A 19104 (Certified 

Mail) 

J.E. Ferens, Esq., Waggoner & Ferens, 97 E. Main St., Uniontown, 

PA 15401 (Certified Mail) 

yh 169 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

UNIVERSAL COAL & ENERGY 

COMPANY, INC., 

Respondent 

FEB 91988 

. . 

. . 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 87-95 

A. C. No. 23-01432-03524 

Randolph No. 1 Strip 

Appearance: Charles W. Mangum, Esq., Office of the Solicitor, 

U. s. Department of Labor, Kansas City, Missouri, 

for the Secretary; 

N. William Phillips, Esq., Phillips & Spencer, 

Milan, Missouri, for the Respondent. 

Before: Judge Weisberger 

Statement of the Case 

The Secretary (Petitioner) filed, on September 11, 1987, a 

Petition for Assessment of Civil Penalty for an alleged violation 

by Respondent of 30 C.F.R. § 77.205(b) on April 16, 1987. Pursuant to notice the case was heard in Jefferson City, Missouri, on 

November 17, 1987. Larry G. Maloney testified for Petitioner and 

Chris Duren, John Sulltrop, Earl Read, and Michael Sinicropi 

testified for Respondent. 

Petitioner filed its Posthearing Brief on January 4, 1988, 

and Respondent filed its Findings of Fact and Memorandum on 

January 6, 1988. The Parties' Reply Briefs were filed on January 

20, 1988. 

Stipulations 

Respondent filed, on November 16, 1987, the following stipulations which were signed by Counsel for both Parties: 

170 
1. That jurisdiction over this proceeding is conferred 

upon the Federal Mine Safety and Health Commission by 

section 105Cd) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 815Cd). 

2. That the condition for which Petitioner seeks an 

assessment of civil penalty involved Respondent's mine 

known as the Randolph No. 1 Strip which is located near 

the town of Higbee, Howard County, ·Missouri. 

3. That the size of Respondent's Randolph No. 1 Strip 

mine is based on 66,410 production tons in 1986. 

5. That on April 16, 1987, Larry G. Maloney, an inspector for the Mine Safety and Health Administration, 

conducted an onsight inspection of the Randolph No. 1 

Strip mine. (Sic) 

. 7. That as a result of the April 16, 1987 inspection, 

referred to in paragraph number 5., Respondent was 

issued Citation Number 2817510 alleging violation of 

the mandatory safety standard found at part 77.205Cb) 

of Title 30, Code of Federal Regulation. 

10. That Respondent was granted until April 20, 1987 to 

abate the violation alleged in citation number 2817510. 

12. That on April 20, 1987, Larry G. Maloney Conducted 

a follow-up inspection of Respondent's Randolph No. 1 

Strip and issued a section 104(b) Withdrawal Order 

Number 2817515 

At the hearing, the Parties further stipulated that the 

imposition of a civil penalty in these proceedings will not 

effect the ability of the Respondent to continue in business, 

that Respondent is a small operat~r, and that Respondent's 

history of past violations is evidenced by Petitioner's 

Exhibit 1. 

Issues 

The issues are whether the Respondent violated 30 C.F.R. 

§ 11:20SCbl, and if so, whether that violation was of such a 

nature as could significantly and substantially contribute to the 

cause and effect of a mine safety or health hazard, and whether 

the alleged violation was the result of the Respondent's unwarrantable failure. If section 77.205(b), supra, has been violated, 

it will be necessary to determine the appropriate civil penalty to 

be assessed in accordance with section llOCi) of the Federal Mine 

Safety and Health Act oE 1977~ 30 u.s.c. § 801 et. seq., (the 

"Act"). 

171 
Citation 

Citation 2817510, issued on April 16, 1987, alleges a significant and substantial violation in that "Coal spillage had 

accumulated on the bottom floor of the preparation plant. It had 

accumulated to a depth of approximately 10" over the entire floor 

(approx 40' square). Piles of spillage had accumulated to a 

depth of approx 4 ft. blocking the staiEs on the southeast cornsr. 

The plant had not been in operation since 4/9/87 but was in the 

process of being operation." (Sic.) 

Regulation 

30 C.F.R. § 77.205(b) provides as follows: 

"Travelways and platforms or other means of access 

to areas where persons are requi~ed to travel or work, 

shall be kept clear of all extraneous material and 

other stumbling or slipping hazards." 

Findings of Fact and Conclusions of Law 

I 

Larry G. Maloney, a mine inspector employed by the Mine 

Safety and Health Administration, testified that on April 16, 

1987, when he inspected Respondent's coal processing plant, he 

observed an accumulation of coal in the lowest or (sump level) 

that completely covered the whole area to a depth of approximately 

10 inches. In addition, it was essentially his testimony that the 

accumulation of coal at a stairway located in the southeast corner 

of the sump area had piled to a depth of approximately 4 feet. It 

further was his testimony that a person attempting to climb over 

this pile to go to the stairway would be subjected to a possibility of slipping on the coal accumulation as it was uneven. He 

also said that there were cracks or crevices in the coal accumulations which would cause unsecured footing. 

Chris Duren, Respondent's pit supervisor and supervisor of 

mechanics and John Sulltrop, Respondent's safety director, testified, in essence, that the southeast stairway would not be used 

when the plant is in operation as it is located directly underneath a conveyer belt, and one using this stairway would be 

subject to debris falling from the belt. Duren and Sulltrop also 

indicated that most of the tools are located in the central 

off ice which is more accessible to the stairway at the northwest 

corner rather than the southeast corner. They also indicated 

that the former stairway is the one nearest a winch line beam. 

172 
I find, based on the uncontradicted testimony of Maloney, 

that on the date in question there was an accumulation of coal in 

the sump area which created a stumbling or slipping hazard. 

Also, I find, based upon the testimony of Maloney and Duren, that 

although work is not performed in the sump area on a daily basis, 

nontheless, as part of the normal operation of the plant worker·s 

are required to go to that area to lubricate, clean up, or open 

valves. Also, I find that although it may have been more 

efficient for a worker in the sump area·to utilize the stairway 

of the northwest corner, the stairway at the southeast corner is 

clearly a means of access to the sump area from the level above 

it. Hence, I find that it has been established that Respondent 

violated section 77.205(b), supra. 

II 

In analyzing whether the violation herein is of such a 

nature as to fall within the purview of section 104(d)(l) of the 

Act as significantly and substantially contributing to a safety 

hazard, I am guided by the Commission decision in Mathies Coal 

Company 6 FMSHRC 1 (January 1984). 

In Mathies Coal Co., supra, the Commission set forth the 

elements of a "significant and substantial" violation as follows: 

In order to establish that a violation of a mandatory safety standard is significant and substantial 

under National Gypsum the Secretary of Labor must 

prove: (1) the underlying violation of a mandatory 

safety standard; (2) a discrete safety hazard--that 

is, a measure of danger to safety--contributed to by 

the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; and, 

(4) a reasonable likelihood that the injury in question 

will be of a reasonably serious nature. (6 FMSHRC, 

supra, at 3-4.) 

As discussed above, infra, I have already found that a mandatory safety standard, i.e., 30 C.F.R § 75.205(b), has been 

violated. Accordingly, the first element of Mathies, supra, has 

been satisfied. In evaluating whether or not the additional 

elements set forth in Mathies, supra, have been met, I find that 

the only evidence in the record on this issue consists of the 

testimony of Maloney. In essence, it was the testimony of 

Maloney that the nature of the violation herein was significant 

and substantial, inasmuch as the uneven coal accumulation in the 

sump area contained cracks and crevices and as a result created a 

hazard whereby one walking over such a surface could slip and 

suffer permanent disability due to a severely twisted ankle, or a 

broken leg. He also opined that an injury to one's head or body 

could occur as result of slipping or falling against hazardous 

173 
objects located in the sump area such as medal handrails, pumps, 

and support beams. Inasmuch as this testimony was not contradicted or diluted upon cross examination, I adopt it and find 

that the nature of the violation herein is to be considered 

significant and substantial within the purview of section 104Cd) 

of the Act. 

III 

According to Respondent's witnesses on April 9, 1987, a 

screen located above the sump area, on the highest level of the 

plant, became plugged causinq coal to overflow and fall to the 

sump area. In addition a water pump had broken causing the 

remaining water pumps in the circuit not to operate, thus 

shutting down the entire processing plant operation. It was 

further the testimony of Respondent's witnesses that from 

April 9, 1987, through Apr.il 16, 1987, the date of Maloney's 

inspection, the processing plant was not in operation and no one 

went to work in the sump area. Further, inasmuch as the pumps 

were; not in operation, there was no way to provide water pressure 

to clean out the accumulation of coal in the sump area by having 

it washed out. 

In order to find, as argued by Petitioner, that the violation herein was caused by Respondent's unwarrantable failure, I 

must find that the accumulation of coal in the sump area resulted 

from Respondent's aggravated conduct which constitutes more than 

ordinary negligence (Emery Mining Corp., 9 FMSHRC ~~' (Slip 

op., Dec 11, 1987)). Petitioner, in its brief, argues that the 

coal accumulation in the sump area was ultimately caused by and 

not·corrected due to Respondent's "lack of reasonabla care." I 

conclude that although Respondent's actions herein might constitute "lack of reasonable care," they do not reach the level of 

aggravated conduct and thus can not be characterized as being 

encompassed in the term "unwarrantable failure" (Emery Mining 

corp. supra). Moreover, Petitioner's augment is based upon testimony from Earl Read, who was Respondent's Plant Foreman in the 

time period in issue, which tends to indicate tha~ Respondent had 

previously had problems with the secco screen (Tr. 207-208). 

Petitioner also cited Read's statement of June 16, 1987, and his 

testimony which tends to indicate that "the Company" and Read's 

supervisor, Guy Schippia, were not willing to replace screens and 

pumps. However, both Duren and Read testified that from April 9, 

to April 16, they were waiting for pump parts that had been 

ordered. This belies a finding that Respondent's action was 

"4ggravated conduct." 

Further , since the plant was not in operation between April 

9 and April 16, and no one went down to the sump area in that 

time period, I find that it was not "aggravated condu~t" for 

174 
Respondent to have opted to wait for the plant's returned operation in order to clean out the area with high pressure water 

which is the customary method of cleaning out the sump area. 

IV 

In assessing a civil penalty in this matter, I have carefully 

considered the criteria set forth in section llOCi) of the Federal 

Mine Safety and Health Act of 1977. The Parties have stipulated 

to the Respondent's history of previous violations, size of its' 

business, and the effect of a penalty assessed on its ability to 

continue in business. I adopt the Parties' stipulations. 

The remaining statutory factors are in issue. Based on the 

testimony of Duren CTr. 147-148) that Respondent had problems 

with the pump system prior to April 9, and Read's testimony that 

Respondent previously had problems with the screen, I find 

Respondent negligent to a moderate degree in that it had not, 

prior to April 9, fixed the portion of the system that caused the 

spillage in the sump area. Also, Respondent was negligent in a 

less than moderate degree in allowing the coal accumulation to 

remain from April 9 to April 16. 

I find that until the abatement of the citation was commenced, there is no evidence that any of Respondent's employees 

actually entered the sump area where the coal had accumulated. 

Indeed, the processing plant was not in operation between April 1 

and April 16, 1987. It was the testimony of Read, in essence, 

that because the plant was not in operation then there would not 

have been any reason for any employee to go to the sump area. 

Also, I note that although there was an accumulation of coal ~ 

feet high beside the stairway in the southeast corner of the sump 

area, there was no such accumulation or blockage by the stairway 

at the northwest corner, which is the one closest to the area on 

the floor above where the tools were kept. As such, I find that 

the gravity of the violation herein was low. 

The condition giving rise to the violation herein was 

initially observed by Maloney on April 16, 1987. At that time, 

he proposed to Respondent that the condition should be abated by 

April 20, and according to Maloney's testimony Respondent did not 

object. When Maloney returned on April 20, the accumulation of 

coal was still in evidence. Maloney then issued a withdrawal 

order predicated upon Respondent's failure to abate. This order 

was terminated on April 27, 1987, when the original condition 

giving rise to the violation was abated. In mitigation, Duren 

testified that subsequent to Maloney'~ inspection on April 16, 

Respondent's wo~k force was taken off the pit area and sent to 

the plant to repair the screen and pump and clean up the accumulation of coal in the sump area. According to Duren the pump was 

repaired on April 16, and according John Sulltrop, Respondent's 

safety director at that time, the plant was in operational 

175 
condition by quitting time at 3:30 p.m. on April 14. However, 

Respondent's workers, with one exception, refused to work overtime to clean. the sump area. The one worker who remainad, worked 

with Read and Sulltrop until 7:00 p.m. to flush out the system. 

In addition, according Respondent's President Michael Sinicropi, 

some coal was run through the system from the yard on April 17, 

with the intention of cleaning up the sump area on Monday morning 

April 20. However, according to Sinicropi, Respondent's employees 

were on strike Monday morning and Respondent needed some time to 

clarify its legal position whether it could hire nonunion personnel to clean the sump area. Subsequently, on April 20, Respondent 

contacted two nonunion employees who arrived at the mine Tuesday 

morning April 21, and cleaned out the sump area. Taking into 

account all of the above circumstances, as established by the 

uhcontradicted testimony of Respondent's witnesses, I find that 

Respondent acted in good faith in abating the violation herein. 

Taking into account all the statqtory factors discussed 

above, especially Respondent good faith and low level gravity of 

the violation herein, I conclude that a civil penalty of $200 is 

appropriate. 

ORDER 

It is ORDER that Respondent pay the sum of $200, within 30 

days of this Decision, as a civil penalty for the violation found 

herein. 

Distribution: 

A~ Avram Weisberger 

Administrative Law Judge 

Charles W. Mangum, Esq., Office of the Solicitor, U. s. Department of Labor, Room 2106, 911 Walnut Street, Kansas City, MO 

64106 (Certified Mail) 

N. William Phillips, Esq., Phillips & Spencer, 103 North Market, 

Box 69, Milan, MO 63556 (Certified Mail> 

dcp 

176 
FEDERAL MIME SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 91988 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

: CIVIL PENALTY PROCEEDINGS 

: Docket No. KENT 87-34 

A.C. No. 15-13469-03580 . . Docket No. KENT 86-143 

: A.C. No. 15-13469-03567 

GREEN RIVER COAL COMPANY, INC., : 

Respondent 

GREEN RIVER COAL COMPANY, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . Green River No. 9 Mine 

CONTEST PROCEEDINGS 

Docket No. KENT 86-150-R 

Citation No. 2216772; 8/20/86 

: Docket No. KENT 86-151-R 

Citation No. 2216773; 8/20/86 

Green River No. 9 Mine 

DECISION 

Appearances: Flem Gordon, Esq., Gordon and Gordon, P.S.C., 

Owensboro, Kentucky for Green River Coal Company, 

Inc.; 

Mary Sue Ray, Esq., Office of the Solicitor, U. S. 

Department of Labor, Nashville, Tennessee for the 

Secretary of Labor. 

Before: Judge Melick 

These consolidated cases are before me under section 105(d) 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 

801 et. seq., the "Act", to challenge citations and withdrawal 

orders issued to Green River Coal Company, Inc. (Green River) by 

the Secretary of Labor and for review of civil penalties proposed 

by the Secretary for the violations alleged therein. 

Citation No. 2216776, issued pursuant to section 104Ca) of 

the Act, charges a violation of the standard at 30 C.F.R. § 

75.200 and alleges as follows: 

The roof in the No. 1 entry cut-through at Spad No. 

3600 was not supported and persons had been traveling 

through this area. This citation is issued as part of 

a 107(a) order therefore no abatement time is needed. 
The cited standard provides in relevant part that "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". 

Inspector James Franks of the Federal Mine Safety and Health 

Administration CMSHA) was performing an inspection at the No. 9 

Mine on August 26, 1986, with this colleague,· Inspector Larry 

Cunningham, when he discovered in the intake escapeway to the 

No. 1 Unit an area of unsupported roof in a cut-through. The 

cut-through area, was 10-feet wide and 15 to 18 feet long and was 

totally without roof support. Franks opined that when coal had 

been loaded-out from the subject area the scoop or loader had 

pushed piles up to the sides creating a hill across the entry. 

There were machine tracks on top of the pile and it was "well 

worn, not a one-shot deal". Based on this evidence Franks opined 

that miners had been regularly using the cited area as a 

passageway. Franks also thought there was a "strong possibility" 

that pumpers had been in area because there was water in the 

cut-through. Bill Blaylock, the union representative at the 

scene, also told Franks that the cut-through had been completed 

for more than a week and "had been reported". 

Franks also testified that there was an 18 inch streamer 

hanging from the roof at one end of the cut-through signifying 

that the area was "dangered off" but the.re was no such warning on 

the other end of the cut-through. According to Franks the cited 

area could properly have been "dangered off" in accordance with 

the roof control plan thereby avoiding a violation of the cited 

standard, however Franks opined that in order to do so a streamer 

must be suspended from both ends 0£ the dangerous unsupported 

area (Government Exhibit 4 page 4 paragraph 12). Franks 

explained that if only one end of the unsupported danger area is 

"dangered off" with a streamer then persons approaching from the 

opposite side would not be adequately warned. Franks also 

testifieq that it had been MSHA's practice for at least 15 years 

to require both sides of such an area to be "dangered off". 

Within this framework of undisputed evidence it is clear 

that there was~a violation of the cited standard and that the 

violation was "significant and substantial" and serious. 

