OCTOBER 1991 

COMMISSION DECISIONS 

10-31-91 Utah Power & Light Company WEST 90-285-R Pg. 1617 

ADMINISTRATIVE LAW JUDGE DECISIONS 

10-07-91 

10-07-91 

10-10-91 

10-10-91 

10-11-91 

10-16-91 

10-16-91 

10-16-91 

10-16-91 

10-21-91 

10-21-91 

10-21-91 

10-24-91 

10-24-91 

10-28-91 

10-28-91 

Steven Brown, USWA v. Sunshine Mining Company 

Beco Construction Company, Inc. 

Carroll Frank Bluemel/South Texas Aggregates 

Gatliff Coal Company, Inc. 

JCAL Incorporated 

Air Products and Chemicals, Inc. 

Willie Williams, Jr. v. Jim Walter Resources 

Mack Energy Company 

J. Mike Plevich v. _Consolidation Coal Co. 

San Juan Coal Company 

Sec. Labor for Martin L. Richardson v. 

F.K.C. Incorporated 

Pigeon Branch Coal Company 

Lanham Coal Company 

Sec. Labor for Jimmie L. Callan v. S&S Material 

Mountain Coal Company 

Asamera Minerals (US) Inc. 

WEST 91-196-CM 

EAJ 91-1 

CENT 90-146-M 

KENT 89-242-R 

WEST 90-201-M 

PENN 91-1488-R 

SE 91-95-D 

WEVA 91-142 

WEVA 91-1993-D 

CENT 90-110 

WEST 91-143-DM 

WEVA 90-266 

KENT 89-186 

SE 92-1-DM 

WEST 90-262 

WEST 91-57-M 

ADMINISTRATIVE LAW JUDGE ORDERS 

09-30-91 

10-04-91 

10-07-91 

10-18-91 

Order relating to Master Docket No. 91-1, 

Contests of Respirable Dust Sample Alteration Citations 

see above - Plan and Schedule of Discovery 

see above - Order to Produce Documents 

Dotson & Rife Coal Co., et al. 

Pg. 1629 

Pg. 1634 

Pg. 1635 

Pg. 1641 

Pg. 1649 

Pg. 165 7 

Pg. 1665 

Pg. 1679 

Pg. 1687 

Pg. 1688 

Pg. 1707 

Pg. 17'09 

Pg. 1710 

Pg. 1714 

Pg. 1715 

Pg. 1725 

Pg. 1727 

Pg. 1729 

Pg. 1750 

Pg. 1762 

OCTOBER 1991 

Review was sranted in the following cases during the month of October: 

Peabody Coal Company v. Secretary of Labor, MSHA, Docket No. KENT 91-179-R, 

KENT 91-185-R. (Judge Melick, August 30, 1991) 

Secretary of Labor, MSHA v. U.S. Steel Mining Company, Docket No. WEVA 91-73. 

(Judge Koutras, September 16, 1991) 

Secretary of Labor, MSHA v. LJ's Coal Corporation, Docket No. VA 90-7. 

(Judge Weisberger, September 18, 1991) 

The following list of miners filed for review of the decision of Chief Judge 

Merlin issued on September 4 and 5, 1991. Review was granted on October 15. 

Larry Flynn, SE 91-538-R - Donald Case, WEVA 91-1614-R 

Everette Ballard, WEVA 91-1385-R 

Benny Johnson, KENT 91-934-R thru 955-R 

Brent Roberts, KENT 91-896-R 

Paul Cotton, KENT 91-897-R 

Steve Little, KENT 91-898-R 

Sydney Pie, KENT 91-992-R 

Robert Bennett, LAKE 91-478-R 

Sharell Clark, WEVA 91-1331-R 

James Matics, WEVA 91-1332-R 

Robert Persinger, WEVA 91-1333-R 

Jimmy Hayworth, WEVA 91-1525-R 

Reggie Philyaw, WEVA 91-1926-R 

James Jack, LAKE 91-503-R thru 529-R 

John S. Biby, LAKE 91-530-R thru 605-R 

Kimmie Noah, SE 91-544-R thru 655-R 

Sandra Eastham, WEVA 91-1414-R thru 1435-R 

Kevin Tustin, WEVA 91-1436-R thru 1493-R 

Daniel Serge, WEVA 91-1386-R, WEVA 91-1494-R thru 1509-R 

Steven Perkins? WEVA 91-1510-R thru 1524-R 

There were no cases filed where review was denied. 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 31, 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. Docket No. WEST 90-285-R 

UTAH POWER & LIGHT COMPANY, 

MINING DIVISION 

BEFORE: Backley, Doyle, Holen and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This review proceeding arises under the Federal Mine Safety and Health 

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

involves the validity of a withdrawal order issued by the Secretary of Labor 

to Utah Power & Light Company, Mining Division ("UP&L"), alleging that the 

limited visibility of operators of EIMCO 915 diesel scoops ("scoops") created 

an imminent danger. The imminent danger withdrawal order was issued by an 

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

("MSHA") under section 107(a) of the Mine Act, 30 U.S.C. § 817(a), at UP&L's 

Cottonwood Mine. 1 The withdrawal order did not charge UP&L with violation 

of any of the safety standards promulgated by the Secretary and no citations 

or orders were issued under section 104 of the Act, 30 U.S.C. § 814, in 

conjunction with the section 107(a) withdrawal order. 

1 Section 107(a) of the Mine Act provides, in pertinent part: 

If, upon any inspection or investigation of a coal 

or other mine which is subject to this [Act], an 

authorized representative of the Secretary finds that an 

imminent danger exists, such representative shall 

determine the extent of the area of such mine throughout 

which the danger exists, and issue an order requiring 

the operator of such mine to cause all persons, except 

those referred to in section [104(c)], to be withdrawn 

from, and to be prohibited from entering, such area 

until an authorized representative of the Secretary 

determines that such imminent danger and the conditions 

or practices which caused such imminent danger no longer 

exist. 

30 U.S.C. § 817(a). 

1617 
Following an expedited evidentiary hearing, Commission Administrative 

Law Judge Michael A. Lasher affirmed the section 107(a) withdrawal order. 

Utah Power and Light Co., 12 FMSHR.C 1706 (August 1990)(AIJ). The Commission 

granted UP&L's Petition for Discretionary Review challenging the judge's 

determination that an imminent danger existed. For the reasons that follow, 

we reverse the judge's decision. 

I. 

Factual and Procedural Background 

UP&L operates the Cottonwood Mine in Emery County, Utah. UP&L uses the 

scoops at issue in the main haulageways to haul material into and out of the 

mine and to move equipment around in the mine. The scoops2 weigh about 20 

tons each and are about 30 feet long, eight feet wide and six feet high. They 

travel at an average speed of five miles per hour with a top speed of seven 

miles per hour. When loaded with heavy material, such as gravel, they travel 

as slowly as one to two miles per hour. Tr. 251. The two scoops were 

purchased in 1985 and have been in almost continuous use, three shifts a day, 

since that time. Tr. 152-53. The operator's cab on each scoop is located on 

one side of the scoop rather than in.the center, and the operator sits 

sideways facing the opposite side of the scoop. Since their introduction into 

the mine, the scoops have been involved iμ about 15 accidents, none of which 

resulted in a lost time injury to a miner or required a report to be filed 

with MSHA under 30 C.F.R. Part 50 (reporting of accidents, injuries and 

illnesses). As discussed further below, UP&L does not dispute that scoop 

operators cannot directly see all areas around the scoop due to blind spots on 

the side of the scoop opposite the operators cab (the "offside"). 

A. Events preceding the issuance of the order 

On April 9, 1990, a parked Isuzu pickup truck ("pickup") used by Nick 

Manning was struck by a scoop. The pickup was parked in a haulage entry and 

was unoccupied at the time of the collision. On May 13, 1990, Steven 

Thornton, President of the UM.WA local, wrote to Randy Tatton, UP&L's safety 

director for the mine, concerning safety problems in the haulageways. The 

letter summarized the safety concerns of heavy equipment operators and 

suggested several improvements. Exh. A-6. UP&L responded with a letter dated 

May 16, 1990, that set forth changes being made to resolve the union's safety 

concerns. Exh. A-5. These changes included, for example, installing quartz 

halogen lights on the scoops, realigning the fenders on the scoops to improve 

visibility, and improving haulage operating procedures. On May 20, 1990, MSHA 

received a request for an inspection under section 103(g) of the Act. 3 The 

2 Al though UP&L uses two scoops at the mine, which are essentially the 

same, the MSHA inspector issued the order of withdrawal based on his examination 

of one of the scoops. 

3 Section 103(g) of the Mine Act provides, in pertinent part: 

Whenever a representative of the miners has 

reasonable grounds to believe that a violation of a 

1618 
section 103(g) complaint alleged that visibility limitations on the scoops 

created an imminent danger. 

On May 22, 1990, MSHA Inspector Fred Marietti was sent to investigate 

the complaint. Inspector Marietti determined that safe operation of the 

scoops depended upon the adoption of safe working procedures in the 

haulageways. He noted that traffic rules needed to be followed and other 

precautions needed to be taken to operate the scoops safety. He concluded by 

stating that "(a]t the time of this investigation, the problems addressed have 

been implemented or are being worked on." Exh. A- 7. He issued no citations, 

withdrawal orders or safeguards. 

B. Order of withdrawal 

Subsequently, MSHA Inspector Jerry Lemon was instructed by the MSHA 

District Manager to take a "second look" into the complaint. Tr. 29. 

Inspector Lemon inspected the mine on July 12, 1990, and issued the section 

107(a) order of withdrawal that is the subject of this proceeding, requiring 

UP&L to withdraw both scoops from the mine. The order states that "[s]afe 

operation of the EIMCO 915 diesel scoop .•• could not be done in that ... 

serious vis[i]bility problems existed ... 11 Exh. G-1. 

Inspector Lemon performed his inspection in two parts. First, he asked 

UP&L for permission to examine a scoop on the surface, where he performed a 

number of visibility tests. In one test a miner was placed four feet from the 

side of the scoop opposite the operator's cab and was asked to walk parallel 

to the scoop towards the radiator end of the scoop. Exh. G-1; 12 FMSHRC at 

1714. During this test, the scoop operator could not see this miner for a 

distance of approximately 24 feet as he walked parallel to the scoop. Id. 

The inspector also performed a number of tests underground. In one 

test, the scoop was parked in an offside turning position (as if making a left 

turn into a crosscut) and a pickup located in the crosscut was backed away 

mandatory heal th or safety standard exists, or an 

imminent danger exists, such representative shall have 

a right to obtain an immediate inspection by giving 

notice to the Secretary or his authorized representative 

of such violation or danger. Any such notice shall be 

reduced to writing, signed by the representative of the 

miners, and a copy shall be provided the operator or his 

agent no later than at the time of inspection, except 

that, upon the request of the person giving such notice, 

his name and the names of individual miners referred to 

therein shall not appear in such copy. Upon receipt of 

such notification, a special inspection shall be made as 

soon as possible to determine if such violation or 

danger exists in accordance with the provisions of this 

title. 

30 u.s.c. § 813(g). 

1619 
from the scoop. Exh. G-1; 12 .FMSHRC at 1715. The operator could not see the 

pickup during this test but could see the glare of the pickup's lights on the 

mine roof. Id. After performing these tests, Inspector Lemon issued the 

order of withdrawal later that day. The following day the inspector modified 

the order to describe accidents that the inspector believed were caused by the 

visibility limitations of the scoopa and to correct a portion of the original 

order. Exh. G-1. 

UP&L contested the order and an expedited hearing was held. on July 19, 

1990. On September 7, 1990, after the judge's decision was issued, the order 

was terminated when certain modifications were made to the scoops. 

In concluding that the visibility limitations associated with the scoops 

presented an imminent danger, the judge relied on the Commission's decision in 

Rochester & Pittsburgh Coal Company, 11 FMSHRC 2159 (November 1989). The 

judge first concluded that.an "emergency" situation is not a prerequisite to 

the existence of an imminent danger. 12 FMSHRC at 1722. Based on his reading 

of Rochester & Pittsburgh, the judge then evaluated the potential risk of the 

scoops causing serious physical harm at any time. Id. The judge credited 

Inspector Lemon's testimony that a miner could be killed or seriously injured 

if the condition was allow~d to continue.· 12 FMSHRC 1722-23. After rejecting 

the arguments made by UP&I,., the judge held that he could "find no basis for 

concluding that Inspector.Lemon abused his discretion or authority in the 

issuance of an imminent danger withdrawal order in this matter." 12 FMSHRC at 

1725. The judge then stated: 

It is concluded that the conditions observed by the 

Inspector and described in the record could reasonably have been 

expected to cause death or serious physical harm to a miner if 

normal mining operations were permitted to proceed, and that the 

use of the [scoops] with the severe visibility limitations 

described herein above created a significant potential of causing 

serious physical harm at any time. 

II. 

Disposition of Issues 

The issue in this case is whether the visibility limitations of the 

scoops created an imminent danger requiring their immediate removal from 

service. UP&L disputes that the danger presented by the visibility 

limitations of the scoops was imminent at the time the order of withdrawal was 

issued and argues that the alleged hazard was not so serious or imminent that 

immediate withdrawal of miners was required. 4 We hold that the Secretary 

4 UP&L also argues that Inspector Lemon's alleged hesitation and delay in 

issuing the imminent danger order supports its view that the order is not valid. 

The judge rejected UP&L's argument .. 12 FMSHRC at 1723-25. We agree with the 

judge that "[f]orcing a hasty decision may not always be consistent with either 

1620 
failed to prove that the visibility limitation presented a danger that was 

imminent. 

A. Requirement of imminence 

The word "imminent" is defined as "ready to take place: near at hand: 

impending ... : hanging threateningly over one's head: menacingly near." 

Webster's Tbird New International Dictionary (Unabridged) at 1130 (1986). The 

language of the Act and its legislative history make clear that Congress 

intended that there must be some degree of imminence to support a section 

107(a) order. 

The term "imminent danger" is defined in section 3(j) of the Act to mean 

"the existence of any condition or practice in a coal or other mine which 

could reasonably be expected to cause death or serious physical harm before 

such condition or practice can be abated." 30 U.S.C. § 802(j). This 

definition was not changed from the definition contained in the Coal Mine 

Health and Safety Act of 1969 30 u.s.c. § 801 et seq. (1976)(amended l977)(the 

"Coal Act 11 ). The Senate Report for the Coal Act states that an imminent 

danger is present when "the situation is so serious that the miners must be 

removed from the danger forthwith when the danger is discovered without 

waiting for any formal proceeding or notice." S. Rep. No. 411, 9lst Cong., 

1st Sess 89 (1969) reprinted in Senate Subcommittee on Labor, Committee on 

Labor and Public Welfare, 94th Cong., 1st Sess. Part 1 Le&islatiye History of 

the Fed@ral Coal Mine Health and Safety Act of 1969 at 215 (1975)("Coal Act 

Leds. Hist. 11 ) It further states that the "seriousness of the situation 

demands such immediate action" because "[d]elays, even of a few minutes, may 

be critical or disastrous." The Conference Report for the Coal Act states 

that imminent danger orders are concerned with 11 any condition or 

practice ... which may lead to sudden death or injury ;efore the danger can be 

abated." Coal Act Le&is. Hist. at 1599 (emphasis added). Finally, the Senate 

Report for the Mine Act states that imminent danger orders deal with 

"situations where there is an immediate danger of death or serious physical 

harm." 5 s. Rep. No. 181, 95th Cong., 1st Sess. 38 (1977) reprinted in 

Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2nd 

Sess., Le&islatiye History of the Federal Mine Safety and Health Act of 1977 

at 626 (1978)("Mine Act Le&is. Hist.")(emphasis added). Thus, the hazard to be 

protected against by the withdrawal order must be impending so as to require 

the immediate withdrawal of miners. 

The role of section lO?(a) orders in the statutory scheme of enforcement 

sound mine safety enforcement or justice." 12 FMSHRC at 1725. In any event, 

Inspector Lemon reasonably believed that the scoops were out of service during 

the time he was deciding what action to take. 

5 Several courts have rejected the arguments of mine operators that 

imminent dangers orders can be issued only for conditions that create an 

immediate danger of death or serious injury. See, e.g. Old Ben Coal Corp. v. 

IBMA, 523 F. 2d 25 at 32-33 (?th Cir. 1975). Nevertheless, the Senate Report 

makes clear that imminence is required. 

1621 
is based on a requirement of imminence. Imminent danger orders permit an 

inspector to remove miners immediately from a dangerous situation, without 

affording the operator the right of prior review, even where the mine operator 

did not create the danger and where the danger does not violate the Mine Act 

or the Secretary's regulations. This is an extraordinary power that is 

available only when the. "seriousness of the situation demands such immediate 

action." Coal Act I.egis. Hist. at 215. As a consequence, an inspector does 

not have the authority to issue a section 107(a) order in situations where the 

danger does not necessitate the immediate removal of miners. Thus, the 

inspector must determine whether the ~azardous condition presents a danger of 

death or serious injury that is imminent. Without considering the "percentage 

of probability that an accident will happen," the inspector must determine 

whether the condition presents an impending threat to life and limb. Mine Act 

Legis. Hist. at 626. Only by limiting section 107(a) withdrawal orders to 

such impending threats does the imminent danger provision assume its proper 

function under the Mine Act. 

If the imminent danger provisions of the Act are interpreted to include 

any hazard that has the potential to cause a serious accident at some future 

time, the distinction is lost between a hazard that creates an imminent danger 

and a violative condition that "is of s.uch nature as could significantly and 

substantially contribute to the cause and.effect" of a mine safety hazard. 

Section l04(d)(l); 30 U.S.C. § 814(d)(l). A violation is of a significant and 

substantial ("S&S") nature if "there exists a reasonable likelihood that the 

hazard.contributed to will result in an injury or illness of a reasonably 

serious nature." Cyent Division. National Gypsum Company, 3 FMSHRC 822, 825 

(April 1981). In that case, the Commission held that to be of an S&S nature, 

a cited condition "need not be so grave as to constitute an imminent danger.n 

3 FMSHRC at 828. 

In Rochester & Pittsburgh, the Commission referenced Congress's 

intention that the focus should be on an examination of the "potential of the 

risk to cause serious physical. harm at any time." 11 FMSHRC at 2164. The 

judge appeared to base his decision on his interpretation of the phrase "at 

any time,'' The Commission used the phrase "potential of the risk to cause 

injury" to make clear that the percentage of probability of an injury is not 

the focus of the inquiry. It appears that Judge Lasher interpreted the phrase 

"at any time" to mean "at any time in the future," thereby eliminating any 

requirement that the.danger be imminent or impending. The Commission used the 

phrase "at any time" in the sense of "at any moment." Where an injury is 

likely to occur at any moment, and an abatement period, even of a brief 

duration, would expose miners to risk of death or serious injury, the 

immediate withdrawal of miners is required. 

To support a finding of imminent danger, the inspector must find that 

the hazardous condition has a reasonable potential to cause death or serious 

injury within a short period of time. An inspector, albeit acting in good 

faith, abuses his discretion in the sense of making a decision that is not in 

accordance with law when he orders the immediate withdrawal of miners under 

section 107(a) in circumstances where there is not an imminent threat to 

1622 
miners. 6 

B. Analysis of the record 

A review of the record as a whole demonstrates that the Secretary failed 

to prove that the visibility limitation of the scoops presented a danger that 

was imminent. 

1. Visibility measJU.'einents 

UP&L does not dispute the results of the visibility tests, but contends 

that the tests do not demonstrate the presence of an imminent danger. 

Substantial evidence supports the judge's finding that, during the surface 

test, the scoop operator could not see a miner who was walking parallel to and 

four feet from the side of the scoop opposite the operator's cab, for a 

distance of approximately 24 feet. 12 FMSHR.C at 1714. Substantial evidence 

also supports the judge's finding that, during an underground test, while the 

scoop was parked in an off-side turning position, the operator of the scoop 

could not see a pickup as it backed away from the scoop. 12 FMSHRC at 1715. 

The judge relied on these tests, along with the history of prior 

accidents, in concluding that an imminent danger existed. While he noted that 

UP&L's operating practices and procedures were designed to address the hazard 

associated with the scoop's visibility limitations, he concluded that they 

"did not change the testing and measuring results." 12 FMSHRC at 1719. UP&L 

argues that because these tests did not take actual mining conditions or 

practices into account, the tests were incapable of proving that the scoops 

presented an imminent danger. UP&L contends that no imminent danger existed 

because scoop operators could identify the presence of miners and other 

vehicles during actual mining operations and could mitigate the danger through 

the use of safe operating procedures. 

The tests performed by the inspector do not, by themselves, establish 

~he existence of an imminent danger because they did not take into account 

actual working conditions. For example, the underground test described above 

did not duplicate actual operating conditions. The scoop was stationary 

during the entire test and was parked so that the blind spot was in the 

6 Abuse of discretion may be broadly defined to include errors of law, 

See generally, Butz v. Glover Liyestock Commission Co., 411 U.S. 182, 185-86 

(1973); NL Industries. Inc. v. Department of Transportation, 901F.2d141, 144 

(D.C. Cir. 1990); U.S. v. U.S. Currency. in the Amount of $103.387.27, 863 F.2d 

555, 561 (7th Cir. 1988); Bothyo v. Moyer, 772 F.2d 353, 355 (7th Cir. 

1985)("abuse of discretion may be found only if there is no evidence to support 

the decision or if the decision is based on an improper understanding of the 

law"); Bosma v. United States Dept. of Agriculture, 754 F.2d 804, 810 (9th Cir. 

1984) (the choice of sanction is largely within an agency's discretion; the 

reviewing court may overturn it only if it is unwarranted in law or unjustified 

in fact); Taylor y. United States Pa:i;ole Commission, 734 F.2d 1152, 1155 (6th 

Cir. 1984)("'Abuse of discretion' is a phrase which sounds worse than it really 

is."); Beck v. Wings Field, 122 F.2d 114 (3rd Cir. 1941). 

1623 
direction of the crosscut. Exh. G-5. As a result, the pickup was not visible 

for a considerable distance. In an operating situation, however, the scoop 

would complete the turn and the crosscut would become visible because it would 

no longer be in the operator's blind spot. Tr. 189. An analysis of the 

operating procedures used by scoop operators is therefore required. 

2. Haulaae operatin& procedures 

UP&L's argument is that at the time the order was issued, no imminent 

danger existed because physical conditions and operating procedures in the 

haulageways greatly reduced any visibility problems presented by the scoops. 

In particular, UP&L relies on the fact that it strengthened its haulage safety 

procedures in response to the UMWA's letter of May 13, 1990 and Inspector 

Marietti's investigation of May 22 . .ii§. Exhs. A-5, A-6, A-7 & A-8. It is 

undisputed that UP&L made a number of improvements in the operating procedures 

prior to Inspector Lemon's July 12, 1990 inspection. In May and June 1990, 

UP&L: (1) installed brighter lighting systems on scoops (quartz halogen 

lights), (2) modified the fenders, cab and engine cowling on scoops to improve 

visibility, (3) required pickups and other small vehicles to use other 

roadway• where feasible, (4) installed strobe lights on pickups to be used 

when parked, 7 (5) required.all piclaips and other small vehicles to yield 

right·of-way to scoops by pulling into crosscuts whenever a scoop approaches, 

(6) required all vehicles, especially pickups, to maintain a safe rate of 

speed, (7) required the flashing of lights and the sounding of horns at all 

corners and intersections, (8) required that pickups be ·parked in crosscuts 

and prohibited the parking of vehicles in the haulage entries, and (9) 

eliminated the visibility limitations at one of the most severe dips in the 

mine by cutting back the roof. Exh. A-8. These procedures were communicated 

to all affected miners. Tr. 172-73. 

Scoop operators, aware of the scoop's visibility limitations, testified 

about the operating procedures they use to reduce the risk of collisions and 

accidents. Tr. 235-36. They stated that the improved haulage procedures 

introduced in May and June 1990 reduced the risk of accidents and collisions, 

For example, pickups had frequently been parked in the haulage entries or at 

!:he intersections of crosscuts and entries where they could not be seen. As a 

result, several collisions had occurred. Under the procedures in effect at 

the time of the withdrawal order, parking in such locations was prohibited 

and, more importantly, strobe lights or flashers were used on the pickups. 

Tr. 125-26, The operators testified that, as a result of the strobe light 

policy, they are now aware of the presence of such vehicles and can stop the 

scoop, get out and move the pickup if it is in the way. Tr. 126; 131-33; 232-

33; 243; 279. They may not always be able to see the parked pickup from the 

1 At the time of Lemon's inspection, strobe lights had been installed 

on about 75% of pickups. Pickup drivers were required to use yellow flashers 

until strobe lights were installed. The strobe lights, similar to the blue 

lights on the top of police cars, are permanently mounted on top of the pickups' 

cabs. The yellow flashers, similar to yellow flashers used on road construction 

barricades, are placed on top of the cab by the driver using the attached suction 

cup. 

1624 
cab of the scoop, but the flashing light alerts them to its presence so that 

they can take preventive action. Id. They stated that they can detect a 

moving pickup from the glare of its lights. Tr. 231-32; 272. 

Scoop operators testified further that the new halogen lights made it 

easier to see and be seen. Tr. 230-32, 285-87. Scoop operators flash their 

lights and blow their air horns when making turns and at dips in the entry. 

Tr. 236-37. They also testified that pedestrians are rarely in the 

haulageways where scoops travel and that such pedestrians are easily spotted 

because of the cap light and reflective tape on their hard hat, and the 

reflective tape on their clothing. Tr. 252~56; 273; 280; 285-86; 296; 309. 

The scoop operators acknowledged that visibility from a scoop is limited, but 

testified that that visibility is often restricted when operating mining 

equipment. They are of the opinion that the scoops can be operated without 

incident as long as safe operating procedures are followed. Tr. 135-36; 228-

29; 231; 243-44; 274-75; 279-80. 

Inspector Lemon was aware of UP&L's work rules but he did not believe 

that those work rules solved the visibility problems. Tr. 385. He went on to 

state that "[t]hey were adding safety precautions to take, but they were not 

solving this [visibility] problem-.·" Tr. 386. Judge Lasher also recognized 

that these changes had been made, but concluded that these changes "did not 

change the testing and measuring results ... nor the opinions of various 

credible witnesses ... as to the visibility problem." 12 FMSHRC at 1719. In 

essence, both the inspector and the judge determined that no matter what work 

rules were adopted or how strictly they were enforced, the visibility problems 

of the scoops created an imminent danger. 

The inspector testified that he was concerned with three situations in 

which there might be an injury-producing accident: (1) when the scoop is 

making an offside turn, (2) when a dip in the haulageway limits the scoop 

operator's line of vision, and (3) when pedestrians are present. The issue in 

this case is not whether the visibility limitations of the scoops presented 

some degree of hazard in these situations but whether the scoops created an 

imminent danger. 

As noted above, when a scoop operator makes· an offside turn, his 

visibility is reduced during that turn. The scoop operators testified that 

they were aware of this limitation and regularly take steps to reduce the 

hazard. Tr. 230-31. Some of these steps were included in the new operating 

nrocedures. Operators regularly slow down, sound their air horns and flash 

their lights when turning. Tr. 188; 236-37. They look for light reflections 

on the roof and ribs to detect the presence of vehicles. Tr. 231-32. 

, if they are uncertain as to what may be in the area, they stop, get 

out of the scoop and look around before turning. Tr. 121-22; 231. 

When scoop operators and operators of pickups and other small vehicles 

approach a dip in the mine, their visibility is reduced because they cannot 

see as far down the entry. UP&L instituted a number of changes to reduce this 

hazard. First, it eliminated the line of sight problem at one of the biggest 

dips by cutting back the roof in the dip. Second, operators of vehicles sound 

their horns and flash their lights before entering a dip. Tr. 236. Third, 

1625 
pickups and other small vehicles use alternate roadways rather than the main 

haulageway when traveling in the mine. Tr. 161-62. Finally, scoops are given 

the right of way and pickups are to pull into a crosscut whenever they see an 

approaching scoop. Tr. 163; 230; 253. The brighter halogen lights, which are 

unique to scoops, alert pickup drivers that a scoop is approaching. While 

these practices do not eliminate the hazard, they reduce significantly the 

danger associated with dips. 

There has never been a scoop acci.dent in this mine involving 

pedestrians. There are very few pedestrians in the main haulageways in which 

the scoops travel. Tr. 253; 280. Pedestrians are most likely to be 

encountered when repairs are being made along the haulageway and at the places 

where the scoops are delivering supplies. Tr. 253; 280. Flashing lights are 

set up in areas where repair work is being done. Tr. 280. Miners also wear 

cap lights and reflective tape on their hard hats and on their clothing. 

Tr. 252, 284; 286. At locations where supplies are to be delivered, a miner 

on the ground often directs the scoop operator or, if no one is available, the 

scoop operator gets out and looks around before proceeding into the area. 

Tr. 122; 245-46. The scoop operators testified that they have no difficulty 

detecting the presence of pedestriat_li;i because of the reflective tape and cap 

lights. Tr. 124; 252; 255; 273; 288-90. A scoop operator testified that 

miners on foot generally make their presence known to machine operators by 

flashing their cap lights at the operators. Tr. 308-09. 

3. Accident history 

It is not disputed that there have been approximately 15 accidents 

involving the scoops in the five years that they have been used. None of 

these accidents resulted in an occupational injury as that term is defined in 

30 C.F.R. § 50.2(e); 8 one accident required the application of first aid, 

30 C.F.R. § 50.2(g). All of these accidents occurred before UP&L changed its 

haulage operating procedures. Eight of the 14 accidents discussed in the 

record involved scoops hitting unoccupied pickups that were parked in a 

haulageway, a crosscut, or in an intersection. The scoop operators testified 

that they cannot always see a pickup when it is parked offside the scoop but 

that they can determine its location when it is equipped with a strobe light 

and can move it if necessary. Tr. 126; 131-33; 232-33; 243; 279. 

Judge Lasher emphasized in his decision an accident involving Robert 

Phelps and Larry Hunsaker. 12 FMSHRC at 1716. Scoop operator Phelps was 

t=aveling along the main haulageway with a load of gravel in his bucket. 

Tr. 100. He had the bucket in a raised position in front of him. Hunsaker 

was driving a pickup in the opposite direction. Tr. 100-01; 111. They 

collided head on at a dip in the haulageway. Id. Phelps said he could not 

see very well over the raised, fully loaded bucket. Tr. 101. The bucket hit 

the cab of the pickup. Tr. 102; 111. Hunsaker did not see the scoop because 

8 30 C.F.R. § 50.2(e) defines "occupational injury" as "any injury to 

a miner which occurs at a mine for which medical treatment is administered, or 

which results in death or loss of consciousness, inability to perform all job 

duties on any day after an injury .... " 

1626 
he was reaching down for his radio. Tr. 103. He testified that he could not 

see the lights of the scoop because they were behind the bucket. Tr. 113; 

116. Phelps stated that he saw the pickup before he entered the dip. Tr. 

104. Hunsaker testified that if Phelps had been driving the scoop so that the 

bucket was at the back and the radiator was at the front, Hunsaker would "have 

had a lot better chance of seeing the [scoop's] headlights." Tr. 118. 

The record discloses that at least four factors contributed to this 

accident: the dip in the roadway; the fact that Phelps was driving the scoop 

with a loaded bucket in a raised position in front of him, blocking bis vision 

and obscuring the scoop's lights; the fact that Hunsaker reached down for his 

radio; and the speed of the pickup. Phelps was unable to see the pickup 

because the position of his bucket restricted his vision. Two scoop operators 

testified that they drive the scoop with the radiator in the front and the 

bucket in the back when the bucket is loaded with bulky materials. 

Tr. 235; 298. The measures UP&L has taken since this accident, as discussed 

above, are aimed at eliminating the risk of similar accidents. 

The evidence demonstrates that haulage operating procedures used at the 

time the imminent danger order was,;i.ssued significantly reduced the risk of 

accidents. Scoop operators testified that most of these accidents would not 

have occurred if these procedures had been in place. See, e.g., Tr. 237-238. 

The history of accidents provides little support for the imminent danger 

finding. 

III. 

Conclusions 

The evidence of record fails to establish that the scoops presented a 

danger to miners that posed an imminent or impending threat to their safety. 

The withdrawal of miners under section 107(a) is authorized only where the 

danger is imminent. Thus, we conclude that MSHA issued a withdrawal order 

under section 107(a) under circumstances where an imminent.threat to the 

safety and health of miners was not present. 9 

We reaffirm our holding in Rochester & Pittsburgh that an inspector must 

have considerable discretion in determining whether an imminent danger exists. 

This is because an inspector must act immediately to eliminate conditions that 

create an imminent danger. We also reiterate here that the hazardous 

condition or practice creating an imminent danger need not be restricted to a 

threat that is in the nature of an emergency, and that section 107(a) 

withdrawal orders are "not limited to just disastrous type accidents. 11 Coal 

9 We note that the inspector in this case was not limited to the 

provisions of section 107(a) in addressing hazards presented by the scoops. For 

example, he might have utilized the safeguard provision of section 314(b) of the 

Act, 30 U.S.C. § 874(b), which was designed to address mine-specific 

transportation hazards, to tailor a notice to provide safeguard. If the operator 

failed to comply with the safeguard, he could have issued a citation or order 

under section 104 with an appropriate abatement time. 

1627 
Act Legis. Hist. at 1599. 

For the foregoing reasons, we reverse the judge's decision holding that 

the two EIMCO scoops presented an imminent danger to miners and we vacate the 

section 107(a) order of withdrawal. 10 

Distribution: 

Thomas C. Means, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, DC 20004 

Colleen A. Geraghty, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

Mary Lu Jordan, Esq. 

United Mine Workers of America 

900 15th Street, N.W. 

Washington, DC 20005 

oyceA: Doyle, Commissi;her 

&~~ 

L. Clair Nelson, Commissioner 

Administrative Law Judge Michael A. Lasher, Jr. 

Federal Mine Safety & Health Review Commission 

1244 Speer Blvd., Room 280 

Denver, CO 80204 

10 Chairman Ford did not participate in the consideration or disposition 

of this case. 

1628 


FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, co 80204 OCT 7 1991 

STEVEN BROWN for UNITED 

STEELWORKERS OF AMERICA, 

District 38, Subdistrict 7, 

Applicants 

v. 

SUNSHINE MINING COMPANY, 

Respondent 

: 

. . 

. . 

. . 

DECISION 

Before: Judge Morris 

COMPENSATION PROCEEDING 

Docket No. WEST 91-196-CM 

Sunshine Mine 

Complainants seek relief· under the Federal Mine Safety and 

Health Act of 1977, 3,0 u.s·.c. § 801 et.~ (the "Act"). 

