APRIL 1990 

COHMISSION DECISIONS 

04-04-90 

04-26-90 

04-27-90 

Hinkle Contracting Corporation 

Donald Denu v. Amax Coal Company 

Ronald Tolbert v. Chaney Creek Coal Corp. 

ADHINISTRATIVE LAW JUDGE DECISIONS 

04-02-90 

04-06-90 

04-06-90 

04-06-90 

04-06-90 

04-09-90 

04-09-90 

04-17-90 

04-17-90 

04-18:-90 

04-18-90 

04-19-90 

04-20-90 

04-24-90 

04-26-90 

04-26-90 

04-27-90 

04-30-90 

04-30-90 

04-30-90 

04-30-90 

C.W. Minirig Company 

Conesville Coal Preparation Company 

Energy Fuels Coal, Inc. 

Energy fuels Coal, Inc. 

Energy Fuels Coal, Inc. 

Robert Simpson v. Kenta Energy, etc. 

Mettiki Coal Company 

Shamrock Coal Company 

Consolidation Coal Company 

Mettiki Coal Corporation 

France Stone Company 

Beth Energy Mines, Inc. 

Bulk Transportation Services, Iric. 

U}~A on behalf of Steven Maple, Thomas Hewlett, 

Dale King v. Peabody Coal Company 

C.W. Nining Company 

Beaver Creek Coal Company 

Brown Brothers Sand Company 

Lanham Coal Co., Inc. 

Sec. Labor for Gilbert Wisdom v. F & W Mines 

Sec. Labor for Jack Winninghoff v. Black Pine 

Mining Company 

Sierra Aggregate, Inc. 

ADMINISTRATIVE LAW JUDGE ORDERS 

03-02-90 

03-13-90 

04-16-90 

H. Jamieson Company 

Wyoming Fuel Company 

Ricky Hays v. Leeco, Inc. 

KENT 90-5-M Pg. 599 

LAKE 88-123-D Pg. 602 

KENT 86-123-D Pg. 615 

WEST 90-34 

LAKE 89-29-R 

WEST 89-148 

l-lEST 89-149 

WEST 89-217 

KENT 83-155-D 

YORK 89-19-R 

KENT 90-32 

PENN 89-266 

YORK 89-31-R 

LAKE 89-92-H 

PENN 89-277-R 

PENN 89-143 

LAKE 86-15-D 

Pg. 625 

Pg. 639 

Pg. 696 

Pg. 698 

Pg. 706 

Pg. 720 

Pg. 722 

Pg. 731 

Pg. 737 

Pg. 742 

Pg. 760 

Pg. 761 

Pg. 772 

Pg. 803 

l.ffiST 

WEST 

SE 

KENT 

SE 

WEST 

88-220 Pg. 

88-105-R Pg. 

90-12-M Pg. 

89-186 Pg. 

89-102-DM Pg. 

89-79-D Pg. 

804 

868 

877 

879 

885 

897 

WEST 89-138-M Pg. 898 

WEST 90-41-M Pg. 901 

WEST 90-112-R Pg. 903 

KENT 90-59-D Pg. 907 
.· 
APRIL 1990 

Review was granted· in the following cases during the month of April: 

Secretary of Labor, MSHA v. Hinkle Contracting Corp., Docket No. KENT 90-5-M. · 

(Judge Melick, March 9, 1990) 

Secretary of Labor, MSHA v. Eastern Associat~d Coal Corp., Docket No. 

WEVA 89-198. (Judge Weisberger, February 23, 1990) 

Lancashire Coal Company v. Secretary of Labor;MSHA, Docket No. PENN 89-147-R, 

etc. (Judge Koutras, February 27, 1990) 

BethEnergy Mines, Inc. v. Secretary of Labor, MSHA, Docket No. PENN 88-149-R. 

(Judge Helick, Harch 2, 1990) 

Arnold Sharp v. Big Elk Creek Coal Company, Docket No. KENT 89-147-D. (Judge 

Melick, Interlocutory Review of February 16, 1990 Order) 

Michael Damron v. Reynolds Metals Co., Docket No. CENT 89-131-DM. (Judge 

Broderick, }furch 3, 1990) 

David Thomas & George Isaacs v . Arnpak lUning Company, Docket Nos. KENT 89-13-D, 

KENT 89-14-D. (Judge Uelick, March 9, 1990) 

Arch of Kentucky, Inc. v. Secretary of Labor, MSHA, Docket No. KENT 90-161-R, 

etc. (Judge Fauver, :Harch 16, 1990) 

Ronald Tolbert v. Chaney Creek Coal Corporation, Docket No. KENT 86-123-D. 

(Applicants motion to reopen for determination of additional compensation) 

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

Secretary of Labor, MSHA v. Walker Stone Company, Inc . , Docket No. CENT 89-37-M. 

(Judge Fauver, February 27, 1990) 

COH.MISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 4, 1990 

SECRETARY OF LABOR, 

HINE SAFETY AND HEALTH 

ADMINISTRATION n!SHA), 

v. 

HINKLE CONTRACTING CORPORATION 

Docket Mo. KENT 90-5-M 

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

Commissioners 

ORDER 

BY THE COMHISSION: 

By a petition for discretionary review filed ~~rch 23, 1990, · 

Hinkle Contracting Corp . (~inkle} seeks review of a decision issued by 

Co111mission Administrative Law Judge Gary lfelick on Uarch · 9, 1990. 1/ 

The basis for Hinkle's petition is that a prejudicial error of procedure 

was committed when the judge issued'his decision prior to receipt of 

Hinkle's brief. The petition requests that the judge's decision and 

order of March 9, 1990 be set aside and that Hinkle be allowed two weeks 

to file a brief in response to the Secretary's post-hearing brief. 

In support of its petition Hinkle avers that at the end of the 

hearing in this case held before Judge Melick on January 30, 1990, 

counsel for the Secretary requested an opportunity to file a post-hearing 

brief and that in granting that request the judge advised Hinkle that 

its brief in response woulrl have to be filed two weeks after receipt of 

the Secretary's brief. Hinkle further avers that by letter dated 1mrch 9, 

1990, the Secretary transmitted its brief to Hinkle. In the meantime, 

the j udge issued his decision on the matter on ~arch 9, 1990, without 

benefit of Hinkle's brief in response to the Secretary. 

1/ Respondent Hinkle's ~arch 23, 1990 filing is in the nature of a 

motion to set aside Judge Helick's March 9, 1990 decision and order and 

is directed to the judge himself. By operation of Commission Procedural 

Rule 2700.65(c), 29 CFR 2700.65(c), a judge's jurisdiction terminates 

when his decision is issued hy the Commission's Executive Director, as 

was the case here. The Commission is therefore treating Hinkle's motion 

as a petition for discretionary review pursuant to C~mmission ~rocedural 

Rule 2700.70. 29 CFR 2700.70 . See Capitol Ag~_g_!ltes Inc., 2 FMSHRC 

1040 (May 1980). 

599 
By letter of March 27, 1990, the judge acknowledged the inadvertent 

issuance of his March 9, 1990 decision without consideration of the 

brief of either party and suggested that the Commission might wish to 

consider a remand of the proceedings for such consideration. On 

March . 30, 1990 the Secretary filed a response in this matter agreeing · that under the circumstances the judge's decision should be vacated and 

the case remanded to the judge for further consideration of the parties' 

post-hearing briefs. 

Having considered the parties' and the judge's positions, we find 

that our decision in Green River Coal Co., 11 FMSHRC 800 (May 1989) is 

dispositive of this matter. We therefore grant Hinkle's petition for 

discretionary review, vacate the judge's March 9, 1990 decision and order, 

and remand the case to the judge for further consideration in light of 

the parties' Fost-hearing briefs. Respondent Hinkle shall have two weeks 

from the date of this order to file its post-hearing brief with the judge. 

~~ 

&uvU£/4£; 

'Richard V. Hackley, CommisS1011V 

_'':~mdssioner 

2$ 

L. Clair Nelson, 

• ~ __ }1~.A~~ Commissioner 

600 
Distribution 

Robert M. Connolly , Esq. 

Stites and Harbison 

600 West ~~in Street 

Louisvi lle, Kentucky 40202 

Anne T. Knauff, Esq. 

Office ~f th~ Solicitor 

U.S. Department of Labor 

2002 Richard Jones Rd. 

Suite B-201 

Nashville , TN 37215 

Dennis D. Clark , Esq. 

Office of the Solicitor 

u.s. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge Gary Melick 

Federal ~line Safety & Health _Review Commission 

5203 Leesburg Pike , Suite 1000 

Falls Church, Virginia 22041 

601 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6Ttt. FLOOR 

WASHINGTON, D.C. 20006 

April 26, 1990 

DONALD F. DENU 

v. Docket No. LAKE 88-123-D 

AMAX COAL COMPANY 

Before: Ford, Chairman; Back1ey, Doyle, Lastowka and Nelson 

Commissioners 

DECISION 

BY THE COMMISSION: 

In this discrimination proceeding arising under the Federal f1ine 

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

Act"), Complainant, Donald Uenu, alleges that Amax Coal Company 

("Amax") violated section 105(c) (1) of the Hine Act. !:./ CommissH:m 

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

Discrimination or interference prohibited; complaint; 

investigation; determination; hear~ 

(1) No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

miner ••• because such· miner ••• has filed or made a 

complaint under or related to this [Act], including 

a complaint notifying the operator or the operator's 

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

violation in a coal or other ~ine or because of 

the exercise by such miner ••• of any statutory 

right afforded by this [Act). 

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

discharged, interfered with, or otherwise discriminated 

against by any person in violation of this subsection 

may, tY'ithin 60 days after such violation occurs, file 

(Footnote continued) 

602 
Administrative Law Judge Gary Melick held that Amax violated section 

lOS(c) of the Mine Act by threatening Denu with disciplinary action and 

discharge for refusing to unplug a 6,900-volt power cable. 11 FMSHRC 

317 (March 1989) (ALJ). t-le granted Amax's petition for discretionary 

review. For the reasons set forth below, we reverse the judge's decision. 

Fn. !/ continued 

a .complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the 

Secretary shall forward a copy of the complaint to 

the respondent and shall cause such investigation 

to b~ made as he deems appropriate. Such 

investigation shall commence within 15 days of 

the Secretary's receipt of the complaint •••• If 

upon such investigation, the Secretary determines 

that the provisions of this subsection have been 

violated, he shall immediately file a complaint 

'~ith the Commission, with service upon the 

alleged violator and the miner ••• alleging 

such discrimination or interference and propose 

an order granting appropriate relief. The 

Commission shall afford an opportunity for a 

hearing ••• and thereafter shall issue an order, 

b~sed upon findings of fact, affirming, modifying, 

or vacating the Secretary's proposed order, or 

directing other appropriate relief. Such order 

shall become final 30 days after its issuance •••• 

(3) 'U thin 90 days of the receipt of a complaint 

filed under paragraph (2), the Secretary shall notify, 

in writing, the miner ••• of his determination whether 

a violation has occurred. If the Secretary, upon 

investigation, determines that the provisions of 

this subsection have not been violated, the complainant shall have the rigbt, within 30 days of 

notice of the Secretary's determination, to file 

an action in his own behalf before the Commission, 

charging discrimination or interference in violation 

of paragraph (1). The Commission shall afford an 

opportunity for a hearing ••• and thereafter shall 

issue an order, based upon findings of fact, dismissing or sustaining the complainant's charges and, 

if the charges are sustained, granting such relief as 

it deems appropriate, including, but not limited to, 

an order requiring the rehiring or reinstatement of 

the miner to his former position with back pay and 

interest or such remedy as may be appropriate. Such 

order shall become final 30 days after its 

issuance •• •• 

603 
At the time of the events giving rise to _this proceeding, Denu was 

an elect~ician and local union president at _Amax's Ayrshire Mine in 

Indiana. The Ayrshire Mine is a surface coal mine at which a dragline 

is used to remove the overburden and electrically powered shovels are 

used to remove coal. The 6,900-volt power cable ("power cable" or "cable") 

supplying electricity to the shovels in the pit crosses the bench where 

the dragline operates. The bench is cut about six to eight feet below 

the undisturbed ground and the pit is 85 feet below the bench. When it 

is necessary for the dragline to travel past the cable, the cable is 

unplugged at both ends, moved around the dragline and then plugged back 

in.· As an aid to our discussion, a copy of. Respondent's Exhibit 2, 

reduced in size, is attached to this decision and incorporated herein. 

When the dragline approaches the power cable as it travels along the 

bench, the procedure for moving the cable around the dragline is commenced. 

First, the shovel operators are directed via radio to shut off their 

equipment. Next, the circuit breaker at the 6,90Q-volt substation (the 

"substation") located on undisturbed ground is switched off and the plug 

to the power cable is pulled from the substation. These steps de-energize 

the cable. The plug at the other end of the power cable is removed from 

the 6,90D-volt circuit breaker box (the "switch box") located on the bench 

near the highwall above the pit. The switch box end of the cable is then 

moved around the dragline and reconnected at the switch box. Next the 

other end of the cable is plugged back in at the substation and the 

circuit breaker at the substation is switched on, which energizes the 

cable. Finally the shovels are switched on. 

Usually, a pair of electricians travels by truck to the substation 

to switch off the power to the cable and to disconnect the plug. Then 

they travel by truck to the bench to unplug the other end of the power 

cable, move it around the dragline and plug it back in at the switch 

box. Finally they travel by truck to the substation to plug that end 

of the cable back in and turn on the circuit breaker. Sometimes, 

however, if the shovels are operating, and other electricians are 

available, a pair of electricians is dispatched to the substation to 

perform the tasks required at that location and a second pair of 

electricians is sent to the bench to perform the tasks required there. 

If this procedure is used, the two pairs of electricians communicate via 

radio to ensure that the switch is off and the cable is unplugged at the 

substation before the other end of the cable is unp.lugged at the switch 

box on the bench. Once the cable is moved and reattached at the switch 

box, the electricians on the bench immediately radio the electricians at 

the substation to re-energize the power cable. 

Donald F. Denu is an experienced electrician with over nine years 

experience in the mining industry. On February 27, 1988, Denu was 

working the 4 :00 p.m. to midnight shift. At 6:00 p .m. he was preparing 

with another electrician, Harrison Key, to disconnect and move the power 

cable to allow the dragline to pass. According to Denu, he and Key 

drove to the substation to de-energize. the cable. Tr. 23. While there, 

Denu observed that there was only one cable connected at the substation. 

Tr. 33; Exh. C-1. While .he and Key waited at the substation for a call 

to disconnect the cable, Vernon Knight, the second shift electrical 

604 
supervisor and Denu's immediate supervisor, .radioed Denu and told them 

to proceed to the bench because he was bringing Don Kozar and Don 

Gehlhausen, two electricians, to disconnect the cable at the substation. 

Denu asked to remain at the substation but K~ight told them to proceed 

to the bench. Tr. 23-33, 219, 223-224; Exh. C-1. 

After Uenu and Key returned to the bench, Denu called Knight and 

asked if he was going to be allowed to disconnect the power cable at the 

substation. Tr. 26-33; Exh. C-1. Knight replied that the other pair of 

electricians would perform the disconnect at the substation. A discussion 

followed wherein Denu told Knight that the procedure was improper and unsafe and that he would withdraw himself by refusing to unplug the head of 

the cable at the switch box. Knight radioed Brent Weber, second shift 

general supervisor, and told Weber to meet him at the bench. Knight drove 

to the bench with Kozar and Gehlhauser, got out of the truck and 

instructed Kozar and Gehlhauser to drive to the substation to standby 

for the disconnect. · Tr. 23-33, 219, 223-224; Exh. C-1 

A discussion between Denu, Knight and Weber took place at the bench. 

According to Denu, Knight told him that he would be disciplined for insubordination and Weber asked him if he knew what the consequences of his 

actions were. Denu stated that he replied that there shouid be no consequences to a person who withdraws himself from a situation that he 

feels is unsafe or is in violation of Federal law. According to Weber, 

he overheard Denu tell Knight over the radio that he would withdraw if 

he was required to unplug the cable at the switch box for the reasons 

he had expressed previously. Ueber testified that when he arrived, he 

told Denu that he did not appreciate him talking about such matters over 

the radio. Weber testified that he did not mention disciplinary action 

until after Denu refused to unplug the cable. Tr. 33-37, 224-230, 

Exh. C..;,l. 

Electrician Kozar called Denu via the radio and said that the cable 

at the subs.tation was unplugged and the cable head was on the ground. 

Weber then ordered Denu to unplug the cable at the switch box. Denu 

replied that he was going to withdraw and again said it was not a safe 

practice. Weber testified that he replied that if Denu did not exercise 

in good faith his right to withdraw he would be subject to discipline. 

Weber went on to testify that Denu then got .out of his truck and said 

that Weber was not threatening him with discipline or anyone else with 

this issue ever again. A short, heated discussion followed in which 

Weber told Denu that he was bordering on insubordination because he had 

come right up against Weber. Tr. 33-38, 103, 224-230; Exh. C-1. 

lveber asked Key if he would unplug the cable at the switch box. 

Key, who testified that he did'not find the procedure to be unsafe, 

complied. Denu then put on hot gloves and assisted Key in moving the 

disconnected cable around the dragline. Key then plugged the cable back 

into the switch box and Denu turned the circuit breaker off on the 

switch box. Kozar was called on the radio and told to plug the other 

end of the cable back into the substation and switch the circuit breaker 

on. After that was completed, Denu closed the switch on the switch box, 

which reapplied power to the shovels in the pit. Tr. 39-41; Exh. C-1. 

605 
Kozar testified that he did not walk along the cable or otherwise 

trace the cable from the switch box to th~ substation. He also testified 

that neither the cable head nor its receptacle was labeled. After he 

switched off the circuit breaker, unplugged-the cable and put the cable 

head on the ground, he did not lock out or tag out the cable. Rather, 

he remained at the substation until it was time to plug the cable back 

in and switch on the circuit breaker. He stated that there was only .one 

cable plugged in at the substation, that this cable went in the direction 

of the pit and that he did not see any other substations or switch boxes 

in the area that could have supplied power to the cable plugged in at 

the switch box on the bench. Although he could not state that he was 

100% certain that he unplugged the correct cable, he believed that he 

did. He stated that he remembers seeing the power indicator light go 

out at the switch box or lights go off at the shovels when he threw the 

switch at the sub~tation. He testified that at the time he felt sure 

that he had de-energized the correct cable. Tr. 101-104. 

Near the end of the shift, there was a brief meeting with the union 

safety committeeman about Denu's work refusal. Weber, Knight, Denu and 

Robert Lee, the safety committeeman, were present. Lee stated that the 

labor contract requires that an MSHA inspector be notified if there is a 

disagreement on withdrawal actions. Weber responded that a federal electrical inspector was expected back the next working day (Monday, February 

29, 1988). He also told Denu to report to the office of Larry Landes, 

human relations manager, before the start of his shift the next working 

day to determine if disciplinary action would be taken. Lee and Denu 

complained to Weber that the labor agreement was not being followed. 

The discussion centered around the labor agreement and was heated at 

times. Denu states that Weber's attitude was threatening. Tr. 42-44, 

149-51, 229-31; Exh. C-1. . 

On Honday, February 29, 1988, the next work day after Denu's work 

refusal, William Deuel, an MSHA electrical inspector, was ·scheduled to 

terminate an electrical citation that had been abated. When the inspector 

arrived, Larry Ashby, AMAX's electrical maintenance manager, told him 

what had happened on February 27. Ashby asked if the company's radio 

disconnect procedure was still permitted by MSHA. As discussed below, 

Inspector Deuel had previously told him and Denu that radio communications 

may be used when disconnecting cables. Inspector Deuel called MSHA's 

Arlington headquarters in Ashby's presence and confirmed that radio 

communications are a proper procedure when disconnecting power cables. 

Inspector Deuel went to a safety committee meeting attended by management and union officials and explained that radio disconnect procedures 

are permitted by l1SHA. Tr. 185-188. Jay Perry, the union safety 

committee chairman, told Denu about MSHA's interpretation prior to his 

meeting with Landes that afternoon. 

At the afternoon meeting, Landes told Denu that the company was not 

going to take disciplinary action, that the matter was resolved and that 

the company did not anticipate this sort of problem occurring in the 

future. Lee testified that Landes said that if this problem happened 

again, disciplinary action would be taken. No disciplinary action was 

ever taken and nothing was put into Denu's personnel file as a result 

of this incident. 

606 
About a year before Denu' s work refusal,. on March 2, 1987, Denu had 

asked Inspector Deuel if it was improper for the company to ask him to 

unplug a shovel cable when other electricians were assigned to unplug 

the cable at the power source. Larry Ashpy-also participated in these 

discussions. Denu testified that Inspector Deuel replied: "I agree 

with you, Don, but I don't think the books [regulations] do." Tr. · 93; 

Exh. C-28. Ashby recalls Inspector Deuel stating that MSHA did not 

consider the unplugging of cables to be electrical work and that the 

proper use of radio communications was acceptable. Ashby also testified 

that Inspector Deuel talked about an MSHA policy memo authorizing this 

procedure and that the inspector subsequently gave him a copy. 2/ Ashby 

did not discuss the matter further with Denu. Tr. 174-179; Exh-R-8. 

Denu brought this present action under section 105(c)(3) of the Mine 

Act, 30 U.S.C. § 815(c)(3), 3/ after the Secretary of Labor determined 

that Amax did not violate section lOS(c). Exh. R-3. At the hearing, 

Denu did not state directly what the hazard was in allowing one set 

of electricians to disconnect the plug at the substation and another set 

to move the cable. He did state his belief that such a procedure would 

violate 30 C.F.R. 77.501. 4/ This regulation requires that disconnecting 

devices be locked out and tagged out before electrical work is performed 

on electric distribution circuits. Denu maintained that the cable is an 

electric distribution circuit and that disconnecting the cable head from 

the bench box is electrical work. Tr. 49-50. He testified that the radio 

disconnect procedure used violates the standard because he is not 

personally allowed to _lock out and tag out the disconnecting device, the 

plug, at the substation. 11 Tr. 52. Denu also generally relied on the 

!1 This ~ffiHA memorandum, dated November 20, 1974, instructs MSHA inspectors not to issue. citations when they observe an electrician at one 

location performing repair work on a high-voltage electrical system after 

another qualified electrician de-energized the circuit at a different 

location so long as the two electricians are in direct telephone or radio 

communication. Exh. R-8. 

]_/ See n. 1, supra. 

i/ 30 C.F.R. 77.501, provides in pertinent part: 

Electric distribution circuits and equipment; repair. 

No electrical work shall be performed on electric 

distribution circuits or equipment, except by a qualified 

person •••• Disconnecting devices shall be locked out 

and suitably tagged by the persons who p~rform such 

work ••• • 

5/ Amax and apparently MSHA consider 30 C.F.R. 77.501 inapplicable 

when unplugging high voltage lines. The term "high voltage" is defined 

in 30 C.F. R. 77.2(s) as "more than 1000 volts." The provisions of 

30 C.F.R. 77.704-1 govern high-voltage lines and provides in part: 

(Footnote continued) 

607 
fact that there have been a number of fatalities and injuries at other 

mines caused by violations of section 77.501. Tr. 54, 59, 67. He stated 

that since he did not believe that Kozar and Gehlhauser traced the cable 

from the switch box back to the substation,-and the cable and receptacle 

were not marked at the substa~ion, there was no guarantee that Kozar deenergized the correct cable. Tr. 62. He stated that even if Kozar had 

locked the cable out, there would have been a violation and he would have 

refused to work because he would not have been "afforded the opportunity 

to perform that disconnect and lock out procedure myself." Tr. 69-70. 

Although Denu did not specifically articulate the hazard of unplugging 

a cable that is energized, Kozar testified that there could be a big 

flash or explosion and the person involved could receive burns or be 

electrocuted. · Tr. 115-116. 

Following an evidentiary hearing, Administrative Law Judge Gary 

Melick held that Amax violated section lOS(c) of the Mine Act and 

awarded damages .of $1,000 as had been stipulated by the parties. 

11 FMSHRC 563. 6/ The judge found that Denu entertained a reasonable, 

good faith belief that a hazardous condition existed at the time he was 

directed to disconnect the cable at the bench box. He found that there 

is "no dispute that it would have been extremely hazardous and likely to 

result in severe burns and/or electrocution to have disconnected the 

cable at the switch box if the cable had remained connected and energized 

at the substation or had been reconnected and re-energized." 11 FMSHRC 

at 321. He found that the cable could have been "intentionally or 

unintentionally" reconnected at the substation. Id. He then stated that 

while under the circumstances of this case, the chances may not have been 

great that the cable had not been "deenergized, disconnected and not 

Fn. ~ continued 

Work on high-voltage lines. 

(a) No high-voltage line shall be regarded as 

deenergized for the purpose of performing work on it, 

until it has been determined by a qualified person ••• 

that such high voltage line has been deenergized and 

grounded. Such qualified person shall by visual 

observation (1) determine that the disconnecting 

devices on the high-voltage circuit are in open 

position, and (2) insure that each ungrounded 

conductor of the high-voltage circuit upon which 

work is to be done is properly connected to the 

system grounding medium .••• 

The MSHA memorandum referenced in note 3 above, is based on this safety 

standard. 

6/ Because Denu was not suspended or discharged by Amax the stipulated 

damages cover the costs associated with Denu's prosecution of his discrimination complaint. Of the $1,000-in stipulated damages, approximately $700 is wages lost to Denu because he missed six days of work 

while preparing -and presenting his case. 

608 
reconnected, the danger of serious injury or electrocution was a near 

certainty if the cable at the substation had been inadvertently reconnected and reenergized .• " Id. The judge considered "these extreme 

consequences" to be a key component in his 3etermination that Denu 

entertained a reasonable, good faith belief in a hazard. ~inally, the 

judge concluded that threats of disciplinary action directed to a miner 

exercising a protected right constitute unlawful interference under 

section 105(c)(l), whether or not those threats are later carried out. 

Unde~ established Commission precedent, a complaining miner 

establishes a prima facie case of prohibited discrimination by proving 

that he engaged in protected activity and that the adverse action complained of was motivated in any part by that activity. Secretary on 

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

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

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

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

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

protected activity occurred or that the adverse action was not motivated 

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

If an operator cannot rebut the prima facie case, it nevertheless may 

defend affirmatively by proving that (1) it was also motivated by the 

miner's unprotected activity, and (2) · it would have taken the adverse 

action in any event for the unprotected activity alone. See also 

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

1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)(specifically 

approving the Commission's Pasula-Robinette test). 

A miner has the right under section 105(c) of the Mine Act to refuse 

work, if the miner has a good faith, reasonable belief in a hazardous 

condition. Pasula, 663 F~2d at 1216 n. 6, 1219; Miller v. Consolidation 

Coal Co . , 687 F.2d 194, 195 (7th Cir. 1982). The complaining miner has 

the burden of proving both the good faith and the reasonableness of his 

belief that a hazard existed. Robinette, 3 FMSHRC at 807-12; Secretary 

on behalf of Bush v. Union Carbide Corp., 5 FMSHRC 993. A good faith 

belief "simply means honest belief that a hazard exists." Robinette at 

810. This requirement's purpose is to "remove from the Act's protection 

work refusals involving frauds or other forms of deception." Id. The 

Commission has rejected a requirement that miners who refuse to-work 

must objectively prove that hazards existed. The miner must simply show 

that his perception was a reasonable one under the circumstances. Haro v. 

Magma Copper Co., 4 FMSHRC 1935 (November 1982); Robinette, supra. -yndetermining whether the miner's belief was reasonable under the circumstances, the judge is to look to the miner's account of the conditions 

precipitating the work refusal, and to the operator's response in order 

to evaluate the relevant testimony as to "detail, inherent logic and 

overall credibility." Robinette, 3 FMSHRC at 812. The perception of · 

a hazard mu.st be viewed from the miner's perspective at the time of the 

work refusal. Secretary on behalf of Pratt v. River Hurricane Coal Co., 

5 FMSHRC 1529 (September 1983); Haro, supra. 

The pivotal issue in this case is whether Denu was engaged in a 

protected work refusal. On the facts presented, the issue is not 

609 
whether Denu generally believed that it was hazardous to unplug an 

energized 6,900-volt power cable, but whether he entertained a 

reasonable, good faith belief at the time oJ·his work refusal that he 

faced a hazard if he unplugged the power cable at the switch box as he 

had been instructed to do. 

The Commission is bound by the substantial evidence test when 

reviewing an administrative law judge's decision. 30 U.S.C. 

§ 823(d)(2)(A)(ii)(I). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion." Consolidation Edison Co. v. NLRB, 305 U. S. 197, 229 (1938). 

Nevertheless, "substantiality of evidence must take into account whatever 

in the record fairly detracts from its weight . " Universal Camera v. NLRB, 

340 U.S. 474, 488 (1951). For the reasons discussed below, we conclude 

that substan·_ial evidence does not support the judge's conclusio~ that 

"Denu did in fact entertain a reasonable, ·good faith belief that a 

hazardous condition existed at the time he was directed to disconnect 

the power cable at the 6, 900 volt switch box." 11 FMSHRC 320-21. 

Although Denu did not testify as to the hazards presented by unplugging an energized power cable, Kozar testified that a "big flash" 

can result and the miner could receive burns on his arms or could be 

· electrocuted. Tr. 114-16. Since no evidence of record contradicts 

this testimony, the judge's conclusion that unplugging an energized 

6,900-volt power cable presents a significant safety hazard is supported 

by substantial evidence. 

It is clear, however, that. at the time of Knight's order to unplug 

the power cable, Denu knew that Kozar was at the very same substation at 

which Denu had been when Knight ordered Denu to proceed to the bench. 7/ 

Denu also knew from his own personal observa~ion that only one power -

cable was present at this substation. In fact, Denu had just proceeded 

to the substation to unplug the very same cable. Thus, when Kozar called 

Denu on ·the radio and told him that the plug was disconnected and on the 

ground, Denu could not have entertained a reasonable belief that Kozar 

had unplugged a different cable. Finally, Denu also knew that Kozar was 

a qualified electrician and that he and another electrician were going 

to remain at the substation for the short duration of the cable move and 

that they were to plug the cable back in at the substation only after 

Denu had notified them via radio that the cable move had been completed. 

Whatever uncertainties Denu may have had regarding whether all steps had 

been taken to de-energize the cable could have been resolved through use 

of the two-way radio system. 

The record also makes clear that the issue of the safety of using 

two pairs of electricians in radio communication with each other when 

7/ Indeed, if Denu entertained any doubts as to Kozar's location, he 

could have simply asked Kozar where he was when the two were in 

communication on the radio. 

610 
disconnecting power cables had arisen before. Denu had raised safety 

concerns with respect to this issue about a year before and was told 

by MSHA electrical Inspector Deuel that it ~as allowed under MSHA's 

safety standards. He also knew from previous discussions that AMAX 

believed it to be a safe and legal procedure. 

Given the above facts as set forth in the record, we believe that 

Denu failed to prove that his belief that, at the time of the events at 

issue, if he had pulled the plug at the switch box as instructed by 

Knight he would have been exposed to an electrical hazard was reasonable. 

Instead, the record reveals that Denu refused to work because of 

generalized fears that if a ·mistake is made when working with 6,900-volt 

power lines, a serious accident can happen. 8/ The record does not show 

that he had a r~asonable belief that such a mistake would be made or 

that an accident would happen if he unplugged this particular cable at 

the time of his work refusal. 

Denu testified that he would not have unplugged the cable at the 

switch box unless AMAX allowed him to personally disconnect the power 

cable at the substation and put his own personal lock on the cable head. 

Tr. 74. He stated that even if Kozar had locked out the cable head at 

the substation, he would have refused to unplug the cable at the switch 

box. Thus, Denu was reserving to himself exclusively the right to unplug 

the cable at .the substation. Nothing in the Mine Act or MSHA's safety 

standards grants a miner the right to insist that only he can de-energize 

a power cable if he is required to unplug the other end of the cable. 

Kozar was a qualified electrician in direct communication with Denu and 

nothing in the record suggests that he was regarded by Denu as being 

unreliable or incapable of safely performing the disconnect at the 

substation. Thus, in the absence of a reasonable fear that the cable 

was .energized, Denu had no statutory right to insist that he be granted 

the exclusive right to personally perform all aspects of the assigned 

task. 

Because we are bound to affirm an administrative law judge's 

findings of fact if supported by substantial evidence, we have carefully 

reviewed the judge's decision and have determined that several additional 

critical findings lack a substantial basis in-the record. One significant 

8/ In order to prove that his work refusal was reasonable and m~de in 

good faith, Denu introduced a number of exhibits to illustrate the 

hazards presented when an electrician works on an electrical circuit 

that h~s not been locked out. Exhs. C-4 through C-8. None of these 

exhibits concern the hazards present in unplugging or moving high 

voltage cables. The judge held that Denu was concerned about the 

hazards presented because he was "aware through MSHA 'Fatalgrams' of 

the potentially fatal consequences in similar if not identical situations." 

11 FMSHRC 321. Denu attempted to introduce these "Fatalgrams" (MSHA 

notices of fatal mine accidents) at the hearing, but withdrew them when. 

the judge-and counsel for Amax questioned their relevance. Tr. 57-59. 

In addition, none of the other exhibits that were introduced shed light on 

the hazards presented in this case. 

611 
finding· lacking record support is the judge's determination that the 

serious hazard presented by unplugging an energized 6900-volt power 

cable was "not significantly diminished" by the fact that Denu knew 

that the cable plug at the substation was out and lying on the ground. 

11 FMSHRC at 322. The judge recognized that the record evidence · 

establishes that Denu knew that . (1) only one cable exited the substation~ 

(2) this cable was likely the same cable that was plugged in at the 

switch box, (3) two qualified electricians were at the substation to 

disconnect this cable, and (4) one of the electricians told Denu via 

radio that the cable head was out and lying on the ground. Id. 

In spite of this evidence, the judge found that "the serious hazards, 

previously discussed, are not significantly diminished by these 

considerations.lf Id. We find no basis whatsoever in the record to support this finding.--Oenu knew that during the short period of time required 

to move the cable around the dragline, two qualified electricians would 

be present at the substation to make certain that the only cable connected 

· to the substation was unplugged and remained unplugged at the substation. 

There is no evidence in the record to suggest that these electricians 

were unaware of the procedure to be followed, that they were otherwise 

unqualified or that Oenu had a reasonable fear that they would plug the 

cable back in at the substation prematurely. Thus, the record evidence 

demonstrates that the hazards of electric shock were not only 

"significantly diminished" but were in fact eliminated when Kozar told 

Denu that the cable head was disconnected and lying on the ground. 

The judge also concluded that Oenu had reason to believe that if 

the circuit breaker malfunctioned at the substation the cable could 

·remain energized even.though the switch was off and the indicator light 

on the switch box was· off. Assuming this to be true, it is totally 

irrelevant because the ·undisputed testimony is that Kozar not only 

turned off the circuit breaker at the substation but also pulled the 

plug. The testimony concerning the hazards of a switch malfunction 

assume that the cable remains plugged in at the substation. The testimony makes clear that once the cable is unplugged at the substation it 

is impossible for the cable to remain energized. Therefore, a malfunction of the circuit breaker would create a potential hazard to the 

electrician unplugging the cable at the substation rather than to the . 

electrician unplugging the cable at the switch box. Thus, substantial 

evidence does not support the judge's conclusion. 

612 

-
We stress that our conclusion is based on Denu's knowledge of certain facts at the time of his work refusal, particularly his knowledge 

that only one cable exited the substation and that Kozar, a qualified 

electrician, was dispatched to the substation to unplug the same cable 

that Denu prepared to unplug previou~ly. Substantia~ evidence does not 

support the judge's determination that Denu reasonably believed that he 

faced a hazard if he followed the radio disconnect procedure in this 

particular instance. 

Accordingly, the judge's decision is reversed. 

Distribution 

Susan E. Chetlin, Esq. 

Crowell & Moring. 1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Donald F. Denu 

Rt. 1, Box 333 

Rockport, Indiana 47635 

~~ 

~vt/&4-,_ 'Richard V. Backley, Couunissioner s 

Lastowka, 

~~ L. Clair Nelson, Commissioner 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

613 
0\ 

r--

~ 

l{1l' 'IO SCALI! 

~z 

Bench to virgin depth: 6-8 ft. 

Pit depth: 85 ft. 

When the 3270 wallcs · inside of loop "N' the cable has 

power removed and is then unplugged and taken to the 

south side of the 3270, where it is plugged baclc in and 

power is restored to the pit. This allows the 3270 

dragline to continue walking north once the cable is 

positioned south o£ the dragline's path. 

1000 ft.•/- cable 

tf"~& •h/'1 

5w•l-4 IJ''" 

PIT 

SPOIL. 

--·-- -

ltonr and Gehlhausen 

- -------- here 

Supr. Knipht 

Denu and l(ey 

.--here 

BENC

Cable "A" powering 182 and 192 
FEDERAL MINE SAFETY AND HEALTH. REVIEW COMMISSION 

RONALD TOLBERT 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 27, 19.90 

Docket No. KENT 86-123-D 

CHANEY CREEK COAL CORPORATION 

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

Commissioners 

BY: Ford, Chairman; Backley, Lastowka and Nelson, Commissioners 

In this discrimination proceeding arising under the Federal Mine 

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

Act" or "Act"), complainant Ronald Tolbert has filed with the Commission 

a Motion to Reopen and Remand. By previous order, we directed the 

filing of supplemental memoranda concerning the request. Tolbert and 

amicus Secretary of Labor have submitted such memoranda. Respondent 

Chaney Creek Coal Company ("Chaney Creek") has not filed any response to 

Tolbert's motion and the supplemental memoranda. Upon consideration of 

Tolbert's motion and supporting memoranda filed with us, and for the 

reasons explained below, we reopen this matter and remand it to 

Commission Administrative Law Judge Gary Melick for further proceedings 

consistent with this opinion. 

The relevant procedural history may be summarized briefly. This 

case was commenced by Tolbert's discrimination complaint against Chaney 

Creek filed with the Commission pursuant to section 105(c)(3) of the 

Mine Act. 30 U.S.C. § 81S(c)(3). On March 16, 1987, Judge Melick 

issued a decision concluding that Chaney Creek had discriminated against 

Tolbert in violation of section 105(c)(1) of the Act, 30 U.S.C. 

§ 815(c)(l), by refusing to rehire him from layoff status after he had 

testified on behalf of a complainant in another discrimination 

proceeding before the Commissi"on. 9 FMSHRC 580 (March 1987)(ALJ). The 

judge ordered Chaney Creek to offer Tolbert employment. In a subsequent 

remedial order, Chaney Creek also was directed to pay Tolbert $14,453 in 

back pay and interest through April 8, 1987, as well as any additional 

back pay and interest to date of reinstatement. Tolbert was awarded 

$16;900 in attorney's fees. 9 FMSHRC 929 (May 1987)(ALJ). 

615 
-Because the Commission did not grant Chaney Creek's petition for 

discretionary review, the judge's decisions became final decisions of 

the Commission by operation of the statute. 30 U.S.C. § 823(d)(1). 

Chaney Creek did not petition· for review of these final Commission 

orders in a United States court of appeals. 30 U.S.C. § 816(a). 

On October 1, 1987, Tolbert filed with the Commission a motion, 

opposed by Chaney Creek, to reopen the proceedings. Tolbert alleged 

that although Chaney Creek had reinstated him in May 1987, it had not 

paid him all the back pay and attorney's fees due. Tolbert further 

asserted that two other mining corporations and John Chaney individually 

were su~cessors or alter egos of Chaney Creek and should be brought into 

this proceeding under applicable successorship doctrines. See, ~· 

Secretary on behalf of Corbin v. Sugartree Corp., 9 FMSHRC 394 (March 

1987), aff'd, Terco v. FMSHRC, 839 F.2d 236 (6th Cir. 1987). In'an 

order i~ed on November 10, 1987, the Commission denied Tolbert's 

motion to reopen, stating: 

The essential nature of the remedy sought by 

Tolbert is collection of a judgment debt. This 

relief involves, inter alia, enforcement and 

execution of the Commission's final decision in this 

matter. Such an enforcement request is properly 

directed to the Secretary of Labor. Under the Mine 

Act, the Secretary is empowered to seek compliance 

with Commission orders in the federal courts.· See 

30 U.S.C. §§ 816(b) & 818. We need not and do not 

express any opinion as to other avenues of relief 

that may be available to Tolbert. 

Tolbert v. Chaney Creek Coal Corp., 9 FMSHRC 1847, 1848 (November 1987). 

Thereafter, Tolbert requested the Secretary of Labor to petition a 

United States court of appeals for summary enforcement of the judge's 

orders. See 30 U.S.C. § 816(b). On January 25, 1988, the Secretary 

filed such a petition with the United States Court of Appeals for.the 

Sixth Circuit. Tolbert also filed a motion to intervene, which was 

granted . On May 19, 1988, the Sixth Circuit granted the Secretary's 

enforcement petition a~d later certified its order as its mandate on 

June 22, 1988. Tolbert Motion Exhs. B & C (July 20, 1989)("Motion"). 

The next major procedural development in this matter occurred on 

July 20, 1989, when Tolbert filed the present motion to reopen. The 

motion seeks an additional amount of back pay and interest for the 

period April 9, 1987, through Tolbert's reinstatement in May 1987, an 

additional amount of attorney's fees for legal work performed after 

April 8, 1987, additional interest on back pay owed to the present time 

because of Chaney Creek's failure to pay in full the back pay amounts 

awarded, and a determination of "whether Chaney Creek is the 'alter ego' 

of its owner, John Chaney .:., and whether Chaney should therefore be 

held personally liable for the relief due Tolbert." Motion at 1. 

Tolbert alleges that Chaney Creek has paid him only $7,000 of the back 

pay and interest owed and has paid counsel only $2,500 in attorney's 

fees, and further states that Chaney Creek is no longer operating any 

616 
mines. Motion at 3-4. Counsel for the Secretary of Labor also filed a 

Motion for Leave to File a Memorandum as Amicus Curiae in support of 

complainant's reopening motion. 

~y order dated October 31, 1989, we granted the Secretary's amicus 

motion and accepted her memorandum. We noted that Tolbert "has failed 

to identify any specific basis or authority upon which the Commission 

can rely to reopen this proceeding to consider the merits of his request 

for relief." 11 FMSHKC 1942, 1943 (October 1989). We directed Tolbert 

and the Secretary to file supplemental memoranda addressing the 

jurisdictional authority supporting their request that this proceeding 

be reopened at this time. We also directed Tolbert to address the 

obvious question as to why the Sixth Circuit is not the "proper 

tribunal" before which he should pursue the alter ego issue. Id. 

The chief question presented is whether the Commission possesses 

jurisdiction to reopen this proceeding. We answer that question in the 

affirmative. Tolbert's several requests for relief in his present 

motion are outgrowths of this case's prolonged procedural history. 

Tolbert heeded the Commission's order of November 10, 1987, and invoked 

the Secretary's representation to secure summary enforcement of the 

Commission's final orders in the Sixth Circuit. Tolbert now alleges 

that, despite this judicial enforcement, Chaney Creek has not complied 

with the judge's remedial order and that certain additional monetary 

matters relevant to the remedy require further adjudicative resolution . 

Neither Tolbert nor the Secretary has pursued the possible course 

of prosecuting contempt proceedings in the Sixth Circuit to seek 

resolution of the remedial questions presented in the present reopening 

motion and to compel obedience to that Court's summary enforcement 

decree (~ 30 U.S.C. § 816(b)). However, as the memoranda before us 

demonstrate, the developing law concerning contempt proceedings in 

analogous contexts shows that were such proceedings to be initiated, the 

Court would likely remand the matter. to the Commission for further 

necessary findings of fact. See, ~· Aguabrom v. NLRB, 746 F.2d 334, 

336-37 (6th Cir. 1984); see also NLRB v. FMG Industries, 820 F.2d 289, 

291-94 (9th Cir. 1986). We are persuaded that we possess jurisdiction 

to act and, in the interest of judicial economy, we exercise our 

discretion to reopen the matter. 

When the Sixth Circuit issued its mandate, the Commission 

reacquired the power to assert its own jurisdiction over this matter. 

See, ~· Newhall v. Offshore Logistics, Int'l, 803 F.2d 821, 826 (5th 

Cir. 1986). A lower tribunal may consider and decide any matter not 

expressly or implicitly disposed of by the appellate decision and may 

conduct further proceedings not inconsistent with the mandate. ~. 

Bankers Trust Co. v. Bethlehem Steel.Corp., 761 F.2d 943, 949-50 (3rd 

Cir. 1985), and authorities cited. In granting the Secretary's petition 

for enforcement, the Sixth Circuit did not pass substantively on any of 

the matters asserted in complainant's motion and, accordingly, the 

Commission is not precluded from considering complainant's contentions. 

Although the Mine Act specifically authorizes the Secretary o~ 

Labor to seek compliance with Commission orders in the federal courts 

617 
(30 U.S.C. · §§ 816(b) & 818), and the Commission possesses no direct 

authority under the Act with respect to enforcement of its own orders, 

section 105(c)(3) of the Act does empower the Commission to grant a 

successful section 105{c){3) complainant "such relief as it deems 

appropriate, including, but not limited to, ••• rehiring or 

reinstatement ••• with back pay and interest or such remedy as may be 

appropriate." 30 U.S.C. § 815(c)(3). As we have stated: 

The remedial goal of section lOS(c) is to "restore 

the [victim of illegal discrimination] to the 

situation he would have occupied but for the 

discrimination." Secretary on behalf of Dunmire and 

·Estle v. Northern Coal Co., [4 FMSHRC 126, 142 

(February 1982)]. As we have previously observed, 

"'Unless compelling reasons point to the contrary, 

the full measure of relief should be granted to [an 

improperly] discharged employee.'" Secretary on 

behalf of Gooslin v. Kentucky Carbon Corp., 4 FMSHRC 

1, 2 (January 1982), guoting Goldberg v. Barna Mfg. 

Co., 302 F.2d 152, 156 (5th Cir. 1962). 

Secretary on behalf of Bailey v. Arkansas-Carbona Co., 5 FMSHRC 2042, 

2049 (December 1983). See also, e.g., Brock on behalf of Parker v. 

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

In light of the remedial purposes of section 105(c), we conclude 

that the Commission, in appropriate cases and on such terms as are just, 

may reopen a discrimination case for reasonable supplemental proceedings 

in aid of compliance. Indeed, the Commission has acted similarly 

without challenge in the past. In Secretary on behalf of Boone v. Rebel 

Coal Co., 5 FMSHRC 615, 615-16 (April 1983), the Commission granted the 

Secretary's post-enforcement motion to reassume jurisdiction in order ·to 

resolve a back pay compliance problem and remanded the matter to an 

administrative law judge "for expedited proceedings in compliance with 

the Court's [summary enforcement] order." Similarly, in Danny Johnson 

v. Lamar Mining Co., 10 FMSHRC 506, 508-09 (April 1988), upon a 

complainant's motion, we reopened a section 105(c)(3) discrimination 

case, which had been dismissed on the basis of the judge's approval of 

the parties' settlement agreement, to confirm the enforceability of the 

settlement agreement and the judge's order in view of respondents' 

abrogation of the agreement. 

In reopening closed cases, the Commission has sought guidance in, 

and has applied "so far as practicable" and "as appropriate," Fed. R. 

Civ; P. 60(b) ("Rule -60(b)"), dealing with relief from judgments. See 

Commission P~ocedure Rule l(b), 29 C.F.R. § 2700.l(b). See also, e.g., 

M.M. Sundt Constr. Co., 8 FMSHRC 1269, 1270-71 (September 1986). Thus, 

in reopening the Danny Johnson case in aid of post-judgment compliance, 

the Commission relied on Rule 60(b)(6) ("any other reason justifying 

relief from the operation of ·the judgment"). 10 FMSHRC at 508. While 

usually the Commiss~on has utilized Rule 60(b) analysis to relieve 

defaulting respondents from Commission decisions entered against them, 

the terms of Rule 60(b) do not apply solely to losing parties, and 60(b) 

relief also may be sought by the prevailing party where, as here, a 

. 618 
problem in relief arises. See Danny Johnson, supra; 7 J.W. Moore & J.D. 

Lucas, Moore's Federal Practice Par. 60.22[1] (p. 60-174)(2d ed. 1987); 

Gray v. John Jovino Co., Inc ., 84 F.R.D. 46 , 47 (E.D. Tenn. 1979). See 

also, ~· Dunlop v. Pan American World Airways, Inc., 672 F.2d 1044, 

1051-52 (2d Cir. 1982) (even non-parties; in appropriate circumstances, 

may possess standing to invoke Rule 60(b)(6) where they are sufficiently· 

connected and identified with a successful party's suit). Thus, we 

conclude that Rule 60(b)(6) also supports the reopening ·of this matter 

because we find that "such action is appropriate to accomplish justice" 

here. Klapprott v. United States, 335 U.S. 601, 614-15 (1949). !/ 

Accordingly, we reopen this matter so that we may turn to 

consideration of the substantive relief requested in complainant 's 

motion. As to complainant's requests regarding additional sums of back 

pay, interest, and attorney's fees assertedly due, factual findings may 

be necessary; therefore, we remand this matter to Judge Melick (the 

originally presiding judge) for determination of whether the requested 

monetary relief is properly due and, if it is, for calculation of the 

amounts in question. See Robert Simpson v . Kenta Energy, 11 FMSHRC 

1638, 1639 (September 1989). 

Complainant's request for a determination as to John Chaney's 

possible alter ego status and, hence, derivative liability, may prove 

more troublesome. Discrimination litigation under the Mine Act, like 

other litigation, must reach finality. While the remedial goal of 

section 105(c) is to make whole victims of discrimination, that worthy 

purpose is not to be realized· at the expense of fair litigation 

procedure or due process. · The party whom Tolbert now seeks to add has 

never individually been a party to this proceeding~ and we cannot 

finally determine from the present record whether John Chaney may 

properly be brought into this proceeding at this stage. 

Given the present record on this issue, we therefore remand this 

matter to the judge for needed factual findings and legal analysis as to 

whether John Chaney may aP.propriately be joined in this matter at this 

late date. Specifically, and as a threshold issue, the judge is 

directed to determine whether the complainant should have determined 

John Chaney' s alleged alter ego status at a more timely and seasonable 

juncture of this litigation and to determine the precise legal theory 

and authority upon which any such joinder may ~ be justified. John 

Chaney shall be afforded opportunity to be specially heard on these 

issues. If the judge concludes that John Chaney may properly be made 

party to these supplemental compliance proceedings, he shall continue to 

!/ We caution, however, that reopening motions are committed to the 

sound discretion of the Commission. Cf. Randall v. Merrill Lynch, 820 

F.2d 1317, 1320-21 (D.C. Cir. 1987). Given that the primary use of this 

rule in Commission practice is.to relieve defaulting parties from 

default, such motions by prevailing parties will be examined carefully 

on a case- by-case basis. As the Court stated in Randall: "Rule 60(b) is 

the mechanism by which courts temper the finality of judgments with the 

necessity to distribute justice. It is a tool which ••• courts are tO 

use sparingly •••• " 820 F.2d at 1322. 

619 
be afforded full opportunity to participate on any and all liability or 

remedial issues possibly affecting him. Cf. generally Golden State 

Bottling Co. v. NLRB, 414 U.S. 168, 180 (1973); FMG Indus., supra, 820 

F. 2d at 291-92. 

For the foregoing reasons, this matter is reopened and remanded to 

the judge for proceedings consistent with this opinion. 

~~a~n~--------

~~v{///1u0--v Richard V. Backley, Commissioner 

L. Clair Nelson, Commissioner 

620 
Commissioner Ooyle, concurring in part_and dissenting in part: 

The administrative law judge's May 12; 1987, decision in this 

matter became a final order of the Commission in June 1987. In 

October 1987, Complainant Ronald Tolbert filed a motion before 

the Commission seeking to reopen this matter. He requested that 

it be remanded to the administrative law judge for a determination 

of whether, among other matters, John Chaney was liable to Tolbert 

because Chaney Creek and its owner were "alter egos," thus _making 

Chaney liable for Tolbert's judgment against Chaney Creek. The 

Commission denied th(· motion because: 

[t]he essential nature of the remedy sought by Tolbert 

is collection of a judgment debt •••• Such an enforcenent request is properly directed to the Secretary of 

Labor. Under the Mine Act, the Secretary is empowered 

to seek compliance with Commission orders in the federal 

courts. 

9 FMSHRC 1847, 1848 (November 1987). 

Tolbert then requested the Secretary of Labor ("Secretary") to 

petition a United States Court of Appeals for enforcement of the 

judge's order against Chaney Creek. The Secretary so petitioned the 

Sixth Circuit and Tolbert intervened in the proceeding. The Sixth 

Circuit granted the enforcement petition against Chaney Creek and 

certified its order as a mandate in June 1988. 

In July 1989, Tolbert again moved the Commission to reopen its 

final order of June 19"87 and remand the matter for a determination 

of whether owner John Chaney is the alter ego of Chaney Creek and 

thus personaliy liable for the relief due Tolbert, a determination 

of the additional back pay and interest due Tolbert and a determination of the additional attorney's fees due Tolbert •. 

The majority has granted Tolbert's motion based on it~ determination that the "developing law" indicates that, if a proceeding were 

initiated before the Sixth Circuit, "the Court would likely remand t:he 

matter to the Commission for further necessary findings of fact." Blip 

op. at 3. (emphasis added.) They are, therefore, persuaded that tlte 

Commission possesses jurisdiction in the first instance to reopen tl1e 

·matter and·,· "in the interest of judicial economy, [the majority] ex·- ercise[sl (its] discretion to reopen the matter." Slip op. at 3. I 

disagree that the Commission has jurisdiction to reopen this matter, 

at this juncture, to determine the personal liability of a non-part:y, 

absent a remand from the court of appeals. 

I am also of the opinion that an updated recalculation of the 

back pay and interest due Tolbert is unnecessary. I would grant Tolbert's motion to assess additional attorney's fees. 

621 
Section 106(b) of the Mine Act prgvides. that the Secretary of 

Lal:•or niay obtain "enforcement of any final order of the Commission 

by filing a petition for such relief in the United States court of 

appeals ••• and the provisions of subsection (a) shall govern such 

pro.:eedings to the extent applicable." 30 U.S.C. §816(b). Subsec1:ion (a) of section 106 provides, in relevant part, that: 

If any party shall apply to the court for leave to 

adduce additional evidence and shall show to the 

satisfaction of the court that such additional 

evidence is material and that there were reasonable 

grounds for the failure to adduce such evidence in 

the hearing before the Commission, the court may order 

such additional evidence to be taken before the 

COmmission and to be made a part of the record. The 

Commission may modify its findings as to the facts, 

or make new fipdings, by reason of additional 

evidence so taken and filed, and it shall file 

such modified or new findings .•• The Commission 

may modify or set aside its original order by 

reason of such modified or new findings of fact ••• " 

30 U.S.C. §816(a). (emphasis added.) 

I believe that the statutory language is clear to the effect that, 

with re.spect to enforcement of a final order of the Commission, application must be made to the court of appeals for leave to adduce 

additio.nal evidence. The language is also c'tear that it is the court 

that is to determine, in the first instance, whether there were reasonable grc>unds for the failure to adduce such evidence in the hearing 

before t:he Commission. 1/ 

1/ The cases relied on by the majority do not support its theory that 

the Commi~ssion "reacquired the power to assert its own jurisdiction over 

this mat t:er." Slip op. at 3. Bankers Trust Co. v. Bethlehem Steel Corp., 

761 F.2d 943 (3rd Cir. 1985), deals specifically with the effect of a 

remand order previously issued by the appellate court. 761 F~ 2d at 

949-950. This case has not been remanded to the Commission. In Newhall 

v. Offshore Logistics Int'l., 803 F.2d 821 (5th Cir. 1986), the district 

court had concluded on remand that the appellate court's mandate had not 

addressed some of the provisions of an order and had modified that order. 

(Subsequenltly, the appellate court concluded that the district court's 

modification of a final order, more than a year after its entry, was 

unauthorized.) 803 F.2d at 826, 827. 

622 
While Fed. R. Civ. P. 60(b) has previously been used by the 

Commission to reopen final orders, I believe that the majority's 

reliance on Rule 60(b)(6) to reopen this matter to allow Tolbert to 

pursue his alter ego theory is inappropriate. What is sought by 

·claimant here is not relief from a final judgment hut the extension 

of that judgment to a new respondent (John Chaney) pursuant to a new 

theory of liability (alt~r ego). Motion to Reopen and Remand at 13. 

No analogy can be drawn between reopening a case, pursuant to Rule 

60(b), to confirm the enforceability of a settlement agreement that one 

of the pa~ties is abrogating, as was done in Danny Johnson v. Lamar 

Mining Co., 10 FMSHRC 506 (April 1988), relied on by the majority, 

and reopening this case in order to bring in a new party under a new 

theory of li~bility. Nor do I see any analogy between a case where 

non-parties adversely affected by a judgment were permitted to invoke 

Rule 60(b) against a party as was permitted ·in Dunlop v. Pan American 

World Airways, Inc., 672 F. 2d 1044 (2d Cir. 1982), also relied on by 

the majority, and this case where a party seeks to assert a new claim 

against a non-party. !/ 

I am also of the opinion that it is unnecessary to reopen this 

matter for an updated calculation of the back pay and interest due to 

Tolbert at this time. As the Commission stated in Robert Simpson v. 

Kenta Energy, Inc., 11 FMSHRC 1638 (September 1989): 

••• given the back pay formula in the judge's remedial order 

and the principles announced in Clinchfield, infra, the 

precise amounts of back pay and interest may be determined · 

in any tribunal of competent jurisdiction and it is not 

necessary to return to the Commission for periodic updatings of these amounts if collection difficulties are 

encountered. 

11 FMSHRC at 1639. 

2/ It should be noted that, while Rule 60(b)(6) motions need only 

be made within "a reasonable time," that clause cannot be used to extend the one year limitation applicable to clauses (b)(1)-(b)(3). Before turning to subsection (b)6, the court in Dunlop v. Pan American 

concluded that "[t]he claim clearly does not fall within the specific 

terms of subsections (b)(l)-(5)". 672 F.2d at 1051. "Where the reason 

for telief is embraced in Clause (b)(l), the one year limitation cannot 

he circumvented by use of clause ••• (b)(6)." Newhall, 803 F.2d at 827, 

quoting Gulf Coast Building and Supply Co. v. Local No. 480, 460 F.2d 

105, 107 (5th Cir. 1972). The "one year limitation would control if 

no more than 'neglect' was disclosed by the petition." Klapprott v. 

United States, 335 U.S. 601, 613 (1949). It should also be noted that, 

under Rule 60(b){2), the one year limit applies even when the additional 

evidence is newly discovered, which is not asserted here. 

623 
~ 

With respect to Tolbert's request for a supplementary award of 

attorney's fees, I agree with the majority that the matter should be 

remanded to the trial judge, but on different grounds than those advanced by the majority. Tolbert's motion in this respect is in the 

nature of a petition for the award of additional attorney's fees for 

time spent after the administrative law judge's award. A fee award 

petition is independent of and distinct from the decision on the merits. 