Secretary v. Mathies Coal Co., 6 FMSHRC 1 (1984). In summary, 

the evidence shows that a significant area of unsupported roof 

existed in a cut-through area some 15 to 18 feet long. It is 

undisputed that miners were passing beneath this unsupported roof 

in' spite of the placement of an 18 inch streamer signifying a 

dangered-off area. The violation was further aggra~ated by the 

fact that the cited area was used as an escapeway and that the 

roof in the area had a history of instability and falls. Indeed, 

178 
according to Franks there were several roof falls on the same 

unit on the very day of his inspection. I find that such an 

unsupported area of roof in a mine having a recent history of 

roof falls and with miners continuing to travel beneath that roof 

under the circumstances constituted a "significant and 

substantial" and serious violation. Mathies Coal Co., Supra. 

The fact that one entrance to the ~cut-through" could be 

entered without warning that it was "dangered-off" also supports a 

finding of operator negligence. In addition, the fact that miners 

had been traveling beneath the unsupported roof in apparent 

disregard of the existing warning streamer shows a lack of 

supervision, training and/or discipline. See Secretary v. A. H. 

Smith Stone Co., 5 FMSHRC 13 (1983). For this additional reason I 

find that the violation was the result of operator negligence. 

Citation No. 2216493 issued on May 2, 1986, pursuant to section 

104{d)(l) of the Actl/ alleges a "siqnificant and substantial" 

violation of the standard at 30 C.F.R. § 75.200 and charges as 

follows: 

~/Section 104(d){l) of the Act provides as follows: 

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

authorized representative of the Secretary finds that 

there has been a violation of any mandatory health or 

safety standard, and if he also finds that, while the 

conditions created by such violation do not cause imminent 

danger, such violation is of such nature as could 

significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health 

hazard, and if he finds such violation to be caused by an 

unwarrantable failure of such operator to comply with such 

mandatory health or safety standards, he shall include 

such finding in any citation given to the operator under 

this Act. If, during the same inspection or any 

subsequent inspection of such mine within 90 days after 

the issuance of such citation, an authorized 

representative of the Secretary finds another violation of 

any mandatory health or safety standard and finds such 

violation to be also caused by an unw~rantable failure of 

such operator to so comply, he shall forthwith issue an 

order requiring the operator to 'cause all persons in the 

area affected by such violation, except those persons in 

the area affected by such violation, except those persons 

referred to in subsection {c) to be withdrawn from, and to 

be prohibited from entering, such area until an authorized 

representative of the Secretary determines that such 

violation has been abated. 

179 
There is a violation of the roof control plan dated 

November 27, 1985, in that timbering on the No. 5 unit in 

the intake is 1,330 feet outby the unit belt tail and in 

the return it is 91U feet outby the belt tail. The plan 

requires timbering to be within 250 feet to the 

corresponding location of the tail piece (page 14). 

Respondent does not dispute that t~e intake and return were not 

timbered as alleged in the citation but initially maintained that 

the roof control plan in effect at the time the citation was issued 

did not require timbering of the intake and return entries. 

Additional evidentiary development was permitted post-hearing by way 

of depositions and, at continued proceedings on January 20, 1988, 

the Respondent withdrew its defense and admitted the violation as 

alleged. 

It is undisputed that the violative conditions had existed for 

more than two weeks and that the cited entries were subject to 

mandatory weekly inpections by the mine operator. The operator has 

withdrawn its defense and now presents no excuse or justification 

for its failure to have provided required timbering in more than 

3,000 feet of the mine in direct contravention of the specific 

provisions of its own roof control plan. Under the circumstances I 

find the violation was the result of an inexcusable omission or 

failure to act of an aggravated nature and that it was therefore due 

to the "unwarrantable failure" of the operator to comply. See Emery 

Mining Corporation v. Secretary 9 FMSHRC , Docket No. WEST 

86-35-R (December 11, 1987}. 

It is undisputed that a roof fall in the cited area could 

interrupt the ventilation at the working faces and cause a methane 

buildup. With the relatively high methane emissions at this mine 

(more than 1 million cubic feet every 24 hours) it would be 

reasonably likely to expect reasonably serious injuries to the 

underground miners. Furthermore the intake was also one of the mine 

escapeways and a roof fall resulting from the untimbered roof could 

re~sonably be expected to prevent this intended use with fatal 

consequences. The violation was accordingly serious and 

"significant and substantial". Mathies Coal Co., Supra. 

Section 104(d)(l) Order No. 2216772, as amended, alleges a 

"significant and substantial" violation of the standard at 30 C.F.R. 

§ 75.316 and charges as follows: 

The intake air course for the No. 3 unit was not separated 

from the return air course of the No. 7 unit with 

180 
permanent stoppings ·cthe brattice had been knocked out at 

this location) at Spad No. 6159 in the main north-west 

entry. 

In the amended order the Secretary alleges that these facts 

constitute a violation of the operator's ventilation plan under 30 

C.F.R. § 75.316. In particular the Secretary maintains that the 

operator violated paragraph A, page two~ of the ventilation plan 

which reads as follows: 

Permanent stopping- (concrete blocks, dry stacked and 

sealed on pressure side or sealed and held in place with 

mortar and/or block bond or equivalent shall be erected 

between the intake and return air courses in entries and 

shall be maintained to and including the third connecting 

cross cut outby the faces of the entries on the return 

side and shall be maintained to the unit tailpiece on the 

intake side. Mandoors shall be 'constructed of metal. 

Metal brattices may be used in face area). 

MSHA Inspector James Franks testified that during a spot 

inspection on August 20, 1986, several miners complained that the 

operator was knocking out brattices and thereby affecting the intake 

air. Investigating the complaint, Franks walked the intake air 

course to the No. 3 unit and, near Spad 6159, observed that brattice 

had indeed been knocked out. According to Franks, the cited 

condition could short circuit the intake air for the No. 3 unit and 

the return air from the No. 7 unit could contaminate the No. 3 unit. 

Fire and smoke on the No. 7 unit would proceed to the No. 3 unit if 

there were lower air pressure in the No. 3 unit. 

In addition, Franks observed that the relatively high methane 

concentration that existed in the No. 3 unit might not be properly 

diluted and removed because of the cited condition. He observed 

that the No. 3 unit had a more serious history of methane. Franks 

further observed that, depending on the resistance of the air, there 

was a reasonable likelihood of an accident leading to ~erious 

injuries e.g. suffocation from smoke or a methane explosion or 

ignition. There was a history of ignitions and· one mine fire at the 

No. 9 mine. Five or six men were performing repair/maintenance wor~ 

on the No. 3 unit when the order was issued. 

Franks also thought that the violation was result of high 

operator negligence. The brattice had admittedly been knocked out 

intentionally for the purpose of creating a supply road after the 

regular supply road had become impassible because of water and mud. 

Grover Fischbeck, the Green River Safety Supervisor, 

acknowledged that the permanent stopping blocks had been knocked out 

at Spad 6159 and only a curtain remained. According to Fischbeck 

181 
the supply road was impassible and it was therefore necessary to 

carry supplies through the No. 3 intake. 

Within this framework of evidence it is clear that this 

violation is also proven as charged and that it was "significant and 

substantial" and serious. Mathies Coal Co., supra~ Secretary v. 

Monterey Coal Company, 7 FMSHRC 996 (1985). Even assuming, 

arguendo, that management had initially_ intended for the stoppings 

to have been knocked-out only between shifts, it is apparent from 

the evidence that the condition renained while miners were working 

on the unit, contrary to that alleged intent. In addition, because 

the violative condition was intentionally created by management and 

not corrected before miners were exposed to the dangers, the 

violation was the result of inexcusable aggravated conduct 

constituting more than ordinary negligence and was therefore due to 

"unwarrantable failure". Emery Mining Corporation, Supra. 

Order No. 2216773, as amended, also issued pursuant to section 

104Cd>Cl> of the Act, also alleges a violation of the ventilation 

plan (Exhibit 7 page 2 paragraph A) under 30 C.F.R. § 75.316 and 

charges that "[t]he intake air course was not separated from the 

return air course with permanent stoppings. Brattice had been 

knocked-out) on the No. 7 unit 007 main north entries at Spad No. 

6509." 

It is again undisputed that the permanent stopping had been 

knocked out at Spad 6509 as alleged. According to Inspector Franks 

there was no measurable movement of air at the last open crosscut in 

the No. 7 unit. There was also one percent methane at the face area 

and the unit was continuing to produce coal in the presence of 

Robert Carter, the face boss. Franks observed that with the 

ventilation short-circuited, methane concentrations could reasonably 

be expected to build-up with the associated risk of fire or 

explosion. According to Franks there was a greater likelihood for 

the short circuit to occur on the No. 7 unit than on the No. 3 unit 

although it was quite possible for the No. 3 unit to be contaminated 

because o~ air being short-circuited into the No. 3 unit. In regard 

to gravity and negligence both Franks and Fischbeck relied upon 

their testimony on these issues provided with respect to Order No. 

2216772. Under the circumstances I similarly find that the 

violation herein was "significant and substantial", serious and due 

to the "unwarrantable failure" and high negligence of the operator. 

In determining the appropriate civil penalties to be assessed I 

have also considered that.the violative conditions in these cases 

were abated in accordance with the Secretary's directions, that the 

operator has a significant history of violations and that it is of 

moderate size. 

182 
ORDER 

Green.River Coal Company, Inc., is directed to pay the 

following civil penalties within 30 days of the date of this 

decision: Docket No. KENT 86-143: Citation No. 2216493 - $750; 

Docket No. KENT 87-34: Citation No. 2216776 - $400; Order No. 

2216772 - $500; and Order No. 2216773 - $400. he Contest 

Proceedings Docket Nos. KENT 86-150-R and KENT 8 -151-R are d nied 

and dismissed. 

Distribution: 

Mary Sue Ray, Esq., Office of the Solicit , U. s. epartment of 

Labor, 280 u. S. Courthouse, 801 Broadway, Nashville, TN 37203 

{Certified Mail) 

Flem Gordon, Esq., Gordon & Gordon, P.S.C. 1500 Frederica Street, 

P. 0. Box 390, Owensboro, KY 42302 {Certified Mail) 

npt 

183 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE. 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

FARCO MINING COMPANY, 

Respondent 

FEB 10 1988 

. . CIVIL PENALTY PROCEEDING 

Docket-No. CENT 87-54 

: A.C. No. 41-02803-03527 

Palafox Mine 

DECISION 

Appearances: V. Denise Howard, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, for 

Petitioner; 

Arturo Volpe, Esq., Wilson, Volpe, Freed & Hansen, 

Laredo, Texas, for Respondent. 

Before: Judge Melick 

This case is before me upon the 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," chargiz:ig Farco Mining Company CFarco) with three 

violations of regulatory standards.~/ 

The general issues before me are whether Farco violated the 

cited regulatory standards and, if so, whether those violations 

were of such a nature as could significantly and substantially 

contribute to th~ cause and effect of a mine safety or health 

hazard, i.e. whether the violations were "significant and 

substantial". If violations are found, it will also be necessary 

to determine the appropriate civil penalty to be assessed in 

accordance with section llOCi> of the Act. 

1/ At hearing the Secretary moved to withdraw and vacate 

Citation No. 2839107 for the reason that he was satisfied upon 

further investigation that the deceased miner had in fact 

received the training required under 30 C.F.R. § 48.27(a) and 

accordingly he now believed there was no violation of the 

standard. The motion was granted at hearing and the citation 

accordingly vacated. 

184 
The facts surrounding the death of Pedro Leija at Farco's 

Palafox Mine on October 4, 1986, are set forth in the 

investigative report authored by Theodore Caughman a senior 

special investigator for the Federal Mine Safety and Health 

Administration CMSHA). The report was admitted into evidence 

without objection (Exhibit R-2> and states in relevant part as 

follows: 

On Saturday, October 4, 1986, a crew of men consisting 

of two utilitymen, one laborer, one welder, and a 

preparation plant operator, arrived at the mine to 

perform maintenance work on components related to the 

preparation plant facility. The crew was under the 

supervision of Perfecto Cervera foreman. After the 

foreman assigned duties, he went to the substation and 

locked out the power providing power to the raw coal 

storage bin crusher facility. Maintenance work to be 

performed this day consisted of changing the main 

hydraulic pump on the Stamler Belt Feeder Conveyor, 

replacing and/or repairing flights in the conveyor of 

the Stamler and replacing or installing picks (bits) on 

the crusher roller. Also, a number of conveyor belt 

idler rollers were to be replaced in the raw coal 

overland feeder belt that removed the coal after it had 

been run through the crusher. These activities 

continued until about 3:00 p.m., when Cervera checked 

on the progress of the work being performed. Arturo 

Valdez, utility, and Pedro Leija, laborer and victim, 

had just completed installing all the available picks 

(bits) at the site on the breaker roller, the hydraulic 

pump had been repaired, and the belt idler rollers had 

been replaced. Arturo Valdez, welder, and Danny Munoz, 

preparation plant operator, were in the process of 

installing a missing flight in the chain conveyor which 

transports the coal from the raw coal storage bin to 

the crusher roller. Perfecto told Valdez he could go 

home, and Valdez left. Perfecto instructed Leija to 

gather up ~he tools they had been using, clean them and 

put them in the tool box. He then told Munoz and 

Lozano that he was going to restore the power to the 

Stamler so the conveyor could be operated to see if 

additional flights needed to be replaced or if any 

others were missing. He then went to the substation 

and restored power to the Stamler. On his way back, he 

stopped at the warehouse and picked up two buckets of 

picks (bits) for the crusher roller since all the spare 

ones at the crusher had been installed. He returned 

to the raw coal storage bin crusher facility, set the 

two buckets of bits in the area where they were 

normally stored, and told Lozano and Munoz that the 

185 
power had been restored. He also told them that he and 

Jose Luis Aguilar, utilityman who had been cleaning 

surface areas, were going to the clear water pond to 

prime the clear water pump so water would be available 

when the preparation plant was put in operation. At 

this time Leija, victim, was about 125 feet away, near 

the tool box, cleaning the tools he had gathered. 

Lozano and Munoz were working on the flights, and 

Cervera and Aguilar traveled to the clear water pond. 

After arriving at the pond, Cervera sent Aguilar to 

obtain a bucket to fill with water so the pump could be 

primed. Aguilar traveled by foot to the tool box area, 

where Leija had been working, got a bucket and walked 

back toward the clear water pump. When he was at the 

tool box area he did not observe Leija, although he did 

see the tools he had been cleaning still in the bucket 

of cleaning solvent. Meanwhile, Munoz and Lozano had 

finished installing the flight they had been working on 

and Lozano started walking around the coal storage bin 

to engage the hydraulic controls so the conveyor chain 

could be rotated and Munoz energized the Stamler 

crusher electrical system. As the machinery started, 

Lozano looked up toward the crusher assembly and saw 

Leija being pulled into the crusher. Lozano yelled at 

Munoz to shut off the machinery. Munoz ran around the 

end of the crusher to where Lozano was, found out Leija 

was in the crusher, and using the emergency stop switch 

on the raw coal belt conveyor that transports the coal 

from the crusher, stopped the machine. Help was 

summoned and Leija was pronounced dead at the scene by 

the Webb County Coroner. The body was removed from the 

crusher assembly by the Laredo Fire Department 

Paramedics and transported to Jackson Funeral Home in 

Laredo, Texas. 

As a result of its investigation, MSHA issued several 

citations under section 104(a) of the Act, two of which remain at 

issue. Citation No. 2830087 alleges a "significant and 

substantial" violation of the standard at 30 C.F.R. § 77.1607(bb) 

and charges as follows: 

The entire length of the chain conveyor of the Stamler 

coal cracker was not visible from the starting switch 

that was used and a positive audible or visible warning 

system was not installed and operated to warn persons 

that the conveyor was to be started. This violation 

observed during the investigation of a fatal accident 

which occurred on October 4, 1986. 

186 
The cited standard provides in relevant part that "[w]hen 

the entire length of the conveyor is not visible from the 

starting switch, a positive audible or visible warning system 

shall be installed and operated to warn persons that the conveyor 

will be started". 

Farce maintains that the cited standard is not applicable to 

the facts herein because the "Stamler Belt Feeder - Conveyor" was 

not a "conveyor" nor was it "loading and haulage equipment" 

to which, it argues, the cited standard is limited, citing the 

caption to the subheading to section 77.1607, i.e. "Loading and 

Haulage Equipment: Operation". The term "conveyor" is defined 

in A Dictionary 0£ Mining, Minerals, and Related Terms, u. s. 

Department of Interior (1968) as "[a] mechanical contrivance 

generally electrically driven, which extends from a receiving 

point to a discharge point and conveys, transports, or transfers 

materials between those points." The term "conveyor-type feeder" 

is defined therein as "[a]ny conveyor, such as apron, belt, 

chain, flight, pan, oscillating, screw, or vibrating, adapted for 

feeder service." 

The machine here at issue is labeled "Stamler Belt FeederConveyor" and incorporates, by the Respondent's own evidence, a 

3-speed conveyor (Exhibit R-4). It is also undisputed that the 

machine functions as a conveyor in that it has flights which drag 

coal from a bin through the crusher. Since the equipment is 

labeled by its manufacturer to be a conveyor and performs the 

functions of a conveyor one may reasonably infer that it is a 

conveyor. 

Further, even assuming, arguendo, that the cited equipment 

must come within the scope of the subtitle "Loading and Haulage 

Equipment" it is clear that it performs such functions. The term 

"haulage" is defined as the "drawing or conveying, in cars or 

otherwise, or movement of men, supplies, ore and waste, both 

underground and on the surface." A Dictionary of Mining Mineral 

and Related Terms, supra. It is not disputed that there is a bin 

or hopper mounted on the machinery into which coal is loaded. 

The coal is then drawn or conveyed to the crusher by the conveyor. 

The coal is crushed and then further conveyed to a storage area. 

Within this framework of evidence it may reasonably be inferred 

that the cited equipment performs a haulage function within the 

meaning of the subtitle "Loading and Haulage Equipment: · 

Operation". Farce's argument that the cited equipment was-.not 

therefore haulage equipment is accorQingly rejected. 