The complaint states as follows: 

Contract miners at the Kellogg operation are 

paid on an agreed to incentive basis in relation to the work done. This rate usually exceeds the hourly rate of a grade 7 miner. In 

completing the required MSHA safety training, 

these miners are deprived of the ogportunity 

to earn contract rate. The employer insists 

that they are only required to pay these miners the days pay rate of grade 7 for time 

spent in MSHA safety training. The Union does 

not agree. Since the normal rate of pay for 

the miners in question is based on their contract, they should receive compensation at 

that rate when training. 

In support of their position Complainants submitted (Exhibit 

B) 0 an employment agreement between the United Steel Workers of 

America and Sunshine. 

Complainants state that "Gypo" miners at Sunshine are paid 

by a complicated incentive system. Basically the system is based 

on the amount of work done by the individual miner. "Gypo miners 

are disciplined by the Company for failure to meet what the Company considers the reasonable incentive production level." 

The crux of Complainants' case is that the normal rate of 

pay for a 11Gypo" miner is his incentive rate of pay. Therefore, 

the miners should be paid at the incentive rate when undergoing 

mandatory health and safety training. 

1629 
In addition to the captioned case, Complainants have also 

filed a grievance under the terms of their employment contract 

with Sunshine. 

In support of their position, Complainants further rely on 

Section 115(b) 1 of the Mine Act as well as 30 C.F.R. Part 48, 2 

relating to the training and retraining of miners. 

1 The cited portion of the Act reads as follows: 

"(b) Any health and safety training provided 

under subsection (a}· shall be provided during 

normal working hours. Miners shall be paid at 

their norrna 1 rate of compensation while they 

take such training, and new miners shal-1 be 

paid at their starting wage rate when they 

take the new miner training. If such training 

shall be given at a location other than the normal place of work, miners shall also be compensated for the additional costs they may incur 

in attending such training sessions. 

2 Complainants rely on the following regulations: 

Training shall be conducted during normal working hours~ miners attending such training shall receive the rate of pay as provided in 48.2(d) (Definition of normal working hours> of this subpart A& 

30 C.F.R. § 48.2(d) 

(d) 11Normal working hours" means a period of 

time during which a miner is otherwise scheduled 

to work. This definition does not preclude scheduling training classes on the sixth or seventh 

working day if such a work schedule has been established for a sufficient period of time to be 

accepted as the operator's common practice. Miners shall be paid at a rate of pay which shall 

correspond to the rate of pay they would have 

received had they been performing their normal 

work tasks. 

1630 
Sunshine asserts miners are paid their normal rate of pay 

for mandatory health and safety training. The operator claims no 

incentive pay is earned or due for time spent in such training. 

Specifically, Sunshine claims there is only one rate of pay 

which is the rate set by the labor management agreement. The 

agreement states as follows: 

ARTICLE IV 

Classification and Rates of Pay 

4.1 All job classifications of work coming 

under the jurisdiction of the Union and the 

rates of pay applicable thereto shall be 

set forth in schedule "A" which is attached 

hereto and by reference made a part hereof. 

The said sbhedule "A" shall set forth all 

classifications coming under the terms of 

this Agreement and explains other forms of 

compensation such as profit sharing and common stock distribution. (emphasis added). 

Schedule "A" to the agreement states: 

The "wage rates" for classifications of employees represented by the United Steelworkers of America at the Kellogg Operations will 

be the rates shown on the Wage Table. (emphasis added)o 

Sunshine further relies on the Grievance and Arbitration 

portion of collective bargaining agreement which provides as 

follows: 

ARTICLE XV 

Grievance and Arbitration 

Any question or dispute concerning compl 

ance by the Company withu or interpretation or 

application of this Agreement, memoranda or supplemental agreements concerning wages, hours 

and other terms and conditions of employment, 

shall be treated as a claimed grievance in the 

sequence outlined as grievance procedure until 

settled. Should an agreed settlement be lacking 

1631 
at the final stage of the grievance procedure, 

said claimed grievance may then be referred by 

the grievant's representative to arbitration. 

The arbitrator's decisions made within the 

scope of the submission and authority of the 

arbitrator shall be final and binding on all 

parties. 

Inasmuch as no issue of fact was involved, the Judge 

requested the parties to submit authorities in support of their 

positions. After review, the Judge indicated he would enter a 

decision in the matter. 

Discussion 

There are no MSHA enforcement documents involved in this 

case. Further, I am unable to find. any portion of the Mine Act 

that vests jurisdiction in the Commission to determine the issues 

presented here. 

Further, it appears the Union seems to have a determination 

of what constitutes the "normal rate of compensation" under the 

collective bargaining agreement. 

The Union's claim is over "wages, hours and other terms and 

conditions of employment." Under those circumstances, the 

parties must honor the arbitration provisions. Such provisions 

will be enforced by the courts. Sams v. United Food & Commercial 

Workers Union 835 F.2d 848 (11th Cir. 1988); Hillard Vo Dobelman, 

774 Fo2d 886 (8th Ciro 1985)0 

The Judge raised the issue of the Commission's jurisdiction 

and Complainants state they don~t know how the issue arrived 

before the Commissiono In particular, Complainants state they 

filed a complaint with the MSHA Field Office in Coeur d'Alene, 

Idahoo 

Complainants position may be well takeno Section 48.32 outlines an appeals procedure from a decision by MSHA's District 

Managero 

Since the Mine Act fails to vest jurisdiction in the Commission v this case is DISMISSED. 

Law Judge 

1632 
Distribution: 

Mr. Steve Brown, Staff Representative, Uni.tea Steelworkers of 

America, Post Office Box 726, Kellogg, ID 83837 (Certified Mail) 

Fred M. Gibler, Esq., EVANS, KEANE, KOONTZ, BOYD, SIMKO & RIPLEY, 

Post Office Box 659, Kellogg, ID 83837 (Certified Mail) 

sh 

1633 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

OCT 7 1991 

BECO CONSTRUCTION CO., INC., 

Contestant 

EQUAL ACCESS TO JUSTICE ACT 

Docket No. EAJ 91-1 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

DECISION APPROVING SETTLEMENT 

Before: Judge Morris 

This case is an application under the Equal Access Justice 

Actu 5 u.s.c. § 504 (1988) as implemented by Commission Rules at 

29 C.F.R. Part 2704. 

This matter arises from Beco Construction Co., Inc. Docket 

Nos. WEST 91-25-RM and WEST 91-26-RM. 

Prior to a hearing, the parties reached an amicable settlemento 

In view the settlement between the partiesv the caption 

case should be and is hereby DISMISSEDc 

Law Judge 

Distribution~ 

Merrily Munther, Esq., PENLAND & MUNTHER, Jefferson Place, Post 

Office Box 199, Boise, Idaho 83701 (Certified Mail) 

Rochelle Kleinberg, Esq., Office of the Solicitor, U.S. Department of Labor, 1111 Third Avenue, Suite 945, Seattle, Washington 

98101 {Certified Mail) 

sh 

1634 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 1 0 1991 

SECRETARY OF I;ABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CARROLL FRANK BLUEMEL, EMPLOYED 

BY SOUTH TEXAS AGGREGATES, 

INCORPORATED, 

Respondent 

DECISION 

Docket No. CENT 90-146-M 

A. C. No. 41-02976-05526-A 

Helotes Mine 

Appearances: J. Philip Smith, Esq. / Arlington, 

VA, for Petitioner; 

Before: 

Mr. Carl Strating, San Antonio, TX, 

for Respondent. 

Judge Fauver 

This is a petition for a civil penalty under § llO(c) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et 

seq., charging Carroll Frank Bluemel, as an agent of a corporate 

mine operator, with knowingly authorizing, ordering or carrying out 

a violation by the mine operator. 1 

Having considered the hearing evidence and the record as a 

whole, I find that a preponderance of the substantial, reliable, 

and probative evidence establishes the following Findings of Fact 

1 Section llO(c) of the Act provides~ 

Whenever a corporate operator violates a mandatory heal th 

or safety standard or knowingly violates or fails or 

refuses to comply with any order issued under this Act or 

any order incorporated in a final decision issued under 

this Act, except an order incorporated in a decision 

issued under subsection (a) or section 105(c), any 

director, officer, or agent of such corporation who 

knowingly authorized, ordered, or carried out such 

violation, failure, or refusal shall be subject to the 

same civil penalties, fines, and imprisonment that may be 

imposed upon a person under subsections (a) and (d). 

1635 
and further findings in the Discussion below: 

FINDINGS OF FACT 

1. South Texas Aggregates, Inc., a corporation, operates an 

open pit mine, known as Helotes Mine, where it produces limestone 

for use and sales substantially affecting interstate commerce. 

December, 1988, Fire 

2. On December 14, 1988, Gary Tucker drove a 275 B Michigan 

front loader to the south Pit to load haulage trucks. On one load, 

as he started to hoist the bucket, he noticed a bright glow 

reflecting in his windshield and heard a swooshing sound. He 

turned and saw flames erupting from the engine compartment. He 

opened the left door of the operator's compartment, but flames 

immediately enveloped the doorway. He shut the door and tried the 

right door. There were flames on the right side, too, but he 

pushed the door open and start.ed to .. exit. As he was trying to get 

out, the door swung· back and struck him, but he grabbed the 

handrail, pushed himself out and jumped about 7 1/2 feet to the 

rocky floor of the quarry. He broke both ankles, and lay near the 

flaming vehicle, unable to escape farther. Someone saw his 

predicament, and helped him get away from the fire and a possible 

fuel tank explosion. 

3. The fire damage was so extensive that the MSHA accident 

investigators could not determine the precise cause of the fire, 

"except that there was an unplanned release of hydraulic oil in the 

engine compartment due to damaged and leaking hydraulic lines" 

(Exhibit G-8). . 

4o On December 20v 1988, MSHA issued Citation No~ 3278307, 

charging South Texas Aggregates, Inc. u with a violation of 30 

c.F.R. § 56.14100(c), 2 as follows~ 

Excessive hydraulic (sic] leaks due to 

chaffing [sic] high pressure, (2500 psi} lines 

in the engine compartment of the 275B Michigan 

front loader and the subsequent rupture of one 

of these lines caused the unit to explode in 

2 Section 56.14100(c) provides: 

When defects make continued operation hazardous to 

persons, the ·defective items including self-propelled 

mobile equipment shall be taken out of service and placed 

in a designated area posted for that purpose, or a tag or 

other effective method of marking the defective items 

shall be used to prohibit further use until the defects 

are corrected. 

1636 
flames on December 14th, 1988. Flames rapidly engulfed the operator's cab due in part to 

missing protective panels. The operator jumped 7 1/2 feed to_ escape the flames 

breaking both ankles. The hydraulic [sic] 

leaks had been reported repeatedly on pre- shift inspection reports. This is an 

unwarrantable failure. 

5. The citation was served on Respondent, Frank Bluemel, as 

mine superintendent. 

Inspection on January 5. 1989 

6. MSHA Inspector James .s. Smiser inspected the mine on 

January 5, 1989, and found safety defects in a Hough 560 front-end 

loader, which was operating in the pit. He issued § 104 (d} (l} 

Order No. 3063887, charging a violation of 30 C.F.R. § 56.l400(c). 

The order, as modified, alle~~s the following condition: , 

Defects on the Hough 560·front end loader were 

not corrected prior to continued operation 

which were hazardous to persons. The 

equipment was taken out of service for repairs 

to be completed but put back into service 

prior to completion. Defects are: Leaks in 

Hydraulic system, leaks in bucket cylinder- right side, leak in steering cylinder, hydraulic tank leaking, oil filter leaking, fuel system leak, brake fluid storage tank 

both left and right rear wheel cylinders 

leaking, inspection plates missing, both left 

and right hoist cylinder pressure hoses rubbed 

threw [sic] to inside metal covering, 

fuel/stop linkage disabled which required 

operator to dismount loader, walk to opposite 

side of machine and manually cut off engine. 

7o Shortly after the fire on December 14u 1988, Respondent Bluemel had taken the Hough 560 out of service to have extensive 

repairs madev including the brakes, back-up alarm, fuel-linkage stopping mechanism, and hydraulic lines. 

8 o As of January 5, 1989, some of the repairs had been made, 

but repair work was. far from complete. on that date, pit foreman 

Billy Tucker told Respondent Bluemel that the "shovel" operating in 

the pit had broken down, and asked for permission to use the Hough 560 loader while the shovel was being repaired. Bluemel asked 

Tucker whether the brakes and back-up alarm had been repaired, and 

Tucker said, "Yes." Bluemel authorized him to use the Hough loader. At that time, the loader was still in the repair shop, and 

Bluemel knew or had reason to know that the fuel-linkage stopping 
mechanism was not working and the machine had a number of hydraulic 

leaks. 

9. Before he authorized Tucker to use the Hough 560 loader, 

Bluemel did not ask the mechanic or anyone else to troubleshoot the 

machine to be sure that necessary repairs had been made on the 

fuel-linkage stopping mechanism and the hydraulic system. 

10. Citation No. 3278307 and Order No. 3063887 were the bases 

of § llO(c) charges against corporate officers in Secretary of 

Labor v. Strating and Coleman. 13 FMSHRC 425,430(1991). Judge 

Melick dismissed the charges for insufficient proof. 

DISCUSSION WITH FUBTHBR FINDINGS 

The Commission has defined the term "knowingly," as used in 

§ llO{c) of the Act, as follows: 

"Knowingly", as usedin the Act, does not have 

any meaning, of bad faith or evil purpose or 

criminal intent. Its meaning is rather that 

used in contract law, where it means knowing 

or having reason to know. A person has reason 

to know when he has such information as would 

lead a person exercising reasonable care to 

acquire knowledge of the fact in question or 

to infer its existence.... We believe this 

interpretation is consistent with both the 

statutory language and the remedial intent of 

the Coal Act. If a person in a position to 

protect employee safety and health fails to 

act on the basis of information that gives him 

knowledge or reason to know of the existence 

of a violative condition, he has acted 

knowingly and in a manner contrary to the 

remedial nature of the statute. [Kenny 

Richardson v. Secretary of Labor. 3 FMSHRC s, 

16 (1981), 689 F.2d 632 (6th Ciro 1982), cert. 

denied, 461 Uo So 928 (1983)0] 

Inspector Smiser testified that he alleged oil "leaks" in 

Order Noo 3063887u rather than hazardous "accumulations," because 

he observed fresh pools of oil in locations where oil would not be 

expected unless there was a leak. On this basis, he testified that 

the oil he observed.on the bucket cylinder, the steering cylinder, 

the oil filter, and the rear wheel cylinders was due to leaks and 

not to possible spillage in filling tanks. He acknowledged that 

the oil he observed on the hydraulic oil tank and the petroleum 

fluid he observed on the brake fluid storage tank may have been due 

to spillage in filling the tanks. He observed diesel fuel dripping 

from the rear of the equipment, but acknowledged that, since a 

source of a fuel leak could not be found after issuance of his 

1638 
order, the dripping fuel may have been due to normal overflow after 

filling the fuel tank. 

Oil leaks presented two main hazards~ First, they indicated 

a risk of leaks that could ~urn into sprays of misting oil which 

could be ignited into a fire·: Secondly, they created accumulations 

sufficient to propagate a fire or noxious smoke. Substantial 

accumulations of petroleum fluids, e. g., lubrication oil, 

hydraulic oil, brake fluid and transmission fluid, sufficient to 

propagate a fire or noxious smoke are hazardous conditions within 

the meaning of§ 56~14100(c). · 

I credit the inspector's ;testimony,_ and find that there werer 

a number of hazardous hydraulic leaks that required repair before 

the machine could be operated under§ 56.14100(c). 

The defect in the fuel-linkage stopping mechanism was itself 

a safety hazard that required repair before the machine could be 

operated under § 56.l:4100(c): This device, known as a "kill 

switch," is in the operator's compartment and is used to stop the 

engine in an emergency. This could save the operator's life or 

prevent crippling burns or injury from fire or smoke inhalation. 

For example, if a hydraulic line ruptured, and ignited into fire, 

unless the "kill switch" was used, the engine would keep pumping 

hydraulic oil to feed the fire, and the external fan would keep 

blowing across the engine, to intensify the fire into a likely 

inferno threatening the operator's life, including the possibility 

of a fuel tank explosion. Bluemel knew that the"kill switch" was 

defective when he authorized Tucker to use the Hough loader. 

I find that Respondent knowingly authorized the violation of 

56.14100(c) alleged in Order No. 306~887. 

The violation was due to aggravated conduct beyond ordinary 

negligence because Bluemel had been put on notice of the danger of 

hydraulic leaks and the importance of an operable "kill switch." 

It was therefore an unwarrantable violation. The violation 

presented a "significant and substantial" risk of igniting or 

propagating a hydraulic oil fire with serious injury to the 

equipment operator" It was therefore an S&S violation within the 

meaning of § 104(d) (1) of the Acto 

Considering the civil penalty assessments previously assessed 

against the corporation ($700) and the pit foreman, Billy Tucker 

($400) / for their part in the ·violation alleged in Order No. 

3063887, and the criteria for a civil penalty in § llO(i) of the 

Act, I find that a civil penalty of $500 is appropriate for the 

violation found in this case. 

1639 
CONCLUSIONS OF LAW 

L 1. The judge has jurisdiction in this proceeding. 

2. Respondent, Carroll Frank Bluemel, knowingly authorized 

the violation of 30 C.F.R~~ § 56.14100(c) alleged in Order No. 

3063887. 

ORDER 

Respondent, Carroll Frank Bluemel, shall pay to the Secretary 

of Labor a civil penalty of $500 within 30 days of the date of this 

decision. 

Distribution: 

{Jift~ --:::r-0vu,veri. William Fauver 

Administrative Law Judge 

J. Philip Smith, Esq., Office of the Solicitor, u. s. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

Mr. Carl Strating, 8926 Wexford, San Antonio, Texas 

(Certified Mail) 

/fas 

1640 

78217 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 10 1991 

GATLIFF COAL COMPANY, INC., CONTEST PROCEEDINGS 

Contestant 

v. Docket No. KENT 89-242-R 

Citation No. 3178703; 8/3/89 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH Docket No. KENT 89-243-R 

ADMINISTRATION (MSHA), Citation No. 3178704; 8/3/89 

Respondent 

Docket No. KENT 89-244-R 

: Citation No. 3178706; 8/3/89 

1641 

Docket No. KENT 89-245-R 

Citation No. 3178707; 8/3/89 

Docket No. KENT 89-246-R 

Citation No. 3178708; 8/3/89 

Docket No. KENT 89-247-R 

Citation No. 3178709; 8/3/89 

Docket No. KENT 89-248-R 

Citation No. 3178710; 8/3/89 

Docket No. KENT 89-249-R 

Citation No. 3178711; 8/3/89 

Docket No. KENT 89-250-R 

Citation No. 317B712; 8/3/89 

Docket No. KENT 89-251-R 

Citation No. 3178713; 8/3/89 

Docket No. KENT 89-252-R 

Citation No. 3178714; 8/3/89 

Gatliff No. 1 Mine 

Mine ID No. 15-04322 
SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GATLIFF COAL COMPANY, INC., 

Respondent 

Before: Judge Melick 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 90-100 

A.C. No. 15-04322-30530 

Docket No. KENT 90-215 

A.C. No. 15-04322-30531 

Gatliff No. 1 Mine 

DECISION 

These cases are before me upon remand by the Commission on 

September 25, 1991, following a determination that a violation of 

the standard at 30 C.F.R. § 77.1701 was indeed committed by the 

Gatliff Coal Company, Inc., (Gatliff). In particular, the matter 

has been remanded for resolution of "any remaining issues, 

including whether the violation resulted from the operator's 

unwarrantable failure, whether it was significant and 

substantial, and for the assessment of an appropriate civil 

penalty." 

Order No. 3178705, issued pursuant to section 104(d)(l) of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 

et seq., the "Act," charges as follows: I 

1; 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 standardr and 

if he also finds thatu 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 pealth hazard, 

and if he finds such violation to be caused by an unwarrantable 

rai of such operator to comply with such mandatory health or 

safety standards 9 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 so caused by an unwarrantable 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 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." 

1642 
Emergency communications were not available at the 

Colonel Hollow Job Number 75. Communications with the 

services that provide emergency medical assistance and 

transportation were discontinued when the company 

vehicle with the compagy radio left the mine property. 

On 8/1/89, following a serious accident which occurred 

at approximately 3:20 a.m., employees were required to 

travel approximately 2-1/2 miles to a public telephone 

to summons an ambulance. 

The cited standard, 30 C.F.R. § 77.1701, provides as 

follows: 

(a) Each operator of a surface coal mine shall 

establish and maintain a communication system from the 

mine to the nearest point of medical assistance for use 

in an emergency. 

(b) The emergency communication system required to be 

maintained under'paragraph (a) of this section may be 

established by telephone or radio transmission or by 

any other means of prompt communication to any facility 

(for example, the local sheriff, the State highway 

patrol, or local hospital) which has available the 

means of communication with the person or persons 

providing emergency medical assistance or 

transportation in accordance with the provisions of 

paragraph (a) of this section. 

The facts in this case were summarized by the Commission in 

its decision as follows: 

The facts of this case are largely undisputed. 

Gatliff Coal Companyu Inc. ("Gatliff') owns and 

operates a surface strip coal mine located in Whitley 

County, Kentucky known as Gatliff No. 1, Job 75. At 

about 3:20 a.m. on August 1, 1989 a truck driven by 

Gatliff employee Boyd Fuson went off an elevated 

roadway on the mine property and tumbled down a 

120 foot embankment. In response to the accident, two 

Gatliff employees, Donald Hopkins and Richard Gibbs, 

drove from the mine property to the nearest telephone, 

which was about two miles away, in order to summon 

help. There was no telephone at Job 75. Fuson died as 

a consequence of the accident. 

In.the investigation that followed, MSHA inspector 

James Payne issued a 104(d)(l) order charging a 

violation of 30 C.F.R. § 77.1701, because there was no 

company radio at Job 75 at the time of the accident. 

According to James Meadors, Gatliff's day shift foreman· 

at the time of the accident, each mine site typically 

1643 
has three company radios. The company radios are 

two-way 40 watt radios with sufficient range to reach 

the Gatliff mine off ice and are located in the 

foreman's truck, the mechanic's truck and the lube 

truck. On the night o:t;. the accident, however, there 

was no company radio on site at Job 75. Meadors 

testified that he had taken the foreman's truck off the 

Job 75 site, that the lube truck was at another Gatliff 

mine site "roughly three miles away, maybe a little 

more," and that the mechanic's truck had been taken 

home. At the time of the accident, there was, however, 

a citizen band radio ("CB radio" or "CB") belonging to 

the day shift operator of the bulldozer being operated 

by Mark Hopkins. 

John Blankenship, Gatliff 's safety director, 

testified about the operator's emergency notification 

procedures. He acknowlegged that under normal 

circumstances those procedures consisted of 

communication via one of the two-way radios back to the 

mine office, where there was a telephone. 

Blankenship's signed statement of Gatliff's company 

policy regarding emergency communications was read into 

the record: 

... Gatliff Coal Company, Inc. has a 

standard operating procedures (sic) of the 

company's radio communication to be provided 

on the job in case of emergency. This 

provides for the job to contact base and base 

then calls for assistancep base being the 

guard shack. And this has always been our 

standard operating procedure. 

Thus, Gatliff conceded that its standard emergency 

communication procedure involved using 40 watt two-way 

radios and that there were no such two-way radios at 

Job 75 on the night of the accident. However, before 

the administrative law judge Gatliff took the position 

that, although no 40 watt two-way radio was present at 

Job 75 at the time of the accident, CB radios were 

presentp which would have enabled the miners to link up 

with a different, but nearby, Gatliff mine site (Job 

74) that did have such a two-way radio on the lube 

truck. Foreman Meadors testified that miners routinely 

communicated by CB radios between the two sites. 

Safety Director Blankenship stated that the miners 

at Job 75 could have reached the lube truck at Job 74 

by using the CB, but he acknowledged that the miners 

were never told to use the CBs. In response to 

1644 
que.stions from the court, Blankenship testified as 

follows: 

Q. Well, how do you get in touch with the 

lube truck i~you're 3 miles away? 

A. With the CB. 

Q. Do you understand why these people did 

not use it? 

A. No, I don't. 

Q. Were they told to use the CBs? 

A. They were never per se told to use the 

CBs except, you know, they would have 

radio communication there and someone 

would get on the company radio and call. 

Now, how they got ahold of one another 

to use the company radio to call the 

guard that was pretty much left to their 

own discretion. 

Blankenship testified that, since the accident, 

miners have been told to communicate for help the 

"fastest possible way" and that they have been told to 

use CBs. Prior to the accident, however, the miners 

had not been specifically told to use a CB radio or to 

walk to the mechanic's truck. Blankenship assumed that 

in an emergency the miners would find the quickest way 

to get helpo 

Mark Hopkins testified that 6 although there was a 

CB radio on the bulldozer he was operating the night of 

the accident, it never entered his mine to use it to 

summon helpo ALJ decision at 13 FMSHRC 373. The CBs 

were used by the miners to give directionsv to keep 

each other companyv to communicate with other job 

sites, and to use if there was something wrong. When 

asked why he did not use the CB to reach another 

Gatliff job site the night of the accident, Hopkins stated he was "just scared." He testified further 

stated [sic} that he was trained, in the event of an emergenc~to use either the foreman's truck or the 

lube truck to make a call for help. 

Inspector Payne testified that a CB radio could be 

used for emergency communication under the standard if 

there were someone monitoring it on the other end. He 

noted that the CBs were owned by the employees and that 

1645 
during his investigation no one told him that there was 

an alternate emergency communication system. 

In his decision the judge noted the undisputed 

testimony of Inspector,J?ayne that the only radio at Job 

75 at the time of the accident was the CB in Hopkins' 

bulldozer and that this radio had insufficient range to 

reach either the mine office or medical or police 

assistance. 13 FMSHRC at 373. The judge further found 

that the CB at Job 75 could have reached the lube truck 

at Job 74 and that the lube truck had a radio 

sufficiently powerful to reach the mine office. On 

this basis, the judge concluded that ~he Secretary had 

failed to prove a violation because the CB radio on the 

bulldozer at Job 75 was capable of reaching the lube 

truck radio, which in turn could communicate with the 

mine office, where a telephone was located. 13 FMSHRC 

at 374. 

In evaluating whe'ther a violation is "significant and 

substantial" the commission in Mathies Coal Co., 6 FMSHRC 1 

(1984), explained 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 natureo 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129r the Commission stated further as follows: 

We have explained further that the third element 

of the Mathies formula 11 requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

is an injuryo" U.S. Steel Mining Co., 6 FMSHRC 1834, 

1836 (August 1984). We have emphasized that, in 

accordance with the language of section 104(d)(l), it 

ls the contribution of a violation to the cause and 

effect of a hazard that must be significant and 

substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC 

1866, 1868 (August 1984); U.S. Steel Mining Company, 

Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

The question of whether any particular violation is 

significant and substantial must be based on the particular facts 

1646 
surrounding the violation. Secretary of Labor v. Texasgulf, 

Inc., 10 FMSHRC 498 (1988); Youghiogheny & Ohio Coal Company, 

9 FMSHRC 1007 (1987). 

The third element of tqe formula requires that the Secretary 

establish 11 a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury" and that the 

likelihood of injury must be evaluated in terms of continued 

normal mining operations. U.S. Steel Mining Co., 6 FMSHRC 1573 

(1984); Monterey Coal Co., 7 FMSHRC 996 (1985). The time frame 

for determining if a reasonable likelihood exists includes the 

time that a violative condition existed or would have existed if 

normal mining operations continued. Rushton Mining Co., 

11 FMSHRC 1432 (1989). In this case the hazard which the instant 

standard is designed to protect against is the aggravation of a 

pre-existing injury or of death due to the lack of prompt medical 

attention. While this case does not therefore fit neatly within 

the cited definitions analogies can appropriately be made. 

In any event, I conclude, 'that the violation herein was 

neither "significant and substantial" nor serious. Ordinarily, 

according to the undisputed evidence, Gatliff maintains as its 

standard operating procedures, three 40-watt two way radios at 

each mine site sufficient to call the mine office where there is 

a telephone. It is further undisputed that these communication 

systems would meet the cited regulatory requirements. On the 

night at issue however, for reasons not fully explained, none of 

the three vehicles having such radios was at this particular 

location at the mine. It may reasonably be inferred, therefore, 

that the absence of such a radio was an aberrant situation and 

would not ordinarily have existed under normal mining operations. 

It is also undisputed that alternative means of 

communication was lable at the time at issue from the mine to 

the nearest point medical assistance in the event of an 

emergency" This system was provided by CB radio and two-way 

radio on the lube truck to the mine office. Under all the 

circumstances, I do not find that the violation was·"significant 

and substantial" or high gravity" 

In addition, in light of the evidence that ordinarily three 

two-way radios are present at the mine and that the absence of a 

radio on the night at sue was anything other than the result of 

inattention or inadvertencev and that the miners were not left 

without a means of emergency radio communication, I cannot find 

that the violation was the result of "unwarrantable failure," or 

more than simple negligence. Emery Mining Corporation, 9 FMSHRC 

1997 (1987) and Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 

(1987). The order must accordingly be modified to a citation 

1647 
under section 104(a) of the Act. In addition, considering all of 

the criteria under section llO(i) of the Act, I find that a civil 

penalty of $50 is appropriate. 

ORDER 

Order No. 3178705 is modified to 

104(a) of the Act. Gatliff Coal Com 

a civil penalty of $50 within 30 days 

decision. 

Distribution: 

a citation under section 

ny, Inc., is ordered to pay 

of the date of this 

Robert I. Cusick, Esq., David B. Wicker, Esq., Wyatt, Tarrant & 

Combs, Citizens Plaza, Louisville, KY 40202 (Certified Mail) 

Jerald s. Feingold, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Room 400, Arlington, 

VA 22203 (Certified Mail) 

/fb 

1648 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

OCT- 111991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JVAL INCORPORATED, 

Respondent 

. . 

: 

. . 

: 

. . 

Docket No. WEST 90-201-M 

A.C. No. 04-05077-05501 

Docket No. WEST 90-261-M 

A.C. No. 04-05077-05502 

Stewart Mine 

DECISION 

Appearances: Susan Gillett, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, 

Califoqlia, , 

for Petitioner; 

Charles H. Schultz, Superintendent, Pro Se 

for Respondent. 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration ("MSHA 11 ) charges Respondent JVAL, Incorporated ("JVAL") with violating safety regulation promulgated under 

the Federal Mine Safety and Health Act, 30 u.s.c. § 801 et~ 

< th e "Act 11 ) o 

A hearing on the merits was held in Sacramentov Californiav 

on June 18 19910 The Secretary of Labor filed a post-trial 

iefo 

STIPULATION 

At the commencement of the hearingv the parties stipulated 

as followsg 

lo The Stewart Mine located at 10323 Adam Avenue, Grass 

Valley 0 California, is a mine within the meaning and interpretation of the Federal Mine Safety and Health Review Commission at 

30 UoSoCo Section 802(h)o 

2. The Mine is subject to the coverage of the act within 

the meaning and interpretation of the Act at 30 u.s.c. 802(b). 

3. The size of the respondent operator is approximately 488 

man-hours per year. 

1649 
4. There has not been previous history of a violation at 

the Stewart Mine. 

Citation No. 3464304 

In this citationi the Secretary charges JVAL with violating 

30 C.F.R. § 57.3360. 

The citation reads as follows: 

There were no timbered sets, nor sets of any 

kind at the portal "collar" of the underground 

drift to keep loose or thawing ground from releasing cracked ground or the cemented placer 

rock, or anything to keep the back from falling 

in when it (the face of the drift), is being 

blasted. The face of the drift being blasted & 

worked was less than''l50 feet from the outside 

surface ground of the portal of the mine. 

FRANK B. SEALE, an MSHA inspector experienced in mining, 

conducted a courtesy inspection (CAV) of the Stewart Mine on 

February 7-8, 1990. Mr. Schultz, Superintendent, and others were 

present. The inspector gave Mr. Schultz a copy of the CAV nonpenalty violations. (Tr. 12). 

The 8-foot by 10-foot portal with a Roman arch lacked 

structural support. The inspector believed support was necessary 

as the ground was thawing. The inspector also saw a small rock 

tumble out of the side of the hill and almost strike miner Lee. 

l The cited regulation reads as follows: 

§ 57.3360 Ground support use. 

Ground support shall be used where ground conditions u or mining experience in similar ground 

conditions in the mine 1 indicate that it is necessaryo When ground support is necessary, the 

support system shall be designed, installed, and 

maintained to control the ground in places where 

persons work or travel in performing their assigned tasks G Damaged, loosened, or dislodged 

timber use for ground support which creates a 

hazard to persons shall be repaired or replaced 

prior to any work or travel in the affected area. 

1650 
The entry went 135 feet into the mountain without structural 

support. There could be a total and complete collapse. (Tr. 15). 

The condition was pointed out to Mr. Schultz. On March 6-7, 

1990, at a regular MSHA inspection, the inspector did not see any 

change in the condition of the portal but they had dug an additional 12 or 14 feet into the shaft. Usually 7 or 8 sets would 

have been installed for 50 feet or so. (Tr. 16-18). Miner Jed 

Lee was present and they were blasting at the bottom of the drift 

CTr. 17) at the time the moist earth was drying out. CTr. 19). 

If a collapse of the ground occurred it was reasonably likely 

that a fatality would occur. 

During the penalty inspection in March, Mr. Seale was accompanied by Messrs. Schultz, Lee and Morey. {Tr. 21). The inspector again pointed out the need for timbered sets. In the inspector's opinion, Mr. Schultz is very conscientious and had been an 

MSHA inspector. {Tr. 54). The company had two miners at the 

site. (Tr. 38). The inspec~or agrees that Mr. Schultz had ordered steel sets before the penalty inspection but they had not 

arrived. (Tr. 35). The tunnel, to a depth of 135 to 150 feet, 

had been there since the 1800s. JVAL had advanced it 12 feet. 

When the mine was shut down the total advance was 36 feet. (Tr. 

37)o 

CHARLES H. SCHULTZ, a consulting engineer and experienced in 

mining and tunneling, testified for JVAL. C Tr. 45). 

When the inspector arrived in 

gressed about 50 feet underground. 

tices were correct and Mr. Schultz 

<\16-48) 0 

February, the mining had proCTr. 46). All the CAV nointended to comply. (Tr. 

After the CAV inspectionv Mro Schultz attempted to secure 

the necessary Douglas fir from three lumber companies. (Tr. 48)o 

He believes timbered sets were necessary. (Tr. 57). All the 

companies indicated they would be cutting Douglas fir in a week 

or twoo But in view of the delay in securing the timberu he ordered two steel setso On March 6v employee Dwayne Davis bought 

some timber and steel setso From March 6u the miners worked on 

the portal until completion. (Tr. 49; Exe R-1, R-2v R-3u R-4)o 

Discussion 

The evidence is uncontroverted that ground support was needed due to the thawing conditions in the area. No such ground 

support was provided. 

16.51 
The Secretary further asserts the lack of ground support in 

the portal and tunnel was a significant and substantial violation. 