2 Derfner Court Awarded Attorney Fees, Par. 18.04 at 18-34 (1989). " •.• a 

request for attorney's fees ••• raises legal issues collateral to the main 

cause of action ••• " White v. New Hampshire Department of Employment 

Security, 455 U.S. 445, 451 (1982). "Regardless ·of when attorney's fees 

are requested, the court's decision of entitlement to fees will therefore 

require an inquiry separate from the decision on the merits •.• " Id. at 

451, 45?. A motion for a fee award is not designed to alter or amend a 

judgment, "but merely seeks what is due because of the judgmel).t." Id. at 

452, quot~ng Knighton v. Watkins, 616 F.2d 795, 797 (5th Cir. 1980). 

(emphasis added.) Thus, Tolbert's motion for assessment of additional 

attorney's fees is not governed by either section 106 of the Hine Act 

or the time constraints of Rule 60(b), but only by a "reasonable time" 

standard (455 U.S. at 454), and I ·would grant his motion with instructions to the judge to determine, as a threshold matter, whether 

the petition was filed within a reasonable time. 11 

I agree with the majority that the Commission is, in fact, the 

appropriate forum for any further fact finding that is required or 

appropriate in this matter. I must disagree, however, that the 

Commission possesses jurisdiction to conduct such fact finding on 

the alter ego issue, where Rule 60(b) does not apply, absent a remand from the court of appeals. Accordingly, I would deny Tolbert's 

motion to remand for a determination of this issue. I would also deny 

his motion for an updated calculation of back pay and interest due to 

Tolbert. I would grant his motion to remand for a determination with 

respect to additional attorney's fees due him. 

~d~ oyceA:Doyle 

·Commissioner 

3/ While the.courts of appeals for other circuits have determined otherWise, the Sixth Circuit has decided that "the tribunal that ultimately 

upholds the claim for benefits is the only tribunal that can approve and 

certify payment of an attorney fee" and in "making this award can consider 

all services performed by the attorney from the time the claim was filed 

with the [agency]." Webb v. Richardson, 472 F.2d 529, 536 (6th Cir. 1972). 

But see Gardner v. Menendez, 373 F.2d 428 (1st Cir. 1976); ~~itt v. Califano:-601 F.2d 160 (4th Cir. 1979); Fenix v. Finch, 436 F.2d 831 (8th 

Cir. 1971); MacDonalrl v. Weinberger, 512 F.2d 144 (9th Cir. 1975). 

624 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE Of ADMINISTRATIVE LAW JUDGES 

2 SKY\.INE. lOth FlOOR 

5203 LEESBURG PIKE 

FAl lS CHURCH, VIRGINI" 22041 

APR 2 1990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Peti tioner 

v . 

C. W. MINING COMPANY, 

Respondent 

. . 

CIVIL PENALTY PROCEEDING 

Docket No . WEST 90-34 

A.C. No. 42-01697-03607 

Bear Canyon No. 1 Mine 

DECISION 

Appearances: Robert Murphy, Esq ., Office of the Solicitor, u.s. Department of Labor, Denver, Colorado , for Petitioner; 

Carl E. Kingston, Esq. , Salt Lake City, Utah, 

for Respondent. 

Before: Judge Melic~ 

This case is before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to 

Section l05(d) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 801 et seq., the "Act, " charging 

c . w. Mining Company (C.W. Mining) with five violations of 

mandatory standards and pr oposi ng civil penalties total ing $1,450 for the violations. The gener.al issue before me is 

whether c.w. Mining violated the cited regulatory standar ds 

and , if so, the appropri ate civil penalty to be assessed in 

accordance with Secti on llO (i ) of the Act. 

Citation No . 3296377 i ssued Jul y 5 , 1989, pursuant to 

Section 104(d)(l) of the Act / alleges a violation of t he 

mandatory standard at 30 C.F.R. § 75 . 512- 2 and charges as 

follows: 

!;section 104(d)(l ) provides as follows; 

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

authorized representative of the Secretary finds 

that there has been a violation of any mandatory 

health or safety standard, and if he also finds 

that, while the conditions created by such 

violation do not cause imminent danger , such 

violation ip of such nature as could significantly 

625 
The weekly examination of electrical equipment was 

not conducted for all the electrical equipment 

being used underground at the Bear Canyon No. 1 

Mine. The equipment involved cons·isted of all 

outby equipment in both working sections' 

electrical equipment. The last recorded date of 

an examination recorded in the book for such 

purpose was 6-22-89. Management is aware of this 

requirement and the chief electrician Nathan Atwood 

is responsible to make sure the examinations are 

complete and recorded. 

In questioning a mine electrician who does the 

electrical examination, Mr. John Tucker, stated he 

did noc check all the equipment due to break downs . last week. 

Management removed equipment from service after 

coming aware of the violation. It was noted during 

the examination on several pieces of equipment on 

the North Mains working section that several 

deficienties [sic} existed on the equipment (Miner 

10, Roof Bolter 5, std. shuttle car 2, off standard 

car 1) 

The cited standard, 30 C.F.R. § 75.512-2 provides as 

follows: 

The examinations and tests required by 

§ 75.512 shall be made at least weekly. 

Permissible equipment shall be examined to see that · it is in permissible condition. 

cant '.d fn .1 

and substantially contribute to the cause and 

effect of a coal or other mine safety or health 

hazard, and if he finds such violation to be caused 

by an unwarrantable failure of such operator to 

comply with such mandat'ory heal~h or safety standards, he shall include such finding in any 

citation given to the operator under this Act. !f 

during the same inspection or any subsequent 

inspection of such mine within 90 days after the 

issuance of such citation, an authorized 

representative of the Secretary finds another 

violation of any mandatory health or safety 

standard and finds such violation to be also caused 

by an unwarrantable failure of such operator to so 

co1nply, he shall forthwith issue an order requiring 

the operator to cause all oersons 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. 

626 
30 C.F.R. § 75.512 provides as follows: 

All electric equipment shall be frequently 

examined, tested, and proparly maintained by a 

qualified person to assure safe operating 

conditions. When a potentially dangerous condition 

is found on electric equipment, such equipment 

shall be removed from service until such condition 

is corrected. A record of such a examinations 

st.all be kept and made available to an authorized 

representative of the Secretary and to the miners 

in such mine. 

Donald Gibson, a Coal Mine Inspector for the Federal 

Mine Safety and Health Administration (MSHA) and an 

electrical specialist with extensive experience as a miner 

and electrician, inspected the Bear Canyon No. 1 Mine on 

July 5, 1989. Early in the course of his inspection he 

examined the log books in which weekly examinations of 

electrical equipment are required to be recorded. It is not 

disputed that the last date then recorded in the log book for 

electrical examinations was June 22, 1989. According to 

Gibson, John Tucker, the mine electrician in charge of 

conducting the electrical examinations, at first admitted 

that he had not completed the examinations on all the 

electrical equipment because there had been several break 

downs on other electrical equipment that he had been directed 

to repair. Upon further questioning Tucker could not 

remember which equipment he had already examined and could 

not produce a checklist to show which equipment had already 

been checked. According to Gibson, Tucker then admitted that 

he had not performed examinations on any of the electrical 

aquipment. 

Twenty-two year old electrician Jqhn Tucker testified 

that he became a certified electrician at age 20 and had been 

performing nearly all of the electrical inspections ·at the 

subject mine since then. In apparent contradiction to his 

earlier admissions to Gibson, Tucker testified that he now 

believed that he in fact did perform an electrical inspection 

on the Thursday following June 22, because "that's the day we 

always do it". Tuckar admitted telling Inspector Gibson that 

he had not completed the exam but claimed at hearing that he 

meant only that he had not entered the record of the 

examinations in the log book. He "completely forgot" to 

enter the results of his alleged examination in the log book. 

Tucker nevertheless did concede at hearing that the 

electrical examination he did perform failed to include areas 

of the electrical equipment where lids have to be reanoved. 

627 
Tucker could not recall at hearing that Inspector Gibson 

had asked which machines had already been checked. He 

admitted· that there· had been equipment breakdowns at the time 

he was supposed to be conducting his electrical inspection. 

According to Tucker, reporting the results of electrical 

inspections is a "less important duty" and admitted that he 

had not reported the results of the examination he 

purportedly made on June 27, even as of the date of Gibson's 

inspection on July 5. 

c.w. Mining's Chief Electrician Nathan Atwood conceded 

that they had a history of failing to record electrical 

examinations ·at the Bear Creek Mine. Atwood also claimed 

that he was ~naware that his electrician was not using a . checklist to perform his electrical inspections and never 

asked Tucker whether he was in fact using a checklist. 

Atwood maintains that Tucker now uses a checklist. 

Based on the undisputed record evidence alone it is 

clear that the violation is proven as charged. The testimony 

of electrician John Tucker is moreover without credibility. 

The credible evidence shows that not only did Tucker fail to 

report the weekly electrical inspections but he indeed failed 

to inspect any of the electricial equipment as required. The 

evidence that this is a recurrent problem at this mine and 

that even when the electrical inspections are performed they 

are done in a careless and slipshod manner adds to the 

aggravated nature of the violation and the negligence causing 

it. The obvious lack of training and supervision over 

Tucker by Chief Electician Atwood also supports a finding of 

serious negligence. 

In order to find that a violation is "significant and 

substantial" the Secretary has the burden of proving the 

existence of an underlying violation of a mandatory standard, 

the existence of a discrete hazard (a measure of danger to 

health or safety) contributed to by the violation, a 

reasonable likelihood that the hazard contributed to will 

result in an injury, and a reasonable likelihood that the 

injury in question will be of a reasonably serious nature. 

Mathies Coal Co., 6 FMSHRC 1 (1984). 

Clearly the failure to conduct required electrical 

examinations is a most serious violation. In this case in 

particular Inspector Gibson found serious unreported 

violative conditions in va:cious electri'cal equipment 

available for use in the subject mine. According to Gibson 

these uncorrected conditions could have caused fires or 

methane or dust explosions triggered by the electrical 

violations. In addition the violations in themselves could 

create a serious hazard of injuries or fatalities from 

electrical shock~ The violation was therefore clearly of 

high gravity and "significa·nt and substantial". 

628 
The violation was also the result of "unwarrantable 

failure" and high negligence. c. w. Mining has a history of 

failing to perform and record electrical examinations. With 

such a negligent history the failure of c.w. Mining's chief 

electrician to properly supervise and train the electrician 

in ·charge of the weekly electrical inspections is 

particularly egregious. The testimony of the electrician 

that even when he conducted examinations he did not bother to 

examine all parts of the electrical equipment during required 

weekly inspections e.g. areas where "lids" have to be 

removed, shows that even when examinations were performed 

they were performed in a grossly deficient manner. Under all 

the circumstance5, I find in this case such aggravated 

conduct, omissions and gross negligence that I conclude the 

violation was a result of "unvlarrantable failure". Emery 

Mining Co., 9 FMSHRC 1997 (1987), appeal pending (D.C. 

Circuit No. 88-1019). 

Order No. 3411644, also issued pursuant to Section 

104{d)(l) of the Act, alleges five violations of the stan~ard 

at 30 c.F.R. § 75.503 and charges as follows: 

The Lee Norse Miner, 2G-3653A-O being used on the North 

Mains working section was not maintained in permissible 

condition. 

An unauthorized field change "t'las made on the machine. 

Also observed was [sic] several other conditions listed 

below: 

1. The field change was the installation of an 

MCI i>iodel 27434, Approval BFE-1047-87, flourescent 

luminize lighting system consisting of (4) four 

lights. . Management was aware of filing the proper 

papers as having been informed by an MSHA inspectqr 

on or around June 29, 1989, who observed the miner 

located in the underground shop at the mine 

The MSHA inspector, Mr. Robert Baker, informed 

Mr. Ken Defa, Superintendent, that any field 

changes should have the necessary paper work · .submitted for approval prior to operating the 

machine. 

The machine was taken to the North Mains 

working section and put into production without 

notifying -MSHA of any changes. 

2. A packing gland on the inby end of the main 

controller was closer than the allowable 1/8 inch 

clearance. The gland was flush with the controller 

box. 

3. An opening in excess of .005 inch was present 

in the pump motor cover lid and junction box. 

4. A packing gland on the electric tram 

controller was closer than the 1/8 inch allowable 

629 
clearance. Measured to be 1/16 inch from the 

controller box. 

5. The hose conduit covering the inner machine 

cable on the left cutter motor was not secured 

under the packing gland clamp. The cable appeared 

not to have been inserted far enough in the motor 

junction box and was taped over to obtain the same 

protection as the conduit. 

The cited standard, 30 C.F.R. § 75.503 provides that 

"[t]he ope~ator of each coal mine shall maintain in 

permissible condition all electric face equipment required by 

§§ 75.500, 75.501, 75.504 to be permissible which is taken 

into or us~d inby the last open crosscut of any such mine." 

.· According to Inspector Gibson, upon his return to the 

subject mine on July 10, 1989, around 6:40 a.m •. , he observed 

the cited Lee Norse Miner in the working section in the North 

Mains area with the noted conditions.. The miner was then 

energized and he believed that it had just been used on a 

production shift because it was "warm". 

It is not disputed that the subject miner was the type 

of equipment required to be "permissible" by law. It is 

likewise not disputed that if the conditions cited by 

Inspector Gibson in the subject order actually existed then 

the cited equipment would not have been in a 11 permissible" 

condition and therefore would have been in violation of the 

cited standard. 

As noted, the order alleges five separate and distinct 

permissibility violations any one of which {assuming that it 

was a "significant and substantial'' and an -"unwarrantable 

failure., violation) would be sufficient to sustain the order. 

In this case I find that all five allegations of violations 

are proven as charged and that each was .. significant and 

·substantial" and the result of ''unwarrantable failure". 

The first violation charged in the order was that an 

unauthorized field change was made on the Lee Norse Miner 

being used in the North Main working section in that a 

flourecent lighting system consisting of four lights was 

installed on the machine without prior MSHA approval. 

30 C.F.R. § lg.8l(a) provides as follows: 

An owner of approved {permissible) equipment who 

desires to :nake modifications in such equipment 

shall apply in writi"ng to make such modifications. 

The application, together with tne plans of 

modifications, shall be filed with Approval and 

Certification Center, Box 2018, Industrial Park 

Road, Dallas Pike, Triadelphia, West Virginia 

26049. 

630 
It is not disputed that c.w. Mining failed to apply to 

MSHA for the field modification at issue. The violation .is 

accordingly proven as charged. MSHA Inspector Robert Baker 

testified moreover that on June 29, 1989, while performing 

duties a-t the subject mine he was informed by Mine 

Superintendent Kenneth Defay about anticipated changes to be 

made on a continuous miner then in the shop including changes 

to the lighting system. Baker testified that he cautioned 

Defay to check to see whether he needed approval from MSHA 

for a field modification for the changes. 

Defay acknowledged that Baker told him that he would 

need MSHA approval for field modifications for electrical 

changes but Defay testified that he thought Baker said that 

approval was needed only for "major" electrical changes. 

Defay claims that he thought lighting system changes needed 

no MSHA approval. Defay also claimed ignorance of the 

provisions of 30 C.F.R. § 18.81 <requiring MSHA approval for 

field modifications on permissible electrical equipment). 

Chief electrician Nathan Atwood also claimed ignorance 

of the requirements of 30 c~F.R. § 18.81. Atwood maintains 

that in any event since the field change was subsequently 

approved by ~1SHA there was no hazard in failing to get its 

prior approval. 

The record also shows however that the Co-op Mining 

Company, the predecessor operator of the Bear Canyon l-iine and 

parent organization of C.W. Mining, previously corresponded · with MSHA requesting approval for the installation of 

lighting systems at least five times in 1979 and 1980. 

Indeed two of the letters requesting modifications were 

authored by Mr. Stoddard who was then and is now president of 

the subject company. 

Within the above framework it is clear that c.w. Mining 

Superintendent Kenneth Defay was specifically advised, only 

10 days before the subject order was issued, of the need to · verify whether prior MSHA approval was needed before making 

the anticipated field modifications. While there is some 

question as to whether :~HA Inspector Baker specifically told 

Defay that prior MSHA approval was necessary for a field 

modification to the lighting system, it is clear that Defay - was placed on such notice from which he certainly had the 

obligation to verify whether or not such prior approval was 

necessary. His claims of ignorance cannot -therefore be given 

any weight either toward negating the violation or in 

mitigating his negligence. The evidence is clear moreover 

that it was within the collective knowledge of c.w. Mining 

management that prior MSHA approval •t~as indeed necessary for 

field modifications to the lighting system on the subject 

miner because that management had previously made such 

requests co MSHA. Under the circumstances the failure to 

631 
seek and obtain prior MSHA approval ~o~ the field 

modification was the result of negligence of such an 

aggravated nature as to constitute "unwarrantable failure". 

Emery Mining Co., supra. · 

The violation was also "significant and substantial". 

While it turned out in this case that indeed the 

modifications as made were subsequently approved by l-iSHA the 

purpose of the standard is to foreclose the possibility. of 

dangerous conditions. Considering normal mining operations 

it may reasonably be inferred that failure to obtain prior 

t-iSHA a·pproval for field modifications to permissible 

electrical equipment would reasonably likely lead to 

reasonably _serious injuries in the mining environment. Mathies Coal Company'· supra. 

The second and fourth violations charged in the subject 

order concern insufficient packing in packing glands at two 

locations on the subject miner. The requirements for packing 

are set forth in 30 C.F .R. Part 18 Appendix II Figure 8. It 

is not disputed that without sufficient packing an arc or 

flame could reach the outside atmosphere and ignite coal dust 

or methane or that an electrical cable could become damaged. 

By way of defense to the charges c.w. Mining maintains only 

that the packing was indeed sufficient. 

In light of the prior deficiencies found in the 

credibility of the operator's principal witness however I 

give greater weight to the unimpeached testimony of Inspector 

Gibson and find that indeed there was a deficiency in the 

packing as charged. In light of the undisputed evidence 

concerning the hazard involved with insufficient packing I 

also conclude that the violations were "significant and substantia~"· Mathies Coal Co.·, supra. 

Insufficient packing of the packing glands is also the 

type of violation that should be discovered during an 

appropriate weekly electricai inspection. The failure of 

C.W. Mining to have conducted a weekly electrical inspection 

(a finding I have made in reference to Citation No. 3296377> 

supports the finding that these violations were also the 

result of gross negligence and aggravated conduct 

constituting "unwarrantable failure". Emery Mining Co., 

supra. 

The order charges, thirdly that an opening in excess of 

.005 indh was present in the pump motor cover· lid and 

junction box. Under 30 C.F.R. Part 18 Sub-Part D Appendix II 

Figure 5, a maximum clearance of .004 inch is allowed . C.W. ~ining does not deny the existence of this violation as 

charged but maintains ( thro.ugh electrician John Tucker) that 

such a gap in excess of .005 inch does not involve any danger. 

However in light of this electrician's notable lack of 

632 
experience and established deficiencies .in credibility I can 

give this opinion but little weight. 

On the other hand I. find the testimony of Inspector 

Gibson,a highly qualified and experienced electrician, 

completely credible. According to Gibson with such a gap in 

the pump cover lid and junction box there was a real danger 

that a short circuit or arc within the motor could escape 

into the outside mining atmosphere igniting methane or coal 

dust thereby inferentially causing flash fire or explosion. 

The violation was clearly therefore "significant and 

substantial". Mathies Coal Company, supra. 

The violation was also the result of negligence of such 

an aggravated nature as to constitute "unwarrantable failure". 

Emerqy Coal Co., supra. The electrician responsible for 

inspecting this electrical equipment has been found not to 

have even conducted the weekly electrical inspection that, if 

properly done, would have led to the discovery of this most 

serious violation. It is apparent moreover that even when 

the weekly inspections were performed not all parts of the 

electrical equipment were inspected, e.g. area where lids had 

to be removed such as the pump motor lid here involved. This 

violation was extremely serious and the cavalier and 

negligent attitude of the electrician responsible for these 

inspections is most disturbing. 

Finally, the fifth violation charged in the subject 

order concerns the failure to have secured the hose conduit 

covering the inner machine cable on the left cutter motor 

under the packing gland clamp. According to the allegations 

the .cable appeared not to have been inserted f~r enough into 

the motor junction box and was taped over to obtain 

protection similar to that provided by a conduit. For the 

reasons already noted I accord the testimony of Inspector 

Gibson full credibility. 

According to Gibson the tape covering the cable did not 

afford the same degree of protection as the hose conduit and 

indeed the cable could· produce an ignition source for a 

methane or dust explosion. · The violation was therefore 

clearly ·"significant and substantial" and serious. Inasmuch 

as tne violation was caused by the affirmative act of a , worker and was subject to electrical inspections, the failure 

to have · located and corrected this violation constitutes 

gross negligence and "unwarrantable failure". 

Order No. 3411646 also issued pursuant to 

Section ~04(d)(l) of the Act, alleges a violation of the· standard at 30 C.F .• R. § 75.400 and charges as follows: 

Accumulations of loose Coal, coal Dieces and 

coal fines were permitted to accumulate in the i20 

633 
Room on the 2nd West working section. The 

accumulations began at the section feeder breaker 

and extended approximately 332 feet inby and 

measured to range between 2-12 inches deep x 11 

feet wide. This entry was the shuttle car roadway. 

The shuttle cars are supplied 480VAC. 

Also in the last open cross cut to the left of 

the #20 Room, accumulations of coal fines (first 

cuttings) was [sfcl observed on the left and right 

ribs approximately 90 [sic} in length x 16 inches 

deep x 29 inches wide (measured) • . The joy shuttle cars were observed running 

over these accumulations. ~he graveyard foreman, Gaylon Atwood, was 

presAnt on the section at this time. Also present 

on the section were the two(2) day shift foremen, 

Shin Stoddard and Randy Defa. 

These accumulations were very obvious. 

Mr. Atwood stated, "the area around the feeder 

breaker had been cleaned around 1:30 a.m. this date 

but the entry was not cleaned. He also stated he 

observed the accumulations but did not feel they 

were (accumulations) that bad until the cleaning up 

of the accumulations was under way" 

Mr. Atwood also performed the pre-shift 

examination of this section and these conditions 

were not observed at that time. (*Note a separate 

violation was issued for an inadequate preshift). 

The cited, standard 30 C.F.R. § 75.400 provides that 

"[c]oal dust, including float coal dust deposited on 

rock-dusted surfaces, loose coal, and other combustible 

materials, shall be cleaned-up and not be permitted to 

accumulate in active workings, or on electric equipment 

therein." Inspector Gibson testified that he in fact found 

the conditions cited in the above order during the course of 

his inspection on July 12~ 1989. Although the accumulations 

were found in several areas he issued only one citation for 

the conditions. According to Gibson much of the material 

consisted of coal "fines" which he defined as pulverized coal 

that would not pass through a No. 20 seive. It is not 

disputed that coal fines ara more dangerous than other coal 

accumulations because they are more readily ignitable and 

would increase the intensity of any ign~tion. The violations 

were particularly hazardous according to Gibson because the 

shuttle cars were continuing to run over the accumulations 

thereby further crushing and pulverizing the coal dropped 

from the cars and the fact that the shuttle cars were 

electrically powered with trailing cables laying in the coal 

dust. Gibson opjned that the accumulations were extensive 

and with the ignition sources present injuries and or 

fatalities were likely. Based on this credible testimony I 

634 
find the violation .to be "significant and substantial" and 

serious. Mathies Coal Co., supra. 

According to Gibson, Shane Stoddard the day shift . oncoming foreman also admitted that the accumulations "looked 

bad". Stoddard informed Gibson however that he did not plan 

to clean the .accumulations for another two hours and that is 

when Gibson issued the order at bar. 

Gibson also concluded that the violation was the result 

of the operator's "unwarrantable failure". He observed that 

on his first day inspecting the subject mine he told Defa 

about the necessity for the clean-up of first cuttings. The 

cited accumulations were in his opinion also "very obvious". 

In light of this credible evidence I agree that the violation 

was indeed the result of "unwarrantable failure." 

Order No. 3411647, also issued under Section 104(d)(l} 

of the Act, alleges a violation of the standard at 

30 c. F. R. § 75.303 (a) and charges .as follows: 

An inadequate preshift examination was 

conducted on the 2nd West working section on 

7-12-89, by the graveyard foreman, Gaylon Atwood, 

for the oncoming day shift. Accumulations of loose 

coal, coal pieces and coal fines and first cuttings 

was [sic] permitted to accumulate in the No. 20 · Room and last open crosscut to the left off No. 20 

Room. These accumulations were obvious and very 

extensive. 

The standard at 30 c.F.R. § 75.303(a) provides in 

relevant part as follows: 

Within 3 hours immediately preceding the 

beginning of any shift, and before any miner in 

such shift enters the active workings of a coal 

mine, certified persons designated by the operator 

o .t the mine shall examine such workings and any 

other underground area of the mine designated by 

the Secretary or his authorized representative. 

Each such examiner shall examine every working 

section in such workings and shall ••• examine 

active roadways, travelways, and belt conveyors on ~hich men are carried, approaches to abandoned 

areas, and accessible falls in such section for 

hazards; ••• and examine for such other hazards and 

violations of the mandatory health or safety 

standards as an authorized representative of the 

Secretary may from time to time require •••• Upon 

completing his examination, such mine examiner 

shall report the the results of his examination to 

a person, designated by the operator to receive 

such reports at a designated station on the surface 

of the mine, before other persons enter ~1e 

635 
underground areas of such mine to work in such 

shift. Each such mine examiner shall also record 

the results of his examination with ink or 

indelible pencil in a book approved by the 

Secretary kept for such purpose in an area on the 

surface of the mine chosen_ by the operator to 

minimize the danger of destruction by fire or other 

hazard, and the record shall be open for inspection 

by interested persons. 

In essence, the basis for this order was the failure to 

report in the preshift examination books the accumulations 

that were ci.ted in Order No. 3411646 discussed supra. Gibson 

observed that the accumulations existed between 5: 00 and 

7:00 a.m. when the preshift examination was required to be 

performed and that the accumulations were not reported in the 

preshift book. According to Gibson, Foreman Atwood 

reportedly had performed the preshift examination in the 

cited roadway and 20 room but failed to report the the cited 

conditions in the examination book. Gibson concluded that 

the violation was "significant and substantial" because the 

hazardous condition caused by the massive accumulations would 

not likely be corrected in the absence of a report in the 

preshift examination book and would therefore fail to assure 

miners of a safe working environment. I find Gibson's 

testimony credible in this regard and sufficient to support 

the violation and its "significant and ~ubstantial" findings. 

Gibson also concluded that the violation was the result 

of "unwarrantable failure" for the reason that an experienced 

section foreman such as Atwood should not overlook such 

conditions. Again I find Gibson's testimony to be credible 

in this regard and that it· fully supports the conclusions 

reached. Particularly because of the massive size of the 

accumulations the failure to have reported them constitutes 

aggravated negligence and "unwarrantable failure". 

Order No. 3411648 also issued oursuant to 

Section l04(d)(l) of the Act, also charges a violation of the 

standard at 30 C.F.R. 75.400. The order charges as follows: 

Accumulations of dry coal-pieces, loose coal, 

and float coal dust was [sic] permitted to 

accumulate on the Joy Miner 2G-2519A-25(S/NJM1868), 

being used on the 2nd West \iOrking section. 

These accumulations were present and observed 

on top of and under the covers of the entire 

machine. 

These accumulations of float dust ranged fr~n 

a film 1 inch deep x 18 inches wide x 60 inches 

long on top of the miner. Under the covers a film 

up to 5 inches deep x 9 inches wide x 60 inches 

long. 

636 
The accumulations of float coal dust and coal 

pieces under the shields (covers) were on, under, 

and around the electrical compartments and electric 

motors. 

The .miner was observed cutting coal before 

this condition was addressed. The graveyard 

section foreman, Gaylon Atwood was present on the 

section while this condition existed. ~lso present on the section were the (2) two 

day shift foremen, Shane Stoddard and Randy Defa. 

These accumulations were very obvious and very 

extensive. 

The miner is supplied 9SOVAC and is capable of 

producing sparks during the normal cutting of coal. 

Gibson testified that the conditions cited in the above 

order were indeed present at the time of his inspection on 

,July 12, 19 89. He observed that the miner was in the act of 

cutting coal when he observed ·the accumulations. Gibson 

opined that a spark from an elec~rical component or the 

cutter head itself with the amount of float coal dust present 

would act like "gunpowder" they were so explo$ive. Indeed 

the conditions were so obvious that, according to Gibson, 

Foreman Atwood admitted that "I can't argue about that--

it's obvious". 

Gibson also took samples· of the coal dust which passed 

through a No. 20 seive and tagged and labeled it. He latar 

maile d the sample to the MSHA Analysis Center and received 

in return a one-page analysis (Exhibit G-4> indicating that 

the material was 88 percent combustible. This credible 

evidence clearly supports a finding that the violation 

occurred and was of high gravity and "significant and 

substantial". 

I also accept the credible findings of Inspector Gibson 

that the accumulations were obvious and readily observable to 

the section foreman working in the area. Under the 

circumstances I agree that the violation was the result of 

aggravated conduct constituting gross negligence and 

"unwarrantable failure". 

Con~idering all of the criteria under section l10(i), 

including t~e significant history of similar violations at 

this mine, I consider the following civil penalties 

appropr iate: Citation ~o. 3296377-$950, Order No. 3411644 

$1,500, Order No. 3411646-$900, Order No. 3411647-$850, Order 

No. 3411648-$900. 

637 
ORDER 

Section 104(d)(l) Citation No. 3296377 as well as 

Section 104(d)(l) Orders No. 3411644, 3411646, 3411647 and 

3411648 are affirmed. c.w. Mining Company is hereby directed 

to pay within 30 days of the date of this ecision civil 

penalties of $950, $1,500, $900, $850 and 900, respectively 

!~~v;~e violations charged ~~o~ and ord rs noted 

~~ln~~~;~~ive 'Lw Judge 

Distribution~ u; ' . ~ 

Robert Murphy, Esq., Office of t Solicitor, u.s. Department 

of Labor, 1535 Federal Office Building, 1961 Stout Street, 

Denver , CO 80294 (Certified Mail) 

Carl E. Kingston, Esq., c.w. Mining Company, P.O. Box 15809, 

Salt Lake City, UT 84115 (Certified Mail) 

nt 

638 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 lEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 6 1990 

CONESVILLE COAL PREPARATION CONTEST PROCEEDINGS 

COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v . 

CONESVILLE. COAL PREPARATION 

COMPANY, 

Respondent 

! · 

Docket No . LAKE 89-29-R 

Order No . 2950067; 12/5/88 

Docket No . LAKE 89-30-R 

Citation No. 2950068; 12/5/88 

Docket No . LAKE 89-31-R 

Citation No . 2950069; 12/5/89 

Docket No. LAKE 89-32- R 

Order No . 2950070; 12/5/88 

Conesville coal Preparation 

Company 

Mine ID 33-03907 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 89-75 

A.C. No. 33-03907-03516 

conesville Coal Preparation 

company 

DECISIONS 

Appearan7es: David A. Laing, Esq., Porter, Wright, Morris & 

Arthur, Columbus, Ohio , for the 

Contestant/Respondent; 

Before: 

Patrick M. Zohn, Esq. , Office of the Solicitor, u.s. Department of Labor, Cleveland, Ohio, for the 

Respondent/Petitioner. 

Judge Koutras 

Statement of the Proceedings 

These consolidated proceedings concern Notices of Contest 

filed by the contestant (Conesville) pursuant to section 105(d) 

639 
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 815(d), challenging the legality of the captioned orders and 

citations issued by MSHA mine inspectors. The civil penalty 

proceeding concerns proposals for assessment of civil penalties 

filed by MSHA seeking civil penalt~.'y ·assessments against 

Conesville for three alleged violations noted in two of the 

contested citations and one of the orders. Hearings were held in 

Zanesville, Ohio, and the parties filed posthearing briefs which 

I have reviewed and considered. 

Issues 

The issues presented in these proceedings include the 

following: (1) whether Conesville violated the cited mandatory safety st~ndards; (2) whether the alleged violations were significant and substantial (S&S); (3) whether the alleged violation ·cited in the contested section 104(d) (1) citation and section 

104(d) (2) order resulted from an unwarrantable failure by 

Conesville to comply with the cited standard; and (4) whether the 

condition or practice cited in the contested imminent danger 

order was in fact an imminent danger. 

Assuming the violations are established, the question next 

presented is the appropriate civil penalties to be a·ssessed 

pursuant to the civil penalty assessment criteria found in 

section 110(i) of the Act. Additional issues raised by the 

parties are identified and disposed of in the course of my 

adjudication of these cases. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 301, et seg. 

2. Sections 110 (a) , 110 ( i_) , 104 (d) , 105 (d) , and 107 (a) of 

the Act. 

3. Commission Rules, 29 C.F.R. § 2700.1, et seg. 

Stipulations 

The parties stipulated to the following (Tr. 9-13): 

1. The Federal Mine Safety and Health Review 

Commission has jurisdiction over these proceedings. 

2. The Conesville Coal Preparation Company Mine 

I.D. 33-03907 is owned and operated by the Conesville 

Coal Preparation Company. 

3. The Conesville Preparation Company is an 

operator as defined by § 3(d) of the Act. 

640 
4. The Conesville Coal Preparation Company, Mine 

I. D. 33-03907 is a mine as defined by §. 3 (h) of the 

Act. 

5. The Conesville Coal Preparation Company and 

Mine. I.D. 33-03907 are subject to the jurisdiction of 

this Court and the 1977 Mine Act. 

6. The size of the proposed penalties, if any are 

assessed, will not affect the operator's ability to 

continue in business. 

7. The Accident Report, (Exhibit M.X. - 30), 

fairly and accurately reflects the findings and conclusions of MSHA Inspectors Franklin Homko and Joseph 

Yudasz. 

8. The reference made to an alleged violation of 

30 C.F.R. § 48.13(a), in the last sentence of page 5 of 

the aforementioned accident report is modified to 

allege a violation of 30 C.F.R. § 48.31(a). 

9. The first name of Mr. Lent referred to in the 

condition or practice stated in the section 104(d) (1) 

Order No. 2950070, is Richard, rather than Robert. 

Further, as a result of discovery, the parties agree 

that Norman Hicks and David Summers did in fact receive 

hazard training, and their names are deleted from the 

cited condition or practice. 

10. The respective exhibits offered by the parties (C-1 through C-3, and MX-1 through MX-39) may be 

admitted as part of the record in these proceedings. 

Exhibits MX-35 and MX-38 are withdrawn by MSHA. 

11. In view of the unavailability of Truck Driver 

Orville Parks, the testimony of Mr. Parks, transcribed 

from a tape made during the course of MSHA's accident 

investigation, is admitted as evidence in these proceedings (Joint Exhibit -1) . 

Discussion 

The facts in these proceedings establish that at approximately 8:07a.m., on Friday, December 2, 1988, a fatal haulage 

accident occurred at Conesville's preparation plant, resulting in 

the death of truck driver Dale A. Hina, a driver with 5 years 

8 months experience, including 4 months experience transporting 

. coal to the preparation plant from other mines. Mr. Hina, and 

another truck driver, Norman M. Fortney, had transported thei~ 

loads of coal from a loading facility operated by the Crooksville 

641 
Coal Company, to the Conesville plant, an over-the-road distance 

of 60 miles. Mr. Hina and Mr. Fortney were operating trucks 

which were in tandem with 25-ton end~dump trailers. The .trucks 

and coal contents were weighed at the Conesville preparation 

plant scalehouse and then driven to the .raw coal pile unloading 

site. Mr. Fortney backed his truck near the toe of the raw coal 

pile and began dumping his load of coal onto the ground. 

Mr. · Hina backed his truck next to Mr. Fortney's and began to dump 

his coal load from his trailer. As Mr. Fortney was dumping coal 

from the raised trailer of his truck, he moved the truck forward · 

to allow the coal to flow freely from the trailer bed. A 

"sizable .amount" of frozen coal which had remained adhered to the 

inside of the trailer bed at the right front part of the trailer 

apparently affected the stability of the raised trailer causing 

the truck and trailer to roll over onto its right side. The 

trailer landed directly on the cab of the truck that Mr. Hina was 

operating causing fatal crushing injuries to Mr. Hina. 

Mr. Fortney was not injured. According to MSHA's accident 

investigation report, prior to the accident, Mr. Fortney's truck 

was positioned approximately 10 feet to the left and 10 feet 

forward of Mr. Hina•s truck. 

The facts further show that the truck operated by Mr. Hina 

at the time of the accident was owned by Cox Farms Company, and 

that Mr. Hina was one of its employees. Mr. Fortney owned and 

operated the truck that he was driving at the time of the accident. Both trucks were leased or contracted to Ross Brothers, 

Inc., an independent contractor with MSHA I.D. No. V71. Ross 

Brothers Inc., had a contract with the Crooksville Coal Company 

to transport the coal loaded at the Crooksville facility to 

Conesville's preparation plant. Ross Brothers Inc., owned five 

trucks, and leased two trucks and drivers from Cox Farms, including the one operated by Mr. Hina, and leased or contracted the 

truck owned and operated by Mr. Fortney. 

As a result of its accident investigation of December 2, 

1988, MSHA concluded that the accident occurred because the 

frozen coal which remained in the raised trailer bed of 

Mr. Fortney'$ truck affected the stability of the trailer causing 

the truck ·and trailer to roll over on its right side. MSHA 

further concluded that th~ "practice" of dumping coal from a 

tandem truck and trailer without providing adequate side clearance between trucks contributed to the severity of the accident. 

MSHA also concluded that because of the failure by Conesville to 

insure that adequate clearance was provided for the trucks dumping coal at its preparation plant raw coal dumping location, 

Conesville violated mandatory safety standard 30 C.F.R. 

§ 77.1600(c), and on December 5, 1988, MSHA Inspector Robert L. 

Grissett issued to Conesville contested Imminent Danger Order 

No. 2950067, citing a violation of section 77.1600(c), and in 

conjunction with that order he also issued contested section 

104(a) Citation No. 2950068, with "S&S" findings citing the same 

642 
standard. He also issued contested section 104(d) (1) Citation 

No. 2950069, with "S&S" findings citing Conesville with an 

alleged violation of mandatory training standard 30 C.F.R. 

§ 48.31(a), for failing to provide hazard training to Mr. Hina 

and Mr. Fortney, and section 104(d) (1) "S&S" Order No. 2950070 

for failing to hazard train four other drivers. The orders and 

citations issued by Mr. Grissett state as follows: 

Docket No~ LAKE 89-29-R. Imminent Danger Order No. 2950067 

(exhibit MX-2): 

The mine operator did not insure that adequate 

side clearance was provided at the raw coal pile, 

dumping location. A coal truck leased under Ross Bros. 

Inc., contractor No. V71, overturned while dumping coal 

and the bed of the truck fell on the cab of another 

truck, leased under Ross Bros. Inc. contractor number 

V71, which caused fatal injuries to the driver of the 

parked truck. A bulldozer operator works in conjunction. with the truck during the dumping process. 

This is a violation of 30 C.F.R. § 77.1600(c) and 

a separate citation will be issued. The investigation 

revealed that another trailer had overturned at this 

dumping location on 2-26-88. 

Docket No. LAKE 89-30-R. · Section 104(a) "S&S" Citation 

No. 2950068 (exhibit MX-3): 

The mine operator did not insure that adequate 

side clearance was provided at the raw coal pile dumping location. A coal t~uck leased under Ross Bros. 

Inc. contractor No . V71, overturned while dumping coal 

and the bed of the truck fell on the cab of another 

truck, leased under Ross Bros. Inc., which caused fatal 

injuries to the driver of the parked truck. A bulldozer operator works in conjunction with the trucks 

during the dumping process. 

This is the main factor in the imminent danger 

Order No. 2950067, dated 12-5-88, therefore no abatement time is given. 

Docket No. LAKE 89-31-R. Section 104 (d) (1) "S&S" Citatio·n 

No. 2950069 (exhibit MX-4): 

Dale A. Hina and Norman H. Fortney, truck drivers 

contracted by Ross Bros. Inc., contractor I.D. No. V71, 

had not received hazard training prior to hauling coal 

onto this mine property. Fortney's truck, when dumping, overturned on Hinas' · truck, causing fatal injuries 

to Hina. The operator's hazard training under item 6 

643 
states to stay clear of all raised equipment. There 

were no entries in the hazard training log book to 

indicate that these truck drivers did receive hazard 

training. 

Docket No. LAKE 89-32-R. Section 104(d) C1l 11S&S 11 Order 

No. 2950070 (exhibit MX-5): 

Hazard training was not provided to the following 

truck drivers who haul coal onto this coal mining 

property: Orville Parks, Richard Lent, Robert 

st. Clair, Jr., ••• and Harold Jacobs. These truck 

drivers either work for or are contracted by Ross Bros. 

Inc., contractor I.D. No. V71. There were no entries 

in the hazard training log book to indicate that these 

truck drivers did receive hazard training. 

MSHA's Testimony and Evidence 

Norman Fortney testified that he is currently employed by 

Landis Trucking, and that most of his adult occupation has been 

the driving of trucks (Tr. 19). He stated that he began delivering coal at the Conesville preparation plant in August, 1988, and 

that during the period from August to December 2, 1988, he made 

approximately 200 deliveries at that site, and he explained the 

procedures that he followed in delivering and dumping his coal 

loads (Tr. 21-23). He confirmed that prior to December 2, 1988, 

the scalemaster never told him how he wanted the coal dumped, and 

that there were no controls over how the trucks should be backed 

into the pile for dumping. He stated that the drivers themselves 

would keep their trucks apart and would dump where they thought 

it was safe to dump. There were no Conesville employees at the 

dumping location to tell the drivers where to dump (Tr. 24). 

Mr. Fortney confirmed that he regularly observed other 

trucks dumping at the pile during his deliveries, and he 

explained what he observed as follows at (Tr. 25-26): 

Q. All right. Generally, what sort of distances were 

kept between the trucks when they were dumping? 

A. Really there wasn't any set pattern. If you could 

get backed in, and you thought it was safe to dump, you 

backed in. There was no -- as I say today, maybe 

backing in there, if they're busy, 10 or 12 feet apart. 

If they're if it would happen that you took a little 

extra time at the sampler, or something, and maybe one 

of the trucks got unloaded quicker, he'd be gone. So, 

there'd be more room then. 

644 

: .... 
There really wasn't any set pattern of how far 

apart the trucks stayed other than the drivers tried to 

operate in a safe manner and dump their trucks. 

Q. All right. During the 200 -- approximately 200 

deliveries that you were involved in, was it -- was it 

usual to see trucks within 10 or 12 feet of each other 

when they were dumping? 

A. Yes. 

Mr. Fortney confirmed that he was familiar with hazard 

training, and he explained that "It's a program instituted by the 

operation---the· wash plant operation that explains to us, the 

drivers that come in there, certain rules and regulations," 

including driving on the right side of the roa~ and giving the 

right of way to heavy equipment (Tr. 26). He stated that during 

the time he was delivering coal to the Conesville property from 

August to December 2, 1988, no employee of conesville ever gave 

him any hazard training. After examining Conesville's hazard 

training check lists, Mr. Fortney stated that he recognized them 

as the "verbal" hazard training which was explained to him "by 

the gentlemen that explained" it to him. He further stated that 

he had never seen these check lists during the prior occasions 

when he was delivering coal to the Conesville property (Tr. 

28-30). 

Mr. Fortney stated that during the period August through 

December 2, 1988, he had "heard" of more than one coal truck 

upsetting at the Conesville raw coal pile (Tr. 31). He explained 

the circumstances of the accident that he was involved in on 

December 2, 1988 (Tr. 31-35). 

On cross-examination, Mr. Fortney stated that at the time of 

the accident he was leasing the truck and trailer which he owned 

to Ross Brothers Inc., and was paid by the ton for the coal which 

he delivered from the Crooksville Coal Company to the Conesville 

preparation plant. He confirmed that prior to the accident he 

received no training of any kind from Ross Brothers Inc. or the 

Crooksville Coal Company (Tr. 37). He confirmed that he has 

papers as a certified surface mine foreman from the State of 

Ohio, and was so certified at the time of the accident (Tr. 38)-

Mr. Fortney confirmed that he delivered coal to the 

Conesville facility on an average of three loads a day, 3 days a 

week, and that Mr. Hina's delivery schedule was approximately the 

same as his (Tr. 39-40). Although he believed that there was 

"room for improvement" at the Conesville facility, he agreed with 

a prior statement that he made during the taking of his deposition that the Conesville coal facility "runs as smooth as any 

I've ever worked at" (Tr. 44). 

645 
·Mr. Fortney stated that as of December 2, 1988, he was 

allowed to dump anywhere at Conesville's coal pile, and was never 

directed where to unload. He stated that dumping was left to the 

driver's discretion. and that he dumped at a .spot where h~ felt 

comfortable, and was not required·to be within so many feet of 

another truck while dumping (Tr. 45). He confirmed that the 

drivers could communicate among themselves and with the scalehouse by means of CB radios, and that if he did not feel comfortable at any dumping location he was free to move to another 

location, and that Conesville never told him that he could not do 

this (Tr.- 45). 

Mr. Fortney confirmed that he was aware of the hazard of a 

truck trailer tipping over, and was aware of the fact that frozen 

coal could cause a tipping hazard and that this was the reason 

why a truck driver may choose to line his trailer bed with antifreeze or diesel fuel on cold days (Tr. 47). He stated that the 

actual backing up and raising of the coal load is the most 

crucial part of his delivery process, and that he is selective in 

where to dump his load. He confirmed that the dumping area at 

the time of the accident appeared to be normal, and he believed 

that he was safe and on firm and level ground at the location 

where he was dumping. He confirmed that he had not lined his 

trailer with any anti-freeze or diesel fuel at the time of the 

accident. He stated that since the accident, he no longer hauls 

coal (Tr. 48). 

Mr. Fortney stated that at the time of the accident, he 

backed into the dumping location first, and Mr. Hina backed up 

after him. He stated that there was another truck to his left, 

approximately 40 to 50 feet away, and that the drivers try to 

leave that kind of distance between trucks "when the room was 

there." There were times when drivers were 40 to 50 feet from 

each other, and other times when they were not, and he tried to 

"find a level spot, and a safe spot to dump" (Tr. 49). He stated 

further that if there are four trucks dumping at the same time, 

there is no room to maintain a 40 to 50 foot distance between 

trucks at the pile in question (Tr. 50). He stated that he was 

not surprised when Mr. Hina backed in as close as he did to him 

because he could not see him across his truck, but that after the 

accident occurred he was surprised that Mr. Hina was so close, or 

10 feet from his truck (Tr. 51). 

Mr. Fortney confirmed that he received hazard training after 

the accident, but that it taught him nothing that he did not 

already know about hazards associated with dumping coal loads at 

the Conesville facility (Tr. 54). He confirmed that prior to 

December 2, 1988, he never asked anyone at the Conesyille site to 

train him, and that he ne~er told anyone there that he had not 

received hazard training (Tr. 54). No Conesville employee ever 

asked about or tested his knowledge of safe dumping procedures 

(Tr. 61). 

646 

k. 
Mr. Fortney stated that during all of his trips to the 

conesville- plant, he never knowingly dumped a load of coal when 

he felt it was not safe, and he believed that he was following 

safe dumping practices regardless·of whether he was 15 or 50 feet 

from another truck. He confirmed that he never complained to 

MSHA about any unsafe du~ping practices, but that he and other 

drivers would complain to the sca1emaster if it rained, and the 

dumping area became muddy and not level. When this occurred, the 

scalemaster would instruct the dozer operators to correct the 

conditions (Tr. 64). 

Mr. Fortney confirmed that he and other drivers have been as 

close as 10 feet to other trucks while dumping their coal loads, 

and had Mr. Hina arrived first to dump, he would have pulled in 

as close as Mr. Hina did to him. However, at the present time, 

drivers must stay 50 feet from other trucks because there are 

lanes marked off by traffic cones (Tr. 68). He believed that the 

Conesville hazard training check list concerns staying away from 

loaders with buckets in the air, or staying away from a moving 

dozer, rather than the trucks backing up and dumping (Tr. 77). 

Robert st. Clair. Jr., truck driver, Ross Brothers Trucking 

Company, testified that he has worked for this company for 

5 years and has delivered coal to the Conesville preparation 

plant on and off since ·it began operating 4 years ago. He stated 

that he hauled coal to the plant on December 2, 1988, but in view 

of the accident, he was directed to take his load to the power 

plant and did not dump it at the preparation pl~nt raw coal pile. 

Mr. St. Clair stated that he has made approximately 2,000 

coal deliveries to the Conesville plant since he began driving 

for Ross Brothers and he described the procedure he followed in 

dumping his coal load. He confirmed that depending on the type 

of trailer he was driving, he would be required to leave his 

truck cab in order to activate the necessary controls to dump his 

load. He stated that prior to December 2, 1988, he had occasion 

to be out of his cab and on the ground while dumping his load. 

Mr. St. Clair stated that when he started dumping coal at 

the Conesville raw coal pile no one from Conesville ever showed 

him how the coal was to be dumped at the pile. He confirmed that 

he knew ~he scalemaster at the preparation plant by his first - name "Rick." He confirmed that he was aware of "hazard training" 

and explained that "It's where somebody tells me how to do my job 

on their property and then I sign a paper stating that I understand their training" (Tr. 87). He stated that no employee of 

Conesville ever gave him any hazard training prior to December 2, 

1988, and in the 4 years that he has delivered coal to the property he never received any training. After examining copies of 

Conesville's hazard training check lists, (exhibits MX-33 and 

647 
MX-37), Mr. st. Clair stated that he had never seen them prior to 

December 2, 1988 (Tr. 88). 

on cross-examination, Mr. St. Clair stated that his father 

formerly worked for Ross Brothers ·and trained him while he was 

growing up, and that "it comes natural" to him as part of his 

making a living as a truck driver. He stated t~at he never 

received any truck driver training from Ross Brothers, and 

received no hazard training with respect to delivering coal at 

any facility (Tr. 89). He stated that he hauled coal to the Conesvil~e plant 3 times a day, 3 days a week since December 2, 

1988, and that Ross Brothers has a 2-1/2 year contract to haul 

coal from the Crooksville Coal Company to the plant. He confirmed that he did not receive any training at the Crooksville 

Mine. 

Mr. St. Clair stated that he can control the trailer tailgate from the cab of the truck which he is presently driving. He 

confirmed that in December, 1988, while in the employ of Ross 

Brothers he was aware of coal trailers tipping over and that he 

has been warned about this hazard. He stated that "its something 

you have to always be aware of. " . He believed that he always 

takes precautions while operating his truck and that he is 

"safety conscious." He stated that one needs to watch every load 

which is dumped, and that if he does not believe it is safe to 

dump a load he will not dump it. 

Mr. st. Clair stated that he has never requested conesville 

to train him, and he believed that many of the items on the 

company's hazard training checklist do not pertain to his work as 

a truck driver. He confirmed that MSHA has never inspected his 

truck, but that both he and Ross Brothers inspect the truck on a 

daily basis. 

Mr. St. Clair stated that he never heard of any other trucks 

overturning at the Conesville coal pile during the years that he 

has delivered coal to the property. He confirmed that he never 

told anyone at Conesville that he had not been trained, and that 

no one at Conesville ever asked or tested him as to his knowledge 

concerning the safe operation of his truck or the dumping of his 

coal loads. He stated that "they leave me alone, just told me to 

go dump my load" (Tr. 99). 

Richard Lent, truck driver, Ross Brothers Trucking Company, 

testified that he has 22 years of experience as a truck driver, 

anq that he has delivered coal to the Conesville plant for 

approximately a year. He was scheduled to deliver coal to the 

plant on December 2, 1988, but was diverted to the power plant 

after the accident occurred. 

Mr. Lent explained the procedure ~e followed in dumping his . coal loads.~ He confirmed that depending on the type of trailer 

648 
he was operating on any give~ day, he would have to get out of 

his truck cab to activate the tailgate lever in order to facilitate the dumping of his load. 

Mr. Lent stated that prior to December 2, 1988, no one from 

conesville ever instructed him how to dump his coal load. He 

stated that '"I just watched the other drivers, where they dumped 

theirs and that was it" (Tr. 106). He identified Conesville's ·scalemaster as "Rick" and confirmed that he has heard the term 

"hazard training." He explained that "it means what the company 

wants us to do inside their plant • • • dumping and stuff" (Tr·. 106}. He confirmed that prior to December 2, 1988, no employee 

of Conesville ever gave him any hazard training or ever asked or 

tested his knowledge as to how to safely operate his truck (Tr. 

107}. After identifying Conesville's hazard training check 

lists, Mr. Lent stated that he never saw them prior to 

December 2, 1988 (Tr. 106-107). 

On cross-examination, Mr. Lent confirmed that he received no 

hazard training from Ross Brothers or the crooksville Coal 

company. He stated that he does inspect his truck and had to 

pass a test to work for Ross Brothers. He confirmed that he 

delivers coal to the Conesville plant 3 days a week, making 

3 trips a d·ay, and that he knows what to do while dumping his 

load by observing the other truck drivers. 

Mr. Lent stated that he has always been alert and aware of 

the hazard concerning the overturning of a truck while dumping, 

and that if possible, he tries to dump his load after the pther 

trucks have completed their dumping. He confirmed that he always 

'puts fuel oil in his truck bed to prevent coal freezing and takes 

precautions while dumping. 

Mr. Lent stated that prior to December 2, 1988, he had to 

get out of his truck cab to operate the tailgate levers and to 

observe the dumping of his load. He stated that he would also 

stand on the fuel tank between the truck cab and trailer bed, and 

that some of the new trucks u~ed by Ross Brothers have all of the 

trailer controls inside of the truck cab. He stated further that 

during the 'period October, 1988, to December, 1988, he sometimes 

had to get out of his cab and walk to the rear of the truck to 

see if the tailgate was down (Tr. 108-119) • 

. James R. Stull, truck driver, Bellaire Trucking Company, 

testified that ·he has 32 years of driving experience and has 

worked for Bellaire for 2 years. He stated that he has hauled 

coal for 18 years, and started hauling coal to the Conesville 

plant in October, 1987. He confirmed that he overturned a truck 

at the Conesville plant coal pile in February, 1988. The ground 

was not level, and as he backed up his truck to dump the load of 

coal, the right rear wheel sunk into the mud, and the truck · overturned but no one was hurt. Mr. Stull stated that Conesville 

649 
r: 

never instructed him how to dump his coal on the pile, and there 

were no traffic lanes at the dump site for the trucks to follow 

while dumping their loads (Tr. 120-124). 

on cross-examination, Mr. Stull confirmed that he received 

no training at the Bellaire Company, but did receive hazard 

training at the conesville plant. He stated that when his truck 

overturned, it fell for a distance o·f 30 feet but did not strike 

anything.. He stated that the truck trailer telescope broke off 

after the truck tipped over (Tr. 125-127). In response to 

further questions, Mr. Stull stated that the training he received 

at the conesville plant came after the fatal accident, and he 

explained the training that he received (Tr. 128-f29). 

Clyde o. Parks, electrician, Conesville Coal Preparation 

Company, stated that he has worked at the plant for 5 years and 

has 37 years of mining experience. He confirmed that he is a 

member of the UMWA, and except for a 13-month period, he has 

served as a member of the mine safety committee. He stated that 

the coal haulage truck drivers are not members of his union. 

Mr. Parks stated that when another truck overturned at the 

plant coal pile on February 26, 1988, he participated in the 

union walkaround inspection at the site as a member of the safety 

committee. He .stated the truck overturned after the right rear 

wheel dual tires hit a soft spot while dumping a load and caused 

the yoke to break at the point where the truck telescope fastens 

to the trailer. 

Mr. Parks stated that Mr. Bill Lyons, Safety Director of 

Conesville Coal Company, accompanied him during the walkaround. 

As a result of the incident of February 26, 1988, measurements 

were taken of the distance covered by the truck which overturned 

and the safety committee expressed their concern about maintaining a safe distance between the trucks. The union held a 

communications meeting with Conesville's management· and recommended that only three trucks be permitted to dump coal at any 

one time, no less than 30 feet apart. Mr. Parks stated that the 

company accepted the recommendations and limited the dumping to 

three trucks at a time, but it only did this for a period of 

2 weeks (Tr. 129-140). 

on cross-examination, Mr. Parks confirmed that he also 

served on the safety committee while previously employed by 

Peabody Coal Company. He stated that after a truck tipped over 

at the coal hopper at Peabody, MSHA took no fu~ther action. 

Mr. Parks confirmed that the union has the authority to 

declare an imminent danger at the plant coal dumping piles, but 

that it has never exercised this right and has never advised MSHA 

of any imminent danger. He confirmed that he first spoke to 

Inspector Grissett about the instant case 2-weeks prior to the 

650 
hearing. He also confirmed that the Conesville Company has receiv~d safety awards, was cited by MSHA for having 600 days 

without a lost time accident, and that MSHA inspectors have 

advised him that the company runs_a safe operation (Tr. 140-158). 

MSHA Inspector Robert L. Grissett, confirmed that he and 

several other inspectors conducted an investigation of the accident in question on December 2, 1988, and that he issued a section 103(k) order that day (Tr. 164). He identified several 

photographs of the trucks which were involved in the accident, 

and explained what the investigating team found (Tr. 165-175). 

Mr. Grissett and the other inspectors returned to the mine on 

December 5, 1988, to continue their inquiry, including interviews 

with witnesses (Tr. 176). He reviewed the company training plan 

and records, and explained the coal dumping procedures. He 

confirmed that there were no designated lanes marked off for the 

trucks to use at the coal pile, and that once the load was 

weighed and sampled, the trucks were free to go to the dumping 

area. . Mr. Grissett stated that he learned about Conesville's 

training plan for contract truck urivers during an interview with 

scalemaster Rick Shuck. Mr. Shuck informed him that each truck 

had an identification number on a card on the windshield of the 

passenger side, and as each truck passed over the scales 

Mr. Shuck would log the number and then hazard train the driver. 

During subsequent truck trips, Mr. Shuck would refer to his log 

to insure that the number on the truck corresponded with the 

number in his log. However, if there were a change in drivers, 

he would have no way of knowing whether that particular individual was trained because the log would only reflect a truck 

number • . Mr. Grissett stated that Mr. Shuck and superintendent 

Leppla acknowledged that this system presented a problem because 

"too many trucks were coming in" (Tr. 182). Mr. Grissett stated 

that he was particularly interested in items 5 and 6 of 

Conesville's training plan which advises persons to stay clear of 

all raised equipment and to watch for moving equipment (Tr. 183, 

exhibit MX-37). 