Farco further argues that the cited equipment was purchased 

in full compliance with "Federal and State legislation" and 

therefore presumably it should not be responsible for any 

violation of Federal law. Even if this were true however the 

187 
evidence shows that followihg its purchase it was modifiedlby 

the installation of a large bin over the hopper area, thereby 

obstructing the view from the start-stop switch to the area of 

the breaker roller. The contention accordingly has no merit. 

With regard to the specific violation charged herein, it is 

undisputed that the cited crusher-conveyor was not equipped with 

an audible or visible warning system. The evidence also shows 

that the coal crusher-conveyor at issue was activated by a 

start-stop switch from which the crusher roller upon which the 

deceased in this case was working could not be seen (Exhibit R-2, 

p.3, Tr. 40 and 69). Accordingly the violation is proven as 

charged. 

The failure to have complied with this regulatory standard 

was clearly a causative factor in the death of Mr. Leija. It may 

reasonably be inferred therefore that the violation was serious 

and "significant and substantial". Secretary v. Mathies Coal Co. 

6 FMSHRC 1 (1974). The violation was also the result of operator 

negligence. By having a large bin erected (thereby obstructing 

sight between the on-off switch and crusher) on equipment known 

by 'Farce to meet Federal safety standards, Farce should have been 

on notice of potential safety violations and of this violation in 

particular. 

Citation No. 2839108 alleges a "significant and substantial" 

violation of the standard at 30 C.F.R. § 77.404(c) and charges 

that "the Stamler Coal crusher was not blocked against movement 

while repairs were performed, which resulted in fatal injuries to 

employee Pedro Leija on October 4, 1986." 

The cited standard provides that "[r]epairs or maintenance 

shall not be performed on machinery until the power is off and 

the machinery is blocked against motion, except where machinery 

motion is necessary to make adjustments." It is not disputed 

that the cited machinery was not blocked against motion. 

Farco maintains however that the deceased was perfo.rming an 

unauthorized task at the time of his death and should ncit have 

been working on the Stamler crusher when power was engaged. It 

concedes that motion of the Stamler is not necessary during 

replacement of the picks but maintains that that task had already 

been completed and the deceased was directed to work elsewhere 

before the next maintenance procedure, repair of the flights, was 

begun. The Secretary does not dispute that motion is necessary 

during repair of the flights and that the exception provided in 

the cited standard would apply to that specific procedure. 

It is undisputed that the deceased and utilityman Arturo 

Valdez began replacing bits on the crusher roller at around 2:30 

on the afternoon of October 4th. At around 3:00 that afternoon 

188 
they had completed installing the bits that were available at the 

crusher. Foreman Perfecto Cervera then told Valdez that he was 

free to leave and told the deceased to gather up his tools, 

clean them and put them away. Cervera then restored power to the 

Stamler, apparently to permit the next repair process to begin, 

and obtained two buckets of bits from the warehouse. Cervera 

left these buckets at the Stamler work platform where they were 

ordinarily kept. 

Following the accident it appeared that two bits were 

missing from the buckets, one having been installed on the 

crusher roller and another having been found on the floor below 

along with the tools necessary to change the bits. It may 

reasonably be inferred from this evidence that the deceased had 

returned to the Stamler unit without specific direction from his 

foreman to replace additional bits. Thus it is apparent that 

maintenance work was being performed by the deceased while power 

was engaged and the machinery was not blocked against motion--and 

motion was not necessary to the specific task he was performing 

i.e. the replacement of bits. While the credible evidence shows 

that Foreman Cervera had directed the deceased to perform other 

tasks and the work of changing bits may have been contrary to the 

deceased's instructions from his foreman, the law is 

well-established that an operator is liable for violations of the 

Act committed by its employees even if it is totally without 

fault. Thus on the issue of whether a violation existed, it is 

immaterial whether or not Parco officials knew that the deceased 

was replacing bits at a time when the power to the Stamler unit 

waa not cut-off and when the machinery was not blocked against 

mocion. Sewell Coal Company v. FMSHRC, 686 F.2d 1066 (4th Ci~. 

1982); Alabama By-Products Co. v. FMSHRC 666 F.2d 890 (5th Cir. 

1982); Secretary v. Asarco Inc., 8 FMSHRC 1632 (1986); El Paso 

Rock Quarries, Inc. 3 FMSHRC 35 (1981). Thus the violation is 

proven as charged. In light of the fatality it may reasonably be 

inferred that the violation was also serious and "significant and 

substantial". Mathies Coal Co., supra. 

However since the credible evidence demonstrates that 

foreman Cervera directed the deceased to perform work other than 

changing bits on the crusher roller after 3:00 p.m. and that he 

was unaware that the deceased had returned to work on this unit, 

Parco is chargeable with but little negligence in regard to this 

violation. In determining the appropriate civil penalties in 

this case I have also considered that the mine operator is 

relatively small in size and that it has a moderate history of 

violations. It appears that the instant violations were abated 

in full compliance with the Secretary's directions. Under the 

circumstances I find that the following civil penalties are 

appropriate: Citation No. 2830087, $1,000; Citation No. 2839108, 

$50. 

189 
ORDER 

The Farce Mining Company is hereby directe 

penalties of $1,050 within 30 days of the 

Citation No. 2839107 is hereby vacat 

Distribution: 

Gary 

Admi 

(703 

to pay civil 

this decision. 

Judge 

V. Denise Howard, Esq., Office of the licitor, U.S. Department 

of Labor, 525 South Griffin Street, Su J e 501, Dallas, TX 75202 

{Certified Mail) 

Arturo Volpe, Esq., Wilson, Volpe, Freed & Hansen, Farco Mining 

Company,_ 600 San Bernardo Ave., LNB Plaza Tower, 8th Floor, P.O. 

Box 1260, Laredo, TX 78042-1260 

npt 

190 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 FEB 12 1988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MID-CONTINENT RESOURCES, INC.,: 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 85-15 

A.C. No. 05-00300-03525 

L.S. Wood No. 3 Mine 

DECISION 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Edward Mulhall, Jr., Esq., Delaney & Balcomb, 

Glenwood Springs, Colorado, 

for Respondent. 

Before: Judge Lasher 

This matter was initiated by the filing of a proposal for 

penalty by the Secretary of Labor under the authority of Section 

llO(a) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. Section 801 et seq. Cl982)Cherein the Act). Subsequent to 

the hearing the presiding Administrative Law Judge, John A. 

Carlson, passed away and this matter is before me for decision. 

Procedural Background 

Petitioner originally sought assessment of a penalty 

($800.00) for an alleged violation of 30 C.F.R. § 75.200 which is 

described in the subject Section 104Cd)(l) Citation No. 2213098, 

issued June 29, 1984, as follows: 

"Mining of coal in the reactivation of 2nd South and a 

portion of the bleeder has been in progress on a continual 

basis, for at least 45 days. The mining in this area of 

bleeder the mine was not performed under an approved roof 

control plan. A reply to a letter; dated March 29, 1984 

to the operator, to clarify 2 items of the proposed roof 

control plan was not in receipt." 

The alleged violation was designated "Significant and 

Substantial" on the face of the Citation. 

The pertinent regulation (75.200) provides: 

191 
"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 on or before 

May 29, 1970. The plan shall show the type of support and 

spacing approved by the Secretary. Such plan shall be reviewed periodically, at least every 6 months by the Secretary, taking into consideration any falls of roof or ribs 

or inadequacy of support of roof or ribs. No person shall 

proceed beyond the last permanent support unless adequate 

temporary support is provided or unless such temporary 

support is not required under the approved roof control 

plan and the absence of such support will not pose a hazard 

to the miners. A copy of the plan shall be furnished to 

the Secretary or his authorized representative and shall 

be available to the miners and their representatives." 

(emphasis added) 

I infer from the underscored portions that the "review" 

contemplated is not casual since "falls" and "inadequacy of 

support of roof or ribs" are required to be considered. Such 

would seem to mandate an inspection of the mine as a prerequisite 

to the review. 

Citation No. 2213098 in its original form was issued by MSHA 

Coal Mine Inspector Larry W. Ramey during an inspection of 

Respondent's L.S. No. 3 Wood mine at 8:15 a.m. on June 29, 1984. 

Respondent at that time was engaged in mining coal CT. 43). The 

time established for abatement was 7:00 a.m. on July 2, 1984. 

MSHA Insp~ctor Louis Villegos, at 11:10 a.m. on June 29, 

1984, extended compliance time to 12 noon on July 3, 1984, with 

this "Justification for Action": 

"Contact with the Roof Control Office in Denver, Colorado 

has been made by the operator via telephone. This extension will allow for delivery and approval of the proposed roof control plan." (emphasis added). 

On July 10, 1984, at 1:35 p.m., Inspector Ramey again extended compliance time-- to 10:00 a.m. on July 12, 1984 - with 

the justification: 

"(75.200) The operator has submitted a roof control plan 

to Denver, Colorado for approval. Therefore this extension 

192 
is granted the operator until Denver approves the roof 

control plan and the plan is delivered." 

At 3:00 p.m. on July 10, 1984, Inspector Ramey issued a 

modification of Citation No. 2213098, which appears as Attachment 

"A" to this decision. Thus, the final theory of violation 

enunciated in the Citation {as finally modified) alleges a 

violation of the plan approved March 25, 1982, rather than mining 

without an approved roof control plan. 

In apparent contradiction of the modified theory of 

violation, on July 12, 1984, Inspector Ramey once more extended 

abatement time- to July 19, 1984-- stating: 

"The operator has submitted a roof control plan to the 

District Office in Denver, Colorado for approval. Upon 

contact with Denver by telephone it was learned that the 

plan was still under review. Therefore this extension 

is granted the operator until Denver approves the roof 

control plan, and the plan is delivered." (emphasis added) 

On July 19 Inspector Ramey issued a final extension to July 

26, 1984 with this justification: 

"The operator has submitted a roof control plan to the 

District Office in Denver, Colorado for approval. The 

District Off ice is still in the process of reviewing-the 

submitted plan. Therefore more time is granted to the 

operator until Denver approves the roof control plan and 

the plan is delivered." {emphasis supplied) 

On July 31, 1984, the Citation was "Terminated" by Inspector 

Villegos with the notation that "The Roof Control Plan submitted 

by the operator appears adequate and has been approved." 

General Findings 

(1) The Respondent is an underground coal mine operator 

with a history of 56 violations during the 2-year period 

preceding the issuance of the subject citation on June 29, 1984. 

The alleged violation was "abated within a reasonable time" 

according to Petitioner's Narrative Findings for a Special 

Assessment" and I infer therefrom that Respondent demonstrated 

good faith in attempting to achieve rapid compliance after 

notification of the alleged violation. 

(2) Production at the mine was shut down in December, 1982 

CT. 109); the mine was down all of calendar year 1983 into early 

1984 {T. 145). Mining or preparation for mining began in April, 

1984 and was in progress at least by April 30, 1984 (Ex. R-33). 

(3) In March, 1984, Respondent, at MSHA's suggestion, 

requested that the previously approved roof control plan be 

193 
"reinstituted". CT. 153-154, Ex. P-2) to allow secondary or 

pillar mining in the 2-South section and bleeder entries CT. 

146-148; Ex. R-6). This area was considered "dangerous" to mine 

in by MSHA officials CT. 88). 

(4) The last time a roof control plan for the mine had been 

reviewed and (even though the mine had been shut down for some 

five months) reapproved by MSHA was on May 4, 1983 (Ex. R-4). 

(5) The pertinent May 4, 1983 roof control plan specifically addressed pillar extraction in Par. 2.12 and the 

accompanying diagrams. Par. 2.12 thereof provides: 

"Special roof-control precautions are mandatory during 

pillar-extraction operations and when bottom coal is taken 

as part of the pillar-extraction operation. These requirements are best shown graphically and are included in this 

roof-control plan as Figure 2.1" ~/ 

6. (a) During the hearing, Respondent's Vice President of 

Mine Operations, M.J. Turnipseed gave this explanation of 

paragraph 2.12: 

"Q. Well paragraph 2.12 ..• 

A. Yes, this refers to when bottom coal was taken as part 

of the pillar extraction. 

Q. All right. And that is limited context in itself? 

There have to be the 2 conditions present? 

A. They have to have the bottom coal to extract and you 

have to be in pillars. 

1/ Paragraph 2.12 of the 1982 plan is identical in all material 

iespects other than referring to "figure 2.1 through 2.2" in the 

last sentence, to wit: 

"Special roof-control precautions are mandatory during 

pillar-extraction operations and when bottom coal is 

taken as part of the pillar-extraction operation. These 

requirements are best shown graphically and are included 

in this roof-control plan as Figure 2.1 through Figure 

2. 2." 

Comparison of the 2 plans also reveals that there are no 

other material differences in them (See T. 100, 152). 
Q. All right. Is there anything in the narrative about 

pillaring per se? 

A. Not the exact sequence. 

Q. There is some general precautions? 

A. There's general precautions." (T. 224) 

6. (b) Inspector Villegas testified however, that it was not 

his impression that the pillaring sequence contained in the 1982 

plan (Ex. R-3) was to apply only to bottom coal and it was his 

opinion that it applied to both bottom and top coal (T. 228, 

229-233). 

6. (c) So also, Inspector Ramey convincingly testified in 

support of the opinion of Inspector Villegas: 

"Q. First of all, let me ask you this. Based on your experience in coal mining and your experience as a coal mine 

inspector, do you have an opinion as to whether or not 

that paragraph applies only to bottom coal extraction? 

A. I believe it's self explanatory. To say that these requirements are based on -- and are included in this roof 

control plan is figure 2.1 through figure 2.2. It details 

in illustrations on how you will pull bottom coal back 

after the top coal is pulled. As an experience, I used 

to be a section foreman on a pillar section and I'm fully 

aware of how you pull pillars. 

Q. And that would include pillars that are in the coal seam 

that requires pulling top coal and bottom coal? 

A. Yes, sir. 

Q. In your history with the agency, have you ever seen the 

roof control plans for pulling pillars interpreted in any 

other way than the way you've just describ~d? 

A. No, I have not." 

(T. 234-235) 

6 (d) The two inspectors who conducted the inspection, Ramey 

and Villegos, used the 1982 plan in doing so and both found that 

the 1982 plan (Ex. P-1) was violated; their testimony was 

actually couched in the specific context of the plan approved in 

1982 rathe·r than the 1983 plan (Ex. R-4); why the 1983 plan was 

not used in the inspection was not shown. Thus, Villegos 

testified: 

195 
A. The date that appears is May 4, 1983. 

Q. Okay. And, that was the plan that was, at least, approved subsequent or, apparently, approved subsequent 

to the '82 plan. Is that right? 

A. Yes. 

Q. Okay. And, why would you guys be using the '82 plan? 

A. I have no idea. (T. 76) 

6. (e} Inspector Villegas first testified that the 

significance of Paragraph 2.12 of the plan is that "additional" 

precautions are taken during the time bottom coal is removed and 

that removal of bottom coal presents special problems and hazards 

CT. 77-78). 

6. (f} The interpretation given Paragraph 2.12 (which is 

found identical in both the 1982 and 1983 plans in all respects 

material herein) by Inspectors Ramey and Villegas was endorsed by 

2 MSHA supervisors, Steve Miller and Lee Smith. After Mr. 

Miller's attention was directed to Paragraph 2.12, this dialogue, 

which I find persuasive occurred: 

"Q. Will you read that to yourself and having done that, 

can you tell me if it was first of all in your opinion 

whether or not that paragraph applied only to bottom coal 

removal or applied [sic] to pillar removal when in fact it 

was not to be done in 2 layers, but only the top coal taken? 

A. It's very definitely, Mr. Barkley, applies 99% to just 

regular pillar mining. We--the bottom coal aspect of it 

was not a--was not our primary concern here. Was not our 

concern. Let me just throw a little light in on this. 

Maybe it will help a little bit." (T. 251) 

6 (g) Accordingly, the minority opinion of Mr. Turnipseed 

that under 1982 plan the broad pillar mining sequence pertained 

only to bottom coal CT. 224, 225) is rejected in view of the four 

convincing opinions weighted against it. The record also reveals 

that the majority interpretation was the one consistently applied 

in enforcement over the years (T. 229-231, 235, 237, 238-239, 

242-243, 246-247, 252-253, 255-257). 

7. As pointed out in Petitioner's brief, there is no dispute 

as to what cuts were taken in the pillars observed by the 

inspectors. Two pillars had been cut in half in order to provide 

access to pillars further inby (T. 45-51, 70-72). One of the two 

pillars was next to a caved-in area CT. 51) and accordingly was 

required lo bear an excessive amount of weight (T. 52). Based on 

the persuasive testimony of the inspectors that the cuts made by 

196 
Mid-Continent were not in conformance with the pillar extraction 

sequence of the roof control plan (T. 52-54, 72-74, 215-216). I 

find that the 1982 roof control plan (last approved on May 4, 

1983) was in fact contravened as alleged in the modification to 

the citation. To constitute a violation, however, this roof 

control plan would have had to have been in effect when the 

citation was issued. 

Issues 

The issue set forth in Petitioner's brief, which I do not 

find dispositive, is whether on June 29, 1984, and prior thereto, 

Respondent violated the "pillar removal sequence" of "the 

approved roof control plan" (RCP) by cutting roadways through two 

pillars, and if so, whether such violation constituted an 

"unwarrantable failure" of Respondent to comply with the subject 

safety standard within the meaning of such term in Section 

104(d)(l) of the Act. 

A preliminary but crux issue, however, is whether there 

indeed was an "approved roof control plan' in effect·on June 29, 

1984, which was subject to being violated by Respondent's mining 

method on that date. 