I agree. It has been noted that mine roofs are inherently dangerous and even a good roof can fall without warning. Consolidated Coal Co., 6 FMSHRC 3A, 37-38~ Halfway, Inc. 6 FMSHRC 8, 13. 

The above cited cases involved underground coal mines and the 

requirements of 30 C.F.R. 75.200 but the reasoning is equally 

applicable here. 

The testimony is clear that the roof could fall at any time. 

Further, if it fell a fatality could occur. 

Citation No. 3464304 should be affirmed and a civil penalty 

should be assessed. 

Citation No. 3464305 

In this citation, the Secretary charges Respondent with 

violating 30 C.F.R. § _57.1105'8. 2 ·· 

The citation reads as follows: 

A mine, check-in check-out system had not been 

provided, so a person checking the shift attendance could tell whether a given miner was underground or out on the surface. 

At the time of the CAV visit, Inspector Seale concluded 

there was no check-in, check-out tags, called "brass tags". Such 

a system is used by potential rescuers of any individual who may 

be in the mine. (Tr. 22-24). Such systems are usually located 

at the portal of the mineo The inspector told Mro Schultz that 

he needed to develop such a system, 

2 The cited regulation reads as followsg 

§ 57.11058 Check-in~ check-out system. 

Each operator of an underground mine shall 

establish a check-in and check-out system 

which shall provide an accurate record of persons in the mine. These records shall be kept 

on the surface in a place chosen to minimize the 

danger of destruction by fire or other hazards. 

Every person underground shall carry a positive 

means of being identified. 

1652 
On his penalty inspection the following month, the inspector 

did not see any kind of a check-in, check-out system. Messrs. 

Schultz, P.D. Morey, President, and Joel Lee were there. (Tr. 

24). When the lack of brass tags was pointed out to Mr. Schultz, 

he said he was working on it. Mr. Schultz didn't tell the inspector where the system could be found. The failure to have 

such a system presents a danger to the men underground. (Tr. 

2 5) • 

At the regular MSHA inspection, the inspector agrees he 

didn't know if he discussed the check-in, check-out system with 

Mr. Schultz. (Tr. 38-43). The citations issued in March came by 

mail a week later. (Tr. 40). When he sees a violation, it is 

the inspector's normal practice to point it out to the operator. 

(Tr. 43). Witness Schultz indicated the check-in, check-out 

board was known by the two miners to be located in the pickup 

truck (Tr. 47) but he and the inspector did not discuss the 

check-in, check-out system during the March inspection. (Tr. 47). 

Mr. Schultz believed he was i·n compliance and the inspector 

didn't know the check-out board was in the pickup and he automatically wrote the citations. (Tr. 48). According to Mr. Schultz 

it was very convenient to keep the check-out system in the truck 

because there are no buildings in the area. After the portal was rebuilt~ the check-in, check-out system was hung at the portal. 

(Tr. 66). 

Discussion 

A credibility issue arises concerning this situation. I 

credit Mr. Schultz's testimony that the check-in, check-out system was available at the time of the penalty inspection in March. 

The inspector admits he didn't discuss the system with 

Mrc Schultz at the time of the penalty inspection. Mr. Schultzv 

who was described as a conscientious superintendentu should have 

been aware of the system and its location on the premises. 

Citation No. 3464305 should be vacated. 

1653 
Citation No. 3464306 

In this citation, the Secretary charges JVAL with violating 

30 C.F.R. § 57.15001. 3 

The citation reads as follows: 

Neither a stretcher nor blankets or first-aid 

supplies of any kind were available at the mine 

site for use in the event of a mine emergency. 

At the CAV inspection, the inspector did not see a stretcher 

or any first-aid material. (Tr. 26). Such materials are usually kept in a small nearby off ice or an old truck or in something 

immobile. (Tr. 26). The materials shouldn't be in a location 

where they could be removed at the end of the shift. They had 

one or two trucks present during the CAV. There were no small 

buildings. A trailer was up J::,h~ road about a mile. (Tr. 27). 

There were no first-aid materials around the mine. (Tr. 28). 

In March, at the penalty inspection, the inspector did not 

see any first-aid supplies in the truck. Messrs. Schultz, Morey 

and Lee were also present. (Tr. 28). The company representatives stated the materials would be provided. During the termination of the citation on March 7th, they stated they were in a 

nearby trailer. The trailer must have been in the watchman's 

house up the road. The inspector would not have written the citation if the material had been there on March 6. (Tr. 29). 

When he returned for the March inspection, he remembered discussing the first-aid materials. CTr 40). 

Witness Schultz indicated the inspector didn°t leave the 

tation with JVALo Before they were received he had produced a ~tretcher and blankets. The first-aid kit itself was always in 

~ The cited regulation reads as followsg 

§ 57015001 First aid materials" 

Adequate first-aid materials, including 

stretchers and blankets shall be provided at 

places convenient to all working areas. Water 

or neutralizing agents shall be available where 

corrosive chemicals or other harmful substances 

are stored, handled, or used. 

1654 
the pickup truck. (Tr. 46). At the end of the shift, the truck 

goes "home" but it is returned the next day. (Tr. 4 7). Witness 

Schultz testified that during the March inspection he and the 

inspector did not discuss the first-aid supplies. Miner Davis 

brought the stretcher and blanket in the pickup truck. (Tr. 47). 

Mr. Schultz believes he was in compliance because the inspector 

didn't know a stretcher and blanket were in the pickup and he 

automatically wrote the citation. (Tr. 48). Mr. Schultz did not 

tell the inspector that the first-aid materials were in the truck. 

(Tr. 65). 

Discussion 

A credibility issue arises in connection with this citationo 

I credit Inspector Beale's testimony to the effect that he would 

not have written this citation if the first-aid supplies had been 

present. Mr. Schultz agrees he did not advise the inspector that 

the materials were in the tr:μck. In view of the previous CAV 

notice he had received, one would anticipate Mr. Schultz would 

discuss this matter with the inspector. 

Citation No. 3464306 should be affirmed and a penalty 

assessed. 

CIVIL PENALTIES 

Section llO(i} of the Act, 30 U.S.C. 820(i) mandates the 

criteria for assessing civil penalties. 

JVAL does not have an adverse prior history (Stipulation). 

The proposed penalties appear appropriate since the operatorus 

size s small 9 only 488 rnanhours per year (Stipulation)" The 

lad::. of ground support at the portal was open and obvious" 

Furtherv the lack of first-aid supplies should have been known to 

JVAL personnel. These factors establish the company 1 s negligence 

was moderate" 

In the absence any to the contraryv I find that the 

payment of the proposed penalties will not cause JVAL to discontinue its business. Buffalo Mining Co.v 2 IBMA 226 (1973); 

Associated Drillingu Inc. 1 3 IBMA 164 (1974)0 The gravity for 

the lack of ground support at the portal is high but the gravity 

due to lack of first-aid supplies is moderateo JVAL demonstrated 

good ith in abating the violative condition. On balance, I 

deem that the penalties affirmed in the order of this decision 

are appropriate. 

1655 
For the foregoing reasons, I enter the following: 

ORDER 

In WEST 90-261: 

1. Citation No. 3464304 is AFFIRMED and a penalty of 

$50 is ASSESSED. 

2. Citation No. 3464305 and all penalties therefor are 

VACATED. 

In WEST 90-201: 

3. Citation No. 3464306 is AFFIRMED and a penalty of 

$40 is ASSESSED. 

Law Judge 

Distributiong 

Susan Gillettv Esq.u Office of the Solicitor, U.S. Department of 

Laboru 71 Stevenson Streetu Suite lllOu San Francisco, CA 94105 

Certifi Mail) 

Mro Charles H. Schultzu Superintendent 0 JVAL, INC.v 10323 Adam 

Avenueu Grass Valleyu CA 95945 (Certified Mail) 

sh 

1656 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCli 61991 

AIR PRODUCTS AND CHEMICALS, 

INC., 

CONTEST PROCEEDING 

Contestant 

v. 

Docket No. PENN 91-1488-R 

Citation No. 3486528; 9/5/91 

SECRETARY OF LABOR, Cambria Co-Generation Facility 

MINE SAFETY AND HEALTH Mine ID 36-99999 

ADMINISTRATION (MSHA), 

Respondent 

Appearances: 

Before: 

DECISION 

R. Henry Moore, Esq., Buchanan Ingersoll 

Professional Corporation, Pittsburgh, 

Pennsylvania, for the Contestant; 

Robert Cohen, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia, for the 

Respondent. 

Judge Melick 

These expedited contest proceedings were filed by Air 

Products and Chemicalsu Inc.p (Air Products); pursuant to section 

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

30 UoS.Co § 801 et seq.u the "Mine Act," to challenge a citation 

issued by the Secretary of Labor for Air Products' refusal to 

permit an inspector of the Federal Mine Safety and Health 

Administration (MSHA), to enter its Cambria Cogene~ation Facility 

Cambria C£Gen) in alleged violation of section 103(a) of the 

Mine Acto I The preliminary issues before me are whether those 

areas of the Cambria CoGen facility at issue in this case are a 11 coal mine 11 within the meaning of the Mine Act and therefore 

subject to MSHA jurisdiction, and if so, whether MSHA has 

exercised its authority in a manner sufficient to displace 

enforcement authority by the Occupational Safety and Health 

1 Section 103(a) of the Mine Act provides in part that 

"[f]or the purpose of making any inspection or investigation 

under this Act, the Secretary.[of Labor] or the secretary of 

Health, Education, and Welfare, with respect to fulfilling his res~onsibilities under this Act, or any authorized representative 

of the Secretary or the Secretary of Health, Education, and 

Welfare, shall have a right of entry to, upon, or through any coal or other mine." · 

1657 
Administration (OSHA) under section 4(b)(l) of the Occu~ational 

Safety and Health Act, 29 u.s.c. § 653{b)(l) (OSHAct). / For 

the reasons that follow, I find that while the cited areas of the 

Cambria CoGen facility herein come_ within Mine Act jurisdiction, 

MSHA has failed to exercis~its authority in a manner sufficient 

to displace OSHA enforcement authority and that, accordingly, the 

citation at bar must be vacated. 

Cambria CoGen is an electrical generating facility utilizing 

two combustion boilers with bituminous coal refuse as its primary 

energy source to power a steam turbine-generator. Its primary 

business is to produce and sell electricity to the Pennsylvania 

Electric Company but it also produces steam for a local nursing 

home. 

The fuel is obtained from bituminous coal refuse piles 

located at a mine owned by RNS Services, Inc. (RNS), and supplied 

by RNS. The coal refuse is delivered by truck to the Cambria 

CoGen facility and dumped into a, hopper at the refuse receiving 

building. The product then passes through a grizzly which 

screens out large objects, including rock, slate, timbers, roof 

bolts, and large pieces of coal. The product is then transported 

to a refuse storage building and then conveyed as needed to the 

Bradford breaker building. It is there fed onto a rotating 

Bradford drum breaker which further screens and sizes the 

material for easier handling and to prevent damage to other 

equipment in the facility. 

The remaining minus-6 inch material then proceeds onto the 

C-1 belt to a refuse storage dome. A stacker distributes the 

piles and a reclaim machine places coal on another conveyor as 

neededo The C-2 belt then transports coal to the crusher 

building where screens separate minus-2 inch material. That 

material is then further crushed to one-quarter inch to zero-inch 

size with a roll crusher. This product is then conveyed to the 

boiler building storage facility, where it is stored until 

conveyed to the boilers by way of the boiler plant feed belt. 

The Secretary acknowledges that MSHA jurisdiction would not 

extend beyond the point where the coal product is dumped onto the 

plant feed belto 

In addition to refuse coal, run-of-mine coal is used in the 

boilers to maintain a proper mix of combustibility. This coal is 

delivered by truck and transported by belt to the run-of-mine 

coal storage tepee. That material then proceeds to the crusher 

2; Section 4(b)(l) of the OSHAct provides in part that 

"[n]othing in this Act shall·apply to working conditions of 

employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or 

regulations affecting occupational safety or health. 11 

1658 
building where it is screened down to one-quarter inch by 

zero-inch size. The material is then fed to the boiler building 

but stored separate and apart from the refuse coal for later 

mixing as needed for the boilers. -~he general areas over which 

MSHA claims inspection jurisf;liction and authority are depicted in 

Government Exhibit No. 2 attached hereto as Appendix Af in the 

lower portion of the schematic marked with the letter "M". 

The evidence is in essential respects not disputed. On 

August 2, 1989, shortly after construction of the facility began, 

officials of Cambria CoGen met with MSHA subdistrict manager 

Timothy Thompson to discuss the plant's coal handling systems for 

determination of Mine Act authority. It was represented at these 

discussions that RNS would perform onsite processing of the coal 

refuse before delivering it to the Cambria CoGen facility and 

that upon arrival at the facility, the coal would only be 

customized by crushing and sizing to meet the one-quarter-inch 

size specification. Based on this information, Thompson 

concluded, and.advised the Cogen representatives, that the 

operation would not come within MSHA inspection authority. 

According to Thompson, MSHA later learned, upon examination 

of an RNS ground control plan, that RNS would in fact not be 

performing any onsite processing and that Cambria CoGen would be 

purchasing unprocessed coal refuse. That coal would then require 

additional processing at the Cambria CoGen facility and the 

addition of a Bradford breaker. Thompson thereupon changed his 

opinion and advised Cambria CoGen in an October 31, 1990, meeting 

that under these changed circumstances, MSHA would assume 

inspection authority. 

Thompson testif ieq that he was aware of the OSHA-MSHA 

rnteragency Agreement ~; but concluded that it did not need to 

be invoked because he felt there was no interagency conflict. In 

this regard, just before the October Jl, 1990, meeting with 

Cambria CoGen, he called Terry Lane, an OSHA regional 

administratorv and explained the basis for his belief regarding 

MSHA jurisdiction at the coal preparation and cleaning facility. 

According to Thompson, Lane stated that he would not attend the 

meeting and in fact no one from OSHA showed up at that meeting. 

Thompson acknowledges that he has had no further contact with any 

OSHA official regarding this matter. He further indicated that 

Lane never stated whether he agreed or disagreed with his 

position regarding MSHA's assertion of inspection authority at 

the facilityc 

According to the undisputed testimony of Cambria CoGen plant 

manager Mark Reed, the Cambria CoGen plant was built with OSHA 

specifications in mind and the training of employees was 

3; 44 Fed. Reg. 22,827 (1979) and 48 Fed. Reg. 7521 (1983). 

1659 
performed with OSHA training regulations in mind. In addition, 

according to the undisputed testimony of James Stango, project 

manager for the Cambria CoGen facility, OSHA conducted a 3 day 

inspection in August, 1990, with three to five-person-teams of 

inspectors and issued citations in areas over which MSHA now 

claims inspection authority, including the Bradford breaker 

building, the tepee building, and the BMR building. 

Plant manager Reed testified that he expects OSHA will 

return for further inspections of the entire Cambria CoGen 

facility. Reed and Stango both noted a number of potential 

conflicts between MSHA and OSHA including training requirements, 

guardrail and berm requirements and fire extinguisher examination 

requirements. They noted that additional conflicts were also 

likely since some of their subcontractors perform maintenance 

work in both the areas over which MSHA now maintains it has 

inspection authority and in areas of the plant MSHA has not yet 

claimed such authority. 

It was also noted that at .. least one conveyor belt performs 

two functions -- to remove ash from the boilers and to carry reject coal refuse material from the crushers. According to 

supervisory MSHA coal mine inspector James Biesinger, when the 

conveyors bring ash from the boiler plant, they would not be 

under MSHA inspection authority. However, when the same conveyor carries reject material from the coal processing presumably it 

would be under MSHA inspection authority. It is further noted 

that even as of the date of hearing, MSHA was not certain as to 

the full extent of the processes or areas over which it intends 

to assume inspection authority. The apparent arbitrary delineation of particular parts of roadways, over which MSHA now 

claims inspection authority (See Government Exhibit No. 2, 

Appendix A)u also highlights the uncertain and ambiguous 

boundaries between the claimed MSHA inspection areas and those 

presumably left to OSHAo 

Section 3(h) of the Mine Act provides in part .as follows: 

(1) 11 coal or other mine" means (A) an area of land 

from which minerals are extracted in nonliquid form orv 

if in liquid form, are extracted with workers 

undergroundv (B) private ways and roads appurtenant to 

such area, and (C) lands, excavations, underground 

passagewaysv shafts, slopes, tunnels and workings, 

structures, facilities, equipment, machines, tools, or 

other property including impoundments, retention dams, 

and tailings ponds, on the surface or underground, used 

in, or to be used in, or resulting from, the work of 

extracting such minerals.from their natural deposits in 

nonliquid form, or if in liquid form, with workers 

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

of such minerals, or·the work of preparing coal or 

1660 
other minerals, and includes custom coal preparation 

facilities • • • • 

(2) For purposes of subchapte~s [titles] II, III, and 

IV of this chapter [Actj, "coal mine" means an area of 

land and all structures, facilities, machinery, tools, 

equipment, shafts, slopes, tunnels, excavations, and 

other property, real or personal, placed upon, under, 

or above the surface of such land by any person, used 

in, or to be used in, or resulting from, the work of 

extracting in such area bituminous coal, lignite, or 

anthracite from its natural deposits in the earth by 

any means or method, and t~e work of preparing the coal 

so extracted, and includes custom coal preparation 

facilities. 

Section 3(h) of the Mine Act thus defines a "coal or other 

mine" and "coal mine" to include the "work of preparing the 

coal." Section 3(i) of the Mine Act defines the "work of 

preparing the coal" as "the breaking, crushing, sizing, cleaning, 

washing, drying, mixing, storing, and loading of bituminous coal, 

lignite, or anthracite, and such other work of preparing such 

coal as is usually done by the operator of the coal mine." 

Within this framework, it is clear that in at least a 

portion of the Cambria CoGen facility cited by MSHA in this case, 

coal refuse is broken, crushed, sized, and/or cleaned in 

preparation for consumption in the generating facility. These 

activities are all within the scope of "work of preparing coal" 

within the meaning of section 3(i) of the Mine Act. It is also 

clear that the area at issue includes "structures," "equipment," and "machinery" that are "used in or to be used in" the "work of 

preparing the coaL 11 It is therefore clear that the areas cited 

in this case were indeed subject to Mine Act jurisdiction. In 

regard it is also noted that Air Products acknowledges that 

the nature of the facility herein is essentially 

indistinguishable from the nature of the facility f_ound by the 

Commission in Westwood Energy Properties, 11 FMSHRC 2408 (1989), 

to be within Mine Act jurisdiction. 

The problem in this case arises, however, from the failure 

the Secretary to have clearly designated whether OSHA or MSHA 

should exercise regulatory authority over the working conditions 

herein. In Westwood Energy Properties the Commission discussed 

the issue as follows~ 

As in Pennsylvania Electric, [11 FMSHRC 1875 

(1989)] a brief overview of the statutory interplay 

between the Mine Act and.the OSHAct is necessary to a 

proper analysis of the issue. The OSHAct is the most 

broadly applicable statute regulating the safety and 

health aspects of the working conditions of American 

1661 
workers. The OSHAct, like the Mine Act, is enforced by 

the Secretary of Labor. Although broadly applicable, 

section 4(b)(l) of the OSHAct provides: 

Nothing in this Act shall apply to 

working conditions of employees with respect 

to which other Federal agencies . . . exercise statutory authority to prescribe or 

enforce standards or regulations affecting 

occupational safety or health. 

29 u.s.c. § 653(b)(l). Therefore, OSHA standards 

pertaining to the working conditions at the culm bank 

would be applicable unless another federal agency, with 

a proper grant of jurisdiction over such working 

conditions, exercises its authority in a manner 

displacing OSHA coverage. See, ~.g., Southern Pacific 

Transportation Co. v. Usery, 539 F.2d 386, 389 

(5th Cir. 1976), cert. denied, 434 U.S. 874, 98 s.ct. 

221, 54 L.Ed.2d 154(1977); Southern RV. Co v. OSHRC, 

539 F.2d 335, 336 (4th Cir. 1976), cert. denied, 

429 U.S. 999, 97 s.ct. 525, 50 L.Ed.2d 609 (1976). 

It is undisputed in this case , however, that both OSHA and 

MSHA have asserted inspection authority at the cited facility. 

Indeed OSHA has cited violations of its regulations in the same 

areas over which MSHA also claims inspection authority, and there 

is no reason to believe OSHA will not return for further 

inspections in these areas. Moreover, neither the MSHA 

representatives nor the Secretary's counsel at hearing could 

provide assurances that OSHA would not continue its inspections 

in these areaso 

The record also shows that there has been but one 

communication between MSHA and OSHA officials regarding the 

Cambria CoGen facility, and that conversation by telephone as 

reported at hearing was ambiguous and lacking in detail. 

Accordinglyv there is no evidence that a clear delineation of 

OSHA/MSHA inspection authority has been made at the facility and 

:H: is likely under the circumstances that both OSHA and MSHA will 

continue to perform duplicative inspections over the same areas 

now claimed in this case by M$HA. Significantly, MSHA 

subdistrict manager Thompson has expressed the belief that there 

is no need in this case to utilize the OSHA-MSHA Interagency 

Agreement" This Agreement was promulgated in 1979 by the 

agencies to prescribe the appropriate interagency procedure for 

resolving general jurisdictional questions between the two 

agencies and provides in part as follows: 

When any question of jurisdiction between MSHA and OSHA 

arises, the appropriate MSHA District Manager and OSHA 

Regional Administrator or OSHA State Designee in those 

1662 
states with approved plans shall attempt to resolve it 

at the local level in accordance with this Memorandum 

and existing law and policy. Jurisdictional questions 

that can not be decided at th~ local level shall be 

promptly transmitted to._ the respective National Offices 

which will attempt to resolve the matter. If 

unresolved, the matter shall be referred to the 

Secretary of Labor for decision. 

44 Fed. Reg. 22827, 22828 (1979). 

In sum, there is no evidence in this record that the MSHA 

inspection of the Air Products' facility "reflects a reasoned 

resolution of the jurisdictional question by the Secretary and 

her agencies" but rather the evidence suggests that the 

inspection "simply resulted from an ad hoc unilateral assertion 

of jurisdiction by MSHA." Westwood Energy, 11 FMSHRC at 2417. 

See also Pennsylvania Electric Company, 12 FMSHRC 1562 (1990), 

and 11 FMSHRC 1875 (1989). Under the circumstances, Citation 

No. 3486528 must be vacated. , 

ORDER 

Citation No. 3486528 is 

Judge 

Distributiong 

Ro Henry Moore, Esqou Buchanan Ingersoll Professional 

Corporation, 58th Floor, USX Tower, 600 Grant Street, Pittsburgh, 

PA 15219 (Certified Mail) 

Robert Cohen, Esq"v Office of the Solicitor, UoSo Department of 

Labor, 4015 Wilson Boulevard, Room 516, Arlington 1 VA 22203 

(Certified Mail) 

/fb 

1663 
~ 

'i! 

:I>\ 

01 

~I 

APPENDIX A 

1664 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 1 6 1991 

WILLIE WILLIAMS, JR., 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

Docket No. SE 91-95-D 

BARB CD 88-32 

ORDER OF DISMISSAL 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a complaint of discrimination filed 

by the complainant (Willie Williams, Jr.), against the respondent 

(JWR) pursuant to section 105(c) of the Federal Mine Safety and 

Health Act of 1977. By letter dated January 25, 1991, and 

received by the Commission on January 29, 1991, Mr. Williams 

stated as follows: 

I recently received a determination letter from the 

Mine Safety and Health Administration (MSHA) concerning 

a discrimination complaint that I filed. MSHA has 

determined that no violation occurred and reference is 

made to the time delay in this caseo At the time I was 

contacted by the MSHA Special Investigator, I was 

hospitalized with a stress related condition which was 

caused by my employment. I was never interviewed by 

the special investigator and to my knowledge my 

complaint was never investigated. To the best of my 

recollection, my complaint was filed in early 1988. I 

do not recall receiving a reply from MSHA in 19880 

I had previously filed a number of complaints with MSHA 

involving my former employer Jim Walter Resources, 

Incorporatedo I was discharged from employment 

numerous times because of my reporting unsafe 

conditions at the mine. I was injured while employed 

with Jim Walter Resources and I continue to suffer from 

that injury. I am requesting that you consider these 

conditions that I have rAised and allow my case to be 

heard under the private provision of the law or if 

necessary an investigation be initiated to collect the 

necessary facts. If you desire that I provide medical 

1665 
evidence to substantiate my condition, I can provide 

that evidence. 

In an undated letter addressed to the Commission's Chief 

Judge Paul Merlin, and received on-May 22, 1991, Mr. Williams 

stated as follows: "I feel'"that the company violated several 

rules under our contract and that they breached the contract in 

several ways 11 • 

A copy of an MSHA complaint form filed by Mr. Williams with 

MSHA's District 7 Field, Hueytown, Alabama, on May 10, 1988, 

reflects that he was employed by the respondent as a longwall 

helper at a salary of $14.41 an hour. The information on the 

form further reflects the date of the alleged "discriminatory 

action11 as October 9, 1987, and the "persons responsible" as 

Personnel Director Steve Dickerson and Longwall Coordinator Trent 

Trachor. 

In a handwritten statement signed by Mr. Williams on May 10, 

1988, and attached to the complaint form, he stated that he was 

discharged from his job, and that "they discharged me because of 

the legal action that I have filed against the company and the 

union. I also feel that the company and union got together and 

arranged my discharge". 

A copy of a June 30, 1988, letter addressed to Mr. Williams 

from MSHA's Chief, Office of Technical Compliance and 

Investigation, Arlington, Virginia, informed Mr. Williams that 

after a review of the information gathered during the 

investigation of his complaint, MSHA made a determination that 

JWR did not violate section 105(c} of the Act. The letter 

further advised Mr. Williams of his right to file a complaint on 

own behalf with the Commission within 30 days. Mr. Williams 

not pursue his complaint further until January 25p 199lp when 

he filed his instant complaint with the Commission. 

JWR filed an answer to the complaint denying any 

discrimination, and as part of its answer moved for a dismissal 

the complaint on the following grounds~ 

3. 

The Complaint should be dismissed for failure 

to state a claim upon which relief may be 

granted under Section 105(c) of the Mine 

Safety and Health Act. 

The complaint is barred by the statute of 

limitations and by laches. 

The complainant has failed to exhaust 

contractual remedie~. 

1666 
4. The complainant's claims are preempted under 

§ 301 of the National Labor Relations Act. 

5. The complaint should be dismissed in its 

entirety because it is frivolous and designed 

to harass the respondent. 

6. The complainant has filed several other 

complaints under § 105(c) and all such claims 

have been dismissed in favor of the 

respondent. 

In further support of its motion, JWR points out that the 

alleged act of discrimination appears to be a discharge which 

allegedly occurred on October 9, 1987, nearly four years ago, and 

that if the complainant had timely filed his complaint JWR would 

have been in a much better position to investigate and defend 

against the allegations made in the complaint. However, as a 

result of the untimely filing_,., JWR believes it has been 

prejudiced, and as an,example, it cites the fact that Steve 

Dickerson, the personnel director who is named in the complaint, 

and who was responsible for enforcing company procedures, is no 

longer employed by JWR. 

Discussion 

It would appear that Mr. Williams wrote to the Secretary of 

Labor in July and September 1990, concerning his complaints 

against JWR. As a result of his letters, MSHA reviewed its files 

and conducted a personal interview with Mr. Williams at his home 

in October, 1990. Subsequently, by letter dated December 24, 

1990r the Labor Department's Assistant Secretary for Mine Safety 

and Health, William Jo Tattersall, advised Mro Williams that 

based on MSHA 0 s review of the matter, 11 the issues you have raised 

appear to be the same as those identified in the complaints you 

previously filed with MSHA under the miner discrimination 

provisions of the Federal Mine Safety and Health Act of 1977 11 0 

With regard to the disposition of his prior complaintsv 

Mro Tattersall advised Mro Williams as follows~ 

Each of those complaints have previously been acted 

upon by MSHA. The last complaint, filed in May 1988, 

concerned your discharge from Jim Walter Resourceso By 

letter dated June 30, 1988, MSHA responded advising you 

that your complaint had been investigated to the extent 

possible and that there was no violation of the Mine 

Act's discrimination provisions. Throughout the 

investigation, we found no facts to support a claim of 

discrimination under the Mine Act. During our most 

recent contacts with you~ no additional information was 

provided. Accordingly, our previous finding of no 

discrimination remains unchanged. 

1667 
As you know, you have the right as a complainant to 

file a complaint on your own behalf with the Federal 

Mine Safety and Health Review Commission (Commission). 

However, as you were advised in our letter of June 30, 

1988, this right must be exercised within 30 days of 

notification that MSHA-~has found no act of discrimination. While this filing period has clearly passed, 

you advised us in our meeting with you in October that 

you were either hospitalized or medically 

incapacitated, or your medical condition may have 

diminished your capability to fully participate in the 

exercise of your rights. 

If you believe that there is sufficient medical 

evidence to support your incapacity at that time, you 

might consider presenting this evidence and any other 

evidence of extenuating circumstances directly to the 

Commission, requesting that your complaint be accepted 

by them under Section 105.( c) (3) • 

As a result of the Tattersall letter, Mr. Williams 

apparently obtained copies of his prior May 10, 1988, MSHA 

complaint, and MSHA's June 30, 1988, adverse determination letter 

through a Freedom of Information Act request made to MSHA's 

Arlington, Virginia office, and his Commission complaint of 

January 25, 1991, followed. In his complaint, Mr. Williams 

asserted that he did not recall receiving MSHA's June 30, 1988, 

determination letter, which states in part that his complaint was 

investigated "to the extent possible" without his cooperation. 

Mr. Williams further asserted that "at the time I was contacted 

by the special investigator, I was hospitalized with a stress 

related condition which was caused by my employment. I was never 

interviewed by the special investigator and to my knowledge my 

complaint was never investigated"o 

In view of Mr. Williams 1 assertions that he had no knowledge 

of the disposition of his May 10, 1988, complaint, I issued an 

Order to Show Cause on August 8, 1991, affording the parties an 

opportunity to submit information explaining the circumstances of 

that complaint, the timeliness of Mr. Williams 0 appeal to the 

Commission, and any documentation concerning any prior 

complaints. Based on the information filed by the parties in 

response to my order, it would appear that Mr. Williams filed the 

following prior complaints~ 

Case No. BARB-CD-82-11 

This case concerned a complaint by Mr. Williams that his 

foreman, mine foreman, and others "have threatened me in a way 

that I feel they will try and"' knock me off". Mr. Williams stated 

that he was a belt repairman, and he alleged that he complained 

about the tying up of large cables with small wire, and working 

1668 
under unguarded belts. He further alleged that "since this time 

I have been fired out of the mine", and that mine management 

tried to remove him from his job "because I complain about too 

many things". 

By letter dated March g, 1982, MSHA advised Mr. Williams 

that after investigation of his complaint and a review of the 

information gathered during the investigation, MSHA determined 

that a violation of section 105(c) of the Act did not occur. The 

letter also advised Mr. Williams of his right to further pursue 

this determination by filing a complaint on his own behalf with 

the Commission within 30 days. There is no information that 

Mr. Williams filed any further complaint with the Commission. 

Case No. BARB-CD-82-39 

This case concerned a complaint filed by Mr. Williams with 

MSHA on September 8, 1982. Mr. Williams had received a written 

reprimand on September 2, 1982, for violating a company rule by 

operating a track jeep at an unsafe rate of speed, and a copy of 

an accident report reflects that an employee was injured when the 

jeep collided with a manbus. 

Mr. Williams characterized his complaint as a '

1section 105 (g)" complaint, and he alleged that he was 

reprimanded because he had previously filed another "section 

105(g)" complaint against the driver of the manbus involved in 

the accident (the driver was identified as a foreman). 

Mr. Williams further alleged that other union personnel had been 

involved in accidents with management personnel, but only he was 

singled out for a reprimand. He claimed disparate treatment 

because only he and not the rnanbus driver was reprimanded, and he 

also claimed that management 11would like to get back" at him 

because of prior n105(g) 11 complaint, and that the union did 

not come to his defense. 

MSHA investigated the complaint, and by letter dated l~pril 25 9 1983, Mr o Williams was advised of MSHA 1 s determination 

that a violation of section 105(c) had not occurred. The letter 

also advised Mr. Williams of his right to appeal that 

determination by filing a complaint with the Commission within 

30 days" There is no information that Mro Williams filed any 

complaint with the Commissiono 

Case No. BARB-CD-84-34 

This case concerned a complaint filed by Mr. Williams with 

MSHA on July 9, 1984. Mr. Williams invoked his individual safety 

grievance rights by filing the complaint against the general mine 

foreman, his shift foreman, and two union co-workers who worked 

on his shift. Mr. Williams alleged that the two co-workers were 

trying to injure him on the job by engaging in unsafe acts, and 

16'69 
that one of them had cursed him and threatened to beat him up. 

He further alleged that his request to be transferred to another 

work area under a different foreman was denied, and that his 

foreman had threatened to fire him_ if he complained to the 

"safety men"o He also alleged that the two co-workers engaged in 

horseplay, that they conspired to have him moved to another job, 

and otherwise threatened and harassed him without intervention by 

the foreman. Mr. Williams stated that he did not feel that he 

could continue to work under these conditions and he requested to 

be paid for all lost time while he was off work. 

On July 25, 1984, Mr. Williams filed a regular union 

grievance u

1demanding that management make every effort to work me 

in my classification that I bidded on11 • The grievance was 

settled by the union and management after management agreed "to 

work the grievant in his bid classification to the extent that it 

is practicable to do so". 

On August 6, 1984, Mr. Williams amended his July 9, 1984, 

MSHA complaint and he, alleged, 'ttiat after working four years on 

the same job, management disqualified him from the job, cut his 

pay from Class 4 to Class 1, and placed him in jobs which were 

unsafe and hazardous. He claimed that his union contractual 

rights were ated. 

In a letter dated August 30, 1984, from JWR to MSHA's 

special investigator, JWR supplied the investigator with a 

doctor 1 s statement of August 8, 1984, reflecting that 

Mr. Williams was hospitalized under the care of Birmingham 

Psychiatry 1 P.A. 1 on August 7, 1984. JWR also supplied the 

investigator with copies of the July 25, 1984, grievance 

reflecting a settlement of the dispute. 

eptember 11, 1984 from JWR to MSHA 1 s 

: JWR informed the special investigator that 

Mr. Williams was having problems working with other union coworkers on the belt crew and that on July 5, 1984, after further 

arguments th his crew7 and at his request, Mr. Williams was 

:::eass :-:iowever 11e ·was absent from work about two weeks for 

medical ~easons, and s ~ime, management decided that it 

would be best to separate Mr. lliams from the belt crew with 

whom h·e was trouble. 