Mr. Grissett confirmed that after the completion of the 

accident investigation he issued a section 107{a) imminent danger 

order and a section 104(d) (1) citation and order {Tr. 182). Th~ 

imminent danger order was issued in conjunction with a section 

104 (a) cit'ation which was issued for a . violation of section 

77.1600(c), for failure to maintain adequate and safe side clearance on raised equipment. He explained that Mr. Hina's truck was · within 10 feet of Mr. Fortney's truck and there were no established guidelines as to the procedures for dumping, and there 

were no designated areas provided at the dump location for safe 

side clearances for the trucks. Based on his investigation, 

record review, and interviews, he concluded that these failures 

had been a "practice at the mine" (Tr. 185). He explained his 

651 
reason ·for issuing the imminent danger order as follows at (Tr. 

184): 

* * * * * * * 

A. Well, you have to have a condition or practice that 

is so serious that you feel that an abatement time 

couldn't be given before a serious injury or accident 

could happen. 

* * * * * * * 

A. The practice--we had established that they had not 

provided adequate side clearance. And I know I had the 

area closed on a 103(K) order, but that was soon to be 

lifted as soon as the investigation was over, and there 

would be nothing to prevent them from continuing to 

operate the way they had prior to that. 

Q. So why did you issue the imminent danger order? 

A. To keep the area closed until management could 

devise a method to ensure adequate side clearance. 

Mr. Grissett stated that he based his "high .negligence" 

finding on the fact that there had be.en a prior truck tipping 

incident at the mine on February 26, 1988, as confirmed by the 

photographs produced by Conesville's Safety Director Bill Lyons 

(Tr. 186). He based his "S&S" finding on the fact that an accident resulting in a fatality had occurred (Tr. 187). He confirmed that he issu~d a citation for a violation of the training 

requirements of sectiqn 48.31(a), and that he reviewed the mine 

hazard training log and plan before doing so (Tr. 187). He also 

consulted MSHA's Part 48 training policy manual (exhibit MX-31), 

and discussed the citations and orders with his supervisor and 

the other MSHA inspectors who were with him on December 5, and 

that they all agreed with his enforcement actions (Tr. 189). 

Mr. Grissett stated that.he based his "high negligence" finding with respect to the training violation on Mr. Leppla's 

statement that he. recognized that there was a problem with training the truck drivers, and the fact that Conesville had knowledge 

of the prior truck tipping incident and failed to do anything 

about its training. He stated that "I put all that together, and 

felt that it met the criteria for a (d) (1) citation" (Tr. 190). 

He also confirmed that he found the violation to be "S&S" because 

"we had an accident that resulted in a fatality" and "that's part 

of the criteria on sandS" (Tr. 190). With regard to his unwarrantable failure findings, Mr. Grissett stated as follows at (Tr. 

190-192; 195-196): 

652 
·A. Well, it has to be a violation of mandatory standard. It has to be S and s, or significant and substantial. It can't be imminent danger. And the 

operator has had to show aggravated conduct, which 

would constitute more than ordinary negligence. 

Q. Okay. What do you understand aggravated conduct 

constituting more than ordinary negligence to mean? 

A. That would mean that they had prior knowledge of a 

serious condition or act or area of the mine that could 

cause injury to someone, and failed to take appropriate 

steps to eliminate it or prevent a reoccurrence. · 

Q. Okay. And in your investigation, interviews, 

observations-and record reviews, what findings did you 

make that led you to conclude that Conesville had, 1n 

fact, exhibited aggravated conduct constituting more 

than ordinary negligence with respect to their 

training? 

A. That they recognized they had a breakdown in their 

system, or their system was just not -- not adequate to 

assure that everybody was getting hazard trained. 

* * * * * * * 

Q. All right. What findings did you make that led you 

to conclude that Conesville Coal had exhibited aggravated conduct constituting more than ordinary negligence with respect to their hazard training and their 

prior knowledge of the hazard training? 

A. In the fact that they had -- that we had the accident in February 26th of 1 88 that was brought to their 

attention, that they had the breakdown in their hazard 

training system and was aware of that. 

* * * * * * 

Q. With respect to Line 11 on your (D) (1) order, you 

marked high for negligence on this training violation. 

Why did you find that Conesville was highly negligent with r~spect to their training program? 

* 

A. Because they admitted that they had problems and 

were not sure how many truck drivers had received 

hazard training, and seemed to feel tpat it was just 

practically an impossible situation to -- to get everybody hazard trained because of the amount of trucks 

that come in. 

653 
Q . All right. 

A. And it was actually the -- it was more the method 

they were using than anything else. 

With regard to his "S&S" finding concerning the section 

104(d) (2) order, Mr. Grissett stated as follows (Tr. 196-197): 

. Q. And how did it-- what findings did you make that 

it met the S and S criteria? 

A. . That hazard training in this case where you have 

truck drivers that's coming into an area, and can dump 

at will wherever they want to, I think the hazard 

training that address~s -- that they address in their 

hazard training program that they have addres~es that 

area. 

so, I feel the hazard training and the dumping of 

coal at the r.aw coal pile go together because that's 

all these gentlemen that come in there with those 

trucks do. They .just come in, and dump coal and leave. 

so, they're only exposed to very few hazards. And one 

of the main ones is in the dumping of it. 

Q. All right. And what hazards in the dumping area? 

A. That they will upset, and that you have to keep it 

level, and you have to keep ·them apart to allow for 

these trucks to upset. 

On cross-examination, Mr. Grissett confirmed that he had 

inspected the preparation plant in question at least 2 times a 

year for the past 3 years, including the raw coal dumping area, 

and that other inspectors have also inspected the facility. He 

confirmed that he has observed the dumping in progress during 

prior inspections before December 2, 1988, and that it was very 

likely that he inspected the facility during a regular inspection 

from September 20 to 28, 1988. He confirmed that prior to 

December 2, 1988, he never issued any imminent danger orders at 

the dumping location, and had never previously cited Conesville 

with a violation of section 77 . 1600(c) (Tr. 202-206). 

Mr. Grissett confirmed that the accident investigation 

revealed that frozen coal which remained in the upper right-hand 

corner of Mr. Fortney's truck trailer bed caused his truck to tip 

over (Tr. 207). He confirmed that he based his imminent danger order on his belief that Conesville had a continuing violation of 

section 77.1600(c), that was creating_ an imminent danger because 

it did not insure that there was an adequate side clearance 

between trucks to ensure that a truck which tipped over would not 

come in contact with another truck (Tr. 209-211). He confirmed 

654 

;,·: 

t~ 

• 
that when he issued the order, he did not have in mind any 

specific adequate minimum distance between trucks, but that he 

did not believe that 10 feet was adequate . He now believes that 

an adequate distance would be "in the neighborhood of 40 or 

50 feet" (Tr. 212). He defined tlie term "adequate" to mean "if 

it was raised it would not cause an injury to somebody if it fell 

over" (Tr. 213) . He believed that the cited standard required 

Conesville to keep enough distance between the coal trucks dumping at the coal pil~ so that if one toppled over it could not hit 

another truck (Tr. 214). 

Mr. Grissett confirmed that in order to abate Citation 

No. 2950068, Conesville was required to establish a system to 

ensure that trucks would not come in contact with each other in 

the event of another accident similar to the one which occurred 

in these proceedings, and that simply posting a sign would not be 

sufficient (Tr. 214). He confirmed that the use of the cones for 

truck spacing was suggested by Conesville, and that this was 

acceptable to MSHA. Another alternative would be to enlarge the 

dumping area to provide ample room between trucks while they are 

dumping (Tr. 218). He confirmed that a hazard always exists at 

the dumping areas where hoppers are located, but that Conesville 

always flagged those areas to alert the truckers of the hopper 

hazards (Tr. 221). 

Mr, Grissett confirmed that prior to December 2, 1988, he 

issued a citation for a violation of section 77.1600(e), at 

another tipple raw coal pile because of an overhead high voltage 

line which . could have been contacted py a truck raising its bed, 

but that he never issued any violation for trucks dumping too 

close together, and the Conesville case was his first experience 

of this kind (Tr. 223-224). 

Mr. Grissett confirmed that although he did not investigate 

the prior tipping .incident of February, 1988, it was his understanding that it was caused by a broken hydraulic hoist scope 

which caused the truck to tip, and it did not hit anything when 

it fell over (Tr. 225) . He confirmed that during his investigation of the December 2, 1988, accident, he determined that the 

truck drivers with whom he had spoken were aware of the tipping 

hazards created by frozen coal, and that Mr. Fortney had not used 

any kind of anti-freeze on his truck that day (Tr. 227). He also 

confirmed that the drivers listed in Order No. 2950070, who 

either worked for or leased their trucks to Ross Brothers, had 

not been hazard trained (Tr. 228). He explained his understanding of the contractual arrangements between Conesville, 

Crooksville Coal Company, and Ross Brothers, and independent ·trucker Fortney, and Mr. Hina, an employee of Cox Farms (Tr. 

225-229). 

Mr. Grissett confirmed that although Ross Brothers has an 

MSHA I.D. Number V7-1, and is considered to be an independent 

655 
contractor subject to MSHA's jurisdiction, no citations or orders 

were· issued to Ross Brothers or to Mr. Fortney (Tr. 230-231). He 

also confirmed that there are no MSHA requirements for a trucker 

to apply anti-freeze or diesel oil to their trucks to prevent 

coal freezing (Tr. 231). · · 

Mr. Grissett stated that his investigation did not reveal 

whether or not Ross Brothers was providing hazard training to its 

drivers. He stated further that Ross Brothers was not required 

to give this training because "it would have to be to the people 

entering .upon the mine property." Conceding that the drivers in 

question did enter mine property, Mr. Grissett stated that the 

training would have to be provid.ed "by the operator that's 

invitedthe man in there" · and that Ross Brothers "wouldn't know 

of the existing or potential hazards of that raw coal dump" (Tr. 

233). He agreed that a trucking company such as Ross Brothers 

should be concern.ed about hazards to its drivers and possible 

damage to its equipment, but that "the way the law is," it is the 

mine operator's.responsibility to train the drivers "once that 

truck enters the gate" (Tr. 233). He confirmed that the 

Crooksville Coal Company had not trained some of its drivers, and 

while he did not know whether any citations were issued to 

crooksville, he believed that another MSHA inspector visited that 

site and that "the situation has been taken care of" (Tr. 234}. 

Mr. Grissett stated that the cited training standard section 

48.3l(a), requires hazard training for all individuals who come 

within the definition of "miner" pursuant to section 48.22 (a} (2). · He believed that Mr. Fortney, Mr. Hina, and the other cited 

truckers came within the definition of "delivery personnel" 

included in the definition of "miner" (Tr. 236). He determined 

from Mr. Fortney that he had been delivering coal to the preparation facility 3 times a day; 3 days a week, but did not determine 

how long Mr. Hina had been coming to the facility (Tr. 237). 

However, he did not disagree with the information in the accident 

investigation report that Mr. Hina had delivered coal to the 

facility for 4 months during the same daily intervals as 

Mr. Fortney (Tr. 238). 

Mr. Grissett stated that Mr. Fortney and Mr. Hina would be 

exposed to the potential of a truck upsetting while qumping coal. 

They were also exposed to hazards from the hoppers, and while on 

foot they may be exposed to other truck and dozer traffic 

hazards. He confirmed that they were exposed to these hazards on 

a daily basis during each trip that they made to the raw coal 

pile. He explained that these individuals would not be classified as miners pursuant to the definition found in section 

48.22(a)(l), because they were not employed at the mine, or 

contracted to work there for a period of 5 days, and "were just 

contracted to deliver a product to the mine" (Tr. 250). He 

confirmed that he followed MSHA's training policy guidelines when 

656 
he issued the citations, and consulted with MSHA's training and 

education specialist Jim Myers in this regard (Tr. 251). 

Mr~ Grissett confirmed that MSHA's policy manual provides an 

exception for truck drivers who remain in their vehicles while on 

mine property, and that they are not required to be hazard 

trained pursuant to section 48.3l(a) (Tr. 253). After responding 

to further questions concerning the exception for persons who 

come to the mine property to pick up or deliver materials and 

supplies, Mr. Grissett disagreed that coal truck drivers that 

stayed in their vehicles need not be hazard trained (Tr. 255). 

He conceded that when he gave his prior deposition he stated that 

individuals who came to the mine property in a pickup or delivery 

truck and who did not leave their vehicles were not required to 

be hazard trained. He confirmed his belief that coal haulers who 

do not leave their vehicles are not required to be hazard trained 

by the mine operator, but if they do leave their vehicle, they 

are required to be trained with respect to the hazards that they 

are exposed to while out of their vehicles (Tr. 257). 

Mr. Grissett explained his reasons for citing Mr. Fortney 

and Mr. Hina for lack of hazard training as follows at (Tr. 

258-260): 

Q. Okay. Now, you indicated that the reason you 

issued the citation with respect to Mr. Fortney and 

Mr. Hina as far as hazard training goes is because it 

was determined they were out of their vehicle; is that 

right? 

A. Yes. 

Q. Okay. so, if-- if you had ·determined they had 

stayed in their vehicles, that citation would not have 

been issued with respect to those two individuals; am I 

correct? 

A. I'm not sure whether -- there was more thinking 

into that than that before I issued that citation. I 

know what I said in the deposition. I don't know. I 

recognize it there, and I must have said it, and I've 

reread it, and possibly -- apparently· I did say it that 

way: And so, I'll have to go with it. 

Q. So, to make sure I am not mischaracterizing your 

testimony, you do agree that your prior testimony on 

this issue is that coal haulers who remain in their 

vehicles need not be given hazard training, correct? 

A. That's the way that it reads, yes. 

657 
Q. And that's the way you were interpreting 48.3l(a), 

. at least as of December 2nd, 1988? 

A. Yes. 

Q. And because Mr. Fortney and Mr. Hina, you ascertained were out of their vehicles, you deemed they 

needed hazard training? 

A. Fall into that area, yeah. 

Q. . Fall into the area of? 

A. Requiring hazard training. 

Q. Okay . Specifically, did you know where Mr. Hina 

was when he was out of his vehicle on December 2nd? 

Did you determine where ---

A. I don ' t--- · 

Q. ---where he was in particular that day? 

A. No. 

Q. Okay. How did you determine he was out of his 

vehicle? 

A. I don't know whether we determined that or not. We 

determined he hadn't been hazard trained. 

And, at (Tr. pgs. 263-264; 266, 267-268; 273-274): 

THE WITNESS: I have gotten totally confused as to 

actually what I did that day .like entering this policy 

into it, and I'm not too sure -- I know what the 

deposition says. I don't know -- I don ' t recall 

whether we was talking policy at that time or not when 

we was in Cleveland·. 

But I know that we enforce if a man comes to the 

mine on a regular basis and delivering a product such 

as this was -- this was a delivery of a product -- and 

is exposed to hazards while performing that, he has to 

be hazard trained. 

Now, the policy -- and I know it gets -- it gets 

very confusing -- but we try to get to the meat of it 

and sometimes we have to stay away from that policy 

because its confusing. 

658 
All I did to refer to that policy is to make sure 

I was in the right area of addressing hazard training. 

I briefed through that, and I talked to Jim Myers; am I 

in the right direction here. And he said, yes. 

But as far as enforcement, when we're talking 

delivery, when a man from Penn Ohio delivers towels to 

the mine, we don't require him to have hazard training. 

He generally pulls in the parking lot, and walks into 

the shop area or office area. * * * 

* * * * * * * 

A. The way I enforce it is that if they come there on 

a regular basis and qre exposed to hazards, they have 

to be hazard trained with the exception of personnel 

who comes around the mine office or mine shop just in a 

delivery capacity such as a mailman. 

* * * * * * 

THE WITNESS: Right, the policy. But I don't enforce 

the policy. That was my interpretation of the policy 

in the deposition. 

BY MR. LAING: 

Q. And you rely on the policy in making a decision 

whether to issue a citation or order? 

A. No. 

Q. You don't rely on the policy? 

A. No, sir. 

* 

Q. Didn't you testify to Mr. Zohn that you do refer to 

the policy? 

A. We refer to the policy because it's a guideline. I 

carry the policy in my vehicle. I've gotten in 

problems with the policy. It you cannot enforce it. 

* * * * * * * 

·Q. Okay. Mr. Grissett, with respect to the order that 

you issued on the other Ross trucking drivers who 

didn't receive hazard training, did you make a determination that they were out of their truck, also, while 

at -Conesville? 

659 
A. We made a determination they had not received 

hazard training. · 

Q. Okay. Was there any determination made as to 

whether they were out of their truck? 

A. No. 

Q. Okay. 

A. There might have been on orville Parks. That 

question may have been asked. 

Mr. Grissett stated that item #6 of the Conesville hazard 

training plan applies to the possibility of a truck tipping over 

and that such an occurrence is not unique to the Conesville , preparation plant. He confirmed that the truck drivers were 

aware of this hazard and that .they are most concerned when they 

are dumping (Tr. 278). He confirmed that at the time of the 

accident Conesville had an approved hazard training plan in 

effect for truck driv~rs, that hazard training was part of the 

plan, and that many drivers had been trained (Tr. 278, 282). He 

confirmed that he issued the citation because he could find no 

evidence that the drivers identified in the citation were hazard 

trained (Tr. 281). He also confirmed that he had no problem with 

the hazard training "checklist" used to train the drivers, but 

that conesville missed some drivers when it came to hazard training (Tr. 282) . He stated that Mr. Leppla's statement concerning 

a "problem" with training concerned "knowing which ones are and 

which ones are not trained" (Tr. 284). . · 

In response to further questions, Mr. Grissett confirmed 

that Conesville never raised any policy distinctions concerning 

training for truck drivers who did not leave their trucks, and 

that this issue was never raised by Conesville. He stated that 

"they were trying to get their truck drivers trained" (Tr. 290). 

He confirmed that he issued the t~o training violations because 

Conesville had a "flaw" in its hazard training program and had 

not in fact hazard trained some of the truck drivers (Tr. 290). 

He stated that when he referred to the MSHA policy discussed with 

Mr. Myers, he decided not to follow it because it did not address 

the situation and that he was enforcing the law and not the ·policy and it made no difference to him whether or not the 

drivers got out of their trucks while they were dumping coal (Tr. 

291). When asked whether the policy contradicts section 

48 . 31(a), Mr. Grissett responded as follows.at (Tr. 292): 

A. · It didn't apply there where you have truck drivers 

whether they got out or not, even though we did estab~ 

lish that some of them got out. So, it really didn't 

apply to that because you -- they were exposed to -- ·they were exposed to hazards while in their vehicle. 

660 
so, we couldn't -- we just couldn't use that there. We 

had to -- we had to just go with what the law stated, 

that if they're on a regular delivery there, a regular 

basis, and are exposed to the hazards, then they have 

to be hazard trained. · · 

Mr. Grissett. stated that since the "cone and lane" system 

has been in effect at the coal dumping location there have been 

two incidents of trucks upsetting without any injuries, and he 

believed they were caused by a wheel or a broken scope or pin 

(Tr. 303). He stated that the mine operator has the responsibil- ity to foresee the possibility that at any given time a truck 

will upset at a coal dumping location and that it must insure 

that proper separation is maintained between the trucks that are 

dumping (Tr. 311). 

conesville's Testimony and Evidence 

Randy B. Miller, testified that he is the administrative 

manager of the preparation plant, and that part of his duties 

include recordkeeping. He was aware of the prior truck tipping 

incident, and confirmed that the safety director showed 'him a 

picture of the truck and informed him that it turned over because 

of .a mechanical problem involving a broken pin. He further 

confirmed that he attended meetings with the mine safety 

committee, but he could not recall the committee ever proposing 

that a three truck dumping cycle be used at the raw coal dumping 

pile (Tr. 325-327). 

On cross-examination, Mr. Miller confirmed that he was also 

aware of a truck upsetting at the coal pile subsequent to the 

accident of December 2, 1988, and while there may have been other 

such incidents, he was not personally aware of them since these 

are matters which would be investigated by the safety director. 

He stated that he was at the meeting with the safety committee 

held on March 1, 1988, following the truck tipping incident in 

February, 1988, but he could find no "union safety write-up" or 

record of any discussion concerning the trucks. He also checked 

the minutes of similar meetings held from January through 

December, 1988, and· found nothing in this regard (Tr. 331). He 

denied that Mr. Clyde Parks ever suggested to him that Conesville 

should ·implement a three truck dumping cycle at the coal pile, ~ 

and he agreed that Mr. Parks would not necessarily discuss this 

with him and that it would more appropriately be brought up with 

the safety director (Tr. 333). 

William Lyon, testified that he retired as the plant safety 

director, training instructor, and staff electrical engineer on 

June 1, 1989, and that he served in these capacities for 

Conesville from February, 1985, until his retirement. He confirmed that the plant opened in January, 1985, and he explained 

what is done there (Tr. 339-342). He stated that as of the 

661 
December 2, 1988, accident the plant had 50 employees. He confirmed that there were four signs posted at the raw coal dumping 

area at the time of the accident stating "Danger Open Hopper," 

and he identified exhibit MX-33, as the approved training plan 

for the plant as of the time of tne accident. He stated that 

MSHA inspector and training specialist Jim Myer spoke with him in 

November, 1986, and informed him that he had to have an approved 

training plan, and that Mr. Myer volunteered to put a plan 

together for him. Mr. Myer prepared the plan, including the last 

page, which is the hazard training plan, presented it to him, and 

it was subsequently adopted by Conesville and approved by MSHA 

(Tr. 342-345}. 

Mr. Lyon identified exhibit G-3, as a copy of the plant 

hazard training logbook used for the coal haulers as of the time 

of the accident. The book contains a copy of the hazard training 

checklist, the names of the drivers, their truck numbers, the 

identification of the vendors, and the person who conducted the 

training (Tr. 326). He stated that Conesville began hazard 

training coal haulers in January, 1988, when MSHA informed him 

that he had to maintain a log of all hazard training, but that 

prior to this time MSHA inspectors advised htm that coal truck 

drivers did .not have to be hazard trained if they were not outside of their trucks (Tr. 346-347). Mr. Lyon confirmed that he 

made the notation "when outside of trucks & driving haul road" 

which appears at the top of the checklist, and that he underscored the critical checklist items that truck drivers should be 

aware of while outside of their trucks, and he believed that 

these items applied to truck drivers. He did not believe that 

item #6, which cautions persons to "stay clear of all raised 

equipment (dozer blades, front-end loader buckets, etc)" applied 

to truck drivers because they would not be next to that equipment 

(Tr. 348-349). He explained that he made the notation in question because truck drivers normally did not get out of their 

trucks, and if they did, they had to be aware of the underscored 

items on the checklist (Tr. 349). 

Mr. Lyon stated that it was his understanding in 1988 from 

MSHA that hazard training was only required for coal haulers when 

they were outside of their cabs. He confirmed that no determinations were made as to which drivers got out of their trucks 

because "most-" of them did not do so. However, since there were 

periodical truck breakdowns and a driver would have to make a 

phone call, all truck drivers were trained because they would 

have to get out of their trucks. Although it was his understanding that this training was not required, he made the decision to 

hazard train all coal haulers (Tr. 350). 

Mr. Lyon stated that prior to the accident he reprimanded 

"quite a few" coal haulers for not following the hazard training 

checklist items, particularly with respect to the use of hard · · hats, and that MSHA inspectors, including Mr. Grissett, were 

662 
present when this wa·s done. He confirmed that he organized the 

log book procedures, and that the drivers logged in the book were 

trained by the scale master Rick Shuck, under his direction. He 

stated that he also trained quite a few of the drivers, was 

present when Mr. Shuck trained them, and he explained how the 

training was given and the names entered into the log (Tr. 

352-356). . 

Mr. Lyon stated that prior to the accident he was not aware 

of any problems with the system that he implemented for hazard 

training coal haulers, and he was not aware of any drivers coming 

to the mine property that were not being hazard trained (Tr. 

356). He denied making any statements that Conesville was not 

able to keep up with the training (Tr. 357). 

Mr. Lyon stated that Conesville had no involvement in determining who delivered coal to the preparation plant. He explained 

that Cravat Coal Company had a contract with the Conesville Power 

Plant, through Columbus Southern Power Company, to furnish coal 

which was washed at the Conesville plant, and that cravat Coal 

contracted with the Crooksville Coal Company to ship some of its 

coal to the plant, and that Crooksville contracted with Ross 

Brothers, who in turn contracted with Cox Farms, to haul the coal 

to the plant (Tr. 358). 

Mr. Lyon stated that at the time of the accident the raw 

coal dumping area was approximate~y 250 feet long, and he was not 

aware of any time when it was significantly less than that (Tr. 

358). The only other prior tipping incident that he was aware of 

occurred on February 26, 1988, because of a broken pin on the 

jack used to raise the truck bed, and the truck did not hit 

anything and no one was injured. He denied making any statements 

that there ·were more truck tipping incidents prior to the 

December 2, 1988, accident (Tr. 359).· He perceived no hazard 

from the incident which occurred in February, 1988, because 11 it 

was a mechanical problem with the truck. 11 He recalled no recommendations from the mine safety committee as a result of that 

incident, and denied that Mr. Parks or anyone else from the 

safety committee ever approached him about implementing a threetruck dumping cycle (Tr. 360). 

Mr. Lyon stated that Conesville did not file an MSHA acc~­

dent report Form 7001, regarding the accident in question, and 

that the form was filed by Ross Brothers. He stated that the · imminent danger order and citation for a violation of section 

77.1600(c}, were abated by providing three dumping lanes spaced 

60 feet apart, and that this distance was determined by the State 

of Ohio Division of Mines who also investigated the accident, and 

that MSHA agreed with it (Tr. 361). He confirmed that in 

February, 1989, Conesville received a certificate from MSHA for 

600 days without a lost time accident, and that it was signed by 

Inspector Myer and Inspector Grissett's supervisor Jack Cologie. 

663 
He al~o stated that other mine inspectors, including Mr. Grissett 

and Mr. Myer, have commented to him that "they enjoyed coming up 

to inspect our plant because we had such a safe operation" {Tr. 

362). He confirmed that prior to the accident, other inspectors, 

including Mr. Grissett, inspected-the coal dumping area, and that 

no citations or orders were ever issued for not providing adequate side clearance at the dumping pile (Tr. 362). 

on cross-examination, Mr. Lyon confirmed that Conesville's 

hazard training plan, (exhibit MX-33), is representative of a 

plan that he was familiar with when he was trained at the Central 

Ohio Coal Company, and that MSHA adopted the plan. He stated 

that he made no independent research in putting the plan 

together, and relied on Mr. Myer (Tr. 366). He confirmed that 

when he decided to train all coal haulers, he made no distinctions between whether a driveLgot out of his truck or not and , decided to hazard train all truck haulers delivering coal to the 

plant (Tr. 366}. He confirmed that he did not call any of the 

coal haulage vendors listed in the hazard training log book to 

determine whether they had trained their drivers "because they 

had to be trained at each indivjdual site" because "each mine is 

different than any other mine" and he felt some obligation to 

train the drivers at the mine site because "a truck could have an 

accident or a mechanical problem and the driver would have to be 

out on the ground" (Tr. 367-368}. He confirmed that.at the time 

of the accident, he had no specific knowledge that Ross Brothers 

was delivering coal to the plant, and he would have no reason to 

call them about any hazard training for their drivers {Tr. 368). 

Mr. Lyon did not ·believe that the prior truck tipping incident presented any hazard or safety problems other than to the 

driver in the truck, and he stated that neither he or the safety 

committee saw a need to discuss it fur~her, and even though the 

committee was aware of the incident, it was not discussed with 

him (Tr. 371). He confirmed that prior to the accident, there 

were no truck spacing controls in effect and it was left to each d~iver to determine the safe distance for backing up and dumping 

loads at the coal pile. He also confirmed that there were no 

physical barriers in place, or flagmen to direct traffic, but 

that signs were posted to keep personnel out of the coal pile 

because of the hoppers under the pile (Tr. 374}. He confirmed 

that it was Mr. Shuck's responsibility to train the coal haulers, 

maintain the log, and to determine if there were new drivers who 

had not been hazard trained (Tr. 375). 

Mr. Lyon stated that subsequent to the February, 1988, truck 

tipping incident, he did not find it necessary to emphasize item 

#6 of the hazard checklist, but that he and Mr. Shuck were told 

about it. He stated that when a new truck showed up at the site 

with a new driver, he would be trained. The contractor controlled the numbers on the truck, and he had no direct contact 

with the contractors to advise them of any responsibility to 

664 
inform him of any changes in drivers, and he believed that it was 

reasonable to assume that if there were any driver changes, he 

would be informed. He agreed that at least six drivers "got 

through the system and were not hazard trained," and that it was 

obvious that he was not told that·some drivers were not hazard 

trained. He confirmed that the truck numbers were used to determine whether a driver had been trained, and that in the event a 

different driver were used on a truck which had a number indicating that another driver had been trained, he had no way of knowing that the new driver had in fact received training (Tr. 377). 

He conceded that while he had no control over which truck drivers 

the contractors were using, he was responsible for training the 

drivers that came to the site to dump at the coal pile (Tr. 378). 

He also confirmed that he had no reason to believe that Mr. Parks 

would be less than honest when he testified about a prior meeting 

when the trucks were discussed, but reiterated that he had no 

recollection of any such meeting (Tr. 378). 

Mr. Lyon stated that it was his understanding of MSHA's 

training regulations that truck drivers delivering coal to the 

plant would not have to receive annual or task training under the 

definition of ''miner" found in section 48.22(a) (1), but would 

have to be hazard trained under the definition found in section 

48.22(a) (2). He confirmed that Mr. Leppla was not involved in 

any hazard training prior to the time of the accident. He also 

confirmed his understanding that each contractor truck driver had 

a different truck number and he was not aware that there could be 

more than two drivers with the same number (Tr. 392). 

Mr. Lyon confirmed that for almost 2 years after the plant 

started in operation, until he was first informed by MSHA that he 

needed a training program, coal haulers were delivering coal to 

the plant but nothing was done to train them (Tr. 395). He 

confirmed that at the time of the tipping incident in February, 

1988, it did not occur to him to address the matter of truck 

clearance, but that after the accident of December 2, 1988, 

"everyone then said we had better separate the trucks" (Tr. 397). 

He confirmed that he abated the unwarrantable failure violations 

concerning the untrained drivers by reviewing the checklist with 

them, and discussing each of the items listed, so that they were 

aware of any problems they could encounter while at the site (Tr. 

398) • 

Richard T. Shuck, scalehouse operator, testified as to his 

duties, including controlling truck traffic at the dump site and 

conducting the hazard training of the drivers. He confirmed that 

coal is delivered to the plant 3 days a week and that this has 

Leen the normal practice during the 4 years that he has worked as 

the scalehouse operator. He estimated that there are 200 trucks 

a day delivering coal to the plant, and that there are 50 to 60 ·drivers engaged in this work. He described the procedures for 

the delivery and dumping of the coal, and stated that four trucks 

665 
are permitted to dump at the pile during each dumping cycle which 

he controls. He confirmed that these procedures were in effect 

at the time of the accident, and that he never received any 

complaints from the drivers about_these proced~res (Tr. 399-403). 

He stated that there are "peak hours" for dump~ng, and that there 

are many times when there are less than four trucks in the dumping area (Tr. 404). 

Mr. Shuck confirmed that he was involved in the training of 

the coal haulers, and that beginning in 1988 Mr. Lyon instructed 

him to hazard train all drivers coming to the dump site, and that 

he trained them by reviewing the hazard checklist items with the 

drivers. Mr • . Lyon also provided him with a spiral notebook which 

contained the list, and the drivers signed their names in the 

book after they were trained indicating that they understood the 

items on the list (Tr. 409, exhibit C-3). ·He confirmed that the 

names in the log book reflect the drivers who were trained during 

1988 up until December 2, 1988. He did ·not believe that checklist item #6 pertained to coal haulers or to the possibility of a 

truck tipping over at the dump site (Tr. 410). He confirmed that 

he reviewed every listed item with the drivers, emphasizing those 

which were underscored. · He confirmed that Mr. Lyon instructed 

him to train all drivers without exception (Tr. 411). 

Mr. Shuck explained that each driver who was trained signed 

the log book and wrote in his truck number, and he determined who 

had been trained and not trained by the truck number that is 

placed on their "scale ticket." It was his understanding that 

the truck number stayed with the driver, and that prior to the 

accident ·he was not aware that different truckers were using the 

same number (Tr. 413). He was not aware that he had missed some 

of the drivers and never told anyone that he could not keep up 

with the training of the drivers. He stated that he first 

learned that some of the drivers had not been trained after the 

accident occurred, and that prior to that time he had trained 

approximately 80 drivers {Tr. 414). He believed that Mr. Hina 

had been hazard trained "because when I went through the list the 

truck number was next to what I thought was his name. I didn't 

know any different until after the accident. I thought that was 

the man's name" {Tr. 414). He learned after the accident that 

Ross Brothers was switching drivers on a given truck number (Tr. 

415). He confirmed that he was aware of only one truck tipping 

over prior to the accident, and that it was his understanding 

that a broken scope pin caused it to tip over. He was not aware 

of any three truck dumping cycle which was implemented after this 

prior incident, and was aware of no recommendations in this 

regard by the safety committee (Tr. 416). 

Mr. Shuck stated that approximately half of the drivers who 

haul coal to the plant stay in their trucks because they can 

raise and lower the truck bed from their cabs, and that prior to 

666 
the accident he saw no MSHA inspectors inspecting the haulage 

trucks, but has seen them do so after the accideht (Tr. 416). 

on cross-examination, Mr. Shuck confirmed that he never 

asked the truck drivers about their knowledge of the safe operation of their vehicles, and that since he stayed in the scalehouse the trucks may have been inspected by MSHA prior to the 

accident without his knowledge (Tr. 418). He conceded that his 

job does not require him to attend union and company safety 

meetings, and that he would not have necessarily been present if 

any meetings were held to discuss limiting the number of trucks 

at the coal dumping site (Tr. 419) . He explained his procedures 

for controlling the truck traffic at the dumping site. He 

confirmed that the hazard training program was controlled by the 

number on the truck which was displayed on the passenger side 

front window where he could see it. He also indicated that the 

majority of the drivers would inform him of their .numbers over 

their C.B. radios, but they were still required to have a number 

in their window (Tr. 420-423). He would rely on his memory, 

visual recognition of the driver, or the log to determine which 

drivers were hazard trained. The drivers would call him on the 

C.B. radio if they did not have the training, and he would train 

them (Tr. 424). He conceded that if he saw· the truck number and 

the contractor had used another driver without removing the 

number, he would have no way of knowing that there was a new 

driver, and that it was possible for a driver to use a number 

even though he had not been trained {Tr. 424-425). Other than 

making inquiries of the drivers as to whether they had been 

trained, he had no method for safeguarding against new drivers 

using other numbers (Tr. 425). 

Mr. Shuck stated that there may be 30 or 40 trucks in line 

on any given day waiting to dump their loads, and whil.e they are 

waiting he makes inquiries over the C.B. radio as to whether or 

not ·the drivers have received training. He confirmed that he 

still follows this same procedure, and that some drivers have 

lied to him about their training (Tr. 437). He identified a 

photograph of Mr. Fortney's truck with a placard on the windshield with the number 555, and although he could not recall 

seeing the number on the day of the accident, he stated that 

Mr. Fortney would have given him the number over the C.B. radio 

(Tr. 435). In response to a statement that Mr. Fortney obviously 

got by without being hazard trained, Mr. Shuck responded "more 

than one, but I honestly believed that I had every one of them" 

(Tr. 435). Mr •. Shuck stated that driver Torn Clark, who had 

number 576 listed in the log, left it in his truck, and Mr. Hina 

drove the truck with Mr. Clark's number (Tr. 450). 

Inspector Grissett was recalled and he confirmed that he had 

previously observed the dumping operations at the coal pile with 

Mr. Lyon but saw nothing wrong or hazardous. He also stated that 

he never observed Mr. Lyon reprimand any driver or employee while 

667 
he was present (Tr. 453). Mr. Grissett further confirmed that 

the first time he dis.cussed the December 2, 1988, accident with 

Mr. Parks was within the past month, and he did not speak with 

him during ·his investigation or prior ·to issuing the citations 

and orders. He stated that he werit to the mine within the past 

month to speak with Mr. Parks and some of the safety committee 

members in p·reparation for the hearing in these proceedings (Tr. 

453-458). He confirmed that he is aware of no other citations 

ever being issued in his district citing an operator because coal 

trucks were too close together while dumping coal (Tr. 463). 

James F. Myer was called in rebuttal by MSHA, and he confirmed that he is an education and training specialist and not an 

inspector, and that he is not authorized to issue citations or 

orders. He identified exhibit MX-33 as part of Conesville's 

training program but denied that he drafted it (Tr. 498). He 

explained that MSHA drafted a generic training plan for operators ' to use, and that Conesville's plan is the same as the MSHA 

generic plan. He confirmed that the last two pages of the plan 

deal with hazard tr~ining, and that Conesville had the option of 

developing its own plan or using the one developed by MSHA (Tr. 

470}. He believed that item #6 on the hazard checklist which 

states "stay clear of all raised equipment (dozer blades, 

front-end loader buckets, etc}," applies to trucks dumping coal 

and that drivers are required to stay at a clear enough distance 

so that if a truck tips over it will not strike another truck or 

driver. In his view 11 the statement is broad and it has an 

et. cetera in there which you can include a lot of things" (Tr. 

478). When reminded that item #6 on the hazard checklist is not 

underscored or emphasized by Conesville because it does not 

believe that it applies to coal haulage drivers, Mr. Myers agreed 

that this may "possibly" be a difference of opinion (Tr. 479). 

On cross-examination, Mr. Myer confirmed that he provided 

Mr. Lyon with an MSHA generic training program which is the same 

as the one which was approved for Conesville. He also confirmed 

that the hazard training checklist, with the 20 listed items, · was 

part of the plan which he provided to Mr. Lyon, and when asked 

whether he suggested any modifications to the checklist, Mr. Myer 

stated "I told most people that this is what you have to do to 

comply with the regulations" (Tr. 480). ·He stated that 

Conesville had an approved hazard training program in effect at 

the time of the accident, and that the training citations were 

based on its failure to train certain drivers rather than any 

inadequate content of the training program (Tr. 489). He confirmed that conesville was recently commended by MSHA for 600 

work days without a lost time accident and that he signed the 

certificate and also indicated to Conesville at a recent training 

program that its preparation plant was one of the safest facilities in Ohio (Tr. 490). 

668 
Findings and Conclusions 

Docket No. LAKE 89-30-R 

section 104Ca) "S&S" Citation No. "2950068, December 5, 1988, 

30 C.F.R. § 77.1600(c) 

In this case, the inspector cited Conesville with an alleged 

violation of mandatory safety standard 30 C.F.R. § 77.1600(c), 

for failing to insure that adequate side clearances were provided 

between the trucks dumping coal at the cited raw coal dumping 

location. Section 77.1600(c), provides as follows: 

(c) where side or overhead clearances on any 

haulage road or at any loading or dumping location at 

the mine are hazardous to mine workers, such areas 

shall be conspicuously marked and warning devices shall 

be installed when necessary to insure the safety of the 

workers. 

The inspector's interpretation of section 77.1600(c), is 

that it required Conesville to "provide adequate and safe side 

clearance on raised equipment" (Tr. 185). He believed that 

Conesville was required to insure that adequate clearances are 

maintained between the trucks when they are dumping so that in 

the event one should tip over, it would not strike another truck 

(Tr. 218). He would require Conesville to increase the spacing 

between the trucks or to enlarge its dumping area so as to provide ample spacing between trucks (Tr. 218). He confirmed that 

he issued the violation because Conesville had no established 

dumping guidelines or procedures, and had no clearly defined 

designated dumping areas which would provide safe side clearances 

between the trucks (Tr. 185). MSHA has suggested that Conesville 

should have used designated dumping lanes marked off with traffic 

cones, or used a flagman or other employee to direct and control 

truck traffic at the dumping location. 

It seems clear to me from the inspector's testimony that he 

believed a dumping hazard would exist only when trucks dumping 

coal were close enough that one truck could possibly tip over and 

come in contact with another truck. In the inspector's view an 

"adequate" spacing distance between trucks to prevent such an "' 

occurrence would be "in the neighborhood of 40 to 50 feet" (Tr. 

212). Although the standard, on its face, only requires the 

posting of warnings where side or overhead clearances pose 

hazards to miners, the inspector indicated that the posting of a 

warning sign stating "warning, possible side clearance hazard if 

truck topples" would "not be adequate at all" to satisfy the 

requirements of the standard (Tr. 214). 

With respect to the physical aspects of the cited dumping 

location, the inspector confirmed that in the absence of trucks, 

669 
there were no inherent side or overhead clearance hazards presented· at the dumping facility (Tr. 221}. Although he indicated 

that exposed coal hoppers would always 'present a hazard, he 

confirmed that the citation was not based on the existence of 

hoppers. He confirmed that Conesville had hopper warning signs 

posted at the dumping pile, and that in the event any of the 

hoppers are exposed, Conesville takes appropriate action by 

flagging the area so that the truck drivers can see them (Tr. 

221). 

The inspecto~ stated that compared to the· other·mines which 

he insp~cts, which have much smaller dumping areas, Conesville's 

operation is unique in that large volumes of coal are dumped at 

the site, resulting in a high volume of truck traffic as compared : 

to the other smaller dumping operations (Tr. 464-465).· When 

psked what he would have done if.he had observed a truck parked 

15 feet from another truck which was.dumping, the inspector 

indicated that he would talk to the drivers, and then decide what 

action to take (Tr. 463} • 

. Although MSHA's standards for dumping facilities found in 

section 77.1608, contain several requirements to insure adequate 

protection at such locations, they do not include any information 

or requirements for maintaining any kind of spacing between 

trucks while they are dumping. The inspector confirmed that he 

discussed the citation with his supervisor, and after reviewing 

the standards applicable to dumping facilities, they found they 

did not apply and decided to cite section 77.1600, the general 

loading and haulage standards (Tr. 464-465). In this regard, 

when referring to the absence of any guidance in section 77.1600, 

the inspector commented 11 I do wish there were more regulations in 

that11 (Tr. 466). 

Conesville argues that the incongruity of MSHA's interpr~tation of the standard is underscored by the fact that the alleged 

hazard and violation is entirely dependent upon the location of 

the coal trucks utilizing the coal dumping area, and in essence 

presents a situation where there is a "moving" violation which 

occurs only when two coal trucks happen to be in such proximity 

(less than 40 or 50 feet apart according to the inspector) that 

one could come in contact with the other should it tip and fall 

during the dumping process. Under these circumstances, 

Conesville asserts that whether or not there is a violation of 

section 77.1600(c) could, and will, vary from day to day, hour to 

hour, or even minute to minute without any physical change in the 

dumping area. ~ 

Conesville argues that the plain language of section 

77.1600(c), only requires that the purportedly hazardous clearance be "conspicuously marked" and ·that warning devices be 

installed "when necessary," and does not require Conesville to 

provide adequate and safe side clearance on raised equipment. 

670 
Further, in light of the fact that the inspector confirmed that a 

warning sign or device at the dumping area would not be enough to .comply with section 77.1600(c), Conesville maintains that the 

inspector not only extended this standard to a factual scenario 

never envisioned by its drafters; "but has also imposed on 

conesville an affirmative duty that is clearly beyond any obligation imposed by the standard. 

· Conesville argues that the inspector's interpretation and 

application of section 77.1600(c), is an impermissible expansion 

of the plain meaning of the standard, and that the application of 

the standard to the facts presented fails to give fair warning 

that the allegedly violative conduct was prohibited. In support 

of its argument; Conesville cites Phelps Dodge Corp v. FMSHRC, 

681 F.2d 1189, 1192 (9th Cir. 1982); Ideal Cement Co., 11 FMSHRC 

1776, 1783-1784 (September 1989). Further, citing Diamond 

Roofing Co., Inc. v. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976); 

Ideal Cement Co., supra, 11 FMSHRC at 1783; and American Fed. of 

Govt. Employees v. FLRA, 593 F. Supp. 1203 n. 15 (D.D.C. 1984), 

Conesville further argues that a regulation which subjects a 

party to civil sanctions cannot be construed to mean what an 

agency intended but did not adequately express, and that a safety 

regulation must provide a reasonably clear standard of culpability to circumscribe the discretion of the enforcing authority and 

its ag.ents . 

With regard to the deference to be accorded an agency's 

interpretation of a mandatory safety standard, Conesville asserts 

that the court is required to give effect to the actual words and 

objective meaning of the regulations and is not bound by the 

agency's "hidden intentions and idiosyncratic interpretations," and cites the Commission's decision in Western Fuels-Utah, Inc., 

11 FMSHRC 278, 284 (March 1989), where the Commission stated as 

follows: 

While the Secretary's interpretation of her regulations 

are entitled to weight, that deference is not limitless 

and the Secretary's interpretations are not without 

bounds. Deference is not required when the Secretary's 

interpretations are plainly erroneous or inconsistent 

with the regulations. See Udall v. Tallman, 

380 U.S. 1, 16-17 (1965) (quoting Bowles v. Seminole 

Rock Co., 325 u.s. 410, 413-414 (1945)) •••• The Mine 

Act does not contemplate that the .Commission merely 

"rubber-stamp" the Secretary's interpretations without 

evaluating the reasonableness of those interpretations 

and their fidelity to the words of the regulations. 

MSHA takes the position that it has established that 

conesville's failure to maintain adequate truck side clearances 

at the raw coal pile created a hazardous condition and constitutes a violation of section 77.1600(c). In support of this 

671 
conclusion, MSHA argues that the evidence clearly establishes 

that ·despite the fact that a ·truck had tipped over at t~e dumping 

location 10 months .earlier, Conesville did not use designated ·dumping lanes, did not mark off the lanes with traffic cones, did 

not use a flagma~ or other employee to direct or control traffic, 

and did nothing to assure that trucks dumped with safe distances 

between them. 

The record reflects that the citation issued by Inspector 

Grissett was the first of its kind that he or any other inspector 

in his district had ever issued for a violation of section 

77.1600(c), for failure to insure adequate side clearance between 

trucks. The failure by an inspector to issue any citation during 

prior inspections does not estop him from issuing a citation 

during any subsequent inspections. See: Midwest Minerals Coal 

company, Inc., 3 FMSHRC 1417 (January 1981); Missouri Gravel co., ~ 3 FMSHRC 1465 (June 1981); Servtex Materials Company, 5 FMSHRC 

1359 (July 1983); Emery Mining Corporation, 5 FMSHRC 1400 (August 

1983), aff'd by the lOth Circuit court of Appeals, 3 MSHC 1585. 

However, an inspector's issuance of a citation, such as the one 

in this case, is subject to scrutiny to determine whether or not, 

as argued by Conesville, the inspector's interpretation and 

application of the standard was unreasonable and beyond the scope 

and intent of the standard, and whether or not it imposed an 

affirmative duty on Conesville beyond that required by the plain 

meaning of the standard. 

During a colloquy with counsel in the course of the hearing 

with respect to the regulatory or legislative intent of section 

77.1600(c), MSHA's counsel stated that he could find nothing in 

the legislative history to shed any light on the meaning and 

intent of the standard, and he confirmed that he was unaware of 

any relevant MSHA. policy guidelines concerning the interpretation 

and application of the standard (Tr. 216)• In response .to my 

inquiry as to whether or not truck tipping incide~ts of the kind 

which occurred in this case have been. the subject of any MSHA 

"accident fatal-grams," the inspector indicated that accidents 

have been reported in situations where a truck driver has 

traveled over a hill while dumping his load (Tr. 217) .· 

The inspector confirmed that he had previously issued a 

citation for a violation of section 77.1600(c), in a situation 

where he believed that there was a possibility· that a dump truck 

would come in contact with a high voltage line when it raised its 

·bed to dump its load (Tr. 222-223). In Valley camp Coal Co., 

7 FMSHRC 1197 (August 1985), I affirmed a violation of section 

77.1600(c) after finding that the operator failed to conspicuously mark or install a warning device at a haulage roadway 

location where the roadway was reduced from 25 feet to 14 feet. 

I concluded that the narrowing of the roadway by nearly 11 feet 

presented a clearance hazard and that a warning sign or device 

should have posted to alert a driver of the clearance hazard. In 

672 
situations of this kind where there is a clearly definable side 

or overhead clearance hazard, such as a narrowed roadway, an 

overhead high voltage line in close proximity to a tr~ck when its 

bed is raised, or an inherent truck over-travel hazard, such as 

an unprotected embankment or hill.at a dumping location, I do not 

find it unreasonable to require an operatpr to post a sign or 

warning device warning truck drivers of the hazard. Indeed, the 

standard on its face requires no less, but I take note of the 

fact that it only requires the posting of such warning devices. 

On the facts of this case, it seems clear to me that 

Conesville is not charged with a failure to post a warning sign 

or other device. As a matter of fact, the inspector clearly 

indicated that he would not accept a warning sign as compliance, 

even if it warned of the specific hazard of two trucks possibly 

colliding if one were to tip over while dumping. The inspector 

believed that the standard required Conesville to physically 

separate the trucks for a distance of 40 to 50 feet, to insure 

against any contact should one truck tip over, or. to provide 

designated dumping lanes to insure that the trucks are far enough 

apart in the event of a tipping incident of the kind which 

occurred in this case. The inspector also suggested that the 

enlargement of the dumping area would have provided ample room 

between the trucks while they were dumping, and in its posth~aring brief, MSHA suggested that Conesville should have provided a 

flagman or another employee to direct and control traffic when 

the trucks were dumping. Although I cannot conclude that all of 

these "suggestions" for compliance are unreasonable, the fact is 

that the plain wording of the standard does not . reguire them. In 

my view, if MSHA believes that something more than the posting of 

warning signs is required in situations where side or overhead 

clearances at any dumping location present· a hazard, it should 

promulgate a standard to clearly and directly address not only 

the perceived hazard, but also the duty imposed on the mine 

operator for compliance. · 

The record in this case reflects that Mr. Fortney's truck 

tipped over because of an imbalance caused by frozen coal which 

remained in the raised truck bed after the coal was dumped from 

the truck. Unlike other drivers who were aware of such a hazard 

and used anti-freeze or diesel fuel to line their truck beds, 

Mr. Fortney did not take such measures to guard against frozen 

coal in the truck bed of his truck. The record also reflects 

that the prior truck tipping incident occurred when the rear 

wheel sank into the mud and the truck tipped over. The incident 

was not reported because no one was injured. Some of the drivers 

who testified in this case alluded to the fact that they always _ 

seek out a level spot while dumping, particularly where the 

ground is wet and muddy, to avoid possible tipping accidents que 

to adverse ground conditions. · 

~73 
Although I find some merit in Conesville's argument that the 

standard is intended to apply in situations where the inherent 

physieal characteristics of a dumping location present a reasonable likelihood of side clearance hazards, and that in the 

absence of any trucks, the inspeceor found no inherent hazards 

with the dumping location, the fact remains that potential 

tipping hazards do exist in the event a truck should experience a 

mechanical breakdown, or a driver fails to insure against frozen 

coal in his raised truck bed, or happens to back over uneven or 

soft or wet ground while dumping his load. Under these circumstances, I believe the standard is broad enough to cover trucks 

which may be dumping coal at a dumping location, and which are 

close enough to place them in jeopardy of being struck by a 

tipping truck if adequate side clearances are not maintained. 

However, I do not believe that the standard, as promulgated, 

requires, or imposes a duty on a mine operator, to do anything 

other than post a warning sign or other warning device. on the facts of this case, I agree with Conesville's position that the 

inspector's interpretation and application of section 77.1600(c), 

which he believed required it to do more than what was required 

by the clear wording of the standard, was clearly beyond any 

reasonable interpretation and application of the standard and was 

erroneous and arbitrary. Under the circumstances, I conclude and 

find that MSHA has failed to establish a violation, and the 

contested citation IS VACATED. 

Docket No. LAKE 89-29-R 

Imminent Danger Order No. 2950067, December 5, 1988 

Inspector Grissett issued the imminent danger order after 

finding that Conesville "did not insure that adequate side clearance was provided at the raw coal pile dumping location." The 

order reflects that a coal truck leased to independent contractor 

Ross Brothers, Inc., overturned while dumping coal, and that the 

bed of the truck fell on the cab of another truck, also leased to 

Ross Brothers, Inc., and which was parked, causing fatal injuries 

to the driver in the parked truck. The inspector also noted that 

another truck had overturned at the same dumping location on 

February 26, 1988. 

Conesville argues that since it did not violate section 

77.1600(c), the imminent danger order based on the alleged violation is improper. In addition, Conesville asserts that prior to 

December 5, 1988, MSHA had never issued an imminent danger at the 

coal dumping area in question even though Inspector Grissett had 

previously inspected the facility, two times a year, including a 

regular inspection from September 20, 1988 to September 28, 1988, 

and confirmed that he never saw anything wrong or hazardous with 

the way the trucks were dumping. 

674 
Conesville concludes that any objective assessment of the 

alleged "condition" or "practice" r.recludes a determination that 

it could reasonably be expected to cause death or serious physical harm before it could be abated. Conesville maintains that 

the inspector believed an imminent· danger existed not because of 

any physical hazard with respect to the dumping area, but only 

because conesville did not require that trucks maintain a 

specific minimum ·side clearance between their respective 

vehicles. Conesville points out that the dumping area was an 

area 250 feet in width, that no more than four trucks were permitted to dump in that area at one time, and that on many 

occasions there were less than four trucks in the dumping area. 

In addition, one of the truck drivers, Norman Fortney, testified 

that the coal haulers typically tried to leave 40 to 50 feet 

between their trucks when dumping. Conesville also points out 

that although the mine safety committee had the right to declare 

the dumping area an "imminent danger," and to withdraw miners, it 

has never done so. 

Conesville further points out that prior to December 2, 

1988, there had been ~ incident in 4 years in which a truck 

tipped at the dumping area in question. This incident was due to · an unforeseen mechanical mal~unction of the vehicle, and it did 

not strike any other vehicle or result in any injuries. Further, 

the December 2, 1988, incident was due to frozen coal remaining 

in the bed of Mr. Fortney's trailer. However, this hazard was 

well known by coal haulers and precautions were generally taken 

to guard against such a hazard. Under the circumstances, 

Conesville asserts that the incident of pecember 2, 1988, was a 

freak accident precipitated by the fact that Mr. Fortney, unlike 

the other truck drivers who testified in these proceedings, did 

not use diesel fuel or anti-freeze for his trailer. 

Conesville argues that the inspector's perception of an 

imminent danger was not based on any inherently dangerous condition or practice at the dumping pile, but only on a perceived 

hazard ultimately relating to two most unlikely events-mechanical 

malfunction andjor frozen coal-which would cause a coal truck to 

tip. Given the freak nature of the accident, the physical 

characteristics of the dumping area, and the precautions taken by 

the coal haulers to prevent tipping, Conesville concludes that 

the inspector's opinion should not be taken at face value and it 

does not indicate a condition or practice which could reasonably 

be expected to cause death or serious physical harm before it 

could be abated. 

Citing Judge Morris' decision in Ideal Cement co., 11 FMSHRC 

1783 (September 1989), Conesville maintains that contrary to the 

inspector's interpretation of an imminent danger, the occurrence 

of a fatality is not synonymous with an imminent danger, and that 

675 
such an occurrence does not prove a violation qf the cited standard. In the Ideal Cement co. case, Judge Morris stated as 

follows: 

A fatality in a case, iri and of itself, does not 

by its mere occurrence prove a · violation of the reg~lation, Lone Star Industries, Inc., 3 FMSHRC 2526, 2529, 

2530 (1981); Texas Industries, Incorporated, 4 FMSHRC 

352 (1982). 

The law is clear that a safety regulation that 

imposes civil penalties for its violation must give an e~ployer fair warning of the conduct it prohibits or 

requires and must further provide a reasonably clear 

standard. of culpability to circumscribe the discretion 

of the enforcing authority and its agents. 

MSHA takes the position that during his accident investigation, the inspector determined that Conesville "had a very 

haphazard system for the delivery and dumping of coal." MSHA 

asserts that after a truck had its coal load weighed at the 

scalehouse, the driver would then try to find an open spot at the 

coal pile to dump his load, and Conesville never controlled how 

the drivers spaced their trucks while dumping coal. MSHA points 

out that Conesville had no designated traffic lanes or traffic 

cones marking out lanes, and had no flagman or any employee 

directing traffic to control the spacing of trucks prior to the 

accident. 

MSHA further points out that a prior tipping incident had 

occurred 10 months earlier on February 26, 1988, and that the 

pile was closed by a section 103(k) order issued by the inspector 

on December 2, 1988. In view of the fact that this order terminated when the accident investigation was completed on 

December 5, 1988, and Conesville could continue the condition or 

practice of dumping without any traffic controls in place, MSHA 

concludes that the inspector had no choice other than to'issue an 

imminent danger order. 

MSHA asserts that Conesville had permitted a dangerous 

practice to exist by allowing coal trucks to dump without taking 

any measures to assure adequate side clearance. The trucks were 

within 10 feet of each other, "a common practice," even though 

the extended trailer of one cab was 17 feet. Since Conesville 

showed no effort to correct the condition after the prior tipping 

incident, MSHA concludes that the inspector could not be reasonably assured that the condition would be abated before another 

serious accident occurred. Under the circumstanc'es, MSHA further 

concludes that the inspector provided a cogent and compelling 

rationale for issuing the order, and the facts presented support 

and meet the legal standard for the issuance of the order. 

676 

,_ 

..:•; 

·· .. · 
Section 3{j) of the Mine Act, 30 u.s.c. § 802{j), defines an· 

"imminent danger" as "the existence of any condition or practice 

in a coal or other mine which could reasonable be expected to 

cause death or serious physical harm before such condition or 

practice can be abated." · 

In Rochester & Pittsburgh Coal Company v. Secretary of 

·Labor, 11 FMSHRC 2159, 2163 (November 1989), the Commission 

adopted the position of the Fourth and Seventh Circuits in 

Eastern Associated Coal Corporation v. Interior Board of Mine 

Operation Appeals, 491 F.2d 277, 278 (4th Cir. 1974), and Old Ben 

Coal Corp. v. Interior Board of Mine Operation Appeals, 523 F.2d 

25·, 33 (7th Cir. · 1975), holding that "an imminent danger exists 

when the condition or practice observed could reasonably be 

expected to cause death or serious physical harm if normal mining 

operations were permitted to proceed in the area before the 

dangerous condition is eliminated." In the .Old Ben Corp. case, 

the court stated as follows at 523 F.2d at 31: 

Clearly, the inspector is in a precarious position. He is entrusted with the safety of miners' 

lives, and he must ensure that the statute is enforced 

for the protection of these lives. His total concern 

is the safety of life and limb • • • • We must support 

the findings and the decisions of the inspector unless 

there is evidence that he has abused his discretion or 

authority. (Emphasis added). 

The Commission stated as follows at 11 FMSHRC 2164: 

In addition, R&P's focus on the relative likelihood of Coy being injured while under the moving belt 

ignores the admonition in the Senate Committee Report 

for the Mine Act that an imminent danger is not to be 

defined "in terms of a percentage of probability that 

an accident will happen." s. Rep. No. 181, 95th Cong., 

1st Sess. 38 {1977), reprinted in Senate Subcommittee 

on Labor of the Committee on Human Resources, 

95th Cong., 2nd Sess, Legislative History of the 

Federal Mine Safety and Health Act of 1977 at 626 

{1978). Instead, the focus is on the "potential of the 

risk to cause serious physical harm at any time." Id. 