Findings with Respect to Existence 

of Roof Control Plan 

The roof control plan last in effect before the mine closed 

in December, 1982, was that approved on March 25, 1982, and which 

is referred to herein as the 1982 plan (Ex. P-1). As noted 

elsewhere, the mine was closed throughout 1983. Nevertheless, on 

May 4, 1983, MSHA, apparently routinely (T. 108, 110) reapproved 

this plan for a six-month period by letter from John W. Barton, 

District Manager to Respondent's Chief Engineer, Bradley J. 

Bourquin. This letter, which appears as a cover letter attached 

to what is referred to herein as the 1983 plan-- Ex. R-4--states: 

"The roof control plans for 

reviewed by MSHA personnel. 

quate, they shall remain in 

period." (emphasis added) 

the subject mines have been 

Since the plans appear adeef f ect for another six month 

(See Attachment "B") 

This approval thus expired by its own terms on November 4, 

1983, a time prior to the mines reactivation and of course, prior 

to the issuance of the subject Citation. There is no evidence of 

a later approval of reapproval on or about November 4, 1983, or 

between November 4, 1983, and the time the Citation issued. The 

record is clear that there was no approved roof control plan in 

effect on June 29, 1984, when the Citation Wa$ issued (T. 85-86, 

8 8) • 

197 
By letter dated March 22, 1984, to MSHA District Manager 

John Barton, Mr. Turnipseed, requested to "reinstitute" the "last 

approved" ~/ RCP, to wit: 

"The L.S. Wood No. 3 Mine is being temporarily reactivated 

to mine coal from the 2 South section and a portion of the 

bleeder entries between No. 1 and No. 3 mine. The previous 

development was done in 1968 and the area was roof-bolted 

on 6 - foot centers. The area has stood well and the roof 

is in good condition. Mr. Mike Stanton, Roof-Control 

Specialist, MSHA, has examined the area and has knowledge 

of the conditions. 

Permission is requested to reinstitute the last approved 

roof-control plan in all new mining and accept the previously bolted areas as they were installed. The previously bolted areas are shown on the attached map." 

(Ex. R-6) <emphasis added) 

This letter constitutes a recognition that the "last' 

approved plan was no longer in effect. It attaches a map showing 

the area where the "new" mining was to be conducted, i.e., an 

area previously developed in 1968. 

Also, as will be seen subsequently, in MSHA's ultimate 

written approval of this plan by letter dated July 27, 1984, a 

significant-and-relevant-limitation on the method of pillar 

extraction was contained. 

In his reply letter of March 29, 1984, Mr. Barton raised two 

questions relating generally to "outbursts" ~/ and pillar points: 

"The proposed plan of reactivation of 2 South and a portion 

of the bleeder entries in the subject mine has been reviewed by MSHA personnel. Before the plan can be considered 

for possible approval, the following items need to be 

clarified by you or your staff: 

... 1. What method or methods will be taken to minimize the 

possibility of outbursts during the second mining in the 

bleeder entries? Please refer to 30 CFR, 75.201-2(a). 

'1:1 As shown herein, the "last approved" plan was that approved 

on May 4, 1983 (Ex. R-4), which was essentially identical to the 

1982 RCP approved on March 25, 1982 (Ex. P-1). 

11 Sections 8.1 through 8.4.7 of both the 1982 RCP (Exhs R-3 and 

P-1) and the 1983 RCP (Ex. R-4) provide for outburst control. 

Comparison of these provisions in the two plans reveals that they 

are identical. 

198 
2. What method or methods will be taken to insure that 

pillar points will not be formed and to insure that pillars 

will not project inby the breakline? Please refer to 30 . 

CFR, 75.201-2Cg). This item needs to be considered very 

carefully since second mining has been done on both sides 

of the bleeder entries •••• " 

(emphasis supplied) CEx. R-7) 

Apparently, however, Section 8.2 of the 1982 RCP originally 

provided as follows: 

8.2 All mining areas which meet all of the following 

criteria will be subject to this Code of Practice for Outburst Control unless specifically exempted, in writing, 

by the President of Mid-Continent Resources, Inc. in 

conjunction with one other Company officer. 

Criteria for Outburst Control: 

1) Workings in Coal Basin Seam, B-bed coal. 

2) First mining of development headings utilizing continuous mining machine. 

3) Workings more than 2500 in vertical depth. 

According to Mr. Turnipseed, subparagraph 3 of Section 8.2 

wa.s scratched out -at some indeterminate time-- and both 

Respondent's Ex. 3 and Petitioner's Ex. 1 reveal this. CT. 160). 

According to Turnipseed, the significance of such is that under a 

"light cover" -- something less than 2000 feet of overburden--

outburst problems have not been experienced, that such problems 

occur only in the lower reaches in the mine, and that there was 

no need to take special precautions in the area referred to by 

District Manager Barton in his letter to Turnipseed dated March 

29, 1984 (Ex. R-7) since such area "was not in an outburstprone area" CT. 159, 160-161). 

On April 4, 1984, Turnipseed met with MSHA officials to 

"clarify" the points raised in the Barton letter (T. 155, 

156-158' 159). 

With respect to his impression of this meeting Turnipseed 

-:.estif ied: 

"Q. During the course of the conversation on April the 4th 

1984, with the MSHA people, did anyone indicate that you 

could not do what it was you were proposing to do in terms 

of pillar--portions of the bleeder return and the 2 south 

entry in the L.S. #3 Mine? 

A. No. In fact, there was I felt like a meeting of cooperation working out the fine details which I've just 

given you. The outstanding points that had to be met. 

199 
Q. Was there any indication to you--or did you just dream 

up the fact that your request to have a plan reinstituted 

would be approved? 

A. I didn't see any problem at all. It was done at MSHA's 

suggestion and with their cooperation. 

Q. They suggested that you request that it be reinstituted? 

A. Yes, in writing. 

Q. And they gave you no indication that it would not be 

approved? 

A. That's true. 

Q. -- was there anything else that transpired that indicated to you that the plan had been approved? 

A. I assumed that we just had an approved plan and all we 

had to do like in many other cases is wait for the letter 

to come through the mail. But in the meantime don't worry 

about it, it's okay. 

Q. Is that a frequent practice with MSHA, where there is 

an approval and there is some delay and wait for the letter 

to arrive saying, "yes, you're approved?" 

A. That happens quite frequently after a meeting of ironing 

out details, we get down to the final point, and we get an 

agreement. I carry away a set of notes much like this and 

they say, "you can expect your approval letter in the mail." 

Q. But no telling how long it might take to get the approval 

letter? 

A. Well, it's normally said that it's coming out promptly 

which can be anything up to a couple of weeks many times." 

(T. 163-164) 

I find, however, that there was no verbal agreement 

manifested by MSHA at the 4-4-84 meeting to reapproval or reinstitution of the 1982 plan although Mr. Turnipseed may have 

assumed that such was the case. Thus, his notes of the meeting 

did not reflect such CT. 188-190, 2~0-201), and there was no 

expression of such agreement by MSHA personnel (T. 197). Also, 

the parties discussed the matter further two days later on April 

6, 1984 (T. 198). 

When Respondent commenced production in April, 1984, it had 

not received any written (required) approval letter approving the 

new RCP (T. 198-199, 200-201). This has some mine safety 

significance since the plan for which Respondent sought approval 

200 
by its letter of March 22, ·1994, was significantly different from 

the 1982 plan CT. 114-115, 154). 

By letter dated July 26, 1984, addressed to Barton, Mr. 

Turnipseed enclosed the "revised" RCP: 

"Enclosed is the revised roof control plan as per the conversation between J.A. Reeves Sr. and Mr. Bill Holgate on 

July 26, 1984. The roof control plan specifically addresses 

MSHA's concerns pertaining to the right-left extraction 

procedures referenced in your July 20, 1984 letter. 

As you will find in the new roof control plan, the extraction methods recommended by Mr. Holgate are implemented 

in paragraph 2.13 and figure 2.2. I hope these proposed 

changes specifically address the concerns of MSHA. 

Mid-Continent Resources appreciates MSHA's interest and will 

continue to address any further issues which arise. Thank 

you." ~/ (emphasis added) 

The· first approval in writing~/ of the new (1983) RCP 

appearing in this record is that reflected in the letter of July 

27, 1984 from Barton to John Reeves, President of Respondent, 

which states: 

The roof control plan dated July 26, 1984, for the subject 

mine has been reviewed by MSHA personnel. This plan appears 

adequate for the roof conditions and system of mining being 

used, and is hereby approved. However, methods of pillar 

extraction depicted in Figure 2.2, pages 1 through 5, shall 

only be used when existing entries and crosscuts have 

heaved preventing pillar extraction as shown in Figure 2.1, 

pages 1 through 5. 

4/ This letter is contained in the exhibits folder aft~r Ex. R-7 

without a separate Exhibit number. The second and fourth 

sentences of this letter indicate inferentially that there was no 

prior approval of the 1983 RCP and I so find CT. 165-166, Exs. 

R-7, R-8). 

5/ Written approval is required. Thus, 30 CFR 75.200-4 

provides: 

"The appropriate District Manager shall notify the 

operator in writing of the approval of a proposed 

roof control plan. If revisions are required for 

approval, the changes required will be specified and 

the operator will be afforded an opportunity to discuss 

the revisions with the District Manager." 

(emphasis added) 

201 
All personnel required to install roof support, in accordance with the plan, shall be trained by a qualified 

supervisor designated by mine management before being made 

responsible for such work. This training shall ensure that 

such persons are familiar with the functions of the support 

being used, proper installation procedures, and the approved roof control plan. 

As required by 30 CFR, 75.200, the approved plan must be 

reviewed by MSHA every six months. Should future conditions 

warrant, this plan may have to be changed. 

(Ex. R-5) 

Discussion 

Contributing to the problem of sorting out this unusual 

record is that Respondent resumed production in the mine after it 

had been closed down for over a year and after the last approved 

plan had expired; that MSHA resumed enforcement activity by 

issuing Citations under the 1982 RCP during the same period that 

MSHA and Respondent were negotiating the "reinstitution" and 

reapproval of the 1982 RCP CT. 165); that the June 29, 1984, 

Citation as amended issued prior to the Barton letter of July 27, 

1984, approving the new RCP and the method of pillar extraction 

depicted in Figure 2.2 thereof only upon the condition that such 

could be used "when existing entries and crosscuts have heaved", 

preventing pillar extraction as shown in Figure 2.1 .•. "; that 

MSHA in its brief 6; has abandoned its theory of violation that 

Respondent was operating without an approved RCP; that the two 

issuing inspectors used the old 1982 RCP as their enforcement 

guideline; that MSHA was aware that the mine was operating while 

it was negotiating with Turnipseed the conditions and provisions 

of a new ~CP, i.e., the one ultimately approved on July 27, 1984 

(Ex. R-5). 

It should also be mentioned that Petitioner tried ---

without ~ecognizable objection from Respondent --- the matter on 

the basis of alternate or hypothetical CT. 19) claims of 

violation, that Respondent either mined without an approved roof 

control plan being in effect, or in the alternative, if a roof 

control plan was in effect the pillar removal sequence provided 

therein was not followed. Such alternate pleading, if not 

interposed for purposes of delay, harassment, etc., is properly 

recognized in Commission proceedings. See Commission Rule 1 (b) 

6/ Immediately following the close.of the evidentiary record, 

both parties on August 30, 1985, were given the opportunity to 

present oral closing argument, which Petitioner waived and of 

which Respondent availed itself. Respondent also was given the 

opportunity to file -- within 15 days of receipt thereof CT. 

269-270)-a reply brief to Petitioner's post-hearing brief. It 

did so. The parties subsequently presented further oral argumen 

(contained in a separate transcript). 

202 
and Rule 8 (e)(2) of the Federal Rules of Civil Procedure. At 

the commencement of hearing, the presiding judge considered 

Petitioner to have made a motion to amend and, upon reviewing 

both the original Citation and the July 10, 1984 modification 

thereof (Attachment "A" hereto) specifically charging an 

infraction of the Roof Control Plan dated March 25, 1982, ruled 

that the modification was not a "substitution" of the theory of 

violation contained in the original Citation but was a supplemental allegation. Petitioner was allowed to proceed in the 

alternative. 

Nevertheless, in both its final oral argument (Transcript bf 

April 14, 1987, at page 5) and post-hearing brief, Petitioner 

abandoned--without significant explanation--- its theory that 

Respondent had commenced mining without there being an approved 

roof control plan in effect. In its brief and in final oral 

argument (1'. 5-6) Petitioner also alleged that the roof control 

plan which was in fact contravened was the plan whose latest 

approval was on May 4, 1983 (Ex. R-4) rather than the plan 

approved on March 25, 1982 (Exs. P-1 and R-3) which was specifically referred to in the July 10, 1984 modification to the 

Citation. 7; I note again and parenthetically that while this 

plan (the l982 RCP) was the one used as the sole frame of 

reference in the inspector's testimony, the pertinent paragraph 

therein, 2.12, and the 10 diagrams referenced therein, do appear 

identical to their counterparts in the 1983 plan. 

Although Respondent has argued that a roof control plan, 

being "an operator's document", remains in effect until disapproved by MSHA, the last approval of such plan by MSHA on May 

4, 1983, had a specific six-month term and expired on November 4 

(or November 3 at midnight), 1983. The understanding of the 

parties and I believe acquiescence by Respondent that it did not 

is strongly manifested by the chain of correspondence initiated 

by Respondent's letter to MSHA of March 22, 1984, proposing to 

21 Thus, at page 1 of its Brief, Petitioner states: 

"This case involves an alleged failure to comply with the 

pillar removal sequence of a roof control plan. It was 

tried on two alternative theories that respondent either 

mined without an approved roof control plan or, in the 

alternative, if a roof control plan was in effect, the 

pillar removal sequence was not followed. Petitioner no 

longer adheres to the theory that a roof control plan was 

not in effect ••. " 

xxx xxx xxx 

Mid-Continent Resources operates the L.S. Wood mine. A roof 

control plan for the L.S. Wood mine had been reviewed and 

reapproved by MSHA on May 4, 1983 (Exhibit R-4)." 

203 
reinstate its old plan at a time when its mine had been down for 

well over a year. Without commenting on the wisdom of the May 4, 

1983 "routine" approval of the plan at a time when the mine had 

already been down for a period of several months, the record is 

clear that no written approval of the proposed roof control plan 

issued from MSHA until July 26, 1984, nearly a month after the 

original Citation issued, and also after the final modification 

of the Citation issued. As this record clearly reveals, when the 

proposed plan was finally approved in writing Cas required by 30 

C.F.R. § 75.200-4) such ap~roval contained limitations highly 

important to mine safety. _/ 

In a matter involving a mine's ventilation plan, Ziegler 

Coal Company v. Kleppe, 536 F.2d 398 CD.C. Cir. 1976), as part of 

its analysis of mine safety law in general, the author of the 

Court's opinion, Judge Wilkey, noted the analogy between 

ventilation plans and roof control plans, observed that the 

reasoning of the decision might be applicable in many instances 

to such other plans as well, and upheld the enforceability of 

such plans once duly adopted (See footnotes 11 and 54). 

In Jim Walter Resources, Inc., 9 FMSHRC 93 (1987), again 

involving a ventilation plan, the Commission set forth this 

excellent overview of plan enforcement: 

"Ventilation plans are approved by the Secretary and adopted 

by mine operator pursuant to section 75.316 and section 

303(0) of the Mine Act. The approval and adoption process 

is bilateral and results in the Secretary and the operator, 

through consultation, discussion, and negotiation, mutually 

agreeing to ventilation plans suitable to the specific conditions at particular mines. Ziegler v. Kleppe, 536 F.2d 

398, 406-407 CD.C. Cir. 1976); Carbon County Coal Co., 6 

FMSHRC 1123 (May 1984). The process is flexible, contemplate·s negotiation toward complete agreement, and is aimed 

at. compliance with mine safety and heal th requirements. 

Under the approval and adoption process, the operator submits a plan~to the Secretary who may approve it or suggest 

changes. The operator is not bound to acquiesce in the 

Secretary's suggested changes. The operator and the Secretary are bound, however, to negotiate in good faith over 

disputes as to the plan's provisions and if they remain at 

odds they may seek resolution of their disputes in enforcement proceedings before the Commission. Carbon County Coal 

Company, 7 FMSHRC 1367, 1370-71 (September 1985). The 

~/ The Federal Mine Safety and Health Review Commission itself 

pointed out in Secretary v. Halfway, Inc., 8 FMSHRC 8, at p. 13 

(1986): "Our decisions have stressed the fact that roof falls 

remain the leading cause of 4eath in underground mines". 

204 
ultimate goal of the approval and adoption process is a 

mine-specific plan with provisions understood by both the 

Secretary and the operator and with which they are in full. 

accord. Once the plan is approved and adopted, these provisions are enforceable at the mine as mandatory safety 

standards. Ziegler, supra at 409; Carbon County, 7 FMSHRC 

at 1370; Penn Allegh. 

In an enforcement action before the Commission, the Secretary bears the burden of proving any alleged violation. 

In plan violation cases the Secretary must establish that 

the provision allegedly violated is part of the approved 

and adopted plan and that the cited condition or practice 

violates the provision." 

(emphasis added) 

Finally, in a matter also involving a ventilation plan, the 

Commission set forth some characteristics of such plans which 

would appear to be generally applicable to roof control plans. 

In this case, Secretary v. Penn Allegh Coal Company, 3 FMSHRC 

2767 (1981), the Commission stated: 

"We hold that ventilation and dust control plans are 

continuous in nature; a plan does not expire at the end 

of a six-month period simply because the parties have 

failed to finally resolve a suggested revision. In the 

present case, in light of our previous conclusion that the 

Secretary validly rescinded the mistaken approval of Penn 

Allegh's revision to the original plan, we conclude that 

the original plan remained in effect. This leaves the 

parties with the ability, in fact the duty, to negotiate 

in good faith over a resolution of the "flow-static" 

measurement controversy. At the same time it affords miners 

the protections of the plan previously adopted by Penn 

Allegh and approved by the Secretary." 