JWR further stated to the investigator that upon 

Mr. liams! return to work a his hospitalization he 

informed foreman that he did not want to be reassigned and 

filed the grievance stating his desire to work in the 

classification he bid on, which was belt repairman. JWR pointed 

out that pursuant to the grievance settlement, Mr. Williams was 

reassigned to the belt repairman position, and although he 

suffered a loss of pay amounting to $15.90, for three shifts, 

that issue was also settled through the grievance procedure. 

1670 
JWR denied that Mr. Williams was ever assigned to any jobs that 

were unsafe, and it pointed out that Mr. Williams was aware of 

the fact that he had a contractual right to remove himself from 

any condition he believed to be unsafe, but did not do so. 

Finally, JWR pointed out that Mr. Williams believed that the 

company had violated his unfon-management contractual rights. 

Citing Lane v. Eastern Associated Coal Corporation, 2 MSHC 1082 

(1980), and Harry P. Gilpin v. Bethlehem Mines Corporation, 6 

FMSHRC 47 (January 1984), JWR took the position that such 

contractual matters are not within the jurisdiction of the 

Commission. 

MSHA investigated the complaint, and by letter dated 

October 10, 1984, Mr. Williams was advised of MSHA's 

determination that a violation of section 105{c) had not 

occurred. The letter also advised Mr. Williams of his right to 

appeal that determination by filing a complaint with the 

Commission within 30 days. There is no information that 

Mr. Williams filed any complat!lt with the Commission. 

Case NO. BARB-CD-86-38 

This case concerned a complaint filed by Mr. Williams with 

MSHA on April 17, 1986. Mr. Williams alleged that coal was being 

cut with the methane monitor showing 1.7 and 1.8 percent methane, 

that he complained about this to the longwall coordinator, and 

that he withdrew himself from the mine on several occasions. He 

also alleged that his foreman tried to injure him by activating a 

longwall shearer valve while he (Williams) was near the pan line. 

A copy of a disciplinary action dated April 16, 1986, 

supplied by JWR, reflects that Mr. Williams was suspended for 

~ive days with intent to discharge; for the following reason~ 

0

'Violation of work rule #1 and work rule #7, cursing, 

intimidating and insubordinate conduct toward his supervisor in 

front of entire crew and failure to obey a direct order". 

In a letter dated May 28, 1986, to MSHA 1 s special 

investigatorr JWR disputed Mr. Williams 1 allegations, and after 

investigationv MSHA advised Mr. Williams by letter dated June 12, 

1986v that the information received during its investigation did 

not establish a violation of section 105(c) of the Aet. The 

letter also advised Mr. Williams of his right to appeal this 

determination by filing a complaint with the Commission within 

thirty days" There is no information that Mr. Williams filed any 

further complaint. 

NLRB Complaint 

In addition to the aforementioned MSHA complaints, 

Mr. Williams filed a complaint on July 3, 1986, with the National 

Labor Relations Board against the United Mine Workers of America, 

1671 
· and the basis for his charge is stated as follows in the 

complaint form which he signed: 

On or about April 17, 1986, tne above-named labor 

organization through its officers, agents and 

representatives failed'"to properly process Willie 

Williams grievance because of his race and internal 

union political activities. 

The medical information supplied by Mr. Williams reflects 

the following: 

1. A statement of August a, 1984, addressed to 

JWR by Doctor James M. Lee, Birmingham, 

Psychiatry, P.A., Birmingham, Alabama, 

confirming that Mr. Williams was admitted to 

Baptist Medical Center, Birmingham, Alabama, 

on August 7, 1984, and that he was currently 

hospitalized. 

2. A Physical and History Report prepared by 

Doctor Lee on August 7, 1984, in which 

Dr. Lee recorded his "impression" of 

Mr. Williams' condition as "Adjustment 

reaction with depression and anxiety. 

Chronic low back syndrome". The doctor noted 

that Mr. Williams would undergo physical and 

psychiatric evaluation, and that appropriate 

medication would be prescribed. The report 

reflects that Mr. Williams reported that he 

strained his back in August, 1983, was seen 

at a hospital emergency room, and that he has 

taken medication in the past for his back 

complaintso 

3o A consultation report prepared by Dr. Sue 

Trant, PHO, on August 20, 1984, in which the 

following diagnostic impressions are 

recorded: 11 1. Adjustment disorder with mixed 

emotional features including anxiety, 

depression, anger and hypersensitivityo 

2. Personality disorder with dependent and 

passive aggressive features". 

4. A consultation report prepared by Dr. Trant 

on June 21, 1987, in which the following 

diagnostic impressions are recorded: 11 1. Rule out major depression. 2. Rule out 

melancholia with significant anxiety. 

Psychological factors affecting physical 

condition. 4. Mixed personality disorder". 

1672 
5. A July l, 1987, statement addressed to 

Dr. Lee by the respondent's insurance 

benefits claims department (Aetna Life and 

Casualty) certifying Mr.~Williams for 

admission to the Birmingham Baptist Medical 

Center. ~ 

6. A September 14, 1987, statement addressed to 

JWR by Dr. Tyree J. Barefield-Pendleton, 

Bessemer, Alabama, stating that Mr. Williams 

was under the doctor's care for low back pain 

and was unable to report for work because of 

his illness. The doctor stated that Mr. 

William "has been disabled since 5/14/87, and 

he is still disabled". 

7o A November 15, 1989, statement addressed to 

the United Mine Workers of America by Dr. Lee 

stating that Mr. Williams has been a patient 

under his care beginning August 7, 1984, and 

that he was_ last seen·· in the doctor 1 s off ice 

on November 15, 1989. The statement reflects 

the doctor's opinion that Mr. Williams is 

disabled and unable to be gainfully employed, 

and that "an integral part of his health 

problems stem from his job conflicts 11 • The 

statement also reflects that Mr. Williams was 

drawing social security disability benefits 

since 1987. 

8. An October 15, 1987, letter from Dr. Lee to 

an attorney summarizing Mr. Williams' 

hospitalization and treatment. With respect 

his 1987 hospitalization, Dro Lee states 

Mr. Williams was hospitalized from June 

15, 1987 through June 30, 1987. Dro Lee 

noted several follow-up office visits, and 

the summary includes a statement by Dr. Lee 

that Mr. Wiliams "reported that he was 

feeling extremely frustrated in his attempts 

to deal with his company concerning his 

benefitsn. 

Findings and Conclusions 

Mro Williamsi Prior 1982-1986 Complaints. 

After careful review of all of the information submitted by 

the parties, I find no reasonable basis for revisiting any of the 

prior 1982 through 1986 complaints filed by Mr. Williams with 

MSHA. It seems clear to me from the information provided that 

MSHA investigated each of those complaints and concluded that JWR 

1673 
had not violated section 105(c) of the Act. Further, the 

information submitted by the parties, including Mr. Williams, 

includes copies of MSHA's determination letters advising 

Mr. Williams of the results of its_ investigations and informing 

him of his right to file fu;ther complaints with the Commission 

if he so desired. There is-"'no evidence that Mr. Williams filed 

any such complaints, and he does not claim that his complaints 

were not investigated or that he_was not advised of MSHA's 

dispositions of those complaints. I take note of the fact that 

in his statement filed September 12, 1991, in response to my show 

cause order, at page 5, Mr. Williams acknowledges that in each 

instance where he alleged he was terminated prior to July 1987, 

he was restored to duty through the grievance procedure. Under 

the circumstances, I conclude and find that Mr. Williams' 

attempts to reassert these prior complaints and incorporate them 

by reference with his most recently filed complaint with the 

Commission are clearly untimely and they are rejected. 

Mr. Williams has submitted a copy of a November 15, 1990, 

internal MSHA memorandum authored by- MSHA headquarter special 

investigator Wilbert B. Forbes, the investigator who personally 

contacted and interviewed Mr. Williams in response to his July 

and September 1990, letters to the Secretary of Labor. 

Mr. Forbes is critical of the "lack of thoroughness" with respect 

to MSHA's field investigations of some of Mr. Williams prior 

complaints, but he concludes that "due to the passage of time 

little if anything can be done". I conclude and find that the 

personal opinions of Mr. Forbes with respect to MSHA's prior 

investigations provide no basis for allowing these prior 

complaints to be reasserted in the instant proceeding, and any 

suggestion to the contrary by Mr. Williams is rejected. 

Mro Williamsu Present Complaint 

In his present Commission complaint, Mr. Williams seeks an 

opportunity to pursue his discharge of October 9, 1987, by JWR. 

As noted earlier, at the time he filed his complaint with MSHA, 

he claimed that he had been discharged "because of 'the legal 

action that I have filed against the company and union. I also 

feel that the company and union get together and arranged my 

dischargeui, He named company personnel director Steve Dickenson 

and longwall coordinator Trent Trachor as the company officials 

responsible for this discharge. As part of his Commission 

complaint, Mr. Williams stated as follows: "I feel that the 

company violated several rules under our contract and that they 

breached the contract in several ways". 

I take note of the fact that in his prior MSHA complaint, as 

well as the instant Commission complaint, Mr. Wililams never 

alleged that his discharge was in any way connected with any 

safety complaints or protected activity on his part. In view of 

the untimely filing of the complaint with the Commission (three 

1674 
years after it was filed with MSHA, and four years after the 

discharge), and the absence of any allegation that the discharge 

was safety related, JWR moved for a summary dismissal of the 

complaint. 

In addressing the question of the timeliness of his 

complaint, Mr. Williams seeks to excuse his untimely filing by 

asserting that he was hospitalized with a stress condition in 

1987, when he was contacted by MSHA's special investigator, that 

he was never interviewed by the investigator, and that he could 

not recall ever receiving a copy of MSHA's determination letter 

advising him of the results of the investigation of his 

complaint. In fairness to Mr. Williams, he was afforded an 

opportunity to document these claims, and in response to my 

orders both he and the respondent have submitted information 

relative to his condition at the time of his complaint, as well 

as an assortment of additional matters. 

With regard to any protected safety rights, Mr. Williams, 

through his counsel, suggests that his discharge during a longterm disability "might be a pretext and a sham". In addition, 

Mr. Williams takes issue with MSHA's investigation of his 

complaint, and the manner in which his union represented him 

during an arbitration related to his discharge. Mr. Williams 

alleges that the union failed to reschedule his arbitration 

hearing despite being told that he was medically disabled. He 

also alleges that he was unable to appear at the Arbitration 

hearing. 

With regard to his discharge, based on the information 

supplied by Mr. Williams, it would appear that the October 9, 

1987 9 date of termination is in fat the day that the arbitrator 

who presided over his discharge grievance decided the grievance 

JWR 1 s favoro The information supplied by Mr. Williams 

reflects that JWR sent him a letter on August 28, 1987, 

suspending him with intent to discharge for a violation of the 

labor-management contract of 1984 and a company wol;"k rule 

relating to unsatisfactory work attendance. The arbitration 

decision reflects that the proposed discharge proceeded to the 

24-48 hour meeting stage, and then went to arbitration by the 

uniono Contrary to Mr. Williams' assertion that the union failed 

to reschedule the arbitration hearing, the arbitration decision, 

on its face, reflects that the hearing was originally set for 

September 14v 1987, and although Mr. Williams did not appear at 

that time, the union asked for a continuance, and it was granted 

over the objection of JWR. The hearing was rescheduled and held 

on October 1, 1987, and the grievance decision reflects that 

Mr. Williams appeared and participated in the hearing. 

I have reviewed the arbitration decision sustaining 

Mr. Williams' discharge, and nowhere is there any mention of any 

safety complaints or protected activity by Mr. Williams as the 

1675 
reason for the discharge. The sole issue in that case was 

whether or not the work absences which prompted JWR to suspend 

and discharge Mr. Williams were justified because of his asserted 

work-related illnesses and injuries. I take note of the fact 

that the arbitrator was the same individual who had previously 

ordered Mr. Williams reinsta'°'ted after a previous discharge in 

October, 1986, for absenteeism. In that previous proceeding, 

although Mr. Williams was ·reinstated, the arbitrator observed 

that Mr. Williams "appears to be a chronic absentee". 

With regard to MSHA's investigation of his complaint, 

Mr. Williams states that he did not meet with MSHA's special investigator Dennis Ryan because "he was simply unable to do so". 

In an undated affidavit, Mr. Williams suggests that he never met 

with Mr. Ryan because he was under a doctor's care and was 

dysfunctional as the result of treatment for depression. 

However, the aforementioned Forbes Memorandum reflects that 

during a personal interview with Mr. Forbes, Mr. Williams 

acknowledged that he was contacted by Mr. Ryan, but refused to 

speak with him because he wa,sd not· sure of his identity and 

whether or not Mr. Ryan would be fair in the conduct of his 

investigation. Mr. Ryan confirmed to Mr. Forbes that 

Mr. Williams refused to talk to him. This information is 

corroborated by a July a, 1990, memorandum by Mr. Ryan, a copy of 

which was supplied by Mr. Williams, in which Mr. Ryan confirms 

that Mr. Williams would not meet with him and that he provided no 

witnesses or information concerning his complaint. 

I take further note of the fact that in the October, 1987, 

grievance proceeding, the arbitrator expressed some credibility 

reservations with respect to some of the medical evidence 

submitted by Mr. Williams in defense of his absences from worku 

a.nd noted that Mr. Williams stated that he "had no intention of 

ever returning to work and that he had filed for total 

disability 1i. With regard to the initial continuation of the 

grievance hearing, the arbitrator observed that Mr. Williams was 

given the benefit of the doubt when the continuance was granted. 

The arbitrator also made reference to the fact that while he was 

attempting to obtain doctor's excuses to justify a continuance, 

Mro Williams was at the same time making court appearances and 

testifying on September 8, and 16, 1987, in connection with 

certain workers 1 compensation claims he had filed against JWR. 

The arbitrator observed that "it seems clear that Mr. Williams 

was able to attend to all his business except to appear" at the 

initial grievance hearing. 

After careful review of all of the information submitted by 

Mr. Williams, I am.not convinced that his treatment and 

hospitalization for stress and his chronic back ailments mitigate 

or excuse his failure to timely pursue his complaint further 

before this Commission. Mr. Williams makes no claim that he was 

ignorant of his rights and remedies under the Mine Act. His 

1676 
claim is that he was being treated for stress and could not 

recall receiving MSHA's determination letter which included 

information concerning his right to file a further complaint with 

the Commission. However, given the number of complaints and 

grievances Mr. Williams has filed over the years, I cannot 

conclude that he was unawar' of his rights and remedies. Indeed, 

Mr. Williams makes no claim that he never received any of the 

prior MSHA adverse determination letters in which he was 

specifically informed of his right to file further complaints on 

his own behalf with the commission within 30 days if he disagreed 

with MSHA's determination. 

In David Hollis v. consolidation Coal Company, 6 FMSHRC 21 

(January 9, 1984), aff'd mem., 750 F.2d 1093 {D.c. Cir. 1984) 

(table), the Commission affirmed a dismissal of a miner's 

discrimination complaint filed six months after his alleged 

discriminatory discharge. In that case, the commission stated 

that "Tardiness questions must be resolved on a case-by-case 

basis, taking into account the unique circumstances of each 

situation", 6 FMSHRC _24. 

In Ernie L. Bruno v. Cyprus Plateau Mining Company, 

10 FMSHRC 1649 (November 1988), Commission Review Denied January, 

1989, aff'd, No. 89-9509 (10th Cir., June 5, 1989) (unpublished), 

Commission Judge John Morris found that a complaint filed more 

than four and one-half years after the alleged act of 

discrimination was untimely. He concluded that the company officials who investigated and made the termination decision no 

longer worked for the company, and that it was questionable 

whether these individuals would have a present recollection of 

the events in question. 

In Joseph Wo Herman Vo IMCO Services, 4 FMSHRC 2135Q 2138-

2 9, (December 1982), _the Commission observed that the placement 

limitations on the time-periods during which a plaintiff may 

institute legal proceedings is primarily designed to assure 

fairness to the opposing party by: 

ooo preventing surprises through the revival of claims 

that have been allowed to slumber until evidence has 

been lostp memories have faded, and witnesses have disappearedo The theory is that even if one has a just 

claim it is unjust not to put the adversary on notice 

to defend within the period of limitation and that the 

right to be free of stale claims in time comes to 

prevail over the right to prosecute them. 

Mr. Williams suggests that allowing him to proceed with his 

complaint would only result in minimal prejudice to the 

respondent "because the business records still exist, and the 

issues are narrow". The respondent, however, points out that 

personnel director Steve Dickerson, the individual responsible 

1677 
for enforcing the company rules at the time of Mr. Williams' 

discharge, is no longer employed by JWR. Further, JWR maintains 

that if the filing deadline had been met by Mr. Williams, it 

would have been in a much better position to investigate and 

defend against the allegations made in the complaint. JWR 

believes that it would be prejudiced if it is now required to 

def end against an untimely claim based upon a discharge which 

occurred four years ago. I agree. 

After careful examination of all of the available 

information, and aside from the fact that the complaint is 

untimely, I believe that Mr. Williams' complaint against JWR is 

the result of a longstanding contractual dispute connected with 

his asserted job-related injuries, disability compensation, and 

workers' compensation claims. Under the circumstances, I reject 

Mr. Williams' attempts to "bootstrap" these disputes into a 

viable discrimination complaint pursuant to section 105(c) of the 

Mine Act. Accordingly, I conclude and find that the complaint 

should be dismissed. 

ORDER 

In view of the foregoing findings and conclusions, the 

complaint filed by Mr. Williams IS DISMISSED, and his claims for 

relief pursuant to section lOS(c) of the Mine Act ARE DENIED. 

~A.t?o~ Administrative Law Judge 

Distribution~ 

Gregory T. Bailey, Esq., 434 Flat Shoals Avenue, S.E., Atlanta, 

GA 30316 (Certified Mail) 

David Mo Smith 1 Mark Strength, Esqs., Maynard, Cooperv Frierson & 

Gale 1 PoCou 1901 Sixth Avenue North, 2400 AmSouth/Harbert Plaza, 

Birmingham, AL 35203-2602 (Certified Mail) 

Harold Rice, Esq., Jim Walter Resources, Inc., No. 7 Mine, Rt. 1, 

Box 9750, Brookwood, AL 35444 (Certified Mail) 

/ml 

1678 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 16 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

MACK ENERGY COMPANY, 

Respondent 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 91-142 

A. C. No. 46-06887-03522 

Montague Mine 

Appearance: Pamela s. Silverman, Esq., Office of the Solicitor, 

u. s. Department of Labor, Arlington, Virginia, for 

the Secretary; 

Gerald P. Duff, Esq., Hanlon, Duff & Paleudis 

co., LPA, St. Clairsville, Ohio, for the Respondent. 

Before: Judge Maurer 

This civil penalty proceeding concerns proposals for the 

assessment of civil penalties against the respondent, Mack Energy 

Company (Mack) pursuant to section llO(a) of the Federal Mine 

Safety and Health Act of 1977v 30 U.S.C. § 820(a), for four 

alleged violations of certain mandatory safety standards found in 

Part 77s Title 30 Code of Federal Regulations. At hearing, the 

parties proposed a settlement concerning three of these 

section 104(d) (2) orders. Concerning Order No. 3476017, the 

~ecretary proposes to modify it to a section l04(a) citation and 

reduce the civil penalty from $850 to $395. With regard to Order 

No. 3476019, the Secretary proposes to also modify that order to 

a section 104(a) citation and likewise reduce the proposed 

penalty from $850 to $395. Finally, the Secretary also proposes 

to modify Order No. 3476030 to a section l04(a) citation and 

reduce the proposed civil penalty from $1000 to $395. Taking 

into account the six statutory criteria for civil penalty 

assessment contained in section llO(i) of the Act, I conclude 

that the proposed settlements are reasonable, proper and in the 

public interest. They are therefore approved and will be 

incorporated into my final decision and order herein. 

The issues contained in one section 104(d) (2) Order~­

Order No. 3476018 were tried before me on May 30, 1991, in 

Wheeling, West Virginia. Both parties have filed posthearing 

briefs, which I have duly considered in making the following 

decision. 

1679 
STIPULATIONS 

The parties stipulated to the following, which I accepted 

(Tr. 10-11): 

1. Mack Energy Company is the operator of the Montague Mine 

which is the subject of this proceeding. 

2. Operations at the Montague Mine are subject to the Mine 

Safety and Health Act. 

3. The undersigned Administrative Law Judge has 

jurisdiction to decide this case. 

4. MSHA Inspector Sherman Slaughter was acting in an 

official capacity as a duly authorized representative of the 

Secretary of Labor when he issued Order No. 3476018 on July 12, 

1990. 

5o A true copy of Order No. 3476018 was properly served on 

the operator or its agent. 

6. The violation history constitutes 57 assessed violations 

on 49 inspection days which is an average of 1.165 violations per 

inspection day. 

7. The violation was abated within the time set for 

abatement. 

8. The operator is a moderate sized operator, and the mine 

is a moderate sized mine. The operator produced 222,000 tons and 

this mine produced 209,000 tons in 1989. 

DISCUSSION 

Section 104(d) (2) Order Noo 3476018.was issued by MSHA 

Inspector Sherman Slaughter on July 12, 1990. The inspector 

cited a violation. of the mandatory safety standard found at 

30 C.F.R. § 77.1004(b) 1

/ and the cited condition or practice is 

described as follows: 

Loose, cracked, unconsolidated, overhanging rocks 

existed in the approxo 35 foot highwall of the 

Pittsburgh 8 pit where an end loader and two rock 

trucks were loading spoil directly under the rocks and 

hauling it back along the highwall. The rocks existed 

in the wall approximately 20 feet above the floor of 

1/ This section of the standards requires that overhanging 

highwalls and banks be taken down or in the alternative, the area 

posted. 

1680 
the pit and extended along the wall approximately 

120 feet. The affected area was not posted and this 

was an unsafe ground condition with overhanging 

highwall. Jack Wilfong, superintendent, examined this 

pit area and highwall and directed the end loader and 

rock trucks to work in the pit. He knew this condition 

existed. It was raining and had rained during the 

night previous to this shift. 

on July 12, 1990, Inspector Sherman Slaughter conducted an 

inspection of the Montague Mine. He arrived at the mine site at 

approximately 6:00 a.m., and met with miner safety representative 

Larry Curtis, maintenance foreman Bud Conner, and mine 

superintendent Jack Wilfong. However, only Larry Curtis 

accompanied Inspector Slaughter on the ensuing inspection. 

During that inspection, the inspector examined the highwall 

in the Pittsburgh Eight Pit and found what he described as loose, 

cracked rock and twc:;> areas of'..overhanging rock extending out from 

the wall a distance of approximately 6 and 8 feet, respectively. 

The overhangs and cracked rock encompassed a distance of 

approximately 120 feet along the wall. 

The 8 foot overhang was supported by a rock which was 

cracked on both sides and was identified by the inspector as the 

"No. 1" rock. [The rock the inspector was most concerned with - see Govt. Ex. Nos. 3 and 4]. On one side of the "No. l" rock, 

the crack had widened into an 8 to 10 inch vertical gap filled 

with loose rock. The cracked gap extended up the wall and curved 

around toward the overhang where it intersected with another 

vertical crack. This crack had also widened into a gap of 

approximately 6 inches and extended up the overhang from where 

the overhang met the highwall" In additionv another crack 

extended down the wall behind the 91Noo 1uu rock and the cap rock 

on top of the overhang consisted of layered or fractured 

sandstone which was not consolidated with the wall. 

Significantlyp neither of the aforementioned overhangs were 

posted as required by 30 CoFoR § 77.1004(b). That fact alonev 

without morev substantiates a violation of the cited standard. 

That settled, the next issue to consider is whether the failure 

to take down the overhangs or post the area is a nsignificant and 

substantial 10 violation of the cited mandatory standard. 

A "significant and substantial" violation is described in 

section 104(d) (1) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 

30 C.F.R. § 814(d) (1). A violation is properly designated 

significant and substantial "if, based upon the particular facts 

1681 
surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature." Cement Division, 

National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

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

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary of 

Labor must prove: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to safety 

contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result 

in an injury; and (4) a reasonable likelihood that the 

injury in question will be of a reasonably serious 

nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, the Commission stated further as follows: 

We have explained further that the third element 

of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

is an injury." U. s. Steel Mining Co., 6 FMSHRC 1834, 

1836 (August 1984). We have emphasized that, in 

accordance with the language of section 104(d) (1), it 

is the contribution of a violation to the cause and 

effect of a hazard that must be significant and 

substantialo Uo So Steel Mining Company, Inco, 

6 FMSHRC 1866 9 1868 (August 1984); Uo S.Steel Mining 

Company, Inc. 8 6 FMSHRC 1573 1 1574-75 (July 1984). 

The question of whether any particular violation is 

significant and substantial must be based on the particular facts 

surrounding the violationv including the nature of the mine 

involved, Secretary of Labor Vo Texasgulf, Inc.v 10 FMSHRC 498 

(April 1988) p Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 

December 1987)" 

Inspector Slaughter testified that due to the condition of 

the highwall and the fact that he observed an end loader and two 

rock trucks working in the area around the highwall, he believed 

there to be a significant rock fall hazard if the condition was 

not abated. Furthermore, I believe the inspector properly 

1682 
considered the effect of continuing mining operations on the 

gravity of the situation. The overhanging rocks were large and 

because of the existing cracks in the wall, reasonably likely to 

fall if the overhanging conditions were allowed to persist. 

Respondent Mack raises two substantive issues in defense of 

this point. First, they contend that the highwall was safe. 

They know this because they tried to scale the entire highwall a 

day or two prior to the citation being issued and no loose 

material could be brought down. .But this defense fails to take 

into account the dynamics of the environment the highwall exists 

in. Changes in the weather occur for instance. It was raining 

at the time the citation was issued and it certainly is in the 

realm of possibility that it could rain for several days running. 

A lot of running water could loosen a rock that just a few days 

before could not be scaled down. The inspector testified from 

his experience that he has observed many occasions where a rock 

could not be scaled down off a highwall only to have it fall out 

of the wall at some later time because of changing pressures in 

the highwall or because of weather-related deterioration of the 

highwall. 

Secondly, Mack contends that the inspector must be mistaken 

or even lying about seeing the end loader and rock trucks 

operating at ll:OO a.m., underneath the overhanging rocks. Upon 

reflection, it is my view that it is not necessary to belabor the 

issue of exactly what time the equipment was in service or out of 

service. Nor is it essential to prove that the equipment was 

operating directly underneath the overhanging rocks. What is 

clearly in the record is the inspector's sworn testimony, which I 

do credit, that he personally observed the equipment working in 

the area of the overhanging highwall that morning between 10:00 

and 11~00 a.mo He testified that he saw the situation at 

approximately 10g30 a.m. and issued the order at ll:OO a.mo More 

specificallYv he observed the two rock trucks working within 

12 to 15 feet of the highwall at that time. Given the condition 

of the highwall that morning, that was too close in his opinion, 

and a serious or even fatal injury could reasonably have resulted 

if any of this overhanging rock material had fallen down on them. 

The important features at this stage of the proceeding are 

that the overhanging highwall had not been taken down or posted 

and men were working in that area that morning. It is not so 

important exactly what time it was, or if the equipment that was 

operating was ever observed directly underneath the overhangs. 

The rock trucks passing 12 to 15 feet from the wall as they 

backed in front of the overhang is close enough to make this an 

"S & S" violation and I so find. 

I fully realize that there is a conflict in the evidence. 

The respondent's witnesses state that the end loader broke down 

between 9:00 and lO:OO a.m. on the morning in question, whereas 

1683 
the inspector insists that the two rock trucks were still 

operating at 10:30 a.m. Since there would be no use for the rock 

trucks without the end loader to load them, by implication, the 

respondent's evidence is that they also were not operating at 

that time. on the other hand, the inspector was at the mine site 

since 6:00 a.m. that morning. Maybe he saw the rock trucks in 

operation before 10:30 or even before 10:00 a.m. In any event, 

he was a very credible witness with no demonstrable bias against 

this operator. He testified very clearly on direct that he saw 

the rock trucks operating in the close vicinity of a potentially 

dangerous overhanging highwall. He was unshakable on crossexamination and I simply believe him. He has no reason to lie 

about it and I believe the trucks were operating where he says they were that morning at approximately 10:30 a.m., give or take 

30 minutes. 

The Secretary also urges that I find this violation to be an 

"unwarrantable failure." 

It should be pointed out-here that Order No. 3476018 was 

issued by Inspector Slaughter as a section 104(d) (2) order on 

July 12, 1990, relying on section 104(d) (l) Order No. 3334014 in 

the section l04(d) "chain" for its procedural validity. However, 

on March 15, 1991, Commission Judge George A. Koutras modified 

that (d) (1) order which had been issued on January 4, 1990, to a 

section 104(d) (1) citation. Mack Energy company, 13 FMSHRC 432, 

468 (March 1991). 

Section 104(d) (l) authorizes the inspector to issue an 

unwarrantable failure order if, during the same inspection, or 

any subsequent inspection conducted within 90 days after the 

issuance of the initial unwarrantable failure citation, he finds 

another violation of any mandatory safety standard which he 

believes was also caused by an unwarrantable failure by the 

operator to complyo 

In this case, however, since more than 90 days elapsed 

between the issuance of section 104(d) (1) Citation No. 3334014 on 

January 4u 1990, and the purported order issued by Inspector 

Slaughter on July 12, 1990, it cannot stand as a section 104(d) 

ordero It must therefore necessarily be modified to either a 

section 104(a) citation or a section 104(d) (1) citation, 

depending on the unwarrantable failure finding which I make 

Jllereino 

The Commission has held that an "unwarrantable failure" to 

comply with a mandatory standard means "aggravated conduct, 

constituting more than ordinary negligence, by a mine operator in 

relation to a violation of the Act." Emery Mining corporation, 

9 FMSHRC 1997 (December 1987); Youghiogheny & Ohio coal company, 

1684 
9 FMSHRC 2007 (December 1987); Secretary of 

Mining Company, 10 FMSHRC 249 (March 1988). 

prior holding in the Emery Mining case, the 

follows in Youghiogheny & Ohio, at 9 FMSHRC 

Labor v. Rushton 

Referring to its 

Commission stated as 

2010: 

We stated that whereas negligence is 

conduct that is "inadvertent," "thoughtless" 

or "inattentive," unwarrantable conduct is 

conduct that is described as "not 

justifiable" or Hinexcusable. 11 Only by construing unwarrantable failure by a mine 

operator as aggravated conduct constituting 

more than ordinary negligence, do 

unwarrantable failure sanctions assume their 

intended distinct place in the Act's 

enforcement scheme. 

Superintendent Wilfong was aware of the condition of the 

highwall, knew it was not posted or "dangered off," and knew men 

(rock truck drivers) were to-be working in the immediate area of 

the highwall on the morning of July 12, 1990. I therefore find 

that the failure of Wilfong to either promptly take down the 

overhanging portions of the highwall or post the dangerous area 

exposed miners to a falling rock hazard and constitutes 

negligence of such an aggravated nature so as to establish an 

"unwarrantable failure" in this case. Under these circumstances, 

the inspector's "unwarrantable failure" findings will be affirmed 

herein. 

With regard to the assessment of a civil penalty for the 

violation, the parties have stipulated to the operator's violation history 1 good faith abatement, and moderate size and I 

concur in the inspector 1 s high negligence and "S & S" findings. 

also find the violation to be a serious one. 

On the basis of the foregoing findings and conclusions, and 

taking into account the six statutory civil penalty assessment 

criteria found in. section llO(i) of the Act, I conclude and find 

that a civil penalty of $700 is reasonable and appropriate. 

ORDER 

lo Order Nos. 3476017, 3476019, and 3476030 ARE MODIFIED to 

section 104(a) citations, with "S & S" findings, and as modified, 

they ARE AFFIRMED. 

2. Order No. 3476018 IS MODIFIED to a section 104{d} (l) 

citation, with an "S & S" finding, and as modified, it IS 

AFFIRMED. 

1685 
3. Mack Energy Company is ORDERED TO PAY the sum of $1885 

within 30 days of the date of this decision as a civil penalty 

for the violations found herein. 

Law Judge 

Distribution: 

Pamela s. Silverman, Esq., Office of the Solicitor, u. s. 

Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington, 

VA 22203 (Certified Mail) 

Gerald P. Duff, Esq., Hanlon, Duff & Paleudis co., LPA, 

46457 National Road West, St. Clairsville, OH 43950 (Certified 

Mail) 

dcp 

1686 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

J. MIKE PLEVICH, 

Complainant 

v. 

1730 K STREET NW, &n:I FLOOR 

WASHINGTON, D.C. 20006 

October 16, 1991 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 91-1993-D 

MORG CD 91-03 

Humphrey No. 7 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

ORDER OF DISMISSAL 

Before: Judge Merlin 

On August 14, 1991, .the,.complainant filed with the Commission a discrimination complaint pursuant to section 105(c) of the 

Mine Act. 30 u.s.c. § 815(c). On August 19, 1991, the Commission sent a letter to the Complainant requesting him to send 

additional information in order to process his complaint. On 

October 2, 1991, the Complaint filed a letter stating that he was 

withdrawing his complaint because he had received favorable 

results through a grievance procedure. 

In light of the foregoing, the Complainant's request to 

withdraw his complaint is GRANTED. 

It is ORDERED thaf this case be and is hereby DISMISSED. 

Paul Merlin -- Chief Administrative Law Judge 

Dist'ributiong 

Mro Jo Mike Plevich, Chairman Safety Committee, Local 1058, 

District 31, UMWA, 444 Western Avenue, Morgantown, WV 26505 

(Certified Mail) 

Mr. John Higgins, Consolidation Coal Company, P. o. Box 100, 

Osage, WV 26505 (Certified Mail) 

/gl 

1687 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SAN JUAN COAL COMPANY, 

Respondent 

DENVER, CO 80204 

OCT 211991 

. . 

. . . 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 90-110 

A.C. No. 29-01168-03532 

Docket No. CENT 90-143 

A.C. No. 29-01168-03533 

Docket No. CENT 90-144 

A.C. No. 29-01168-03534 

San Juan Mine & Plant 

Docket No. CENT 90-166 

A.C. No. 29-01825-03513 

La Plata Mine 

DECISION 

Appearances: Michael H. Olvera, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, 

:tor Petitioner u 

Donald Lo Jumphreysu Esqo 0 San Juan Coal Companyu 

San FranciSCOe california 0 

:tor Respondent" 

Before~ Judge Lasher 

In these four proceedings the Secretary of Labor (MSHA) 

seeks assessment of penalties tor a total of 26 alleged violations {described in 26 Citations) pursuant to Section llO(a) of 

the Federal Mine Safety and Health Act of 1977 0 30 U.S.Co 

§ 820(a) (1977)0 

Atter the commencement ot hearing in Durango, Colorado, on 

May 13 0 1991, the parties concluded settlements ot 22 of the 26 

enforcement documents, which accord as reflected below was approved from the bench and is here affirmed. The remaining four 

Citations (three involving so-called "grounding" charges and one 

"highwall" matter involving an alleged infraction ot Respondent's 

Ground Control Plan) were tully litigated. As result of the settlement, the only Citation involved in Docket No. CENT 90-110 was 

fully disposed of. 