The Committee stated its intention to give inspectors 

"the necessary authority for the taking of action to 

remove miners from risk." Id. 

The fact that a section 103{k) order affectively closes the 

scene of an accident, or miners are withdrawn from the work site, 

does not affect the validity of an imminent danger order issued 

pursuant to section l07{a) of the Act. See: Itmann Coal 

Company, 1 FMSHRC 1573, 1577 {October 1979). Further, the validity of an imminent danger order is not dependent on whether or 

677 
not a violation of any mandatory s~fety standard has occurred. 

Conesville's arguments to the contrary are rejected. While it is 

true that the inspector believed that Conesville's "ongoing and 

continuing" violation of section 77~1600(c), created the imminent 

danger (Tr. 209), the thrust of MSHA's case is its contention 

that the absence of any established procedures instituted by 

Conesville to insure that truck drivers ·maintained safe distances 

between their trucks, coupled with the practice of drivers being 

permitted to dump their coal loads without any spacing controls 

to preclude one truck str~king another truck if it were to overturn or tip over, presented an imminently dangerous situation at 

conesville's dumping location. 

MSHA's accident report in this case reflects that the trucks 

involved in the accident were 10 feet apart when Mr. Fortney's 

truck tipped over on top of the cab of Mr. Hina's truck. 

Mr. Fortney's truck was 30 feet long, and the truck bed was 

raised for a vertical distance of 17 feet at the location of the 

bed hoist at the time it tipped over. Inspector Grissett testified that during his prior inspection visits to the dumping 

location he never observed any trucks as close as 10 to 15 feet 

to each other and that they were always spaced further apart. He 

also confirmed that he never previously observed anything wrong 

or hazardous in the manner in which the trucks were dumping, and 

that if he did, he would have issued a violation (Tr. 453, 462}. 

In my view, given the great number of trips made by truckers on 

any given day .over a protracted period of time to the dumping 

location in question, the fact that the inspector found no hazardous conditions present during two prior inspection visits does 

not preclude a finding of imminent danger based on an otherwise 

established practice of drivers dumping their coal loads precariously close ~o each other. 

Conesville's former safety director testified that prior to 

the accident there were no truck spacing controls in effect at 

the dumping location and eacp driver used his' own discretion in 

determining the "safe" distances for backing up and dumping their 

loads. Truck drivers St. Clair and Lent testified that they 

received no hazard training from Conesville, and were never 

instructed as to the methods and procedures to follow while 

dumping their loads at the dumping location in question. The 

driver of the truck which tipped over and struck Mr. Hina's truck 

(Norman Fortney),· testified that while there were occasions when 

he observed trucks spaced 40 to 50 feet apart while dumping, 

during a period of- approximately 200 deliveries to the conesville 

facility, the trucks were usually spaced 10 to 12 feet apart. 

Mr. Fortney confirmed that prior to the accident, there was no 

fixed truck spacing requirements while coal was being dumped, 

that he never received any dumping instructions from the scalemaster, and that the drivers used their own discretion in determining a safe location to dump. 

678 
Conesville's scalemaster Shuck, who had never operated a 

coal truck or backed one up to a dumping location, testified that 

during peak dumping hours, 50 to 60 trucks a day come to the site 

to dump coal, and although only f~ur trucks are allowed in the 

dumping area at any given time, and 30 or 40 were waiting in 

line, he did not continually monitor or visually observe the 

dumping process. -He confirmed that once the drivers left the 

scalehouse, they were "basically on their own" while backing up and finding a place to dump their loads (Tr. 422, 436). 

Although Conesville's witnesses believed that the prior 

truck tipping incident of February, 1988, was caused by a broken 

truck telescope pin, the driver of the truck, James Stull, testified that the truck tipped over when the right rear wheel sunk 

into the mud. He confirmed that the telescope broke after the 

truck tipped over, and that the truck fell for a distance of 

30 feet. Mr. Stull testified that while he was hazard trained 

after the accident occurred, he had not previously been 

instructed by Conesville as to how he should dump his coal loads. 

Although Conesville's assertions that mechanical truck 

malfunctions and frozen coal are "unlikely events" which would 

cause a truck to tip over may be true, the fact is that these are 

the types of hazards which are readily recognizable and known, 

and which have in fact occurred at Conesville's dumping location. Indeed, Inspector Grissett confirmed that even after abatement 

and the institution of the dumping lane system, there were two 

additional incidents of truck upsetting because of mechanical 

failures. Conesville's plant manager Miller testified that he 

was aware of another truck tipping incident after the accident in 

question. Given the fact that truck tipping incidents per se are 

not required to be reported to MSHA unless there is an injury, it 

is altogether possible that other such incidents have occurred 

and were not reported. As noted earlier, driver Stull confirmed 

that his truck tipped over because of adverse ground conditions 

and that he was "lucky" that another truck was not positioned to 

his right side when he tipped, and if it had "somebody would have 

got it" (Tr. 123). Mr. Stull testified that he had observed 

trucks closer than 10 to 12 feet of each other while dumping at 

the site, _and that when his truck tipped over, it covered a 

distance of approximately 30 feet (Tr. 123, 126). 

After careful review and consideration of all of the testimony and evidence adduced in this case, I conclude and find that 

MSHA has established by a preponderance of the evidence that 

Conesville had no effective means or controls in place to insure 

that safe and adequate truck spacing distances were maintained 

while the trucks were permitted to dump their loads at its dumping location. I also conclude and find that Copesville's lack of 

truck spacing controls, and permitting the drivers to dump at 

their own discretion, without regard to the potential hazards 

presented in the event a truck tipped over, constituted an unsafe 

679 

l 

; 
and hazardous practice which exposed the drivers to the potential 

risk or serious injury at any time in the normal course of their 

work of dumping coal. I further conclude and find that' in the 

absence of the imminent danger or~e~, this practice would have 

continued and could reasonably have resulted in further serious 

or fatal injuries. Under the circumstances, I believe that the 

inspector acted reasonably in issuing the order and that his 

decision in this regard was justified. Accordingly, the contested imminent .danger order IS AFFIRMED. 

Docket No. LAKE 89-31-R. Section 104(d) (1) "S&S11 Citation 

No. 2950069. December 5, 1988. 30 C.F.R. § 48.31{a). 

Docket No. LAKE 89-32-R. Section 104 Cdl (1) · "S&S" Order 

No. 2950070, December 5, 1988. 30 C.F.R. § 48.31{a). 

In these cases, Conesville is charged with a failure to 

provide hazard training for the two contract coal truck drivers 

who were involved in the accident of December 2, 1988, as well as 

four additional contract drivers. The inspector issued the 

violations after determining that there were no entries in the 

hazard training log book maintained by Conesville at the mine to 

confirm that the cited drivers had receiv~d hazard training as ·required by section 48.31(a). The record reflects that the 

accident victim (Dale Hina) was an employee of cox Farms, and had 

been contracted to Ross Brothers, Inc., to haul coal to the 

Conesville preparation plant, and that the other driver involved 

in the accident (Norman Fortney), was the owner of the truck 

which tipped over and that he had contracted his truck to Ross 

Brothers, Inc. to haul coal to the plant. The other four cited 

drivers were employees of Ross Brothers, Inc., and they too 

hauled coal to the plant. 

The cited training standard section 48.3l(a), provides as 

follows: 

Operators shall provide to those miners, as 

defined in. § 48.22 (a) (2) (Definition of miner) of this 

subpart B, a training program before such miners 

commence their work duties. This training program 

shall include the following instruction, which is 

applicable to the duties of such miners: 

(1) Hazard recognition and avoidance; 

(2) Emergency and evacuation procedures; 

(3) Health and safety standards, safety rules and 

safe working procedures; 

(4) Self-rescue and respiratory devices; and, 

680 
I 

(5) such other instruction as may be required by 

the District Manager based on circumstances 

and conditions at the mine. 

MSHA's section 48.31, policy-statements are found · in its 

Administrative Manual 30 C.F.R. Part 48-Training and Retraining 

of Miners, July 1, 1985 (Exhibit M.X.-31), _and they state as 

follows: 

The exposure to rn1n1ng hazards varies according to 

task. The greater the hazard exposure, the greater the 

need for training. 

Hazard training should be: 

1. Mine specific, so that persons are advised of 

the hazards they may encounter at a particular mine; 

and 

2 . Conducted each time a person enters a 

different mine. 

Section 48.31 requires operators to give hazard 

training to persons who are exposed to mine hazards. 

For example, a person driving a vehicle onto mine 

property to pick up a load of material who remains in 

the vehicle at all times would ordinarily not be 

exposed to hazards peculiar to the mine, and consequently would not be required to receive training under 

Part 48. 

* * * * * * 

Although the amount of required hazard training 

will vary, the following are examples of appropriate 

hazard training: 

Pickup and Delivery Drivers 

1. Persons corning onto mine sites to pick up 

mined materials or to deliver supplies and who remain 

inside their vehicles need not be given training. If 

they, leave their vehicles they must be given hazard 

training. 

* 

The definition for miners who are required to be trained 

under 30 C.F.R. § 48.31(a) is set forth in 30 c.F~R. 

§ 48.22(a) (2) which states as follows: 

Miner means, for purposes of § 48.31 (Hazard 

training) of this Subpart B, any person working in a 

surface mine or surface areas of an underground mine 

681 
excluding persons covered under paragraph (a)(1) 9f 

this section and Subpart c of this part and supervisory personnel subject to MSHA approved state certification 

requirements. This definition includes any delivery, 

office, or scientific worker; or occasional, short-term 

maintenance or service worker contracted by the operator, and any student engaged ·in academic projects 

involving his or her extended presence at the mine. 

(Emphasis Added). 

MSHA's section 48.22(a) (2), policy statements as found in 

the manual provides as follows: 

For purposes of hazard training (Section 48.31) a 

"miner" is a person who is exposed to mine hazards for 

a short time (five or less consecutive working days) 

and who will not be exposed to these hazards on a 

regular basis. Regular exposure is a recognizable 

pattern of exposure on a recurring basis. 

The required training should be commensurate with 

the expected exposure to hazards. 

Conesville argues that it is not disputed that at the time 

of the accident of December 2, 1988, it had an MSHA approved training program in effect and that the citation and order were 

premised solely on its failure to hazard train the cited drivers, 

and not on any deficiencies in its hazard training program. In 

support of this conclusion, Conesville cites the testimony of 

Inspector Grissett who confirmed that Conesville had an approved 

hazard training program, that he found no problem with the training checklist that was used to hazard train the truck drivers, 

and that Conesville simply "missed some of the drivers when it 

came to hazard training" (Tr. 281-282). 

Conesville asserts that in compliance with MSHA's instructions, it commenced the hazard training of all coal haulers in 

January, 1988, and as of December 2, 1988, had hazard trained 

more than 80 drivers. 

Conesville admits that the names of the cited drivers were 

not in the log book which reflected the drivers who had been 

hazard trained in 1988. However, it contends that the citation 

and order tor an alleged violation of section 48.31(a) were 

improper because (1) the cited individuals are not "miners" 

within the definition found in section 48.22(a) (2), (2) responsibility for the hazard training lies with Ross Brothers,. Inc., and 

(3) Conesville was "providing" hazard training as required by 

section 48.31(a). 

Conesville argues that the testimony of the inspector establishes that the cited coal haulers in question were regularly 

682 
exposed to mine hazards and accordingly fall within the definition of "miner" found in section 48.22(a) (1). Since they were 

exposed to mine hazards on a regular or recurring basis over an 

extended period of time, Conesville concludes that this distinguishes them from those individuais who are within the definition 

of "miner" as referenced in section 48.22(a)(2). Conesville 

suggests that MSHA's attempts to categorize these individuals 

with "office, scientific worker or occasional, short-term maintenance or service workers" pursuant to section 48.22(a) (2) is 

incongruous and inconsistent with its own policy statements which 

provides that for purposes of hazard training pursuant to section 

48.31, a "miner" is a person "who is exposed to mine hazards for 

a short time (five or less consecutive working days) and who will 

not be exposed to these hazards on a regular basis." 

Assuming that the cited individuals are found to be "miners" 

within the definition found in section 48.22(a) (2), Conesville 

argues that Ross Brothers, Inc., should be held accountable and 

should be sanctioned for any violation of section 48.31(a). 

Conesville points out that desp~te the fact that Conesville had 

no involvement in determining who delivers coal to its facility 

and had no contractual relationship with Ross Brothers, Inc., 

that coal is delivered to Conesville's preparation plant by a 

half dozen different vendors at the rate of approximately 200 

trucks a day, and that approximately 50 to 60 different drivers 

deliver coal each day, the inspector placed the onus on 

Conesville, rather than the trucking companies, to hazard train 

each and every trucker entering the mine premises. 

Conesville asserts that even though the inspector confirmed 

that Ross Brothers, Inc., is subject to MSHA jurisdiction while 

on mine property as an "independent contractor," he issued no 

citations or orders to Ross Brothers, Inc., despite their 

undisputed failure to provide hazard training to any of the cited 

coal haulers. Citing my decision in Harman Mining Corp., 

3 FMSHRC 45 (January 1981), review denied (February 1981), 

Conesville asserts that rather than issuing withdrawal orders to 

mine operators for failure to hazard train trucking company 

employees, the more effective sanction, and one which should 

enhance safety and further support the underlying purpose of 

section 4 8. 31 (a) , is to cite the trucking compa'ny itself that 

fails to provide hazard training to its employees or fails to 

take any affirmative steps to insure that its employees are in 

fact hazard trained. 

Conesville argues that the more appropriate sanction would 

be to cite Ross Brothers, Inc., for failure to hazard train its 

employees or insure that they received the hazard training being 

provided by Conesville. Conesville suggests that such a result 

is necessitated by the fact that it provided hazard training to 

coal haulers and had in fact hazard trained more than 80 coal 

haulers in 1988. Requiring the trucking company to hazard train 

683 
or insure the training of its employees would enhance and promote 

safety at Conesville·, particularly since 50 to 60 coal haulers 

deliver coal to that facility each day. Rather than holding 

·conesville strictly liable for any coal hauler that happens to 

avoid detection by Conesville (and thus avoids hazard training) 

an enforcement scheme directed at Ross Brothers, Inc., and other 

trucking companies delivering coal to Conesville more fairly addresses the issue from the standpoint of culpability and enh~nces the hazard training of ~11 "miners." 

Conesville further argues that assuming the cited coal 

haulers. are "miners" and that it is responsible for satisfying 

the hazard training obligations set forth in section 48.31(a), it 

nonetheless provided the training required by section 48.31(a). 

Conesville points out that it had an MSHA-approved training 

program in place, including a hazard training prog~am, and .that 

MSHA's concern was not with the content of its training program, 

but, rather, that several individuals had not been hazard · trained. Conesville further points out that even though MSHA had 

advised it that only those coal haulers exiting their vehicles 

need to be hazard trained, (Tr. 349-250), it undertook a program 

to train all coal haulers who entered its premises. 

Conesville asserts that the fact that several employees 

employed or contracted by Ross Brothers, Inc., eluded hazard 

training that was made available by Conesville, do~s not establish a violation of section 48.31(a), and tpat MSHA has failed to 

prove that it failed to provide such training. 

Finally, conesville takes issue with the inspector's contention that the failure to hazard train the accident. victim and to 

advise him to "stay clear of all raised equipment (dozer, blades, 

front-end loaders, etc.)" contributed to the accident. 

Conesville points out that the particular item from the hazard 

training checklist does not apv~se, and was likely never intended 

to advise, coal haulers to "stay clear" --j..g., a 40 to 50 foot 

clearance--of other coal trucks unloading coal. conesville 

points out that scalemaster Shuck, the individual providing the 

training to most of the coal haulers, testified that this 11 checklist" which was prc>Vided by MSHA, does not apply to coal haulers, 

and that each coal hauler who testified unequivocally indicated 

their prior awareness of a tipping hazard associated with coal 

trucks. 

Conesville also emphasizes the fact that the inspector 

testified at his deposition and at the hearing that coal haulers 

need only be trained as to hazards encountered while out of their 

trucks, and that there is no dispute that the accident victim was 

in the cab of his truck when it was struck by Mr. Fortney's 

trailer. Thus, Con1esville concludes that there was no obligation 

to hazard train Mr. Hina with respect to this "hazard," and that 

any allegation of a causal nexus between the accident and an 

6S4 · 
alleged failure to hazard train Mr. Hina defies reality and is 

nothing more than an after-the-fact attempt to find blame and 

justify a clearly improper citation and order. 

MSHA asserts that there is no dispute that the names of the . cited six truck drivers were not listed in Conesville's training 

log book and that they were not hazard trained. MSHA argues that 

the controlling definitional regulation for those "miners" 

required to be hazard trained is found in section 4S.22(a) (2), 

which sets forth a listing of workers to be hazard trained, 

including "delivery" workers. Since the six cited drivers were 

working at Conesville's surface facility by delivering coal to 

the raw coal pile, MSHA concludes that they met both the situs 

and the occupation requirements set forth in section 48.22(a)(2), 

and had to be hazard trained. 

MSHA argues that Conesville's reliance on MSHA's policy is 

specious. With regard to Conesville's reliance on the policy 

distinction of whether drivers get out of their trucks while on 

mine property, MSHA points out that Conesville itself drew no 

such distinction and that its safety director confirmed that when 

Conesville started to hazard train in January 1988, it decided to 

train all tr.uck drivers, regardless of whether they got out of 

their truck. 

MSHA argues that the policy guideline itself does not 

relieve Conesville of the duty to hazard train drivers regardless 

of whether they got out of their trucks, and that three drivers 

testified that they had to get out of their trucks while dumping 

at the raw coal pile. MSHA points out that the policy states 

that "a person driving a vehicle onto mine property to pick up a 

load of material who remains in the vehicle at all times would 

ordinarily not be exposed to hazards peculiar to the mine, and 

consequently would not be required to receive training under 

Part 48 . " However, in the instant case, MSHA asserts that the 

truck drivers were exposed to the peculiar hazards at the coal 

pile even if they remained in their vehicle, and that the 

peculiar hazard was that of ~onesville failing to maintain safe 

and adequate side clearance for the 'trucks dumping at the pile. 

Since Mr. Hina was fatally injured because of the failure to 

maintain an adequate side clearance between his truck and 

Mr. Fortney's truck, MSHA concludes that it did not matter 

whether Mr. Hina got out of his truck since he was subjected to 

the peculiar hazard of raised equipment, to wit, the trailer of 

Mr. Fortney's truck. · 

Finally, MSHA argues that MSHA's policy is not law and is 

not binding, and that the inspector's duty is to enforce the law, 

and not a guideline which is a general policy statement used for 

guidance, Brock v. Cathedral Bluffs Shale Oil Co., 4 MSHC 1033 at 

1035, 1036 (D.C. Cir. 1986). 

685 
The definition of "miner" found in section 48 . 22(a) (1), for 

purposes of the comprehensive training requirements of sections 

48 . 23 through 48.30, includes any person working in a surface 

mine who is regularly exposed to mine hazards. MSHA's policy 

manual guidelines with respect to pe.rsons who are regularly exposed to mine hazards adds the term "frequently" so that the 

definition reads "regularly or frequently exposed to mine 

hazards" (Policy Manual, pg. 13). The policy further states that 

"Regular exposure is a recognizable pattern of exposure on a 

recurring basis. Exposure to hazards for more than five consecutive days is frequent exposure" (Policy Manual, pg. 14). The 

policy further states that "If the individual • • • is infrequently or irregularly exposed to mine hazards, or is inconsequently ·exposed to mining hazards, then appropriate 48.11/48.31 

hazard training is required." 

Inspector Grissett testified that Mr. Hina and Mr. Fortney, 

the truckers who were involved in the accident, were exposed to 

mine hazards on a daily basis during each of their trips to the 

Conesville dumping location. He believed they were exposed to 

hazards from the coal hoppers at the dumping pile, and to hazards 

from other truck or bulldozer traffic at this location. He also 

believed that they were exposed to hazards regardless of whether 

they remained in their trucks while dumping coal. He confirmed 

that the other cited drivers who came to the facility to deliver 

their coal loads did so on a regular basis and were also 

regularly exposed to mine hazards. 

The record in this case, including MSHA's posthearing proposed findings of fact, reflects that Mr. Fortney began delivering coal to the Conesville dumping site in August 1988, and that 

between August of 1988 ~o December 2, 1988, Mr. Fortney had made 

approximately 200· coal deliveries, and that during this time 

frame it was necessary for him to get out of ' his truck to trip 

his tailgate release. Mr. Fortney testified that he del~vered 

coal to Conesville on an average of three loads a day, 3 days a 

week, and that Mr. Hina's delivery schedule was approximately the 

same as his (Tr. 39-40). 

The record also reflects that truck driver St. Clair had 

delivered coal to Conesville for 4-1/2-years prior to December 2, 

1988, made approx.imately 2, 000 deliveries, and found it necessary 

on occasion to get out of his truck to facilitate the dumping of 

coal. Truck driver Lent had delivered coal to the dumping 

location for approximately 2-months prior to December 2, 1988, 

and he too found it necessary to get out of his truck to facilitate the dumping of coal. A statement taken from truck driver 

Orville Parks during the accident investigation (joint exhibit1), reflects that he began delivering coal to Conesville in 

April, 1988, and that he made three trips a day, 3 days a week. 

686 
.conesville's scalehouse operator Shuck testified that coal 

is delivered to the dumping location in question 3 days a week, 

and that this has been a normal practice during the 4 years of 

his employment at Conesville. Mr. Shuck ·estimated that 200 

trucks a day deliver coal to the site, and that approximately 

50 to 60 contractor drivers are engaged in this work. MSHA's 

accident investigation report (exhibit M.X.-30), reflects that 

the preparation plant operated 3 days a week on Wednesday, 

Thursday, and Friday, and that each day approximately 7,000 tons 

of coal from other mines are transported to the facility for 

processing at the preparation plant. 

In support of the imminent danger order issued by Inspector 

Grissett, MSHA argued that by allowing coal trucks to dump coal 

without taking any measures to assure adequate side clearances 

between the trucks, Conesville permitted a dangerous practice to 

exist, exposed all of the drivers who were at the dumping location to hazards, and that the practice would have continued 

unabated had the inspector not issued the order. The inspector 

confirmed his belief that Conesville's "ongoing and continuing 

violation of section 77.1600{c), created the imminent danger" 

(Tr. 209). 

Notwithstanding all of this evidence, which I conclude and 

find clearly establishes ·regular and frequent exposure to 

potential mine hazards to the contract truck drivers who 

regularly, frequently, and routinely delivered coal to the 

Conesville facility approximately 3 times a day, 3 days a week, 

over a relatively long period of time, Inspector Grissett nonetheless concluded that these drivers were not "miners" pursuant 

to section 48.22(ar(1), because (1) they performed no contract 

work for a period of 5 days, (2) were not employed at the mine, 

and (3) "they were just contracted to deliver a product to the 

mine." 

The fact that the drivers in question were contract 

employees and w_ere not employed by Conesville is in my view of no 

consequence. They were in fact persons working in a surface mine 

while on mine property with coal trucks. Although it is true 

that the drivers may not have beeri present at the mine site more 

than 5 consecutive days, they were certainly there frequently and 

regularly,. and were frequently and regularly exposed to mine 

hazards. In Kelly Trucking Company, 11 FMSHRC 2441 (December 

1989), Judge Maurer affirmed a violation of training Section 

48.25(a), where an untrained employee of a trucking company had 

performed work at a mine site for 3 or 4 days. 

Inspector Grissett believed that independent trucking companies, such as Ross Brothers, Inc., who employed or contracted 

687 
the drivers working at the Conesville site, were not obliged to 

hazard train the drivers and that Conesville was responsible for 

this training since it is responsible for the safety of any 

person entering its mine. Inspec~or Grissett's reliance on the 

definition of a "miner" required to be hazard trained pur.suant to 

section 48 . 31, is based on his belief that the contract truck 

drivers in question were "delivery" workers, a category included 

within the definition of section 48.22(a) (2), for .miners who are 

required to be hazard trained. That section defines suqh a 

"miner" as "any person working in a surface mine," but it 

excludes persons covered under section 48.22(a)(1), and says 

nothing about any regular exposure to mine hazards. Thus, any 

person working in a surface mine who is regularly exposed to mine 

hazards would be required to receive the types of comprehensive 

training found in sections 48.25 through 48.28, rather than 

hazard training. MSHA takes the position that since the truck , drivers in question were delivering coal to the Conesville site, 

they met the situs and occupation requirements for "delivery 

workers" found in section 48.22(a)(2), and therefore had to be 

hazard trained. 

With regard to MSHA's reliance on the "delivery worker" 

included in the definition of a miner required to be hazard 

trained, I take note of the fact that MSHA's own explanatory 

policy guideline with respect to "pickup and delivery drivers" is 

directed at persons who come to the mine to pick up mined materials or deliver supplies. The evidence in this case does not 

reflect that any of the truckers in question were picking up any 

mined materials, nor were they delivering "supplies," as that 

word is commonly understood. In my view, if MSHA had intended 

coal haulers to be included in such a category it would have 

included the delivery of mined materials, as well as the pick up 

of mined materials, as part of its policy. 

I also take note of MSHA' s policy manual guidelines found in· Volume III, Part 45, July 1, 1988, concerning independent contractors. Pages· 9 and 10 of that policy includes a listing of 

the types of services or work performed by independent contractors at mine sites which would require them to have MSHA independent contractor ID numbers. One of the specific work 

activities (item #8, at page 10 of the policy), which is relevant 

to the work performed by the independent coal haulers who delivered coal to the Conesville plant, describes the work as follows: 

"Material handling within mine property; including haulage of 

coal, ore, refuse, etc., unless for the sole purpose of direct 

removal from or delivery to mine property. 11 Although the evidence in these proceedings clearly establishes that the sole 

purpose of the work performed by the Ross Brothers, Inc., 

truckers in question while on Conesville's property was the 

delivery of coal to its property, Ross Brothers, Inc., had an 

MSHA ID number, even though this policy would seemingly not 

require it to obtain one. Although the parties do not address 

688 
this particular policy, I believe it illustrates the contradictions found in MSHA's policy statements which are intended to 

provide guidance to its inspectors, as well as to mine operators. 

In a recent case concerning ·a violation of MSHA training 

standard 30 c.F.R. § 48.28, by an independent contractor where 

the definition of "miner" was in issue, MSHA relied on its policy 

manual and urged the judge to accept the policy definition of 

"maintenance" or "construction" work in support of its case. 

see: Secretary of Labor v. Frank Irey Jr .. Inc., 11 FMSHRC 990, 

993 (June 1989). In Dacko Corporation, 10 FMSHRC 1259 (September 

1988), ·a case involving an independent contractor charged with a 

violation of training section 48.25(a), for failing to train one 

of its .employees performing work at a surface preparation plant, 

the inspector relied on MSHA's manual policy guidelines with 

respect to the distinction between construction maintenance and 

repair work, and the "miner" definitions found in section 

48.22(a) (1). 

In Lancashire Coal Company v. Secretary of Labor, Docket 

Nos. PENN 89-147-R, etc., decided by me on February 27, 1990, 

MSHA relied on its Part 45 Independent Contractor Program Policy 

Manual in support of its interpretation of the language found in 

the cited mandatory standard in issue in those proceedings, and 

indeed relied on, and cited its policy in rendering certain 

advisory opinions with respect to the application and interpretation of the standard. In the instant proceedings, MSHA argues 

that its policy manual is simply a guideline which is not binding 

on the inspector. MSHA cannot have it both ways. I find it 

basically unfair to allow MSHA to rely on a policy guideline and 

urge the judge to accept it as binding on the parties, when it 

supports its position, and in another case where the policy may 

contradict MSHA's position, to take the position that it is not 

controlling and is simply extraneous and non-binding. 

The "policy question" case cited by MSHA, Secretary of Labor 

v. Cathedral Bluffs Shale Oil Company, 6 FMSHRC 1871 (August 

1984), reversed and remanded by the Court of Appeals for the 

District of Columbia Circuit, July 29, 1986, 4 MSHC 1033 (D.c. 

Cir. 1986), concerned MSHA's general policy statements concerning 

its discretionary enforcement authority with respect to whether 

it should cite a production operator or an independent contractor 

for violations of its mandatory health and standards. The court 

found that the Commission improperly regarded MSHA's general ~ 

. enforcement policy as a binding regulation which it was required 

to strictly observe. 

In the instant case, MSHA's policy statements with respect 

to the classes of people required to be hazard trained pursuant 

to section 48.31, do not concern the discretionary enforcement d~ties of an inspector. An inspector is obliged to issue a 

689 
- citation or order if he finds a vio.lation of any mandatory standard. However, when an inspector interprets or applies any 

standard, particularly when it r~sults ·in the issuance of a 

citation or an order, I believe h~ should be bound by the policy 

interpretation with respect to the meaning and application of the 

standard. MSHA's policy statements are clearly intended to 

provide notice to a mine operator with respect to what is 

required for compliance, as well as guidance for -an inspector to 

follow with regard to MSHA's intended meaning and application of 

the law. In King Knob Coal Company, 3 FMSHRC 1417 (June 1981), 

although the Commission rejected a mine operator's reliance on an 

explanation of the cited standard contained in an MSHA Interim 

Mine Inspection Manual, and held such manual commentary to be 

without legal effect, it noted as follows at 3 FMSHRC 1422-1423: 

We emphasize that our decision prospectively 

obviates future confusion surrounding the meaning and 

scope of § 77.410 . The decision will also alert the 

public to the need for using the Manual, and similar 

materials, with caution. We also express the hope that 

this opinion will -encourage MSHA to use its Manual in a 

responsible manner. In our view, such materials should 

contain, at the least, a precautiona~y statement warning users of their informality and non-binding nature. 

As this case unfortunately demonstrates, less than 

careful dissemination of such materials can cause 

enforcement and compliance confusion and, at worst, can 

diminish the protection of the Act and implementing 

regulations. 

Despite the Commission's admonition, MSHA's current policy 

manual contains no disclaimers or cautionary instructions, and 

simply states that it "is a compilation of the Agency's policies 

on the implementation and enforcement of the Federal Mine Safety 

and Health Act of 1977 and Title 30 Code of Federal Regulations 

and supporting programs." In any event, notwithstanding MSHA's 

policy statements, on the facts and evidence adduced in these 

proceedings, and after careful consideration of the arguments 

advanced by the parties, I conclude and find that the cited 

independent contractor truck drivers were not "delivery workers" 

within the definition of "mirier" found in section 48.22(a) (2), 

and that they were excluded from the class of persons required to 

be hazard trained pursuant to section 48.31(a) . 

I further conclude and find that the inclusion of "delivery 

workers" and the other occasional and short-term classes of 

workers found in section 48.22(a) (2), is intended to reach and 

cover persons who may ·visit a mine site on an irregular or casual 

basis to deliver parts, supplies, or other mine-related or 

unrelated goods. These ·individuals would have a limited and 

rather short-term exposure to mine hazards, and there would be a 

need to hazard train them so that they are aware of potential 

690 
hazard exposure while on mine property. The cited drivers were 

performing work at the mine site on a routine, regular, and 

frequently scheduled basis, 3 times a day, 3 days a week, week 

after week, over a rather protracted period of time. During this 

period of time, they were regularly and frequently exposed to 

mine hazards while in and out of their trucks at the Conesville 

dumping location which they visited during each of their trips. 

Accordingly, I conclude and find _that they fall within the 

definition of "miner" found in section 48.22(a)(1), and would be 

subject to the comprehensive training requirement found in sections 48.25 through 48.28. Under the circumstances, I further 

conclude and find that MSHA has failed to establish that 

conesville violated the hazard training requirements found in 

section 48.31(a), and the contested citation and order ARE 

VACATED. 

I take note of the fact that all of the cited truck drivers 

were either self-employed independent truckers, or directly 

employed by, or contracted to, the independent contractor Ross 

Brothers, Inc., who had an MSHA assigned I.D. No. V71. 

Independent contractors are "operators" subject to the Mine Act, 

as well as to ~SHA's training requirements found in Part 48, 

Title 30, Code of Federal Regulations. Section 104(g) of the Act 

provides withdrawal sanctions directly against an independent 

contractor whose employees are not properly trained. In the 

instant proceedings, Inspector Grissett confirmed that no citations or orders were issued to any of the independent trucking 

concerns or mine operators who employed the drivers. The inspector made no determination as to whether or not Ross Brothers, 

Inc., had trained its employee or contractor drivers, and he . confirmed that the contractor who employed the accident victim 

(Cox Farms), had not ·trained all of its drivers. 

In Harman Mining Corporation, 3 FMSHRC 45 · (January 1981), 

review denied, 3 FMSHRC (February 1981), I vacated a citation 

charging the mine operator with a violation of the training 

requirements of section 48.31, for failing to hazard train an 

employee of a railroad company who was performing work on mine 

property. In the course of that decision, I noted as follows at 

3 FMSHRC 61, 62: 

As I observed during the course of the hearing in this 

case, MSHA apparently has made no effort to enforce the 

training requirements provided for in the Act or in its 

mandatory regulatory training requirements directly 

against a .railroad until the unfortunate accident which 

occurred in this case. Once the accident occurred, 

immediate focus was placed on the lack of training and 

the fact that there was no confirmation of the fact 

691 
that the railroad employee who met his demise was not 

trained to stay clear of an oncoming trip of loaded 

coal cars. 

* * * * * * * 

Since an independent contractor is in fact a mine 

operator under the Act, and since MSHA has indicated it 

will treat railroads such as the Norfolk & Western on 

an equal basis with other operators, then it seems to 

me that MSHA .should hold all such railroads accountable 

on an equal footing with other mine operators and the 

railroad should be required to train its own employees 

or suffer the consequences of having its untrained 

personnel· barred from mine property through the sanction of a withdrawal order served directly on the 

railroad company. 

In Old Dominion Power Company, 6 FMSHRC 1886 (August 1984), 

the Commission affirmed a judge's decision finding an independent 

contractor liable for a violation which was issued following a 

fatal accident which occurred on the mine operator's property. 

The Commission stated as follows at 6 FMSHRC 1892: 

We emphasize that by citing Old Dominion for the 

violation committed by its employees, the Secretary has 

acted in accordance with the Commission's longstanding 

view that the purpose of the Act is best effectuated by 

citing the party with immediate control over the working conditions and the workers involved when an unsafe 

condition arising from those work activities is 

observed. Old Ben, supra; Phillips Uranium, suora. By 

citing the operator with direct control over the working conditions at issue, effective abatement often can 

be achieved most expeditiously. Id. Citation of Old 

Dominion is also consistent with the Secretary's conclusion, after rulemaking, that "the interest of miner 

safety and health will best be served by placing 

responsibility for compliance •• • upon each 

independent contractor." 45 Fed. Reg. 44494, 44495 

(July 1, 1980). 

In the instant case, the proximate cause of the truck 

tipping over was the failure by the truck driver to insure that 

his raised truck bed was free of frozen coal . Yet, Conesville's 

MSHA approved hazard training "checklist" makes absolutely no 

mention of this potential hazard, and contains no warnings to 

drivers alerting them to this potential hazard. Even though one 

driver previously tipped a truck over after backing into a muddy 

ground .area, the approved checklist contains no warnings concerning such adverse ground conditions at dumping locations. 

692 
Although there are nine items in the checklist which are underscored and intended to be emphasized to coal haulers on mine 

property, item #6 which states "stay clear of all raised equipment (Dozer Blades, Front-end Loaderbuckets, etc.)" is not underscored. Indeed·, scalemaster ShucK., the person responsible for 

training the drivers, and former safety director Lyon did not 

believe that this item even applied to truck drivers. MSHA's 

training specialist James Myer, the individual who provides 

Conesville with· a generic checklist identical to the one adopted 

as its checklist, believed that item #6 was broad enough to 

include truck drivers under the reference to "etc" found in 

item #6. When reminded that item #6 is not even underscored, and 

that Conesville did not believe it applied to truck drivers, 

Mr. Myer commented that "may be a difference of opinion." In 

short, rather than requiring and approving a hazard training 

checklist that is clear, concise, and directed to potential 

hazards faced by truck drivers while dumping coal, the parties 

have mutualiy adopted a checklist which makes little practical 

sense for the drivers which it is intended to cover. 

Truck driver Fortney, the individual involved in the accident, believed that checklist item #6 was limited to loaders and 

dozers and not to a truck backing up and dumping coal at the 

dumping location in question. Driver St. Clair believed that 

many of the items on the checklist did not apply to truckers who 

dumped at the site. Driver Stull, the individual who · overturned 

a truck during a prior incident when he backed into soft ground 

confirmed that he may have signed and received a copy of the 

checklist after the accident of December 2, 1988, and although he 

indicated that he keeps the checklist in his truck, he did not 

know what it covered and stated that he forgot or could not 

recall what the checklist covered. 

In. addition to the lack of mutual understanding of the 

hazard training checklist, there was also confusion and misunderstanding as to whether or not drivers who stayed inside their 

trucks were required to be hazard trained. Relying on MSHA's 

policy statements, Conesville believed that drivers who stay in 

their vehicles are not required to be hazard trained. In his 

prehearing deposition, as well as his testimony during the hearing, Inspector Grissett initially conceded that drivers who do 

not leave their trucks need not be hazard trained. He later 

recanted and stated that he was confused by MSHA's policy state~ 

ments. · Although he confirmed that he made no determination as to 

whether or not any of the cited untrained drivers were out of 

their trucks while at the Conesville site, he nonetheless concluded that they had to be hazard trained. 

In my view, requiring independent trucking companies who are 

in the business of regularly and frequently hauling coal for 

production operators to train their own drivers, and holding them 

accountable when they do not, would provide a more effective 

693 
means of avoiding the kinds of truck tipping incidents which are 

reflected by the record in these proceedings. The use of rather 

obscure hazard training checklists of the kind approved for and 

adopted for Conesville's dumping operations, rather than comprehensive training which would train drivers in such areas as· 

hazard recognition and avoidance, safe operating procedures while 

hauling and dumping qoal, review of accidents and causes of 

accidents, and accident prevention, does little to foster safety. 

Although I enjoy the benefit of hindsight, I nonetheless 

believe that if truck driver Fortney had been trained and 

required to ~se anti-freeze or some other substance to prevent 

coal. from freezing in his truck, and were trained to keep a safe 

distance from other. trucks while. dumping his coal load or raising 

his truck bed, the accident would not have occurred. While it is 

true that Conesville had control of the dumping location·, it is 

also true that there are no mandatory safety standards requiring 

it to insure safe and adequate truck spacing. As noted earlier, 

section 77.1600(c), only requires the posting of a sign or warning at dumping locations where "side or overhead" clearances are 

hazardous. 

ORDER 

On the basis of the foregoing findings and conclusions, IT 

IS ORDERED AS FOLLOWS: 

1. Docket No. LAKE 89-29-R. Section 107(a) 

Imminent danger Order No. 2950067, December 5, 1988, IS 

AFFIRMED, and Conesville's contest IS DENIED. 

2. Docket No . LAKE 89-30-R. Section 104(a)· "S&S" 

Citation No. 2950086, December 5, 1988, citing an 

alleged violation of 30 c.F.R. § 77.1600(c), IS 

VACATED, and MSHA's proposed civil penalty assessment 

(Docket No. LAKE 89-75) IS DENIED AND DISMISSED. 

3. Docket No . LAKE 89-31-R. Section 104(a) "S&S" 

Citation No. 2950069, December 5, 1988, citing an 

alleged violation of 30 C.F.R. § 48.31(a), IS VACATED, 

and MSHA's proposed civil penalty assessment (Docket 

No. LAKE 89-75) IS DENIED AND DISMISSED. 

4. Docket No. LAKE 89-32-R. Section 104(d)(l) 

"S&S" Order No. 2950070, December 5, 1988, citing an 

694 
-

alleged violation of 30 C.F.R. § 48.31(a), IS VACATED, 

and MSHA's proposed civil penalty assessment (Docket 

No. LAKE 89-75) IS DENIED AND DISMISSED. . 

~ Koutras 

4:~ nistrative Law Judge 

Distribution: 

Patrick M •. Zohn, Esq., Office of the Solicitor, u.s. Department 

of Labor, 881 Federal Office Building, 1240 East Ninth Street, 

Cleveland, OH 44199 (Certified Mail) 

David A. Laing, Esq., Porter, Wright, Morris & Arthur, 41 South 

High street, Columbus, OH 43215-3406 (Certified Mail) 

/fb 

695 
FEDERAL MINE SAFETY AND HEALTH BEVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER. CO 80204 

APR 6 1990 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

Docket No. WEST 89-148 

A.C. No. 05-03455-03565 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ENERGY FUELS COAL, INC., 

• Respondent 

: 

. . 

. . 

DECISION 

Southfield Mine 

Appearances: Margaret . A. Miller, Esq., Office of the Solicitor, 

u.s. Department of Labor, Denver, Colorado, 

For Petitioner; 

Phillip D. Barber, Esq., Welborn, Dufford, Brown & 

Tooley, Denver, Colorado, 

For Respondent. 

Before: Judge Lasher 

This proceeding was initiated by the ·filing of a Proposal 

for Penalty by Petitioner on April 21, 1989, pursuant to Sections 

105 and 110 of the Federal Mine Safety and Health Amendments Act 

of 1977, 30 U.S.C. Section 801 et seg. 

At the commencement of the hearing on September 14, 1989, 1/ 

a settlement was concluded covering the three Citations (T. 7-9T 

and such was approved from the bench (T. 8). Pursuant to the 

agreement reached Respondent is to pay MSHA's administratively 

assessed penalties in full and Petitioner agrees to the deletion 

of the "si~nificant and substantial" designation on two of the 

three Citations involved. My bench decision finding the parties' 

agreement reasonable and approving the settlement is here 

affirmed. 

1/ This matter was consolidated for hearing with two other 

penalty dockets, WEST 89-149 and WEST 89-217. 

696 
ORDER 

citations numbered 2931307 and 2931309 are MODIFIED to 

delete the "significant and s~bstantial" designations on the 

face thereof and are otherwise affirmed. Citation No. 29331310 

is affirmed. 

Respondent, if it has not previously done so, shall pay the 

secretary of Labor within . 30 days from the date of this Decision 

the total sum of $227 C$85 for Citation No. 2931307, $68 for 

citation No. 2931309 and $74 for Citation No. 2931310) as and 

for the civil penalties agreed on and here assessed. 

a , .. " / ., ... ~; . ..... ,., /A~.?~~~· 4'. cr:r-~· ~ ., /, . Michael A. Lasher, Jr. 

Administrative Law Judge 

Distribution: 

Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department· of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

CO 80294 (Certified Mail) · 

Phillip Barber, Esq., Welborn, Dufford, Brown & Tooley, 1700 

Broadway, Denver, CO 80203 (Certified Mail) 

/ot 

697 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO BQ204 ' 

APR 6 1990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDI~G 

Docket No. WEST 89-149 

A.C. No. 05-03771-03515 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ENERGY FUELS COAL, INC., 

Respondent 

Raton Creek Mine No. 1 

DECISION 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

u.s. Department of Labor, Denver, Colorado, 

for the Petitioner; 

Phillip D. Barber, Esq., Welborn, Dufford, Brown 

& Tooley, Denver, Colorado, 

for the Respondent. 

Before: Judge Lasher 

This proceeding was initiated by the filing of a Proposal 

for Penalty by Petitioner on April 24, 1989, pursuant to Sections 

105 and 110 of the Federal Mine Safety and Health Amendments Act 

of 1977, 30 u.s.c. Section 801 et seg. 

During the hearing on September 14, 1989, 1/ the parties 

consummated a settlement covering two 6£ the three Citations · 

.involved in this docket CT. 3, 4, 77). Pursuant to the agreement, Respondent is to pay Petitioner ~SHA's administratively 

assessed penalties in full for the two Citations, Nos. 2874080 

and 2931302, in the sums of $68 and $42, respectively, and 

Petitiorier agree~ to the deletion of the "significant and substantial" designations on the face of both. My bench decision 

approving the settlement . is here affirmed and the penalties 

agreed to by the parties are here assessed. 

Citation No. 2931301 remains for resolution~ 

1/ This matter was consolidated for hearing with two other 

penalty dockets, WEST 89-148. and WEST 89-217. 

698 
citation No. 2931301. 

This Section 104Ca> Citation, issued on December 9, 1988, 

by MSHA Inspecto! Earl w. Griffith, charges Respondent with a 

violation of 30 C.F.R § 75.316, to wit: 

"The supply haulage road from cross cut 

2 + 40 to cross cut 7 + 30, on the first 

east section MMU-001-9 was not maintained in a damp or compact condition. 

Visibility for the Wagner scoop operator 

was very poor. IV Methane and dust control in the outby areas para. 2-page 14. 

Plan dated 7/11/1988." 

30 C.F.R. § 75.316 provides: 

"A ventilation system and methane and dust 

control plan and revisions thereof suitable 

to the conditions and the mining system of 

the coal mine and approved by the Secretary 

shall be adopted by the operator and set out 

in printed form on or before June 28, 1970. 

The plan shall show the type and location of 

mechanical ventilation equipment in·stalled 

and operated in the mine, such additional 

or improved equipment as the Secretary may 

require, the quantity and velocity of air 

reaching each working face, and such other 

information as the Secretary may require. 

such plan shall be reviewed by the operator 

and the Secretary at least every 6 months." 

The provision (Section IV, Paragraph 2, page 14) of the 

ventilation System and Methane and Dust Control Plan (Ex. P-2, 

herein "Plan") charged to have been infracted states: 

"All normal haulage roads including pro:-

duction haulage on the section and supply 

haulage from the section to the portals 

(surface) shall be maintained in a damp 

or compact ·condition to maintain the 

average concentration of respirable dust 

in the intake airways at or below l.Omg/m3 

of air." 

699 
· Findings and Pertinent Testimony • . 

The purpose of the quoted provision is to control respirable dust and to keep it at a particular level (T. 47-48, 49-SO, 

55-56, 60-61). 

The haulage road cited was the main escapeway and the main 

intake air course (intake airway) for the mine (T. 50}. 

Although Paragraph 2 of the,Plan refers to a specific level 

at which the average concentration of respirable dust must be, 

maintained, the Inspector took no measurements to determine the 

average concentration of respirable dust (T. 30-31). 

Inspector Griffith gave this description of whab he ob- ~served when the Citation was issued and his reasons for not 

taking measurements: 

"Q. All right. Now will you tell us, please, what- you 

observed in . this area of the haulage road that you 

mentioned in your citation? 

A. The scoop was coming into the section with section 

supplies. And I was on the inby side along with 

Andrew Franklin, the section foreman. I was conducting a triple A inspection at this'time • . And as 

the scoop approached us, a dust cloud had proceeded 

the scoop, and this has been the main intake for 

the section. The air and the dust was moving ahead 

of the scoop. 

Q. Where were you in relation to the scoop when you first 

observed it on the road? 

A. I was approximately two hundred feet inby the scoop. 

Q. Does that mean that you saw the scoop coming toward you? 

A. Yes ma'am. 

Q. And what did you observe with regard . to the dust 

that you mentioned? 

A. Well, the dust -- this is a diesel scoop that has 

a tremendous exhaust on it. A lot of air is blown 

out and it was suspending the dust from the roadway, 

due to the roadway not being damp and compact. It 

was suspending the dust particles in the air. And 

due to the air current, it was blowing ahead of the 

operator. 

700 
Q. All right. Can you describe for us, please, how 

much dust you saw? 

A. It was -- I can 't say how much dust but it was 

enough dust that the visibility was impaired. My 

visibility from · seeing the scoop was impaired, and 

I'm sure that the operator would have had a hard 

time seeihg me. " CT. 16-17> 

X X X X X X X X X 

" Q. · Okay. Now. on page 14, paragraph 2, the portion 

of the vent plan that you just told us about , we 

talked about the supply haulage and the damp or 

compact conditions, there i s -- the last part of 

that paragraph I don't believe we've talked about , 

and that refers to maintaining the average concentration of respirable dust at or below 1 milligram. When you wrote your citation did you refer 

to that part of the vent plan? Did you refer to 

the 1 milligram portion of that paragraph? 

A.. No rna ' am. 

Q . Why not? 

A. I didn't cite that. First of all , I was on a 

triple A inspection. 

Q. Okay . 

A. And we do not carry estimates unless we're doing 

a BAB type of inspection , which is a respirable 

dust , then we would be carrying those instruments 

to measure that. · 

Q. Did you feel like you had to measure ·the concentration? 

A. No rna ' am. I wrote the citations on .the fact that 

the road wasn't kept damp or compacted and the 

dust that was airborne creating a visibility 

hazard as well as a dust hazard. 

Q. Okay. In your experience, Mr. Griffith, i s it 

possibl e to see 1 milligram of respirable dust? 

A. Not in the air, no ma ' am. 

701 

·: 
Q. Okay. What -- are you responsible for designating 

this citation as a significant and substantial 

violation? 

A. · Yes ma'am, I am. 

Q. All right • . What hazard, if any, did you see as 

being created by the condition of the haulage road 

on December 9th, 1988? 

A. There were two areas that I was looking at. 

There was the visibility of the scoop operator, 

his visibility was limited due to the dust being 

suspended and the amount of intake air that was 

coming into -- by the haul road. 

Q. N~w, with regard to the visibility, would you 

tell us, please, given the visibility as you 

observed it on that day, what could happen? 

A. Well, there were several things that could have 

happened. The operator could have accidentally 

run into a piece of equipment that was parked in 

a break through. He could also, if an individual 

had been on the haul way with his back turned to 

him, it is possible that he could have run into 

him. 

It also limits his visibility as far as rough 

and ribbed conditions, that he might not be able to 

see them clearly and pos·sibly cause him an accident 

in this way~" (T. 21-22> 

On cross-examination, the Inspector conceded that he was 

unable to testify that the average concentration of respirable 

dust on the date he iSsued the Citation was above or below the 

Plan requirement (T. 30-31) • . Thus, this critical aspeqt of his 

testimony appears as follows: 

"Q. Did you make any measurement, at any place in 

the intake haulage way, to determine whether 

the average concentration of respirable dust 

in the intake airway was at or below 1 milligram per meter cubed of air? 

A. No sir, I did not. 

702 
Q. You can't testify today whether the 

average concentration of respirable dust 

in the roadway on that date was above or 

below that concentration 

A. No sir, I cannot." (Tr. 30-31) 

Discussion. 

Paragraph <2> of the approved (T. 62, 69-70, 73) Ventilation 

plan is unambiguous. Roadways must be kept sufficiently damp or 

compacted to assure .that the intake airways contain no more than 

1.0 mg/m3 of respirable dust. 

The Petitioner interprets the language of paragraph (2) 

to mean that the stated standard of 1 mg/m3 of air is merely 

a statement of purpose as to why roads must be maintained damp 

and compact, so samples are not necessary to prove that a violation has occurred. This interpretation -- contrary to the 

plain language of ~aragraph (2) -- is rejected. One milligram of dust per m of air is ·the stated standard (T. 61, 62). 

Dampening and/or compacting the roads is the means to accomplish it. The Inspector conceded that without sampling he could 

not tell whether the roadway was sufficiently damp or compact 

(T. 30-31). 

It is a cardinal principle of statutory and regulatory 

interpretation that words that are technical in nature "are 

to be given their usual, naturat, plain, ordinary, and commonly 

understood mefining." Old Colony R. Co. v. Commissioner of 

Internal Revenue, 284 u.s. 552, 560 (1932). When the meaning . of the language of a statute or regulation must be interpreted 

according to its terms, the ordinary meaning of its.words 

prevails, and it cannot be expanded beyond its plain meaning. 

Old Colony R. Co. v. Commissioner of Internal Revenue, supra; ~ Emery Mining Corp. v. Secretary of Labor, 783 F.2d 155, 159 

(lOth Cir. 1986). 

Using the 1.0 mg/m3 standard for haulage roads is reasonable and logical (T. 48, 50) since this is the respirable dust 

standard for all intake airways. 30 C.F.R. § 70.100(b) states 

that: · 

Each operator shall continuously 

maintain the average concentration 

of respirable dust within 200 feet 

outby the working faces of each 

section in the intake airways at · or below 1.0 milligrams of respirable dust per cubic meter of air ••• 

703 
If the respirable dust in the haulage road is less than 1.0 

rng/m3, then the operator has satisfied the regulatory health 

standard. Conversely1 if the respirable dust concentration is 

greater than 1.0 rng/rn in the haulage ways, the operator has 

violated the standard and must further dampen or compact the 

roadway. 

As Respondent contends, without the 1.0 rngjm3 standard to 

guide the operator and inspectors in determining how "damp" or 

"compact" the. haulage roads must be, the Inspector could simply 

decide whether, in his opinion, a violation exists. The interpretation argued for by the Petitioner gives insufficient notice 

to the mine operator of the standard of conduct to which it is 

required to adhere and is contrary ·to the precise wording of the 

Plan. Respondent's interpretation follows the plain meaning of 

the standard and and does not lead to an absurd result (T. 48, 

50, 69-70, 73-74). 

Conclusion. 

The .language of Section IV, paragraph 2, page 14 of the 

Plan is clear and unambiguous. It requires that certain roads 

be maintained in a damp or compact condition to maintain the 

average concentration of respirable dust in the intake airways 

at or below 1.0 mg/m3 of air. If a visibility or other standard 

was intended, Petitioner could have provided it as a condition 

to approval of the plan. The Petitioner has failed to prove the 

charge that the concentration of respirable dust in the haulage 

road exceeded the standard in the Plan. 

ORDER 

Citations numbered 2874080 and 2931302 are modified to 

delete the "Significant and Substantial" designations thereon. 

Citation No. 2931301 is vacated. 

Respondent, if it has not previously done so, shall pay the 

Secretary of Labor the sum of $110."00 for the civil penalties 

above assessed. 

~7./~~.- c. ~ a · ~-t'-Pt!f 17-

M1chael A. Lasher, Jr. 

Administrative Law Judge 

704 
.. ·. 

Distribution: 

Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

co 80294 (Certified Mail) 

Phillip D. Barber, Esq., Welborn·, Dufford, Brown & Tooley, 1700 · Broadway, Denver, CO 80203 (Certified Mail) 

jot 

705 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280. 1244 SPEER .BOULEVARD 

DENVER. CO 80204 

APR 6 1990 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

Docket No. WEST 89-217 

A.C. No. 05-03771-03516 

. MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ENERGY FUELS .COAL, INC., 

Respondent 

. . 

. . 

. . 

. 

. 

. . 

Raton Creek Mine No. 1 

DECISION 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

u.s. Department of Labor, Denver, Colorado, 

for Petitioner; 

Phillip D. Barber, Esq., Welborn, Dufford, Brown & 

Tooley, Denver, Colorado, 

for Respondent. 

Before: Judge Lasher 

This proceeding was initiated by the filing of a Proposal 

for Penalty by Petitioner on June 12, 1989, pursuant to Sections 

105 and 110 of the Federal Mine Safety and Health Amendments Act 

of 1977, 30 u.s.c. Section 801 et seq. 

At the outset of hearing on September ~4, 1989 1/ the 

parties announced their settlement of one of the four Citations 

(T. 5, 6) and such was approved from the bench (T. 6). Pursuant 

to the agreement, Respondent is to pay MSHA's administratively 

a·ssessed penalty of $7 4· in full for Citation No. 2931286, and 

Petitioner agrees to the modification of paragraph 10 D on the 

face of the Citation to reflect that the "Number of Persons" 

affected by the violation is "1" rather than "7". My bench 

decision affirming this settlement is here affirmed. 

Citations numbered 2873899, 2873900 and 2931204 remain for 

resolution. 

1/ This matter was consolidated for hearing with two other 

penalty dockets, WEST 89-148 and WEST 89~149. 

706 
..

., . , 

I 

CITATIONS 2873899 and 2873900 

MSHA seeks penalties of but $20.00 each for these two 

citations. 

These two related non-"Significant and Substantial" 

citations were issued when Respondent turned off the main fan 

at the subject mine on three separate weekends when it was idle 

and miners were not working in the mine. Maintenance was not 

being performed on these occasions (T. 45) which occurred on a 

total of 6 days in February, 1989. During the pertinent period, 

Respondent had 15 miners who were working during the week on one 

shift daily (T. 55). After receiving the Citations, Respondent 

kept the mine fans running at all times and in the following 

month (March, 1989) applied to MSHA for a variance from the 

standard (T. 36, 46, 55). While the subject mine had methane 

at a detectable level (T. 46), a lethal or toxic level had never 

been detected (T. 45). On the three weekends in question no 

miners were working (T. 45) and all power to the mine was shut 

off (T. 42) · 

Turning first to Citation 2873900, it alleges a violation 

of 30 C.F.R. 75.316 which requires mine operators to adopt a 

"ventilation system and methane and dust control plan" approved 

by the Secretary of Labor. Section 75.316 thus provides: 

A ventilation system an methane 

and dust control plan and revisions 

thereof suitable to the conditions and 

the mining system of the coal mine 

and approved by the Secretary shall 

be adopted by the operator and set out 

in printed form on or before June 28, 

1970. The plan shall show the type 

and location of mechanical ventilation 

equipment installed and operated in 

the mine, such additional or improved 

equipment as the Secretary may require, the quantity and velocity of . 

air reaching each working face, and 

such other information as the Secretary may require. Such plan shall be 

reviewed by the operator and the Secretary at least every 6 months. 

The subject.plan is Exhibit B attached to Court Exhibit 2 in the 

"Exhibits" File. 

707 
Once adopted and approved, such plans are enforceable· as 

mandatory safety standards. Petitioner alleges that Respondent 

violated Paragraph II E (2) of the Plan, pertaining to "Main Fan 

Operation", which provides: 

All main fan installations shall meet the 

criteria found in 30 C.F.R. § 75.300-2 and 

30 C.F.R. § 75 . 300-3, unless a variance is 

granted by the (MSHA) bistrict Manager." 

(Emphasis supplied) 

The C·. F. R. Section referred to in the adopted and approved 

Plan, 30 C.F ~. § 75.300-3(a), (the preface to which, 30 C.F.R. 

§ 75.300-1, sets out the pertinent "criteria by which • •• 

District Managers will be guided in approving main fan installation and operation •• • '') provides: 

(a) All main fans should be kept in 

continuous operation except in the event of: 

(1) Scheduled maintenance or adjustments on idle days when all men other ·than 

those performing evaluation or adjustments 

are withdrawn from the mine and the mine 

power is cut off. 

·c 2) Uncontrolled stoppage or fan 

failure. 

(3) Other stoppages, when written 

permission is obtained from an authorized 

representative of the Secretary. (Emphasis supplied) 

The second Citation, #2873899, alleges a violation of 

30 C. F.R. § 75.300 2/ which requires the mechanical ventilation 

equipment to be inspected daily and for this inspection ·to be 

recorded daily. The safety director for Energy Fuels, Keith 

Hill, conceded that inspections were not performed when the 

main fan was not in operation (T. 46). 