Penn Allegh is the most analogous precedent to the unique 

facts presented here uncovered by my research. Nevertheless, 

after consideration of the record in the matter before me, I conclude that the situation here is distinguishable, and should be 

distinguished, from the general "continuous running" concept set 

forth in Penn Allegh, supra. To begin with unlike Penn Allegh 

the mine was closed for a period of over one year, overrunning 

two normal six-month plan review periods. The last six-month 

review approval period elapsed while the mine was closed. Both 

parties, if not actually recognizing the mine safety need for a 

new plan, at least accepted and engaged in the procedure of 

negotiating a proposed plan, which process commenced after the 

205 
last six-month period ran and before the mine reopened and 

commenced production. 9; In submitting the proposed plan, 

Respondent in its letter of March 22, 1984, demonstrated its 

intention to mine in a specific different (T. 214) area of the 

mine which the record shows and MSHA felt "could be dangerous to 

mine in" (T. 88, 114, 115, 122, 154, 214-215). It is also 

specifically found that the plan submitted with Respondent's 

letter to MSHA of March 22, 1984, was a "proposed roof control 

plan" within the meaning of 30 C.F.R. § 75.200-4. S~e fn 5, 

supra. 

Accordingly, these general conclusions are reached: (1) the 

decision in Penn Allegh that ventilation -and presumably roof 

control -- plans are continuous in nature is not an expression of 

an unflinching rule having universal application, (2) the precise 

holding of Penn Allegh, arising out of circumstances where the 

mine involved was in continuous operation, is not applicable 

here, and (3) in the instant case, and in situations where a mine 

is closed for a lengthy period and the 6-month periodic review 

required by 30 C.F.R. § 75.200 is no longer carried on, the 

viability of the previous plan ends. 

It is therefore held that when the Citation and its 

modification issued, there was no approved roof control plan in 

effect. Since it expressly is Petitioner's sole theory of violation that a provision of an approved roof control plan was infracted, I find that no violation was proven. Jim Walters 

Resources, Inc., supra. 

ORDER 

Citation No. 2213098 and its modifications are vacated and 

this proceeding is dismissed. 

jf;:c,-?&tl 4 ;;:;,.,cd'cl ;?i - Michael A. Lasher, Jr. 

Administrative Law Judge 

9/ From the record and pleadings it is not ascertainable whether 

Petitioner also is claiming that an operator, upon reopening a 

closed mine, can bring back to life its old plan, which was not 

reviewed and approved after a six-month period expired, by merely 

picking it up and following it, or--as it alleges in this 

case--by not following it. 

206 
Distribution: 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail} 

Edward Mulhall, Jr., Esq., Delaney & Balcomb, P.O. Drawer 790, 

Glenwood Springs, CO 81602 (Certified Mail} 

/bls 

207 
Attachment "A" 

Citation No. 2213098 is modified to show that the operator was 

not complying with the approved roof control plan dated March 25, 

1982. The operator had split through one block of coal, leaving 

only two fenders, and was using this block as a roadway to mine 

the 2nd block inby, a total of 25 feet had been mined from the 

2nd block, and in addition two fenders had been left to the right 

of the 1st pillar split, the supt. Tom Scott said that he 

intended to go back and get these two fenders to the right of the 

1st pillar split. Be~ow is a diagram of the practice being used. 

:..... ' : . ·.1 • ; • • .... :..;. : (4' 

·q· 

208 

~ I 

"""""-X"x·'f.-. ,~- .... >o. - · -:· 
COAL MINE SAFETY AND HEALTH - District 9 

May 4, 1983 

Mr. Bradley J. Bourquin 

Chief Engineer 

Mid-Continent Resources, Inc. 

Box 158 

Carbondale, CO 81623 

RE: L. S. Wood Mine, I.D. No. 05-00300 

Dutch Creek No. 2 Mine, I.D. No. 05-00469 

Roof Control Plans 

Dear Mr. Bourquin: 

Attachment "B" 

The roof control plans for the subject mines have been reviewed 

by MSHA personnel. Since the plans appear adequate, they shall 

remain in effect for another six month period. 

Sincerely, 

/s/ 

John W. Barton 

District Manager 

209 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 . 

FEB 16 1988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. SE 87-84-M 

A.C. No. 31-00065-05508 

v. 

: Fountain Mine 

MARTIN MARIETTA AGGREGATES, 

Respondent 

Appearances: 

Before: 

DECISION 

Kens. Welsch, Esq., Office of the Solicitor, 

U.S. Department of Labor, Atlanta, Georgia, for 

the Petitioner; 

William E. Sharp, Jr., Esq., Martin Marietta 

corporation, Bethesda, 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 llOCa> of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 820(a), seeking a civil penalty assessment of $20 for an alleged violation of mandatory 

safety standard 30 C.F.R; § 56.16006. The respondent filed an 

answer denying the violation, and a hearing was held in 

Raleigh, North Carolina. The parties waived the filing of 

posthearing briefs~ but I have considered their oral arguments 

made on the record during the hearing in my adjudication of 

this matter. 

Issue 

The issue presented is whether the respondent violated 

the cited mandatory safety standard, and if so, the appropriate civil penalty to be assessed for the violation based on 

the criteria found in section llO(i) of the Act. 

210 
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 llO(i) of the 1977 Act, 30 u.s.c. § 820(i). 

3. Commission Rules, 20 C.F.R. § 2700.1 et seq. 

Stipulations 

The parties stipulated to the following (Tr. 5-6): 

1. The respondent is in a business affecting commerce within the meaning of the Act. 

2. The respondent is a large granite mine 

operator with a reported total work hours for 

1986 in excess of three million man hours. 

3. The payment of the proposed civil penalty by the respondent will not adversely 

affect its ability to continue in business. 

4. A computer print-out of the respondent's history of past paid violations for the 

2-years prior to the issuance of the violation 

in this case consist of four section 104(a) 

"single penalty" citations (Joint Exhibit-1; 

Tr. 11). 

Discussion 

The section 104(a) non-"S&S" Citation No. 2658034, issued 

by MSHA Inspector Floyd Patterson on December 9, 1986, cites a 

violation of 30 C.F.R. § 56.16006, and states as follows: 

"The compressed gas cylinders (Oxygen and Acetylene) on the 

welding truck were not protected by covers while they were 

being transported on the premises with the gauges and hoses 

attached." 

Mandatory safety standard 30 C.F.R. § 56.16006 provides 

that "Valves on compressed gas cylinders shall be protected by 

'covers when being transported or stored, and by a safe location when the cylinders are in use." 

MSHA's Testimony and Evidence 

MSHA Supervisory Inspector Robert M. Friend, confirmed 

that he participated in the inspection conducted at the 

211 
respondent's mining operation by Inspector Floyd Patterson on 

December 9, 1986. He stated that he was with Mr. Patterson to 

evaluate him, and that Mr. Patterson has since retired. 

Mr. Friend identified a copy of the citation issued by 

Mr. Patterson, and he confirmed that he was present when it 

was issued (Tr. 14-16). 

Mr. Friend confirmed that he observed the truck carrying 

at least three cylinders at various times during the course of 

the inspection, and he stated that the truck was used "for 

transportation throughout the plant." Mr. Friend stated that 

the cylinders were standing upright and were secured on the 

left side of the truck behind the driver, and he determined 

that they contained oxygen and compressed acetylene. He 

described the truck as a maintenance truck, with a utility 

type bed, and he estimated that he observed it at least three 

times, and when it was cited it was pulling into the shop. At 

no time did he observe the cylinders being used for welding 

(Tr. 16-18). 

Mr. Friend confirmed that the cited cylinders had the 

regulators attached, and they were attached to the cylinders 

at the valve assembly in a vertical position in the same 

manner as most of the cylinders in use at the plant are 

attached. He confirmed that the valves were on, and that none 

of them were protected or guarded. He stated that one of the 

regulators extended beyond the side of the cab of the truck. 

He further stated that trucks of this kind are used throughout 

the plant and are sometimes driven under conveyors and bins, 

and that there is a possibility of rocks falling and striking 

the unprotected valves, which would result in a sudden release 

of acetylene, thereby presenting a fire hazard. There was 

nothing to protect the valves from being accidently struck 

(Tr. 19). 

Mr. Friend was of the opinion that the unprotected cylinder valves posed a potential for an accident, but that Inspector Patterson, who issued the citation, was of the opinion 

that not many accidents occur as a result of unprotected valve 

covers. Since he believed that an accident was unlikely, he 

did not consider the violation to be "significant and 

substantial" (Tr. 20). 

In response to further questions, Mr. Friend confirmed 

that the function of the cylinder valve is to reduce the cylinder gas pressure in the acetylene tank to a workable pressure, 

and that the valve is screwed to the cylinder by means of a 

wrench. He also confirmed that the cylinder gauge is a part 

of the regulator, that the hoses are used to connect the 

212 
acetylene torch, and that all of the valve assemblies, including the gauges and hoses, were unprotected. He stated that 

the terms "welding truck" and "maintenance truck" are used 

synonymously, and that the trucks are basically used for the 

same welding and maintenance purposes. The cited truck also 

carried other supplies and tools, and it was a general purpose 

truck (Tr. 23-25). However, when used for welding purposes, 

the cylinders are not removed from the truck, and anyone doing 

any welding work uses the cylinders while they are in place on 

the truck (Tr. 26). 

Mr. Friend confirmed that additional gas cylinders were 

present in the plant shop, and ·that a citation was issued that 

same day because some valves were not turned off while the 

cylinders were left unattended. He confirmed that the respondent maintains a separate storage area for empty acetylene 

cylinders, refilling, etc., but he did not know where this 

area was located (Tr. 29). 

Mr. Friend stated that the fact that the truck moves 

about the mine site with the cylinders aboard leads him to 

conclude that they are being "transported" within the meaning 

of the standard, even though they may not be used after the 

truck moves from one location to another. His opinion would 

not change even if the cylinders on the truck are used on a 

regular and routine basis every day (Tr. 30). He estimated 

that it would take 5 minutes to detach and reattach the cylinder regulators (Tr. 31). 

Mr. Friend confirmed that the violation was abated after 

the respondent was instructed to remove the gauges and replace 

the cylinder caps before transporting the cylinders, and until 

such time as other guarding was provided. He did not know 

whether other cylinder guarding has been provided at the plant 

in question, but that respondent has provided such guarding at 

its other locations where similar citations have been issued 

under similar circumstances. These citations were abated 

after cylinder covers were manufactured on-site to protect the 

valves, and they are protected at all times while stored, 

transported, or in use in other than a safe location. Cylinder covers were required for the cited cylinders, and they 

were installed to achieve abatement (Tr. 31-34). 

Mr. Friend stated that the typ~ of cylinder covers he 

would accept as compliance with the standard in question would 

be a cover that is a part of the cylinder when it comes from 

the manufacturer, or one that is substantial and protects the 

entire valve assembly on all sides and the top, and he alluded 

213 
to a law that requires caps or covers on such cylinders while 

they are transported on the highways (Tr. 35). 

MSHA's counsel explained that the law referred to by 

Mr. Friend requires that the cylinders themselves be capped 

when they are being transported. However, in this case, since 

the attached valves, gauges, and hoses, which constitute the 

valve assembly, were not protected and added to the potential 

hazard, the standard still requires that at least the valves 

be covered and protected. Although MSHA would accept a cap as 

a protection for the cylinder itself, once the cap is removed, 

and the valve is attached, it must be covered and protected on 

all sides and the top (Tr. 38-39). 

Mr. Friend confirmed that the standard only requires 

protection for the cylinder valve, and that once the cap is 

removed and the valve, along with the gauges and hoses, are 

attached to the cylinder as one assembly or unit, the valve 

must be protected. In the instant case, the exposed and 

unprotected valves were attached to the cylinders as a unit, 

~nd the valves were not protected. Had the respondent 

provided some protection for the valves, which formed part of 

the units attached to the cylinders, it would have been in 

compliance with the standard (Tr. 40-42). 

Mr. Friend identified 10 photographs of protected and 

covered compress8d gas cylinders which he confirmed would be 

acceptable to MSHA as compliance with the standard, and he 

explained how they would afford protection for the valves (Tr. 

43-46). 

When asked to identify the other locations where the 

respondent has been cited for failure to provide protection 

for cylinder caps, Mr. Friend responded that the only one he 

could think of was the respondent's site at "Lemon Springs." 

He explained that he sent the photographs to the plant manager 

as examples of suggested methods for protecting the valves, 

and that the manager later informed him that the cita~ion had 

been abated and asked him to visit the site to see what had 

been done. Mr. Friend confirmed that he did not visit the 

site, and had no knowledge as to whether or not the inspector 

who issued the citation has had time to visit the site and 

abate the violation, but he assumed that this was done (Tr. 

47). 

When reminded of the fact that Inspector Floyd's abated 

citation was terminated after the truck in question was 

parked, and the employees were instructed to remove the gauges 

214 
and replace the cylinder caps before transporting the cylinders, and until such time as other guarding is provided, 

MSHA's counsel asserted that MSHA would accept a cap as a 

suitable cover as long as it provided substantial protection 

for the valve on all sides and the top. Counsel conceded that 

the replacement of the cylinder cap to protect the cylinder, 

coupled with the removal of the valve assembly, still left 

open the question as to how to provide suitable protection for 

the valve with the gauges and hoses intact (Tr. 51). Respondent's counsel concurred, and stated "you've captured our 

dilemma exactly, your honor. Multiply this problem times a 

hundred and you see what we're faced with" (Tr. 53). 

MSHA's counsel confirmed that the Lemon Springs site 

referred to by Inspector Friend is under the same sub-district 

enforcement jurisdiction as the subject Fountain site where 

the contested citation in this case was issued, and he 

suggested that the same photographs furnished to the Lemon 

Springs location should have been available to the Fountain 

plant manager. MSHA did not have available copies of any of 

the other citations referred to by Mr. Friend, and no additional information was forthcoming as to what may have been 

done at these other sites to provide any standard means of 

covering valves "across-the-board" (Tr. 53-55). Mr. Friend 

confirmed that the citation at the Lemon Springs location came 

"much after" the citation issued in this case, and he could 

not confirm whether that citation has been abated (Tr. 56). 

The respondent's counsel expressed surprise with 

Mr. Friend's assertion concerning the Lemon Springs citation, 

and he stated as follows (Tr. 56): 

MR. SHARP: See, the reason I'm surprised, your 

honor, because it's my interpretation that 

Mr. Lennon's direction to all the plant 

managers through all Martin Marietta was, "wait 

un.til we find out what kind of fix we can make 

so everybody can make the same fix." Our 

welding tanks have the same basic configuration 

and the same basic protection configuration, so 

the fix we will have to make will be for everybody. That's what we were after. Mr. Lennon 

will give some testimony on that. 

Respondent's Testimony and Evidence 

Arthur P. Lennon, respondent's Personnel and Safety 

Manager, confirmed that after the citation was served on the 

215 
respondent, he contacted MSHA's Subdistrict Manager Fred 

Dupree in Knoxville, Tennessee, in order to obtain some 

guidance or guidelines as to precisely how the valves on the 

cylinders should be guarded. Mr. Dupree assured him that he 

would obtain some information for him and would contact him 

again. After the passage of 2 months, Mr. Lennon again contacted Mr. Dupree, and Mr. Dupree again advised him that he 

would send him some information. After the passage of two 

more months, Mr. Lennon received the photographs from 

Mr. Friend, but he has not received anything in writing from 

MSHA as to the exact cylinder regulator guarding criteria MSHA 

would accept for compliance with the standard in question (Tr. 

58-59). 

Mr. Lennon explained the scope of the respondent's operations Nationwide, and he confirmed that the trucks on which 

the cylinders are located are commonly ref erred to as "welding 

trucKs." Although they are used for other purposes as well, 

the driver is usually a welder and his helper is usually an 

assistant (Tr. 60). Mr. Lennon further explained that the 

trucks are used for day-to-day maintenance in and around the 

quarry, which is the "plant," and the pit. He estimated that 

in the course of a day, the welding truck would be used on an 

average seven to ten times to perform welding work as 

required, and in that process, the cylinder regulators would 

have to be capped and re-capped each of those times (Tr. 

61-63). 

Mr. Lennon identified the photographs in question, and he 

explained how the cylinders at the Fountain operation are 

located in the trucks and secured by chains across a small 

compartment where the cylinders are located (Tr. 63-64). He 

confirmed that he informed Mr. Dupree that he was seeking a 

standard MSHA approved method of protecting the valves, or 

regulators, so that it may be applied at all of the respondent's operations, and he expressed disappointment that 

nothing has been forthcoming from MSHA in this regard (Tr. 65). 

Mr. Lennon confirmed that he was unaware of the citation 

issued at the respondent's Lemon Springs operation, and that 

he informed his field engineers that he was attempting to work 

out a solution and to do nothing further until he found a 

positive solution to the problem of protecting the valves (Tr. 

67). 

Mr. Lennon conceded that the cylinder valves are not 

covered, and that they have never been covered as the truck is 

driven about the plant. He explained that the valve is 

covered by the regulator, and that it is part of the same 

216 
assembly, and that he simply refers to it as a regulator (Tr. 

68). He confirmed that the closet in which the cylinders are 

stored does not go all the way to the top of the valve, and 

that the valve is exposed from the top and all three sides. 

He confirmed that the valves do not extend higher than the cab 

of the truck, and do not normally extend beyond the side of 

the body of the truck (Tr. 69). 