1688 
As to the four Citations litigated, Respondent challenges 

the occurrence ot violation on all and the "Significant and Substantial" designations in two of the three "grounding" Citations 

(Nos. 3414864 and 3413540) and the highwall Citation, and as to 

the grounding Citations mal~es a serious challenge to the standard involved on the basis that it is unconstitutionally vague 

with respect to its application to the three electrical appliances cited, pointing out that MSHA's Program Policy Manual (Ex. 

P-7, II-T. 27-28, 40-42) and personnel have apparently exempted 

the type ot appliances involved here trom coverage. 

DOCKET NO. CENT 90-110 

This docket contains one Citation, No. 9996512, which was 

settled at the hearing. Pursuant to their agreement, the parties 

concur that this Citation should be modified 

C 1) to change paragraph 10 A thereof to reduce the "Gravity" 

ot the violation from 11 Reasonably Likely" to "No Likelihoodn~ 

( 2) to change paragraph 10 B thereof trom "Lost Workdays or 

Restricted Duty" to "No Lost Workdays"; 

(3) to delete the "Significant and Substantial" designation 

contained in paragraph 10 C thereof; and 

( 4) to change the 11 Negl igence" designation in paragraph 11 A 

from "Moderate" to "Low." 

2=\s rnodi.tiedv the parties stipulated that $147 is an appropriate 

penalty for this violation. Such penalty is here assessed and 

the settlement reachedu having been approved tram the bench, such 

is here AFFIRMED. 

ORDER (CENT 90-110) 

Citation Noo 9996512 is MODIFIED as agreed to by the parties 

as set forth above. Respondent, if it has not previously done so, 

SHALL PAY to the Secretary of Labor within 30 days from the date 

ot this decision the sum ot $147 as stipulated. 

DOCKET NO. CENT 90-166 

This docket contains one Citation, No. 5414864, a so-called 11 grounding" allegation which was not settled. Discussion and 

decision thereof appears below under the heading "Three Grounding 

Citations." 

1689 
DOCKET NO. CENT 90-143 

This docket contains to Cl.tatiops, 18 of which were settled 

at hearing. Of the remaining two Citations, No. 3413540 involves 

an alleged infraction of 3'0 c. F.R.~ S 77. 701 and is discussed in 

the subsequent section '."Three Grounding Citations." The last 

Citationt No. 3414683, ref~rred to ~n th~· transcript as the 

"highwall" Citation, is likewise disc·ussed and decided 

subsequently. 

THE. PARTIAL SETTLEMENT 

As noted, .LS ot the Ci drtions· were ~ettled at the hearing. 

CI-T. 98-104). Respondent agreed to pay in full MSHA's initially proposed penalties as to 11 of these lli, 6 were modified, and 

as to one, Citation Np·. 3413538, the "excessive history" upgrading was waived by Petitioner and th~ proposed penalty reduced 

trom $649 to $413. The agreement reached as set forth below was 

approved trom the bench at hearing Cl.nd that approval is here 

AFFIRMED. . . 

Citation 

Number Agreed Penalty Modification 

3413538 $ 413 None 

3413539 350 None 

3414668 350 None 

3414669 350 None 

3414670 350 None 

3414671 350 None 

3414672 350 None 

3414673 350 None 

3414674 264 See "Order" be.Low 

J414675 350 None 

3414676 350 None 

3414671 350 None 

3414686 264 See "Order ii 

3414687 214 See "Order" 

3414688 264 See "Order 11 

3414689 264 See 11 0rder 11 

3414690 350 None 

3414691 357 See 11 Order" 

TOTAL ~5,890 

1690 
Order Ettectua ting Partial Settlement. (CENT 90-143) 

Citation No. 3414674 is modif~edto change paragraph 11 

thereo:t pertainng to "Negligence"· from "Moderate" to 11 None. 11 

Ci c.a tion No. 3414686 is modi tied. to change p~ragra.ph 11 t,hereof 

pertaining to "Negligence" from "Moderate"·· to "None. 11 Ci ta ti on 

'No. 3414687 is moditied to chang.e paragraph 10 A thereo.t pertaining to "Gravity" from "Reasonably Likel,Y". to "Unlikely"; to 

change paragraph 11 thereof pertaining to "Neg.Ligence" trom "Moderate" to "None"; and to ~elete the "Significant and Substantial" 

designation contained in paragraph 10 C .. thereof. 

Citation No. 3414688 is modified to change paragraph 11 

thereof pertaining to "Negligence" from "Moderate" to "None." 

Citation No. 3414689 is modified to change paragraph 11 

thereof pertaining to "Negligence" froin "Moderate" to "None." 

Citation No. 3414691 is,·modified to change paragraph 11 

thereof pertaining to "Negligence" from "Moderate" to "Low." 

Respondent, if it bas not previously done so, within :rn days 

trom the date hereof, SHALL PAY to the Secretary of Labor the 

total sum ot $5,890.00 as and for the civil penalties above 

assessed in this docket pursuant to their settlemen,t agreement. 

Penalties for the two remaining Citations .in this docket, Nos. 

3413540 and 3414683 will be determined separately and subsequent- ly herein. · 

DOCKET NO. CENT 90-144 

This docket contains four Citations~· three of which were 

settled at the hearing as reflected belowe The remaining Citation, No 3414692, involves an alleged intraction of 30 C.F.R. 

§ 770701 and is discussed in the subsequent section entitled 11 Three Grounding Citations. 11 

The Partial Settlement 

As noted/i' three ot the four Citations in this docket were 

settled at hearing. (I-Te lOS)o Pursuant thereto, Citation No. 

3414693 and Citation No. 3414694 are both to be modified to 

change paragraph 11 to show the degree ot negligence involved in 

the viola ti on to be nLow" rather than "Moderate" and the penalty 

for each is to be reduced from $350 to $192. As to Citation No. 

3414698, there are no mod1t1cations and the penalty concurred in 

by both parties is $259. This agreement was approved from the 

bench and such approval is here. AJrFIRMBD. 

1691 
Order Effectuating Partial Settlement (CENT 90-144) 

Citations numbered 3414693 and 3414694 are modified as 

agreed to by the parties and reflected above, and Respondent 

SHALL PAY to the Secretary of Labor within 30 days from the 

date of this decision the total sum ot $E>43.UO as and tor the 

civil penalties agreed to. The penalty for Citation No. 3414692 

will be assessed separately subsequently herein. 

THREE "GROUNDING" CITATIONS 

These three Citations, each in a different docket as noted 

above, all originally involved alleged "Significant and Substantial" infractions of the standard contained in 3U C.F.R. § 77.701 

pertaining to "Grounding" which provides: 

- Grounding metaliic trames, casings, and other 

enclosures of electric equipment. 

Metallic frames, casings, and other enclosures of electric equipment. that can become 

"alive" through tailure of insulation or by 

cont.act with energized parts shall be grounded 

by methods app~oved by an authorized representative of the Secretary. 

Evidence tor these three Citations was received separately 

and appears in different parts of the transcripto The parties 

tipulated that the evidence introduced with respect to the Citation in Docket No. CENT 9U-l6& (Which was tried first), insofar 

as relevant, is to be incorporated by re~erence into the record 

for the other two Citations in dockets numbered CENT 90-143 and 

CENT 90-144, respectivelyv and vice versao (I-To 107-lOBu 

!I=T.29)c 1 ~~ 

l The hearing was held on two days, May 13 and May 14, 

1991 o For each of the two days of hearing there is a separate 

transcript beginning with page 1. Accordingly, transcript 

citations will be prefaced with "I 11 and "II" ±or May 13 and 14, 

respectively. 

1692 
Citation No. 3414864 (Docket No. CENT 90-166) 

This Citation, issued by MSHA Inspector Larry w. Ramey during an AAA (regular) inspection on May 16, 1990, charges Respondent as follows: 

A ground was not provided tor the energized 

General Electric Toast-Oven located in the 

warehouse. This toaster was 110 ~c. The 

outer housing ot the toaster was constructed 

ot Metallic. There was no external ground 

observed for the toaster. This toaster was 

equipped with a 16/2 cable. 

This appliance (I-T. 33) was located on a tormica-topped 

metal table sitting in an eating area in a warehouse with a 

concrete floor. As charged in the Citation, it had no external 

ground, had a metal housing,,.and was equipped with a size 16 cord 

(tour feet long> with two conductors. <I-T. 24-26, 33, 46). 

Inspector Ramey felt that, in terms of the "hazard" involved, the warehouse was unlike a residential dwelling since it 

was constructed ot steel and had concrete tloors, which he said 

was "a good conductor of electricity." CI-T. 21:n. The Inspector 

believed that the toaster would have been used on every shift, 

five to seven days a week, by miners wearing steel-toed shoes. 

He felt that people could become the "ground" themselves, it 

"something happened to the internal wiring" and the insulation 

tailed and a person walked up and touched it. He knew of no specific instance where such toasters were involved in such an occurrenceo (I-To 28-29)0 In his opinion, a shock injury occur-

;;: ing :trom such event could reasonably be expected to result in 

ost worJ{ days 0 and he pointed out that electrical shock could 

cause even electrocution and heart attacks. (I-T. 29, 3U). He 

was of the opinion that Respondent was "moderately negligent" 

since the forenan should have been aware of the toaster and because he felt the toaster was "electrical equipment" which was 

subject to a monthly 11 electrical equipment" check. He believed 

t.he area in question would not have .been "hosed down" for cleaning purposes 0 but would have been mopped. He also speculated 

l:ha t the toaster would have been used more frequently than one in 

the average household." (I-T. 38). 

Like the other two appliances (Proctor-Silex Toaster and 

portable heater> involved in the related grounding Citations, 

this G.E. toaster was U.L. approved. It was not in any way 

damaged. (I-T. 45). According to Terrance D. Dinkel, an electrical engineer with MSHA's Safety and Health Technology Center 

1693 
in Denver, Colorado, in order tor a toaster to become hazardous 

it would "have to develop a fault in it." (I-T. 55). He was 

unable to express an opinion as to the likelihood of an accident 

occurring. , (I-T. 58, 61). He knew of one fatality trom a miner 

using a power tool, but none involving a toaster. (I-T. 64-65). 

The National Electrical Code (NEC) provides that such a 

toaster can be used in areas which are not damp or wet. CI-T. 

54-55). 

Contrary to the somewhat speculative tenor of Petitioner's 

witnesses, Respondent established that ,only three warehousemen 

used the toaster. (I-T. 70). Respondent also established that 

(1) from its inquiry to Black & Decker, G.E.'s small appliance 

division, there had been no instances of product liability for 

toaster ovens (I-T. 70-71) and (2) it had not had, in the prior 

13 years, any employee injuries tram an appliance. 

Respondent's expert witness, Lynn Byers, a master electrician, testified that the fact of U.L. approval indicates an appliance complies with the N.E.C. CI-T. 73-77). He also indicated, contrary to Mr. Dinkel, that there is a significant ditf erence between a power tool, which is motor driven and can be 

overloaded, and kitchen 11 fixed resistance" appliances which are 

not subject to overload abuse. CI-T. 77). Also, contrary to 

Petitioner's witnesses, he convincingly testified concerning the 

significance of any differences between residential environments and the warehouse environment: 

Qo Much was made ot the differences between the 

residential environment and warehouse environment in a surface coal mine" Do you see any 

basis for such a distinction? 

Ao I think two of them are alike in some respects 

and different in others. As far as National 

Electric Code is concerned# indoor locations 

are the same whether they're in a coal mine or 

residenceo They're not damp or wet locations. 

Furtherv I believe at the strip mine, you 

know, we're talking about certified electricians 

under direct supervision of management performing 

the different tasks and work. We're talking 

about adults in the mine rather than kids and 

e~derly people, and maybe people that are incapacitated using these appliances. The people at 

the mine are also trained in electrical hazards 

and avoidance as well. We're not--I think it's 

1694 
unfair to compare general public with qualified 

trained miners who are in good health, and so 

torth. CI-T. 77-78). (Emphasis supplied). 

Respondent also established that the G.E. toaster oven in. 

question sits on a credenza on the exterior portion of a small 

ottice (of drywall construction) in the southeast corner of the 

two 50- by 100-±oot warehouse. (I-T. 69-70). 

In response to an inquiry from Respondent (Ex. P-3; II-T. 

405), concerning grounding ot the toasters, Paul Duke, Assistant 

to the Vice President, Electrical Division, Underwriters Laboratories, Inc., gave an incisive and probative analysis of the situation (Ex. R-5; I-T. 80-82), which is in part quoted here: 

Underwriters Laboratories Listed electrical 

equipment tor ordinary locations has been evaluated for use in a~~ordance with the National 

Electrical Code and to determine that the design ot such equipment provides for the reduction of the risk of injury to life and property. 

Grounding of equipment connected by cord-andplug is covered in Section ~50-45 ot the NEC 

and is retlected in our Standards. 

Electric toasters are not among the appliances 

in residential occupancies required to be 

grounded by Section 250-45(c). Additionally, 

in other than residential occupancies, cordand-plug connected appliances not used in damp 

or wet locations or by persons standing on the 

ground or on metal floors or working inside metal tanks are not required to be grounded. Please 

refer to Section 250-45(d), item (5). UL considers Listed electric toasters, although not 

grounded, to comply with the NEC whether used in 

residential occupancy or the type of premises 

you described which I understand is a dry location o 

Modifications to toasters to replace the power 

cord with a grounding type cord, which you indicate is required by the inspector, can introduce risks ot electric shock or fire ...• 

* * * 

1695 
All ot the foregoing and possibly other concerns, 

depending on the toaster construction, lead to the 

conclusion that risks of fire or electric shock 

may be introduced when field moditications are 

made to a Listed product. 

UL cannot comment on MSHA regulations other than 

it appears subparagraph 77.701 is intended to 

apply to mining equipment, tools, and appliances 

used in the mining operation and not to appliances used in an office-type dry location. 

(Emphasis added). 

Citation No. 3413540 (Docket No. CENT 90-143) 

This Citation, issued on April 2, 1990, by Inspector Ramey, 

charges tl1e following violative condition: 

The 110 AC electrical wall heater located in the 

Radio Repair shop was not provided with a ground. 

The heater was equipped with a 16/2 electrical 

cable. No external ground was provided. This 

heater was energized when this condition was 

observed. The outer frame was metal. 

Petitioner points out with respect to this Citation 2 that 

the fact situation and expert testimony is essentially the same 

as that in Docket CENT 90-166 p with the exception tl1a t this Ci taion refers to a 110 AoCo electrical wall heater located in the 

:radio repair shop Ca small room) in close proximity to one radio 

repairman (I-To 109)" Petitioner's evidence indicates that the 

repairman works at a metal desk and the 8 x 10 room has a concrete flooro The ungrounded heater was about one toot by four 

teet in size and the inspector thought it was mounted on a wallo 

I-T" 113-114) Inspector Ramey thought that electrical shock 

would result in a 0'lost work 0ays 11 type ot injury a (I-T. 115) o 

The general conclusion ot Mro Dinkel was that if the heater was 

used in an area with a 0

' conductive" concrete floor, it was 

required to be groundedo {I-Ta 116v 119) o 

2 Petitioner's Brief, page 3. 

1696 
Respondent's evidence diifered from Petitioner's--and is 

credited--in that it was shown that the repairman sat at a workbench with a formica top and that the U.L. approved heater sat on 

a stool about three feet high and was not mounted on the wall. 

Merrit D. Redick, Chief Electrical Engineer tor BHP-Utah 

International, testifying for Respondent, gave the following 

testimony which was convincing and also is credited: 

Q. Mr. Redick .•• is there any reason to draw a distinction between this portable heater and the 

toaster oven ••• ? 

A. I think it would be similar in the sense as long 

as it was a U.L. approved appliance. There's now 

been a lot of research done before it was given 

approval, and I think very minimal chance of picking up a shock off of it. We all have the same 

type heaters_ arounct'·our kids at home. 

* * * * * 

A •••• I think U.L. agrees that U.L. approved equipment loses its approval when you tear into it and 

modify it. Unless you're very careful and knowledgeable about what you're doing, you can increase 

the risk of being shocked off that piece of 

equipment. 

Qo o•• How would you characterize the chances of getting seriously injured by shock from o o o this 

portable heater ooo ? 

It s very renoteu in my opiniono Anything thatus 

been researched by U.L. and put out to the general 

public in the United States, is really no risk at 

all. CI-To 123-124)0 

~itation Noo 3414692 (Docket Noe CENT 90-144} 

Inspector Ramey issued this citation on April 16u 1990u 

charging as followsg 

The energized 110-volt AC Proctor-Silex toaster oven located in the control room of the new 

plant was not provided with a ground. This 

toaster was equipped with a 16/2 electical 

cable. There was no external ground wire 

provided. The outer housing of the toaster 

was constructed of metallic. 

1697 
It is noted that Petitioner MSHA has moditied this citation 

to delete the "Significant and Substantial" designation thereon, 

and also that Petitioner agrees that the tact situation and expert testimony with respect to this Citation is essentially the 

same as that in Docket No. CENT 90-166 except that a "ProctorSilex toaster resting on a formica table on a tiled floor" is 

involved in this Citation~ 3 

Petitioner's evidence (which is not entirely accurate) was 

to the eft ect that this undamaged ( II-T. 7) toaster oven was sitting on a metal table in an 8- x 24-foot control room having a 

concrete floor near a metal retrigerator. 4 The floor, according 

to Inspector Ra.mey, would not have been cleaned by washing down 

with a hose, but rather it would have been "dry" mopped. (I I-T. 

7-8, 16). The inspector again "speculated" that the toaster oven 

would have been used on every shift to warm food. CII-T. 8-9). 

The area the toaster oven was in was essentially a dry environment. (II-T. l6) 5 

Respondent established--in some contradiction to Petitioner's showing--that the table in question had a formica top and 

that the floor of the control room was overlaid.with green asphalt commercial tile. 6 

DISCUSSION, ADDITIONAL FINDINGS, AND CONCLUSIONS 

THREE GROUNDING CITATIONS 

Respondent's fundamental position with respect to these 

three Citations is found meritoriouso 

3 Petitioner's Briefu page 3o 

According to MSHA 9 s expert, Mr. Dinkel, the presence of 

the refrigerator would nprobablyn not add to the situation. 

There was no sinku and attendant waterv in the areao (II-To 8)0 

5 MSHA did not establish that any of the three areas involved in the three Citations were "damp" or "wet." 

6 At this juncture in evidence-taking, Petitioner modified 

the Citation on the record to delete the "Significant and Substantial" designation. CII-T. 22-23). 

1698 
A safety standard must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited and it 

"cannot be so incomplete, vague, indefinite, or uncertain that 

men of common intelligence must necessarily guess at its mean-. 

ing and differ as to its application." (Emphasis added). 7 

30 C.F.R. § 77.701, as Respondent contends, is sufficiently 

indefinite and unclear in its application here as to cause disagreement among Petitioner's own hierarchy CI-T. 82-83; Exs. 

R-lA, R-7), as well as failing to communicate that it could be 

intended to apply to small toaster-ovens and a small portable 

heater manufactured for use without a grounding conductor in the 

cord and plug. 8 

MSHA's own Program Policy Manual, at Section 77.702 thereof 

(Ex. R-7), appears to exempt U.L. approved cord-and-plug appliances such as the toaster ovens and heater involved here. It 

states: 

7 

1982)0 

Portable tools and appliances that are protected 

by approved systems ot double insulation 9, or 

its equivalent, 10 need not be grounded. 

(Emphasis supplied)& 

Alabama By-Products Corporation, 4 FMSHRC 2128 (December 

8 Petitioner did not establish that the toaster-ovens and 

the heater were used for any mining-related purpose, or for any 

purpose other than what one might expect them to be used for in 

the domestic market and, as noted elsewhere in this decision, 

while showing the three appliances were in areas with concrete 

floorsq Petitioner did not establish that such areas were damp or 

wet or that there was really much of a difference between these 

areas and places in homes where such appliances would be used to 

prepare food or to heat a room. 

9 Although a portion of the record (II-T. 27-29p 39-41) 

was devoted to discussion of this subject, Respondent does not 

con tend that any of the three subject appliances are covered by 

this "double insulation" exemption. (I I-T. 41) • 

10 Respondent does however contend and I conclude that U.L. 

approval is tantamount to "equivalent" protection. CII-T. 

41-42). 

1699 
As argued by Respondent, I conclude trom reliable evidence ~f record that the U.L. listing is in effect a certificate that 

the three listed appliances have means of shock protection equivalent to double insulation. CI-T. 90-92, 961 II-T. 27-28, 42, 

4 4 ~ Ex • R- 5 ) • 

Further, MSHA's Program Policy Manual Cat Section 701 thereof, Ex. R-lA) appears to give some idea of the type o:t "electric 

equipment" 30 C.F.R. § 77.701 is intended to encompass, i.e., 

"Certain movable electrical equipment, e.g., rail-mounted and 

pivoting coal stackers, traveling shop cranes on track rails, 

small traveling hoists on I beams, etc. 11 The types of clear-cut 

mining equipment mentioned as examples by MSHA as a minimum 

delivers considerable weight to Respondent's contention that the 

subject standard is unenforceably vague when applied to the three 

appliances in question. 

Conclusions 

1. The safety standard, 30 C.F.R. § 77.701, in its application to the three subject appliances, is unenforceably vague in 

that a reasonably prudent person familiar with the mining industry and the protective purposes of the standard would not have 

recognized the specific prohibition or requirement of the 

standard. 11 

2. Applying the "reasonably prudent person" test to the 

subject standard, such a person would not consider the term 

"electric equipment" used in 30 C.F.R. § 77.701 to apply to the 

three U.Lo approved appliances in question and have recognized a 

I'."equirement to modify each appliance by grounding it externally o 

3 o The three appliances involved--the two toasters and the 

portable heater--are not "electric equipment" as that term is 

used in 30 C.F.R. § 77.701. 

ORDER 

Citations numbered 3414864u 3413540u and 3414692 are 

VACATEDo 

11 See Canon Coal Co., 9 FMSHRC 667, 668 (April 1987)1 

Lanham Coal Company, Inc., 13 FMSHRC ~~(September 3, 1991). 

1700 
THE nHIGHWALL" CITATION (DOCKET NO. CENT 90-1431 

CITATION NO. 3414683 

This Citation, issued by MSH~ Inspector Larry w. Ramey at 

9:10 a.m. on April 11, 1990, charges Respondent with a violation 

of 30 C.F.R. § 77.1000 as follows: 

Ttle operator was not complying with the approved 

ground control plan. Loose hazardous material 

was observed, loose and hanging over the top of 

the higbwall. This condition was located at 

North Pinon Marker 600 East of Pinon 3. The 

loose overhanging material revealed large cracks 

on both sides ot the material. ~he cracks appeared to be from 1 to l 1;2 feet in width. 

The loose overhanging mass appeared to be 20 

teet in height by 18 feet in width. Void could 

be observed behind the overhanging material. 

The roadway ieading to the DRE 82 dragline was 

located under this overhanging material. Tire 

marks showed that traffic vehicles traveled to 

within 10 feet of the highwall. This overhanging material appeared to hang out. from the highwall bank-slope approximately 4 to 6 feet thick. 

The Citation (paragraphs 16, 17, and 18) indicates that the 

condition was timely abated by 10:20 a.m. by the following action g 11 The opera tor installed a 3:G-inch high dirt barrier in the 

travel road to prevent tra.E:Eic from driving through this area o 11 

77.1000 pertaining to "Ground Control" provides: 

Each operator shall establish and follow a 

ground plan for the safe control of all highwalls, pits, and spoil banks to be developed 

after June 30, 1971 5 which shall be consistent 

with prudent engineering design and will insure 

safe working conditions. The mining methods 

employed by the opera tor shall be selected to 

insure highwall and spoil bank stabilityo 

Petitioner contends that·Respondent did not comply with paragraph 6 b of its Ground Control Plan (Ex. P-4) which requires 

that "Unstable highwall and banks shall be taken down and other 

recognized unsafe ground conditions shall be corrected promptly, 

or such area shall be P.osted. 11 

1701 
In his testimony, after confirming the description of the 

violative conditions contained in the Citation, Inspector Ramey 

described such as "overnanging roe~" Cil-T",. 51) "rock that was 

leaning out" (II-T. 4~) and "outcropping" (II-T. 53) separated 

trom the highwall by a void (II-T. 49). He said there were large 

cracks around this rock, which he estimated to be 20 teet in 

height ai1d 18 teet in width CII•T. 52-53, 61). He also described 

the iristability thereof: 

••• wnen you look at the other section, the highwa.11, then it• s stable. It's all bonded together. 

This one section here has pulled loose from the 

main highwall and my opinion of it, it was ready 

to fall. ( II-T. 54). 

The loose overhanging material, i.e., rock outcropping, was 

created after blastinq a month before the Citation was issued. 

CII-T. 66-67, 68). The area was not posted. Below the loose 

rock material was a bench approximateJ.y 120 feet wide. Tire 

marks on the roadway below the unstable outcropping indicated 

that vehicles had been traveling in the exposed area and several 

miners were exposed to tl1e hazard that the rock would fall. 

CII-T. 54-55). The tiremarks were within 10 feet of the hi9hwa11. <II-T. 54). The outcropping (depicted in Exs. P-5 and 

P-6) was approximately 50 teet high (II-T. 55) and it was vividly 

described by the Inspector as having "pulled loose from the main 

highwall" and as being "a large chunk of rock ••• that is cracked 

on both sides, behind even. the bottom." (II-T. 58-59). 

Respon.dent 9 S stripping foreman 11 George Francisv was ot the 

opinion that the condition was not a hazard since (a) it had been 

there a month and had not fallen or crumbled, (b) the material 

was •

1 1aid back"--not at a vertical angle--and (c) it was sitting 

on solid rock. (II-T. 67, 68, 6!:1-71). However, there had previously been a failure at a San Juan mine of a highwall which 

Respondent also considered stable. CII-To 72u 75-76)0 

The Inspector;s description of the violative conditionQ and 

his opinion that the outcropping was unstable and ready to fall 

because of the cracks and void, are corroborated by photographic 

evidence submitted by Petitioner in Exhibits P-5 and P-6. There 

is no reason to discount his testimony and opinion in this matter 0 

It is concluded that the infraction of Respondent's ground control plan did occur in that an unstable area of highwail did 

exist and had not been taken down tor one month and the area was 

not posted. Infraction of such a plan is enforceable as a safety 

standard. Jim Walters Resources, Inc., 9 FMSHRC 903 (May 1987). 

1702 
Since the violative condition existed for a month in an area 

where the foreman would have' travelecf and been aware of such 

CII-T. 55), it is conciuded that the violation resulted trom 

Respondent's negligence: · 

The issuing inspect.or's opiniqn' that this was a "Significant 

and Substantial 11 violation i's borne out b':l the reliable evidence 

of record. A violation is properly designated"Significant and 

Substantial 11 < "S&S") 11 if, based upon the particular facts surrounding the viola ti on there exists a reasonable likelihood that 

the hazard contributed to will result i~ an injury or illness of 

a reasonably serious nature. 11 Cement Division, National Gypsum 

Co., 3 FMSHRC 822, 825 (April l98lf •.. 

In Mathies Coal Co., 6 FMSHRC 1 (1984), the Commission 

listed four elements of proof for S&S vio~at~ons: 

In order to establish that a violation of a mandatory standard is signi.:f icant ·and substantial 

under Nationl Gy:i;)'sum the Secretary of Labor must 

prove: Cl} The underlying violation of a mandatory safety standard: ( 2) a ·discrete safety hazard--tha t is, a measure of danger to safety--

contributed to by the vi:o1a.tion; ( 3 > a reasonable likelihood that the hazard contributed to 

will result in an injuryi and (4) a· reasonable 

likelihood that the irtjuty in question wfll be 

of a reasonably serious nature. · · 

In United States Steel Mining :Company, Inc., 7 FMSHRC 1125 11 

1129 \1985) 8 the Commission expounded thereon as follows: 

We have explained further that the thir'd element 

of the Mathies formula 11 requires that the Secretary establish a reasonable likelihood that the 

hazard contributed to will result in an event in 

which there is an inj~ry." U.S. Steel Mining Co., 

6 FMSHRC 1834 Q 1836 (August 1984}. We have e:nphasi zed that, in accordance with the language 

of Section 104Cd) Cl)/} it is the .contribution of 

a viola ti on to the cause and effect of a hazard 

that must be signifi'cant and substantial. U.S. 

Steel Mining Company, Inc., 6 .FMSHRC 1573, 1574-

1575 (July 1~84). 

1703 
It has been previously found that a violation occurred. On 

the basis of prior findings, I also conclude that a measure ot 

danger to satety was contributed to by the violation and there 

existed a reasonable likelihood that the hazard contributed to 

would result in a serious injury or .tatality. Thus, not only was 

the Inspector's opinion as to the "significant and substantial" 

nature of the violation CT. 54-55) left largely unrebutted, but 

the evidence demonstrates that there was exposure of several 

miners to the hazardous conditions present which would have 

resulted in serious injury. CII-T. 54-55). 

Thus, the Inspector testified: 

I telt if the rock did fall that there's definitely going to be an injury because of that 

mass of rock fallin,g ... on C1 vehicle. .A.nd if you--

in the body,of the Citatipn, now, I estimate 

the rock to be 20 feet in length, so it it's 

driving within ten foot ot the highwall. It 

the rock fell, it's going to come in contact 

with the vehicle, and/or person, or persons, 

that could be working in the highwall area. 

CII-T. 55). 12 

The Inspector's opii'lion that the relatively large rock outcropping could fall "at any time" CII-T. 62); coupled with the 

visible cracks and looseness ot the rock and the height it would 

fall are all factors which confirm that the element of reasonable 

likelihood of such events occurring was established by MSHAo 

This combined with the exposure of miners (not denied by Respondent) and the seriousness of injuries which reasonably would ensue 

trom such occurrence is sufficient to establish Petitioner's burden of proof as to the four prerequisite elements of the Mathies 

formulau suprao Consequentlyv it is concluded that the violation 

in question was ~significant and substantial," as well as other 

wise serious in nature. Citation No. 3414683 is AFFIRMED in 

all respects,, 

12 See also II-T. 62-63. 

1704 
Penalty Assessment for Citation No. 3414683 

Respondent San Juan Coal Company is a Delaware corporation 

and is the owner-opera tor of the San Juan Mine and Pit ( 60 employees) and the La Plata mine (18 employees) which respectively 

mine 2 million tons and between 1.1 million and 2 million tons 

annually. (I-T. 5). The controlling entity produces over 10 

million tons of coal annually and is found to be a large mine 

operator. During the 24-month period preceding the occurrence of 

the violation, 68 prior violations occurred at the San Juan Mine 

and Pit and 20 occurred at the La Plata mine. (See I-T. S-61 

Exs. P-1 and P-2). 13 Assessment of penalties will not adversely 

affect Respondent's ability to continue in business. Upon notification of the violation, Respondent proceeded in good faith to 

achieve rapid compliance with the standards cited. The remaining 

statutory penalty assessment criteria of negligence and gravity 

have been previously determined. A penalty of $600 is found 

appropriate and is here ASSESSED. 

ORDER (Citation No. 3414683) 

Respondent SHALL PAY to tl1e Secretary of Labor the sum 

of $600 within 30 days from the date of this decision. 

FINAL ORDER 

The modifications of various Citations are reflected in the 

separate sections for each docket herein o In the section of this 

decision entitled 01 Three Grounding Citations, 01 Citations numbered 

3414864, 3413540r and 3414692 have been VACATEDo Citation 

Noo 3414683 has been AFFIRMEDo 

13 The transcript incorrectly shows the figures for number 

employees as being the number of previous violationso The 

u• employee 11 numbers indicated were taken trom my notes taken at 

hearing. The figures for history of previous violations were 

taken from Exhibits P-1 and P-2. The figures for the two categories are similar and the changes have no bearing on penalty 

assessment. 

1705 
Likewise, all penalties assessed tor Citations involved in 

the tour subject dockets are directed for payment at the end of 

each of the various sections. The total amount for all penalties 

in these four dockets is ~7,280.00, and Respondent should make 

payment as indicated. 

Distribution~ 

,J7.· .,. _ _,,,. . .r' ,;" • "' i' 

. 'c. 1-,-.,-. ~ ,,,.?" . Y,...:·· .-:::-. ./ ~. ;; I' • • ?<',... . . (.. / . ~T,._ .. ;r.<• ' 7- -

Michael A. Lasher, Jr. 

Administrative Law Judge 

Michael Ho OlveraP Esqop Office of the SolicitorQ UoSo Department 

of Labor 525 Griffin Streetu Suite 50lu Dallasu TX 75202 

iCertified Mail) 

Donald Lo Hurnphreysu Esq.u SAN JUAN COAL COMPANYu 550 California 

Street, San Francisco, CA 94104 (Certified Mail) 

ek 

1706 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

OCT 211991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of 

M~RTIN L. RICH~RDSON, 

Complainant 

v. 

F.K.C., INCORPORATED, 

Respondent 

. . DISCRIMINATION PROCEEDING 

Docket No. WEST 91-143-DM 

MD 90-19 

Mine I.D. No. 26-02161 

Docket No. WEST 91-262-DM 

WE ME 90-19 

F.K.C. Portable 

(Consolidated) 

ORDER OF DISMISSAL 

Beforeg Judge Morris 

These cases arose under the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801, et~ 

On Dece~ber 26, 1990p the Secretary of Labor filed an apication for reinstatement on behalf of Complainantv pursuant 

to Section 105(c) and Commission Rule 44.,29 C.F.F.L § 2700.44u 

s amended. 

On January 15, 1991, an order of temporary reinstatement was 

issued. 

On April 9 1991 8 in the case docketed as WEST 91-262-DM, 

the Secretary filed a complaint of discrimintation on behalf of 

Complainantu pursuant to Section 105(c)(2) of the Mine Act. 

Complainant alleged Respondent violated Section l05(C)(l) of the 

Actc 

In its answer filed on May 13u 1991, Respondent denied the 

Commission had jurisdiction in this matter. Further, Respondent 

asserted its activities did not render it subject to the Mine Act. 

In addition, Respondent asserted Complainant was not a miner 

subject to the Act. 

On June 5, 1991, Docket Nos. WEST 91-143-DM and WEST 

~l-262-DM were consolidated and scheduled for a hearing on 

July 18, 1991. 

1707 
On June 17, 1991, the hearing date was canceled and the case 

was reset to begin on October 16, 1991. 

On October 15, 1991, the Secretary moved to dismiss the proceedings. As a grounds therefor, the Secretary stated that "at 

the time of the alleged discriminatory act, the Complainant was 

not a. 'miner,' as detined by Section 3(9) 11 ••• of the Act. 