11 30 C. F.R. § 75.300 provides: 

All coal mines shall be ventilated by mechanical 

ventilation equipment installed and operated in a 

manner approved by an authorized representative of · the Secretary and such equipment shall be examined 

daily and a record shall be kept of such examination. 

(Emphasis added) 

708 
r 

I 

Respondent contends, with respect to Citation No. 2873900, 

that the approved Plan does not require that the fans be kept 

in continuous operation. This of course directly contradicts the 

express language of 30 C.F.R. § 75.300-3(a) which provides that 

all "main fans should be kept in continuous operation" except for 

the three exceptions noted above. 

Without citing authority therefor, Respondent contends 

that use of the word r. should" ra.ther than "shall" in the quoted 

provision indicates the standard is "advisory" rather than 

"mandatory. n . 

There is, by virtue of a recent descent decision of the Mine 

Health and Safety Review Commission, Secretary of Labor v. Utah 

Power & Light Company, 11 FMSHRC 1926 (October, 1989) authority 

for the general proposition asserted by Respondent that use of 

the word "should" in a regulatory or statutory requirement normally indicates the non-mandatory nature of such a provision. 

Thus the Commission held: 

"The Secretary's argument is undercut also by the 

use of the term "should" in the wording of the criteria, 

a term that normally signals the non-mandatory nature 

of a regulation. See generally, Jim Walter Resources, 

Inc., 3 FMSH~C 2488 . (November 1981). The Commission 

has emphasized that when assessing the nature of a regulation the essential question is whether the standard 

as written imposes a mandatory duty upon operators. 

For instance, the Commission has found that even the 

inadvertent use of the word "should" instead of "shall" 

could be overcome as an indicia of a regulation's nonmandatory nature where the regulatory history of the 

standard made clear that the standard imposes a mandatory duty on mine operators. See Kennecott Minerals Co., 

Utah Copper Division, 7 FMSHRC-r328, 1332 (September 

1985). The standard at issue, however, was neither 

proposed as mandatory nor promulgated with a mandatory 

designation. Compare ~ennecott Minerals Co., supra. 

Rather, as the judge properly observed, the standard 

simply purports to set forth criteria by which MSHA's 

District Managers will be guided in approving escapeways, without imposing a commensurate mandatory duty 

on mine operators to se~k such approval. 10 FMSHRC 

at 23." 

It is concluded, however, that Respondent's argument lacks 

merit. To be first noted is that plans addressing particular 

safety areas in mines, such as ventilation and roof control 

plans, are, once approved, mandatory inasmuch as violations of 

709 
-

such plans constitute violations of the Mine Act. Once adopted 

by the mine operator and approved by MSHA, the provisions of 

ventilation plans are enforceable as mandatory safety standards 

Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 409 (D.c. · cir. 1976);. 

Utah Power and Light, supra. · 

In determining the nature of the standard here, if the 

question were confined to evaluating the language of the regulation (30 C.F.R. § 75.300-3) on1y~ the Respondent's position 

would be tenable, since such regulation uses the word "should" 

and there is little else to go on in this record as to interpretation of the regulation. However, the standard consists of 

two parts, the Plan itself and the regulation it incorporates. 

The regulation is simply a subject of reference contained in 

Paragraph II E (2) of the subject Plan, and that Paragraph, upon 

which the minds of the parties to the Plan met (Respondent in 

adopting it and MSHA in approving it) provides a clearly mandate 

that all main fan installations "shall" meet the criteria found 

in 30 C.F.R. § 300-3, unless a variance is granted by MSHA. 

Here the use of the mandatory word "shall" in the Plan clearly 

overrides the word "should" in the referenced material and 

I conclude Respondent formulated and agreed to a regulatory 

requirement - to keep the fans in continuous operation - thus 

making the standard mandatory in nature. Significantly, Respondent, following the requirements of this standard after 

the violation in question and seeking to invoke one of its 

exceptions, sought permission (a variance) from MSHA and was 

refused (T. 18, 19, 35). 

Respondent also contends that MSHA denial of such permission (a variance) for it to de-energize its fans during "off 

hours" was arbitrary. This argument is found irrelevant to the 

issues in this proceeding. To begin with, the two Citations in 

issue here were issued in February, 1989, and as Respondent 

points out it did not apply for permission (a variance) until 

after the Citations were issued, i.e. in March, 1989. Such 

permission was withheld. ~/ Further, under Paragraph II E (2) 

of the Plan the main fan installation shall meet the regulatory 

standard specified "unless a variance is granted ••• " No variance was ever granted. It is thus concluded that Respondent's 

allegation of after-the-violation arbitrariness by MSHA is not 

germane to the issue of whether the violation charged did occur. 

(T. 34-36, 37, 53). 

ll There is no evidence that Respondent, after the variance was 

denied, ever filed a petition for modification of the standard 

with the Department of Labor. In any event, there is, contrary 

to Respondent's assertion, substantial persuasive evidence in 

this record that MSHA's denial of a variance was based on strong 

safety rationale and not arbitrary. 

710 
The violat1on charged in Citation No. 2873900 is thus 

tound to have occurred. This violation was not designated by 

the issuing Inspector as being "Significant and Substantial", 

presumably since there was no indication that the haza.rd 

contemplated by the infraction was reasonably likely to have 

occurred. Nevertheless, the hazard posed by the violation 

could have resulted in serious consequences. Thus,· William 

Knepp, an MSHA ve~tilation exper~, testified: 

Q. And during certain idle days when the mine is not 

producing, is there a need to have ventilation? 

A. I think that the danger would be on the start-up, 

and dependent on how long the fan was down. Without the ventilation you could have buildup of 

methane or black damp " 

CT. 21) 

XXX XXX XXX 

A. I think the real danger comes when mine 

examiners have to reenter the mines after the 

fans are restarted." 

(T. 24) 

Mr. Knepp also described the mine as being "low gassy" 

(T. 28}; re-emphasized the concern for the welfare of the preshift examiner whose job, he said, is made "much more difficult 

and more hazardous after a fan has been shut off for several 

days" (T. 25); and described the risk involved to the examiner of 

"running into bad air, or hig~ methane concentrations" (T. 32). 

Having determined that a violation occurred by Respondent's 

failure to keep the .fans running continuously (including over 

weekends) without a variance we now turn to Citation No. 2873899 

which alleges a violation for Respondent's failure to examine 

such equipment on ·the weekends the fans were turned off. 

Respondentadmits (Brief, page 1) that the "record book 

does not contain entries for examinations on the indicated days 

for the reason that the fan was properly idle and daily examination Of idle fans was not required by § 75.300." Respondent A 

contends "that William Knepp, the MSHA ventilation expert, 

testified "that when a fan is not running the requirement of 

30 C.F.R. § 75 . 300-4(a) for daily examination of main fans does 

not apply (Brief, pgs. 1 and 2). In support of this representation, Respondent relies on a partial excerpt of Mr. Knepp's 

testimony (T. 22, lines 12-17), to wit: 

"We just assume.that the mandatory standard is 

no long~r applicable if the fan is not running." 

711 
Taking this portion of testimony out of context somewhat 

misrepresentative since it fails to reveal that it occurred 

during a line of questions based on the hypothetical situation 

where a "variance" had been granted • . Seen in toto, the testimony 

in this connection (adduced on cross-examination by Respondent's 

counsel), appears as follows: 

Q. Does the -- in the instances where you have 

granted variances and allowed the mine fans 

to be shut off, do you also require that the 

man power to the mine be shut off? 

A. Yes. 

Q. And in those instances, do you require that a 

daily examination of the ventilation equipment 

occur? 

A. No. 

Q. So when the mine fans are permissable shut off, 

you don't require an ~amination on a daily basis 

of those fans? 

A. Correct. That issue really isn't addressed. 

I guess we do it by -- we've never had a problem 

with it. We just assume that that mandatory 

standard is no longer applicable if the fan is 

not running." 

(T. 22) (emphasis supplied) 

I thus find no merit in Respondent's argument. It having 

been conceded that the daily examinations required by the regulation cited, 30 C.F.R. § 75.300, were not conducted or recorded 

and it further appearing that the fans were required to have bee:i 

kept running on the days in question since no variance had been 

granted, the violation is found to have occurred as charged. 

CITATION NO. 2931204 

This Section 104(a) "Significant and Substantial" Citation 

was issued on January 25, 1989, by MSHA Inspector Melvin H. 

Shively, and alleges a violation of 30 C.F.R. § 75.316, to wit: 

The operator was not complying with approved 

Ventilation Methane, Dust. Control Plan dated 

July 8, 1988, in that page 2, Item F Ventilat~ng 

controls shall be of incombustible material. 

At cross cut 13 of the primary intake, Electrical installation was being vented to the return 

through 12" inch P.U.C. Plastic pipe, through 

permanent stopping." 

712 
Item F, Page 2 of the ventilation plan (herein Plan) which 

MSHA alleges was violated, provides: 

"All ventilating controls such as. stoppings, 

overcasts, undercasts, doors, regulators, etc. 

shall be of substantial and incombustible 

construction to all possible and practical 

extent, installed in ~ workmanlike manner and 

maintained in the condition to serve the purpose for which they were intended." 

Respondent used a PVC pipe 12 inches in diameter at _ross 

cut No. 3 of the primary intake of the Raton Creek Mine to vent 

the electrical ins·tallation there through a permanent stopping 

into the return air course. (T. 59-62). 

The PVC pipe in question was plastic and not made of an 

incombustible material (Stipulation No. 7, Court Ex. 1, T. 63, 

64, 89, 108). 

Respondent contends that the PVC pipe in question is not 

a "ventilating control" within the meaning of Item F, page 2 of 

the Plan since it does not fit generically into the types of 

such controls actually enumerated in Item F as examples of such 

controls since such examples are of "major" controls. Respondent 

also contends that the "Secretary11 failed to prove that the PVC 

pipe was not "incombustible". 4/ · Finally, Respondent alleges that 

since PVC pipe was in extensive use in underground mines when 

Item F of the Plan was approved by MSHA, that the Secretary 

should promulgate a rule under prescribed rulemaking procedures 

prohibiting use of PVC pipe rather than amending the regulatory 

standards by issuing a 104(a) citation~/ 

!/ This defense is rejected since the parties stipulated that 

the PVC pipe in question was not made of an incombustible 

material. Further, the record independently establishes combustibility (T. 70, 83, 84). 

5/ This defense is rejected since it is concluded on the basis 

of this record that PVC pipe is combustible and that such is 

prohibited by the Plan for use in construction of ventilating 

controls. The salient question is whether the PVC pipe in 

question is such a control or part of such control. 

713 

H 

' 
,. 

According to MSHA Inspector Melvin H. Shively, the electrical installation was located in the primary air course "just 

outby"·. the ventilation control where the 12-inch plastic PVC pipe 

was located (T. 59). The PVC pipe ran approximately 65 feet from 

the permanent electrical installation ~o the return air course of 

the mine (T. 62, 83) and ran through the middle of the permanent 

stopping (T. 61, 62). 

The purpose of the PVC pipe in question was to meet the 

mine operator's obligation (T. 59, 64, 65) under the mandatory 

standards (T. 109) to ventilate the permanent electrical installation directly (T. 111) to the return air course (should 

a fire in ·the electrical installation create smoke) by directing 

smoke to the return and thus avoid contamination of other areas 

of the mine (T. 59-60, 80, 83, 108-109). 

The PV.C pipe is a "very large piece of plastic pipe" 

established "inside or along with the other construction" of 

the stopping (ventilation control). According to the Inspector, 

it is established "right in the center of the stopping" and 

"is used to direct the currents that pass over" the electrical 

installation through to the air ·return. (T. 60, 61, 85, 96·). 

The PVC pipe is not part of the "construction" or "integrity" 

of the stopping CT. 73, 74, 77, 78, 103). Nevertheless, should 

the PVC pipe burn or melt, the hole in the st.opping would become 

enlarged, and "all the smoke that is built up" and "the fire" 

would enter to the other side of the stopping and contaminate 

two airways CT. 66-67, 103, 106). Thus, although not part of 

the actual "construction" of the stopping (T. 106) it appears 

that the PVC pipe once installed becomes part of the stopping 

( T. 61-6 3 ) , 6 6 , 7 4 , · 9 3 , 10 6 ) • . 

Inspector Shively explained the stopping/pipe mechanism 

in the following manner: 

"Q. .r.nd your citation refers to this plastic pipe through 

permanent stopping. · Please explain what you m.ean by 

that. 

A. A permanent ventilation control is a device that is 

built out of incombustible material, blocks and such. 

It will be there permanently in that mine, or in that 

airway. And what it is, what it is set up for is to 

direct the currents through to the working section, 

and -- that is it, just to direct the air currents to 

the working section. 

714 
Q. Since I have never seen this particular mine, will 

you describe what a stopping looks like, and how that 

plastic pipe is related to it? 

A. You have an opening between two entries, so now you 

have to establish some type of device to prevent that 

air flow from being mixed between the two. So you 

build a device with cinder blocks, concrete blocks 

out of noncombustible m~terial. 

XXX XXX XXX 

Q. And does this plastic pipe go right through this 

stopping through the wall? 

A. It was constructed right in the middle of it. 

Q. Okay . So there is a hole in the stopping for the 

pipe to go through. 

A. The stopping was built around the pipe. 

(T. 61- 62) 

The subject PVC pipe was, when cited, an "overcast", 

again according to William P •. Knepp, whose actual title was 

MSHA supervisory mining engineer in charge of ventilation (at 

pertinent times) and who was Staff Assistant to the District 

Manager at the time of hearing (T. 83, 86, 92). "OVercast" 

is defined as "an enclosed airway to permit one air current to 

pass over another one .without interruption. They should be 

built of incombustible material such as concrete, tile, stone, 

or brick. " A Dictionary of Mining , Mineral and Related Terms·, 

(U.S . Department of the Interior, 1968). 

On this subject, Mr. Knepp convincingly testified as 

follows: 

"Yes, it definitely is. It is used as an overcast in 

this particular case. It overcasts the belt entry and takes 

the intake air that is passing over the electrical installation, 

overcasts the air in the bell entry into the return. So it is 

used as an overcast in this particular case. '' (T . 83) . 

XXX XXX XXX 

"They were using it as an overcast, in this case. To take 

the air that passed over the electrical installation to comply 

715 

,. 
with the law. Which, I assume, they were in compliance with that 

part of the standard. They were taKing the air and ventilating 

it di~ectly into the return air current. So the PVC pipe acted 

as an overcast it would direct the air directly into the air 

current, or into the return air cours~." (T. 86). 

Respondent's Safety Director, Keith Hill, conceded that 

there was no other ventilation control in place which would take 

air away from the electrical installation other than the ~VC pipe 

(T. · 109-110) and that t~e purpos~ of the PVC pipe was to "direct" 

the air . (T. 106-110). 

It is. also clearly established in the record that metal pipe 

was a·reasonable and viable alternative to the use of PVC pipe in 

the ventilation application under discussion CT. 81, 98~99, ~07, 

113-114, 116). 

The hazard posed by the combustible PVC pipe was credibly 

described by the MSHA witness as follows: 

"To begin with, if the condition exists, or 

happens, I .should say if the condition happens, now 

we have got to direct the a ·ir currents out of the 

mine, and not to the area of the mine that the people 

are working in. And that is the intent there I think, 

that if the plastic pipe, if a condition did come 

about, that the plastic pipe would melt away or burn 

away, now we've contaminated possibly the primary 

escapeway, also the secondary escapeway for that mine, 

and the basic location of this electrical installation, being that it is only three breaks inby the 

main portal of· the mine, we could have a ~moked mine 

pretty bad." CT. 65) 

It is concluded from the preponderance of the reliable 

evidence that if a fire · occurred in the electrical installation, 

the PVC pipe would meit down and burn which in turn would open up 

a "hole through that stopping" which would result in the contamination of two escapeways (T. 65-67, 84, 85, 93). Such occurrence could cause fatalities to miners (T. 67-68, 86, 89, 95) 

from smoke inhalation. 

In October or November, 1987, Inspector Shively discussed 

the subject of the combustibility of the PVC pipe with Mr. Keith 

Hill, indicating that all "areas that were being ventilated with 

plastic pipe ••• needed to be changed and metal pipe put in 

place" (T. 70-71). 

716 
ultimate Findings and Conclusions. 

The approved ventilation control plan refers to and requires "incombustible construction" of overcasts and stoppings 

"to all possible and practical extent" (T. 63). 

The combustible plastic PVC in question was a control 

(overcast) used ~or ventilating ~he mine and, as such, is a 

ventilating control within the reasonable meaning of Item F, 

at page 2 of the approved ventilation Plan. Further, the 

pipe was an integral part of the stopping in the area and such 

stopping is a ventilation control within the reasonable meaning 

of Item F, at page 2 of the Plan which requires again, that 

such controls be "of substantial and incombustible construction 

to all possible and practical extent." 

The purpose of the PVC pipe was to meet Respondent's 

obligation to ventilate the permanent electrical installation 

to the r~turn ai~ course should a fire in the electrical installation create smoke by directing the smoke to the return - thus avoiding contamination of other areas of_ the mine. 

Use of the PVC pipe, since it was not incombustible and it 

was a ventilation control, constituted a violation of the Plan 

and a resultant violation of 30 C.F.R. § 75. 316. 6/ 

Penalty Assessment 

General 

The parties stipulated (Ct. Ex. 1; Ex. P-1; T.4) that 

Respondent is engaged in mining and selling of bituminous coal 

and is a large mine operator; that Respondent, with a history 

of 6 violations, proceeded in good faith to promptly abate the 

violations involved, and that the proposed penalties would not 

affect Respondent's ability to continue in business. 

~/ As previously noted, once such a plan is approved and. adopted its provisions are enforceable at the mine as mandatory s~andards. Zeigler Coal Company v. Kleppe, 536 F.2d 398 (D.C. 

Clr., 19 76) • 

717 
A. Citation Nos. 2873899 and 2873900 

As to both violations involved, it is found that Respondent's explanation for its failure to adhere to the standards 

was extremely thin and that as · a minimum the violations occurred as a result of its negligence. It is also concluded 

with respect to Citation No. 2873900, that in view of the danger 

created by it, it was quite serious in nature. Considering the 

other criteria involved, a penalty of $50.00 is ·assessed for 

this violation. The violation described in Citation No. 2873899 

is incidental to that in Citation No. 2373900 and involves nonfeasance in -discharging an inspection and a record-keeping 

obligation. It is· not found to be serious and the $20 penalty 

sought by Petitioner is found appropriate and here assessed. 

g_ Citation No. 2931204 

Respondent established that it did not install the PVC 

pipe but that such was in place in 1982 when it "bought" the 

m1ne (T. 108); that it had not received any prior directive or 

instructions from MSHA to discontinue use of the PVC pipe 

(T . 92, 96, 104-105); and that PVC pipe has in the past been 

in common use throughout the mine (T. 104-106). 7/ Based on 

these findings, and the generality of the inspector's testimony 

concerning prior notification to the mine operator, it is concluded that negligence was not involved in this violation. The 

violation is found to be moderately serious in view of the . fact 

that there was the potential for making escapeways unsafe for 

travel and resultant fatalities. In consideration of all the 

above assessment factors a penalty of $50.00 is found appropriate and here assessed. 

. . 21 Although Respondent contended that it once (in 1985-1986) had 

MSHA "permission" to use PVC pipe for ventilation purposes due to 

the fact that such was shown in a drawing attached to a ventilation plan, it appeared that such drawing was not incorporated in 

the Respondent's current approved ventilation Plan (T. 104-112). 

718 
ORDER 

Citation No. 2931286 is MODIFIED to amend Paragraph 10 D 

thereof to reflect that the "Number of Persons" affected by the 

violation is "1" rather than "7", and is otherwise AFFIRMED. 

Citations numbered 2873899, . 2873900 and 2931204 are 

AFFIRMED. 

Respondent, if it has not previously done so, shall pay . 

the Secretary of Labor within 30 days from the date of issuance 

of this decision the sum of $ 194 representing the total civil 

penalties above assessed. 

Distribution: 

,);_b4l/ If tSt<k < Jz _ Michael A. Lasher, Jr. 

Administrative Law Judge 

Margaret A. Miller, Esq., Office of the Solicitor, u.s. Depart-· 

ment of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

CO 80294 (Certified Mail) 

Phillip D. Barber, Esq., Welborn, Dufford, Brown & Tooley, 

1700 Broadw~y, Denver, CO 80203 (Certified Mail) 

/ot 

719 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFF " ICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, l Oth f LOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINI.\. 22041 APR 9 1990 

ROBERT SIMPSON, 

Complainant 

-DISCRIMINATION PROCEEDING 

v. 

KENTA ENERGY, INC., 

·and 

ROY DAN JACKSON , 

Respondents 

Docket No. KENT 83-155-D 

DECISION ON REMAND 

Before: Judge Broderick 

On September 29 , 1989, the Commission remanded the case 

to me to determine whether attorney' s fees are properly . 

awardable under the Act for legal services on appeal, and, 

if so , to determine the amount of such fees; and to determine 

the amount of back pay and interest due Complainant· since 

December 17, 1984 . 

On December 18 , 1989, I issued a decision with respect 

to the attorney ' s fees claimed, and permitted discovery on ·the question of back pay . On March 19, 1990 , Complainant 

submitted a statement of the back pay and interest due him 

from December 17, 1984 through March 31, 1990. Respondents 

have not replied to the statement. 

Complainant's statement indicates that he has not been 

reinstated nor offered reinstatement by Kenta or Jackson. 

It further states that the subject mine ceased operating 

on approximately March 1 , 1988, and that Complainant does 

not claim back pay beyond that date . Interest is claimed 

through March 31, 1990 . Complainant w·orked for approximately 

6 months in 1985 and was paid a total of $7200. The statement 

shows interim off setting earnings of $3600 for each of the 

first two quarters of 1985. The statement claims that Complainant 

had no other earnings from October 1984 to March 1 , 19B8. 

I accept the representations in the statement and find them 

to be factual . I adopt the calculations contained in the 

statement. 

Therefore , IT IS ORDERED .that Respondents Kenta and 

Roy Dan Jackson shall pay to Complainant Robert Simpson the 

720 
following amo.unts, .representing back pay and ·interest due 

Complainant since December 17 , 1984, under the commission 

decision issued May 11, 1989: 

Interest on back pay previously awarded 

Additional back pay 

Additional interest 

TOTAL 

This is a final order. 

20,442.16 

6l , R65 . 20 

25 , 675 . 34 

$107 , 962.7() · 

r/ tl~&:.Z-5 .A 13t-z::dz:--r~ ~; /' James A. Brod~rick ~ Administrative Law ~udge 

Distribution: 

Tony Oppegard, Esq., Appalachian Research and Defense Fund of 

Kentucky , Inc ., P . O. Box 360 , Hazard, KY 41701 (Certified Mail) 

Stephen A. Sanders, Esq . , Appalachian Research & Defense Fund of 

Kentucky, Inc. , 205 Front Street, Prestonsburg~ KY 41653 

(Certified Mail) 

Peter A. Greene , Esq ., Thompson , Hine & Flory, 1920 N Street, 

N.W., Washington, D.C. 20036 (Certified Mail) 

slk 

721 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE Of ADMINISTRATIVE LAW JUDGES 

2 SK'(LINE, lOth FLOO~ 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 9 1990 

METTIKI CO~L COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

METTIKI COAL COMPANY, 

Respondent 

DECISION 

CONTEST PROCEEDINGS 

Docket No. YORK 89-19-R 

A. C. No. 3110337;11/30/88 

Docket No. YORK 89-20-R 

A. C. No. 3110339;11/30/88 

Mettiki General Prep Plant 

Mine ID 18-00671 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 89-42 

A.C. No. 18-00671-03537 

Mettiki General Mine 

Appearances: Nanci A. Hoover, Esq., Office of the Solicitor, 

Before: 

·u.s. Department of Labor, Philadelphia, PA, 

for the Secretary; · Susan Chetlin, Esq., Crowell and Mooring, 

washington, . DC, for Mettiki Coal Company. 

Judge Fauver 

Mettiki seeks to vacate an imminent danger order and two 

citations, and the Secretary of Labor seeks to affirm them, with 

civil penalties, under the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 801 ~seq. 

Having considered the hearing evidence and the record as a 

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

and probative evidence establishes the following Findings of Fact 

and further findings in the Discussion below: 

722 
FINDINGS OF FACT 

1. Mettiki Coal Company, through a subsidiary, owns and 

operates a coal preparation plant known as Mettiki General 

Preparation Plant. 

2. On November 29, 1988, MSHA received a complaint that the 

No. 34 breaker, a disconnect switch that controls the power to 

the raw coal silo conveyor belt, had a defective lock out device. 

The complaint was that the breaker could be turned to _the on 

position even when the lock out device was padlocked. 

3. On November 30, 1988, MSHA Inspector Kerry George 

investigated the complaint. Whe·n he arrived the surface belts 

were idle for belt maintenance. Two miners were on top of the 

silo making repairs to the speed reducer for the No. 34 belt.· 

4. The No. 34 breaker was in the off position and tagged 

(witn a danger tag warning not to turn on the circuit). Its lock 

out device was padlocked. 

5. The two miners had pulled the emergency cord on the No. 

34 belt before beginning repairs. 

6. The miners were ·called down from the silo, and the 

surface electrician, Clarence Bowman, who was the electrical 

examiner for all surface breakers, was called to test the lock 

out device. Because of a sawed out cut in the lock out device, 

the breaker could be turned on despite the padlock. It was not 

difficult to turn the breaker on when padlocked. This defect was 

the result of poor installation of the breaker, and not a 

deliberate intention to defeat the lock out device. 

7. Mr. Bowman had known of this defect in the lock out 

device from his first inspection of the br~aker, within a few 

months of its installation two or three years before November 30, 

1988. He was aware that the breaker could be turned on despite a 

padlock, but he did not consider this a safety problem. In his 

view, a ·danger tag was sufficient safety protection to prevent 

re-energizing a circuit. He inspected this breaker every month 

for over two years, but never reported the defective lock out 

device or removed the breaker from service in order to repair it. 

8. Inspector George issued an imminent danger order 

withdrawing the No. 34 breaker from service. He also issued two 

citations. Citation No. 3110339 charges a violation of 30 C.F.R. 

§ 77.507. Citation No. 3110340 charges a violation of 30 C.F.R. 

§ 77.502. 

9. After issuance of the above order and citations, the 

defective lock out device was replaced within an hour. 

723 
DISCUSSION WITH FURTHER FINDINGS 

Citation No. 3110339 

This citation charges a violation of 30 C.F.R. § 77.507, 

which provides: 

All electric equipment shall be provided 

with switches or other controls that ar~ safely design~d, constructed, and installed. 

A "switch" is defined by the Dictionary of Mining as "[a] 

mechanical device for opening and closing an electric circuit ... . • 

u.s. Department of the Interior, A Dictionary of Mining, · Mineral, and Related Terms 1111 . (1968). The brea-ker for the No. 

34 belt circuit is a disconnect switch that meets this 

definition. 

A lock out device for a disconnect switch is an integral 

part of the switch, essential to control the switch when locking 

out is required by a safety regulation. It is therefore included 

in the scope of § 77.507. This interpretation is consistent with 

that of Congress as expressed in the legislative history. The 

Senate report on § 305(o) of the 1969 Act !/ states: 

This section requires that electric equipment 

be provided with switches or other safe control[sl 

so that the equipment can be safely started, stopped, 

and operated without danger of shock, fire, or faulty 

operation. 

s. Rep. No. 91-411, 9lst Cong., lst Sess. (1969> at 65, reprinted 

in House Comm. on Education and Labor, 9lst Cong., 2d Sess., · Legislative History of the Federal Coal Mine Health and Safety 

Act (1970 Comm. Print) at 65. 

The lock out device on the No. 34 breaker was not safely 

installed in that it did not prevent turning the breaker on when 

it was padlocked . This was a safety hazard, in violation of 

§ 77.507. The surface electrician, who was also the electrical 

examiner, was responsible for the safety of this equipment. He 

knew about the defect but did not repair it. His continued 

failure to replace the lock out device constituted gross negligence, in violation of § 77.507. 

1/ Section 77.507 mirrors 30 C.F.R. § 75.512, an underground 

standard, which repeats the statutory language of 30 u.s.c . § 86-S(o). 

724 
Citation No. 3110340 

This citation charges a violation of 30 C.F.R. § 77.502, 

which provides: 

Electric equipment shall be frequently examined, 

tested, and properly maintained by a qualified person 

to assure safe operating condition. When a potentially 

dangerous condition is found on electric equipment, such 

equipment shall be removed from service until such . condition is corrected. A record of such examinations 

shall be kept. 

under§ 77.502-2, the examinations must be conducted at least 

monthly. 

Based on the previous holding, I find that the lock out 

device was an integral part of the disconnect switch and 

therefore was required to be inspected under § 77.502. 

The lockout device was defective because it had been notched 

in such a way that the breaker could be reset even when padlocked. 

The intention apparently was not to defeat the locking device, 

but to accomodate a poor installation of the breaker. Mettiki's 

electrical examiner for surface facilities, Mr. Bowman, testified 

that it was poorly installed and it was the only one of some 300 

breakers that had been installed this way. For years, he knew of 

this defect and the fact that it would permit the breaker to be 

reset despite a padlock. He did not report the defect because he 

regarded the tagging of a circuit as sufficient protection for ·safety purposes. Mr~ Bowman was also the surface electrician. 

His testimony and demeanor on the stand indicated that he 

expected others to comply with his danger tags and would probably 

consider physical revenge against anyone who turned on a circuit 

that he had tagged. This is hardly the intent of the safety 

standard or a basis for allowing a defective lock out device. 

Mr • . Bowman's attitude and failure to report the lock out defect 

and remoqe the breaker from service demonstrate gross negligence, 

in violation of § .77.502. Although Mettiki contends that its 

electrical · examiner did not know that the defect permitted the brea~er to be turned on despite a padlock, I find that he did 

have such knowledge but chose to ignore the defect in his 

numerous . examinations of the No. 34 breaker. · 

Imputation of Negligence. 

Mettki contends that any negligence of the el~ctrical 

examiner is not imputable to the company, citing decisions such 

as Southern Ohio Coal co., 4 FMSHRC 1459 (1982). There the 

Commission held that, "where agents are negligent, that 

negligence rnay .be imputed to the operator for penalty purposes" 

725 
but "where a rank-and-file employee has violated the Act, the 

operator's supervision, training and disciplining of its 

employees must be examined to determine if the operator has taken 

reasonable steps to prevent the .rank-and-file miner's violative 

conduct." Id at 1464. However, Mettiki's electrical examiner 

was more than a rank-and-file employee • . He was the operator's 

designated person to conduct electrical examinations of surface 

electrical equipment in order to protect the miners. In such 

capacity, it was h.is responsibility to certify the equipment to 

be safe or to report conditions requiring correction. For 

electrical safety examinations, he served more in the capacity of 

an agent of the operator than as a rank-and-file employee. His 

negligence is therefore imputable to the operator as to both 

citations. In light of his gross negligence, Citation No. 

3110340 should be modified to cite "high negligence" instead of 

"moderate negligence"; the allegation of high negligence in 

Citation No. 3110339 i9 sustained by the evidence. 

Order No. 3110337 

Section 3(j) of the Act defines an imminent danger as: 

The existence of any condition or practice in 

a coal or- other mine which could reasonably be expected 

to cause death or serious physical harm before such 

condition or practice can be abated. 

The test of validity of an imminent danger order is whether 

a reasonable person give~ a qualified inspector's education and 

experience would conclude that the facts indicated an imminent 

danger. Freeman Coal Mining Co. v Interior Board of Mine 

Operations A~peals, 804 F. 2d 741 (7th Cir. 1974). See also C.D. 

Livingston, 8 FMSHRC 1006 (1986); and United States Steel, 4 

FMSHRC 163 (1982). 

The inspector issued an imminent danger order because of the 

defective lock out device and the fact that two miners were 

working on top of the silo at the time the belt circuit was 

supposedly locked out. 

Respondent contends that it was not required to lock out the 

No. 34 breaker circuit because the miners were doing mechanical, 

rather the electrical work on the belt soeed reducer. It 

contends that 30 C.F.R. § 77.404(c) applied and required only 

that the belt be turned off and blocked against motion. However, 

the record does not show that the belt was blocked against motion 

in compliance with this standard. 

Apart from this, Mettiki argues that many independent 

actions would be required to cause injury due to the defective 

lock out device, and therefore there was no imminent danger. 

726 
I These include: 1) ignoring the warning tag and padlock: 2) 

turning -the breaker on; 3) reactivating the emergency pull cord 

on No. 34 belt; 4) starting the two outby belts in order to start 

No. 34 belt; and 5) ignoring the. sirens that would sound before a 

belt is started. I agree that these circumstances indicate that 

the defective lock out device did not create an imminent danger. 

Also, they do not indicate a "significant and substantial" 

violation under the Commission's test in Mathies Coal Co., 6 

F!-iSHRC 1 ( 1984), and similar cases. 

However, the defective lock out device was still 

"ootentially dangerous" within the meaning of 30 C.F.R. § 77.502, w~ich requires that, "When a potentially dangerous condition is 

found on electrical equipment, such equipment shall be removed 

from service until such condition is corrected." The defective 

lock out device could have contributed to an accident in which a ·miner inadvertently or even intentionally reset the breaker under 

circumstances in which a reenergized circuit could cause injury 

to persons working on. the belt or its electric circuit. 

"Potentially dangerous" conditions are not limited to the precise 

circumstances existing at the time of the citation, but include 

possible dangers that could cause injury to miners if the cited 

condition continued during day to day mining operations. 

On review of the facts and the reasonableness of the 

inspector's enforcement action, I find that the § l07(a) order 

should be modified to be a § 104(b) order instead of a § 107(a) order.~/ Metti~i's failure, through its electrical examiner, . to 

report the· defective lock out device and remove the breaker from 

service until the defect was corrected constituted a violation of 

30 C.F.R. § 77.502. Citation No. 3110340 is therefore sustained 

by the evidence. Because of this citation, the inspector could 

have issued a § 104(b) order withdrawing the breaker from service 

until the defective lock out device was corrected. Indeed, such 

an enforcement order is implied, because the regulation specifies 

that "potentially dangerous" equipment "shall be removed from 

service until such condition is corrected." Thus, no abatement 

time need be allowed in a citation for this ty~e violation. 

. The operator contends the lock out defect should not be 

considered potentially dangerous because half of the 300 surface 

breakers had no lock out device and MSHA did not cite violations 

for them. This argument is not persuasive. First, all of the 

surface conveyor belt breakers at the plant had a lock out 

device, and No. 34 was the only defe~tive one. It was thus 

cecognized that a lock out device was feasible and required for 

~/ A§ 104(b) order would have the same effect in removing the 

defective equipment from service. 

727 
the conveyor belt circuits. Secondly, MSHA's manual presents a 

firm policy of enforcement of the lock out standard (§ 77.501),. stating: 

Disconnecting devices shall be locked out, where 

possible, and suitably tagged by persons who perform the 

work. Locking out is "possible" in almost all cases 

and can be accomplished in a practical manner. * * * 

[Vol. V MSHA Program Policy Manual (July 1, 1988) p.62. 1 

The reasons for MSHA's failure to issue citations for the 

non-belt breakers that did not have a lock out device are not 

shown by this record. However, if the local MSHA district was 

lax in enforcing the lock out safety standard, despite·the regulation and MSHA's own Program Policy Manual, such laxness is 

not probative regarding the potential dangec of the defective 

lock out device on No. 34 breaker. 

This leaves the question of gravity of the two violations 

for civil penalty purposes. 

"Gravity of the violation," as used in § llO(i), is not tied .to the question whether a violation is or is not "significant and 

substantial" within the meaning of§ llO(d)(l). "Gravity," for 

civil penalty purposes, is the seriousness of a violation. This 

includes the importance of the safety or health standard, and the 

seriousness of the operator's conduct, in relation to the Act's 

purpose of deterring violations and fostering compliance with 

safety and health standards. Many types of safety or health 

violations are serious even though a single violation might not 

show a "reasonable likelihood" of causing serious injury or 

illness, or even fit into a probability-of-injury-or-illness mold. 

For example, some violations are serious because they demonstrate 

recidivism or an attitude of defiance by the operator. Others 

are serious because the safety and health standard involved is an 

important protection for the miners. Important safety or health 

standards are such that, if they are routinely violated or 

'trivialized substantial harm would be likely at some time, even 

if the likelihood that a single violation will cause harm may be 

remote or even slight •. 3/ Other mine safety and health 

violations a.ce serious because they may combine with other 

conditions to set the stage for a mine accident or disaster, even 

though individually, or in isolation, they do not appear to 

forecast injury or illness. Still others are secious because 

they involve a substantial possibility of causing injury or 

illness, if not a probability. 

11 For example, a stop-look-and-listen safety law for 9ublic 

service vehicles may be considered an important safety standard 

even though a 9articular instance of violation may not shoto~ a 

"reasonable likelihood" of colliding with a train. 

728 
I find the violations in these cases to be serious because .. ~1) they involve a potentially dangerous condition, (2) the cited ~: ~tandards are an important protection for the miners, C 3) and the · operator's conduct should be deterred. 

,· , Considering Mettiki's gross negligence, through its ~lectrical examiner, in violating § 77.502, and all the other "criteria in§ llOCi) of the Ac~, I find that a civil penalty of 

·: .. ""'$500 is appropriate for this violation. 

Considering Mettiki's gross negligence, through its 

electrical examiner, in violating § 77.507, and all the other 

.::·:::riteria in§ llOCi> of the _Act, I find that a civil penalty of ··3500 is appropriate for this violation. 

CONCLUSIONS OF LAW 

:<~ 1. The judge has jurisdiction over these proceedings. 

2. Met tiki coal Company violated 30 C.F.R. § 77.502 on 

: ·: ~ovember 30, 1988. . .. 

3. Met tiki Coal Company violated 30 C.F.R. § 77.507 on ., ~ovember 30, 1988. 

4. The Secretary of Labor failed to prove an imminant 

:··.:langer as alleged in Order No. 3110337. This orde r should be 

nodified to be a § 104(b) order. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Citation No. 3110339 is MODIFIED to DELETE the .·.allegation of a "Significant and. Substantial" violation. As 

: :.MODIFIED, it is AFFIRMED. 

:~\; 2. Citation No. 3110340 is MODIFIED to DELETE the 

.::1llegation of a "Significant and Substantial 11 violation and to ·-·change the allegation of negligence from "Moderate " to "High. 11 

.As MODIFIED, it is AFFIRMED. 

3. Order No. 3110337 is MODIFIED to be a § 104(b) order 

instead of a § 107Ca> order, deleting the allegation of an ···imminent danger and cross-referencing Citation No. 3110340. As 

-: .:'10DIFIED 1 it is AFFIRMED • ._ ..: 

·. 'f 

729 
4. Mettiki Coal Company shall pay the above civil penalties r .... 

of $1,000 within 30 days of the date of this Decision. ic".· . 

Distribution: 

tJ;t_t~ :JV/Mvt,AWilliam Fauver 

Administrative Law Judge 

Nanci ~ Hoovec, Esq., Office of the Solicitor, u.s. Department 

of Labor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

susan Chetlin, Esq., Crowell and Moring, 1001 Pennsylvania 

Avenue, N.W., Washington, D.C. 20004-2505 (Certified Mail) 

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fEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYl iNE, lOth FLOOR 

5203 lEESBURG PIKE 

FAllS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR , MINE SAFETY AND HEALTH 

ADMINI STRATION (MSHA) , Petitioner 

v. 

SHAMROCK COAL COMPANY , Respondent 

APR 171990 

: 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 90-32 

A.C. No. 15-02502-03556 

No . 18 Mi ne 

DECISI ON 

Appearances: G. Elaine Smith, Esq., Office of the Solicitor, U.s. Department of Labor, Nashville., Tennessee , for Petitioner; 

Neville Smith, Esq. , Smith & Smith , Manchester, Kentucky for Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to 

section 105(d) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c . § 801 et seq.,. the "Act, " charging the 

Shamrock Coal Company (Shamrock) with six violations of 

mandatory standards and proposing civil penalties of $3 , 685 

for the viol ations. The general issue before me is whether 

Shamrock violated t he ci ted regul atory standards and , if so, the appropriate ci vi l penalt y t o be assessed in accordance 

with section 110(4) of t he Act. 

At hearing the par ties moved for approval of a 

settlement agreement with respect to five of the citations at 

issue and supplemented the motion post hearing. I have 

considered the documentat i on and r epresentations submitted in 

support of the motion and find that the proposal meets the 

criteria under section l l OCi> of the Act. Accordingly the 

motion is approved and an appropriate order will be i~corporated in the final disposition of this proceeding. 

The one citation r emaining at issue, No . 3030499, 

alleges a "significant and substantial" violation of the 

mandatory standard at 30 C. P.R. § 75.202(b) and charges as 

foll ows: 

The result of the investigation into the accident 

indicates, that as a minimum, the victim' s head was 

extended inby the last row of permanent supports 

. 731 
into an area of unsupported roof at the time of the 

accident. 

The cited standard provides· in .part that '' [n]o person 

shall work OJ;' travel under unsupported roof ••• " The 

citation accordingly fails to allege an essential element of 

the violation charged, i.e. that anyone was either working or 

traveling under unsupported roof. It is therefore facially 

deficient and must be vacated.~/ ·rn any event the Secretary has failed to prove that the victim in this case was either 

traveling or working under unsupported· roof. 

The essential facts are not in dispute.· More 

specifically it is not disputed that the victim, at the time 

he was struck by falling rock, was positioned at lea.st 

partially inby permanent roof support. The dispute arises as 

to how the victim got into that position. The resolution of 

this dispute depends on the opinions of the experts witnesses 

and the reasonableness of their conclusions. The accident at 

i 'ssue is described in the MSHA investigation report as 

follows: 

On Monday, May 15, 1989, at about 2:30p.m., the 

009 section crew, under the supervision of 

Carter D. Sams, section foreman, entered the mine 

and arrived on the section at about 3:00p.m., Sams 

examined the section and assigned duties and work 

locations to crew members. 

Normal operations continued without incidence [sic] 

until about 6:45p.m., when the Joy C~ 14 

Continuous Miner that was loading coal in the left · crosscut of the No. 3 entry (accident scene) became 

inoperative due to a malfunction in the right 

traction motor. A Joy 10 SC Shuttle Car was used 

to tow the continuous oi~er from the \-Jorking place 

to the next line of crosscuts outby. Sams decided 

that the continuous miner could not be repaired in 

the remainder of the work shift and that he would 

take the production crew to the 008 spare section 

E_! In a citation issued May 25, 1989, for the same 

factual circumstances (Citation No. 3030497, Operator's 

Exhibit 1> the Secretary had alleged that the victim .was 

"performing work" inby the last row of permanent coof 

suppocts. That citation was however subsequentlt vacated by 

the Secretary based on a d<~termination that the victum was 

not J.)erforming work inby suppocted roof at the time of the 

accident. (Operator's Exhibi~ 1). The Secretary then issued. 

the facially deficient citation at bar. 

732 
to continue producing coal for the rest of the 

shift. At about 6:55 p.m., Sams instructed all 

crew members, except for the No. 2 roof-bolting 

crew who were installing roof. bolts in the face of 

the No. 1 Entry and David w. Baker,· section 

mechanic, who was performing maintenance work, to 

travel to the 008 section to continue producing 

coal. At about 7:00p.m., Sams gave instructions 

to ·Lee Carson Sizemore and Timothy Chadwell 

roof-bolting machine operators and Lyle Goings, 

roof bolter helper, that when roof-bolting 

operations were completed in ·the No. 1 Entry, to 

travel to .the No.3 entry and bolt the left 

crosscut (accident scene). Sams then made a 

routine examination of each working place and 

walked to the 008 section. 

Upon completion of the roof bolting operations in 

the face area of the No. 1 Entry, Sizemore and 

Chadwell attempted to take the No. 2 roof bolter to 

the No. 3 entry, but were blocked by the continuous 

miner. They decided to use the No. 1 roof-bolting 

machine, however, when they arrived at the machine, 

Baker was working on the panic switch 

(deenergization device). Sizemore and Chadwell 

obtained pry bars and proceeded to the left 

crosscut in the No. 3 entry to pry down some loose 

draw rock that was left in the olace when the 

continuous miner malfunctioned ... Under normal 

circumstances, at the end of the cut, prior to the 

continuous miner leaving the working place, all 

loose rock would have been cut down and removed. 

Siza~ore stated, that at the time of the accident 

he was standing between the first and second roof 

bolt .on the last row of bolts and was prying on a 

piece of draw rock on the left side with his back 

turned to Chadwell. to the best of his knowledge, 

Chadwell was located between the second and third 

roof bolt and was attempting to take down a piece 

of draw rock that was caught on a strap at the last 

row of roof· bolts. Sizemore heard rock fall and 

when ' he looked around, he saw Chadwell lying on the 

mine floor with a piece of rock laying on his chest 

and the right side of his face. Sizemore removed 

the rock and summoned help. 

Baker and Goings, who were working on the 

continuous miner one crosscut outby the accident 

area, responded to his call. Upon their arrival to 

the scene of the accident, Baker examined Chadwell 

and determined that he was unconscious and 

nonresponsive. realizing the seriousness of the 

733 
injuries, Baker proceeded to the mine phone and 

contacted the surface mine office ano requested an 

ambulance and informed Owen . Hensley, 2nd Shift 

Superintendent, that Chadwell had been seriously 

injured by a piece of falling rock. Baker then 

returned to the accident scene with first aid 

equipment. Sams overheard the phone conversation 

explaining the accident and immediately proceeded 

to the 009 section. Upon his arrival, he assisted 

in placing a bandage on Chadwell's head and 

securing him on the stretcher. Chadwell was then 

placed in a scoop bucket and transported to the end 

of the supply track where he was transferred onto a 

rail-mounted mantrip car. They left the 009 

section at about 8:05p.m., at which time Chadwell 

was unconscious, but still had vital signs. They 

arrived on the surface with Chadwell at 

approximately 8:35p.m., and placed him in the 

ambulance. The ambulance attendants examined 

Chadwell and finding no vital signs, they 

instructed Hensley to contact Dwayne Walker, Leslie 

County Coroner. The coroner arrived at the mine at 

about 9:30p.m., at which time Chadwell was 

pronounced dead. 

At hearing, MSHA Coal Mine Investigator Roy Parker 

testified that Chadwell was engaged in a lawful and indeed 

necessary procedure using a slate bar to pry loose rock from 

the roof and that it was not likely that Chadwell was prying 

rock directly over his head. Parker nevertheless concluded, 

based on the position of Chadwell's body after the accident, 

that Chadwell had been working with at least a portion of his 

head inby the last permanent roof support. While admitting 

that no one actually saw the accident, Parker nevertheless 

did not believe .that Chadwell slipped and fell before being 

hit wi:th falling rock. MSHA Investigator Maurice l-iullins 

apparently also agreed with Parker's conclusion that the 

victim had been working beneath unsupported roof at least 

insofar as his head was inby the last permanent roof support. 

While acknowledging that a portion of the victims body 

was indeed inby parrnanent roof support at the time he was 

struck by the falling rock Shamrock maintains that based on 

the evidence it is more reasonable to conclude that Chadwell 

had slipped and fallen and that he was actually on the mine 

floor when he was struck by the falling rock. Indeed I agree 

that this is the most reasonable inference to be drawn from 

the evidence. 

Lee Size~ore, the miner working with Chadwell, testified 

that just before the accfdent he observed that Chadwell was 

using the pry bar but from a position outby the last row of 

734 
permanent support. While Sizemore had his back turned to· Chadwell at the time of .the rock fall, he immediately turned 

and saw that Chadwell was lying wjth the rock on his chest 

with his legs up to his waist st111 remaining under the roof 

support. 

According to Jeffrey Shell, a Shamrock Safety 

Coordinator who. investigated the accident on May 16, 19 89, 

the mine floor in the area of the accident was covered with 

loose material and the floor was higher on one side of the . entry than the other i.e. it was sloped approximately 10 

inches across the 18 foot-wide entry. Shell opined, based 

upon his extensive mining experience and knowledge of the . activities of the deceased prior to the accident, that the 

deceased was most likely pushing at the loose roof rock from 

an outby position into the unsupported area. The evidence 

shows that the loose rock was being held by a roof support 

strap so according to Shell the victim most likely slipped 

f ro1n the outby position in to the unsupported a rea and spun as 

he fell, landing on his back. 

' Ronald Turner, District Mine Inspector for the Kentucky 

Department of Mines and Minerals concurred with Shell. 

Turner also testified that MSHA Inspector Parker and MSHA 

Investigator Mullins had reached agreement during the 

accident investigation on May 16, 1989, that the deceased had 

indeed been working in the supported area trying to pry the 

rock loose before the accident. 

Gordon Crutch~ Shamrock's Safety Director and a former 

supervisory inspector an·d accident investigator for the 

Mining Enforcement and Safety Administration (MESA), the 

predecessor to MSHA, testified that he measured the slope in 

the accident area in October or November 1989 and found that 

the entry actually sloped 2lu from one side of the entry to 

the ot.her. Crutch also opined that the victim had been 

working under the supported roof area, slipped while trying 

to push the rock from the roof support strapping and was 

already prone at the time the rock fell inby the permanent 

support. Crutch said his opinion was reinforced by the 

nature of the deceased's chest and facial injuries. Crutch 

observed that from his experience investigating roof fall 

injuries, when a victim is directly beneath the falling rock 

the resulting injuries are usually to the neck and, as the 

miner is thrust to the mine floor, to the pelvis. No such 

injuries occurred in this case. 

With this framework of evidence I find Shamrock's 

explanation to be the most persuasive. For this additional 

reason I find that there was no violation of the cited 

standard and the citation must accordingly be vacated. 

735 
ORDER 

. -. . Citation No. 3030499 is hereby VACATED. Shamrock Coal 

company is directed to pay the following civil penalties 

within 30 days of the date of this decision: Citation 

No. 3205380 - $100, Citation No. 3205504 - $153, Citation 

No. 3205506 - $112, Citation No. 3205512 - $112, Citation 

No. 3205516 - $87. · } I . ~ . 

G,1y M.~L0k Melick ~~ · 

Administ1ftive Law Jh\dge 

Dist:cibution: · ~\ . h 

G. Elaine Smith, Esq., Office of the\isolicitor, u.s. · Department of Labor, 2002 Richard Jo~es Road, Suite B-201, 

Nashville, TN 37215 (Certified Mail) 

Neville Smith, Esq., Smith & Smith, Shamrock Coal Company, 

110 Lawyer Street, Manchester, KY 40962 (Certified Mail) 

nt 

736 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth· FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA_ 22041 

APR 17--1990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

Docket No. PENN 89-266 

A. C. No. 36-04281-03667 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

Dilworth Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Thomas A. Brown, Jr., Esq., Office of the 

Solicitor, U. s. Department of Labor, Philadelphia, 

Pennsylvania, for the Secretary;, · Walter J. Scheller, III, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for the . Respondent. 

Judge Weisberger 

Statement of the Case 

In this Civil Penalty Proceeding, the Secretary (Petitioner) 

seeks civil penalties for alleged violations by the Operator 

(Respondent> of. 30 C.P.R. § 50.20(a). Subsequent to Notice, a 

hearing was held in Johnstown, Pennsylvania, on January 10, 1990. 

Robert G. Santee, Larry E. Swift, Donald Edwin Stevenson, Jr., 

"Michael R. Kelecic, and Edward Yaniga testified .for Petitioner. 

Louis Barletta, Jr., Mark Schultz, and Richard Werth testified 

for Respondent. At the hearing, Petitioner indicated that 

Citation No. 03098003 was vacated by the Petitioner. Subsequent 

to the hea.ring, Respondent filed a Brief on March 28, 1990. 

Petitioner filed Proposed Findings of Fact and a Brief on 

April 2, 1990. 

Findings of Fact 

Citation 3098001 

On April 27, 1989, Donald Edwin Stevenson, Jr., was working 

the 12:01 a.m. shift as a general laborer, at aespondent•s 

Dilworth Mine. At approximately 12:30 a.m., while crawling out 

737 
of a man trap that he had used to bring supplies to the area, he 

felt something pull in back of his right leg, and was unable to 

move it.~/ 

Stevenson received assistance in exiting from the mine, and 

was talten by ambulance to a hospitall where he was given crutches 

and motrin. The following day, h·e· was seen by A. J. Patterson, · 

M.D., who gave him a prescription for a muscle relaxant and 

another medication for pain, and told him to stay home until the 

following Monday. Dr. Peterson diagnosed Stevenson as having 

"pulled poplitealous tendon or muscle VS muscle strain soleus and 

gastrocnemius muscle right knee... (Government Exhibit 7). The 

following Friday, Stevenson started physical therapy, three times 

a week for 3 weeks, and on May 23, 1989, was released by 

Dr. Patterson for return to work on May 24, 1989. Stevenson 

returned to work on May 23. Respondent did not report 

Stevenson ' s injury to MSHA. 

On July 12, 1989, Robert G. Santee, an MSHA Inspector, cited 

Respondent for a violation of 30 C.F.R. § 50.20 on the ground 

that the Operator had not completed and mailed Form 7000-1 to 

report Stevenson's injury. 

On cross-examination, Respondent elicited from Stevenson 

that he has a history of injuries to his right knee, including 

days missed in November and December 1988. It also was elicited 

that on April 7, 1989, Stevenson missed work when he injured his 

right hip. With regard to the incident on April 27, 1989, 

Michael R. Kelecic, a laborer on Stevenson's shift on April 27, 

testified that when he helped Stevenson on April 27, the latter 

said he had hurt his knee. Mark Schultz, Respondent's safety 

s~pervisor, indicated that on May 2, when he asked Stevenson what 

happened to his knee, the lat~er inqicated that he felt a sharp 

pain but had not twisted it. Richard Werth, Respondent's safety 

inspector, indicated that when he spoke to Stevenson on April 27, 

and asked him what happened, the latter indicated that he had not 

twisted his knee or done anything. Werth said that Stevenson 

indicated that he just experienced a burning sensation in his 

right knee when he was crawling out of the man trip. 

Citation 03098002 

. on April 17, 1989, Edward Yaniga, a belt cleaner for 

Respondent, while working the afternoon shift, was using a longhandled shovel to clean under a belt. ivhen ne reached under the 

belt with the shovel to drag the coal towards him, he felt a 

~/ Stevenson had originally testified that the incident occurred 

on April 17. However, he subsequently refreshed his recollection, 

and amended that date to April 27, which is the date contained in ., 

the Report of Personal Injury (Res9ondent's Exhibit 3), and the 

attending P~ysician's Statement of Disability (Government 

Exhibit . 7) . I therefore found that the incident occurred on 

April 27, 1989. 

738 
:· .. 

•,•; 

: t 

"pinch" from his neck to his right shoulder CTr. 75). Yaniga was 

taken to an emergency room of a local hospital, and was seen by a 

ohysician, who diagnosed him as suffering from acute strain, and ~rescribed pain, medication. The following day Yaniga saw · 

or. Patterson, who provided the same diagnosis, and prescribed a 

oain medication, percodan. He wa~ off from work for a total of 5 weeks, during whicn time he underwent physical therapy for 

45 minutes, 3 to 4 times a week. 

II. 

Discussion 

Respondent argues that reports of the incidents to Stevenson 

and Yaniga were not required, as there was no causal nexus 

between the \o~ork environment and their injuries. 

30 C.F.R. § 50.20(a), in essence, requires an operator to 

report to MSHA, by way of a Form 7000-1, all accidents and occupational injuries. 30 C.F.R. § 50.2(e) defines an "bccupation~l 

injury" as follows: 

"Occupational injury" means any injury to a miner which 

occurs at a mine for which medical treatment ia administe·red, or which results in death or loss of consciousness, inability to perform all job duties on any day 

after an injury, temporary assignment to other duties, 

or transfe~ to another job." 

In Secretary v. Freeman United Coal Mining Co., 6 FMSHRC 

1577 (1984). The Coinrnission held that .the Operator therein had 

to comply with the reporting requirements of section 50.20 (a), ~, and report an injury to a miner, who experienced back pain 

while putting on his work boots in the wash house of the 

Operator's mine. The Commission specifically rejected the 

Operator's argument that section 50.2(e), supra, which defines an 

occupational injury, contemplates that there must be a causal 

nexus between the miner's work and the injuries sustained. The 

Commi.:;sion, at 1578-1579, supra, stated as follows: 

In interpreting the term "occupational injury," as 

defined i.n section 50.2(e), we look fi"rst to the plain 

language of the regulation. Absent a clearly expressed 

legislative or regulatory intent to the contrary, that 

language ordinarily is conclusive. ~s noted above, 

section 50.2(e) defines an occupational injury as "any 

injury to a miner which occurs at a mine for which 

medical treatment is administered, or wnich results in 

death or loss of consciousness, inability to perform 

all job duties on any day after an injury, temporary 

assignment to other duties, or transfer to another job." 

The term "injury" is not further defined. The oidinary 

739 
meaning of injury is: "an act that damages, harms, or hurts~" or "hurt, damage, or loss sustained." 

Webster's Third New International Dictionary 

(Unabridged) 1164 <1977). The remainder of the definition in section 50.2(e) refers only to the location 

whare the injury occurred ("at a Mine"), and to tne 

result of an injury <"medical treatment," · "death·," 

etc.). Thus, sections 50.2(e) and 50.20(a), when read 

together, require the reporting of an injury if the 

injury--a hurt or damage to a miner--occurs at a mine 

and if it results in any of the specified serious consequences ~o the miner. Thase regulations do not 

require a showing of a causal nexus. 

Nor does the regulatory history show any intent to 

require such a specific causal connection. In fact, 

just the opposite is true. 30 C.F.R. Part 50, in which ~ sections 50.2(e) and 50.20(a) are contained, was originally promulgated by the Department of the Interior's 

Mining Enforcement and Safety Administration ( "r1ESA," 

the predecessor agency to MSHA) under the authority of 

the Federal Metal and Nonmetallic Mine S~fety Act, 

30 u.s.c. § 721 et seq . (1966} (repealed 1977) ("Metal 

Act"), and the Federal Coal Mine Uealth and Safety Act, 

30 u.s.c. § 801 el seq. (1976) (amended 1977> ("Coal 

Act"). Part 50 revisad and consolidated previously 

separate reporting requirements under the Part sa standards for metal and nonmetal mines and the Part 80 stan- · dards for coal mines. 42 Fed. Reg. 55568 (October 17, 

1977). When promulgated by MESA, section 50.2{e) 

deleted the Parts 58 ilnd 80 requirement that an occ.upational injury arise out of and/or in the course of work 

and added the present requirement that, to be reportable, an occupational injury need only occur at a mine. 

See 42 Fed. Reg. 65534. MESA's deletion of a more 

specific work-related criterion militates against our 

according such a construction to these regulations. See,~.,~ v. Guthrie, 387 F.2d 569, 571 (4th Cir. 

1967). We conclude that the above-noted regulatory 

history and the plain language of the section 50.2(e) 

1efinition of occupational injury control in construing 

the related reporting requirement ·of secti.on 50.20 (a). 