On cross-examination, Mr. Lennon· confirmed that the welding truck in question is used for welding most of the time, 

and that the cylinders remain uncapped at all times, and the 

valves and regulators remain uncovered, at all times, even 

while the truck is idle or parked overnight, and this has been 

the case for the 27 years that he has been in the business 

(Tr. 77-78). Mr. Lennon stated that he offered no suggestions 

to Mr. Dupree as to the type of valve cover that might be used 

at the Fountain operation, but that he has discussed the problem with Mr. Roy Benard, at MSHA's headquarters in Virginia, 

with a view to arriving at some solution for use by the respondent Nationwide, but has not heard from him further on the 

matter (Tr. 79). 

With regard to the photographs furnished by Mr. Friend, 

Mr. Lennon stated that while they do give him some ideas as to 

the methods for covering the valves at the Fountain operation, 

there is no assurance that other MSHA inspectors in other 

areas will accept this as compliance at the respondent's other 

plants (Tr. 79). He confirmed that the respondent has not 

decided on any particular valve cover concept for submission 

to MSHA for its concurrence or acceptability, nor has he 

sought out Mr. Dupree or Mr. Friend further to determine 

whether they would accept any particular covering device, and 

the reason he has not done so is that it has not been the 

practice in the industry to cover cylinder valves and regulators at all times while they remain on welding trucks (Tr. 

80). 

MSHA's~counsel expressed concern that Mr. Lennon's 

instructions to his field engineers not to do anything, may 

result in non-compliance with the standard at all of the 

respondent's operations (Tr. 75). However, Mr. Lennon confirmed that it was his hope that the hearing afforded the 

respondent with respect to the citation would provide some 

guidance for a solution to its problem, and that his instructions to his engineers were made with that in mind, rather 

than any notion of flaunting or not complying with the standard, and MSHA's counsel stated that he did not doubt that 

this was the case (Tr. 92). 

217 
Mr. Lennon pointed out that in the 9 years the plant has 

been in operation since 1977, and inspected twice a year, MSHA 

has not previously cited any violations for any unprotected 

cylinder valves on a welding truck. In response to 

Mr. Friend's assertions concerning the hazards connected with 

unprotected valves, respondent's counsel pointed out that 

MSHA's "accident and incident" reports from 1985 to the present, concerning welding-related accidents, reflect not one 

single incident industry-wide involving an unprotected valve 

(Tr. 96-98). 

Arguments Presented by the Parties 

The respondent's counsel asserted that the basis for contesting the citation is the respondent's desire for guidance 

concerning the interpretation and application of the cited 

standard. Counsel took the position that the cited cylinders 

were not being "transported" within the common understanding 

of that term, but were an integral part of the welding truck 

which was used in the regular course of welding in and around 

the plant as the need arose, and that it would be extremely 

inconvenient to cover and uncover the truck-mounted cylinders 

as the truck moved about from job-to-job at the site. Counsel 

took the position that the truck and the cylinders "are in 

use" as the truck goes from one work location to another, and 

that in this posture, the cylinders are not being transported 

(Tr. 7). Counsel also indicated that Mr. Lennon apparently 

misunderstood and believed that the Commission could afford 

the respondent some appropriate relief from the requirements 

of the standard as part of its contest in this matter by establishing some standard criteria for compliance to be used at 

all of the respondent's facilities (Tr. 108-109). 

Respondent's counsel stated that the respondent has 

approximately 100 similar operations in 13 states, and that 

some 20-25 MSHA inspectors would be inspecting these sites 

over the course of a year. Counsel further asserted that the 

respondent is wiling to do whatever is reasonable to take 

corrective action at all of its facilities~ but given the 

costs of compliance, and the need for compliance consistency 

at all of its operations, it needs to know what MSHA might 

accept as an acceptable cylinder valve cover to insure future 

compliance (Tr. 11). 

Except for the protection providad by the configuration 

of the truck, the respondent concedes that at the time the 

citation was issued the cited cylinder valvas were not capped 

or otherwise protected by some type of configuration built 

around them (Tr. 85). Respondent's position is that once the 

218 
work shift starts and the welding truck moves from location to 

another about the plant, the cylinders are "in use" rather 

than being "transported." However, in the event the truck 

left the site with the cylinders aboard to visit another site, 

and used the public highways, the clinders would be "in 

transportation," and would probably be required to be capped. 

Assuming the welding truck, with the cylinders aboard, simply 

drove about the plant for a day or two, without being used for 

welding, respondent's counsel and Mr. -Lennon conceded that one 

could argue that the cylinders were being transported (Tr. 

85-87). 

The respondent asserted th"at it is inconvenient and 

impractical to require that all cylinders be covered or capped 

while the truck is moving about the quarry and pit on a rather 

continuous basis everyday, and that a standardized method of 

protecting the valves, short of dismantling the valve assemblies and capping the cylinders from job-to-job, must be 

found. 

MSHA's response is that the respondent should be able to 

come up with a solution to provide the required valve protection at all of its operations, and that the burden is on the 

respondent to demonstrate its intentions to at least attempt 

to come up with a suitable valve cover for its use Nationwide. 

In the instant case, MSHA's counsel suggested that if the 

respondent had fabricated an acceptable valve cover to abate 

the violation, and MSHA accepted it, unless there were some 

factual differences, MSHA would probably accept it as compliance at all of the respondent's operations (Tr. 83). Counsel 

pointed out that in this case, the respondent took the easy 

way out by parking the truck and capping the cylinder to · 

achieve abatement, and that no cover was fabricated. Counsel 

assumes that subsequent to the termination of the citation, 

the respondent is capping the cylinders and dismantling the 

valve assembly when they are not in actual use and being 

driven around in the truck (Tr. 83-84). 

MSHA's counsel takes the position that on the facts of 

this case, the standard should be interpreted to include any 

movement of the cylinders while on the truck within the confines of the plant and quarry. Counsel asserted that the term 

"in use" applies while the cylinders are actually being used 

for welding at any particular time, and that otherwise, they 

would be "transported" while the truck is moving from location 

to location in and around the mine site (Tr. 8). 

In response to the respondent's concern with regard to 

some standard guideline for determining an acceptable cylinder 

219 
cover, MSHA's counsel asserted that in the instant case, 

MSHA's district manager has informed the respondent as to what 

MSHA will accept for compliance in the enforcement district 

responsible for the respondent's mining operation, but that 

the district manager cannot speak for the other districts. 

Counsel suggested that the respondent seek a formal interpretation from MSHA's National headquarters in order to ascertain 

any acceptable guidelines for use throughout its operations 

(Tr. 13). 

MSHA's counsel suggested that the respondent design a 

valve cover that it believes may have universal application at 

all of its operations, and submit it to MSHA for a review and 

evaluation, with a request for an official written opinion as 

to whether or not it may be acceptable for future compliance 

(Tr. 100). With regard to the Fountain plant operation, 

counsel confirmed that Mr. Friend advised him that he had discussed the alternative methods of covering the valves, as 

shown in the photographs previously discussed, with the plant 

manager, and respondent's counsel acknowledged that the photographs were in fact supplied to the respondent by MSHA (Tr. 

102-103). 

Findings and Conclusions 

Fact of Violation 

The respondent is charged with a violation of mandatory 

safety standard 30 C.F.R. § 56.16006, for failing to provide 

protection for the valves on the gas cylinders which were 

being transported on a welding truck used regularly at the 

respondent's plant. Although Inspector Floyd did not specifically refer to valves on the face of the citation, he referred 

to the uncovered cylinders, as well as the attached gauges and 

hoses, which the evidence shows included valves. The fact is 

that all of these devices constituted one identifiable unit 

which is readily attached and removed from the cylinder with a 

wrench. The credible testimony of Insoector Friend, who accompanied Mr. Floyd, and who also observed that the val~es were 

exposed and unprotected, coupled with the re~pondent's admissions that the valves were not protected or covered, clearly 

establishes that this was the case. Further, the respondent 

has not suggested that it was in anyway confused or prejudiced 

by the failure of Mr. Floyd to specifically include the term 

"valve" in the citation. 

Respondent's suggestions and arguments that the gas cylinders were "in use" rather than being "transported" on the 

welding truck in question, are rejected. Section 56.16006 

220 
requires that valves on gas cylinders be protected by covers 

when they are stored or being transported. If they are in 

use, they are required to be protected by a safe location. 

Although one may argue that gas cylinders which are on a truck 

while they are being used for welding are in a "safe location," this would depend on a particular factual situation, 

and I find no basis for concluding that at the time the welding truck was observed by the inspectors, the cylinders were 

being used for any welding work. It seems clear to me that 

the citation was issued after the inspectors concluded that 

the cylinders were being transported about the plant area in 

the welding truck as the driver went about his necessary 

maintenance duties. As a matter of fact, based on the 

respondent's admissions that such cylinders are routinely 

unprotected at all times, even when the truck may be idle or 

parked for days when not used for welding, one could conclude 

that during this time period, the unprotected cylinders were 

also stored within the meaning of the standard. See: 

Secretary v. Turner Brothers, Inc., 6 FMSHRC 1219---c-May 1984). 

It seems clear to me that the intent of the standard is 

to preclude the exposure of unprotected gas cylinder valves to 

the possibility of being struck, thereby unexpectedly releasing gas under great pressure, which may under certain conditions pose a fire or explosion hazard. Given the rather brief 

and general nature of section 56.16006, and balancing it 

against the hazards which it is intended to cover, I believe 

that any reasonable interpretation and application of the standard would lead one to conclude that the cited cylinders in 

this case were in fact being transported on the welding truck 

within the common understanding and meaning of that term. 

Black's Law Dictionary, Revised Fourth Edition, and 

Webster's New Collegiate Dictionary defines the term "transport" to mean "to carry or convey from one place to another." 

The Dictionary of Mining, Mineral, and Related Terms, U.S. 

Department of the Interior, 1968, defines the term as "a mining term used to cover vehicular transport." 

On the facts of this case, it seems clear to me that the 

cylinders in question were being transported on the welding 

truck within the meaning of the standard when the truck was 

being driven from location to location in and around the plant 

site in question. Inspector Friend observed the truGk being 

driven about at least three times when he was at the site at 

the time of the inspection, and during all of this period of 

time the unprotected cylinder valves were aboard and were 

being transported. Accordingly,'I conclude and find that MSHA 

has established a violation, and the citation IS AFFIRMED. 

221 
History of Prior Violations 

MSHA's computer print-out for the 2-years prior to the 

issuance of the citation which was issued in this case 

reflects four "single penalty" section 104(a) Citations which 

have been paid. I conclude and find that the respondent has 

an excellent compliance record. 

Size of Business and Effect of Civil Penalty on the 

Respondent's Ability to Continue in Business 

The parties have stipulated that the respondent is a 

large granite mine operator and that the payment of a civil 

penalty will not adversely affect its ability to continue in 

business. I adopt these stipulations as my findings and 

conclusions on these issues. 

Good Faith Compliance 

Abatement was accomplished within one-half hour of the 

issuance of the citation after the cited truck was parked, and 

the employees given instructions for future compliance. Under 

the circumstances, I conclude and find that the respondent 

exercised rapid good faith compliance in abating the 

violation. 

Negligence 

The inspector who issued the citation found that the 

violation was the result of a low degree of negligence on the 

part of the respondent. I agree, and adopt this finding as my 

conclusion on this issue. 

Gravity 

The inspector who issued the citation found that the 

violation was not significant and substantial, and that any 

injury as a result of the violation would be unlikely. 

Although Inspector Friend expressed an opinion that the violation may have been serious due to the fact that one of the 

valves was protruding from the side of the truck, I find no 

credible evidence to establish that the truck travelled in any 

area where there was a likelihood that the unprotected valve 

would be struck. Under the circumstances, I find no basis for 

changing Inspector Floyd's gravity finding, and I conclude and 

find that the violation was non-serious, and accept his finding in this regard. 

222 
Civil Penalty Assessment 

MSHA's pr9posed civil penalty assessment of $20 for the 

violation in question IS AFFIRMED, and the respondent IS 

ORDERED to pay that amount to MSHA within thirty (30) days of 

the date of this decision. 

Judge 

Distribution: 

Kens. Welsch, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 339, 1371 Peachtree Street, N.E., Atlanta, GA 

30367 (Certified Mail) 

William E. Sharp, Jr., Esq., Martin Marietta Corporation, 

6801 Rockledge Drive, Bethesda, MD 20817 (Certified Mail) 

Mr. Arthur P. Lennon, Personnel/Safety Manager, Martin 

Marietta Aggregates, P.O. Box 30013, Raleigh, NC 27622-0013 

(Certified Mail) 

/fb 

223 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 231988 

BETHENERGY MINES, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BETHENERGY MINES, INC., 

Respondent 

DECISION 

CONTEST PROCEEDINGS 

Docket No. PENN 87-200-R 

Citation No. 2940495; 7/27/87 

Docket No. PENN 87-201-R 

Citation No. 2940496; 7/27/87 

CIVIL PENALTY PROCEEDINGS 

Docket No. PENN 87-94 

A. C. No. 36-00958-03662 

Docket No. PENN 88-38 

A. C. No. 36-00958-03702 

Livingston Portal 84 Complex 

Appearances: R. Henry Moore, Esq., Buchanan Ingersoll Professional Corporation, Pittsburgh, Pennsylvania, 

for Contestant/Respondent; 

Before: 

Judith L. Horowitz, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, for Respondent/Petitioner. 

Judge Maurer 

Statement.of the Case 

These consolidated proceedings concern proposals for 

assessments of civil penalties filed by the Secretary of Labor 

(Secretary) against BethEnergy Mines, Inc., (BethEnergy) 

pursuant to the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. (the "Act"), seeking a total civil 

penalty assessment of $2,500 for three alleged violations of 

the mandatory safety standard found at 30 C.F.R. § 75.1704. 

BethEnergy contested the civil penalty proposals and 

also filed separate notices of contest pursuant to section 

105(d) of the Act challenging the validity of the two section 

104(a) citations that were later modified to section 104(d) (2) 

orders and back again to section 104(a) citations (Citation 

Nos. 2940495 and 2940496 issued on July 27, 1987). 

224 
Pursuant to notice, these cases were heard in Pittsburgh, 

Pennsylvania, on June 24-25 and October 28, 1987. Additionally, on November 13, 1987, in order to supplement the record, 

the Secretary took the deposition of Inspector Lloyd Smith. 

The parties have filed post-hearing proposed findings 

and conclusions as well as briefs in these matters which I 

have considered in the course of this decision. 

Stipulations 

The following general stipulations apply to this entire 

consolidated case: 

1. The Livingston Portal of the Mine 84 Complex is owned 

and operated by BethEnergy Mines, Inc. 

2. The Administrative Law Judge has jurisdiction over 

these proceedings, and both BethEnergy Mines, Inc., and the 

Mine 84 Complex are subject to the jurisdiction of the Federal 

Mine Safety and Health Act of 1977. 

3. The operator employs approximately 470 employees at 

the Mine 84 Complex. The annual production at Mine 84 Complex 

is approximately 1.2 million tons and the operator's annual 

production is approximately 5.25 million tons. 

4. The authenticity of the exhibits offered at the hearing is stipulated, but no stipulation is made as to the facts 

asserted in such exhibits. 

5. The computer printout may be admitted into evidence 

as a business record showing the operator's history of violations. 

6. The imposition of the penalty proposed by the Secretary of Labor will not affect the respondent's ability to continue in business. Respondent does not stipulate the appropriateness of the imposition of any penalty or the validity of 

the procedures which resulted in the penalty proposed. 

General Issues 

The issues presented in Dockets PENN 87-200-R and PENN 

87-201-R are whether the conditions.or practices cited by the 

inspector constitute violations of 30 C.F.R. § 75.1704 and 

whether or not the violations were "significant and substantial." If the fact of violation is established in each of 

the above dockets, PENN 88-38 concerns the appropriate civil 

penalties to be imposed for each of the above violations, 

should any be found, after taking into account the requirements contained in section llO(i) of the Act. 

225 
Docket No. PENN 87-94 concerns yet a third allegation of 

a violation of the same mandatory standard and whether the 

same was "significant .and substantial" and "unwarrantable" as 

well as an appropriate civil penalty for violation, should one 

be found. 

Applicable Statutory and Regulatory Provisions 

The cited standard, 30 C.F.R. § 75.1704, which is also 

codified as § 317(f) (1) of the Act, provides as follows: 

Except as provided in §§ 75.1705 and 75.1706, 

at least two separate and distinct travelable 

passageways which are maintained to insure passage 

at all times of any person, including disabled 

persons, and which are to be designated as escapeways, at least one of which is ventilated with intake air, shall be provided from each working section continuous to the surface escape drift opening, 

dr continuous to the escape shaft or slope facilities to the surface, as appropriate, and shall be 

maintained in safe condition and properly marked. 

Mine openings shall be adequately protected to 

prevent the entrance into the underground area of 

the mine of surface fires, fumes, smoke, and floodwater. Escape facilities approved by the Secretary 

or his authorized representative, properly maintained and frequently tested, shall be present at 

or in each escape shaft or slope to allow all persons, including disabled persons, to escape quickly 

to the surface in the event of an emergency. 

"Working section" is defined in the Act and regulations 

at 30 u.s.c. § 878(g) (3) and 30 C.F.R. § 75.2(g) (3), respectively, as follows: 

'Working section' means all areas of the coal mine 

from the loading point of the section to and including the working faces. 

"Working face" is defined in the Act and regulations at 

30 u.s.c. § 878(g) (1) and 30 C.F.R. § 75.2(g) (1) as follows: 

• 

'Working face' means any place in a coal mine in 

which work of extracting coal from its natural 

deposit in the earth is performed during the mining 

cycle. 