In her motion the Secretary further alleged that "at the 

time ot the alleged discriminatory act, neither F.K.C., Inc., nor 

F.K.C. Sand and Gravel Products, Inc., were engaged in the type 

of activity that would classity the companies as operators under 

Section 3(d), 30 u.s.c. S 802(d) of the Mine Act. In addition, 

neither company was engaged in activity as a mine, as defined in 

Section 3(h)(l) or Ci>, 30 u.s.c. S 802(h)(l) or (2) ot the Mine 

Act. 

For good cause shown, tffe motion to dismiss is GRANTED 

and the cases are DISMISSED without prejudice • 

...,,,,,~~~ orris 

rative Law Judge 

Distribution: 

Lisa lL Grayu Esqao O:t:fice ot the Solicitoru u.s,, Department of 

Laboru 4015 Wilson Boulevard, Arlingtonu VA 22203 (Certified 

Mail) 

Bill Co Hammeru Esqo 0 2300 Paseo del Prado #B202 9 Las Vegas, NV 8~102 (Certified Mail) 

Mro Martin L. Richardson, 2316 Statz Street, North Las Vegas, NV 

89030 (Certified Mail) 

ek. 

1708 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 211991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PIGEON BRANCH COAL COMPANY, 

Respondent 

.. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 90-266 

A.C. No. 46-05972-03531 

No. 8 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Weisberger 

This case is before me upon a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act). Petitioner has filed a motion to 

approve a settlement agreement and to dismiss the case. A 

reduction in penalty from $4,400 to $2,200 is proposed. I have 

considered the representations and documentation submitted in 

this case, and I conclude that the proffered settlement is 

appropriate under the criteria set forth in section llO(i) of the 

Act. 

WHEREFORE, the motion for approval of settlement is GRANTEDu 

and ORDERED that Respondent a penalty of $2,200 within 

O days of this ordero 

Avram 

Administrative 

Weisberger ~ Law Judge 

Distribution~ 

Charles M. Jackson, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington, 

VA 22203 (Certified Mail) 

Ms. Ruby H. Cyphers, Bookkeeper, Pigeon Branch Coal Company, 

Inc., 106 Suffolk Avenue, Richlands, VA 24641 (Certified Mail) 

Mr. William T. Heflin, Pigeon Branch Coal Company, Box 364, North 

Tazewell, VA 24630 (Certified Mail} 

nb 

1709 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 2 4 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

LANHAM COAL COMPANY, INC., 

Respondent 

. . 

. . 

. . 

. 

• 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 89-186 

A. C. No. 15-13428-03508 

Lanham No. l Mine 

DECISION ON REMAND 

Before: Judge Broderick 

On September 3, 1991, the Review Commission remanded this 

case to me to "determine, through application of the reasonably 

prudent person test, whether Lanham had fair notice that 

section 77.1710(g) required the use of safety belts or lines 

under the circumstances of this case. 11 13 FMSHRC __ At my 

request, both parties filed briefs addressed to the issue. 

Neither wished to submit further evidence. 

I 

Lanham was the owner and operator of a surf ace coal mine in 

Daviess Countyu Kentuckyo It contracted with Caney creek 

Trucking company to haul coal from the mine to Lanham's coal 

dock. After the coal was loaded into the trucks, Caney's drivers 

covered the load with a tarp in a parking lot on mine property. 

Safety belts and lines were not provided or worn by the drivers 

while tarping their trucks. On December 29 5 1988 5 Charles 

Daughertyu the owner of Caney and a truck driveru fell from his 

truck approximately 10 feet to the ground while tarping his 

truck. He was not wearing a safety belt or line. Daugherty was 

taken to the hospital and subsequently died from reasons not 

related to the fall. MSHA issued a citation charging a violation 

of 30 C.F.R. § 77.1710(g)o 

Prior to the accident, neither Lanham nor the MSHA inspector 

who issued the citation considered the cited standard applicable 

to the tarping of trucks. The inspector had never previously 

cited the practice, and had never observed safety belts or line 

1710 
used in such situations in more than 40 years of mining 

experience. MSHA had no standards or guidelines that covered the 

practice, and Lanham had no specific notice that the practice 

violated the standard. 

II 

30 C.F.R. § 77.1710 provides in part that surface coal mine 

employees shall be required to wear "safety belts and lines where 

there is a danger of falling." The regulation is on its face 

simple and straightforward. The facts in this case very clearly 

show that there was a danger of falling: in fqct a miner fell. 

III 

In the Alabama By-Products case, 3 FMSHRC 2.128 (1982), the 

Commission considered the regulation requiring ~hat machinery and 

equipment be maintained in safe operating condition. It 

concluded that a reasonably prudent person familiar with the 

factual circumstances_ including facts peculiar to the mining 

industry would recognize that the cited equipment.was in an 

unsafe condition. In United States Steel Corporation, 5 FMSHRC 3 

(1983) the Commission held that the reasonably prudent person 

standard applies to the berm regulation: the issue is whether 

the operator's berms or guards measure up to the kind that a 

reasonably prudent person would provide.· under the circumstances. 

In Great Western Electric Company, 5 FMSHRC .840 (1983), the 

Commission in considering the same regulation as in the instant 

case, held that "the applicability of the standard [should be 

determined] in terms of whether an informed, reasonably prudent 

person would recognize a danger of falling warranting the wearing 

of safety belts and lineso 11 5 FMSHRC 8420 In November, 1990 1 

the Commission phrased the test as "whether a reasonably prudent 

person familiar with the mining industry and the protective 

purposes of the standard would have recognized the specific 

prohibition of the standard.vu Ideal Cement Company, 

12 FMSHRC 2409, 2410 (1990)- [Emphasis added]. 

The Great Western Electric Company test seemed to be whether 

~he reasonably prudent person would recognize that the factual 

circumstances created the hazard which the regulation attempted 

to prevento The Ideal Cement testu as I read it, involved a 

subtle change: it is not whether the reasonably prudent person 

would recognize that the facts create the hazard, for example 

whether such a person would recognize that tarping a truck by 

climbing on the load of coal creates a danger of falling, but 

whether that person would recognize the specific prohibition of 

the standard,. that is, whether such a person would have 

recognized that attaching a tarp to a truck without utilizing 

safety belts and lines was prohibited by the regulation. The 

1711 
change in the test is evident from the terms of the remand: I am 

required to determine, through application of the reasonably 

prudent person test, whether Lanham had fair notice that 

section 77.1710(g) required the use of safety belts or lines 

under the circumstances of this case. 

IV 

The law of Kentucky requires that a loaded coal truck be 

covered with a tarp before the truck is operated on State 

highways. In order to affix a tarp, the driver is required to 

mount the back of the loaded truck, which is approximately 8 feet 

wide, and unroll the tarp while walking backwards on the load of 

coal. The load is normally uneven and higher in the center than 

on the sides. In the instant case, it was about 10 feet from the 

ground to the top of the load. 

The tarping of trucks is, and has been for many years, a 

daily occurrence in the coal industry. The MSHA inspectors who 

testified in this case had never previously cited the practice 

involved here. Neither had ever observed coal trucks provided 

with belts or lines for persons putting on a tarp or removing it 

from a loaded coal truck. The inspector who issued the citation 

did not consider the cited practice a violation of the standard 

before he issued the citation contested here. The evidence 

establishes that the practice of using safety belts and lines 

while tarping trucks is rarely or never followed in the coal 

industry. It also establishes that prior to this case, the 

practice was rarely or never cited by MSHA. 

I think it is clear that a reasonably prudent person would 

recognize that the activity cited here is hazardous, i.e., it 

creates a danger of falling. On the other handu in view of the 

evidence concerning the practice in the industry and in MSHAvs 

enforcement historyu it is equally clear that such a person would 

not have recognized the specific requirement of the standard, 

i.e., that tarping a truck requires safety belts and lines. 

Following Commission precedent in its most recent decision, 

Ideal Cement Companyv and the terms of the remand, I conclude 

that the evidence does not establish that Lanham violated 

30 C.F.R. § 77.1710(g) in failing to require safety belts and 

lines for miners engaged in the tarping of loaded coal trucks. 

1712 
ORDER 

Based upon the above findings of fact and conclusions of 

law, IT IS ORDERED: 

1. Citation 3297324 is VACATED. 

2. This civil penalty proceeding is DISMISSED. 

ltt.A'tL-~.f A4Jvvr_ft4·z ~/l ~-James A. Broderick 

Administrative Law Judge 

Distribution: 

Thomas A. Grooms, Esq., Office of the Solicitor, U. s. Department 

of Labor, 2002 Richard Jones Road, Suite B-102, Nashville, TN 

37215 (Certified Mail) 

Flem Gordon, Esq., Gordon & Gordon, P.S.C., 1500 Frederica 

Street, P. o. Box 390, Owensboro, KY 42302 (Certified Mail) 

dcp 

1713 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 \-EESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 2 4 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

JIMMIE L. CALLAN 

complainant 

v. 

S & S MATERIAL, INC., 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. SE 92-1-DM 

SE-MD-91-03 

Beers Pit 

ORDER OF DISMISSAL 

.1efore: Judge Weisberger 

The Secretary's Motion to Withdraw Appication for Temporary 

Reinstatement is GRANTED based on the assertions in the Motion. 

It is ORDERED that this 

Distribution~ 

cas/l:SM;::_ 

Avram Weisberger 

Administrative Law Judge 

Lisa A. Gray, Esq., Office of the Solicitor, U. s. Department of 

Labor, 4015 Wilson Boulevard, 4th Floor, Arlington, VA 22203 

(Certified Mail) 

John Hargrove, Esq., 2001 Park Place Tower, Suite 1400 

Birmingham, AL 35203 (Certified Mail) 

Jimmie L. Callan, Route 1, Box 185, Jones, Alabama 36749 

(Certified Mail) 

nb 

1714 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

OCT 2 8 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

. . 

: 

. . Docket No. WEST 90-262 

A.C. No~ 05-03672-03591 

v. 

. . Mt. Gunnison No. 1 Mine 

MOUNTAIN COAL COMPANY, 

(Successor to West Elk Coal 

Company, Incorporated), 

Respondent 

. . 

DECISION 

Appearances: Susan J. Eckert1· Esq., Otfice of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

Before: 

for Petitioner1 

David M. Arnolds, Esq., ARCO, Qenver, Colorado, 

tor Respondent. 

Judge Cetti 

This case is before me on petition for c1vi! penalty filed 

by the Secretary of Labor, pursuant to Section 105(d) of the Federal Mine Safety and Hea!th Act of 1!::177,;1 ,.30 u.s.c. S 801 et !.!S.!.r 

<the "Act"), charging the Mountain Coal C!o". with 'f'iola ting 30 

CeFoRo ~ 75.503(a) a mandatory regulatory stand.a.rd and proposing a civil penalty for the alleged violat~ono Pursuant to notice0 the case was heard on the merits betore me at Glenwood ~prings 0 Colorado" Helpful post-hearing briefs were filed by 

both parties which I have considered a!on9 with the entire record 

in making this decision, 

The Regulation 

The regulation cited reads as follows~ 

30 C.F.R. § 75.503, Permissible Electrical Face 

Equipment; Maintenance 

The operator ot each coal mine shall maintain 

in permissible condition all electrical tace 

equipment required by § 75.500, 75.501 and 

75.504 to be permissible which is taken into 

or used inby the last open cross-cut of any 

such mine. 

1715 
The Citation 

The citation issued to Respondent states the tollowing: 

The jeftrey-type ram-car R-9 serial number 

38297 and approval number 31-35-5 operating in 

the 2W lN/002-0 section was not maintained in 

a permissible condition in that there was a 

.uus opening between the flame arrestor unit 

and exhaust l unit when checked. 

ISSUES 

1. Whether a preponderance of the evidence established 

facts that constitute a violation of 30 C.F.R. S 75.503. 

2. If the cited violation is established, was it a "significant and substantial" viol~fi6n. · 

3. If a violation is established, what is the appropriate 

penalty. 

STIPULATIONS 

The parties stipulated (Joint Exhibit l) as follows: 

l. West Elk Coal Company, Inc., 2 ·1~ engaged in the mining 

and selling of coal in the United States, and its mining operaations affect interstate commerce. 

~o West Elk Coal Companyu Incou is the owner and operator 

of the Mount Gunnison #1 Mineu MSHA I.Do Noo 05-03672. 

3o West Elk Coal Company, Inco, is subject to the jurisdiction ot the Federal Mine Safety and Health Act ot l':J77, 30 u.s.c. ~S 801 et ~ c Hthe Act"). 

l Inspector Gutierrez on cross-examination admitted the 

citation was in error in stating "exhaust" unit in describing the 

location of the feeler gauge penetration in question. The correct location was between the "air intake" unit and the tlame 

arrestor unito (Tr. 13)o 

2 Now Mountain Coal Company, successor by merger to West 

Elk Coal Company, Inc., and Beaver Creek Coal Company. 

1716 
i. West Elk Coal Company, Inc., is the owner and operator 

ot the Mount Gunnison #1 Mine, MSHA I.D. No. 05-03672. 

3. West Elk Coal company, Inc., is subject to the jurisdiction ot the Federal Mine Satety and Health Act ot 1Y77, 30 u.s.c. 

S§ 801 et !.!S..!. ("the Act"> •. 

4. The Administrative Law Judge has jurisdiction in this 

matter. 

5. The subject citations were properly served by a duly authorized representative of the Secretary upon an agent of Respondent on the date and place stated therein, and may be admitted 

into evidence for the purpose of establishing their issuance, and 

not tor the truthfulness or relevancy ot any statements asserted 

therein. 

6. The exhibits to be otf ered by Respondent and the Secretary are stipulated ro be authentic but no stipulation is made as 

to their relevance or the truth of the matters asserted therein. 

7. The proposed penalty will not affect Respondent's ability to continue business. 

8. The operator demonstrated good faith in abating the viola ti on. 

9. West Elk Coal Company, Inc., is a large operator of a 

coal mine with 564,850 tons of production in 1989. 

lOo The certified copy of the MSHA Assessed Violations History accurately retlects the history ot this mine tor the two 

years prior to the date of the citationo 

DISCUSSION 

Section 750503 states "[t]he operator of each coal mine 

shall maintain in permissible condition all electric face equipment required by SS 75.5UU, 75.504, 75.504 which is taken into or 

used inby the last open crosscut of any such mine." According to 

the plain language ot this standard, a violation ot Section 

750503 is established where 1) there is a piece of electric face equipment~ i> the equipment is taxen into or used inby the last crosscut~ and 3) the equipment is not maintained in permissible 

condition. 

1717 
In this case, there is no dispute that this citation involved a piece ot electrical tace equipment being used in the working 

section inby the last open crosscut. During a regular inspection, Inspector Cosme Gutierrez examined a Jettrey ram-car (a 

piece of hauling equipment with electrical components and a diesel-powered engine) used to haul tresh coal being cut by a miner 

from the working face. (Tr. 23-24). Gutierrez explained that 

the ram-car is considered both a diesel and an electrical piece 

ot tace equipment. (Tr. 25). The ram-car had been located at 

the working face inby the last open crosscut before it was removed outby the active section about tour or tive crosscuts tor 

inspection purposes. (Tr. 23, 40). The primary issue in this 

case is whether this ram-car was being maintained in a permissible condition. 

Permissibility requirements for electrical equipment are 

contained in Part 18 C.F. R. and tor diesel-powered equipment in 

Part 36 C.F.R. Jerry Taylor,·,·the highly qualified expert and 

engineering coordinato'r tor District 9, explained permissibility 

and the permissibility requirements for this ram-car. Mr. 'laylor 

testified that "permissibility means that the whole machine, when 

properly maintained, will not ignite a methane air mixture and/or 

coal dust and/or cause a tire o± combustibles because ot an energy source contained within one o:t their explosion-proof compartments." (Tr. 117). As defined in Part 18.2, "permissible equipment" means "a completely assembled electrical machine or accessory for which a formal approval has been issued as authorized" by 

MSHA. Part 36, states that d1esel-power~a.equ1pme?t must comply 

with the requirements of Part 36 and have a certificate of approval to this effect issued. The Je:t::.Erey ram-car in question 

was subject to the MSHA approval process and, pursuant to the 

permissibllity requirementsu Jetfrey Mining Machinery Division 

developed a speciric permissibility checklist for the type of 

ram-car in question tor MSHA's.review. (Ex. P-3). Mr. 'laylor 

explained the MSHA approval and certitication process in relation 

to this type of ram-car. (Tr. 113-115) • In general, MSHA reviews the design and per:tormance o:t the equipment to insure thatq 

when tunctioning as designedu the equipment will be explosion 

proof within the confines o:t a methane air mixture. 

The flame arrestor assembly unit is an enclosed component 

attached to the air intake side of the engine. It is designed to 

prevent a tlame from the engine escaping to the outside mine atmosphere at the face. (Tr. 24). The flame arrestor consists of 

a flat disc shaped wire mesh screen through which all air in the 

engine intake system must pass in order to enter the engine. The 

flame arrestor cools any flame from the engine before the flame 

reaches the outside air where it could cause an ignition ot combustible material. 

1718 
The flat disc shaped wire mesh (tlame arrestor) is encircled 

with a flat 1.95 inch wide solid metal flange or collar that 

keeps the wire screen disc in place. 

The flame arrestor collar or tlange is sandwiched between 

two other tlat circular metal flanges and the three flanges are 

tightly bolted by six bolts. The flange on the engine side being 

referred to as the "inby flange", and the flange on the outside 

air side being referred to as the "outby flange". (Ex. P-2). 

To check the flame arrestor, the inspector used "feeler 

gauges"--tlat metal pieces of varying thicknesses used to measure 

any openings. (Tr. 28). He used the .005 thick gauge inserting 

it in between the outby flange and the flame arrestor flange. 

Inspector Gutierrez was able to insert a .005" gauge in some limited depth over some limited width at the interface of the flame 

arrestor flange and the outby flange. Upon questioning by the 

Court, Inspector Gutierrez e~plained that the gauge penetrated 

"about" an inch and that an inch was not sutticient to get down 

to the enclosed area where the tlame arrestor (the wire screen 

mesh disc) was held in place. (Tr. 51-52). 

There was no evidence that the inspector made or even attempted to make an accurate objective measurement ot the depth ot 

tt1e feel er gauge penetration. 

Respondent's Position and Evidence 

Respondent, at the hearing, presented pertinent evidence to 

support its position which it stated upon opening of the record 

as tallows~ 

First ot all that there was no violation ot 30 

CoFoRo 750503 because the ram-car at issue was 

in a permissible condition. The gap that Inspector Gutierrez found did not penetrate all 

the way down to the flame arrestor itself and 

theretore allowed no pathway for a flame, it 

there were one, to escape to the atmosphere. 

In addition 1 even if there was a violation, 

West Elk objects to the S&S designation because 

(tor several reasons) there was no reasonable 

likelihood that any injury would occur as the 

result of the gap. It was not likely that the 

engine would l::>a.cktire or cause any tlame that 

could cause an ignition. Secondly, the loca1719 
tion of the gap was on the outside or upward 

side of the flame arrestor, and so there was 

no way that a flame could escape through that 

gap. Thirdly, there are very low levels of 

methane or coal dust in this mine, as will be 

demonstrated by the record, and therefore, 

even if there was flarrte that escaped, it 

would be very unlikely there would be any ignition. (Tr. 11-12). 

It was clear from the testimony presented that Inspector 

Gutierrez was able to insert the .005" feeler gauge only to a 

limited depth and that he failed to measure that depth. When 

questioned as to the depth, he was able to penetrate the feeler 

gauge on the outby side of the tlame arrestor flange, the best 

the inspector could do was give an estimate "about an inch." 

Robert Morgan, the Section Mechanic responsible for the 

ram-car and who was wi:th Inspector Gutierrez during the inspection, testified that he watched Inspector Gutierrez check the 

tlame arrestor with the .UU5 feeler gauge. He saw him insert the 

feeler gauge on the outby, or fresh air side of the flame arrestor flange. (Tr. 160). The gauge went in only approximately 3/8 

to 1/2 inch. Inspector Gutierrez marked the gauge with a telt 

pen to mark the depth of the penetration and showed the mark to 

Mr. Morgan and Mr. Walker. (Tr. 178-179, 199). Before abating 

the condition, Mr. Morgan checked the gap in question with his 

own feeler gauge, using a .004" thick ga-uge. The .004 gauge 

penetrated only the same distance as Inspector Gutl.errez' gauge 

didq which was 3/8 to 1/2 inch. CTr. 175). 

Mr o Dewey Wall(. er v Production Supervisor at the mineu was 

also esent when Inspector Gutierrez checked the gap (Tro 191-

l92) o He testitied that the gauge penetrated approximately 1/2" 

(Tr. 193) 9 and that circumferentially the gap was approximately 

the width ot the teeler gauge. (Tr. 193). 

Inspector Gutierrez testified that the cause of the gap was 

that the bolts were loose. He based this conclusion on the tact 

that he saw Mr. Morgan tightening the bolts. (Tr. 34). Inspector Gutierrez said that it took Mt. Morgan approximately 20 minutes to abate the citation because it took him about 10 minutes 

to find the proper wrench to do the tightening and about 10 minutes to do the actual tightening. (Tr. 51). Inspector Gutierrez 

also speculated that the flame arrestor could move back and 

forthu thereby switching the gap trom the outby side to the inby 

side and vice versa. (Tr. 55). He testified he did not attenpt 

to move the flame arrestor back and forth so did not know that it 

1720 
could move. He assumed that it could move because he tound a 

.005" gap rather than the maximum ot .U04" gap on the outby side. 

(Tr. 55). 

The inspector's conclusion that the bolts holding the flame 

arrestor unit tlanges together were loose was based simply on the 

tact he saw Mr. Morgan tightening the bolts and assumed that Mr. 

Morgan abated the condition by doing nothing more than tightening 

three bolts. Inspector Gutierrez stated this as follows: 

Q. I believe you testified on redirect that you noticed 

loose bolts after checking a gap. In fact three bolts 

were loose; is that correct? 

~. They tightened three bolts. That showed me that they 

were loose. I didn •'t wiggle them. When they tightened 

then, they tightened the three bolts. 

Q. So you are assuming, or concluding, if you will--

A. Concluding 

Q. --that the bolts were loose because you saw him tighten 

them. 

A. Exactly. (Tr. 98). 

Mro Morgan testified on the contra:i;.v that the bolts were not 

loose and that he was not able to tighten them at allo (Tr. 168) o 

Mro Morgan tried to tighten the two bolts that were on either 

side of the openingv and he couldn't tighten them. Therefore, he 

loosened all of the bolts enough to get a flat file in between 

the two surtaces to clean them. He concluded that because it was 

just a small gap there must be something in there, either a burr 

on the metal or some foreign objectv so he filed itu tightened 

the bolts back up and checked the gap. (Tr. 166-167) o 

Mr. Walkerv who was present there the entire time, confirmed 

that Mro Morgan attempted to tighten the bolts and could not 

tighten themv so he loosened them up, did some tiling on the inside and then tightened the bolts back up. (Tr. 192). 

With respect to the width of the flame arrestor flange, the 

distance trom the outer edge ot the tlame arrestor collar or 

tlange to the flame arrestor itself is approximately 2 inches, as 

testitied to by Inspector Gutierrez. (Tr. 72). Mr. Taylor, 

MSHA's expert witness and the Engineering Coordinator of MSHA's 

1721 
District 9, estimated the distance to be just under 2 inches. 

(Tr. 141). When he was recalled to the stand by the Court to 

make an accurate objective measurement, he determined that the 

width of the flame arrestor flange was 1.95 inches. 

Further Discussion and Findings 

Respondent has the burden of proving by a preponderance of 

the evidence that there was a violation of the cited safety standard 30 C.F.R. » 75.503. This section does not detine what constitutes permissibility. However, the Court and the parties were 

fortunate to have the assistance and testimony of an experienced 

and highly qualified expert, Mr. Jerry Taylor, Engineering Coordinator tor Coal Mine Safety and Health District 9. 3 

Mr. Taylor testified that for the flame arrestor unit, the 

maximum gap allowed is defined in 30 C.F.R. Part 18, specitically 

in the Table at 18. 31 entitled "Enclosures-Joints and Fastenings." 

(Tr. 182). That chart, according to Mr. Taylor, shows that a 

tlame path of a maximum ot .004" must be maintained for at least 

1 inch in distance from the tlame arrestor (outer edge of the 

wire mesh disc) to the outside of the flame arrestor flange. 

(Tro 125-126}. Consequently, in order for there to be a violation ot § 75.503, the tlame arrestor unit must have had less than 

l" in depth between the flame arrestor flange and the outby 

tlange that was .UU4 ot an inch or less in gap. As stated by the 

permissibility expert, Mr. Taylor, the requirament of the safety 

standard in question l•is that the tlame path be qt least an inch 

wide--not less than an inch wide, and that the gap be not greater 

than 0004. 11 Put another wayu in this case there would have been 

a violation only it a gap greater than .004" extended more than 

o~S ot an inch in depth measured trom the outer circwnterence 

edge of the flame arrestor flange since the flange was 1.95 

inches wide. 

The preponderance of the evidence did not establish that 

there was a violation. As discussed abovev the actual distance 

trorn the opening for the flame arrestor and the outside edge of 

the tlame arrestor tlange was l.95"u as measured very precisely 

by Mro Taylor" (Tr. 208)0 There is no precise measure~ent as to 

how tar Inspector Gutierrez inserted the metal gauge. The best 

the inspector could do was to estimate it to be "about" an incho 

(Tro 30, 51, 59). Messrs. Morgan and Walker testitied, however, 

that the gauge penetrated only about 3/8" to 1/2". (Tr. 161, 

3 Mr. Taylor has a Bachelor of Science degree in Mechanical Engineering and in his present position coordinates all of 

the engineering functions in District 9. 

1722 
193). They were tairly contident about this estimate because 

Inspector Gutierrez had marked the teeler gauge with a telt tip 

pen and showed Messrs. Morgan and Walker how tar the gauge had 

penetrated. (Tr. lb0-161, 199). Further, Mr. Morgan checked the 

gap himselt with his .004" feeler gauge and his gauge would go in 

no more than 1/ 2". (Tr. 161-162) • 

The preponderance of the evidence established that the gauge 

penetrated substantially less than .95 ot an inch and, theretore, 

the flame arrestor unit was in compliance with ~ 75.18.31 and was 

permissible under~ 75.503. Even if Inspector Gutierrez's testimony were to be accepted completely and that ot Messrs Morgan and 

Walker rejected, the government would have failed to carry its 

burden ot proot. Inspector Gutierrez merely estimated that the 

gauge penetrated "about" an inch, and Mr. Taylor measured the 

pertinent distance on the flange as being 1.95 inches. Theretore, the Petitioner tailed to carry its burden ot proof that 

Mountain Coal Company- did not maintain the gap between the flanges at .UU4" or less tor a distance of at least l". The citation 

should be vacated. 

On observing the demeanor of the three witnesses who testitied as to the depth of the penetration ot the feeler gauge, I 

tind the testimony ot each ot the witnesses credible in the sense 

that each ot these witnesses was giving his best estimate or 

"guesstimate" as to the depth o:i:: penetration from 3/8 inch to 

"about an inch". The Petitioner has the burden ot proof. The 

best evidence it could ofter on the depi;h,. of pen~tration was 11 about an inch 11 • The weakness o:t Petitioner's case lies in the 

act that the inspector tailed to make an accurate measurement or 

any objective measurement at a.Ll in a situation where 1/2Uth of: 

an inch could make the dif terence between a violation or no via1a t1on" Without a. measurement nabout an inch" means possibly a 

little under l" or a little over 1 11 • This evidence is insufficient tor Petitioner to carry its burden ot proot, particularly 

under the facts o:t this case where we have credible testimony ~rom ~wo witnesses who estimated the depth ot penetration to 

be 3/8 to 2 ot an inch. 

Again on the question as to1whether the bolts were loose and 

imply needed tightening to abate the problem, the testimony of 

all three witnesses as to what they observed was credible. The 

conclusion ot the inspector dit:tered :tram the other two witnesses 

but was based on his limited observation of what was needed to 

close whatever gap existed. Certainly Mr. Morgan who closed the 

gap was the witness in the best position to observe and testify 

what he had to do to close the gap. The testimony of the inspector as to the tightening of the bolts was not necessarily inconsistent with the testimony ot Mr. Morgan and Mr. Walk.er that 

1723 
Morgan had to loosen the bolts and use a file before he could 

tighten the bolts. 

I was impressed with Mr. Taylor's expertise in the field of 

permissibility. However, his conclusion that there was a violation was based upon two assumed tacts that the preponderance of 

the evidence failed to establish. Mr. Taylor's opinion was based 

upon the assumption that the .oos feeler gauge penetrated into 

the gap a depth of one inch and that these were loose bolts that 

only needed to be tightened. The preponderance ot the evidence 

presented failed to establish either of these assumptions as fact. 

The Petitioner tailed to carry its burden ot proot. Citation No. 

3413334 should be vacated. 

ORDER 

Citation No. 3413334 is vaca·ted and this case is 

DISMISSED. 

istributiong 

Aug st F. Cetti 

Administrative Law Judge 

Susan J. Eckert, Esq., Office of the Solicitor, U.S. Department 

of Laboru 1585 Federal Ottice Buildingu 1~61 Stout Streetr 

Denverg CO 80294 (Certified Mail) 

David Mo Arnolds 0 Esq. 0 Thomas Fa Linn 0 Esq.u WEST ELK COAL 

COMPANYv INC. 0 555 - 17th Streetv 2Utn Floor 0 Denver 0 CO 80202 

(Certified Mail) 

sh 

1724 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ASAMERA MINERALS (US) 

INCORPORATED, 

Respondent 

DENVER, CO 80204 

OCT 2. 8 1991 

: 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 91-57-M 

A.C. No. 26-00249-05511 

Gooseberry Mine 

DECISION 

Appearances: George B. O'Haver, Esq., Otfice of the Solicitor, 

U.S. Department·ot Labor, San Francisco, 

California, 

for Petitioner; 

Charles R. Bush, Esq., Preston, Thorgrimson, 

Shidler, Gates & Ellis, Seattle, Washington, 

for Respondent. 

Before: Judge Cetti 

The Secretary of Labor, on behalf of the Mine Safety and 

Heal th Adrninistra ti on (MSHA), charged Respondent with viola ting 

two safety regulations promulgated under· the Federal Mine Safety 

and Health Act 0 30 U.S.Co ~ 801? et~ (the "Act") o 

There was a fatal fall-of-person accident at the mineo The 

accident occurred while the miner was replacing damaged timber 

dividers in the manway for the 1000-7 stope on the 1000 level. 

The miner tell approximately 66 teet down a rnanway timber slide. 

Following the accident investigation 0 MSHA issued two 104(a) 

citations to the Respondent alleging a violation ot 30 C.F.R. 

~ 57.15005 and 30 C.F.R. § 57.11012 and proposed penalties 

totaling ~6,UUOo Respondent filed a timely answer denying any 

violationo After notice to the parties, the case came on tor 

hearing before me. All issues were fully litigated. At the 

hearing 0 testimony was taken from the following individuals: 

1. Robert H. Morley, Federal Mines Inspector for MSHA. 

2. Ronald Barri, Federal Mine Inspector tor MSHA. 

3. Paul Belanger, Supervisory Mine Inspector for MSHA. 

4. Richard Karlson, Mine Project Manager. 

1725 
5. Melvin J. Wattula, Health, Safety and Security Manager 

for Respondent. 

At the conclusion of the evidentiary hearing, that matter 

was lett open tor post-hearing briets. Atter the rece.ipt of the 

transcript, but within the time allowed tor filing of the briets, 

the parties negotiated and reached a settlement agreement on both 

citations. Under the proposed settlement agreement, the parties 

propose to reduce the penalty tor the citations trom $b,OUU to 

i? 3, :.:!4U. 

Based upon my review and evaluation of the record, including 

the evidence presented at the August 2i, 1991 hearing, I tind the 

settlement agreement to be reasonable and consistent with the 

statutory criteria in' Section 110 ( i) of the Act. The settlement 

agreement is APPROVED. 

ORDER 

After careful consideration of all the evidence and testimony adduced in this case, IT IS ORDERED that Respondent pay 

to the Secretary ot Labor a civil penalty ot $3,240 within thirty 

(30) days of the date ot this decision. Upon such payment this 

proceeding is DISMISSED. 

Distributioni 

,,,., 

~.· st F. Cetti 

inistrative Law Judge 

George Bo O'Haverv Esq. 0 Otfice of the Solicitor, U.S. Department oi: Laboru 71 Stevenson Street, Suite 1110, San Francisco, CA 

94105-~999 (Certified Mail) 

Charles R. Bush, Esq., PRESTON, THORGRIMSON, SHIDLER, GATES & 

ELLIS, 54UU Columbia Center, 701 Fitth Avenue, Seattle, WA 

98104-7078 {Certified Mail) 

Mr. Rick Karlson, Mine Manager, ASAMERA MINERALS {US) INC., 6121 

Lakeside Drive, Reno, NV 89511 (Certified Mail) 

Sh 

1726 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

IN RE: CONTESTS OF RESPIRABLE DUST 

SAMPLE ALTERATION CITATIONS 

MASTER DOCKET NO. 91-1 

ORDER EXTENDING TIME 

on September 17, 1991, I issued an order extending the time 

for mine operators to respond to the Secretary's written 

discovery requests, to utilize the document depository, to 

examine and test filter media, and to serve written discovery 

requests on the Secretary. 

On Motion of Lambert Coal Company, Inc., and Koch Carbon, 

Inc., who were served with the Petition instituting the penalty 

proceeding against them on August 19, 1991, and who seek a 

further extension of time, and on Motion of Mid-Continent 

Resources and National King Coal, Inc., to amend the Plan and 

Schedule of Discovery, IT IS ORDERED: 

1. Operators who were parties in these proceedings prior to 

June 28, 1991, are governed by the time limitations in the Plan 

and Schedule of Discovery issued June 28, 1991, as amended 

September 10, 1991, and as further extended by the Order 

Extending Time issued September 17, 1991. 

~D Operators who became parties in this case between 

June 28r 1991 and September 17, 1991, shall serve responses to 

the Secretary 0 s written discovery requests within 40 days of 

September 17, 1991. 

3o Operators described in numbered paragraph 2 above shall 

have the same 40 day period to utilize the document depository 

and to serve written discovery requests on the Secretary. The 

Secretary shall respond to such written discovery requests within 

30 days of service. 

4. Operators described in numbered paragraph 2 above shall 

be permitted to examine and test their filter media in accordance 

with the Plan and Schedule of Discovery within the same 40 day 

period. Western operators may request transfer of their dust 

filters to the Deriver Health Technology Center within the same 40 

day period, for testing in accordance with the Plan and Schedule 

of Discovery. If the filters are transferred to Denver the 

testing shall be completed on or before November 30, 1991. All 

operators described in paragraph 2 above shall identify their 

employees involved in dust sampling in accordance with paragraph 

1727 
II.D.6 of the Plan and Schedule of Discovery within 40 days of 

September 17, 1991. 