I find that the above holding in the Freeman v. United 

Mining Coal Co., supra, case applies with equal force to the case 

before me.~/ Due to the precedent established by the Commission 

~/ See also Secretary v. VP-J Mining co., 12 FMSHRC __ __ 0:-iarch 1, 1990), wherein Judge ~elick, in facts similar to the 

case at bar, held, citing Freeman, suora, that an Operator had to 

report an injury of a miner who suffered back pain after exiting 

a cage. Judge Melick ruled that this injury was within the scope 

of section 50.2(e), supra, as it was incurred while the miner was 

engaged in the act of working in the Operator's underground mine. 

740 
. ' 

in Freeman, supra, I reject Respondent's arguments that section 50 

and MSHA's program Information Bulletin No. 88-05 provides that an 

injury is reportable only if it is caused by 

something in the work environment. I also refuse to accept 

Respondent's argument which would require me, in essence, to 

reject the Commission's holding in Freeman, suora. 

I thus conclude .that the evidence establishes that the 

Respondent violated section 50.20(a). There was ~o negligence on 

Respondent's part in connection with the violations found herein, 

as Respondent's witnesses established that they had a good faith 

belief, although erroneous, that the injuries herein to Stevenson 

and Yaniga were not reportable. I conclude that a penalty of 

$20, as assessed, is appropriate for each violation found herein 

which was cited in Citation 3095001 and 3098002 • 

Citation Nd. 3098003 

At the Hearing, Petitioner moved to vacate Citation 

No . 3098003. This Motion was not opposed by Respondent, and it 

is accordingly GRANTED. 

ORDER 

It is ORDERED that Respondent shall pay $40, within 30 days 

of this Decision, as a civil penalty for the violations found 

herein. 

It is further ORDERED that Citation No. 3098003 be DISMISSED. 

hbisbl:::fr 

Administrative Law Judge 

Distribution: 

Thomas A. Brown, Esq., Office of the Solicitor, U. S. Department 

of Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphla, PA 19104 (Certified Mail) 

Walter J. Scheller, III, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, P~ 15241 (Certified Mail) 

dcp 

741 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

METTIKI CO~L CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

METTIKI COAL CORPORATION, 

Respondent 

APR 1-8\990 

DECISION 

CONTEST PROCEEDINGS 

Docket No. YORK 89-31-R 

Order No. 2944492; 2/21/89 

Docket No. YORK 89-32-R 

Order No. 2944493; 2/21/89 

Docket No. YORK 89-33-R 

Order No. 2944494; 2/21/89 

Mettiki Mine 

Mine ID 18-00621 

CIVIL PENALTY PROCEEDINGS 

Docket No. YORK 89-52 

A.C. No. 18-00621-03674 

Docket No. YORK 89-56 

A.C. No. 18-00621-03673 

Mettiki Mine 

Appearances: Timothy M. Biddle, Esq., Crowell & Moring, 

Washington, D.C., for the Contestant/Respondent. 

James E. Culp, Esq., u.s. Department of Labor, 

Office of the Solicitor, PhiLadelphia, PennsyLvania 

for the Respondent/Petitioner. 

Before: Judge Maurer 

STATEMENT OF THE CASE 

These consolidated cases are before me under section 105(d) 

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

§ 801 et seq., (the Act) to challenge the vaLidity of three 

§ 104(d}(2} orders issued to Mettiki on February 21, 1989, and 

for review of the civil penalties proposed by the Secretary of 

Labor for the related violations. 

742 
There is also an unrelated and uncontested Order 

No. 3115408, which the Secretary also included in Docket 

No. YORK 89-52. Order No. 3115408 was issued on March 1, 1989, 

pursuant to§ 104(d)(2) of the Act-for a violation of ·30 C.F.R. 

§ 75.313-1. A penalty of !?1000 was originally assessed. 

However, the parties now agree that this order should be modified 

to delete the special finding of unwarrantability and they have 

proposed by separate .written motion that I approve their agreed 

settlement which reduces the civil penalty to $150 for this 

particular violation. 

Considering the representations submitted in the motion, I conc~ude that the prottered settlement is appropriate under the 

criteria set forth in section llO(i) of the Act. Accordingly, 

the motion for approval of the settlement with regard to Order 

No. 3115408 is granted and the respondent will be ordered herein 

to pay the $150 civil penalty. 

Pursuant to notice, these cases were heard in Morgantown, 

West Virginia on August 1 and 2, 1989. Both parties have filed 

post-hearing proposed findings of tact and conclusions of law, 

which I have considered along with the entire record herein. I 

make the tollowing decision. 

STIPULATIONS 

The parties have agreed to the following stipulations, wh.ich 

I accept: 

1. The Mettiki Mine is owned by contestant Mettiki Coal 

Corporation. 

2. The Mettiki Mine is subject to the jurisdiction of the 

Federal Mine Safety and Health Act of 1977. 

3. The undersigned Administrative Law Judge has 

jurisdiction over this proceeding pursuant to § 105 of the Act. 

4. The subject orders, their termination, and modification 

were properly served by duly iuthorized representatives of the 

Secretary of Labo~ upon an agent of Mettiki on the .dates, times, 

and places stated ' therein, and may ·be admitted into evidence for 

purposes Of establishing their issuance Without admitting the 

truthfulness or relevance ot any statement therein. 

5. Mettiki had 720 assessed violations in the 24-month 

period prior to the issuance of the subject orders. 

6. There has been no "clean" inspection of the Mettiki Mine 

between the S 104(d)(2) orders at issue and the previous 

§ l04(d) (1) order, No. 2701558, dated May 30, 1986. 

743 
1. The violations alleged, if .proved, were abated in good 

faith. 

a. If the violations are proven, ~he imposition .of civil 

penalties based on the facts as required by Section llO(i) of the 

Act will not affect Mettiki's ability to continue in business. 

9. Respondent•s . annual coal production is 1,987,594 tons at 

the Mettiki Mine. 

I . Docket No. YORK 89-31-R: Order No. 2944492 

. . Order No. 2944492, issued pursuant to section 104(d)(2) of 

the Act, alleges a violation of the regulatory standard at 

30 c. F .R. § 75 .202.(a) 1; and charges as follows: 

The coal ribs of an area where persons were required to 

work and travel were not supported or otherwise 

controlled to protect persons from the hazards related 

to falls ot the rib. A tatal rib roll accident has 

occurred in the No. 1 Entry of the 23 Butt Section, 

approximately thirty feet outby station No. B3109, 

where belt hangers were being bolted to the roof . carl Johnson was the section foreman. 

Mr. Nelson Blake, a mining engineer and roof control 

specialist employed by MSHA since 1980, issued the above order on 

February 21, 1989, following the investigation of a fatal rib. roll accident which occurred on February 17, 1Y8Y. Delmas 

Martin, a Mettiki emp~oyee, was killed at approximately 8:20 that 

evening in the No; 1 entry ot the 23 Butt Section of Mettiki's 

B Mine, between th_e No. 13 and No. 14 breaks. 

The 23 Butt Section was originally developed in March of 

1982 as a return air course for Mettiki's main mine . The 

original roof support in this section consisted of 6 foot resin 

roof bolts, installed 4 bolts to a row, with rows on four foot 

centers. This roof-bolting was supplemented by cribbing on 

7-foot centers with about j feet ot space between the rib and the 

edge of the crib nearest the rib. At the time of the accident, 

respondent was in the process of rehabilitating the No. 1 entry 

~/ 30 c.F.R. § 75.202(a) provides as follows: 

The roof, face and ribs of areas where persons work or travel 

shall be supported or otherwise controlled to protect persons 

from hazards related to falls ot the roof, face or ribs and coal . or rock bursts. 
for use as a headgate entry for a longwall panel. The i~nediate 

work being done was removing cribs as well as rib bolting while 

simultaneously installing belt hangers, and any necessary roof 

bolts. Just prior to the accident, two miners (Delmas Martin and 

Dave Holland) were installing belt hangers and another was using 

the horizontal drill on the back of the Fletcher dual head bolter 

to install rib bolts. 

At the time of the accident, the cribs had been removed in 

the Nos. 1 and 2 Entries up to the No. lb break. More 

specifically, the cribs between the Nos. 13 and 14 breaks, where 

Mr. Martin was killed, were removed two to tour days before the 

accident. · 

This mine has a history of rib roll accidents, including an 

earlier tatality in 1Y84. The ribs in the 23 Butt Section 

consist of soft coal beneath 2 feet of cap rock. Mr. Biddle 

stipulated that the ribs are soft in this mine and that they have 

to be carefully watched and controlled. Due to the excessive 

height of the coal (~ to. lO feet) and the softness of the coal, 

the cap rock setting on top of the coal tends to crush the coal 

out, causing the rock and the coal rib to fall out into the entry. 

It is a known ha~ard in this mine. After the 1984 fatality, MSHA 

has required rib bolting in the mine and that has reduced the 

incidence of these rib rolls. 

At the time ot the accident, Delmas Martin was working with . 

his section foreman, Carl Johnson and David ao!land. Martin and 

Holland were installing belt hangers between the No. 13 and 

No. 14 crosscuts of the No. 1 Entry of the 23 Butt Section. They 

were working near the front of and on either side of the Fletcher 

dual head bolting machine operating the root drills. Foreman 

Johnson was working at the rear of the machine, using the 

horizontal drill to install rib bolts. Approximately JO seconds 

before the accident, Johnson walked from behind the roof bolter 

up the left side ot the machine to talk to Martin, looking at the 

left rib as he passed between it. and the machine. He noticed 

nothing hazardous about the rib, and Martin expressed no concern 

about it. He talked to Martin less than a minute and then 

returned to the rear ot the machine again via the left side and 

began installing a bolt in the right-hand rib. At that instant, 

the left7hand rib collapsed, and Martin was covered up by the ~ 

faLLing debris. Neither Johnson nor Holland heard any sounds or 

had any other warning that the rib was about to fall. 

· The investigation of the accident, conducted by Mr. Blake, 

revealed that the rock brow and coal rib that feLL measured 41 

feet in length. The newly exposed roof line, created by the 

745 
fallen cap rock ranged from a teather edge to 34 inches wide and 

the cap rock itselt measured 18 to ~7 inches thick. The specific 

piece of laminated rock and coal t~at struck Mr. Martin measured 

approximately 5 1/l feet long, 2 1/~ feet wide and 1 1/l teet 

thick. 

Mr. Blake concluded that the accident and the resulting 

fatality occurred because an unsupported overhanging rock brow 

and coal rib _was not properly evaluated and taken down or 

supported. He also opined that this brow would have been readily 

visible to a reasonable person. 

Another of the Secretary's witnesses, Mr. Barry Ryan, also a 

mining engineer, and a field office supervisor for MSHA agreed 

with Blake's analysis. He participated in the investigation and 

also came to believe that a brow was present prior to the 

accident. Furthermore, he was also of the opinion that the brow 

should have been obvious to anyone in the area. 

Their 'shared opinion is based largely, if not exclusively, 

on three factors. First, portions of two painted red lines were 

still visible on the coal rib near the accident site after the 

rock and rib fell. Before the accident, the ribs had vertical 

red lines painted approximately every five teet, marking 

locations where rib bolts would be installed. Those two 

remaining paint marks indicated to Blake and Ryan that that was 

~here the original rib line was located. Prior to the tall or 

rib roll, the paint marks had extended all the way to the cap 

rock on the rib and after the fall the top if the paint marks 

were approximately one foot below the cap rock. Secondly, they 

also felt that there was insufficient coal present on the floor 

after the accident compared with the amount of fallen rock for 

the coal rib to have extended far enough into the entry to have 

obscured the vast majority of the rock brow. Thirdly, the large 

size of the fallen rock material was another factor which led 

them :to conclude that an obvious overhanging brow had t:,o have 

existed before the accident • . 

Mr. Blake also opined in his accident investigation report 

that "fm]atching the old roof line to the coal pillar indicates 

that an overhanging coal rib and/or brow was present." 

There really is no dispute that a rib or brow fell on and 

killed Delmas Martin. Nor is it disouted that any reasonable 

person, knowledgeable about roof and~rib control would recognize 

an overhanging brow as a hazardous condition and not work under 

it or permit work under it until it was removed, controlled or 

supported. 

746 
. . The issue squarely presented for decision then is whether or ·· not an overhanging brow was present and observable prior to the · ·· accident. 

The issue of kiability for violations of the roof and rib .. control standards, more particularly, the standard's requirement A , · # that the roof and ribs be supported or controlled, is resolved by 

reference to whether a reasonably prudent person, familiar with 

the mining industry and the prote·ctive purpose of the standard, . .. would have recognized that the roof or ribs were not adequately 

supported or otherwise controlled. Canon Coal Co., 9 FMSHRC 

667,668 (April 1987); Quinland Coals, Inc., 9 FMSHRC 1614, 

1617-18 (September 1987). Cf. Ozark-Mahoney Co., 8 FMSHRC 190, 

-- 191-92 (February 1986); Great Western Electric Co., 5 FMSHRC 840, 

841-42 (May 19 83). .Put another way, were there any objective 

signs existant prior to the accident that would have or should 

have alerted a reasonably prudent person to the danger or even 

the existence of an overi1anging brow? If there were, then that 

brow should have· been taken down or supported and the failure to 

do so would constitute a violation of the cited standard. 

The Secretary submits that there was an overhanging brow 

present before the accident which was readily observable. As 

support for this allegation, she offered the factual and 

ultimately the opinion testimony of Mr. Blake and Mr. Ryan. 

Blake and Ryan are both mining engineers and have extensive 

experience in underground coal mines. The Secretary urges that 

they be accepted as experts and I do acknowledge their expertise. 

Their theory, based on the factors I enumerated earlier in this 

opinion, is certainly a plausible one. However, the. weakness in 

the Secretary's case besides the fact that she has the burden of 

proof lies in the fact that the acceptance of the Blake/Ryan theory requires the rejection of all the eyewitness, on-site 

testimony in the record. ---

Most significantly it would require me to outright reject as 

incredible the two most important percipient witnesses' testimony 

about the accident; the two men who were working with Delmas 

Martin at the time he was kille.d. David Holland, a miner with 10 

years experience at Met tiki was a co-worker of Martin's. He \>las 

working on the other side ot the roof bolter with Martin at the 

time of the accident. Concerning the condition of the accident 

site the day ·betore the accident Mr. Holland testified at 

Tr. 286: 

Q. Do you recall whether there was a brow present 

along the left-hand side of the rib between 13 and 14 

crosscut? 

A. No. 

74 7 
Q. You do not recall, or there was no brow? 

A. No brow. 

As to the day of the ·accident he ·testified at Tr. 290-92: 

Q. Did you examine the ribs between 13 and 14 

crosscut before you started working beside them? 

A. Yes. 

Q. · What method did you use? 

A. VisuaL 

Q. Why did you examine the rib? 

A. To make sure they was safe. 

Q. Did you discover any hazard in the area where you were 

working? 

A. No. 

Q. Do you know if Mr. Martin examined the ribs beside him? 

A. Yes. 

Q. How do you know? 

A. I seen him looking at it. 

Q. How long before the accident occurred did you see that? 

A. Five, ten minutes. 

Q. Was there · a brow on Mr. Martin's side? 

A. No. 

* * * * * * • 

Q. Are you aware that after the accident there was .a paint 

mark !eft on the rib on the lett-hand side near the accident 

area? 

A. Yes. 

748 

,. 

I 

l' 

. '• 
Q. And you say there was no brow; is that correct? 

A. That is correct. 

Q. If there was no brow, how can you explain the paint 

mark that was left on the rib after the rib fell? 

A. Well, on those ribs the ribs is curved, and your top 

might -- we~l, the coal in the middle is real soft and it 

will kind of work -out a little bit. All your rib lines go 

like this (indicating) to the bottom, and there was a good 

bit of coal underneath the rock. There wasn't no brow. 

Q. Would you tell us what a brow is in your understanding 

of it? 

A. Overhanging rock· or coal. 

Q. Was there any requirement that you know of from anyone 

dealing with brows? What do you do when there is a brow? 

A. We pull it down; or if it is too big, we get a scoop and 

knock it down. 

Q. Why? 

A. So to be safe. 

At the end of his direct testimony, I again questioned him 

regarding this important issue and he responded at Tr. 295: 

JUDGE MAURER: Mr. Holland, in the five or 

ten Ininutes before this accident did you have an 

occasion to look at that left-hand side rib, the rib 

that teel in on Mr. Martin? 

THE WITNESS: Yes, I did. 

JUDGE MAURER: You didn't see anything untoward 

there whatsoever? 

THE WITNESS: No, nothing . There was nothing. 

Even more dramatic was the testimony of toreman Carl (Randy) 

Johnson. He has nineteen years of underground coal mining 

experience, eleven of those years with Mettiki. On the day of 

the accident, hewas the section foreman of the crew of men, 

including Delmas Martin, who were doing rehabilitation work in 

the 23 Butt Section to establish a belt line for a longwall 

panel. 

749 
Johnson performed pre-shift and onshift examinations of the 

atfected area on each of the two days i~nediately preceeding the 

accident as well as the accident date ite!f and observed no 

hazardous rib conditions and dete6ted no .overhanging coal rib 

and/or prow. 

Immediately before the fa!!, he himself was standing next to 

Delmas Martin. He described the incident in his testimony at 

Tr. 244-246: 

Q. When was the last time you were along that rib 

before it tell, if you can recall? 

A. The last. time I was [along] that rib was 

approximately 30 seconds before it tel!. 

* * * * * * * 

I was rib bolting, and I had walked up to the side to 

talk to Delmas. 

* * * * * * 

Q. When you walked up to talk to Mr. Martin which way 

did you go? 

A. I come from behind the roof bolter to the left side 

and come up to talk to him. 

* * * * * * 

Q. At that time did he express any concern about the 

rib that you had just passed beside? 

A. No, he did not. 

Q. Did you notice anything about that rib that caused 

you any concern? 

A. No, I did not. 

Q. Did you look at that rib as you walked up there? 

A. Yes, I did. 

Q. Why did you look at the rib? 

A. It is common practic~ to look at the ribs when you 

go in past the machines~ You always look at the ribs. 

750 
Q. How long did you talk to Mr. Martin? 

A. It was less than a minute. 

Q. Then what happened? . 

A. I come back to the back erid of the bolter. 

* * * * * * * 

[A]nd startad installing the bolt on the right-hand 

rib. 

* * * * * * 

I was drilling the hole when the roof come in • 

. ~s section foreman of this area, as well as the mi11e 

examiner, Randy Johnson would have been primarily responsible for 

detecting any overhanging brow that was there. I have heard his 

testimony, observed him at the trial and re~read the transcript 

of his testimony. I find it hard to believe that he would 

work and walk alongside that rib under an observable brow. He . was standing right next to .Martin talking to him less then a 

minute before the fall. I doubt very much he would have been 

doing so had he known there was an unsupported overhanging rock 

brow over his head. 

He certainly had inspected this area many times in the days 

and hours, even minutes before the accident. Just as certainly, 

he knows what an overhanging rock brow looks like as well as the 

danger involved in working under or near such a thing.. He also 

knows the only acceptable practice in such an instance is to 

either support the brow or take it down. I would say . that his 

presence alongside Martin in the minute or minutes before the 

accident speaks louder than words. It says to me that he didn't 

know he was standing under a 41-foot long overhanging rock brow. 

If we give him the fact that he knows a brow when he sees one, 

it is a reasonable inference that if there was a brow there, it 

was not observable by visual means. 

In support of the testimony of the two eyewitnesses, there 

is also ·the testimony of several other Mettiki employees who were 

in the accident area prior to the fall. 

The mine foreman, Allen Rohrbaugh, testified that he scent 

an average of four hours per day in the No. 1 Entry of the 23 

Butt Section during the week the accident occurred. He observed 

the rib conditions between the Nos. 13 and 14 crosscuts on the 

751 
day of the accident and saw no brow present or any other problem 

with the ~ib that fell. 

Mr. Thomas, who was the foreman on the night shift in the 

23 Butt section on the day of the accident also testified. He 

had performed two onshift examinations and a preshift examination 

the night prior to the accident. These examinations included 

visual examination of the ribs between Nos. 13 and 14 crosscuts. 

He likewise observed no brow. 

William D. Baumann conducted two onshift examinations and a 

preshift examination of the area between Nos. 13 and 14 crosscuts 

on the date of the ~ccident . He testified there was no visible 

brow present. 

~ Mr. Joseph E. Peck is and was at all times pertinent, 

Mettiki's Safety Coordinator. At the hearing, he produced and 

testified from his work notes that he accompanied MSHA Inspector 

calvert through the No. 1 Entry of the 23 Butt Section on 

February 1, 7, 8, 9 and 15, of 1989, including the area between 

the Nos. 13 and 14 crosscuts. Like everyone else, Peck observed 

no overhanging brow or any other indication that the rib in that 

area may have been loose. Neither, apparently, did Inspector 

Calvert see any such conditions or presumably,. he would have 

pointed it out. However, the Secretary correctly points out that 

any such observations or lack of observation must be evaluated 

from the standpoint that relatively large cribs were present in 

the area until either February 15th or 16th. The inspector, and 

for that matter, Mr. Peck, never saw the area between the time 

the cribs were removed and the accident occurred. 

The Secretary has offered no direct evidence, such as 

eyewitness testimony, for example, that a visible brow existed 

prior to the accident. Instead, the Secretary relies entirely on 

the Blake/Ryan theory that an overhanging rock brow tnust have 

existed and most assuredly was visible prior to the accident; 

This theory and its supporting factors were discussed earlier in 

this decision and as I have said it is quite plausible but 

certainly not a scientific fact. Possibly it existed, was 

visible, and should have been observed and removed or supported, 

just as they theorize. However, there was a defense presented 

based on eyewitness testimony that contradicts the ultimate 

finding they made. Six Mettiki employees who repeatedly observed 

and examined the ribs in the accident area in the days and hours 

before the accident testified unequivocably that there was no 

brow or any other hazardous condition that would have put them on 

notice that there was a rock brow existant that needed to be 

supported or taken down. I can find no rea~on to diacredit their 

testimony and therefore I conclude that the Secretary has failed 

to satisfy her burden of demonstrating that Met.tiki should have 

752 
recognized the eKistence of a hazardous roof or rib condition and 

corrected it. Specifically, I find that Mettiki cannot be 

successfully charged with the knowledge that a hazardous 

condition existed prior to the accident. The Secretary's theory 

that a pre-accident visible brow existed is contradicted and 

outweighed by the unrebutted eyewitness testimony of the Mettiki 

witnesses, all of them experienced miners, who saw no such brow 

despite conducting numerous visual examinations of the ribs and 

roof in this Section. 

I therefore conclude that the Secretary has failed to prove 

a violation of 30 C.F.R. § 75.202(a). Order No. 2944492 will 

accordingly be vacated. 

II. Docket No. YORK 89-32-R; Order No. 2944493 

Order No. 2944493, issued pursuant to section 104(d)(2) of 

the Act, alleges a violation of the regulatory standard at 

30 C.F.R. § 75.2ll(a) ~/ and charges as follows: 

A proper examination of the coal ribs was not made 

before work was started on the. 23 Butt Section. A 

fatal rib roll accident has occurred in the No. 1 Entry 

of the 23 But~ Section, approximately 30 feet outby 

station No. B3109 where belt hangers were being bolted 

to the roof. Carl Johnson was the section foreman. 

The parties· agree that a proper eKamination of the rib area 

would entail a visual evaluation of the rib over an extended 

area, looking for any hazardous conditions such as gapped or 

loose material or overhanging brows. They also agree that it is 

possible to make a proper examination and still have the rib fall 

out. 

However, having said that, it appears to me that the only 

basis upon which this particular order was issued was the fact 

that there was a fall and a man was killed. That is plainly an 

insufficient basis upon which to prove the charged violation. 

On the other side, Mettiki has demonstrated to my 

satisfaction that regular preshift and onshift visual 

eKaminations of the ribs in the accident area were conducted by 

certified and qualified personnel as more fully set out earlier 

in this decision. 

2; 30 C.F.R. § 75.2ll(a) provides as follows: 

A visual examination of the roof, face and ribs shall be made 

immediately before any work is started in an area and thereafter 

as conditions warrant. 

753 
As I found in the earlier docket, the preponderance of the 

available evidence just does not support the Secretary's 

necessary premise that an obvious overhanging brow was present in 

the area. 

Accordingly, Order No. 2944493 will likewise be vacated. 

III. Docket No. YORK 89-33-R; Order No. 2944494 

Order No . 2944494, issued pursuant to section 104(d)(2) of 

the Act, alleges a violation of the regulatory standard at 

30 c.F.R·. § 75.220 (the roof control plan standard) and charges 

as follows: 

The approved roof control plan is not being complied 

with on the 23 Butt Section. At numerous locations 

throughout the No. 1 Bntry, rib bolts have been 

installed without the end of the board as close to the 

roof as possible as required by pages 15 and 16 of the 

approved roof control plan. The ends of the boards · measured 20 inches to 30 inches from the roof line at 

several locations. At the accident site, the distance 

between the last two rib bolts measured 9.4 feet. The 

approved plan requires a six foot maximum spacing on 

rib bolts. 

On February 1, 1989, prior to starting the rehabilitation 

work in the 23 Butt Section, Mettiki filed a Rehabilitation Plan 

with MSHA. MSHA approved the plan on February 3, 1989, and 

included it in Mettiki's previously-approved Roof Control Plan. 

The Rehabilitation Plan itself speaks to rib-bolting only in a 

perfunctory -manner. It does not in and of itself explain with 

any particularity how this rib-bolting is to be done other than 

to articulate what the maximum spacing shall be in two different 

height areas. However, the Roof Control Plan, of whic~ I find 

the Rehabilitation Plan is a part, requires rib bolts to be 

installed on six-foot maximum centers "as close to the roof as 

possible". 

Mettiki argues that the Roof Control Plan clearly states 

that it applies only to areas developed after May 31, 1984; 

whereas the 23 Butt Section was developed between October 1981 

and March 1982. · 

Nevertheless, I agree with the Secretary's argument that 

when a clear definition of exactly what work is required by a 

sub-part of a document is not included in that piece of the plan, 

the next logical step is to look to the entire document for 

direction. Therefore, I conclude that the rib bolts in the 23 

Butt Section had to be installed on 6-foot maximum centers with 

rib boards placed "as close as possible to the roof". 

754 
[ 

r 

Actually Mettiki came pretty close to doing that. They were 

in the process of installing rib bolts and boards in the No. 1 

Entry of 23 Butt Section when the accident occurred. The rib 

bolts and boards outby the area of the accident were installed on 

five-foot centers. I think it is clear .that their intention was 

to install all the bolts on five-foot centers. On the day of the 

accident, Martin and Holland had painted marks at 5-foot 

intervals along the ribs of the No. 1 Entry to mark the 

horizontal spacing for the rib bolts that were being installed as 

the rehabilitation work progressed up the entry. It was their 

practice, however, to simultaneously install belt hangers and rib 

bolts on ten-foot centers as the hanger installation progressed. ·Then, when the crew reached the next crosscut, they would come 

back and install an additional rib bolt between every two, 

resulting in a five-foot space between each bolt and board. 

At the time the accident occurred~ the last two rib bolts 

that had been installed along the left rib were spaced 9.4 feet 

apart. I believe the crew had intended to come back and install 

the missing bolt and board but the accident intervened. The 

subsequent accident investigation found them in that 

configuration and I find that to be a violation of the Roof 

Control Plan and the cited standard. 

With regard to the placement of the rib boards, I also find 

that aspect of the installation to be a violation of the Roof 

Control Plan and the cited standard. I find credible the Mettiki 

testimony to the effect that the rib bolts themselves were 

installed as high as possible using a normally configured bolting 

machine with its rib drill at the maximum "up" angle, but they 

could simply have used longer boards. 

There is no evidence that the location of the rib boards in 

the No. 1 Entry or the interval between the last two bolts caused 

the accident or in any way contributed to it • . Nonetheless, for 

the reasons that follow, I find this to be a significant and 

substantial violation. 

A "significant and substantial" violation is described in 

section l04(d)(l) 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)(l). A violation is properly designated 

significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature. 11 Cement Division, 

National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

755 
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 estaolish 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 ~nJury; and (4) a 

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

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

1129 (August 1985), 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)(l), it is the contribution 

of a violation to the cause and effect of a hazard that 

must be significant and substantial. u.s. Steel Mining 

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

Th~ question of whether any particular violation is 

significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the tnine 

involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498 

<April 1988); Youghiogheny & Ohio Coal company, 9 FMSHRC 2007 

(December 1987). 

The post-accident inspection turned up approximately thirty 

rib boards placed 20 to 30 inches below the roof and not ·touching 

the cap rock in a 1200 foot area in the No. 1 Entry. The purpose 

of installing these boards is to assist in controlling both the 

coal rib and the cap rock above it. The installation of the 

boards below the cap rock could allow the cap rock to roll out 

and possibly strike persons working or walking near the rib line. 

I am convinced that this would be a reasonably likely occurrence. 

It it occurred, and anyone · was there, a serious injury or 

fatality would be very likely . 

In Halfway, Incorporated, 8 FMSHRC 8, 13 (January 1986), the 

Commission upheld a significant and substantial finding · 

756 
!'[ 

~ .' ·. 

concerning a roof area which had not been supported with 

suoplernental· support, and ruled that a reasonable likelihood of 

injury existed despite the fact that miners were not directly 

exposed to the hazard at the precise moment of the inspection. 

In that case, the Commission stated as follows at 8 FMSHRC 12: 

[T]he fact that a miner may not be directly exposed to 

a safety hazard a_t the precise moment that an inspector 

issues a citation is not_determinative of whether a 

reasonable likelihood for injury existed. The 

operative time frame for making that determination must 

take into account not only the pendency of the 

violative condition prior to the citation, but also 

continued normal mining operations. National Gyosum, 

supra, 3 FMSHRC at 825: U.S. Steel Mining Co., Inc., 

6 FMSHRC 1573, 1574 (July 1984). 

In view of the foregoing findings and conclusions, I con~lude and find that the violation was significant and 

substantial, and the inspector's finding in this regard will 

therefore be affirmed. 

The Secretary also submits that the violation was the result 

of an unwarrantable failure. 

In several relatively recent decisions concerning the 

interpretation and application of the term "unwarrantable 

failure," the Commission has further refined and eJCplained this 

term, and concluded that it means "aggravated conduct, 

constituting' more than ordinary negligence, by a mine operator in 

relation to a violation of the Act." Emery Mining Corporation, 

9 FMSHRC 1997 (December 1987): Youghioigheny & Ohio Coal Company, 

9 FMSHRC 2007 (December 1987>: Secretary of Labor v. Rushton 

Mining Company, 10 FMSHRC 249 {March 1988). Referring to its 

prior hold~ng in the Emery Mining case, the Commission stated as 

follows in Youghiogheny -& Ohio, at 9 FMSHRC 2010: 

We stated that whereas negligence is conduct that is "inadvertent,~ "thoughtless" or "inattentive," 

unwarrantable conduct is conduct that is described as 

"not justifiable" or "inexcusable." Only by construing 

unwarrantable failure by a mine operator as aggraqated 

conduct ·constituting more than ordinary negligence, do 

unwarrantable· failure sanctions assume their intended 

distinct place in the Act's enforcement scheme. 

The major reason the Secretary gives for the "unwarrantability" of this violation is that the cited condition had existed 

7~7 
for a two-week period and covered a subst·antial area that was 

regularly inspected. I don't think there is any doubt that Mettiki 

management saw the violative condition concerning the rib boards 

and knew of the practice of initially installing the rib bolts on 

10-foot centers and then going bac~ and filling in. The real 

problem is that they didn't recognize these situations as 

violations. The next question is should they have, and I 

conclude that they should have. But this is ordinary negligence, 

not aggravated conduct in my opinion. Reasonable persons I think 

could differ as to what exactly the Roof Control Plan requires 

with regard to rib-bolting. I found the Roof Control Plan 

requires Mettiki to install rib bolts and boards «as close to the 

roof as possible", but there is no explanation in the plan as to 

what exactly that means vis-a-vis the cap rock, which seems to be 

the sine qua non of the Secretary's complaint. Nor is there any 

spec.,ific require.ment for installing the rib bolts in any 

particular order as long as they finally get installed on 6-foot 

maximum centers. The violation in the case at bar is that they 

didn't. 

Accordingly, the inspector's unwarrantable failure finding will be vacated and the contested section 104(d)(2) order 

modified to a section 104(a) citation, with special significant 

and substantial findings. · 

For the reasons stated above, I conclude and find that the 

violation was serious and resulted from Mettiki's failure to 

exercise reasonable care to make sure it was complying \'lith its 

Roof Control Plan. This amounts to ordinary negligence. 

On the basis of the foregoing findings and conclusions, and 

taking into account the requirements of section llO(i) of the 

Act, I conclude and find that a civil penalty of $400 is 

reasonable and appropriate to .the violation found. 

ORDER 

1. Section 104(d)(2) Order Nos. 2944492 and 2944493 are 

vacated and MSHA's related civil penalty proposals are ~ejected. 

2. Section 104{d)(2) Order Nos. 2944494 and 3115408 are 

hereby modified to "S&S" section 104<a> citations and affirmed as 

such. 

3. Mettiki Coal Corporation is ordered to pay the sum of 

$550 within 30 days of the date of this decision as a civil 

penalty for the violations found herein. 

758 
Distribution: 

Timothy M. Biddle, Esq., Crowell & Moring, 1001 Pennsylvania 

Avenue, N.W., Washington, D.C • . 20004 (Certified Mail) 

James E. Culp, Esq., Office of the Solicitor, u.s. Department of 

Labor, Room 14480-Gateway Building, 3535 Market St., 

Philadelphia, PA 19104 (Certified Mail) 

/ml 

759 
/ 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE lAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

.MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

FRANCE STONE COMPANY , 

Respondent 

APR 18 1990 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 89- 92- M 

A. C. No. 20-00024 - 05514 

Monroe Stone Quarry 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On April 16, 1990 , the Secretary of Labor filed a 

motion for approval of a settlement reached by the parties 

in this case . The v.iolations were originally assessed at $12,000 

and the parties propose to settle for $12,000 . 

Two citations are involved in this docket, both growing 

out of a fatal accident on February 7 , 1989. One charges a 

violation of 30 C.F~R. § 56.9301 be6ause an adequate berm 

was not provided at the Bdge of a dumping area as a result of 

which a truck travelled over the edge of the stockpile 40 feet 

down to the quarry floor. This violation was ~ssessed at 

$10 , 000 . The other citation charges a violation of 30 C.F.R. 

§ 56.14131 because the truck driver was not wearing seat belts 

while transporting and dumping material at the stockpile. 

I have considered the motion in the liqht of the criteria 

in section llO(i) of the Act and conclude that it should be 

approved. 

Accordingly, the settlement is APPROVED and Respondent 

is ORDERED TO PAY the sum of $12,000 within 30 days of the 

date of this order. 

·' I ' I 

J

tu l.Li. ~ __ A{--L ::.: cL .. ,_ EtC 

James. A. Broderick 

' Administrative Law Judge 

Distribution: 

Rafael Alvarez, Esq. , u.s. Dept. of Labor, Office of the Solicitor, 

230 S. Dearborn St., Chicago , IL 60604 (Certified Mail) 

Henry Chajet, Esq. , Jackson & Kelly, 1701 Pennsylvania Ave . , N.N., 

Washington , D.C . 20006 (Certified Mail) 

slk 

760 

-
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, l Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

April 19, 1990 

BETH ENERGY MINES, INC. , Contestant 

CONTEST PROCEEDINGS 

v. 

SECRETARY OF LABOR, MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Respondent 

. . 

DECISION 

Docket No. PENN 89- 277-R 

Citation No . 3088080; 9/7/89 

Docket No. PENN 89-278- R 

Citation No. 3088162; 9/7/89 

Livingston Portal 

Eighty Four Complex 

Appearances: R. Henry Moore, Esq., Buchanan Ingersoll Professional Corporation, Pittsburgh, PA 

for the Contestant: 

Before: 

Anita D. Eve, Esq., Office of the Solicitor, 

Philadelphia, PA, for the Respondent. 

Judge Fauv~r 

Beth Energy seeks to vacate two citations and the· Secretary 

seeks to affirm them, with civil penalties, 1/ under the Federal · Mine Safety and Health Act of 1977 , 30 u.s.c: § 801 et seq. _ 

Having consi dered 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 

and further findings in the Discussion below: · 

FINDINGS OF FACT 

1. 0~ June 13 , 1984, MSHA Inspector Francis E. Weir 

observed the following condition at Beth Energy Mine Inc.'s No. 

84 Complex underground coal mine: 

!/ At the hearing the parties stipulated that this record may be 

used to assess civil penalties if violations are found , without 

the necessity of filing a separate petition for assessment of 

civil penalties. 

761 
A clear travelway of at least 24 inches wide was 

not provided on both sides of the belt conveyor in the 

longwall section MMU 031. Starting. at the tipple and 

extending inby for approximately 400 ft ; For the first 

200 ft. the clearance changed from the left side back to 

right and management had the area fenced off and a 

crossunder had been provided. The second area was 

approximately 300 ft. inby the tipple was on the left 

side and · the clearance was between 23 inches and 15 

inches for approximately 10-15 feet in two different 

locations. 

Pursuant to 30 C.F.~. §§ 75.1403 and 75.1403-5(g), the inspector 

issued Notice to Provide Safeguard No. 2395866, which stated: 

This is a notice to provide safeguard that 

requires· at least 24 inches of clear travelway be 

provided on both sides of all belt conveyors 

installed after March 30, 1970 at this mine. 

2. On September 7, 1989, at the same mine, MSHA Inspector 

John Mull issued § 104(a) Citation Nos. 3088080 and 3088162, 

alleging violations of the safeguard notice issued by Inspector 

Weir. Citation No. 3088080 stated: 

At least 24 inches of a clear travelway 

was not provided on both sides of the Number 4 

belt, as the side not normally walked was 

obstructed with rib material, crib block and 

other material at numerous locations.· 

Citation No. 3088162 stated: 

At least 24 inches of a clear travelway 

was not provided on both sides of the entire· Number 3 belt,· as the side not normally walked 

was obstructed with rib mate.rial, crib block 

and other material at numerous locations. 

3. Belts 3 and 4 are main belts that travel uphill for 

about 3000 feat each. The belts are suspended from the mine roof. 

From the top of the belt to the mine roof there is a three to 

four foot clearance. The bottom belt is about 18 to 24 inches 

from the mine floor. The belts are 60 inches wide. 

4. The obstructions noted in Citation No. 3088162 .were 3 

inches high in one location and l 1/2 to 2 feet high in others. 

The obstructions noted in Citation No. 3088080 were as high as 3 

feet. 

5. The obstructions created hazards of tripping, slipping 

and falling, including· falling against a . moving belt.· 

762 
6. Miners worked on the "tight" side of the belts to clean 

up spillage, to maintain the roof support system, to change belt 

rollers, and, in the event of an interruption of the ventilation 

system, to make repairs on the stopping line. Inspector Mull 

found evidence that someone had traveled the tight.side of the 

belt in that there were legs for !-beams used for a roof support 

system in some of the material left along one of the cited belts. 

7. Beth Energy has a policy that prohibits employees from 

working on the tight side of the belt when the belt is running 

unless another employee is stationed at the pull cord, on the 

wide side. When activated, the pull cord stops the movement of 

the belt conveyor, but not immediately. Oepending on the weight 

of the load on the belt, the belt would travel. another 5 to 15 

feet. An employee would most likely work on the tight side of a 

moying belt to clean up spillage. In the event that an employee 

tripped or fell while the belt was running and became entangled 

in the belt, serious injuries, even death, could occur. 

8. Citations Nos. 3088080 and 3088162 were abated over the 

course of 10 shifts, with two to four employees performing 

clean-up activities on each shift. The belts were running when 

this work was done; one employee stood on the wide side at the p~ll cord and another cleared loose coal, sloughage and other 

materials from the tight side. 

9. Safeguard Notice No. 2395866 was one of many similar 

safeguard notices issued to mines in the Monroeville subdistrict 

in Region II of MSHA pursuant to 30 C.F.R. § 75.1403-S(g). These 

all traciked the lariguage of that published criterion. 

DISCUSSION WITH FURTHER FINDINGS 

The principal issue is whether a notice to provide a 

safeguard issued under 30 C.F.R. §§ 75.1403 and 75.1403-S(g) is 

valid where (1) it tracks a criterion promulgated in the 

regulation, and (2) it addresses a safety hazard of a general 

rather than a mine-specific nature. 

An inspector's authority to issue safeguard notices, which 

become mandatory safety standards for the mine, is found in 30 

C.F.R. § 75.1403, which repeats § 314(b) of the Act. tt 

provides:· 

Other safeguards adequate, in the judgment of 

an authorized representative of the Secretary, to 

minimize hazards with respect to transportation of 

men and materials shall be provided. 

Section 75.1403-1 provides: 

(a) Sections 75.1403-2 through 75.1403-11 set 

out the criteria by which an authorized representative 

763 
of the Secretary will be guided in requiring other 

safeguards on a mine-by-mine basis under section · 75.1403. Other safeguards may be required. 

(b) The authorized representative of the 

Secretary shall in writing advise the operator of 

a specific safeguard which is required pursuant to 

section 75.1403 and shall fix a time in which the 

operator shall provide and thereafter maintain such 

safeguard. If the safeguard is not provided within 

the time fixed and if it is not maintained thereafter, 

a notice shall be issued to the operator pursuant to 

section 104 of the Act. 

(c) Nothing in the section 75.1403 series in 

this Subpart 0 precludes the issuance of a withdrawal 

order because of imminent danger. 

Respondent contends that the original safeguard is invalid 

because it addresses a general rather than a mine-specific 

hazard. 

In Southern Ohio Coal Co., 10 FMSHRC 963 (1988), the 

Commission discussep the issue of the general application of 

safeguards but did not rule on the specific issue whether a 

notice to provide safeguard may be issued for a hazard of a 

general rather than a mine-specific nature. It discussed the 

subject as follows: 

The Commission has observed that while other 

mandatory safety and health standards ~re adopted 

through the notice and comment rulemaking procedures 

set forth in section 101 of the Act, section 314(b) 

extends to the Secretary an unusually broad grant of 

regulatory power--authority to issue standards on a 

mine-by-mine basis without regard to the normal 

statutory rulemaking procedures. Southern Ohio Coal 

Co., supra, 7 FMSHRC at· 512. The Commission also has 

recognized that the exercise of this unique authority 

must be bounded by a rule of interpretation more 

restrained than that accorded promulgated standards. 

Therefore, the Commission has held that 'a narrow 

construction of the terms of a safeguard and its int~nded reach is required and that a safeguard 

notice must identify with specificity the nature 

of the hazard at which i~ is directed and the remedial 

conduct required by the operator to remedy such 

hazard. · 

These underlying interpretive principles 

strike an appropriate balance between the Secretary's 

authority to require safeguards and the operator's 

right to notice of the conduct required of him. 

764 
.. .. :-

:.: 

.. · .. 

.·.·.:: 

They do not, however, resolve the important issue 

raised here for the first time--whether a notice to 

provide safeguard can properly be issued to address 

a transportation hazard of a-general rather than 

mine-specific nature. The United States Court of 

Appeals for the District of Columbia Circuit, in the 

context of the Mine Act's provision for mine-specific 

ventilation plans, has recognized that proof that 

ventilation requirements are generally applicable, 

rather than mine-specific, may provide the basis for 

a defense with respect to alleged violations of 

mandatory ventilation plans. In Zeigler Coal Co., 

supra, the court considered the relationship of a 

mine's ventilation plan required under section 303(o) 

of the Act, 30 u.s.c. § 863(o), to mandatory health 

and safety standards promulgated by the Secretary. 

The court explained that the provisions of such a 

plan cannot "be used to impose general requirements 

of a variety well-suited to all or nearly all coal 

mines" but that as long as the provisions "are 

limited to conditions and requireme~ts made necessary 

by peculiar circumstances of individual mines, they 

will not infringe on subject matter which could have 

been readily dealt with in mandatory standards of 

universal application." 536 F.2d at 407; See also 

Carbon County Coal Co., 6 FMSHRC 1123, 1127 (M~y 1984) 

{Carbon County I); Carbon County Coal Co., 7 FMSHRC 

1367, 1370-72 (September 1985) (Carbon County II). 

Whether, as the judge believed, a similar type of 

challenge may be made to a safeguard notice is a 

question of significant import under the Mine Act. 

Given the manner in which this important question 

was raised and addressed in the present case, and 

the nature of the evidence in this record, it is a 

question that we do not resolve at this time. [10 

FMSHRC at 966-7.] 

Section 101 of the Act establishes rulemaking procedures for 

the promulgation of tnandatory safety or health standards. The 

Secretary must comply with the formal notice and comment 

rulemaking. procedures of the Administrative Procedure Act. As 

part of the history of administrative law, Congress reco~nized 

th~t substantive standards are likely to be fairer and sounder tr 

they are subject to comment by an interested public, and if the ·enf )rcement agency is required to explain its regulatory choices. 

See generally 1 K. Davis, ~dministrative Law Treatise 

§§ 6.12-6.33 (1978). In short, standards established by formal 

rulemaking a'Ce preferred because they are less likely to be 

arbitrary. See Ziegler Coal Co. v. Kleppe, 536 F.2d 398, 402-03 

<D.C. Cir. 1976) ("most important aspect · [of agency authority to 

promulgate mandatory standards] is the requirement of . consultation with knowledgeable representatives of • • • ind~stry 

765 
[among others]" which was intended to address concern that 

"freely exercised power of amendment [of mandatory standards] 

might result in an unpredictable and capricious administration of 

the statute">. 

Congress recognized, however, that conditions vary 

substantially from mine to mine, and that neither it nor the 

agency coul~ anticipate every hazard that might arise in a mine. 

Accordingly, Congress developed several mechanisms in the Act to 

establish standards on a mine to mine basis without formal 

rulemaking: (1) Petitions to the Secretary for modification of 

the application of a mandatory standard; <2> mine plans (approved 

by the Secretary> tailored to the conditions of each mine; and 

(3) safeguard notices issued by inspectors under § 314(b) of the 

Act {repeated as 30 C.F.R. § 75.1403), limited to the 

transportation of men and materials in underground mines. 

In Ziegler Coal, supra, the Court observed _that a 

"significant restriction on the Secretary's power to use the 

ventilation plan as a vehicle for avoiding more stringent 

requirements [the rulemaking process] arises from tha pla~ 

provisions' obvious purpose to deal with unique conditions 

peculiar to each mine." 536 F.2d at 407. Analyzing the 

relationship between a ventilation plan under Section 303(o) of 

the Mine Act, 30 u.s.c. § 863(o), and the mandatory standards 

relating to ventilation, the Court further noted that "the plan 

idea was conceived for a quite narrow purpose. It was not to be 

used to impose general requirements of a variety well-suited to 

all or nearly all coal mines • • " [ Id. emphasis added.] The 

Court further stat·ed: 

[A]n operator might contest an action seeking to 

compel adoption of a plan, on the ground that it 

contained terms relating not to the particular · circumstances of his mine, but rather imposed 

requirements of a general nature which should 

more properly have been formulated as· a mandatory 

standard under the provision of § 101 • • • . For 

insofar as those plans are limited to conditions 

and requirements made necessary by peculiar 

circumstances of individual mines, they will not 

infringe on subject matter which could have been 

readily dealt ~ith in mandatory standards of 

universal application. [Id. emphasis added.] 

Several Commission judges (including this judge) applied the 

Ziegler rationale in holding safeguards to be invalid because 

they were not 1nine-specific but addressed hazards of a general 

nature. 

However, after those decisions, in United Mine Workers of 

America v. Dole, 870 F.2d 662, 672 (D.C. Cir. 1989), the court 

clarified its previous Zielger holding by stating that~ 

766 

-
We read this caution in Zeigler to say only that 

the Secretary could abuse her discretion by utilizing 

plans rather than explicit mandatory standards to 

impose general requirements if by so doing she 

circumvented procedural requirements for establishing 

mandatory standards laid down in the Mine Act. 

zeigler did not purport to ignore the considerable 

authority of·the Secretary to determine what "should 

more properly have been formulated as a mandatory 

standard under the provisions of § 101," id., and 

to determine what is "subject matter whichcould 

have been readily dealt with in mandatory standards 

of universal application," id. 

As so clarified, the Zeigler decision is "a warning that the 

Secretary should utilize mandatory standards [by formal rulemaking] for requirements of universal application," but it- does 

not preclude the Secretary from "requiring that generallyapplicable plan approval criteria or their equ{valents be 

incorporated into mine plans" (870 F.2d at 672). The Court's 

reasoning for the latter conclusion has particular significance 

here. 

In the UMWA case, the union challenged new regulations on 

ground that they provided less protection than existing safety 

standards. Under the Act, the Secretary is authorized to replace 

eKisting mandatory health and safety standards only if the new 

standards provide at least the same level of protection to miners 

as the old ones. A key issue was whether the Secretary's 

published roof control criteria for approving roof plans were 

"mandatory health or safety standards" as that term is used in 

Section l0l(a}(9) of the Act, since only ~andatorf standards are 

included within the "no-less protection" directive of the Act. 

The cou~t first noted that the specific ~ontents of a roof 

control plan are determined through consultation between the mine 

operator and the district manager of MSHA, and that, to guide 

this process, MSHA had promulgated criteria to be met in all 

plans. District managers of MSHA were eKplicitly prohibited from 

approving plans that did not provide t~e same level of protection 

as the promulgated criteria. 870 F.2d at 667-668. The Court 

held that the general criteria promulgated by the Secretary for_ 

roof control plans met the notice and comment requirements of 

rulemaking and were in fact mandatory standards under 

§ 10l(a)(9), so as to invoke the no-less protection rule. Thus, 

roof co~trol plans could be approved by MSHA only if they eith~r 

conformed to the criteria or "provide[d] no less than the same 

measure of protection to the miners" as the criteria. 870 F.2d 

at 670. The Court concluded that the general criteria already 

existing with respect to roof control constituted a mandatory 

standard laying down a required level of protection for mine~s 

that had to be met by all plans. tn so holding, the Court 1 

767 
concluded that the decisions in Zeigler and Carbon County Coal 

co. did not stand for the proposition that the Secretary was 

prohibited from setting general criteria as mandatory standards 

for approval of mine operators' plans. 

As clarified by the UMWA decision, Ziegler's warning applies 

only to plan requirements that are not based upon promulgated 

plan criteria. 2/ To the extent, therefore, that the Ziegler 

analysis .is applicable to safeguard cases, its application is 

limited to safeguards that are not based upon criteria 

promulgated. under Section 101. -

·In 30 C.F.R. §§ 75.1403-2 through 75.1403-11, the Secretary 

has promulgated criteria as guidelines to MSHA inspectors in 

issuing safeguards pursuant to Section 314(b) of the Act and 30 

C.F.R. § 75.1403. The criteria were the subject of notice and 

comment rulemaking under Section 101 of. the Act. See .35 F.ed. 

Reg. 12, 911, et seq. <August 14, 1970) . (Notice of Proposed 

Rulemaking>: 35 Fed. Reg. 17, 890, et seq. (November 20, 1970) 

(Final Rule). Like the roof control plan criteria discussed by 

the court in UMWA, operators had the opportunity to participate 

in that rulemaking and since promulgation of the criteria they 

have been on notice of the conduct expected of them. Unlike 

other mandatory standards, the roof control criteria in UMWA did 

not become enforceable until they were included in a roof control 

plan. Similarly, the safeguard criteria are not enforceable 

until an operator has been issued a safeguard notice that 

includes a particular criterion. Use of a promulgated safeguard 

criterion in safeguard notices is therefore not a circumvention. of Section 101 rulemaking procedures. 

Section 75.140-3-5(g) is one of those criteria and it states 

that a clear travelway at least 24 inches wide should be 

provided on both sides of all belt conveyors installed after 

March 30, 1970. The inspector cited and tracked this criter~on 

in issuing Notice to Provide Safeguard No. 2395866. 

The Secretary relies on.the UMWA case in contending that a 

safeguard that is based on one of the criteria in 30 C.F.R. 

§§ 75.1403-2 through 75.1403-li is valid even though it addresses 

a general rather than a mine-specific hazard. Before the Court 

decided the UMWA case, its earlier Zeigler decision and 

references to Zeigler it by the Commission and a number of Co~nission judges (including this judge) would not have indicated 

support foe this position. However, the UMWA ·decision 

illuminates this area of the law and supports the Secretary's 

position. As mentioned, the Court found that the Secretary's 

2/ Both Ziegler and Carbon County involved ventilation plan 

provisions of general applicability which were not based uoon 

published criteria and, therefore, did not meet rulemaking~ 

requirements. See 870 F.2d at 671-72. · 

768 
.l 

; 

"roof plan approval criteria were promulgated according· to notice 

and con\ment procedures" and that "the cri.teria regulations ••• 

themselves constitued a mandatory standard laying down a required 

level of protection for miners that had to be met by all plans" 

(870 F.2d at 670 and 671). By analogy, I find that the · secretary's published criteria for safeguard notices were 

promulgated according to the notice and comment procedures of § 

lOl(a) and therefore may be used as safeguards even though they 

are applied at many mines and are not mine-specific. Similarly, 

the Commission's distinction between promulgated safety standards 

(by rulemaking) and safeguards issued by an inspector, holding 

that safeguards are subject to a strict construction rule,1/ is 

not applicable to safeguards that are based upon a published 

criterion, in light of the UMWA decision. 

In summary, I hold that if an inspector's safeguard notice 

is based on a published criterion (in 30 C.F.R. §§ 75.1403-2 

through 75.1403-11), using the same or substantially the same 

language as the criterion, then (1) the safeguard is valid even 

if the hazard is of a general rather than a mine-specific nature, 

and (2) the safeguard is not subject to the strict construction 

rule announced by the Commission in Southern Ohio Coal Co., 

supra, but should be interpreted in the same manner as any other 

promulgated safety standard. 

Applying these holdings to the instant cases, I find that 

the original safeguard notice is valid because it cited and 

tracked a oublished criterion, i.e. 30 C.P.R. § 75.1403-5(g). Therefore,~ it is subject to a "reasonable notice" rule of 

interpretation, the same as applied to any published safety . standard, and not the strict rule of construction announced in 

Southern Ohio Coal Co. Under the applicable rule, the question 

is whether the language of the safeguard (safety standard) gives 

3/ In Southern Ohio Coal Co., 7 FMSHRC 503 (1985), the 

Commission held that, "in interpreting a safeguard a narrow 

construction of the terms of the s~feguard and its intended reach 

is required." Id. at 512. It based this holding on "the crucial 

difference in the rules of interpretation applicable to mandatory 

standards promulgated by the Secretary and those applicable to 

'safeguard notices' issued by [her] inspector." !d. Applying .. this principle of narrow construction, it he ld that a safeguard 

notice that referred to "fallen rock and cement blocks at three 

locations," and required 24 inche~ of clear travelwaj on both 

sides of a belt conveyor, was not sufficient notice to support a 

later citation based on water accumulations for a depth of 10 

inches frorn rib to rib, causing slipping and stumbling hazards in 

the travelway. However, that decision was before the Court's . UMWA decision, supra, and would not logically apply to ·published 

criteria that met the rulemaking requirements. 
reasonable notice to the operator of the conduct required. This 

inquiry is limited to the language of the safeguard, and does not 

depend on the context of the original safeguard notice. I find 

that the language of the safeguard at issue, to provide a "clear 

walkway," gives reasonable notice to the operator to maintain a 

walkway that is clear, i.e. open and free of obstructions, for 

the minimum width specified on both sides of a conveyor belt 

installed after March 30, 1970. The evidence of substantial 

obstructions in the tight walkway of each belt amply sustains the 

two citations. 

Beth Energy argues that the Secretary is estopped from 

relitigating the issue whether safeguards ·may be issued without 

regard to mirie-specific conditions. It states tha~ this issue 

was litigated between the parties in Beth Energy Mines, Inc., 11 

FMSHRC 942 (Judge Mellick, 1989). However, that case did not 

involve§ 75.1403-S<g>. Also, it appears to have been decided 

without the benefit of the UMWA decision, and does not consider 

the Court's clarification of its Zeigler decision. I therefore 

reject the estoppel argument. 

The operator contends that the cited violations should not 

be found to be "significant and substantial," citing Commission 

decisions such as ·rwlathies Coal Co., 6 FMSHRC 1 ( 1981), which hold 

that an S & s violation is one that presents a reasonable 

likelihood that the hazard will result in a reasonably serious 

injury. In light of the extent and height of the obstructions in 

the tight walkNay of each belt, I find that the violations 

presented a reasonable likelihood of causing a serious injury. The risks included shipping, tripping, and falling and, in some 

cases, falling against a moving belt. The practice of stationing 

a miner on the wide side of the belt, near the belt pull cord, 

did not reduce the violation below an s & S degree, because in an 

emergency a serious injury or even death could result despite 

having the cord pulled. Firs·t, the miner on the wide side would 

have to observe the accident and then pull the emergency cord. 

The time spent in these reflexes could easily be too late to 

prevent serious injury or a fatality. Secondly, even if the 

miner pulled the cord immediately, the belt would travel some 

distance and its added motion (5 to 15 feet) could cause serious 

injury or even death if the victim were entangled in a roller. 

Finally, the operator contends that the two citations are 

duplicative. It argues that, since the two belts had originally been one belt and the violative conditions are essentially the 

same, only one violation should have been cited. 

Each belt was 3,000 feet long and the belts were separately 

designated by the operator. I find the conditions were 

sufficiently separate in distance and in identity of the . . equipment to justify two citations. Considering all the cntana 

for a civil penalty in § llO<i> of the Act, I . find that a 

penalty of $150 for each violation is appropriate. 

770 
CONCLUSIONS OF LAW 

1. The judge has jurisdiction over these proceedings. 

2. Notice of Safeguard No. 2395866 is valid. 

3. The operator violated 30 C.F.R. §§ 75.1403 and 

75.1403-S(g) as a~leged in Citation No. 3088080. 

4. The operator violated 30 C.F.R. §§ 75.1403 and 

75.1403-S(g) as alleged in Citation No. 3088162. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Notice of Safeguard No. 2395866, Citation No. 3088080 

and Citation No. 3088162 are AFFIRMED. 

2. The above contest proceedings are DISMISSED. 

3. Beth Energy Mines, Inc., shall pay the above civil 

penalties of $300 within 30 days of this Decision. 

Distribution: 

/~J·gtj~~v~ ~trf1am Fauver 

Administrative Law Judge 

R. Henry Moore, Esq., Buchanan Ingersoll Professional 

Corporation, 600 Grant Street, 58th Floor, Pittsburgh, PA 15219 

(Certified Mail) 

Anita D. Eve, Esq., Office of the Solicitor, u.s. Deoart~ent of 

Labor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

iz 

771 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION . 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 2 01990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), ~ Petitioner Docket No. PENN 89-143 

A. C. No. 36-00.845-03501 

v. 

cambria Slope ... BULK TRANSPORTATION SERVICES, 

INC., 

Appearances: 

Before: 

Respondent 

DECISION 

James Culp, Nanci Hoover, Esqs., Office of the 

Solicitor, u.s. Department of Labor, Philadelphia, Pennsylvania, for the Petitioner; 

Thomas E. Weiers, Jr., Esq., Rich, Fluke, Tishman 

& Rich, Pittsburgh, Pennsylvania, for the 

Respondent. 

Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section 110(a) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a), 

seeking a civil penalty assessment in the amount of $54, for an 

alleged violation of mandatory safety standard 30 C.F.R. 

§ 77.807-3. The respondent filed a timely answer denying the 

alleged violation, apd a hearing was held in Indiana, 

Pennsylvania. The parties filed posthearing briefs, and I have 

considered their arguments in the course of my adjudication of 

this matter. 

Issues 

The issues presented are (1) whether the respondent is an 

independent contractor and the proper party responsible for the 

alleged violation; (2) the appropriate civil penalty that should 

772 

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be assessed against the respondent for the alleged violation 

based upon the criteria found in section 110(i) of the Act; and 

(3) whether the violation was "significant and substantial. " 

Additional issues raised by the parties are identified and 

discussed in the course of this decision. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

Pub. L. 95-164, 30 u.s.c. § 801 et seq. 

2. Sections 110(a) and (i) of the 1977 Act, 30 u.s.c. § 820 (a) and (d) • 

. 3. MSHA's Independent Contractor regulations, Part 45 , Title 30, Code of Federal Regulations. 

4. Commission Rules, 20 C. F.R. § 2700.1 et seq. 

Petitioner' s unopposed oral motion made at the hearing to 

amend its pleadings to reflect an alleged violation of mandatory 

safety standard 30 C. F. R. § 77.807-3, rather than 30 C.F.R. 

§ 77.807-2 , was granted (Tr. 10) . 

Stipulations 

The parties stipulated to the following (Tr. 10-13): 

1. A true and correct copy of the contested 

citation was properly served on the respondent by a 

duly authorized representative of the Secretary of 

Labor, and the citation and termination may be admitted 

for the purpose of establishing their issuance, and not 

for the truthfulness of the statements asserted 

therein. 

2. For the purposes of the size of the respondent's business, the part ies agree that the respondent 

company does not have any annual coal production. 

3 . The respondent's history of prior violations 

consists of "zero violations" during the 24 - month 

period pr.eceding the issuance of the contested 

citation. 

~. A civil penalty assessment for the alleged 

violation, if established, wil·l not adversely affect 

the respondent's ability to continue in business. 

5. At the time of the alleged violation, the 

respondent was under cont ract with the Beth Energy 

Mines Incorporated to haul coal from its Cambria Coal 

773 

.. , 

·t · •. ! • . 
Preparation Plant to sites designated by Beth Energy 

Mines Incorporated. 

6. The respondent subcontracted with one James R. 

Krumenaker, an independent trucker, to haul coal 

pursuant to its contract with Beth Energy Mines 

Incorporated, in accordance with a motor vehicle 

leasing agreement which is included as respondent's 

exhibit R-2. 

7~ The respondent registered with the Beth Energy 

Mines Incorporated, the production operator, the information required by MSHA regulation 30 C.F.R. § 45.4, 

8. The coal being hauled by trucker James R. 

Krumenaker was being placed into the stream of 

Interstate Commerce, and it was being hauled from the 

Cambria Mine to the Pennsylvania Electric (Penelec) 

Power Plant at Homer City, Pennsylvania. 

9. The parties further stipulated to the admissibility of exhibits P-1 and P-2, and R-1 through R-4 

(Tr. 19). 

Discussion 

The undisputed and stipulated facts establish that on or 

about January 4, 1989, MSHA Inspector Nevin J.. Davis went to the 

Cambria Coal Preparation Plant mine site owned and operated by 

Beth Energy Mines Incorporated in response to information which 

he had received that the mine fan and power were out of commission because something had come in contact with an overhead highvoltage powerline. After arriving at the site, the inspector 

found that a coal haulage truck being operated by .Mr. James 

Krumenaker, whose truck was leased to the respondent, had come in 

contact with the power wire. Mr. Krumenaker had raised the bed 

of his truck to get rid of some snow and ice while he was parked 

under the power wire waiting for the truck to be loaded with 

coal. Although the truck was damaged when the ·bed contacted the 

wire, Mr. Krumenaker jumped from the truck after it contacted the 

wire and he was not injured. ·Since there were no injuries, the 

inc:i.dent was not a "reportable accident" and it was not reported 

to MSHA. 

The facts further show that at the time of the incident, the 

respondent had a contract with Beth Energy Mines to haul coal 

from the Cambria Preparation Plant to various locations designated by Beth Energy Mines. Mr. Krumenaker's load was scheduled 

to be delivered to the Pennsylvania Electric (Penelec) Power 

Plant at Homer City, Pennsylvania. The respondent, owned no 

trucks of its own, but had lease agreements with several independent coal haulers, including Mr. Krumenaker, to haul coal for 

774 
Beth Energy from the Cambria Preparation Plant to customers 

designated by Beth Energy. After completing his inquiry of the 

incident, Inspector Davis issued section l04(a) "S&S" Citation 

no. 2889508, to the respondent citing an alleged violation of 

oandatory safety standard 77.807-2 . As noted earlier, the citation was amended to charge an alleged violation of section 

77.807- 3. The cited condition or practices states as follows: 

A coal truck being operated by an independent 

contractor for Bulk Transportation Services, Inc. , (PUC # A101351CCMC154209) came into direct contact with 

an overhead energized high voltage transmission line 

(46KV) in and around the immediate area of the Penelec 

Substation. This truck was stopped directly under this 

high voltage transmission cable when the truck bed was 

inadvertently raised in the upwards position for the 

purpose of removing snow and ice from the inside of the 

truck bed and came directly into contact with the high 

voltage transmission cable. No injuries occurred at 

this time, however, several of the truck tires were 

destroyed. 

HSHA' s Testimony and Evidence 

MSHA Inspector Nevin J. Davis confirmed that he issued the 

citation in question, and he explained that he was informed that 

the mine fan and power were out of commission because something 

had come in contact with a high- voltage powerline and shorted out 

the power. Mr. Davis stated that he determined that a haulage 

truck operated by James Krumenaker came into contact with the 

powerline after Mr. Krumenaker raised the truck bed to get rid of 

some snow and ice while parked under the powerline. 

Mr. Davis stated that the truck was on the property to pick 

up and haul coal from the mine to another site. He confirmed 

that he cited the respondent with the violation because it was 

the only independent contractor who was on the list maintained by 

the mine operator Beth Energy Mining Company pursuant to .·.. 3 0 C. F. R. § 4 5. 4. Mr. Davis explained further that the truck had 

a decal on it identifying the respondent as the truck operator 

and he assumed that the driver, Mr. Krumenaker, was employed by 

the respondent. He conf-irmed that Mr. Krumenaker was not listed 

as an independent contractor performing services at the mine. 

Mr. Davis stated that he made a gravity finding of "highly 

likely," and considered the violation to be S&S, because he .; believed that the driver could have suffered fatal injuries by 

the truck coming in contact with the high-voltage line. He 

stated that the contact blew out eight of the truck ' s tires and 

that the driver was very upset. 

775 

.·• 

., .:, 
Mr. Davis stated that he based his low negligence finding on 

the fact that the driver may not have been aware of the fact that 

he had stopped his truck under the high~voltage line. He stated 

that the incident occurred at 4:45 a.m. and that the visibility 

was poor. Mr. Davis confirmed that the high-voltage line was 

located at an appropriate height above the truck, and that the 

height and location of the line did not violate any MSHA 

standard. 

Mr. Davis stated that the truck driver told him that he had 

raised the truck bed to remove snow and ice before loading the 

truck. Mr.- Davis confirmed that the respondent had a contract 

with Beth Energy to haul coal and that it made no difference to 

him whether or not the respondent had a sub-contract with anyone 

else. He also confirmed that the driver informed him that he had 

po haulage contract with Beth En~rgy (Tr. 20-28}. 

On cross-examination, Mr. Davis confirmed that although 

Mr. Krumenaker did not indicate that he was an employee of the 

respondent, he assumed that he was because of the respondent's 

sign on the truck. Mr. Davis stated that he is authorized to 

issue a citation to an independent contractor fo~ a violation 

even though the contractor may not be designated as an independent contractor on the mine operator's records. 

Mr. Davis confirmed that the violation was abated by David 

Gould, Beth Energy's plant foreman, and that Mr. Gould instructed 

Mr. Krumenaker to be aware of the high-voltage line. Mr. Davis 

further confirmed that if the powerline was not located at the 

proper height, he would have issued a citation to Beth Energy. 

Mr. Davis stated that the State of Pennsylvania PUC number 

must be displayed when the coal haulage truck is. hauling coal. 

He confirmed that he served the citation on the respondent 

because he determined that the truck driver was hauling coal off 

the mine property which was owned and operated by Beth Energy 

(Tr. 29-33}. He confirmed that even if Mr. Krumenaker were not 

an employee of the respondent, it would have made no difference 

to him because he relied on the fact that Mr. Krumenaker was 

hauling coal for the respondent (Tr. 34). 

Mr. Davis confirmed that the driver was parked in his empty 

truck while waiting to load and raised his truck bed to free it 

of ice and snow which may have 'presented a tipping hazard and did 

not realize that he was under the overhead powerline. Since the 

driver jumped out of the vehicle when it contacted the wire, he 

was not injured, and the inc~dent was not considered to be a 

reportable accident (Tr. 40). He confirmed that he spoke with 

the driver who informed him that he did not know that the wires 

were overhead (Tr. 4l). 

776 
-:.----

::·~ 

.-:-:: 

Mr. Davis stated that the sign on the truck was a wooden 

board which were standard on all of the respondent's trucks, and 

since it contained the respondent's name, he assumed that the 

truck belonged to the respondent. He did not ask the driver 

whether he worked for the respondent, and simply assumed that he 

did because of the sign (Tr. 43). , If the driver had told him 

that he was an independent contractor, he would "probably" have 

issued a citation to him and a citation to Beth Energy for not 

listing the driver on its records as an independent contractor 

(Tr. 43). 

Mr. Davis confirmed that Beth Energy did not have a sign 

warning drivers about low overhead clearances. He did not cite 

Beth Energy because it was difficult for Beth Energy to control a 

driver's raising of his bed, and Beth Energy usually instructed 

people "about raising beds and stuff like that" {Tr. 44). He 

confirmed that the location of the power wire met MSHA's minimum 

over head clearance distance requirements under section 77.807-2. 

He described the truck as a regular triaxle coal haulage truck 

with a "telescopic" boom jack for raising the bed (Tr. 46-47). 

Mr. Davis confirmed that he spoke with the respondent after 

issuing the citation and explained what he had done, and that the 

respondent took the position that it was not responsible for the 

violation. Mr. Davis then suggested that the respondent seek a · conference with MSHA's district manager, but it did not prevail 

on its position that the citation should not have been served on 

the respondent (Tr. 51) • 

Mr. Davis identified exhibits R-3 and R-4, as copies of two 

prior citations he issued on January 29, 1987, to Beth Energy at 

the Cambria Preparation Plant for violations of section 

77.1710(d) and 77.1608{c) when he observed that a truck driver 

was not wearing a suitable hard hat while at the dumping silo, 

and that the driver was exposed to a hazard while in an area 

where coal dumping operations were taking place. He confirmed 

that the citations were subsequently modified after Beth Energy 

protested during an MSHA conference, and the modifications 

reflect that they were reissued to Bulk. Mr. Davis confirmed 

that Bulk was subsequently absolved of any responsibility for the 

citations, but he could not recall who they were reissued to (Tr. 

53). Respondent's counsel explained that after convincing MSHA 

during a conference· that the cited conditions were caused by 

another independent contractor MSHA advised Bulk that they would 

be reissued to that contractor and they are not included as part o~ Bulk's violation history (Tr. 54-55). Inspector Davis confu .. ted that this was the case, and he indicated that the cita- ~ions were issued by MSHA "orally" to the other unidentified 

lndependent contractor (Tr. 56-57). 

In response to a bench question as to the distinctions 

between the prior enforcement actions where MSHA absolved the 

777 
respon.dent from any responsibility fo'r the two prior violations, 

and the instant case, Mr. Davis responded "the only way I can 

answer that is that at that time that was MSHA policy, I guess. 

It was taken out of my hands and turned over to my supervisor and 

he handled it" (Tr. 58). A copy of the MSHA di~trict man.ager's 

comments concerning the conference held with the respondent 

concerning the contested citation states as follows (exhibit 

P-3): 

The following citation was conferenced and the 

information provided by the operator did not justify 

any change. Mr. Merlo stated that he has over 70 

independent drivers who haul under his PUC number and . contract with .Beth Energy Mines, Inc. He als~ in~ormed 

me that he pays the drivers for what they haul, however, in his opinion they are not his employees and if 

the citation would have been issued to one of his 

people there would be no problem. At this point in the 

conference Mr. Merlo produced a contract that is held 

between his company and all independent drivers which 

holds all drivers responsible for fines and penalties 

arising out of the use of their equipment. A review of 

the contract between Mr. Merlo and his independent 

drivers and a discussion with Beth Energy Mines Inc., 

revealed that the Independent Contractor Register 

required under Part 45.4 is on file with the production 

operator listing Bulk Transportation Services, Inc., as 

the contractor. Therefore the citation stands as 

issued. · 

Inspector Davis confirmed that he has never cited a construction subcontractor, and that pursuant to MSHA policy, if 

there are contractors and subcontractors present "I would think 

we .cite the contractor" (Tr. 68). 

Respondent's Testimony and Evidence 

Charles J. Merlo, Jr. confirmed that he is the owner and 

president of the respondent company. He stated that including 

himself, the company has a total of three employees, and he 

identified the other two employees as a dispatcher and a bookkeeper. He further confirmed that the company owns no trucks and 

has no truck drivers on its payroll. 

Mr. Merlo stated that the company has been granted authority 

by the Pennsylvania Public Utilities Commission to haul coal 

within a 45-mile radius, and in certain designated counties. He 

stated that he acts as a broker to haul coal for the Beth Energy 

Mining Company, a subsidiary of the Bethlehem steel Corporation, and he identified a copy of a contract that he has with Beth 

Energy (exhibit R-1). He confirmed that he uses the services of 

independent haulage truck owner/operators or o~her trucking 

778 
companies to haul the coal for Beth Energy, and that these individuals are subcontractors authorized by the contract. 

Mr. Merlo explained the procedure followed by his subcontractors to haul the coal from the Beth Energy plant, and he 

confirmed that the trucking companies or truck owners call his 

dispatcher to ascertain the available coal which needs to be 

hauled and these subcontractors are free to accept or reject any particular coal hauling job. 

Mr. Merlo stated that he does not control the work of the 

subcontractor coal haulers, does not supply them with any work 

rules, and is not responsible for their hazard training. He 

believed that the hazard training for the haulase drivers is 

provided by Beth Energy at the mine site. 

Mr. Merlo identified exhibit R-2 as a copy of his leasing 

contract with Mr. Krumenaker, and he confirmed that 

Mr. Krumenaker owns his own truck and is responsible for main- . taining it, and for all insurance, social security, and workmen's 

compensation coverage. He confirmed that Mr. Krumenaker is also 

responsible for the payment of all fines for traffic and 

over-weight violations, and that the expenses incurred in connection with the damage to the truck in question were paid by 

Mr. Krumenaker or his insurance carrier. 

Mr. Merlo stated that Mr. Krumenaker was compensated for his 

services once a month, and that he paid him a fixed sum ·for each 

ton of coal he hauled and delivered. The amount of coal hauled 

and delivered by Mr. Krumenaker was computed by invoices submitted to the respondent by Mr. Krumenaker, and the coal tonnage 

was determined by the weight scales at the Pennsylvania Electric 

Company (Penelec) facility where the coal was delivered • 

. Mr. Merlo stated that the only control he exercises over his 

subcontractors concerns where the coal is to be picked up and 

where .it is to be delivered. He explained that the subcontractor 

haulage truck owner/operator will call the respondent's dispatcher to ascertain where to pick up and deliver a particular 

amount of coal, and that the truckers then pick up and deliver 

the coal and bill the respondent for payment based on the coal 

tonnage weighed at Penelec when it is delivered. 

' Mr. Merlo .stated that he has no employees located at the 

Beth Energy mine site, and he believed that there was nothing he 

could have done to prevent the incident in question. He confirmed that Beth Energy has notified him by letter in the past 

about haulage truck drivers speeding or not wearing hard hats, 

and that he has simply passed this information on to the truck 

drivers concerned. 

779 
~r. Merlo stated that his company does not perform any 

regular services at the mine site, and does not perform- the 

actual coal hauling services. This is done by contract with the 

subcontractor coal haulers. Respondent's counsel stated that 

Mr. Merlo is a trucking broker who makes sure that "coal gets 

moved to point A or B and arranges for people to do it" and is 

not involved in the selling of the coal (Tr. 79). Mr. Merlo 

confirmed that he has had the contract with Beth Energy since 

1985 or 1986, has no supervisors at the mine site, and performs 

no construction work there. The trucks are loaded at the mine 

site for ~ransportation from the mine, and they do not haul coal 

to the mine. He confirmed that some of the ownerjoperator truck 

contractors which he uses also work for other trucking carriers, 

and that some of these truckers have refused to h~ul coal for him · when they can do better with other carriers, and that there is ., constant change, and truckers "come and go" (Tr. 85). 

Mr. Merlo confirmed that he does not provide his trucking 

contractors with any safety rules because they are contractually 

responsible for these matters. He has no training responsibilities for the drivers and believes that they are hazard trained at 

the mine site (Tr. 86). Mr. Krumenaker has never been employed 

by him, and he exercises no day-to-day control over him other· than to tell him where the coal is to be picked up and delivered, 

and to make sure that he is insured (Tr. 90). He confirmed that 

the citation was abated by Beth Energy by instructing 

Mr. Krumenaker. He also confirmed that he has never been previously cited by MSHA for any violations other than the ·prior two 

citations issued by Mr. Davis which were subsequently found not 

to be his responsibility (Tr. 92). 

Mr. Merlo identified copies of the two prior citations 

issued by Inspector Davis to a truck driver employed by the 

Shaffer Trucking Company, one of his subcontractors. Mr. Merlo 

stated that the citations were issued when the driver was 

observed on his truck bed at a dumping point on the mine site 

without wearing a hard hat. He ptated that the citations were 

initially served on Beth Energy, but were subsequently modified 

at a conference to show the respondent as the res.ponsible party. Mr. Merlo stated that when he protested this to MSHA, the citations were again modified and served on Shaffer Trucking Company. 

Mr. Merlo confirmed that this was done orally, and he believed 

that Shaffer Trucking paid the civil penalty assessments attri~ 

buted to its employee truck driver. Mr. Merlo stated that he 

sees no distinction between the instant case and the past citations served on Shaffer Trucking, and he believed that the contested citation in this case should have been served on 

Mr. Krumenaker as the contractor in control of his truck, and the 

individual whose actions resulted in the violation (Tr. 93-96). 

On cross-examination, Mr. Merlo stated that he had no knowledge that Mr. Krumenaker ha~ any agreement with Beth Energy to 

780 
, haul coal. He confirmed that Beth Energy contacts him and 

informs him how many coal loads are available, and that it is in 

his interest to make sure that the coal is hauled by the truckers 

who may call in. for the jobs (Tr. 103). The truckers are .. · required by state law to display ·his company identification 

decals when they are operating on his behalf. The agreement that 

he has with Mr. Krumenaker is the same agreement that he has with 

the 70 to 100 truckers which he uses, more than half of whom are 

owner/operators (Tr. l09). He confirmed that he leases 

Mr. Krumenaker and his truck, and he cannot let anyone else drive 

it since Mr. Krumenaker owns it and controls who drives it (Tr. 

116). . 

Inspector Davis was recalled by the Court, and he confirmed 

that the prior two citations which he issued were issued because 

of two violations by one single truck driver in the employ of 

Shaffer Trucking Company. Mr. Davis stated that he initially 

[.:::;; served the violation on Beth Energy Mines because it had someone 

at the coal silo area in question supervising the loading and 

should have observed the violations (Tr. 128-130). He believed 

that Shaffer Trucking had its own MSHA ID number, and was readily 

identifiable, but that Mr. Krumenaker in this case did not have 

any number identifying him as an independent contractor, and he 

had no knowledge .that Mr. Krumenaker was in fact an independent 

contractor (Tr. 132). When asked whether it made any sense from 

an enforcement point of view not to cite Mr. Krumenaker simply 

because he had no assigned ID number of record, Mr. Davis 

responded "with independent contractors, its tough. That's why 

we try to get back to that 45.4 to try and hold it for some 

reasonable justification or responsibility by that history" (Tr. 

133). He confirmed that MSHA's regulation does not say anything 

about subcontractors (Tr. 134). Respondent's counsel confirmed 

that when the two prior citations were transferred from Beth 

Energy to the respondent, the respondent did not have an MSHA ID 

number, but subsequently obtained one (Tr. 139). 

Petitioner's Arguments 

MSHA asserts that Bulk was an independent contractor for 

Beth Energy, was registered as such by Beth Energy in accordance 

with 30 C.F.R. § 45.4, and was also identified as an independent 

contractor in the agreement it had with Beth Energy. MSHA points 

out that Bulk was performing a service at Beth Energy's mine in 

that it was the contractor who picked up and delivered coal to 

Beth Energy's customers, it was the exclusive carrier for coal 

delivered to the Penelec power station, and it hauled coal for 

Beth Energy at least 4 or 5 days a week. Under these circumstances, MSHA concludes that in order to be consistent with the 

expansive definition of "operator" found in the Act, and as noted 

by the Commission in Otis Elevator Company, 11 FMSHRC 1896, 

1901-1902 (October 1989), bulk must be considered an operator 

under the Act. 

781 
MSHA argues that Bulk used subcontractor truck drivers who 

operated under its PUC authority to haul the coal from .Beth 

Energy, and that these drivers, who typically varied from week to 

week, provided "a constant flow or truck drivers in and out • • . working for Bulk." The lease agreement between Bulk and its 

subcontractors provided for periodic vehicle inspections by Bulk, 

and the agreement between Beth Energy and Bulk provided that Bulk 

would "also inspect each motor vehicle after loading in order to 

assure the safe movement of the load and vehicle in compliance 

with any law, regulations or requirement relating to the transportation performed under this Agreement. " In addition, MSHA 

points out that it was Beth Energy's practice to send a letter to 

Bulk detailing any problems that had been noted with Bulk 

drivers, so that Bulk could notify the drivers themselves. MSHA 

concludes that contrary to Bulk's position, it is clear that it 

hAd the power ·to exercise control over its subcontractor drivers, 

and indeed exercised such control. 

With regard to the prior citations issued by MSHA in 1987, 

which were initially issued to Beth Energy, and subsequently 

issued to Bulk, and then vacated and modified to cite Bulk's 

subcontractor, MSHA cites several estoppel decisions and takes 

the position that its prior actions in this regard does not estop 

it from citing Bulk for the violation in this case. MSHA concludes that who it may or may not have previously Gited is not 

dispositive of the issue presented in this case, which is whether 

or not MSHA correctly cited Bulk. 'MSHA takes the position that 

it has retained wide enforcement discretion with regard to its 

ability to cite either the production operator, the independent 

contractor, or both, and that unless it has abused its discretion, its decision on whom to cite should stand. Consolidation 

Coal Company, 11 FMSHRC 1439, 1443 (August 1989) (citing Brock v. 

Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538 (D.C. Cir. 1986). 

MSHA maintains that it has not abused its discretion by 

citing Bulk for the violation. In support of this conclusion, 

MSHA asserts that Bulk is responsible for supplying truck drivers 

who are willing to pick up and deliver coal, and that the drivers 

are not paid by Beth Energy, do not report for work to Beth 

Energy, and cannot be hired or fired -by Beth Energy. MSHA points 

out that because of the constant flux of drivers in and out, only 

Bulk would have records of who picked up coal on any given day . Further, Bulk has, in the past, instructed its drivers to wear 

hard hats, at Beth Energy's request, and that Bulk can choose to 

hire or not to hire any driver that applies for work. Under 

these circumstances, MSHA concludes that Bulk clearly exercises 

authority over these drivers in a way that Beth Energy cannot, 

and that Bulk's attempt to disregard its responsibilities under 

the Act merely because its truck drivers are contractors and not 

its employees cannot stand. 

782 
MSHA argues that Bulk is fulfilling an integral role in the 

mine extraction process and cannot insulate itself from its . responsibilities created from this role by contractual agreement 

with Beth Energy. In view of the fact that Bulk has reserved for 

itself the power to inspect the trucks and has the ability to 

inform all truck drivers of any information it feels is pertinent 

to the job, MSHA concludes that holding Bulk responsible for the 

actions of the truck ·drivers is logical. MSHA believes that 

between Beth Energy and Bulk, Bulk is the entity most able to 

exercise control over the drivers, and that between Bulk and the 

drivers, Bulk has the continuing association with the mine, and 

the opportunity to be aware of the ·specific problems that may 

exist there. Accordingly, MSHA concludes that its policy 

decision to hold Bulk liable for the cited violation is based on 

sound reasoning and does not constitute an abuse of its 

discretion. 

With regard to the alleged violation of 30 C.F.R. 

§ 77.807-3, MSHA takes the position that the truck which was 

operated by Bulk's contractor, Mr. Krumenaker, was a piece of 

equipment that was being operated on the surface of the mine, and 

that Mr. Krumenaker was required to pass under the energized 

high-voltage line in order to pick up and deliver the coal. MSHA 

points out that since Mr. Krumenaker had raised his truck bed, 

the clearance between the truck and the overhead powerline was 

less than that required by the standard. Further, since 

Mr. Krumenaker's raised truck bed contacted the energized powerwire, MSHA concludes that Bulk failed to take any precautions to 

deal with or prevent accidents of this kind,. and violated. the 

cited standard. · 

With regard to the inspector's "significant and substantial" 

violation finding, MSHA asserts that the inspector's uncontradicted testimony establishes that the violation was significant 

and substantial and that it is the type of violation which presents a high possibility for a fatal accident. Contact with an 

energized powerline could result in the electrocution of anyone 

operating or standing near the piece of equipment that makes 

contact if. that person should touch the truck and the ground at 

the same time. Although the incident in question did not result 

in any injury to the driver, the tires were blown out on the 

truck, indicating the seriousness of the hazard . Citing 

Secretary v. Cement Division, National Gypsum Co., 3 FMSHRC 822, 

825 {April 1981), MSHA concludes that the "significant and substantial" violation test established by that case has been met, 

and that the inspector's finding should be affirmed. 

Respondent's Arguments 

The facts show that Bulk had an agreement with Beth Energy 

to arrange for transportation of coal from Beth Energy's Cambria 

783 

.. 

: I 

. t 
Mine to the Pennsylvania Electric Power Plant, as well as to 

other sites designated by Beth Energy. Bulk asserts that it is a 

broker of coal transportation services and as such cannot be 

deemed an "operator" under the Ac~ and liable for civil penalties. In support of its argument, Bulk points out that it discharges its contractual obligation to Beth Energy by engaging .subcontractor carriers and independent owner/drivers to transport 

the coal which is loaded by Beth Energy personnel at the mine. 

Bulk further points out that other than the owner of the company 

it only employs a dispatcher to find drivers to haul the avail- ' 

able · coal for each day, and ~bookkeeper to arrange for payment 

of the amounts invoiced by the subcontractors and to insure 

proper payment from Beth Energy. Bulk maintains that it does not 

operate any portion of the mine, performs no construction work, 

and does not supervise any employees at the site. Since its 

subcontractor truckers are loaded by Beth Energy, and the drivers 

do not normally get out of their trucks when picking up coal 

until immediately before they reach the highway to cover their 

loads with a tarp, Bulk asserts that there are no activities for 

it to supervise or oversee at the site which could arguably make 

it a production _operator. 

Conceding the fact that the definition of 11 operator11 was 

expanded by the 1977 Mine Act to include independent contractors 

performing services or construction at a mine site, Bulk nonetheless argues that the expanded definition is not so widely encompassing and cannot be read to include any person or entity which 

may have any connection, contractual or otherwise, with a mine 

owner, particularly when such a person or entity does not maintain a . presence on the mine site. Bulk concl'udes that such a 

construction of the statute would cause any entity with a contract to perform any service with a mine owner, whether or not it 

related to the extraction process or mine construction, subject 

to civil penalties. Bulk further concludes that it is apparent 

from the legislative history of the Act that only independent 

contractors actually performing services at the mine site, such 

as construction or extraction related work, are to be included as 

"operators" with the same statutory compliance obligations as 

mine owners or mine production operators. 

Bulk maintains that its relationship with its independent 

owner/drivers -and other trucking companies is a bona fide 

arms-length contractual relationship which is customary in the 

transportation business and one which was not intended to avoid 

liability under the Act. Bulk asserts that its subcontractor 

truckers are not its employees or agents, and since they are 

either "persons" or "firms" that "contract to perform services at 

a mine" and actually work at the mine site to pick up coal and 

haul it to its destination, they, and not Bulk, are the independent contractors under the Act's regulations. 

784 
Bulk points out that the owner/drivers own . and maintain 

their own vehicles and are generally engaged in occupations and 

provide services apart from their work with Bulk inasmuch as they 

regularly refuse to take loads of~ered because of more lucrative 

work they have been given. There is a written contract which 

details the rights the parties have with respect to each other 

(Tr. 87). There is no contractual requirement that the subcontractors must accept every load offered. There is also no training provided by .Bulk because the subcontractors are already 

"permitted" operators. The carrier subcontractors are not paid by the hour, the mile, by salary, or in any other manner, except 

by the actual tonnage hauled and only on a monthly basis after 

submitting invoices. The subcontractors, such as Mr. Krumenaker, 

pay their own fines and all costs and expenses incident to the 

operation of their vehicles. Under all of these circumstances, 

Bulk concludes that it is not the independent contractor performing services at the mine site and is not subject to civil penal- ties under the Act. · 

Assuming arguendo that it is.subject to the jurisdiction of 

the Act as an "operator," Bulk submits that MSHA abused its 

discretion by citing it for the violation incurred by its independent subcontractor James Krumenaker, the owner and operator of 

the truck which contacted the over powerline in question, because 

the Act requires that the proper party 11 operator11 responsible for 

the violation be held liable. Bulk maintains that the proper 

party "operator" is Mr. Krumenaker. 

In support of its conclusi9n that Mr. Krumenaker is the 

proper party to be charged with the violation, Bulk asserts that 

there is no dispute that the acts of Mr. Krumenaker were the 

cause of the issuance of the citation to Bulk. Bulk relies on 

the testimony of Inspector· oavis who confirmed that the citation 

was issued because Mr. Krumenaker's truck came in contact with 

the high-voltage line, and he assumed that Mr. Krumenaker was 

employed by Bulk. Bulk points out that Inspector Davis admitted 

that he did not question Mr. Krumenaker to determine whether the 

truck was in fact was owned by Bulk or whether Mr. Krumenaker was 

an employee of Bulk. Bulk also points out that the inspector 

cited Bulk because it was listed on Beth Energy's register as an 

independent contractor pursuant to. MSHA's requirements in 

30 C.F.R. § 45.4, and Mr. Krumenaker was not. .. Bulk asserts that. there is no evidence that it had any 

presence on the mine site at the time of the violation, that it 

did not contribute to the conditions which caused the violation 

by Mr. Krumenaker, and that it could not have anticipated or 

prevented the violation. Bulk cites the testimony of Mr. Merlo 

that there was nothing Bulk could have done to either prevent or 

minimize the chances of Mr. Krumenaker raising his truck bed at . 5:00a.m., while waiting in line for coal and coming in contact 

with the high voltage wire. Under these circumstances, Bulk 

785 
concludes that MSHA abused its discretion by citing Bulk instead 

of Mr~ Krumenaker, the "operator" with direct control over the 

hazard, and the operator who is in the best position to abate the 

hazard. 

Citing Phillips Uranium Corporation, 4 FMSHRC 549 (April 

1982), Affinity Mining Company, 2 IBMA 57, 80 I.D. 229 (1973), 

Old Ben Coal Co., · 1 FMSHRC 1480 (October 1979), and Old Dominion 

Power Companv, 6 FMSHRC 1886 (August 1984), Bulk asserts that in 

this case MSHA has reverted to its previously discredited policy 

of citing, for sdministrative convenience purposes, an entity . (Bulk) merely in contractual privity with the person causing a 

violation rather than the actual violator (Mr. Krumenaker) in a 

situation where the cited party (Bulk) did not contribute or have 

control over the circumstances of the violation. Recognizing the 

fact that MSHA has retained wide enforcement discretion in choos- ~ing which of two or more operators it will cite for a violation, 

Bulk nonetheless believes that this discretion is not unlimited 

and must be exercised rationally and consistently with the intent 

and purposes of the Act. Although it is clear that Bulk did not 

own the truck or employ the driver, it was· cited simply because 

the inspector assumed that the driver was an employee of Bulk and 

operated a truck owned by Bulk and because Bulk was listed on the 

mine operator's registry as an independent contractor. Under 

these circumstances, Bulk concludes that MSHA ignored both the 

status of the violating party and the circumstances of the violation and cited Bulk purely for administrative convenience because 

it was listed as an independent contractor. 

Bulk argues further that MSHA abused its _enforcement discretion by failing to consistently enforce the Act and regulations 

inasmuch as it has in the past vacated citations issued to Bulk 

in its capacity as a coal carrier broker when it was found that 

Bulk's independent subcontractors actually caused the violations. 

In support of this argument Bulk relies on the record in this. case which establishes that in 1987, two separate citations were 

originally issued to Beth ·Energy by MSHA for violations concerning a driver employed by one of Bulk's subcontractors, Shaffer 

Trucking. Beth Energy, at an MSHA manager's conference, convinced the district manager that Bulk, as the party with whom it 

contracted for the coal haulage service, was the proper party 

against whom the citations should issue. The citations were · modified and issued to Bulk. Bulk then contested the issuance of 

the modified citations at a district manager's conference and 

claimed that the citations should issue to Bulk's independent 

subcontractor, Shaffer Trucking, because it employed the driver 

and owned the truck involved in the violations, and not Bulk. 

The district manager, then called Mr. Merlo and informed him that 

the citations would be vacated as to Bulk. The citation were 

later issued to Shaffer Trucking. Inspector Davis, who issued 

786 
:·· ":l 

the violations in 1987, confirmed that the two -citations previously issued to Bulk were vacated and modified to charge Bulk's 

subcontractor with the violations. 

In this case, after receiving the citation issued by Inspector Davis, Bulk again requested a conference with MSHA and raised 

the identical defense it raised in connection with the other 

citations issued in 1987. However, contrary to the district 

manager's decision in 1987, MSHA refused to either vacate the 

citation issued to Bulk, or to reissue it to Mr. Krumenaker. The 

district manager relied on the fact that Bulk was listed as the 

independent contractor on a register maintained by Beth Energy 

pursuant to 30 C.F.R. § 45.4. Bulk maintains that the 1987 

citations are identical in terms of who the responsible party for 

the violations should be. When asked to distinguish the facts 

presented in this case and MSHA's prior actions in vacating the 

citations issued to Bulk and reissuing them to its subcontractors, Inspector Davis could not distinguish these actions except 

that there may have been a "mistake" in the handling of the 1987 

citations; or MSHA's policy may have changed; or the MSHA supervisor just "handled it." Bulk takes the position that none of 

these reasons justify the disparate and inconsistent handling of 

the contested citation in this case. 

Bulk argues that MSHA properly vacated the 1987 citations 

because the purposes of the Act are best effectuated by "citing 

the party with immediate control over the working conditions." 

Bulk believes that MSHA has shown no connection between ·the acts· of its subcontractor, Mr. Krumenaker, except to say that Bulk is 

the entity. listed on Beth Energy's independent contractor register. Bulk submits that MSHA's refusal to vacate the violation is 

unsupportable and is a blatant reversal of its prior decisions 

concerning the citation of Bulk when its acts do not contribute 

to the violations of another operator. Bulk concludes that the 

purposes of the Act are not furthered by inconsistent and 

unpredictable MSHA enforcement decisions such as those made in 

connection with violations found to have been caused by Bulk's 

independent subcontractors. For these reasons, even if Bulk is 

found to be an operator subject to civil penalty assessments, it 

believes that the citation issued in this case should be vacated 

and that MSHA should be compelled to act consistent with its 

prior decisions concerning violations by Bulk's subcontractors. 

Bulk ~cknowledges that owners or production operators of a 

mine can be held strictly liable for the violations of their 

independent contractors. However, Bulk asserts that there is no 

basis under the Act to hold it vicariously liable for any independent acts of its subcontractors, and that MSHA is erroneously 

attempting to hold Bulk to the same strict l~ability standards 

imposed by the Act upon "owners" of a mine or "production operators." Bulk points out that it is undisputed that it is not a 

production operator or owner of a.mine, and does not operate any 

787 
,. 

·.· 

portion of a mine or supervise any personnel at any mine site. 

Therefore, Bulk concludes that the basis of its alleged strict 

liability cannot then be because it is a production operator or 

owner inasmuch as it does not con~rol or own the Beth Energy 

mine. 

Bulk asserts that MSHA apparently believes that Bulk, by 

virtue of its subcontractor relationship with a person or entity 

performing services at a mine, is strictly liable for its subcontractors' violations even if it did not contribute to the 

occurrence of the violation. In support of this conclusion, Bulk 

points out· that it was cited because it was listed as the contractor on Beth Energy's register, and that during the hearing, 

MSHA's counsel stated that any person with a contract with the 

production operator and who is registered as a contractor pur- ~suant to MSHA's regulations is strictly liable for its subcontractor's violations. Bulk concludes that MSHA's position is not 

supported by the Act or the controlling regulations and cases. 

Assuming that MSHA may legally equate Bulk with a production 

operator and hold it strictly liable for its subcontractors' 

violations, Bulk maintains that MSHA has clearly abused its 

discretion when it issued the citation contrary to the provisions 

of MSHA's General Enforcement Policy for Independent Contractors 

contained in its Program Policy Manual (exhibit E to Bulk's posthear~ng brief). 

· Bulk asserts that MSHA's enforcement policy guidelines do 

not support citing only bulk and not its subcontractor, 

Mr. Krumenaker, if Bulk's liability is the same as that of the 

"production operator." Consequently, since it is not a production owner, Bulk concludes that it cannot be held strictly liable 

for its subcontractor's violations. Even if it were held to such 

a standard, Bulk further concludes that citing Bulk is not 

supported by .MSHA's own policy concerning independent contractors, and that Mr. Krumenaker should have been cited because: 

1. There was no testimony from either the 

Secretary or Bulk remotely indic'ating that Bulk in any 

manner contributed to Mr. Krumenaker's violation when 

he raised his truck bed and inadvertently made contact 

with the high voltage wires. 

2. Bulk did not contribute to the continued 

existence, if any, of the violation. 

3. No Bulk employees were subject to the hazard 

and only the subcontractor himself was in immediate 

danger. 

788 
4 . There was no testimony indicating that Bulk 

had any control over the condition that need~d abatement; namely, that the subcontractor in the future 

exercise more caution and care while driving his truck 

near similar hazards. · 

With regard to the removable sticker reciting Bulk's public 

authority numbers, which was on Mr. Krumenaker's truck, Bulk 

asserts that it is regulated by the Pennsylvania Public Utility 

Commission (PUC) and is only authorized to haul coal in certain 

defined areas, and its independent contractors must operate 

within Bulk's PUC authority and display on the truck Bulk's PUC 

numbers so that PUC may enforce its territorial authorizations. 

Bulk points out that when the truckers are not hauling under its 

PUC authority, the stickers are removed, and the fact that they 

indicate that independent contractors may be hauling under Bulk's 

PUC authority does not mean that the contractors hold themselves 

out as Bulk's employees or agents or that they should be viewed 

in any other way than as independent contractors operating as 

required by Pennsylvania law under the proper carrier's 

authority. 

Finally, Bulk argues that there is no evidence that its 

negligence in any way contributed to Mr~ Krumenaker's violation. 

Bulk concedes that it cannot completely shield itself from statutory liability by using independent contractors, and if it uses 

subcontractors that it knows or should know have a proclivity to 

violate safety rules- or operate their trucks illegally or in an 

unsafe condition, it may contribute to a violation and properly 

be held accountable. However, in this case, Bulk maintains that 

it was not negligent in subcontracting coal loads to 

Mr. Krumenaker, and that the Act does not require it to personally supervise its independent contractors to such an extent 

that it insures that the isolated incident such as the one 

involving Mr. Krumenaker does not occur. Bulk concludes that any 

negligence concerning the violation should exclusively be attributable to Mr. Krumenaker. 

Findings and conc-lusions 

The Jurisdictional Issue 

Bulk takes the position that it is not an "operator" under 

the Act, has no employees present at the mine site, and is simply 

a coal haulage broker who has a customary and normal bona fide 

arms-length contractual relationship with its independent 

c .mel./ drivers and other trucking companies whose services. it 

utilizes to fulfill its obligation to haul coal pursuant to an 

agreement with the production mine operator. MSHA takes the 

position that Bulk was an independent contractor for the mine 

operator and was identified as such pursuant to MSHA's independent contractor regulations, as well as in its agreement with the 

789 
mine operator. MSHA further points out that Bulk was performing 

a service at the mine in that it was the exclusive contractor who 

picked up and delivered the coal to at least one of the mine 

operator's customers, and also picked up and delivered coal to 

other customers. · 

Section 4 of the Act provides as follows: "Each coal or 

other mine, the products of which enter commerce, or the operations or products of which affect commerce, and each operator. of 

such .mine, and every. miner in such mine shall be subject to the provision~ of this Act." 

The legislative history of the Act clearly contemplates that 

jurisdictional doubts be resolved in favor of Mine Act jurisdic- tion. The report of the Senate Committee on Human Resources 

states: 

The Committee notes that there may be a need to resolve 

jurisdictional conflicts, but it is the Committee's 

intention that what is considered to be a mine and to 

be regulated under this Act be given the broadest 

possible interpretation, and it is the intent of this 

Committee that doubts be resolved in favor of inclusion 

of a facility within the coverage of the Act. 

S. Rep. 95-181, 95th Cong., 1st Sess. (May 16, 1977) at 14: 

Legislative History of the Mine Safety and Health Act, Committee 

Print at 602 (hereinafter cited as Leg. Hist.). 

Section 3. (d) of the Act defines "·operator" as "any owner, 

lessee, or other person who operates, controls, or supervisors a 

coal or other mine or any independent contractor performing 

services or construction at such mine . ·n (Emphasis added) . 

MSHA's Independent Contractor regulations, which provide 

certain requirements and procedures for contractors to obtain 

MSHA identification numbers, Part 45, Title 30, Code o'f Federal 

Regulations, section 45.1 et seg., ·defines an "independent contractor" as follows at section 45.2(c): "'Independent Contractor' means any person, partnership, corporation, subsidiary of a 

corporation, firm, association or other organiza~ion that contracts to perform services or construction at a mine: * * *" 

The addition of the phrase "any independent contractor 

performing services ar construction at such mine" as part of the 

1977 amendments to the Coal Act was intended "to settle any 

uncertainty that arose under the Coal Act, i.g., whether certain 

contractors are 'operators' within the meaning of the Act," and 

"to clearly reflect Congress' desire to subject contractors to 

direct enforcement of the Act." Old Ben coal co., 1 FMSHRC 1480, 

1481, 1486 (October 1979). Accord, Phillips Uranium Corp., 

4 FMSHRC 549, 552 (April 1982). 

790 
r. 

The legislative history of the Mine Act .clearly shows that 

the goal · of Congress, in expanding the definition of 11 operator11 

to include "independent contractors," was to broaden the enforce~ 

ment power of the Secretary so as "to reach not only owners and 

lessees but a wide range of independent contractors as well. In 

explaining this amendment, the key Senate report on the bill 

enacted into the Mine Act referred not only to those independent 

contractors involved in mine construction but also to· those 

"engaged in the extraction process." s. Rep. No. 181, 95th 

Cong., 1st Sess. 14 (1977), reprinted in Senate Subcommittee on 

Labor of the committee on Human Resources, 95th Cong., 2nd Sess., 

Legislative History of the Federal Mine Safety and Health Act of 

1977 at 602 (1978) ("Legis. Hist."). Similarly, the Conference 

Report referred to independent contractors 11 performing services 

or construction" and "who may have continuing presence at the 

mine." s. Conf. Rep. No. 461, 95th Cong. 1st Sess. 37 (1977), 

reprinted in Legis. Hist. 1315. 

The thrust of Bulk's jurisdictional argument is its assertion that it is not a mine production operator or owner, has no 

employees at the mine site, performs no construction work at the 

mine site, and is engaged in no activities at the mine site 

requiring any supervision on its part. Bulk maintains that the 

only independent contractor "operators" performing services at 

the mine site are its trucking subcontractors and owner drivers, 

and not Bulk, and that Bulk is simply a transportation "broker" 

who merely brokers coal hauling jobs to these "independent contractor" entities. In support of these conclusions, Bulk's focus 

is on whether or not there is an employerjemployee relationship 

between Bulk and the independent contractor and subcontractor 

truckers whose services it uses to haul coal, and whether or not 

Bulk exercises any supervision or other control over these independent coal haulers. Bulk concludes that no such relationship 

exists, and that it is not an independent contractor performing 

servic.es at the mine. 

In Otis Elevator Company, (Otis I), 11 FMSHRC 1896 (October 

1989), and Otis Elevator Company, (Otis II), 11 FMSHRC 1918 · (October 1989), the Commission affirmed the decisions of Judge 

Fauver and Judge Maurer holding that an elevator service company 

that inspected, serviced, and maintained a mine elevator under a 

contract with the mine operator was an independent contractor 

"operator" subject to the Act and . to · MsHA's enforcement jurisdic::-

tion. The Commission affirmed the Judges' findings that Otis had 

a continuing, regular, and substantial presence at the mine site 

performing services on an elevator which was a key facility· and 

essential ingredient involved in the coal extraction process. In 

making its determination, the commission relied on the expanded 

definition of "operator" found in the Act, and examined the 

independent contractor's proximity to the extraction process and 

the extent of its presence at the mine to determine whether the 

791 
independent contractor was an operator under the .Act. This same analy~is is relevant and appropriate in this case. 

The evidence in this case establishes that Bulk is a 

Delaware Corporation engaged in the business of providing coal 

transportation services to Bethlehem Steel Corporation's Beth 

Energy Division. Bulk has stipulated that at the time of the 

alleged violation, it had a contract with Beth Energy to haul 

coal from its Cambria Slope Preparation Plant to sites designated by Beth Energy, and that the coal hauled by Mr. Krumenaker on 

that day was being placed into the stream of interstate commerce. 

Bulk also stipulated that it was registered as an independent 

contractor of Beth Energy pursuant to MSHA's regulations found in 

Part 45, Title 30, Code of Federal Regulations, and pursuant to 

Bulk's contract with Beth Energy, Bulk was at all times considered an independent contractor and not the agent or representative of Beth Energy (Contract, Article VII, Section 7.1, Exhibit 

R-1). 

Bulk's contract with Beth Energy commenced on October 1, 

1986, and will terminate on Decarnber 31, 1991, unless further 

extended for an additional 3 years, at the option of Beth Energy. 

Pursuant to two additional agreements noted in the contract under 

"Scope of Work," Bulk was designated to pick up, deliver, and 

unload all of the coal from Beth Energy to Penelec. One agreement provides for deliveries of approximately 30,000 tons of raw 

coal monthly to Penelec, and the second agreement provides for 

deliveries of approximately 20,000 tons of clean coal monthly to 

Penelec. Bulk was obligated to deliver and unload any additional 

increased quantities of coal in accordance with delivery 

schedules established by Beth Energy. 

Although it is true that Bulk does not own any of the coal 

haulage trucks, and that the drivers are not employed by Bulk, 

the fact remains that Bulk provides and performs services for the 

mine operator Beth Energy at the mine, a~beit through the use of 

subcontractor and ownerjoperator truck drivers. Under the terms 

of the contract, Bulk was obligated to pick up the coal at the 

mine site and have it delivered and unloaded at the customer 

destinations designated by Beth Energy. The coal is loaded by 

Beth Energy's miners. Although Bulk chose to use subcontractors 

to transport and deliver the coal, with Beth Energy's blessings, 

Bulk was nonetheless legally obligated for the performance of the 

services called for under the contract. Beth Energy had no 

direct dealing with the subcontractors, and it looked, to Bulk to 

provide its coal transportation needs. Given the large volumes 

of coal required to be transported by Bulk, and the fact that 

Bulk had the exclusive right to transport all of Beth Energy's 

coal to Penelec, I conclude and find that bulk was performing an 

essential service for Beth Energy which was closely related to 

the mine extraction process and was indeed an essential 

ingredient of that process. Beth Energy is obviously in the 

792 
business of marketing its coal, and without the means for trans- .. porting it to its customers through the services provided by 

Bulk, it would not remain in business very long. 

As noted earlier, Bulk's contract to provide transportation 

services for Beth Energy's coal was for a 5-year period, subject 

to renewal at Beth Energy's option. The contract included two · · agreements for the transportation of coal on a regular monthly .. ,, basis. Although the subcontractors used by Bulk had the option 

of accepting or declining to make themselves available to Bulk to 

transport Beth Energy's coal, any subcontractors utilized by Bulk 

to provide the services to Beth Energy, were legally operating 

under Bulk's state public utility approval. Bulk's owner Charles 

Merlo testified that he had "a constant flow of truck drivers" ... working for Bulk when it provided its transportation services to 

Beth Energy (Tr. 85), and I find no evidence that Bulk's services =. to Beth Energy were ever interrupted by Bulk's inability to 

retain subcontractor or owner/operated trucks to transport and ~ ·· deliver coal. Mr. Merlo confirmed that coal is hauled from the 

mine on an average of 4 to 5 days a week, and that there are 

occasions when it is hauled 6 'days a week (Tr. 107). Under all 

of these circumstances, I conclude and· find that Bulk had a 

continuous presence at the Beth Energy Mine. 

:· ·: / , _._. 

~- .... 

In view of the foregoing findings ·and conclusions, I con- ·clude and find that at all times relevant to this proceeding, 

Bulk was an independent contractor subject to the Act and to 

MSHA's enforcement jurisdiction, and Bulk's arguments to the 

contrary are rejected. 

Fact of Violation 

Bulk is charged with a violation of mandatory safety standard 30 C.F. R. § 77.807-3, which states as follows: 

When a'ny part of any equipment operated on the surface 

of any coal mine is required to pass under or by any 

energized high-voltage powerline and the clearance 

between such equipment and powerline is less than that 

specified in section 77.807-2 for booms and masts, such 

powerlines shall be deenergized or other precautions 

shall be taken. (Emphasis added). 

MSHA takes the position that the truck operated by 

Mr. Krumenaker was a piece of equipment that was being operated 

on the surface of the mine, and that Mr. Krumenaker was required 

to pass under the energized high-voltage line in order to pick up 

and de.liver the coal. MSHA points out that since Mr. Krumenaker 

had raised his truck bed, the clearance between the truck and the 

overhead powerline at that point in time was less than that 

required by the standard. Further, since Mr. Krumenaker's raised 

truck bed contacted the energized powerwire, MSHA concludes that 

793 

.. 
Bulk failed to take any precautions to deal with or prevent 

accidents of this kind. 

Although the inspector found.that 'the high-voltage line in 

question was located at an appropriate height above the truck, 

and that the height and location of the line did not violate any 

mandatory standard, the fact remains that by raising his truck 

bed while parked directly below the line, Mr. Krumenaker caused 

the clearance between the raised boom or mast of his truck and 

the line to be less than that stated in section 77.807-2. In 

such a situation, the standard required that the line be 

deenergized or other precautions taken to avoid contact with the 

line. Since this·was obviously not done, I conclude and find 

that a violation of section 77.807-3, has been established • 

.. Estoppel Issue 

Bulk takes the position that MSHA's ' inconsistent and 

unpredictable enforcement decisions with respect to the prior 

vacation of two citations issued to Bulk .in 1987, and its subsequent refusal to vacate the citation issued in this case, 

justifies the dismissal ·of this action. As correctly stated by 

MSHA, the argument advanced by Bulk is essentially one of 

equitable estoppel. In Secretary of Labor v. King Knob Coal 

Company, Inc., 3 FMSHRC 1417, 1422 (June 19.81) , the Commission 

rejected the doctrine of equitable estoppel, but viewed the 

erroneous action of the Secretary (mistaken interpretation of the. 

law leading to prior non-enforcement) as a factor which may be 

considered in mitigation of any civil penalty assessment. The 

Commission stated in relevant part as follows at 1421-1422: 

[T]his restrained approach is buttressed by the consideration that approving an estoppel defense would be 

inconsistent with the liability without fault structure 

of the 1977 Mine Act. See El Paso Rock Quarries, Inc . , 3 FMSHRC 35, 38-39. (1981). such a defense is really a 

claim that although a violation occurred, the operator 

was not to blame for it. 

Furthermore, under the 1977 Mine Act, an equitable 

consideration, such as the confusion engendered by conflicting.MSHA pronouncements, can be appropriately 

weighed in determining the appropriate penalty (as the 

judge did here) • 

See also: Midwest Minerals Coal Company, Inc., 3 FMSHRC 

1417 (January 1981); Missouri Gravel Co., 3 FMSHRC 1465 (June 

1981); Servtex Materials Company, 5 FMSHRC 1359 (July 1983). In 

Emery Mining Corporation v. Secretary of Labor, 3 MSHC 1585, the 

Court of Appeals ·for the Tenth Circuit, in affirming the 

Commission's decision at 5 FMSHRC 1400 (August 1983), stated as 

follows at 3 MSHC 1588: 

794 
As this court has observed, "courts invoke the 

doctrine of estoppel against the government with great 

reluctance" • • • • Application of the doctrine is 

justified only where "it does not interfere with underlying government policies or unduly undermine the 

correct enforcement of a particular law or regulation" 

• • • • Equitable estoppel "may not be used to contradict a clear Congressional mandate," ••• as 

undoubtedly would be the case were we to apply it 

. here • • • • 

This case presents a rather unique factual situation in that 

the production mine operator, Beth Energy, had a contract with 

its independent contractor Bulk which .. required Bulk to transport 

clean and raw coal from the Beth Energy mine site. Beth Energy 

paid Bulk for this service. Since Bulk did not own or operate 

any trucks, and wit~ the approval of Beth Energy, Bulk utilized 

the services of subcontractor trucking companies or independent 

truck owner/operators such· as Mr. Krumenaker to perform its 

contractual coal transportation obligations to Beth Energy. Bulk 

paid its subcontractors for their services. In this scenario, 

there are conceivably three separate entities who may be considered culpable "operators" subject to the Act, and accountable 

for the violation in ~estion, namely, Beth Energy, Bulk, and 

Mr. Krumenaker. The issue as. framed by Bulk is whether or not 

MSHA's decision to proceed only against Bulk for the alleged 

violation, rather than against the production operator, or Bulk's 

subcontractor driverjowner Krumenaker, was made for reasons 

consistent with the purposes of the 1977 Mine AC~. 

In Phillips Uranium Corporation, 4 FMSHRC 549 (April 1982), 

the Commission reiterated that the inclusion of independent 

contractors as "operators" subject to the Act clearly reflected 

Congress' desire to subject contractors to direct enforcement of 

the Act, and that MSHA's independent contractor regulations 

reflect that the interest of miner safety and health will be best 

served by placing responsibility for compliance on each independent contractor. 

There is no evidence that Mr. Krumenaker or any of the other 

unidentified subcontractors who may have been used by Bulk to 

transport.coal from the Beth Energy mine site had MSHA independent contractor ID numbers. ·The only entity identified and ~ 

registered as an independent contractor pursuant to MSHA's regulations at 30 C.F.R. § 45.4, was Bulk. I find no evidentiary 

support for B~lk's conclusion that the 70 to 100 subcontractor 

truck operators used by Bulk to perform its contract obligations 

with Beth Energy are in fact independent contractors pursuant to 

the Act and MSHA's regulations. Although one may or may not 

assume that they are, absent any facts or evidence as to the 

extent of their pres~nce at the mine site, and absent any further 

795 
information with respect to the factors that one must consider to 

make such a determination, I cannot conclude that each and every 

subcontractor conceivably used by B~lk to transport coal on any 

given day is an independent contr~ctor subject to the Act. 

The lease agreement between Bulk and Mr. Krumenaker was for 

1 year, and it provides for the lease of Mr. Krumenaker•s truck 

by Bulk for the "transportation of property." Under the terms of 

the lease, Bulk and Mr. Krumenaker had an independent contractor 

relationship which was not intended to create an employeeemployer relationship. In short, Mr. Krumenaker was an independent contractor leasing his truck, and himself as the driver, to 

Bulk. Mr. Krumenaker had no contract with Beth Energy to perform 

any services at the mine. As a matter of fact, his lease agreement with Bulk does not mention the haulage of coal or any 

particular commodity, and Bulk was free to contract with anyone .. of its choosing to transport any "property," including the 

services of Mr. Krumenaker and his truck under their lease agreement. The respondent's owner, Mr. Merlo, confirmed that his 

lease agreement with Mr. Krumenaker is typical of leases that he 

has with 70 to 100 trucking concerns, more than half of whom are 

owner/operators. 

With regard to Mr. Krumenaker, aside from the fact that he 

was at the mine site to pick up a load of coal on the day his 

truck contacted the overhead power wire, there is no evidence to 

establish the frequency or extent of his presence at the mine 

site, or the frequency of his exposure to potential mine hazards. 

Although the lease agreement between Bulk and Mr. Krumenaker was 

for 1 year, and it was executed on November 3, 1988, 2-months 

prior to the issuance of the violation · on January 4, 1988, there 

is no evidence or testimony as to how often bulk utilized the 

service of Mr. Krumenaker to haul coal from the Beth Energy site, 

or how often Mr. Krumenaker may have been there prior to the 

incident in question. The evidence establishes that there was a . constant change of subcontractors, that they "~orne and go," and 

that the variety of subcontractors used by Bulk to perform its 

contract with Beth Energy often worked for other truck carriers, 

and they had the option of working or not working for Bulk. When 

they did work for Bulk, the services they provided were to Bulk 

and not to Beth Energy. Under all of these circumstances, 

although the record may support a reasonable conclusion that 

Mr. Krumenaker was a subcontractor or independent contractor 

performing work for Bulk on the day he contacted the overhead 

power line, I cannot conclude that it establishes that he was 

subject to the Act as an independent contractor performing 

services for Beth Energy, or that he was otherwise within the 

reach of MSHA's enforcement jurisdiction. 

The record reflects that MSHA's decision. to vacate the prior 

citations issued to Bulk was made orally, and there is no documentation detailing MSHA's rationale in taking this action. 