226 
Docket No. PENN 87-94 

This docket concerns Section 104(d) (2) Order No. 2686234, 

issued by MSHA Inspector Lloyd D. Smith at 12:10 p.m. on October 7, 1986. He cited a violation of the mandatory safety 

standard at 30. C.F.R. § 75.1704, and the condition or practice 

is described as follows on the face of the order: 

The intake air escapeway No. 3 entry of the 1 Right 

4 Butt Section was not being maintained to ensure 

passage at all times of any person in that a means 

was not provided to cross over the 2 overcasts installed at the 2 right belt entry and track entry 

and the distance from the mine floor to the top of 

the overcast measured 7 feet in height. 

Inspector Smith found that the violation was "significant 

and substantial" and that the negligence by the mine operator 

was "high." 

Additional stipulations are relevant specifically to the 

subject order and were agreed to by the parties as follows: 

1. The principal issue to be decided in this matter pertains to the existence of a violation of the cited standard, 

30 C.F.R. § 75.1704, and whether such standard was applicable 

to the facts and circumstances present in 1 Right on October 7, 

1986. Whether a violation existed depends on the resolution 

of the issue on whether 1 Right was a "working section," as 

defined by the Act and the mandatory standard. 

2. The subject order, modifications thereto, and termination were properly served upon the mine by a duly-authorized 

representative of the Secretary of Labor upon agents of the 

respondent at the dates and times, places, stated therein, and 

may be admitted into evidence for the purpose of establishing 

their issuance and not for the truthfulness or relevance of 

any statements asserted therein. 

3. At the time the order was issued, no clean intervening 

inspection of the mine had taken place since the issuance of 

the citation which initiated the section 104(d) sequende. 

4. Two overcasts were located in the mine passageway 

which would have served as an escaP,eway if 1 Right were a working section. The top of each overcast would have had to be 

climbed in order to continue traveling along the passageway. 

MSHA's position is that the 1 Right 4 Butt section was a 

working section on October 7, 1986, and that 30 C.F.R. § 75.1704 

is therefore applicable. 

227 
Production of coal had been halted in this section since 

December of 1985 because of an encounter with a gas well and 

was not resumed until after October 7, 1986--sometime in December of l986. After the mining equipment from this section 

had been moved to the 2 Right section in early 1986, two overcasts were built over the track and belt in the entry that had 

previously been the escapeway for 1 Right section when it was 

actively being mined. These overcasts were approximately 

seven (7) feet high and the operator concedes that it would 

have made it more difficult to travel the entry that had previously been the escapeway. 

In the four or five weeks prior to October 7, 1986, BethEnergy was working to prepare the 1 Right section to produce 

coal again. As of October 7, 1986, much of the mining equipment necessary to begin production of coal had been assembled 

in the section. A continuous miner, a roof bolter, shuttle 

car, belt conveyor and load center were present in the section 

on that day. The respondent points out, however, that not all 

the necessary equipment was there and operating or even oper=-

able. The load center was inoperable because of some undiagnosed problem and there was no bin or hopper at the end of the 

belt for the shuttle car to unload coal onto the belt. Furthermore, permissibility checks had to be done on the assembled 

equipment, ventilation had to be adjusted, rockdusting had to 

be done, waterlines established along the belt, etc. 

One of the additional requirements goes to the crux of 

the violation herein--escapeways had to be established. BethEnergy' s position is that since it was not intended that coal 

be mined that day and because coal production had previously 

ceased in December of 1985, the 1 Right section was not a 

"working section" on October 7, 1986, and would not be again 

until production was re-commenced. So, the argument goes 

that since the standard only requires escapeways be established from working sections there couldn't have been a violation here on that date because the requirement had not yet 

arisen. A condition precedent, i.e., the existence of a "working section" was not present. BethEnergy simply had not 

yet had time to establish the escapeway as they would have 

in the normal turn of events prior to re-commencing production 

in the 1 Right section. 

On October 7, 1986, a crew headed by Mr. Stephen Mahlberg, 

was assigned to the 1 Right section, with instructions to 

"prepare the section to load coal." On that same day, 

Inspector Smith inspected the intake escapeway for 1 Right 

and found that there were two metal overcasts obstructing 

the intake escapeway~ He thereupon issued the instant order 

that cited the respondent for a violation of 30 C.F.R. 

§ 75.1704. 

228 
Mr. John DeMichier, at the time the manager for the Johnstown, Pennsylvania, subdistrict and now the manager for District 9, testi·f ied that once the operator has the components 

necessary for mining assembled in a section, it becomes a 

working section. Conversely, he also stated that it is not a 

working section until you have all of the equipment there for 

mining coal, and that includes having a load center to power 

the equipment as well as a means to transport the coal out of 

the section. Inspector Smith testified in a similar vein. 

Counsel for the Secretary contends in her brief that the 

agency's official policy is somewhat more expansive than 

Mr. DeMichier's understanding of it. According to her, MSHA's 

national policy is that a section is a working section when 

there is work preparing the section for production or disassembling a section even if all the components of mining are 

not present in the section. 

At the second hearing in October 1987, concerning the 

consolidated companion cases, but the same basic legal issue, 

the definition of "working section" was again the main subject. 

Inspector William Brown testified on this point, disagreeing 

with Mr. DeMichier's testimony given at the earlier hearing. 

Inspector Brown opined that a working section came into being 

at such time as the "first event" took place that set the section up to mine coal, as long as you have a loading point. 

Once the "first event" takes place and you have a discharge 

point available, you have a "working section," even if it is 

months or even years before you actually remove any coal. 

District Manager Huntley agreed that whenever you do the 

first, however minor, task associated with mining coal in an 

area, an escapeway is required. 

As set out earlier in the text of this decision, the 

definition of "working section" as applied to these cases, 

heavily depends in turn on the definitions of such terms as 

"working face," "mining cycle" and "loading point." Here 

again, there is widespread disagreement amongst the witnesses 

regarding the meaning of this terminology. 

Everyone except Mr. Huntley agrees, however, that an 

escapeway is not required for a work area which is not contained in the space between the working section's loading 

p9int and the working faces. That tracks the verbatim 

language of the Act. BethEnergy takes the position that 

the terms "working faces" and "loading point" contained in 

the definition of "working section" indicate that coal production must have commenced and be ongoing in order for an 

area of the mine to properly be delineated a "working section." 

A working section does not exist until production begins. 

229 
The statutory definition of "working face" refers to, but 

does not define, the term "mining cycle." Nor is "mining cycle" 

defined in the Dictionary of Mining, Mineral and Related Terms 

(1968) published by the Department of the Interior. The word . 

"cycle" is, however. In the coal mining context, it is defined 

as "the complete sequence of face operations required to get 

coal." This definition is similar to that offered by Mr. Mucho, 

the mine superintendent, who characterized the mining cycle as 

being supporting the roof, extracting the coal, and transporting it out of the mine. Mr. DeMichier's interpretation of the 

term essentially agreed with Mucho's. The following exchange 

took place at Tr. 113-114: 

By Mr. Moore: 

Q. Now, "mining cycle," what is your understanding of what a mining cycle is? 

A. It generally consists of cutting, mining or 

loading the coal on a continuous miner, transporting the coal from the face from the continuous 

miner by means of a shuttle car or a mobile bridge 

conveyor and then supporting the newly-exposed 

roof with a roof bolt. 

Q. From what you said, the mining cycle is the 

cycle that occurs at the faces where the coal is 

being extracted in terms of cutting cycles, the 

loading of the roof support cycle, and the transportation cycle; is that correct? 

A. Correct. 

Q. So, that is a ongoing process that occurs at 

the face where the coal is being extracted? 

A. On an active producing working section. 

Q. So, a mining cycle is what occurs on an active 

producing section? 

A. Yes. 

Other witnesses appearing on behalf of the Secretary 

espoused a much broader interpretation. Inspector Brown was 

asked for his definition at Tr. 382-383: 

By Mr. Moore: 

Q. What would be your definition of "mining cycle"? 

A. You said the word right there, "cycle." "A 

cycle is a periodic repeated sequence of events, 

230 
regularly repeated, or a single complete execution 

of a periodic repeated phenomenon." 

Q. What would you be reading from? 

A. That comes from the dictionary of what a cycle 

is. 

Q. Which dictionary would that be? 

A. Webster's. 

Q. Let's talk somewhat more specifically in terms 

of underground coal mining. In a continuous mining 

section, would you describe what a mining cycle is? 

A. A mining cycle is cutting coal, loading coal, 

transporting coal, roof bolting, erecting stoppings, 

moving up the belt, maintenance work, establish the 

ventilation. 

Q. And, on a longwall section, what is a mining 

cycle? 

A. Put in the pan line, putting the shields on 

sections, stage loader, tail gate, belt. 

Q. So, you're saying that a mining cycle goes far 

beyond the cutting of coal, the loading of coal, 

the transporting of coal from the mine and supporting of the roof? 

A. Correct. 

Mr. Turyn, an MSHA safety and health specialist, essentially 

agreed with Brown. Mr. Huntley went even further. As far 

as he is concerned, everything that happens in a coal mine 

is part of the mining cycle. 

I conclude that the "mining cycle" referred to in the 

definition of "working face" is that definition given by 

Mucho and De.Michier, as urged by respondent. However, I 

also agree with Mr. DeMichier that the fact of actual production of coal at any given point in time is not the determining factor in deciding whether there is a "working face·" 

or for that matter a "working section." Furthermore, I 

agree wholeheartedly with the Solicitor that the definition 

of "working section" must not depend on divining the operator's int€ntion to mine coal and I reject the notion put 

forward by BethEnergy that actual coal extraction need have 

commenced or re-commenced as the case may be. 

231 
Nevertheless, in order to have a working section, you 

must have a working face and that term is closely related to 

actual or at least imminent coal production at the face, i.e., 

roof bolting, cutting, loading and/or transporting coal out 

of the mine. The indisputable facts of this case are that 

no coal was produced in this section for one year between 

December of 1985 and December of 1986. Therefore, I find 

that on the date in question, October 7, 1986, there was no 

actual, imminent or even contemplated production of coal on 

the 1 Right 4 Butt section. In hindsight, it was two months 

later before any production was to take place. 

The Secretary cites me to two cases, Windsor Power 

Coal Co. v. Secretary, 2 FMSHRC 671 (1980), an ALJ decision 

by Judge Melick; and Mid-Continent Coal and Coke Co. v. 

Secretary, 3 FMSHRC 2502 (1981), for the proposition that 

you can have a "working face" without the operator actually 

engaged in the act of extracting coal at the time the citation is issued. However, both of those cases involved 

temporary delays or halts in production that were found not 

to affect the ventilation requirements. Those two situations 

are factually unlike our case wherein we are faced with a 

year-long interruption of the mining cycle in that particular 

section. 

The Secretary also cites Sewell Coal Co. v. FMSHRC, 

686 F.2d 1066 (4th Cir. 1982) wherein a violation of 30 

C.F.R. § 75.1704 was affirmed in a mine that had been struck, 

and therefore no coal had been produced for some months 

before the citation was written. That case does not give me 

much guidance either, however, because that operator apparently did not raise the issues that have been raised herein, 

nor did the Commission or the Court of Appeals address 

themselves to any of the issues raised in this case by 

BethEnergy. Rather, that case went off on the issue of an 

impossibility of compliance defense that the operator did 

raise, and which was rejected. 

In my opinion, a reasonable interpretation.of the facts 

in this record would go so far as to establish that as of 

October 7, 1986, BethEnergy had most of the equipment necessary to mine coal assembled in the section, they were working on the section on an intermittent basis to prepare it 

for mining again, qnd within two months, they would complete 

these tasks and resume mining in December of 1986 after a 

one-year hiatus. 

232 
It is axiomatic that escapeways need only be maintained 

from working sections. By definition, a "working section" 

in the context of 30 C.F.R. § 75.1704 must have a loading 

point 1/ and at least one working face. 

I find as a matter of law that the 1 Right section as 

of October 7, 1986, did not have a working face and therefore 

was not a working section. It follows, therefore, that I 

conclude and find that the Secretary has failed to prove a 

violation of the cited standard. Accordingly, the order in 

question will be vacated. 

Docket No. PENN 87-200-R 

This docket concerns Section 104(a) Citation No. 2940495, 

which has had a checkered career. It began as a section 104(a) 

citation issued by MSHA Inspector William R. Brown at 9:30 a.m. 

on July 27, 1987. Later that same evening, Inspector Joseph F. 

Reid modified the citation to a section 104(d) (2) order and 

changed the negligence finding from "moderate" to "high." 

On October 23, 1987, the then order was again modified back to 

a section 104(a) citation with the negligence finding changed 

back to "moderate" from "high." It cites a violation of the 

mandatory safety standard at 30 C.F.R § 75.1704, and the condition or practice is described as follows on the face of the 

citation: 

The designated intake escapeway provided 

for the 53 Parallel section was not maintained 

to insure passage at all times of any person, including disabled persons. Persons were required 

to work in the 53 Parallel section. 

Additional stipulations specifically relevant to this 

citation and Citation No. 2940496 were agreed to by the parties 

as follows: 

1 •. The subject citations, modifications thereto, and 

terminations were properly served by a duly authorized representative of the Secretary of Labor upon agents of BethEnergy 

as to dates, times 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 

statement asserted therein. 

1) I also find that a hopper or bin had yet to be constructed 

on the belt to permit unloading of coal from shuttle cars. 

Without some such device in place, it would be impractical to 

load coal onto the belt to transport it out of the mine. I 

therefore also conclude and find that there was no loading 

point existent in the section on October 7, 1986. 

233 
2. At the time the citations were modified to orders 

to include allegations of unwarrantable £ailure to comply, 

no clean intervening inspection of the mine had taken place 

since the issuance of the citations upon which they were 

based. 

The Secretary alleges that the 53 Parallel section was 

a working section for the purposes of 30 C.F.R. § 75.1704 on 

July 27, 1987. 

On July 27, 1987, the mine was at the end of a monthlong idle period when no coal was being produced, but men 

were at work in the mine doing maintenance and construction 

work. In the 53 Parallel area, the bottom was being graded 

in order to shorten travel time to the portal. Three miners 

were working on the grading job, operating a continuous miner 

and a shuttle car removing non-combustible material from the 

bottom and transporting it to gob rooms in the vicinity of 

the work. Additionally, two masons were working nearby on 

some overcasts. 

Before I turn to the legal analysis of the status of 53 

Parallel, there is a substantial factual issue whether the 

construction site in the 53 Parallel area was within the 

physical confines of a working section regardless of whether 

the 53 Parallel section was a "working section" or not. 

A "working section" for any area of the mine, by definition, only exists between the "working face" and the "loading 

point." Conversely, if the area in question is not between 

the working face and the loading point, it is not within the 

working section and escapeways are not required for that area. 

Inspector Brown identified the working face of 53 Parallel 

on the mine map, which was marked and received as Joint Exhibit 

No. 1. The working face he identified are the faces in what 

the operator calls A Left. This is because the 53 Parallel 

section had previously been mined up the straight, however, 

mining had ceased at these faces, stoppings were installed and 

they had become part of the return airway for A Left. Then 

the operator had begun mining at right angles to the straight 

and began calling this the A Left section. However, as the 

Secretary points out, the same section map was used ~or both 

53 Parallel and A Left sections. In my opinion, it is not 

important which label we ~ut on them, it is only important 

that we know from where the "working section," if there is 

one, begins. So, whether it be 53 Parallel or A Left, Inspector Brown marked Joint Exhibit No. 1 with a blue line labelled 

"Face WF".to indicate the working face. Inspector Brown considered this to be a working face because coal .had been mined 

there previously and coal would be extracted from there again. 

234 
Inspector Brown also observed a disconnected feeder 

breaker at a point which he placed on Joint Exhibit No. 1 at 

"LP." He testified that it was this feeder breaker, just outby the grade job that was the loading point for the 53 Parallel section or the A Left faces, depending on which nomenclature you use. If this is correct, the grade job or construction site is clearly between the working faces and the loading 

point and would be within the physical area described as a 

"working section" if one legally existed. 

However, the operator protests that the inspector is 

mixing apples and oranges in that the actual loading point 

(feeder breaker) for the A Left faces is at a point "M" on 

Joint Exhibit No. 1. Point "M" as opposed to point "LP" is 

clearly inby the grade job. The feeder breaker which was 

placed at point "LP" by Inspector Brown was not in fact a 

loading point for the A Left faces, but rather had previously 

been used when the former faces of the 53 Parallel section 

were being mined up the straight. The inspector used the 

existing face areas from A Left and the loading point from 

the old 53 Parallel section to make up a "working section" 

that conveniently enough included within it the construction 

job at issue. 

Additionally, the inspector's placing of the feeder 

breaker at point "LP" is also contested. His testimony concerning the location of this equipment was contradicted by 

the mine su~erintendent, shift foreman and construction crew 

foreman. They place that feeder breaker at point "P" on the 

joint exhibit. However, I don't believe it is particularly 

relevant where that feeder breaker was located since it is 

not alleged that it was used by the A Left or 53 Parallel section, whatever you wish to call it, for the A Left faces. 

Any "working section" that would exist in this area, by 

whatever name, ... must necessarily begin at the A Left faces, 

because there are no other working faces in the area. I find 

as a fact that the A Left faces were working faces and were 

located several crosscuts inby where Inspector Brown placed 

them on the mine map~ as indicated by the thick black marker 

line on Joint Exhibit No. 1. There was also a loading point 

that was used for removing coal from the faces of A Left during production. That was a feeder breaker located at point 

"!'1" on the joint exhibit. I also find that the other feeder 

breaker, located at point "LP" or "P" on the map was not a 

loading point for coal coming from the A Left working faces 

and hence its exact position is irrelevant to the inquiry. 

Therefore, I conclude that the five persons working in 

the area of the grade job were not located in an area that 

could be termed a "working section" that existed between the 

235 
working faces of A Left or 53 Parallel or A Left off 53 Paral.-

lel and its loading point. Escapeways for the grade job work 

area were therefore not required. Accordingly, Citation No. 