5. Operators who become par±:ies in this case after 

September 17, 1991, shall serve responses to the Secretary's 

written discovery requests, shall utilize the document 

depository, shall serve written discovery requests on ~he 

Secretary, shall be permitted to examine and test their filter 

media and shall identify their employees involved in dust 

sampling within 40 days of the date they become parties in this 

case. 

6. All other dates and time limits in the Plan and Schedule 

of Discovery as amended September 10, 1991, shall remain the 

same. 

Distribution: 

'(<..!~ .kf.ivdz/v·tef: 

) 

1 . 

James A. Broderick 

Administrative Law Judge 

Douglas N. White, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

w. Challen Walling, Esq., Penn, Stuart, Eskridge & Jones, 306 

Piedmont Avenue, P.O. Box 2009, Bristol, VA 24203 (Certified 

Mail) 

Edward Mulhallu Jro, Esq.u Delaney & BalcombQ P.C. 0 Drawer 790 0 

Glenwood Springsu CO 81602 (Certified Mail) 

Regular Mail to all other counsel and parties 

slk 

1728 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OOT 04 1991 

IN RE: CONTESTS OF RESPIRABLE DUST 

SAMPLE ALTERATION CITATIONS 

MASTER DOCKET NO. 91-1 

ORDER GRANTING IN PART THE 

SECRETARY'S MOTION TO AMEND 

on October 1, 1991, the Secretary filed a motion for an 

order amending the Discovery Plan. She submitted with the motion 

a proposed Amended Prehearing Order Adopting Plan and Schedule of 

Discovery. The motion states,. that it fallowed a meeting between 

counsel for· the Secretary and counsel· representing more than 

seventy five percent of the contested cases under this master 

docket number, and all counsel present agreed that an amendment 

was necessary to allow additional time for the taking of 

depositions. In addition to seeking an extension of time for the 

taking of depositions, the motion proposes to include the 

provisions of my Order Extending Time issued September 17, 1991, 

into the Plan and Schedule of Discovery. However, I issued on 

September 30, 1991, a further order extending time for new 

parties' discovery. 

I have considered the motion and agree that the requested 

extension of time for taking depositions is necessary" 

Thereforeu the motion is GRANTED" The third Amended Prehearing 

Order Adopting Plan and Schedule of Discoveryu incorporating 

therein the provisions for new parties contained in my Order 

Extending Time issued September 30, 1991, is issued this date, 

and a copy is attached hereto. 

Distribution~ 

See Attached List 

;

411,,i,LJ?-5 .//-'/j~'?:' ~~~ ;~ James A. Broderick 

Administrative Law Judge 

1729 
OCT 04 1991 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

FALLS CHURCH, VIRGINIA 

IN RE: CONTESTS OF RESPIRABLE 

DUST SAMPLE ALTERATION 

CITATIONS 

MASTER DOCKET NO. 91-1 

AMENDED PREHEARING ORDER ADOPTING 

PLAN AND SCHEDULE OF DISCOVERY 

I hereby adopt as an order of the Review Commission the plan 

and schedule of discovery submitted by counsel for the Secretary on 

June 18, 1991, with the following revisions which resulted from 

"-·~· 

discussions at a Prehearing Conference on June 19, 1991, and the 

Secretary of Labor's Motion to Amend Prehearing Order Adopting Plan 

and Schedule of Discovery. 

Introduction 

The purpose of this plan is to avoid delay by providing a 

mechanism to fairly and efficiently conduct discovery regarding the 

Secretary of Labor 1 s (hereinafter "the Secretary") allegations of 

alterations of coal dust filter media. This plan and schedule is 

intended to apply, to the extent feasible, to discovery in all 

cases pending before the Federal Mine Safety and Health Review 

Commission (hereinafter v

1the Commission") involving altered dust 

filter media. The plan and schedule of discovery provides for 

complete and effective discovery while minimizing the duplication 

of effort and unnecessary delay to the parties and the Commission. 

Adoption of this plan will provide for the economy of scarce 

judicial resources and prevent unnecessary disruption of 

enforcement functions of the Mine Safety and Health Administration, 

United States Department of Labor. 

1730 
2 

The parties submitting this plan have acknowledged that there 

- may be fundamental distinctions in some cases and that there must 

be an opportunity for case-specific discovery. Other than as 

provided for in this plan, all case-specific discovery will be 

conducted under individual docket numbers. 

All parties agree that the approval of this plan does not 

constitute a waiver of any party's right to assert any defense or 

privilege which is otherwise applicable. 

References to "operators!'_ in this document refer to: l} any 

party designated as a contestant in a notice of contest previously 

filed with the Commission; and 2) any party designated as a 

respondent in the civil penalty proceedings filed by the secretary 

of Labor. References to "other parties" includes references to: 

1) operators and 2) all intervenors. 

References to "dust filter media" mean the filter and the 

bacl<ing pad from the coal dust sample cassette identified in each 

citationo 

summary of the Plan 

The plan and schedule of discovery provides for the issuance 

of a generic docket number applicable to discovery of facts and 

conclusions common to all of the citations at issue before an 

administrative law judge. The plan and schedule also provides for 

discovery of facts and conclusions which are not common to all 

citations and therefore outside of the scope of the generic docket 

number. Other than as specifically provided for in this plan, 

1731 
3 

case-specific discovery will be conducted under individual docket 

numbers. 

The plan contemplates that, within five (5) days of the date 

of its adoption, or by June 25; 1991 whichever is later, all other 

parties will be provided with complete access to all nonprivileged documents possessed by the Secretary that are properly 

subject to discovery. The plan also provides that the other 

parties may take the depositions of Robert Thaxton on July 24th 

through July 26th and Lewis Raymond on July 29th and 30th in order 

to discover generally how the Secretary made her determination that 

the weights of the samples at issue were altered. The plan further 

provides that the other parties may examine, pursuant to certain 

limitations, the dust filters applicable to their respective cases 

and may subject the dust filters to non-destructive testing. 

Examination of these filters is to be completed by October 30, 

199 0 

Other than the two depositions mentioned above, all 

depositions of witnesses will begin only after discovery by 

interrogatory and document production is completed on August 30 1 

19910 The depositions of individuals with first-hand knowledge 

regarding the dust sampling and the designation of the dust filters 

at issue as altered will precede the depositions of other 

individuals. Joint Depositions of fact witnesses will be taken 

between October 7, 1991 and November 22, 1991. 

All expert witnesses will be required to prepare a written 

report summarizing their credentials, all opinions to which they 

1732 
4 

will testify in these matters, and the basis for such opinions. 

These reports must be exchanged by December 16, 1991. The 

depositions of expert witnesses will be taken between January 6, 

1992 and February 14, 1992. 

Upon the completion of the discovery specifically provided for 

in this plan, counsel for the Secretary and the other parties will 

meet to discuss proposing an order and schedule of trials and a 

plan and schedule for case-specific discovery in those matters. 

I. ADOPTION OF A GENERIC CAPTION AND MASTER DOCKET NUMBER 

A. To the extent feasible, all contest and civil penalty 

cases which involve altered dust filter media will carry a generic 

caption and master docket number to encompass discovery in all 

related litigation. Parties may serve pleadings, motions, and 

notices regarding discovery without having to list each party, 

citation number, and docket number. The generic caption and master 

docket number will be used in all pleadings, motions, or notices 

issued during the joint round of discovery. All motions or other 

pleadings relating to joint discovery and filed pursuant to the 

approved joint discovery plan shall be served on all other parties, 

including all operators. 

B. In any civil penalty proceeding in which the Secretary's 

allegation regarding altered dust filter media has been previously 

contested, the Secretary of Labor shall file the Petition for 

Assessment of Civil Penalty (hereinafter "the Petition") under the 

master docket number and the individual docket number assigned by 

the Commission. The Secretary shall serve the Petition, a copy of 

1733 
5 

this Plan and Schedule of Discovery, and a copy of the list of 

documents available in the document repository upon each 

Respondent. All proceedings under Petitions so filed shall be 

governed, to the extent feasible, by the terms of this Plan and 

Schedule of Discovery. 

c. In any civil penalty proceeding arising out of a citation 

alleging an alteration of a respirable dust sample issued by the 

Secretary on April 4, 1991, the Secretary of Labor shall file the 

Petition for Assessment of Civil Penalty (hereinafter "the 

Petition") under the master docket number and the individual docket 

number assigned by the Commission. The Secretary shall serve the 

Petition, a copy of this Plan and Schedule of Discovery, and a copy 

of the list of documents available in the document repository upon 

each Respondent. All proceedings under Petitions so filed shall be 

governed, to the extent feasible, by the terms of this Plan and 

Schedule of Discovery. 

D. Contests of citations issued after April 4, 1991 to any of 

the other parties which involve allegations of the alteration of 

respirable dust samples, as well as all civil penalty proceedings 

arising out of such citations, shall be governed, to the exbent 

feasible, by the terms of this Plan and Schedule of Discovery. 

II. DISCOVERY UNDER THE GENERIC CAPTION AND MASTER DOCKET NUMBER 

A. Creation of a Document Repository 

1. The Secretary will create a document repository in 

Arlington, Virginia, where all documents to be made available by 

the Secretary during discovery will be indexed, described, and 

1734 
6 

filed in a central location. The document repository will contain 

authenticated copies of all discoverable non-privileged documents 

in the Secretary's possession or control relating to altered dust 

filter media as well as photographs of each dust filter. The 

document repository will include scientific reports relied upon by 

the Secretary in determining to issue the citations involved here . 

The document repository will be available for the other parties to 

use within five (5) days of the entry of an order adopting this 

plan, or by June 25, 1991, whichever is later. A copy of the list 

of documents available in the document repository will be sent to 

all other parties by June 21, 1991. 

2. The other parties will be required to avail themselves of 

the documents in the document repository before filing further 

requests for production of documents. The Secretary will arrange 

for one copy of each requested document relevant to that party's 

citations to be made available to that party, without cost, upon 

ten (10) working days written notice. The other parties may also 

request copies of specific documents in the document repository by 

mailing a letter which specifically identifies the documents from 

the list provided by the Secretary. Such requests should be 

addressed to the Secretary's counsel . The Secretary will provide 

such documents within ten ( 10) working days of receipt of the 

request. 

3. The Secretary will also compile a list, including the 

origin, date, recipient, brief description, and title, of any 

document deemed by the Secretary not to be discoverable or which is 

1735 
7 

otherwise privileged. The Secretary will on or before July 1, 

1991, mail to all other parties copies of the list of documents she 

deems privileged or otherwise not subject to discovery and a 

statement of the basis for the claimed privilege. A copy of this 

list will be kept in the repository for examination and copying by 

the other parties. 

4. Parties desiring physical access to the document 

repository will be expected to consult with the Division of Mine 

Safety and Health, Office of the Solicitor to insure that 

sufficient space is available to accommodate all interested parties 

at the requested time. Parties should call 703-235-1153, at least 

twenty-four (24) hours in advance of their expected arrival, to 

arrange for access to the document repository. 

5. The document repository will be available from June 25, 

1991 to August 30, 1991. 

B. Testing of Dust Filters 

The Secretary will make available for photographing and nondestructive testing the dust filter media which are the basis for 

the Section 104(a) citations and associated civil penalties issued 

to the other parties. The production of these dust filters will be 

limited as follows: 

1. The dust filter media shall be made available first to the 

coal mine operator (or designated representative) named in the 

relevant citation. The other parties shall have access to each 

other 1 s dust filter media only upon receipt by the Secretary 1 s 

counsel of written permission from the counsel for the operator 

1736 
8 

named in the relevant citation. Upon the refusal of written 

permission by another party, or other inability to obtain the other 

party's permission, any party may move the administrative law judge 

for an order providing the moving party with access to the dust 

filter media-of another party. 

2. All dust filter media shall be made available in 

Arlington, Virginia, at a location designated by the Secretary for 

photographing, examination, and nondestructive testing. 

3. Any party may request in writing that the Secretary 

transfer its dust filter media to the Denver Heal th Technology 

Center, Denver, Colorado, for photographing, examination, and 

nondestructive testing. Such requests must be received by the 

Secretary's counsel by July 25, 1991. The Secretary must complete 

the transfer of the dust filter media by August 8, 1991. All dust 

filter media for which no written request to transfer is received 

July 25, 1991, shall remain in Arlington, Virginia@ 

4 o Photographing, examination, and nondestructive testing may 

only be conducted in the presence of a representative of the 

Secretary o The Secretary 1 s right to select a representative of her 

choice is not limited in any respect. The operators must provide 

their own equipment, chemicals 0 and other necessary materials 

needed to conduct their nondestructive testing. The operators must 

also provide for the safe removal and disposal of all waste 

materials which result from the nondestructive testing. 

5. The request of the operator for the production of the dust 

filter media must be made in writing to the Secretary's counsel and 

1737 
9 

be received at least five (5) days in advance of the requested date 

for production. The request must state specifically: 1) the dust 

filter media the operator proposes to examine; 2) the names of the 

individuals to examine the dust filter media; 3) the specific 

examination procedures and the equipment, chemicals, and/or 

processes that the dust filter media will be subject to: 4) the 

equipment, chemicals, and materials the operators will use to 

perform the nondestructive testing; 5) an agreement that the 

operator will safely remove and dispose of all waste materials 

which result from the- nondestructive testing; and, 6) the date, 

time, and anticipated duration of such examination. 

60 The request must certify that the procedures, chemicals, 

and processes that the dust filter media will be subject to will 

not destroy or alter the dust filter in any material respect. The 

parties acknowledge that should the dust filter media be destroyed 

or materially altered during the operators 1 photographing, 

examinationf or testing, the photograph of that dust filter media 

previously taken by the Secretary shall be admissible in these 

proceedings" 

7o If counsel for the Secretary believes that the examination 

or the procedures chemicals, and processes could result in the 

dust filter media being destroyed or altered, the Secretary shall 

promptly notify the requesting party of the basis for the 

Secretary 1 s belief and the parties shall attempt to resolve the 

issue. Issues which cannot be resolved expeditiously may be 

submitted to the administrative law judge for resolution. 

1738 
10 

8. The operators' right to review and conduct nondestructive testing will be subject to reasonable limitations in 

terms of the duration of tests and the number of tests. The 

operators acknowledge that the Secretary may impose reasonable 

limitations, consistent with her obligation to maintain a chain of 

custody for each of the dust filter media, upon the number of 

parties conducting examinations or testing at one time. If the 

Secretary and the operators cannot expeditiously resolve any 

disputes regarding th~ duration or number of tests, the matter may 

be submitted to the administrative law judge for resolution. 

9. Where the operators desire to conduct testing of the dust 

filter media which requires equipment which cannot be utilized at 

the location provided by the Secretary, the Secretary will make 

reasonable efforts to cooperate in such testing. If the Secretary 

and the operators cannot expeditiously resolve any disputes 

regarding such tests, the matter may be submitted to the 

administrative law judge for resolution. 

lOo The photographing, examination, and nondestructive 

testing of the du~t filter media shall be completed by October 30r 

1991. 

llo The parties recognize that additional examination and 

testing of dust filter media may be necessary following the 

depositions of the Secretary 1 s expert witnesses. The Secretary 

agrees to make reasonable efforts to comply with such requests. If 

the Secretary and the operators cannot expeditiously resolve any 

disputes regarding such tests, the matter may be submitted to the 

1739 
administrative law judge. 

c. Expert Witnesses 

11 

The provisions of this Plan and Schedule shall be applicable 

to all expert testimony offered by the Secretary or the other 

parties at any trial involving altered dust filter media. 

Testimony of expert witnesses for the Secretary and other parties 

will be taken subject to the following limitations: 

1. The Secretary and the other parties will exchange lists of 

all experts they anticipate using at trial. These lists are to be 

exchanged by December 2, 1991. Any additions or deletions in these 

lists must be served on opposing counsel within ten (10) days of a 

party's decision to add or delete an expert witness. 

2. Expert witnesses will be required to prepare a written 

report stating their credentials, all opinions or conclusions to 

which the expert expects to testify at trial, and a summary of any 

t·est r study, results, or evaluations which form the basis for such 

conclusions or opinions o These reports shall be served upon 

opposing counsel by December 16, 1991. 

3" All costs associated with the depositions of experts, 

including expert fees for testifying, shall be controlled by 

Rule 26(b) (4) of the Federal Rules of Civil Procedure except when 

otherwise agreed to by the parties. 

4. Depositions of experts shall be held where the expert is 

located, unless the party on whose behalf the expert will testify 

agrees to provide the expert at some other location. In this 

situation, the costs of having an expert travel to such other 

1740 
12 

location (and any associated travel expenses) shall be borne by the 

party on whose behalf the expert will testify. 

5. Depositions of "case specific" expert witnesses may be 

noticed during the period for case specific discovery beginning in 

March 1992. Expert witnesses may be retained after and as a result 

of case specific discovery. 

D. Sequence of Discovery 

The First or Joint Phase 

1. No depositions, except those provided for below in 

paragraph D. 2, shall-be taken until such time as discovery through 

requests for admissions, interrogatories, the document repository, 

and requests for production of documents are completed. Except for 

good cause shown, responses to requests for admissions, answers to 

interrogatories, inspection of the document repository, and 

responses to requests for production of documents shall be 

completed by September 13, 19910 Motions to compel shall be led 

October 4, 19910 The pendency of any such motion shall not 

delay the implementation of any subsequent provision of this plan 

and schedule of discovery" 

2o The Secretary shall make Robert Thaxton, District 4, Coal 

Mine Sa and Health, available for deposition on July 24, 25, 

and 26, 1991, and Lewis Raymond, Pittsburgh Health Technology 

Center, Mine Safety and Health Administration, available for 

deposition on July 29 and 30, 1991. These depositions shall be 

conducted at a suitable location designated by the Secretary in the 

1741 
13 

Washington, D. C. area. These two depositions sh al 1 be taken 

pursuant to the terms of paragraph D. 10 below. 

3. The Secretary will initiate discovery by admissions, 

interrogatories, and request for production of documents and things 

of the other parties under the generic docket number within 15 days 

of the entry of the order adopting this discovery schedule or 

July 15, 1991, whichever is later. 

4. The Secretary will, on or before July 1, 1991, identify 

all persons, including empi'oyees of the Secretary, who were 

involved in the receipt and processing of the dust filter media 

which led to the citations at issue. 

5. The Secretary will, on or before July 1, 1991, identify 

all persons, including employees of the Secretary, who made the 

determination that the dust filter media at issue each had been 

altered. 

60 1rhe operators tr1ill, on or before August 30v 1991, 

identify v for each dust sample the Secretary has alleged was 

altered in the contested citations, those employees of the operator 

who were responsible for~ (a) the dust sampling program at each 

mine; (b) the identity of the person who signed each dust data 

card; (c) the identity of the person responsible for the custody 

and control of each dust cassette after it had been removed from 

the miner or the designated sampling area; (d) the identity of the 

person responsible for the transferring of each dust cassette from 

the operator to MSHA; and, (e) a general description of the process 

1742 
14 

of the dust sampling program at each mine subject to the master 

docket. 

7. All parties desiring to take the deposition of potential 

fact witnesses as a Joint Deposition shall notify the Secretary and 

the other parties in writing of the names of such witnesses by 

September 13, 1991. All parties may, by October 4, 1991, 

supplement their lists of potential fact witnesses identified from 

written discovery responses. With the exception of persons listed 

as witnesses by a party, or persons named by the Secretary or the 

other parties as required by paragraphs four (4), five (5), and six 

(6) above, such notifications shall include a brief recital of the 

reasons for the taking of the deposition. on or before October 14, 

1991, the Secretary will notify all parties in writing of the names 

of any fact witnesses from whom the Secretary desires to take a 

deposition as a Joint Deposition. Joint Depositions will not be 

limited only to the witnesses listed in paragraphs II. 0 D. 4 0 5 0 

and 6 above. Additional Joint Depositions will only be allowed if 

a party is permitted to amend its list of potenti~l witnesses. 

8. The depositions of the employees of the Secretary shall be 

taken in a sequence beginning with the lower level employees and 

proceeding up the chain of command. This is to insure that the 

individuals with first-hand knowledge will be deposed first and to 

reduce the necessity for repeatedly deposing individuals with 

important enforcement responsibilities. 

9. The depositions of witnesses will be taken in two phases. 

The first phase of depositions will be taken under the generic 

1743 
15 

caption and master docket number referred to above and will be 

limited to Joint Depositions. The Joint Depositions of fact 

witnesses shall be taken prior to such depositions of expert 

witnesses. 

a. Depositions of the Secretary's witnesses will be taken as 

Joint Depositions if the Secretary names the witness pursuant to 

paragraphs four (4) or five (5) above, or otherwise indicates that 

the witness is expected to testify in more than one proceeding 

pending before the Commission. The date and locations of Joint 

Depositions of the Secretary's non-expert witnesses will be 

proposed in writing by the Secretary within ten (10) days of the 

closing of the notice period for Joint Depositions (see paragraph 

7 above). The Secretary will consult with opposing counsel prior 

to proposing such dates and locations. The other parties may file 

written objections to the proposed dates and locations with the 

administrative law judge. If written objections to the proposed 

.dates and locations are received 1 the administrative law judge 

shall set the dates and locations of the depositions by order. 

b. The deposition of a witness for the other parties will 

-also be taken as a Joint Deposition if the witness is listed as a 

potential witness for more than one party, or if the witness is 

identified as an expert pursuant to paragraph c. 1 above. The date 

and locations of Joint Depositions of the other parties' non-expert 

witnesses must be proposed in writing by the parties within ten 

(10) days of the closing of the notice period for Joint Depositions 

(see paragraph 6 above). The other parties will consult with each 

1744 
16 

other and the Secretary's counsel prior to proposing such dates and 

locations. The Secretary may file written objections to the 

proposed dates and locations with the administrative law judge. If 

written objections to the proposed dates and locations are 

received, the administrative law judge shall set the dates and 

locations of the depositions by order. 

10. Joint Depositions will be taken pursuant to the following 

procedures and limitations. 

a. All Joint Depositions will be recorded by a certified 

court reporter and videotaped if requested by a party. The party 

making the request shall bear the cost of videotaping. The party 

noticing the deposition will be responsible for all fees associated 

with the certified court reporter. 

b. The Joint Depositions will be limited to testimony that is 

common to all of the cases. In the case of expert witnesses, such 

Joint Depositions will be limited to the witness 1 expertise 1 

methodology, data; conclusions, and the basis for such conclusionso 

Questions relating to specific citations will not be appropriate, 

unless the expert has such knowledgeo 

Co At all Joint Depositions of a witness for the Secretary 

the operatorsu counsel shall determine in advance the lead 

questioner and shall draw lots for the order of questioning by 

other operators 1 counsel. Questioning will be permitted by 

intervenors 1 counsel at the conclusion of the operators' 

questioning. Cumulative and repetitive questions from different 

counsel and parties will not be allowed. 

1745 
17 

d. At all Joint Depositions of a witness for a party other 

than the Secretary, only the Secretary, the parties retaining the 

individual as a witness, and the representative of miners in the 

subject mine, if the representative of miners at the subject mine 

has chosen to intervene pursuant to applicable Review Commission 

rules, shall be allowed to participate. The United Mine Workers of 

America (UMWA) filed an intervention on June 24, 1991, for mines in 

which it is the representative of the miners. 

11. Subpoenas shall "not be necessary to require the 

attendance of any salaried employee of a party or retained expert 

to testify at a deposition. Subpoenas for entities or individuals 

requiring the attendance of witnesses and the production of 

documents at deposition will be available upon the filing of a 

notice of depositions and a written request for a subpoena which 

specifies the individual and/or the things sought. A copy of such 

written request shall be served upon all counsel served with the 

notice of deposition. 

12. The Joint Depositions of non-expert witnesses shall be 

completed by November 22 v 199L Additional depositions may be 

permitted only for good cause shown. 

13. All parties desiring to take the deposition of an expert 

witness as a Joint Deposition shall notify the Secretary and the 

other parties, in writing of the identity of the expert by 

December 24, 1991. The party noticing such a deposition shall 

confer with counsel of the party offering the expert testimony for 

the purpose of fixing the dates and locations of the depositions. 

1746 
18 

If the parties cannot agree, the administrative law judge shall set 

the dates and locations of the depositions by order. 

14. The Joint Depositions of all expert witnesses shall be 

completed by February 14, 1992. Additional depositions may be 

permitted only for good cause shown. 

15. Joint Depositions may be used, consistent with the 

Federal Rules of Evidence and Federal Rules of Civil Procedure, at 

the trial of any proceeding subject to the master docket number. 

E. Notices 

Notices of all proceedings under this plan shall be sent to 

all parties. 

Fo Filing of Discovery 

Pursuant to Rule 5{d) of the Federal Rules of civil Procedure, 

discovery requests and responses will not be filed with the 

Commission except in connection with a motion seeking a ruling @n 

a discovery disputeo 

IIIo CASE SPECIFIC DISCOVERY AND ORDER OF TRIALS 

Counsel for the Secretary and the other parties shall meet, 

within ten (10) days of February 14 ~ 1992 for the purpose of 

discussing and proposing to the administrative law judge a proposed 

order and schedule of trials and a plan and schedule for 

case-specific discovery in such matterso A discovery conference 

shall be held on March 2, 1992, at a time and location specified by 

the administrative law judge, to discuss the order and schedule of 

trials and a schedule for case-specific discovery. 

1747 
19 

IV. DISCOVERY FOR NEW PARTIES 

1. Operators who were parties in this case prior to June 28, 

1991 (the date of the issuance of the Plan and Schedule of 

Discovery), shall serve responses to the Secretary's written 

discovery on or before September 20, 1991. 

2. Operators who become parties in this case between June 28, 

1991 and September 17, 1991, shall serve responses to the 

Secretary's written discovery within 40 days of September 17, 1991. 

3. Operators described in numbered paragraph 2 above shall 

have the same 40 day period to utilize the document repository and 

to serve written discovery requests on the Secretary. The 

Secretary shall respond to such written discovery requests within 

30 days of service. 

4. Operators described in numbered paragraph 2 above shall be 

permitted to examine and test their filter media in accordance with 

the Plan and Schedule of Discovery within the same 40 day period. 

Western operators may request transfer of their dust filters to the 

Denver Health Technology Center within the same 40 day period, for 

testing in accordance with the Plan and Schedule of Discovery. If 

the 1 ters are transferred to Denver, the testing shall be 

completed on or before November 30, 1991. 

5. Operators described in numbered paragraph 2 above shall 

identify their employees involved in dust sampling in accordance 

with paragraph II.D.6 of the Plan and Schedule of Discovery within 

the above mentioned 40-day period. 

1748 
20 

6. Operators who become parties to this case after 

September 17, 1991, shall serve responses to the Secretary's 

written discovery requests, shall utilize the document depository, 

shall serve written discovery requests on the Secretary, shall be 

permitted to examine and test their filter media, and shall 

identify their employees involved in dust sampling within 40 days 

of the date they become parties in this case. 

V. AMENDMENTS TO PLAN 

Amendments to this Discovery Pl.an and Schedule may be granted, 

for good cause shown, upon the motion of any party. 

Distribution: 

See attached list 

1749 

-, . 

A

ti,,t iu:.~ .. ~tftvdft i e-A:._ 

James A. Broderick 

Administrative Law Judge 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 0 7 1991 

IN RE: CONTESTS OF RESPIRABLE DUST 

SAMPLE ALTERATION CITATIONS 

MASTER DOCKET NO. 91-1 

ORDER GRANTING MOTION FOR RECONSIDERATION 

ORDER UPHOLDING CLAIM OF PRIVILEGE FOR 

CERTAIN DOCUMENTS 

ORDER TO PRODUCE CERTAIN DOCUMENTS 

On October 4, 1991, counsel for Kentucky Carbon Corp., et 

al., filed a "renewed" motion to compel production of documents 

in accordance with my orders ±ssued September 27, 1991. The 

Secretary on October 4, 1991, filed a motion for reconsideration 

of my order of September 27, 1991, insofar as that order required 

the Secretary to produce Documents Nos. 3, 5, 201, 203, 350, 353, 

365, 366, 367, 401 and 424. The Secretary submitted each of 

these documents for my in camera inspection. 

I have considered the two motions and have reviewed the 

documents submitted for in camera inspection. On the basis of 

that consideration and review, the Secretary's Motion for 

Reconsideration is GRANTED. 

In my order issued September 13, 1991, I indicated that 

following a determination of the propriety of the Secretaryus 

claims of privilege, I would determine whether privileged 

documents should be ordered disclosed because Contestants 1 need 

for the documents outweighed the Secretary's interest in keeping 

them confidential. Order of September 13, 1991 at 8-9, 17. My 

order of September 27, 1991, to produce certain documents 

concerning which I upheld the claim of privilege was not issued 

sua sponte as the Secretary assertsp but pursuant to the motions 

to compel production filed July 26, 1991, August 13, 1991 and 

August l9p 1991. Contestants have asserted that the documents in 

question directly relate to the central issue of this case, that 

they are exclusively in the possession of the Government, and 

that they consist largely of factual material. The Secretary has 

not denied the first two assertions, but has, at least with 

respect to certain of the documents, denied that they are largely 

factual. Since I.have now examined all the withheld documents in 

camera, I can decide whether they are exclusively factual or are 

deliberative. 

1750 
I 

On reconsideration of my order of September 27, 1991, the 

following documents need not be produced. 

Document No. 5. This . .,,.is a draft report of PHTC dated 

June 1991 entitled Investigation of Dust Deposition Patterns on 

Respirable Coal Mine Dust Samples, consisting of 102 pages. I 

erroneously concluded that this document was a preliminary draft 

of a completed study. On review, it is obviously part of a 

continuing study. It is privileged as part of the deliberative 

process, and the needs of the Contestants do not outweigh the 

Secretary's interest in confidentiality. 

Document No. 201. This is a memorandum from the MSHA Chief 

Division of Health to District Managers dated May 7, 1991 and, as 

the Secretary points out in her argument, involves the current 

development of a new investigative program in the dust sampling 

area. The document is privileged as part of an investigative 

effort which is continuing. ·The operators' need for this 

document does not outweigh the Secretary's interest in 

confidentiality. 

Document No. 203. This is a memorandum of a telephone 

instruction March 21, 1990, from Glen Tinney, Arlington Health 

Division, entitled "New Void Code AWC--abnormal white center." 

The Secretary's motion states that this document, like document 

201, involves "the current development of a new investigative 

program concerning other potential violations of the dust 

sampling program." On the basis of this representation, the 

operators' need for the document does not outweigh the 

Secretary 1 s interest on confidentiality" 

II 

On reconsideration of my order of September 27, 1991, the 

Secretary is ORDERED to produce the following documents by 

placing them in the Document Depository on or before October 15, 

199L 

Documents 3, 365, 366 and 3670 These documents are a draft 

report of investigation by Warren R. Myers, Ph.D. and Allen 

Wells, MoS., of the Department of Industrial Engineering, West 

Virginia University concerning "Mine Compliance Sampling Filter 

Abnormalities" dated February 15, 1990, with handwritten comments 

apparently inserted by MSHA personnel (367), letters from Glenn 

Tinney (MSHA) to Dr. Myers, March 16, 1990 and May 4, 1990 with 

comments on the draft reports of Dr. Myers (365, 366), and a 

letter from Dr. Myers to Glenn Tinney, April 11, 1990, with 

responses to Tinney's comments on the first draft report (3). 

As the Secretary noted in her Motion, I held that all of 
these documents fell within the deliberative process privilege. 

The question remains whether they are discoverable because the 

operators' need for the documents outweighs the Secretary's 

interest in keeping them confidential. The litigation before the 

Commission involves the Goyernment's charge that the mine 

operators tampered with respirable coal mine dust samples. This 

contention is based in· part on the study and report prepare~ by 

West Virginia University. I conclude that fairness to the 

operators (and in the Commission's interest in fairly deciding 

these cases) demands that they be apprised not only of the final 

report, but also of the delibe.rations, Government suggestions, 

changes and revisions that led to the final report. I do not 

believe that the disclosure of these documents will compromise 

governmental policy deliberations. The operators' need for the 

documents outweighs the Secretary's interest in keeping them 

confidential. 

Documents 350 and 353. Document 350 is a computer printout 

showing the number and. percenfii.ge of "tampered" samples from over 

six hundred mines. Robert Thaxto~ in an affidavit August 30, 

1990, states that this document was prepared at the request of 

the U.S. Attorney for the Southern District of West Virginia. 

There is nothing in the document that refers to any criminal 

investigation and nothing limiting it to such an investigation. 

Document 353 is a computer printout of the number of tampered 

samples at different mines in different MSHA districts as of 

October 13, 1989. Mr. Thaxton's affidavit states that the 

content and organization of the document are related to criminal 

investigations. But again there is nothing in the document to 

show that it is part of, or limited to, a criminal investigation. 

The documents are entirely factual. I conclude that the need of 

the operators for this information outweighs the Secretary's 

interest in confidentialityo 

Documents 401 and 424. Document 401 is 74 pages in length 

and includes drafts of the 1989 PHTC report. Document 424 is a 

draft "List of Tables" with handwritten changes and notations 

showing results of dust filter testing as part of ·-the PHTC 1989 

report" For the reasons given above with reference to Documents 

3r 365v 366 and 367, I conclude that the operators' need for the 

documents outweighs the Secretary's interest in keeping them 

confidential. 

;fevt,1U:S ~ ~1_1;/z;cU1:i&L :;J ~ames A. Broderick 

Administrative Law Judge 

1752 
Distribution List attached: 

Douglas N. White, Esq., U.S. Department of Labor, Office of the 

Solicitor (Certified Mail) 

Laura E. Beverage, Esq., Jackson & Kelly (Certified Mail) 

Linda Homerding, Esq., Williams & Connolly (Certified Mail) 

Thomas R. Scott, Esq., Street, Street, Street, Scott & Bowman 

(Certified ~ail) 

All other Counsel and Parties served by Regular Mail 

1153 
Robert B. Allen, Esq. 

John J. Polak, Esq. 

King, Betts and Allen 

P.O. Box 3394 

Charleston, WV 25333 

Karl F. Anuta, Esq. (Co-counsel Crowell & Moring) 

Western Fuels-Utah, Inc. 

P.O. Box 1001 

1120 14th street 

Boulder, co 80306 

Charles J. Baird, Esq. 

Baird, Baird, Baird and Jones, P.s.c. 

P.O. Box 351 

415 Second Street 

Pikeville, KY 41502 

Brandan G. Baker 

Farkus Coal Co., Inc. 

107 Linden Avenue 

Charlerio, PA 15022 

Harold Baldridge, President 

Prater & Baldridge coal, Inc. 

P.O. Box 167 

Garrett, KY 41630 

Ralph Ball, President 

Sterling Energy, Inc. 