2940495 will be vacated. 

Docket No. PENN 87-201-R 

This docket concerns Section 104(a) Citation No. 2940496, 

which like Citation No. 2940495, was originally issued as a 

section 104(a) citation, was modified to a section 104(d) (2) 

order and back again to a section 104(a) citation. It was 

issued by Inspector William R. Brown at 10:30 a.m. on July 27, 

1987. He cited a violation of the mandatory safety standard 

at 30 C~F.R. § 75.1704, and the condition or practice is described as follows on the face of the citation: 

The designated intake escapeway provided for the 

3 Right Longwall Section was not maintained to 

insure passage at all times of any person, including disabled persons. Persons were required 

to work in the 3 Right Longwall section. 

On July 27, 1987, in the 3 Right area of the mine, a 

longwall retreat section was being prepared for mining. Although mining did not actually commence in that section until 

August 3rd or 4th, it is the Secretary's position that the 3 

Right section was a "working section" on the day the citation 

was written, July 27. 

The incident giving rise to this citation (as well as 

Citation No. 2940495) on that particular day was the discovery 

of a fall at the No. 74 stopping in the 53 Mains area in what 

was marked as an intake escapeway. It is undisputed that 

there was no way around the fall. Therefore, the issue once 

again becomes whether an escapeway is required for the 3 Right 

section, i.e., is it a "working section." The operator believed that no working section existed in 3 Right because all 

the equipment necessary for mining was not yet present in the 

section and also they contend that no loading point existed 

at that point in time. 

On July 27, there were six men working on the section . 

. They were in the process of moving the longwall, setting up 

the shields which provide support for the roof after the longwall begins to retreat. At this point in time, about one-half 

of the shields were installed. The pan line was established. 

There was a conveyor belt installed into the section, but not 

yet connected to any of the longwall mining equipment. 

Several components of the stageloader which places the coal 

onto the belt for transport out of the section were not yet 
present. The head gate drive was still at the operator's 

Wilson shop and the shearer was located at the operator's 

Livingston shop at this time. Within approximately one week 

from this date, all these components and pieces would be brought 

together and coal production would commence on this section. 

Everyone agrees that at that juncture, the section becomes a 

"working section" and there is a requirement for an unobstructed 

intake escapeway from the working section. The harder question 

and the one presented for decision herein is whether 3 Right 

was a "working section" on July 27, 1987, one week prior to 

the commencement of production. 

MSHA, for its part, does not rely on the relatively short 

time proximity of the single week that we have involved herein. 

For example, Inspector Brown testified that the 4C panel, which 

can be located on the joint exhibit, where the operator had not 

at that time even started to move longwall equipment in, was 

already a "working section." Apparently, the basis for this 

opinion is his understanding that any work done with a view 

toward producing coal creates a "working section" and gives 

rise to the escapeway requirement. Messrs. Huntley and Turyn 

agree with this notion, whereas Mr. DeMichier and Inspector 

Smith do not. DeMichier and Smith believe that a working section comes into existence prior to the production of coal but 

after assembling all of the equipment necessary for mining in 

the section. 

The operator stands by its position that active coal production must have commenced for a working face, and, therefore, 

by definition, a working section to exist, but argu~s that even 

by the DeMichier/Smith interpretation, no working section 

existed in the 3 Right section on July 27, 1987. 

Consistent with my opinion in Docket No. PENN 87-94, 

supra, I reject the Brown/Turyn/Huntley "first event" interpretation and the operator's "actual production" interpretation of the pertinent statutory and regulatory language. 

As I stated earlier in this decision, in order to have a 

working section you must have a working face and that term 

implies at least imminent capability of coal production from 

that face. The DeMichier/Smith interpretation is closest to 

the mark in this regard in that using their test, the operator 

must at least have the equipment assembled that it needs to 

produce coal. The Secretary concedes that was not the case 

on the 3 Right section. 

I therefore find that the 3 Right section was not a 

"working iection" on July 27, 1987. Since escapeways need 

only be maintained from working sections, it follows that I 

237 
also conclude and find that the Secretary has failed to prove 

a violation of the cited standard. Accordingly, the citation 

in question will be vacated. 

ORDER 

1. Order No. 2686234 IS VACATED, and Civil Penalty Proceeding Docket No. PENN 87-94 IS DISMISSED. 

2. Citation Nos. 2940495 and 2940496 ARE VACATED and the 

contests of those citations ARE GRANTED. Civil Penalty Proceeding Docket No. PENN 88-38 IS DISMISSED. 

Distribution: 

Roy 

MJJIA~ J( ~aiUrer Admi;fu't:iative Law Judge 

R. Henry Moore, Esq., Buchanan Ingersoll Professional Corp., 

600 Grant St., 58th Floor, Pittsburgh, PA 15219 (Certified 

Mail) 

Judith L. Horowitz, Esq., Office of the Solicitor, u. s. Department of Labor, 3535 Market St., Philadelphia, PA 19104 

(Certified Mail) 

238 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 23, 1988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 87-283 

A. C. No. 46-01867-03720 

v. 

Blacksville No. 1 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Anita D. Eve, Esq., Office of the Solicitor, 

U. S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner. 

Michael R. Peelish, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for 

Respondent. 

Judge Merlin 

The Solicitor advises that upon further review she wishes to 

vacate the subject citation. Accordingly, she moves to vacate 

the citation and to dismiss the civil penalty proceeding in the 

above-referenced case. 

Upon consideration, the motion is Granted, the citation is 

VACATED and this case is DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Anita D. Eve, Esq., Office of .the Solicitor, U. S. Department of 

Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

239 
Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Mr. Donzel E. Ammons, Vice President, Consolidation Coal Company, 

P. 0. Box 24, Wana, WV 26590 (Certified Mail) 

Michael H. Holland, Esq., UMWA, 900 15th Street, N.W., 

Washington, DC 20005 (Certified Mail) 

/gl 

240 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES . 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATIOK (MSHA), 

Fetitioner 

v. 

BONANZA MATERIALf, INC., 

Respo:icien:.. 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 FEB 291988 

CIVIL PENALTY PROCEEDING 

Docket No. ~~ST 87-85-M 

A.C. No. 26-01488-05506 

Bonanza Materials Mine 

DECISIO~\ 

Appearances: Marshall P. Salzman, Esq., Office of the Solicitor, 

G.S. Department of Labor, San Francisco, 

California, 

for Petitioner; 

Mr. Boyd Anderson, Manager, Bonanza Materials, 

Inc.,· Henderson, Nevada, 

pro se. 

Before: Judge Cetti 

Staterr:ent of the Case 

This is a civil penalty proceeding filed by the petitioner 

against the respondent pursuant to Section llO(a) of the Federal 

Mine Safety and Health of 1977, 30 U.S.C. § 820(a), seeking civil 

penalty assessments in the amount of $1,008.00 fer nine alleged 

violations of certain mandatory safety standards found in Title 

30 Code of Federal Regulations. 

O~ September~24, 1986, MSHA Inspector Ronald Berry 

accompanied by Paul Price, an electrical engineer ~ith MSHA, 

conducted an inspection of the Bonanza Materials Mine. As a 

result of that inspection MSHA issued to the operator the nine 

citations at issue in this proceeding. Seven of the citations 

c~arged the C?erato~ with improper grounding in violation of 

Titi~ 30 C.F.R. § 56.12025. The remaining two citations charged 

th~ operator ~ith electrical fitting and bushing violations 

rroscribed by Title 30 C.F.R. § 56.12008. 

'lbis proceeding was initiated by the Secretary filing a 

pe~iticn for assessment of a civil penalty pursuant to Section 

:!_l(i (a) of the Eine Act. The respondent BonanzF; Materials Inc., 

241 
filed a timely answer contesting the existence of all the 

violations. After proper notice to the parties an evidentiary. 

hearing on the merits was held before me on November 18, 1987. 

Stipulations 

At the hearing the parties entered into the following 

stipulations: 

1. The respondent is the operator of the Bonanza Materials 

mine and is subject to the jurisdiction of the Mine Act. 

2. The presiding judge has jurisdiction to hear and decide 

this case. 

3. Respondent is a moderate size company having approximately 13,000 man hours per year. 

4. Respondent has a moderate history having had seven 

assessed violations in the previous four years. 

5. Respondent exercised good faith in its prompt abatement 

of the violations. 

6. The imposition of the proposed civil penalties for the 

violations in question will not affect the ability of the 

respondent to continue in business. 

7. If the existence of a violation is established the 

appropriate penalty is the original penalty proposed by the 

Secretary of Labor. 

Issue 

The existence of each of the violations alleged in the nine 

citations at issue. 

Summary of Evidence 

MSHA presented evidence that it inspected and investigated 

the electrical system including the grounding system in the 

plant's crushing area. Respondent has a high voltage electrical 

power corning into the main unit transformer located just outside 

the control room. The voltage is reduced from the power company 

voltage down to 440 volts and then distributed to different areas 

throughout the plant. The power goes through the control room 

where it is distributed to the individual motors that drive the 

crushers, conveyors and screens. 

242 
Citation No. 2674141 

Mr. Price, an experienced electrical engineer, testified 

that he inspected the switch gears in the switch gear room 

located just below the control room. These switches and starters 

are used to distribute the 440 volt power to the individual 

motors in the plant. He found the starters and switches were not 

grounded properly because they did not have a grounding conductor 

that went "all the way back to the grounding source of the main 

transformer." He explained that although a metal conduit properly installed may be used as a grounding conductor the conduit involved in this citation did not· have the special bonding lock 

nuts that assure the maintenance of the continuity of the 

grounding circuit. In addition the conduit was made of plastic 

and consequently could not be used for a grounding conductor 

since plastic will not conduct electricity. 

On checking with an OHM meter it was found that there was no 

continuity to ground. There was no grounding circuit. 

Respondent presented no contrary evidence. 

Citation No. 2674142 

The petitioner presented evidence that there was no ground 

on the 440 volt mud pump drive motor. This pump was located 

close to the ground in a wet area. There was no observable 

ground wire and on checking for continuity with an OHM meter it 

was found that there was no continuity. 

Mr. Price testified that an employee standing on the earth 

in the wet area could be shocked in the event of a short circuit. 

The operator presented no contrary evidence. 

Citation No. 2674143 

The Secretary presented evidence that the ground for the 440 

volt screen conveyor drive motor was not hooked up. Mr. Price 

the electrical engineer testified that a ground wire in a 

three-phase system is typically a fourth wire which is hooked to 

the frame of the motor and grounds the current back to the 

incoming transformer. When a ground fault or short cirouit 

occurs there is a large amount of current which instead of going 

through the motor and producing the desired result goes back to 

the source transformer. He explained that this is why it is 

called a short circuit. 

Mr. Price observed that the ground wire inside the junction 

box was not hooked onto the motor frame. Consequently in the 

event of a short circuit virtually any piece of metal touching 

either the motor or the conveyor would be energized. However, if 

243 
the wire or other conductor is hooked back to the ground at the 

source transformer then the short circuit current travels on that 

ground cond~ctor and trips the breaker. The breaker will trip 

even when there are only a few ohms resistance. If the system is 

properly grounded a short circuit will shut down the system 

without causing any hazard. 

Respondent presented no contrary evidence. 

Citation No. 2674144 

The Secretary presented evidence that there was no ground 

wire or equivalent protection on the 440 volt drive motor for the 

cedar rapid screen. Mr. Price testifiea he observed there was no 

ground wire by simple visual inspection. He then determined that 

there was no equivalent protection by checking with an OH~ meter. 

Respondent presented no contrary evidence. 

Citation Ko. 2674145 

The Secretary presented evidence that there was no ground on 

the 440 volt cedar rapid screen rock conveyor drive motor. On 

opening the Junction box at the motor the electrical engineer 

found there was no ground wire nor any other grounding conductor 

such as a conduit. 

On checking with an OHM meter Mr. Price found that there was 

no equivalent protection. 

Respondent presented no contrary evidence. 

Citation No. 2674147 

The Secretary presented evidence that there was no ground 

wire on the two 440 volt drive motors for the cone crusher. On 

opening the junction boxes of both motors and the compre!:i'sor Mr. 

Price found there were no ground wires present. He stated that 

if there was a short in that area without ground wires the 

crusher itself and any metal that happen to be touching or 

attached to it could be become energized creating a shock hazard. 

With the three-phase system that was present the voltage could be 

440 volts or 275 volts depending on where the ground fault is 

located. Either one of these voltages could be lethal. 

Respondent presented no contrary evidence. 

Citation No. 2674148 

The Secretary presented evidence that the 440 volt drive 

motor for the bin belt was not properly grounded. The ground 

244 
wire was present but it was not continuous. It was an open 

ground wire and therefore not grounded. Mr. Price testified that 

if there were a short in the motor both the motor and the 

equipment that it was mounted on would be energized. 

On cross examination the electrical engineer testified that 

a grounding wire or or other device is acceptable only if it 

"works". He checked with an OHM meter and it showed that there 

was no continuity. 

Respondent presented no contrary evidence. 

Citation No. 2674146 

The Secretary presented evidence that the 440 volt power 

cable entering the metal junction box on the side of the rock 

conveyor for the cedar rapid screen was not equipped with the 

proper fitting required by 30 C.F.R. § 56.12008. 

The electrical cable in question is a type of electrical 

cable that has metal conductors inside and an outer jacket of insulation. The cable entered the junction box through a hole in 

the side of the junction box. There was no fitting where the 

wire passed through the metal frame of the junction box. 'This 

lack of the proper fitting increases the chance of a short 

circuit. 

Mr. Price testified that a proper fitting has to protect the 

wire or cable from the sharp edge of the box cutting into it and 

causing a ground fault and it must also provide strain relief for 

the many connections inside the junction box. 

Respondent presented no contrary evidence. 

Citation No. 2674149 

This ·citation alleges a second violation of § 56.12008. The 

Secretary presented evidence that the 440 volt wires entering the 

junction box on the drive motor for the 3/8 crossbelt were not 

properly bushed where they entered the metal junction box on the 

motor. The conduit to the junction box was pulled out and the 

individual insulation on the individual wires of the conduit were 

contacting the frame. This individual insulation of ea9h wire is 

quite thin and is very easily cut by the edge of the junction box 

if a little weight or pull is put on the conduit. It was quite 

easy to pull out one of the hot wires from the junction box and 

cause a short circuit that would energize the equipment. 

Respondent presented no contrary evidence. 

245 
Discussion and Findings 

The operator was charged with seven violations of 30 C.F.R. 

§ 56.12025 which requires that all metal enclosing or encasings 

electrical circuits be grounded or provided with equivalent 

protection. The primary evidence presented by the Secretary to 

prove the alleged violations was the testimony of Mr. Price an 

experienced electrical engineer who accompanied ans assisted the 

MSEA inspector Ronald Burris in the September 24, 1986, inspection of Respondent's electrical syste~. The testimony of Mr. 

Price was persuasive and convincing. Based upon his unrebutted 

tes :::irr.ony, summarized above under the heading "summary of 

evidence" it is found that respondent was in violation of each of 

the grounding violation charged in Citation Nos. 2664141, 

2674142, 2674143, 2674144, 2674145, 2674:47 and 2674148. 

In each instance it is found that the metal enclosing or 

encasing electrical circuit for equipment was not battery 

operated and was not grounded or provided with equivalent protection. In each instance it is found that there was a violation 

of the mandatory grounding requirements of 30 C.F'.R. § 56.12025. 

Citations 2674146 and 2674149 charges the operator with two 

violations of 30 C.F.R. § 56.12003 involving insulation and 

fittings of power wires and cables where they pass into or out of 

electrical compartments. 

Section 56.12003 provides as follows: 

Power wires and cables shall be insulated adequately 

where they pass into or out of electrical compartments. 

Cables shall enter metal frames of motors, splice boxes, 

and electrical compartments only through proper fittings. 

When insulated wires, other than cables, pass through metal 

frames, the holes shall be substantially bushed with insulated bushings. 

The unrebutted testimony of Mr. Price, MSHA's experienced 

electrical engineer, was persuasive and convincing. On the basis 

of his testimony surrunarized above under the heading "Summary of 

Evidence", it is found that there was a violation of the mandatory safety standard 30 C.F.R. § 56.12003 in each of the instances charged in Citation Nos. 2674146 and 2674149. 

Accordingly, it is ORDERED that all the citations of the 

subject case are hereby affirmed. 

246 
Penalty 

The seven stipulations entered into by the parties (set 

forth above) ~re accepted as established facts. And on the basis 

of these stipulations and the information placed in the record at 

the hearing it is found that the appropriate penalty for each of 

the nine violations is the original penalty proposed by the 

Secretary of Labor. 

On the basis of the foregoing findings and conclusions and 

taking into account the requirements of Section llO(i) of the 

Act, the following civil penalties are assessed by me for the 

violations which have been affirmed in thi~ proceedings. 

Citation No. 

2674141 

2674142 

2674143 

2674144 

2674145 

2674146 

2674147 

2674148 

2674149 

ORDER 

Penaltv 

$112.00 

112.00 

112.00 

112.0C 

112.00 

112.00 

112.00 

112.00 

112.00 

The respondent is ordered to pay the civil penalties in the 

amount shown totaling $1,008.00 within 30 days of the date of 

this decision. Payment is to be made to MSHA and upon receipt of 

payment these proceedings are dismissed. 

Aug Cetti 

~~ Administrative Law Judge 

Distribution: 

Marshall P. Salzman, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson Street, 10th Floor. P.O. Box 3495, 

San Francisco, CA 94119-3495 (Certified Mail) 

Bonanza Materials, Inc., Mr. Boyd Anderson, Manager, 565 Lalif Road 

Henderson, NV 89015 

/bls 

247 

* U.S. GOVERNMENI' PRINTING OFFICE 1988; 201-735/83001