Rt. 3, Box 22 

Industrial Park Road 

Jacksborof TN 37757 

Phillip Do Barberu Esqo 

Wellbon, Duffordu Brown & Tooley 

1700 Broadway 

Suite 1700 

Denveru CO 80290-1701 

George Basarau Esqo 

Polito & Smock, P.Co 

Suite 400, Four Gateway Center 

Pittsburgh, PA 15222-1207 

Sheila Becker, Vice President 

Jim Dandy Coals, Inc. 

P.O. Box 328 

Buckhannon, WV 26201 

1754 
Laura E. Beverage, Esq. 

Jackson and Kelly 

P.O. Box 553 

Charleston, WV 25322 

Timothy M. Biddle, Esq. 

Crowell and Moring 

1001 Pennsylvania Avenue, N.W. 

Washington, D.C. 20004 

William H. Bland, President 

Edward A. Moss, Safety Coordinator 

B.S. & s. Coal Co., Inc. 

P.O. Box 639 

Morgantown, WV 26507 

Virgil C. Blankenship 

Bear Ridge Mining, Inc. 

P.O. Box 255 

Tazewell, VA 24651 

Michael w. Boehm, Esq. 

Spears, Moore, Rebman and Williams 

8th Floor, Blue Cross Building 

P.O. Box 1749 

Chattanooga, TN 34402 

Harold D. Bolling, President 

Daniel Lee Coal Co., Inc. 

135 w. Main Street 

Whitesburg, KY 41858 

liam Eo Bradshawv Esqo 

Keuling, Stout and Bradshaw 

P.Oo Box 400 

Big Stone Gap, VA 24219 

Clifford D. Burden 

Pyre Mining Co. 

P.O. Box 289 

Sturgis, KY 42459 

David Burden 

Prestige Coal Company 

275 A.S. Main street 

Madisonville, KY 42431 

Harry L. Capadano, III, Esq. (Co-counsel Crowell & Moring) 

Decker Coal Company 

One Thousand Kiewit Plaza 

Omaha, NE 68131 

1755 
David E. Cecil, Esq. 

Robertson, Cecil, King and Pruitt 

237 Main Street 

Drawer 1560 

Grundy, VA 24614 

Harry M. Coven, Esq. 

Gould and Ratner 

222 North LaSalle Street 

8th Floor 

Chicago, IL 60601-1086 

Michael w. critch, Superintendent 

Thor, Inc. 

1000 Dupont Road 

Building #6 

Morgantown, WV 26505 

Martin J. Cunningham, Esq. 

Reece, Lang & BreedingLondon Bank & Trust Bldg. 

400 s. Main Street 

P.O. Drawer 5087 

London, KY 40745-5087 

Robert I. Cusick, Esq. 

David B. Wicker, Esq. 

Wyatt, Tarrant and Combs 

Citizens Plaza 

Louisville, KY 40202 

Foresteru Buttermore 0 Turner ~ Lawson 

PoOo BOX 935 

Harlan 0 KY 40831-0935 

Denise A. Dragoo, Esq. 

Geoffrey P. Griffin~ Esq. 

Fabian & Clendenin 

215 Soo State Street 0 12th Floor 

PoOo Box 510210 

Salt Lake Cityu UT 84151 

H. Ge Freeman, President 

Estel Crouse 9 Vice President 

Doris Coal Company 

Box 235 

Grundy, VA 24614 

Loyal G. Forman, Jr., President 

Ringold Mining, Inc. 

P.O. Box 433 

Kingwood, WV 26537 

1756 
Ray.D. Gardner, Esq. (Co-counsel Crowell & Moring) 

Pittsburg and Midway Coal , s~,: . 

6400 south Fiddler's Green Circle 

Englewood, co 80111-4991 

Charles B. Hall, President= 

H&D Coal Co., Inc. 

P.O. Box 480 

Whitesburg, KY 41858 

James A. Harris, Esq. 

Waters, Warner & Harris 

701 Goff Building 

P.O. Box 1716 

Clarksburg, WV 26301 

Carl David Harold 

Fire Creek, Inc. 

P.O. Box 5066 

Princeton, WV 24740 

Carl H. Hellerstedt, Jr., Esq. 

Volk, Frankovitch, Anetakis, Recht, Robertson & Hellerstedt 

Three Gateway center 

15th Floor East 

Pittsburgh, PA 15222 

Michael T. Heenan, Esq. 

Smith, Heenan and Althen 

1110 Vermont Avenue, N.W. 

Washington, D.C. 20005 

Linda Homerding, Esq. 

Williams and Connolly 

839 17th streetu N.W. 

Washington, o.c. 20006 

David Howard 

Cumberland Valley Contractors, Inc. 

P.O. Box 1329 

Middlesboro, KY 40965 

John M. Huddler Esq. 

Gentry, Locke, Rakes & Moore 

P.O. Box 1018 

Roanoke, VA 24005 

Donald L. Humphreys, Esq. 

BHP-Utah International, Inc. 

550 California Street 

San Francisco, CA 94104 

·1757 
Morris Issac 

Safety Director 

Reynolds Branch Coal Company, Inc. 

P.O. Box 620 

Martin, KY 41649 

Mary Lu Jordan, Esq. 

Michael Dinnerstein, Esq. 

United Mine Workers of America 

900 15th Street, N.W. 

Washington, D.C. 20005 

James R. Justus 

Just-Us Coal Corp. 

P.O. Box 359 

Hurley, VA 24620 

D. B. Kazee, Esq. 

Francis, Kazee & Francis 

111 East Court Street_ 

P.O. Box 700 

Prestonsburg, KY 41653 

David A. Laing, Esq. (Co-counsel Crowell & Moring) 

Porter, Wright, Morris and Arthur 

41 S. High Street 

Columbus, OH 43215 

Dan Llewellyn 

Delta Coal Sales, Inc. 

P.O. Box 309 

Grantsville 9 MD 21536 

Louis Lorenzov President 

Lorenzo Mining Co., Inc. 

R.R. 1 1 Box 464 

Linton, TN 47441 

John c. Martin 0 Esq. 

V. Heather Sibbison, Esq. 

Patton, Boggs & Blow 

2550 M Street, N.W. 

Washington 7 D.C. 20037 

Matthew G. Melvin, Esq. 

Barbera and Barbera 

146 w. Main Street 

P.O. Box 775 

Somerset, PA 15501 

1758 
Marcus P. McGraw, Esq. 

Greenbaum, Doll and McDonald 

1400 Vine Center Tower 

P.O. Box 1808 

Lexington, KY 40593 

Matthew F. McNulty, III, Esq. 

Van Cott, Bagley, Cornwall and McCarthy 

50 South Main Street, Suite 1600 

Salt Lake City, UT 84145 

Dina M. Mohler, Esq. 

Kay, Casto, Chaney, Love and Wise 

P.O. Box 2031 

Charleston, WV 25327 

R. Henry Moore, Esq. 

Buchanan Ingersoll 

600 Grant Street, 58th Floor, 

Pittsburgh, PA 15219 

Edward Mulhall, Jr., Esq. 

Delaney and Balcomb, P.C. 

Drawer 790 

Glenwood Springs, CO 81602 

Randall K. Osborne 

Rt. 1, Box 53 

Pennington Gap, VA 24277 

Jacl<.ie Owens 

Pa-Pa Coal Mining COov Inca 

146 Wo Main Street 

PoOo BOX 775 

Somerset 1 PA 15501-0775 

John Palmerp Esqo 

Robinson and McElwee 

PoOo Box 1791 

Charlestonv WV 25326 

Karl-Hans Rath 1 Vice President 

Dunkard Mining Coo 

PoOo BOX 8 

Dilliner, PA 15327 

Michael J. Schmitt, Esq. 

Wells, Porter, Schmitt & Walker 

327 Main Street 

P.O. Box 1179 

Paintsville, KY 41240-5179 

1759 
Randall Scott May, Esq. 

Barett, Haynes, May, Carter & Roarck, P.S.C. 

P.O. Box 1017 

Hazard, KY 41701 

Thomas R. Scott, Jr., Esq.,,._ 

Street, Street, Street, Scott and Bowman 

P.O. Box 2100 

Grundy, VA 24614 

Leo M. Stepanian, Esq. 

Stepanian & Muscatello 

228 So. Main Street 

Butler, PA 16001 

David M. Smith, Esq. 

Maynard, Cooper, Frierson and Gale 

1901 6th Avenue, North 

Suite 2400 Amsouth/Harbert Plaza 

Birmingham, AL 35203 

s. R. Smith, President 

Teays Mining, Inc. 

P.O. Box 72 

Mt. Hope, WV 25880 

William D. Stover, Esq. 

41 Eagles Road 

Beckley, WV 25326 

Ora Dwaynne Tennant, superintendent 

Gray Stone Mining, Inc. 

Route 2 

Box 284 

Fairview, WV 26570 

K. Dale Tolliver 

Quality Energy, Inc. 

P.O. Box 1740 

Princeton, WV 24740 

Charles A. Wagner, Esq. 

Wagner, Myers and Sanger 

P.O. Box 1308 

Knoxville, TN 37901 

W. Challen Walling, Esq. 

Penn, Stuart, Eskridge & Jones 

306 Piedmont Avenue 

P.O. Box 2009 

Bristol, VA 24203 

1760 
R. Gregory West, Esq. 

106 Municipal Drive, Suite 200 

Oneida, TN 37841 

Douglas N. White, Esq. 

U.S. Department of Labor 

Office of the Solicitor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Jacksons. White, Jr., Esq. 

Mark R. Graham, Esq. 

White, Elliott and Bundy 

P.O. Box 429 

Abingdon, VA 24210 

Robert c. Wilson, Esq. 

Wilson & Cape 

105 s. Commercial 

P.O. Box 544 

Harrisburg, IL 62946 

Joseph A. Yuhas, Esq. 

R.D. #1, Box 40 

Barnesboro, PA 15714 

Revised 10/3/91 

1761 
FEDERAL MINE SAFETY AND HEALTH. REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th. FLOOR 

5203 LEESBURG PIKE . . . . FALLS CHURCH, VIRGINIA 22041 

OOT 181991 

DOTSON & RIFE COAL CO., INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SFETY ANO HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DOTSON & RIFE COAL CO., INC., 

Respondent 

: 

CONTEST PROCEEDINGS 

Docket No. KENT 91-670-R 

through KENT 91-678-R 

Mine No. 1 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 91-1200 

A.C. No. 15-05417-035320 

Mine No. 1 

ORDER STAYING PROCEEDINGS 

On September 27, 1991, Counsel for Contestant/Respondent 

filed a motion to stay further proceedings in these cases. As 

grounds for the motion Contestant/Respondent sta~es that it has 

entered into an agreement to plead guilty to a charge of 

conspiracy to defraud the Mine Safety and Health Administration 

connection with~Contestant/Respondent s dust sampling program. 

As part of the plea bargain agreement, the Secretary of Labor has 

agreed to move to dismiss any pending civil penalty proceedings 

for violations of the laws governing the dust sampling program. 

The motion states that Counsel for the Secretary consents to 

the entry of an order staying these proceedings. 

Premises consideredu the motion is GRANTED. The above 

proceedings are STAYED until all criminal proceedings concerning 

Contestant/Respondent have been concluded. 

j ,I p,1 / ' 

11",,lc.CS ,,+1._,·t'c)r:Lz. :'le/'-

James A. Broderick 

Administrative Law Judge 

1762 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 181991 

' 

. 

• CIVIL PENALTY PROCEEDING 

MINE SAFETY ANO HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

• • 

• • 

. 

• 

Docket No. VA 91-466 

A.C. No. 44-04559-03565D 

v. 

BLACK NUGGET MINING, INC., 

Respondent 

. 

• 

: Mine No. 1 . . 

• • 

ORDER STQ:ING PROC£EDIN'GS 

On September 27, 1991, Counsel for Respondent filed a motion 

to stay further proceedings in these cases. As grounds for the 

motion Respondent states that it has entered into an agreement to 

plead guilty to a charge of conspiracy to defraud the Mine Safety 

and Health Administration in connection with Respondent's dust 

sampling program. As part of the plea bargain agreement, the 

Secretary of Labor has agreed to move to dismiss any pending 

civil penalty proceedings for violations of the laws governing 

the dust sampling program. 

The motion states that Counsel for the Secretary consents to 

the entry of an order staying these proceedings. 

Premises consideredu the motion is GRANTED. The above 

proceedings are STAYED until all crimi~l proceedings concerning 

Respondent have been concluded. 

Distributiong 

/,1-U!~ .A---1~:e::1r4:,,_,·~Z James A. Broderick 

Administrative Law Judge 

Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main 

Street, Drawer 1560, Grundy, VA 24614 (Certified Mail) 

Douglas N. White, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 {Certified 

Mail) 

Richard High, Director of Assessments, MSHA, 4015 Wilson Blvd., 

Arlington, VA 22203 

1763 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 181991 

SECRETARY OF LABOR, • CIVIL PENALTY PROCEEDING • 

MINE SAFETY AND HEALTH . 

• 

ADMINISTRATION (MSHA), . Docket No. VA 91-468 • 

Petitioner . . A.C • No. 46-06547-035140 

v. . . 

. . Mine No. 1 

AMERICAN CARBON CORPORATION, . . Respondent . 

. 

ORDER STAYING PROCEEDINGS 

On September 27, 1991, Counsel for Respondent filed a motion 

to stay further proceedings in these cases. As grounds for the 

motion Respondent states that it has entered into an agreement to 

plead guilty to a charge of conspiracy to defraud the Mine Safety 

and Health Administration in connection with Respondent's dust 

sampling program. As part of the plea bargain agreement, the 

Secretary of Labor has agreed to move to dismiss any pending 

civil penalty proceedings for violations of the laws governing the dust sampling program. 

The motion states that Counsel for the Secretary consents to 

the entry of an order staying these proceedings. 

Premises consideredu the motion is GRANTED. The above 

proceedings are STAYED until all criminal proceedings concerning 

Respondent have been concluded. 

Distributiong 

J Jk! . ' I 

/fd,,,tii.£6 μJvZ) ti£,,z.:4/~ J' James A. Broderick 

Administrative Law Judge 

Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main 

Street, Drawer 1560, Grundy, VA 24614 (Certified Mail) 

Douglas N. White, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

Richard High, Director of Assessments, MSHA, 4015 Wilson Blvd., 

Arlington, VA 22203 

1764 
~EDER.AL MINE SAFETY AND HEALTH RE"l.EW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUOG~S 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OOT 181991 · 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

GOOD TIMES MINING, INC., 

. . 

: 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. VA 91-462 

A.C. No. 44-06333- 035Q8n 

: Mine No. 2 

Respondent : 

ORDER STAYING PROCEEDINGS 

On September 27, 1991, Counsel for Respondent filed a motion 

to stay further proceedings in these cases. As grounds for the 

motion Respondent states that it has entered into an agreement to 

plead guilty to a charge of conspiracy to defraud the Mine Safety 

and Health Administration in connection with Respondent's .dust 

sampling program. As part of the plea bargain agreement, the 

Secretary of Labor has agreed to move to dismiss any pending 

civil penalty proceedings for violations of the laws governing. the dust sampling program. · 

The motion states that Counsel for the Secretary consents to 

the entry of an order staying these proceedings. 

Premises considered, the motion is GRANTED. The above 

proceedings are STAYED until all criminal proceedings concerning 

Respondent have been concluded. 

:/d;t~:..L-s~ /1./'!fi,1}lfb:;ieA_ 

I , G James A. Broderick 

Administrative Law Judge 

Distribution~ 

Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main 

Street, Drawer 1560, Grundy, VA 24614 (Certified Mail) '( • 1 

Douglas N. White, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., 'Arlington, VA 22203 (Certified 

Mail) . 

Richard High, Director of Assessments, MSHA, 4015 Wilson Blvd., 

Arlington, VA 22203 

1765 
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 (MSHA), 

Petitioner 

Vo 

GOOD TIMES MINING, INC., 

Respondent 

DOT 18 1991 

. . 

. 

. 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 91-1051 

A.C. No. 15-16410-035140 

: Mine No. 3 

ORDER STAYING PROCEEDINGS 

On September 27, l991, Counsel for Respondent filed a motion 

to stay further proceedings in these cases. As grounds for the 

motion Respondent states that it has entered into an agreement to 

plead guilty to a charge of conspiracy to defraud the Mine Safety 

and Health Administration in connection with Respondent's dust 

sampling program. As part of the plea bargain agreement, the 

Secretary of Labor has agreed to move to dismiss any pending 

civil penalty proceedings for violations of the laws governing 

the dust sampling program. 

The motion states that counsel for the Secretary consents to 

the entry of an order staying these proceedings. 

Premises considered, the motion is GRANTED. The above 

proceedings are STAYED until all criminal proceedings concerning 

Respondent have been concluded. 

,,·? 

/ft1ik . .t! 6 ~;z,dut ld....__ 

(/ ~ames A. Broderick ,. Administrative Law Judge 

Distribution~ 

Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main 

street, Drawer 1560, Grundy, VA 24614 (Certified Mail) 

Douglas N. White, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

Richard High, Director of Assessments, MSHA, 4015 Wilson Blvd., 

Arlington, VA 22203 

1766 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OOT 18 1991 

. . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

. . Docket No. VA 91-458 

A.C. No. 44-02241-03516D 

v. 

LUCKY L & L COAL CO., INC., 

Respondent 

Mine No. 1 

ORDER STAYING PROCEEDINGS 

On September 27, 1991, Counsel for Respondent filed a motion 

to stay further proceedings in these cases. As grounds for the 

motion Respondent states that it has entered into an agreement to 

plead guilty to a charge of conspiracy to defraud the Mine Safety 

and Health Administration in connection with Respondent's dust 

sampling program. As part of the plea bargain agreement, the 

Secretary of Labor has agreed to move to dismiss any pending 

civil penalty proceedings for violations of the laws governing 

the dust sampling program. 

The motion states that Counsel for the Secretary consents to 

an order staying these proceedings •. 

Premises consideredv the motion is GRANTED. The above 

proceedings are STAYED until all criminal proceedings concerning 

Respondent have been concluded. 

Distribution~ 

l ,f_,/1 ./~/)'./ ;:/i/A!Ui 5 /H:.JvZJtuV;/iefL-

(/ James A. Broderick 

Administrative Law Judge 

Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main 

Streetu Draw.er 1560, Grundy, VA 24614 (Certified Mail) 

Douglas N. White, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 {Certified 

Mail) 

Richard High, Director of Assessments, MSHA, 4015 Wilson Blvd., 

Arlington, VA 22203 

1767 
F£DERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OOT 18 1991 

CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. VA 91-460 

A.C. No. 44-04862-035410 

v. 

L & L ENERGY OF HURLEY, INC., 

Respondent 

Mine No. 2 

ORDER STAYING PROCEEDINGS 

On September 27, ,1991, Counsel for Respondent filed a motion 

to stay further proceedings in these cases. As grounds for the 

motion Respondent states that it has entered into an agreement to 

plead guilty to a charge of conspiracy to defraud the Mine Safety 

and Health Administration in connection with Respondent's dust 

sampling program. As part of the plea bargain agreement, the 

Secretary of Labor has agreed to move to dismiss any pending 

civil penalty proceedings for violations of the laws governing 

the dust sampling program. 

The motion states that Counsel for the Secretary consents to 

the entry of an order staying these proceedings. 

Premises consideredu the motion is GRANTED. The above 

proceedings are STAYED until all criminal proceedings concerning 

Respondent have been concluded. 

,ftuJ;;u-o )-f!l11xk.rvL ,J ~ames A. Broderick · Administrative Law Judge 

Distribution~ 

Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main 

Street, Drawer 1560, Grundy, VA 24614 (Certified Mail) 

Douglas N. White, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

Richard High, Director of Assessments, MSHA, 4015 Wilson Blvd., 

Arlington, VA 22203 

1768 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OOT 18 1991 

. . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner 

. • 

. . Docket No. VA 91-1638 

A.C. No. 44-04839-035530 

v. 

DELBARTON MINING CORP., 

. . 

Respondent : 

Mine No. 1 

ORDER STA:YING PROCEEDINGS 

On September 27, 1991, Counsel for Respondent filed a motion 

to stay further proceedings in these cases. As grounds for the 

motion Respondent states that it has entered into an agreement to 

plead guilty to a charge of conspiracy to defraud the Mine Safety 

and Health Administration in connection with Respondent's dust 

sampling program. As part of the plea bargain agreement, the 

Secretary of Labor has agreed to move to dismiss any pending 

civil penalty proceedings for violations of the laws governing 

the dust sampling program. 

The motion states that Counsel for the Secretary consents to 

entry of an order staying these proceedings. 

Premises consideredv the motion is GRANTED. The above 

proceedings are STAYED until all criminal proceedings concerning 

Respondent have been concluded. 

.d i < l ,:' ·"' /} P.,.,.} / ,,,,:,,;;,;:._ /'/, /v11U-6 /~//f:}i/v(JL-,, -v 

ames A.· Broderick 

Administrative Law Judge 

Distribution~ 

Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main 

Street, Drawer 1560, Grundy, VA 24614 (Certified Mail) 

Douglas N. White, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

Richard High, Director of Assessments, MSHA, 4015 Wilson Blvd., 

Arlington, VA 22203 

1769 
'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 (MSHA), 

Petitioner 

v. 

BR D COAL COMPANY, INC., 

Respondent 

001 1s199l 

: 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. VA 91-482 

A.C. No. 44-06030-03546D 

Mine No. 2 

ORDER STAYING PROCEEDINGS 

on September 27, 1991, Counsel for Respondent filed a motion 

to stay further proceedings in these cases. As grounds for the 

motion Respondent states that it has entered into an agreement to 

plead guilty to a charge of conspiracy to defraud the Mine Safety 

and Health Administration in connection with Respondent's dust 

sampling program. As part of the plea bargain agreement, the 

Secretary of Labor has agreed to move to dismiss any pending 

civil penalty proceedings for violations of the laws governing 

the dust sampling program. 

The motion states that Counsel for the Secretary consents to 

the entry of an order staying these proceedings. 

Premises consideredv the motion is GRANTED. The above 

proceedings are STAYED until all criminal proceedings concerning 

Respondent have been concluded. 

Distribution~ 

!/wtu.L~ .-~€v&z.1,e/_ {) James A. Broderick 

Administrative Law Judge 

Ronald L. King, Esq. 1 Robertson, Cecil, King & Pruitt, 237 Main 

Street, Drawer 1560, Grundy, VA 24614 (Certified Mail) 

Douglas N. White, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

Richard High, Director of Assessments, MSHA, 4015 Wilson Blvd., 

Arlington, VA 22203 

1770 
FEDERAl MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 18 1991 

DOUBLE L COAL COMPANY, 

contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

: 

. . 

. . 

. . 

CONTEST PROCEEDING 

Docket No. VA 91-432-R 

through VA 91-445-R 

Mine No. 2 

ORDER STAYING PROCEEDINGS 

On September 27, 1991, counsel for Contestant/Respondent 

filed a motion to stay further proceedings in these cases. As 

grounds for the motion Contestant/Respondent states that it has 

entered into an agreement to plead guilty to a charge of 

conspiracy to defraud the Mine Safety and Health Administration 

in connection with Contestant/Respondent's dust sampling program. 

As part of the plea bargain agreement, the Secretary of Labor has 

agreed to move to dismiss any pending civil penalty proceedings 

for violations of the laws governing the dust sampling program. 

The motion states that Counsel for the Secretary consents to 

the entry of an order staying these proceedings. 

Premises consideredu the motion is GRANTED. The above 

proceedings are STAYED until all criminal proceedings concerning 

Contestant/Respondent have been concluded. 

Distributiong 

. 11,/)'1 ,../ ',,1/ J

tviti.tk:'> /f1 ._/ ;"{}(Jf::",--;.1,~ 

James A. Broderick 

Administrative Law Judge 

Ronald Lo King, Esq., Robertson, Cecil, King & Pruitt, 237 Main 

Street, Drawer 1560, Grundy, VA 24614 (Certified Mail) 

Douglas N. White, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

slk 

1771 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 18 1991 

EDD POTTER COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SECRETARY OF LABOR, 

MINE SFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EDD POTTER COAL COMPANY, 

Respondent 

CONTEST PROCEEDINGS 

Docket No. KENT 91-680-R 

through KENT 91-697 

Mine No. 2 

CIVIL PENALTY PROCEEDING 

Docket. No. KENT 91-1136 

A.C. No. 15-05436-03531D 

Mine No. 2 

ORDER STAYING PROCEEDINGS 

On September 27, 1991, Counsel for Contestant/Respondent 

filed a motion to stay further proceedings in these cases. As 

grounds for the motion Contestant/Respondent states that it has 

entered into an agreement to plead 'guilty to a charge of 

conspiracy to defraud the Mine Safety and Health Administration 

connection with Contestant/Respondent 1 s dust sampling program. 

As part of the plea bargain agreement, the Secretary of Labor has 

agreed to move to dismiss any pending civil penalty proceedings 

for violations of the laws governing the dust sampling program. 

The motion states that Counsel for the Secretary consents to 

the entry of an order staying these proceedings. 

Premises considered, the motion is GRANTED. The above 

proceedings are STAYED until all criminal proceedings concerning 

contestant/Respondent have been concluded. 

:A 

' .. 1 d: .. ·rt,; . /' .-v /'I ' . . /' ..-,, ' v· 

~· t :u: 5 /tJ .. J( ,: ?, £, ., "6. (_. 

/ James A. Broderick 

'/ Administrative Law Judge 

1772 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 18 1991 

RUBY HELEN COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SECRETARY OF LABOR, 

MINE SFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RUBY HELEN COAL COMPANY, 

Respondent 

• • 

. . 

. . 

. . 

. . 

. . 

CONTEST PROCEEDINGS 

Docket No. WEVA 91-1160-R 

through WEVA 91-1161-R 

Mine No. 1 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 91-1759 

A.C. No. 46-07554-035120 

Mine No. 1 

ORDER STAYING PROCEEDINGS 

On September 27, 1991, Counsel for contestant/Respondent 

filed a motion to stay further proceedings in these cases. As 

grounds for the motion Contestant/Respondent states that it has 

entered into an agreement to plead guilty to a charge of 

conspiracy to defraud the Mine Safety and Health Administration 

in connection with Contestant/Respondentws dust sampling programo 

As part of the plea bargain agreement, the Secretary of Labor has 

agreed to move to dismiss any pending civil penalty proceedings 

for violations of the laws governing the dust sampling program. 

The motion states that Counsel for the Secretary consents to 

the entry of an order staying these proceedings. 

Premises considered, the motion is GRANTED. The above 

proceedings are STAYED until all criminal proceedings concerning 

Contestant/Respondent have been concluded. 

1773 

,,., , 

.!1!~ ~ ,,1-l!JJ~ti~rc~li James A. Broderick 

Administrative Law Judge 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SHADY LANE COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MJ:NE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR,. 

MINE SFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SHADY' LANE COAL COMPANY, 

Respondent 

OOT 18 1991 

: 

. . • 

. . 

CONTEST PROCEEDINGS 

Docket No. VA 91-367-R 

through VA 91-368-R 

Mine No. 3 

CIVIL PENALTY PROCEEDING 

Docket No. VA 91-491 

A.C. No. 44-06549-03507D 

Mine No. 3 

ORDER STAYING PROCEEDINGS 

on September 27, 1991, Counsel for Contestant/Respondent 

filed a motion to stay further proceedings in these cases. As 

grounds for the motion Contestant/Respondent states that it has 

entered into an agreement to plead guilty to a charge of 

conspiracy to defraud the Mine Safety and Health Administration 

i~ connection with Contestant/Respondent 1 s dust sampling program. 

As part of the plea bargain agreement, the Secretary of Labor has 

agreed to move to dismiss any pending civil penalty proceedings 

for violations of the laws governing the dust sampling program. 

The motion states that Counsel for the Secretary consents to 

the entry of an order staying these proceedings. 

Premises considered, the motion is GRANTED. The above 

proceedings are STAYED until all criminal proceedings concerning 

Contestant/Respondent have been concluded. 

-1vi!::l-~~ A--E~?>t~/'{;~~d /~ James A. Broderick 1 Administrative Law Judge 

1774 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OOT 18 1991 

SUNSET LAND & COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SUNSET LAND & COAL COMPANY, 

Respondent 

: CONTEST PROCEEDINGS 

Docket No. VA 91-386-R 

through VA 91-397-R 

Mine No. 1 

CIVIL PENALTY PROCEEDING 

Docket No. VA 91-502 

A.C. No. 44-06326-03538D 

Mine No. 1 

ORDER STAYING PROCEEDINGS 

On September 27, 1991, Counsel for Contestant/Respondent 

filed a motion to stay further proceedings in these cases. As 

grounds for the motion Contestant/Respondent states that it has 

entered into an agreement to plead guilty to a charge of 

conspiracy to defraud the Mine Safety and Health Administration 

connection with Contestant/Respondent 1 s dust sampling program. 

As part of the plea bargain agreement, the Secretary of Labor has 

agreed to move to dismiss any pending civil penalty proceedings 

for violations of the laws governing the dust sampling program. 

The motion states that Counsel for the Secretary consents to 

~he entry of an order staying these proceedings. 

Premises considered, the motion is GRANTED. The above 

proceedings are STAYED until all criminal proceedings concerning 

Contestant/Respondent have been concluded. 

1775 

f //7 . / ~/12,-:/:{.,L''f, /~ J vix:i:.,,z&.!'-/....._ 

tJ James A. Broderick 

Administrative Law Judge 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SUNRISE MINING, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SUNRISE MINING, INC., 

Respondent 

OOT 18 1991 

. . 

. . 

CONTEST PROCEEDINGS 

Docket No. WEVA 91-1167-R 

through WEVA 91-1177-R 

Mine No. l 

·crVIL PENALTY PROCEEDING 

Docket No. WEVA 91-1718 

A.C. No. 44-07296-035130 

Mine No. 1 

ORDER STAYING PROCEEDINGS 

On September 27, 1991, counsel for Contestant/Respondent 

filed a motion to stay further proceedings in these cases. As 

grounds for the motion Contestant/Respondent states that it has 

entered into an agreement to plead guilty to a charge of 

conspiracy to defraud the Mine Safety and Health Administration 

in connection with Contestant/Respondent's dust sampling program. 

As part of the plea bargain agreement, the Secretary of Labor has 

agreed to move to dismiss any pending civil penalty proceedings 

for violations of the laws governing the dust sampling program. 

The motion states that Counsel for the Secretary consents to 

the entry of an order staying these proceedings. 

Premises considered, the motion is GRANTED. The above 

proceedings are STAYED until all criminal proceedings concerning 

contestant/Respondent have been concluded. 

1776 

;1 f /' /1 J ' q / ll~ 'J s ./t1Clr:~ (/J :.,,{/'-

James A. Broderick 

Administrative Law Judge 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

RED DOG COAL CORPORATION, 

Contestant 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

KINE SFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RED DOG COAL CORPORATION, 

Respondent 

OOT 18 1991 

CONTEST PROCEEDINGS 

Docket No. KENT 91-698-R 

Mine No. 3-A 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 91-1112 

A.C. No. 15-15908-035250 

Mine No. 3-A 

ORDER STAYING PROCEEDINGS 

on September 27, 1991, Counsel for Contestant/Respondent 

filed a motion to stay further proceedings in these cases. As 

grounds for the motion Contestant/Respondent states that it has 

entered into an agreement to plead guilty to a charge of 

conspiracy to defraud the Mine Safety and Health Administration 

i~ connection with Contestant/Respondent 1 s dust sampling program. 

As part of the plea bargain agreement, the Secretary of Labor has 

agreed to move to dismiss any pending civil penalty proceedings 

for violations ot the laws governing the dust sampling program. 

The motion states that counsel for the Secretary consents to 

t.he entri.J of an order staying these proceedings. 

Premises considered, the motion is GRANTED. The above 

proceedings are STAYED until all criminal proceedings concerning 

Contestant/Respondent have been concluded. 

·'? 

;fa - A /.7/1

i n'' 11 • 1 ,, / 

l1//,lh~ /'I/~ "..., t.J.!:J,, ._, r.,?-.._ 

James A. Broderick 

Administrative Law Judge 

1777 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OOT 18 1991 

RED DOG COAL CORPORATION, . 

. CONTEST PROCEEDINGS 

Contestant 

v. Docket No. VA 91-290-R . 

~ through VA 91-292-R 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH Mine No. 3 

ADMINISTRATION (MSHA), . . Respondent 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. VA 91-524 

Petitioner A.C. No. 44-05547-035380 

v. 

Mine No. 3 

RED DOG COAL CORPORATION, 

Respondent . . 

ORDER STAYING PROCEEDINGS 

On September 27, 1991, Counsel for Contestant/Respondent 

filed a motion to stay further proceedings in these cases. As 

grounds for the motion Contestant/Respondent states that it has 

entered into an agreement to plead guilty to a charge of 

conspiracy to defraud the Mine Safety and Health Administration 

connection with Contestant/Respondent 1 s dust sampling program. 

As part of the plea bargain agreement, the secretary of Labor has 

agreed to move to dismiss any pending civil penalty proceedings 

for violations of the laws governing the dust sampling program. 

The motion states that counsel for the Secretary consents to 

the entry of an order staying these proceedings. 

Premises considered, the motion is GRANTED. The above 

proceedings are STAYED until all criminal proceedings concerning 

Contestant/Respondent have been concluded. 

I ,"') 'I. 

l~'Lrt:5 μ.P/vrJ(U-4./l,{/{_ / 

James A. Broderick 

Administrative Law Judge 

1778 
F'EDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

CLASSIC COAL CORPORATION, 

contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CLASSIC COAL CORPORATION, 

Respondent 

OOT 18 1991 

CONTEST PROCEEDINGS 

Docket No. VA 91-306-R 

through VA 91-309-R 

Mine No. 1 

CIVIL PENALTY PROCEEDING 

Docket No. VA 91-484 

A.C. No~ 44-06195-03529D 

Mine No. 1 

ORDER STAYING PROCEEDINGS 

on September 27, 1991, counsel for Contestant/Respondent 

filed a motion to stay further proceedings in these cases. As 

grounds for the motion Contestant/Respondent states that it has 

entered into an agreement to plead guilty to a charge of 

conspiracy to defraud the Mine Safety and Health Administration 

in connection with Contestant/Respondent 1 s dust sampling program. 

As part of the plea bargain agreement, the Secretary of Labor has 

agreed to move to dismiss any pending civil penalty proceedings 

for violations of the laws governing the dust sampling program. 

The motion states that Counsel for the Secretary consents to 

the entry of an order staying these proceedings. 

Premises considered, the motion is GRANTED. The above 

proceedings are STAYED until all criminal proceedings concerning 

contestant/Respondent have been concluded. 

,'/ / 

ja.A~'..t:f ~ 1/r-·dt._.1:~1\_ (} James A. Broderick 

Administrative Law Judge 

1779 
1780