796 
Although the respondent's assumption that the vacation of the 

citations was based on MSHAis finding that Bulk did not cause the 

violations may be reasonable, the fact remains that shortly after 

the citations were vacated, Bulk applied for and received its own 

independent contractor ID number (Tr. 140) . When Inspector Davis 

issued the citation and cited Bulk in the instant case, he did so · because Bulk was the only readily identifiable contractor with an 

assigned MSHA ID number of record, and he assumed from Bulk's 

decal on the truck operated by Mr. Krumenaker, that he was an 

employee of Bulk. MSHA's subsequent refusal to vacate the citation was based on the fact that Bulk was'registered as the independent ·contractor of Beth Energy (exhibit P-3}. • !. f 

Bulk's assertion that it exercised no control over its 

subcontractor drivers is not well taken. The record in this case 

reflects that the decision to hire or not hire any subcontractor 

truck driver was. within the sole discretion of Bulk, and that 

Bulk paid the drivers for their services. Further, as pointed 

out by MSHA., the lease agreement between .Bulk and its subcontractors provided for periodic inspections by Bulk of the subcontractors vehicles, and the agreement between Beth Energy and Bulk 

provided for Bulk's inspection of each vehicle after loading at 

the mine site in order to assure safe movement of the load and 

vehicle. Notwithstanding Mr. Merlo's testimony that Beth Energy 

has never required Bulk to have anyone present at the mine site, 

since the trucks were loaded at the site, Bulk was obligated 

under its contract to inspect the trucks after loading in order 

to assure that any coal loads are transported safely from the 

site. 

Mr. Merlo confirmed that Beth Energy has had occasion to 

bring to Bulk's attention the fact that a contract driver may be 

speeding or not wearing his hard hat, and that this would be done 

by "a letter outlining the way we want our truckers to conduct 

themselves" (Tr. 91). Bulk in turn would communicate Beth 

Energy's safety concerns to the drivers by including any such 

letters in the drivers pay vouchers. Mr. Merlo further confirmed 

that he could refuse to use the services of any truckers who may 

have bad traffic records, and that he would not hire any truckers 

who may be cited by MSHA for safety violations (Tr. 103). Under 

all of these circumstances, I conclude and find that Bulk did in 

fact exercisejcontrol over its subcontractor drivers, and that it 

may be held accountable and liable for violations of MSHA's ~ 

standards, on an equal footing with the production mine operator 

and any pther independent contractor or subcontractor found 

subject to the Act. 

The question of whether to cite the mine operator or an 

independent contractor for a violation of a mandatory safety or 

health standard is within MSHA's enforcement discretion, and 

unless MSHA abuses its discretion, its decision should be 

affirmed. As the Commission note in Consolidation coal Company, 

797 
11 FMSHRC 1439, 1443, (August 1989), and the cases cited therein 11 [C)ourt precedent makes clear that the Secretary has retained 

wide enforcement discretion and that courts have traditionally 

not ~nterfered with the exercise c:;>f that discretion." 

It is true that the circumstances concerning MSHA's decision 

to vacate the citations issued to Bulk in 1987, and to serve them 

on one of Bulk's subcontractors, were no different than the 

circumstances under which the contested citation was issued to 

Bulk in this case. .It is also true that MSHA's refusal to vacate 

the citation was contrary and ~nconsistent with its prior vacation of the citations. However, I cannot conclude that MSHA 

acted arbitrarily and capriciously by refusing to vacate the 

contested citation. The oral decision by an MSHA supervisor to 

vacate the prior citations 2-years prior to the issuance of the 

contested citation in this case did not estop Inspector Davis 

from issuing the citation and citing Bulk on January 4, 1989, on 

tne basis of the information then available to him. Since the 

evidence does not establish that Mr. Krumenaker was in fact an 

independent contractor subject to MSHA's enforcement jurisdiction, and since the inspector determined that Beth Energy did .not 

violate the cited standard, I conclude and find that citing Bulk 

for the violation in question in this case was reasonable and 

proper, and Bulk's arguments to the contrary are rejected. 

Significant and Substantial Violations 

A "significant and substantial" violation is described in 

section 104(d) (1) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 

30 C.F.R. § 814(d)(1). A violation is properly designated significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or illness of a reasonably serious nature." Cement Division, National 

Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

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

Commission explained its interpretation of the term "significant 

and substantial .. as follows: 

In order to establish that a violation of a mandatory safety standard is significant and substantial 

under National Gypsum the Secretary of Labor must 

prove: (1) the underlying violation of a mandatory 

safety standard; (2) a discrete safety hazard--that is, 

a measure of danger to 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. 

798 
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 l04(d) (1), it 

is the contribution of a violation to the cause and 

effect of a hazard that must be significant and substantial. u.s. Steel Mining Company, Inc., 6 FMSHRC 

1866, 1868 ·(August 1984); u.s. steel Mining company, 

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

The question of whether any particular violation is significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine 

involved, Secretary of Labor v. Texasgulf. Inc., 10 FMSHRC 498 

(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 

(December 1987). 

Although Mr. Krumenaker was not injured when his raised 

truck bed contacted the energized high-voltage line, the contact 

with the 46,000 volt line caused eight of the tires on his truck 

to "blow out" (Tr. 27). Inspector Davis believed that in the 

event Mr. Krumenaker had grounded himself by touching the truck 

or ground at the time contact was made with the power line, it 

would have been reasonably likely that he would have suffered 

fatal injuries (Tr. 26). I believe that Mr. Krumenaker was 

fortunate and lucky that he was not seriously injured or fatally 

electrocuted when his truck came in contact with the high-voltage line in question. Under the circumstances, I conclude and find 

that the violation was significant and substantial, and the 

inspector's unrebutted and credible finding in this regard IS 

AFFIRMED. 

Size of Business and Effect of Civil Penalty Assessment on the 

Respondent's Ability to Continue in Business 

Based on the stipulations by the parties, I conclude and 

find that the respondent is a small independent contractor sub-~ 

ject to the Act, and that the payment of the civil penalty 

assessment for the violation in question will not adversely 

affect its ability to continue in business. 

History of Prior Violations 

The record reflects that the respondent has no prior history 

of assessed violations, and I have taken this into account in 

799 
/ 

/ 

.·· 

assessing a civil penalty for the violation which I have affirmed 

in this case. 

Negligence 

Mr. Krumenaker was not called as a witness and he did not 

testify in this case. As previously noted, there is no evidence 

or testimony as to whether or not this was his first trip to the 

mine, or whether he had been there before and was familiar with 

the site. The inspector's testimony that Mr. Krumenaker may not 

have known that he was parked under the high-voltage line 

suggests that he either did not realize he was parked under the 

line because it was dark, or because this was his first visit to 

the mine site and he was not familiar with the location of the 

overhead line. In either case, I do not find it unreasonable to ~ expect a truck driver to get out of his truck and look around for 

possible overhead obstructions or other potential hazards before 

raising his truck bed to clear it of frozen coal. In the instant 

case, I believe that Mr. Krumenaker was in a better position than 

Bulk to avoid contact with the overhead powerline. Of course, if 

it could be shown that Bulk was familiar with the mine site and 

was aware of the potential hazard resulting from a truck with its 

raised truck bed coming in contact with the overhead line, then 

Bulk would be negligent. However, I find no such evidence in 

this case, and I cannot conclude that Bulk could have reasonably 

anticipated or prevented the violation. 

With regard to Beth Energy's negligence culpability, 

although the evidence establishes that the height and location of 

the high-voltage line complied with MSHA's standards, the inspector confirmed that Beth Energy had posted no warning signs, and 

it would appear that the · area was not lighted so as to enable a 

truck qriver to see the overhead line when it was dark. Although 

the inspector believed that it was difficult for Beth Energy to 

control a driver's raising of his truck bed, and that Beth Energy 

"usually" instructed people about raising their truck beds, he 

was not certain that this was the case, and there is no -evidence 

or testimony to reflect that Beth Energy ever issued any warnings 

to Bulk or any of the drivers who came to its property to pick up coal. 

Assuming that Beth Energy installed and maintained the 

high-voltage line in question, and given the fact that it had 

control of the area where the trucks were expected to travel 

while picking up and loading coal, including the location where 

Mr. Krumenaker was parked at the time his truck contacted the 

line, I believe that Beth Energy knew or should have known that a 

driver stopped or parked under the high-voltage line might raise 

his truck bed and come in contact with the line. Under the ·circumstances, I believe that Beth Energy was obliged to either 

increase the height of its line to take into account the extended 

height of a raised truck bed, or at least post a warning sign or 

800 
provided overhead lighting for the line so that a driver is made 

aware of the potential hazard. 

In view of the foregoing, I conclude and find that the 

violation did not result from Bulk's negligence. However, the 

fact that it was not negligent does not absolve Bulk from liability and may not serve as a defense to the violation. As previously noted, I have found and concluded that as an independent 

contractor subject to the Act, Bulk was properly charged with the 

violation in question, and the fact that MSHA did not also cite 

Mr. Krumenaker, the driver, or Beth Energy, the mine operator, 

was not arbitrary or capricious, and was within MSHA's enforcement discretion. 

Gravity 

For the reasons stated in my "S&S" ·findings, I conclude and 

find that the violation in question was serious. 

Good Faith Compliance 

The inspector confirmed that the violation was abated by 

Beth Energy's plant foreman by instructing Mr. Krumenaker to be 

aware of the high-voltage line, and a copy of the citation 

reflects that it was terminated on the same morning that it was 

issued. I conclude and find that the violation was promptly 

abated in good faith. 

Civil Penalty Assessment 

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 in the absence of any negligence on the respondent's part, a 

reduction in the initial proposed civil penalty assessment of $54 

is warranted in this case. Accordingly, I assess a civil penalty 

in the amount of $25, against the respondent. 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment 

in the amount of $25, for the violation in question, and payment~ 

is to be made to the petitioner within thirty (30) days of the 

date of this decision and order. · Upon receipt of payment by the 

petitioner, this matter is dismissed. 

~-Koutras d~~~~~ 

Administrative Law Judge 

·eol 
Distribution: 

Nanci Hoover, Esq., Office of the Solicitor, u.s. Department of 

Labor; Room 14480 Gateway Building, 3535· Market Street, 

Philadelphia, PA 19104 (.Certified"Mail) 

Thomas E. Weiers, Jr., Esq., Rich, Fluke, Tishman & Rich, 220 

Two Chatham Center, Pittsburgh, PA 15219-3423 (Certified Mail} 

/fb 

802 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 lEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

UNITED MINE WORKERS OF . . DISCRIMINATION PROCEEDING 

AMERICA ( UMWA), . . ON BEHALF OF . . Docket No. LAKE 86-15-D 

STEVEN R. MAPLE, . . Docket No. LAKE 86-16-D 

THOMAS D. HEWLETT, 

.DALE KING, Sunny Hill Mine 

Complainants 

v. . 

. Docket No. KENT 86-26-D . . PEABODY COAL COMPANY, Alston No. 4 Underground 

Respondent 

ORDER OF DISMISSAL 

Before: Judge Melick 

Complainant UMWA requests approval to withdraw its 

Complaints in the captioned cases. Under the ircumstances 

herein., permission to withdraw is granted. 29 .F.R. § 2 00 . 11. 

These cases are there~ore dismiss d. 

Distribution: 

Mary Lu Jordan, Esq., Michael H. Ho~land, Esq., UMWA, 900 15th 

St., N.W., Washington, DC 20005 (Certified Mail) 

Michael A. Kafoury, Esq., Peabody Coal Company, P.O. Box 373, S~ 

Louis, MO 63166 (Certified Mail) 

slk 

803 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 · 

APR 2 61990 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

Docket No. WEST 88-220 

A.C. No. 42-01697-03581 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

C.W. MINING COMPANY, 

Respondent 

. . 

. . Bear Canyon No. 1 

DECISION 

Appea~ances: Margaret A. Miller, Esq., Office of the 

Solicitor, U.S. Department of Labor, Denver, 

Colorado, 

for the Petitioner; 

Carl E. Kingston, Esq., Salt Lake City, Utah, 

for the Respondent. 

Before Judge Morris: 

The Secretary of Labor, on behalf of the Mine Safety 

and Health Administration, (~MSHA~) charges respondent, 

c. w. Mining company (~c.w.w> with violating eleven safety 

regulations promulgated under the Federal Mine Safety and 

Health Act, 30 u.s.c. S 801 et ~·, (the "Act"). All of· the orders herein were issued under Section 104(d) of the 

Act. 

After notice to the parties a hearing on the merits co~nenced on June 7, 1989, in Salt Lake City , Utah. 

The parties filed post-trial briefs. 

The parties stipulated as follows: 

., 

804 
Stipulation 

1. c. w. Mining Company is engaged in m~n~ng ccal in 

the United States, and its mining operations affect interstate 

commerce. 

2. c. w. Mining Company is the owner and operator of 

Bear Canyon No. l Mine, MSHA I.o. No. 42-01697. 

3. c. w. Mining Company is subject to the jurisdiction 

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

§ 801 et seg., (•the Act•). 

4. The Administrative Law Judge has jurisdiction in this 

matter. 

s. The subject citation was properly served by a duly 

authorized representative of the Secretary upon an agent of 

c. W. Mining Company on the date and place stated therein, 

and may be admitted into evidence for the purpose of establishing its issuance, and not for the truthfulness or relevancy 

of any statements asserted therein. · 

6. The exhibits to be offered by c. w. Mining Company 

and the Secretary are stipulated to be authentic but no 

stipulation is made as to their relevance or the truth of the 

matters asserted therein. 

7. The proposed penalty will not affect c. W. Mining 

Company's ability to continue business. 

8. The operator demons·trated good faith in abating the 

violation . 

9. c. w. Mining Company is a small operator with 

285,550 tons of production in 1987. 

10. The certified copy of the MSHA Assessed Violations 

History accurately reflects the history of this mine for the 

two years prior to the .date of the citations. 

805 

.. 
Order No. 3227202 

This order alleged respondent violated 30 C.F.R. 

s 75.1404. ~/ 

The order reads as follows: 

The approved escapeway plan dated June 11, 

1987 was not being complied with. The designated escapeway in the belt entry from 

the tailpiece for 4 feet 6 inches in length 

t·oward the surface has a walkway width of 

24 inches. The approved plan states that 

32 inches shall be maintained in width from 

the belt tailpiece to the surface. This 

condition existed in the main north section, 

Hiawatha seam (lower seam). 

11 The cited regulation provides: 

S 75.1704 Escapeways 

[Statutory Provisions] 

Except as provided in SS 75.1705 and 75.1706, 

at least two separate and distinct travelable 

passageways which are maintained to insure passage at all times of any person, including disabled persons, and which are to be designated 

as escapeways, ~t least one of which is ventilated with intake air, shall be provided from 

each working section continuous to the surface 

escape drift opening, or continuous to the escape shaft or slope facilities to the surface, 

as appropriate, and shall be maintained in safe 

condition and properly marked. Mine openings 

shall be adequately protected to prevent the 

entrance into the underground area of the mine 

of surface fires, fumes, smoke, and floodwater. 

Escape facilities approved by the Secretary or 

his authorized representative, properly maintained and frequently tested, shall be present 

at or in each escape shaft or siope to allow 

all persons, including disabled persons, to 

escape quickly to the surface in the event of 

an emergency •. 

806 
Order No. 3044314 

This older alleges respondent violated 30 C.F.R. 

s 75.400. ~ 

The order reads as follows: 

Accumulations of loose coal and coal fines were 

allowed to accumulate in the active workings in 

the lower seam section in the following amounts 

and at the. following locations. 

(1) Loose coal and coal fines 24 inches high, 

9 feet long and 6 feet wide at the tail roller 

for the section belt. The tail roller and 

bottom belt were running in the accumulations. 

This was on the walkway side of the feeder. 

Measurements on the off walkway side showed 

the accumulations of loose coal and coal fines 

to be up to 36 inches high and 14 feet long. 

(2) Accumulation of loose coal and coal fines 

on the outby side of the stopping which the belt 

runs through - 26 inches deep; 5 feet long and 

5 feet wide. 

(3) Accumulations of loose coal and coal fines 

in front of the feeder breaker. 

2:.1 The cited regulation provide~: 

§ 75.400 Accumulation of combustible materials. 

[Statutory Provision} 

Coal dust, including float coal dust deposited 

on rock-dusted surfaces, loose coal, and other 

combustible materials, shall -be cleaned up and not 

be permitted to accumulate in active workings, or 

on electric equipment therein. 

807 

.. 
Order No. 3075922 

This order alleges respondent violation 30 C.F.R. 

s 75.400. 3/ 

The order reads as follows: 

. Accumulations of loose coal and coal fines 

and float coal dust were found to exist on 

the Marietta Continuous Mining Machine in the 

lower seam. · Th·e machine has loose coal and 

coal fines on and around the electrical compartments and float coal dust from 0 - i of 

an inch deep. Section Foreman was standing 

at the machine. 

Citation No. 3227145 

This citation alleges respondent violated 30 C.F.R. 

s 75.512 ~/ 

The order reads as follows: 

The weekly examination requirement had not 

been made on all electrical equipment in the 

lower seam section. The last recorded date 

of an examination was 1-15-88 as recorded in 

the approved book for such purpose. 

Reference the following citations and or.ders: 

3227149, 3227153, 3227155, 3227157. 

3/ The regulation is set forth in connection with the previous 

order. 

!/ The cited regulation provides: 

§ 75.512 Electric equipment; examination, 

testing and maintenance. 

[Statutory Provision] 

All electric equipment shall be frequently examined, 

tested, and properly maintained by a qualified person 

to assure safe operating conditions. When a potentially 

dangerous condition is found on electric equipment, such 

equipment shall be removed from service until such condition is corrected. A record of such examinations shall 

be kept and made available to an authorized representative of the Secretary and to the miners in such mine. 

808 
Order No. 3227149 

This order alleges respondent violated 30 C.P.R. 

s 75.601-1. _:; 

The order reads as follows: 

Short circuit protection was being provided for 

the 6 AWG trailing cable supplying 480 VAC fl Roof 

Bolter being used on the Lower Seam working section. 

The cable was plugged into a 100 amp circuit breaker 

with a trip range of 150-480 amps set on hi; The maxi:.. 

mum allowable equals 300 amps. The cable was plugged 

in and energized. Refer to citations and orders 

3044314, 3227145. 

~/ The cited regulation provides: 

§ 75.601-1 Short circuit protection; ratings 

and settings of. circuit breakers. 

Circuit breakers providing short circuit protection 

for trailing cables shall be set so as not to exceed the 

maximum allowable instantaneous settings specified in 

this section; however, higher settings may be permitted 

by an authorized representative of the Secretary when he 

has determined ~hat special applications are justified. 

Maximum allowable 

Conductor size circuit breaker 

AWG or MGM instantaneous 

settings (amperes) 

14 . . . . . . . . . . so 

12 . . . . . . . . . 75 

10 . . . . . . 150 

8 . . . . . . . 200 

6 . . . . . . 300 

4 . . . . . . . 500 

3 . . . . . . • . . . • . 600 

2 . . . . . . . 800 

1 . . . . . 1,000 

1/0 • . . . . • . . 1,250 

2/0 . . . . 1,500 

3/0 . . . . . . . . . . . 2,000 

4/0 . 2,500 

250 . . . . 2,500 

300 . . . . 2,500 

350 . . . . . . . . 2,500 

400 . . . . . • • . 2,500 

450 . . . . . . • . . . . . 2,500 

500 . . . . . . .. . 2,500 

809 

.. 
Order No. 3227153 

This order alle~es responderit violated 30 C. F.R. 

§ 75.512. 61 

§ 

The order reads as follows: 

The 1000 KVA transformer being used in the Lower Seam 

working section was not being maintained in safe operating condition. 

The following conditions existed: 

1) 2 top covers were not secured, one cover was located 

over the 7200 VAC side of the transform~r. 

2) Cover over the top of the 7200 VAC side was bent. 

3) The disconnecting handle f·or the blade switch was 

missing. 

4) The lid switches were inoperatively wired. 

5) The leads from the 995 VAC bus bar to the 995 circuit 

br.eaker had S9ffie of the stranded wires cut out. 

'Refer to citation and order 3044314, 3227145. 

Order No. 3227i55 

This order alleges respondent violated 30 C. F. R. 

75.512 . 7/ 

-

The order reads as follows : 

The heat lamp being used in the kitchen on the Lower 

Seam Working Section was not being properly maintained. 

The lamp is supplied 480 VAC . 

The following conditions existed: 

1) The bottpm cover plates on the ends of the heater were 

missing, exposing the energized connection points for the 

elements. 

2) The back of the lamp had a screw missing, exposing the 

internal ·connecting wiring. Persons may come in close 

proximity to these connections, approximately 8 inches on 

each end of the l~mp when placing food on the bottom shelf 

to warm. 

~/ The regu~ation is set forth at Order No. 3327145, supra. 

21 This regulation is set forth at Order No . 3227145, supra. 

810 
order No. 3227161 

This order alleges respondent violated 30 C.F.R. 

s .75.1704-2(d). ~ 

The order reads as follows: 

A map showing the section escapeway and main 

escapeway· from the Hiawatha Seam section was 

not provided in the section for the miners. 

Order No. 3227162 

The order 'lleges respondent violated 30 C.F.R. 

S 75.303(a). ! 

An inadequate pre-shift examination was conducted for 

the 9 p.m. shift 01/28/88. The afternoon shift foreman, 

Max Hanson, made the pre-shift for the oncoming shift. 

He reported to the oncoming shift foreman, Ken Defa, that 

the No. 1 and 2 Entries faces need to be bolted. It was 

not recorded as required or signed nor countersigned by 

the ~esponsib1e qualified persons. Refer to citations 

Nos. 3044314, 3075922, 3227163, 3227164. 

!/ The cited regulation provides: 

(d) A map of the mine, showing the main escape system 

shall be posted at a location where all miners can acquaint 

themselves with the main escape system. A map showing the 

designated escapeways from the working sectio~ to the main 

escape system, shall be posted in each working section, in 

order that the miners in the section c~n acquaint themselves 

with the designated escapeways from the section to the main 

escape system. All maps shall be kept up to date, and any 

changes in routes of travel, location of doors, or direction 

of air-flow shall be promptly shown on the maps when the 

changes are made and shall be promptly brought to the attention of all miners. 

11 The cited regulation provides: 

(Statutory Provisions] 

(a) Within 3 hours immediately preceding the beginning of 

any shift, and before any miner in such shift enters the 

active workings of a coal mine, certified persons designated 

by the operator of the mine shall examine such workings and 

any other underground area of the mine designated by the 

Secretary or his authorized representative. Each such exam~ 

iner shall examine every working section in such workings 

(Continued on page 9) · 

811 
Order No. 3227163 

This order alleges respondent violated 30 C.F.R. 

s 75.400. 10; 

2_/ (Continued) 

and shall make tests in each such working section for accumulations of methane with means approved by the Secretary 

for detecting methane, and shall make tests for oxygen deficiency with a permissible flame safety lamp or other means 

approved by the Secretary; examine seals and.do~rs to determine whether they are functioning properly; examine and test 

the roof, face, and rib conditions in such working section; 

examine active roadways, travelways, and belt conveyors on 

which men are carried, approaches to abandoned areas, and 

accessible falls in ·such section for hazards; test by means 

of an anemometer or other device approved by the Secretary to 

determine whether the air in each split is traveling in its 

proper course and in normal volume and velocity; and examine 

for such other hazards and violations of the mandatory health 

or safety standards, as an authorized representative of the 

Secretary may from time to time require. Belt conveyors on 

which coal is carried shall be examined after each coal producing shift has begun . Such mine examl.ner shall place his 

initials and the date and time at all places he examines. 

If such mine examiner finds a condit~on which constitutes 

a violation of a mandatory health or safety standard or any 

condition which is hazardous to persons who may enter or 

be in such area, he shall indicate such hazardous place by 

posting a "danger- sign conspicuous at al~ points which per-. sons entering such hazardous place would be required to pass, 

and shall notify the operator of t~e mine. No person, other 

than an authorized representative of the Secretary or a State 

mine inspector or persons authorized by t~e operator to enter 

such place for the purpose of eliminating the hazardous condition therein, shall enter such place while such sign is so 

posted. Upon completing his e~amination, such mine examiner 

shall report the results of his examination to a person, 

designated by the operator to receive such reports at a 

designated station on the surface of the mine, before ather 

persons enter the underground areas of such mine to work in 

such shift. Each such mine examiner shall also record the 

results of his examination with ink or indelible pencil in a 

book approved by the Secretary kept for such purpose in an 

area on the surface of the mine chosen by the operator to 

minimize the danger of destruction by fire or other hazard, 

and the record shall be open for inspection by interested 

persons. 

10/ This regulation was cited in connection with Order No. 

3044314, supra. 

812 
The order reads as follows: 

Combustible hydraulic oil, cardboard boxes had 

been allowed to accumulate in the return (immediate) entry in the Hiawatha seam section for 

3 crosscuts inby the bottom of the rock slope. 

There was 11 5-gallon cans (full of hydraulic 

oil), 29 cardboard boxes with roof bolt resin, 

4 cardboard boxes containing fire hose and 1 box 

containing pipe fittings, 18 empty 5-gallon 

hydraulic cans open and dripping remaining 

oil on 5 empty cardbo~rd resin boxes on loose 

coal on floor, and 3 empties next to the offstandard shuttle car dripping remaining on 

loose coal floor. · 

Order No. 3227166 

This order alleges respondent violated 30 C.F.R. 

§ 75.400. 11/ . 

The order reads as follows: 

The rubber tired Lee Norse Model TA 1-29/431 

26-2777A, SN 20691 was not being maintained in 

safe operating condition~ Accumulations of coal 

fines, loose coal soaked with hydraulic oil and 

grease had been allowed to accumulate on the 

main controller belt, the lighting ballast box, 

main motors and conduits. There was float coal 

dust present also. 

Witnesses 

.. -

Robert L. Huggins, John H. Turner, Donald E. Gibson, and 

Fred L. Marietti, testified for the Secretary. Kenneth Defa, 

Nathan Atwood and Bill w. Stoddard testified for respondent. 

The Secretary's initial witness testified as to Order No. 

3227202. Other witnesses testified as to their knowledge of the 

facts relating to other orders. 

In view of the broad scope of the evidence it is appropriate to set forth all of the evidence and then consider the contentions of the parties. 

11/ The regulation was cited in connection with Order No. 

3044314, supra. 

813 

.. 
Summary of the Evidence 

ROBERT L. HUGGINS, a Federal Coal Mine Inspector, is a 

person experienced in mining. 

On February 11, 1988, he inspected. the Bear Creek Canyon 

underground coal mine. The inspection was initiated as a result 

of a 103(g) complaint. During the inspection Mr. Huggins was 

accompanied by his supervisor, Mr. William Ponceroff and by company representative Ken Defa. The order involved here was issued 

in the area called the pit mouth where the belt extends to the 

outside. At this point the tailpiece and the feeder are just 

barely underground (Tr. 12-15). 

The Bear Canyon Mine is an underground coal mine and employs 20 to 40 miners. On this particular day the miners were 

scattered throughout the lower seam section but no coal was being 

produced . (Tr. 16-17 >. 

In June 1987 the company had asked for relief because the · company could not maintain its escapeway at a width of five feet 

by six feet. As a result of that request Mr. Huggins investigated. After the inspection it was agreed that the company 

would install two or three steps off the catwalk. They would 

also make a path like a walkway so the miners could get down 

(Tr. 18). These things were done and the escapeway was approved. 

The escapeway referred to in Exhibit P-2 is the same escapeway 

mentioned in Order 3227202. The purpose of the memo was to advise the District Manager that a man on a stretcher could escape 

the mine with no problems. In June 1987 the width of the escapeway was 32 inches in width and about 12 feet in length (Tr. 17-

20). 

When Inspector Huggins conducted his inspection in June 1987. he measured the escapeway to be 32 inches. rt ·is the inspector's 

contention that from the time of his inspection in June until the 

date he issued his citation in February 1988 the escapeway had 

been narrowed by the company installing roof support steel beams 

and timber. These changed conditions blocke~ the escapeway since 

the average measurements dropped to 24 inches (Tr. 23, 24, 41). 

The inspector personally could go through the escapeway but 

because of restricted turns a stretcher could not have been carried thr·ough it CTr. 23, 24, 25, 38, 41). 

The company's other escapeway went out to the return, up the 

slope to the upper seam, and out. These two escapeways were 

separated by a cinder block wall (Tr. 38). If a person had a 

814 
problem getting through there they could simply back up 50 feet 

and go out the other escapeway. 

The inspector believed the violation was S&S. This route 

was the only escape route out of the mine as the other entry had 

not been driven. Any injured miner would have to be left behind 

( Tr. 25, 26). · The inspec·tor believed that it was reasonably 

likely that any injury could be fatal (Tr. 26). He also designated this violation as an unwarrantable failure and referred to 

the tracking system in the MSHA office when he wrote this particular order. The (d) sequence was in effect: this fact is 

recorded in the office (Tr. 27, 28, Ex. P-5). If there had been 

an inspection to take the mine off of the (d) sequence, the 

inspector would have been informed of it. The mine must have a 

complete inspection before the (d) series can be dropped (Tr. 28). 

He designated this order as an unwarrantable failure because 

this particular area has to be pre-shifted. In addition, the 

memorandums back and forth between the company and Denver (MSHA 

District Manager), states that if there is any change the situation has to be re-evaluated. No doubt the company installed the 

steel beams. 

Inspector Huggins agrees the escapeway "was probably 15 to · 20 feet underground and maybe 4t to 5 feet in length" (Tr. _33). 

Exhibits P-2, P-3, and P-4 contain evidence relating to the 

June 1987 approval of the escapeway. 

JOHN R. TURNER, a·n MSHA underground c·()al mine inspector, 

has been so emp·loyed for 11! years. He is experienced in mining 

an has held various jobs in the coal mining industry (Tr. 43-45> •. 

He has inspected C.W. once or twice a year for the past 

10 years. The company was previously called Co-op Mining. 

Management has not changed over the last 10 years; however, the 

working personnel has changed drastically (Tr. 45-46). 

On January 29, 1988, _the inspector went to the Bear Canyon 

No. 1 Mine. He went to the mine at the direction of his supervisor who advised him Inspector Ted Farmer was having severe back 

pains and needed relief at the mine. The assignment was made by ~ 

Fred Marietti, his supervisor. At the time, Inspector Farmer was 

an underground coal mine inspector working out of the Orangeville office. He served in the same capacity as the witness. 

Mr. Farmer has not been in the Orangeville office for approxi- ~at~ly a year . The day before the witness went to Bear Canyon 

on January 28, he and Mr. _Farmer were inspecting a different mine 

in Salina, Utah. Later that night, Mr. Farmer received a call to 

go to the mine. 

815 
The inspection team from MSHA consisted of Messrs. Farmer, 

Marietti, and Gibson. Mr. Gibson, at the time, was a trainee. 

The three men went to the mine on the evening of the 28th. It 

was at 7 a.m. that he was told to relieve Mr. Farmer because of 

his back pain. He arrived at the mine at about 8 a.m. and he saw 

Farmer who was then preparing to go home. Mr. Farmer left after 

he arrived. He then went underground to meet Messrs. Gibson and 

Marietti and to continu~ Mr. Farmer's part of the inspection. 

He met Nathan Atwood, maintenance foreman for c.w., and 

located the other inspectors near the continuous mining machine. 

The mining machine was dismantled; it was very bla~k in this 

area. 

.. He then pr_oceeded out the return ·entry and met some 

workers. They said the inspectors were outside. He was then 

in the return entry where it connected with the slope. He went 

back up the slope following the same pattern he had used to come 

down. When he first saw Messrs. Gibson and Marietti, they were 

writing citations and orders outside the mine. Mr. Turner's 

name appears as a signature on some of the orders, but he was 

not familiar with every one of the conditions listed in the 

orders {Tr. 46, 54); but the signature of the witness appears 

on some of the orders. Mr. Marietti asked the witness to sign 

these orders. Mr. Marietti did not sign them himself. Some 

of Mr. Turner's signatures appear on some of those orders. 

Mr. Marietti's card was in Arlington because of the supervisory 

situation. Mr. Gibson did not have an AR card at the time 

(Tr. 54-55). 

The witness did not observe the condition noted in connection with Citation 3227145 (Tr. 55, 56) . Mr . Gibson or 

Mr. Marietti observed the condition. 

The inspector signed but did not observe the conditions 

described in the following orders: 3227149, 3227153, 3227155, 

3227161, 3227162, 3227202 (Tr. 55-59). 

In connection with Order No. 3227163, Inspector Turner 

walked through the area on his way up to the return slope. He 

observed cardboard boxes containing a fire hose, 18 empty fivegallon oil cans (open and dripping). This condition was in the 

connector entry to the return up the slope. This was a return 

entry (Tr. 59, 60). 

Inspector Turner believed the above accumulations violation 

was S&S because there was a violation of the regulation. The 

hazard could cause injury to the ·workers underground. Scoops 

and electrical equipment could cause an ignition. A fire could 

quickly spread (Tr. 59, 60). 

816 
· Mr. Turner did not observe the conditiop described in Order 

Nos. 3227153 or 3227166 (Tr. 58, 59, 61); however, he saw the 

conditions described in Order No. 3227163 (Tr. 59). 

The witness observed the conditions described in Ord.er No. 

3044314. He had not measured the loose coal and accumulations 

because Inspectors Marietti and Gibson had already noted these 

conditions. Based on his observation, he considered the loose 

coal and fines violated the regulation CTr. 61). The violation 

was also S&S. This particular order was signed by Inspector 

Farmer (Tr. 61, 62). 

concerning Order No. 3075922, the witness did not measure 

the float coal dust; but he observed the dust and the blackness 

of the area. The "zero to quarter inch" description came from 

Mr. Gibson or Mr. Marietti. Mr. Turner considered this violation 

to be S&S <Tr. 62). 

Most of the signatures on the orders are based on what the 

witness was told by other inspectors including Mr. Marietti, . a supervisor. MSHA supervisors do not routinely sign orders or 

citations. It is part of the training for trainees that they 

write the body of the citations, which will be signed by a 

certifi'ed AR (Tr. 63). The AR Number must appear in the body 

of the order (Tr. 64). 

Before he became a supervisor, Mr. Marietti was an underground coal mine electrical inspector (Tr. 64). When Mr. Turner 

signed these citations and orders, he had to believe th~se conditions existed. You could observe these conditions by walking 

through which he did when he was looking for Inspectors Marietti 

and Gibson . ~he orders he did not see he believes existed 

because he knew Mr. Marietti. and his background as a competent . electrical underground coal mine inspector (Tr. 65). 

Mr. Turner agrees that the inspection began about midnight. 

He signed the orders and citations because Mr. Marietti 

asked him to, also his boss Mr. Ponceroff said .he should 

sign orders and citations that were issued. He was to take 

Mr. Farmer's part in the inspection (Tr. 65, 67> •. 

Mr. Turner talked to Mr. Farmer about 15 minutes that 

morning (Tr. 68). It is not normal procedure to return the 

documents to the office and have Mr ~ Farmer sign them (Tr. 68). 

Mr. Turner observed the condition of the accumulation of 

fines and coal dust on the miner and also saw the accumulation 

817 
of boxes and oil cans and other things (Tr. 68-69). The area of 

the mine in which the cans and oil were located was not well 

rock-dusted; it was damp and it was in the return entry.. He 

judged the accumulations in the area did not accumulate within 

a shift or a day but took a longer period of time (Tr. 70). 

Some of the cardboard boxes were empty (Tr. 71). It is 

not a violation to have oil underground to meet the needs of 

one shift as long as it is in proper containers and there is 

no spillage (Tr. 71). The mine was damp but Mr. Turner did not 

remember the cardboard boxes lying in water (Tr. 70). 

Concerning Order No. 3044314: the loose coal and fines had 

accumulated.-but the witness did not take the meas.urements but 

merely observed them as he walked through (Tr. 72-73). The 

accumulations were dry and the area was not w.ell rock-dusted. ~owever, he did not take a rock-dust sample as required by 

30 C.F.R. 75.403 (Tr. 73) . 

Regarding accumulations on the miner, it would be better 

stated if the accumulations were described as a film. With 

reference to float coal dust, one-quarter of an inch is a 

very small piece of coal. Mr. Turner observed the float coal 

dust on the machine (Tr. 74). 

Mr. Turner did not approach Mr. Farmer to ask him to sign 

some amendments to the violations (Tr. 75). 

Mr. Farmer lives approximately . two blocks from the Orangeville office (Tr. 76}. Mr. Farmer could have been subpoenaed to 

come to the hearing to testify (Tr. 76>. When the witness met 

Mr. Marietti and Mr. Farmer these orders had not been written·. Mr . Gibson was also present (Tr. 77>. 

The orders were written the morning and afternoon of the . inspection. Mr. Gibson ·wrote some, Mr. · Marietta wrote .some, and 

the witness wrote some (Tr. 78). · 

Inspector Gibso~ wrote ·No: 3227155, 3227153, 3227149, and 

3227145 (Tr. 79) . The witness did not know what Mr. Marietti 

wrote. The remaining orders and citations were written by 

Mr. Farmer (Tr. 80). Mr. Turner signed all the citations and 

orders at one ·timeJ they were dated January 29, 1988 (Tr. 80). 

Witness Turner wrote Order No. 3075922 but no others 

(Tr. 80-81). 

818 
Forty to 45 citations or orders were written that morning or 

afternoon and Mr. Turner signed all 40 or 45 of them (Tr. 81-82)~ 

The witness signed most of them. He did not feel it was 

necessary to go back into the mine and review all 40 or 45 

citations that had been written that day (Tr. 82). 

Of the 40 to 45 violations that had been issued, approximately 20 have been dismissed (Tr. 83). 

· DONALD EUGENE GIBSON is an electrical inspector employed 

by MSHA for two years CTr. 84). On January 29, 1988, he was a 

trainee coal mine inspector with a specialty in electrical work. 

His AR card was issued February 28, 1988. While he was a trainee 

he traveled ·with Mr. Marietti. The witness did not sign any 

citations while he was in training status but he would write such 

citations. They in turn would be signed by other coal mine 

inspectors (Tr. 84-87). 

He inspected the company January 28th and 29th of 1988 

with Fred Marietti and Ted Farmer (Tr. 87). Mr. Farmer no longer 

works fox MSHA (Tr. 88). 

This inspection came about due to a formal 103(g) complaint 

filed with the field office supervisor. A 103(g) complaint is 

a complaint from a miner or a representative of the miners if 

standards are being violated (Tr. 88). 

The complaint had indicated that production was being performed on the graveyard shift. This is the reason the inspectors 

arrived .at the mine at approximately midnight (Tr. 89). They 

found that coal was being produced. They reviewed the mine books 

and found that a pre-shift of the lower seam had not been performed. .In addition, the electrical book was not up-to-date. 

Inspectors routinely write citations as they see the ·. violations (Tr. 91). They also looked for someone in charge 

(Tr. 91>. It is a matter of the inspector's preference whether 

to write a violation underground or to write it on the surface. 

In any event, he serves the operator if he sees a violation 

(Tr. 91-92). 

They came to an entry where the continuous m1n1ng machine 

was backing out of a place that was very dusty and there was a 

lot of .coal dust in suspension. A silhouette of the mining 

machine and the miners was present. The witness then walked up 

behind Kenny Defa, who was the mine foreman in charge at 

that time (Tr. 92). 

819 
Mr. Marietti told Mr. Defa they were conducting an inspection and 

he presented Mr. Defa with a copy of the 103(g) complaint. The 

copy does not have the complainant's name on it (Tr. 93). There 

were no line curtains up and there was no ventilation. The 

atmosphere in the mine was very warm. Everything was very black 

and coal dust was in suspension (Tr. 93). 

Mr. Farmer said he could not get his anemometer to turn so 

they took a smoke-cloud test. There was no movement but suddenly 

there was ventilation because it got very cold in the mine; the 

temperature changed drastically. One of the items on the 103(g) 

complaint referred to ventilation (Tr. 94). · 

Order No. 3227145 is a (d)(l) citation. Mr. Gibson observed this condition, which is listed in the citation. This was 

one of the books that they examined before going underground. 

The last date of the recorded examination was January 15, 

1988. The regulation requires that examinations be made once a 

week, that is, once in a calendar week (Tr. 95). The last entry 

in the examination book was January 15, 1988 (Tr. 96). More than 

seven days had elapsed between the 15th and the time he saw the 

book. That would be 14 days that had elapsed (Tr. 96·>. 

The inspectors wrote some 40 or 50 violations and orders 

during the course of the 29th until 6 or 7 o'clock that evening, 

that is, from midnight on the 29th until 6 p.m. on the 29th (Tr. 

97). Many of these were electrical violations (Tr. 97-98). 

There was no record in the book of any weekly examinations. A 

qualified person who is usually an electrician conducts a weekly 

examination of electrical equipment (Tr. 98). 

He observed the short-circuit protection set forth in connection with Citation 3227149 (Tr. 98-99). A qualified person 

could see this. 

Ttie conditions in Order No. 3227149 and No. 3227153 should 

have been observed by a qualified electrician. The top covers 

were bent down and a disconnecting candle for the blade switch 

was missing. These are obvious conditions. 

In addition to the weekly examination cited in Order No. 

3227145, the area was also subject to a pre-shift examination 

(Tr. 100). · 

Order No. 3227155: An entry should have been recorded 

in the examination book relating to the heat lamp used in the · kitchen. Five orders were issued on this one heat lamp. 

Problems with the heat lamp were grounding and monitoring, 

and the sho~t-breaker was set too high (Tr. 100-101). 

820 
These items should have been seen on the weekly exam by a 

qualified person (Tr. 100, 101). 

The qualified persons performing the examinations should 

have been ~athan Atwood, maintenanc~ cn1et; Cyril JacKson, 

electrician; Ken Defa; and finally OWen (last name unknown) 

(Tr. 101). Mr. Atwood was not present when the inspectors 

arrived (Tr. 101-102). 

Witness Gibson considered Order No. 3227145 to be S&S. It 

was highly likely that injuries could happen due to the lack of 

a weekly examination (and correction) involving the electical 

equipment (Tr. 102, 104). There could be openings in explosionproof compartments, headlight deficiencies, motor, fan motor, and 

conveyor motor cables could be damaged. These are arc sources 

(Tr. 102-103). 

Voltage at 480 A.C. could produce arcs that could ignite 

methane or the coal dust mixture in the air or other mixtures 

(Tr. 103). 

This could cause an electrical shock hazard to the miners. 

A weekly examination is done to prevent those kinds of hazards (T~. 103). If various electrical conditions were not examined 

and corrected, the possibility of a mine fire could eXist 

(Tr. 104). 

On January 29, 1988, there was quite a bit of float coal 

dust in the mine <Tr. 104-105). Such dust would ignite more 

quickly than solid coal or coal accumulations CTr. 105). 

Mr. -Gibson's handwriting appears on Order No. 3227145 

(Tr. 105). 

This was an unwarrantable failure because management knew 

that the equipment had not been examined. It was highly probable 

that an injury could .result, the seriousness of which could be 

fatal. 

Based on his review of the book, the weekly examination had 

been performed January 15, but none since that time (Tr. 106). 

There were qualified people present who could conduct such an 

examination (Tr. 106). 

Witness Gibson wrote Order No. 3227149. He observed the 

conditions noted in the body of the order. They were producing 

coal when the inspectors arrived (Tr. 107). 

.. 
In this order (No. 3227149) Mr. Gibson said there was a 

trailing cable through the roof bolter (Tr. 108). The trailing 

cable went to the section transformer about 300 feet out back. 

The maximum length from the roof bolter to the transformer would 

be 500 feet CTr. 108). 

The energized cable was a No. 6 AWG. It was plugged into 

a 100 AMP circuit breaker with a trip range of 150 to 480 AMPs. 

That means there should be a short circuit between phases or 

phase to ground (Tr. 109). 

If two phases short out then it is going to start the arcing 

or welding process. It will generate 1400 to 1700 degrees and 

burns can be caused by the arcing. Ignition can result. 

This reading was set on 480 and it should have been set on 

300 AMPS. Section 75.601-1 requires a setting of 300. This 

cable was lying on the mine floor in coal accumulations and coal 

dust (Tr. 110). Higher settings can be obtained but must be 

authorized by an AR of the Secretary after testing evaluation 

CTr. 111>. This was not done. The hazard involved here is 

causing the cable to heat: this could cause a fire. 

Excessive heat could cause a . mine fire, and a loose connection is always a heat spot. The witness has seen splices in 

trailing cables. They could blow apart, melt the installation 

off, and expose energized parts CTr. 111). · 

A fire hazard could cause smoke inhalation, burns,, and heart 

attacks (Tr. 112). There is a possibility of a sh~ck hazard if 

the short circuit is set too high. A qualified electrician normally sets the short circuit protection <Tr. 113>. 

The inspector designated this v~olation as -unwarrantable.· This should have been checked by a qualified person. While 

180 is not high, a person would "be dealing with the effects of 

short circuit and, in view of that factor, it is extremely high 

(Tr. 114-115). 

Order No. 3227153 was written by Inspector Gibson who observed the conditions listed in the order. The transformer was 

in one crosscut inby the feeder br~aker on the lower seam. The 

feeder breaker was for the section. It is a 7200 volt primary 

and steps down to 480 volts. It is also stepped down to 995 

volts AC, which would power the equipment being used in the 

section. The step down is to 480 and 995 volts (Tr. 115). 

822 
Order No. 3227153 deals with the maintenance of the equipment; there were two top covers on the transformer, one of which . was located over the connection point for the 7200 volt incoming 

power and was not secured. The top cover lid was not secured to 

the transformer (Tr. 116). 

The purpose of the cover lid is to keep people from contacting exposed energized components inside the transformer .box and to keep out foreign material. If someone lifted the 

cover lid when the transformer was energized, foreign mater"ial 

could fall in there causing an arc. A person could contact them 

and be burned with an entrance and exit wound (Tr. 117-118). 

The cover lids are ·subject to a weekly electrical examination 

(Tr. 118-119); they are are also subject to 30 C.F.R. S 75.900 

which requires high voltage testing on a monthly basis. 

This is an area required to be preshifted. The employees 

were also producing coal in this section (Tr. 119). 

The second condition involved the top cover of the 7200 volt 

side. It was bent in a downward fashion close to the bus bars 

that went through the transformer. There was no air space for 

this cover vent (Tr. 119-120). 

The copper bus bars were two inches wide and probably range 

from four to five, maybe six feet in length <Tr. 120). 

The lid was bent close to the high voltage cable (Tr. 121) . The thickness of the metal is usually about an eighth of an inch. 

Inspector Gibson did not see anything that could have bent the 

top cover (Tr. 122). The hazard created by this condition is 

that the cover could be resting against h1gh voltage cable, that· is, one of the leads from the high voltage side (Tr. 122). 

In this mine the disconnecting switch was 800 to 1000 feet 

away. It is possible the vent cover could cause a shock hazard. 

This could energize the transformer. 

The next condition was that the disconnecting handle 

for the blade switch was missing (Tr. 123>. This is a small 

lever on a light switch which can disconnect if it is necessary 

to do repair w.ork on the 480 or 995 volt side of the transformer. 

Internal arcing could be caused if there is no handle to discon~ 

nect. You can observe the disconnecting handle as you approach 

the transformer (Tr. 124). 

823 
The absence of a handle should have been noted in a weekly 

electrical examination. This particula.r . item could have been 

overlooked by the pre-shift exam (Tr. 125). 

The fourth condition involved an inoperatively wired lid 

switch. A lid switch is a small toggle switch installed on the 

high voltage side of the transformers to activate the pilot 

switch that would de-energize the transformer if the lid is open 

(Tr. 126). 

This would prevent someone from being in contact when the 

lid is open. In other words, someone had wired this so that the 

safety device, a switch, would not operate (Tr. 127). This condition should .be detected on a weekly examination (Tr. 128). 

The final condition involved leads where the breaker had a 

part of the wires cut out to facilitate a connection (Tr. 129). 

Cutting away part of the cable decreased the diameter of 

the cable and also decreased its current carrying capacity. 

This could cause an internal heat problem in the transformer. 

This is a potential fire hazard and it would be like a loose 

connection. Each of the conditions Mr. Gibson listed creates 

a hazard which is reasonably likely to result in an injury. 

In each case the injury could be serious (Tr. 130). 

The order was an unwarrantable failure of the operator 

to cpmply. It was unwarrantable because the transformer had 

deteriorated and it is unwarrantable not to maintain the 

equipment to prevent a safety or health hazard (Tr. 131). 

The bent and unsecured top covers would be items a person 

could see when he walked by the transformer. There were tripand-fall hazards around the transformer in the nature of trailing 

cables, box·es, and loose coal (Tr. 133). 

Mr. Gibson wrote Order No. 3227155 and observed the condition noted in the order (Tr. 133-134). The kitchen was two 

crosscuts inby the feeder breaker in the lower seam working 

section and one crosscut above the section transformer. The 

first-aid equipment is store& there and also SCSR equipment. 

It is a congregation point for the working crew (Tr. 134) . 

The heat lamp was 36 to 42 inches long and about 10 to 

12 inches wide and 4 to 5 inches high. It was hanging from the 

ceiling of the mine roof. There was wire mesh where food could 

824 
be warmed. It was 4 to 5 inche~ from the lamp to the rack. The 

heat lamp was supplied by 480 volts AC. The lamp had filaments . similar to mercury vapor industrial light three-eighths of an 

inch in diameter CTr. 135). 

On January 29, 1988, there was some food wrapped in aluminum 

foil lying on the lamp. The regulation was not being maintained 

because the bottom cover plates on the ends of the· heater were 

missing exposing energized connection points for the elements 

CTr. 136) . 

A copper pigtail was hanging down below the heat lamp. 

The copper wire was energized. If a person would contact it, 

he would receive a shock and could be burned. Persons placing 

their food on the bottom rack could contact the wire (Tr. 137). 

Mr. Gibson designated this as an S&S because of the shock 

hazard and accessibility to the pigtails. 

An additional condition involved the back of the lamp which 

had a screw missing, exposing the internal connecting wiring. 

The junction box on top of the heat lamp brought in the 480 . volt 

power supply. The missing screw left all of the wiring exposed. 

Wires were energized (Tr. 138). If persons contacted. them in the 

bare places they would receive a shock (Tr. 138-139). 

There was a rickety table under the heat lamp . The lamp 

extended down 10 to 12 inches from the mine roof. If a person 

were six feet tall, he would be standing approximately level 

with the extended cord (Tr. 139). 

Men in the working section, including the foreman, used .the 

kitchen. The area should b~ pre-shifted (Tr. 140). The violation was unwarrantable because energized points were present. 

The section foreman is required to make on-shift examinations 

<Tr. 14 0-141). 

The exposed wires were obvious to anyone who walked in the 

room. 

The ground conductor was not securely fastened to the heat 

lamp and the short circuit protection did not comply with the 

law (Tr. 141). 

.. 

Regarding Order No. 3227161: On January 29, 1988, during 

the inspection, Inspector Gibson could not find a map showing the 

designated escape routes from the coal mine. He did not see any 

map of the section. Normally it would be in the kitchen area 

(Tr. 144). He did not see any map underground. The workers did 

825 
not know whether there was a mine map underground. The map is 

also .required to have some markings on it which would show two 

distinct and separate escapeways (Tr • . 145). 

This order was non-S&S. The miners knew the escape route. 

The purpose of 1704(2)(d) is for the miners to familiarize 

themselves should any changes occur in the route (Tr. 146). 

This violation was unwarrantable because the law is very 

plain and there were foremen or supervisors in the working 

section (Tr. 127). 

The mine foreman in charge is usually responsible and would 

be held accountable. Management was cited on two previous occasions for the failure to provide a map (Tr. 148). 

Regarding Order No. 3227162 : Inspector Gibson observed the 

condition as described in the order. He found no evidence that 

the pre-shift had been recorded in the book (Tr. 149). Mr. Defa 

told him that Mr. Hanson did the pre-shift examination. Inspector Gibson did not see anything to indicate that Mr. Hanson had 

entered the examination in the book. It had been reported to 

Mr. Defa that two entry faces needed to be bolted but nothing 

else CTr. 150). 

There were accumulations of coal, coal fines, and coal 

particulates in and around the belt tailpiece. The feeder 

breaker condition should have been recorded. Accumulations also 

existed in the return entry . Oil cans and the hydraulic oil 

were stored in the coal accumulations. Also there was a nonpermissible pump in the return entry which was being used. The 

sideboard on one of the· shuttle cars stuck out about 18 inches 

from the main frame <Tr. 152). 

The steel peg was 'sticking out · in the area where the mine·r' s 

helper would stand while the mining machine cut coal . These were 

all obvious hazards. They could cause serious to fatal injuries 

to miners (Tr. 152). This citation was written by Mr. Marietti . Mr. Gibson observed the described conditions. The results of the 

pre-shift were not recorded as required. The purpose of preshift is to alert the oncoming shift to hazardous conditions in 

the section and those things that need some type of corrective 

action (Tr. 153) • 

. The oncoming foreman reviews pre-shift examination to alert 

him of hazardous conditions and he signs the book. Failure to 

note conditions found in pre-shift could probably result in 

injury, depending on the conditions observed (Tr. 154). 

826 
Based on the inspector's observation of January 29, 1988, 

there were conditions not listed in the book that would create 

a hazard to miners going underground (Tr. 154-155). The con~ 

ditions could cause serious injury. A pre-shift is required 

three hours before anyone enters the area. Hanson, a foreman, 

did the pre-shift ~amination in this case (Tr. 155). 

This violation was unwarrantable because it violates the 

standard and there is a measure of safety involved. It is 

likely that a serious accident could result. 

. Management should be aware of conducting and recording a 

preshift (Tr. 15.6). 

Order No. 3227163 involves coal and combustible accumulations located in an active working section. A part of the accumulation was around the corner where a shuttle car was parkedJ 

but basically, it was in the lower seam working section 

(Tr. 157). · 

There was some rock mixed in with the accumulations and 

Mr. Gibson helped count the containers. There were ll.fivegallon cans of hydraulic oil; 20 cardboard boxes with roof bolt 

resin; 4 cardboard boxes containing fire hoses, one box containing pipe fittings; 18 empty five-gallon hydraulic cans open and 

dripping oil on 5 empty cardboard resin boxes; loose coal on the 

floorJ and 3 empty oil cans dripping oil on the loose coal on the 

floor. 

Hydraulic oil and cardboard boxes are combustible (Tr. 158-

159). The shift could use more than. 11 five~gallon cans in one 

shift if ·they had some type of hydraulic failure: Also oil leaks 

in equipment could also cause loss of .additional fluid. The · accumulations did not appear to have occurred during one shift 

{Tr. 159) ·. 

This was not an oil station and there was no fire protection. 

Another source of electricity was the non-permissible pump cited 

in the area. This was a source of ignition. (Tr. 160). It 

looked like a K-Mart submersible 110 house pump (Tr. 161). 

Accumulation of combustible materials, if continued unabated, is likely to cause an injury. The source of energy or 

the pump and the shuttle car could cause a fire. Oil could add 

to the intensity of a fire. There were coal fines in the area · ~hi<..h would require less sparking to ignite than they would if 

they were a mere solid piece of coal. 

827 

.. 
This area is subject to a pre-shift exam and this violation was unwarrantable because of the amounts involved 

there (Tr. 162). It could not happen in a normal work shift 

but was more likely to occur over two or three shifts. There 

should have been several pre-shifts during that period and there 

should have been a weekly examination where it should have been 

noted. This accumulation was obvious and open. The foreman and 

mine management would have to pass through on a daily basis 

(Tr. 163-164). In two previous years the company has been cited 

for 30 violations of this regulation (Tr. 165). 

Regarding Order No. 3227166: Inspector Gibson observed the 

conditions cited in the order. The Lee Nourse model is a roof 

bolter that was being used on the lower seam working section. 

Marietti was with him when he observed the roof bolter. This 

fs the roof bolter that had the trailing cable also cited for 

having a high setting (Tr. 165). 

This order was written by Mr. Marietti. Present were coal 

fines, loose coal soaked with hydraulic oil, grease that accumulated in the main controller box, the lighting ballast box, 

the pump motor, and conduits. There was also float coal dust 

present (Tr. 166). 

Tools were used to take covers off but that is not done 

routinely. Usually they have the cooperation of the mine operator to do it for the inspectors. While checking this piece of 

equipment there were no miners present as they had left the mine 

(Tr. 167). 

The float coal dust had settled on ·top of the roof bolter 

and mixed with other accumulations that were present under 

the shields and under various compartments in the roof bolt 

machine. A, piece of the equipment looked black . · The No. 1 

and No. 2 -entry faces had not been bolted as reported by 

Mr. Hanson to Mr . Defa. When they got there, they were going to 

start bolting (Tr. 167-168). 

This roof bolting equipment would be walked by the pre- · shifter (Tr. 168-169). 

The equipment was where a foreman or management would walk 

by on that particular day. If these accumulations were allowed 

to continue, it was reasonably likely that an accident or an 

injury would occur (Tr. 169). 

There could be a fire. Float coal dust is an ignition 

source and could ignite. Roof bolters, if they have a faulty 

trailing cable, could emit sparks. The trailing cable on this 

root bolter had inadequate short circuit protection (Tr. 170). 

828 
A fire hazard would result (Tr. 1.70-171). An injury on this 

trailing cable would reasonably likely be fatal due to a fire. 

This violation is unwarrantable. The amount of accumulations the inspectors observed was more than would occur during a 

normal work day. In the opinion of the witness it would take 

more than "three shifts to acquire a similar amount (Tr. 171). 

Order No. 3044314 is a violation for accumulation of combustible materials. This accumulation was in an active working 

section, the lower seam section, where the inspection was taking 

place (Tr. 172). 

Inspector Gibson assisted Ted Farmer in taking the measurements. The order indicates ac"cumulatioris at seven different 

locations: No. 1 accumulation was loose coal and coal fines 

24 inches high and 9 feet long, 6 feet wide at the tail roller 

for the section belt. This was on the walkway side of the feeder. 

Measurements on the off-walkway ~ide showed accumulations of 

loose coal and coal fines to be 36 inches high and 14 feet long. 

These are large accumulations (Tr. 172-173>. 

The belt itself was running in the accumulations. Loose 

coal and coal fines are combustible and there were two sources of 

ignition where the belt would be fractionable and the second 

source would be the feeder breaker set at an angle off the belt 

tail piece or tail roller. Electrical motors are there and there 

are two electrical motors on this particular machine (Tr. 174). 

With the accumulations observed around the tail roller, 

which was in the intake air (Tr. 175.), there could be a fire. · Also there were bearings on the tail roiler itself. which were 

greased. This would be a third point of ignition. Coal fines 

are usually ignited because they are a fine grade of coal. 

The condition described in No. 1 (tail roller), if continued 

unabated, would reasonably result in an injury or death due to . smoke inhalation. 

The second accumulation was at the first topping outby the 

box check (Tr. 176). This was a large accumulation. Again, the 

hazard was that the belt might catch fire. It is likely than an 

injury or fatality could occur from smoke inhalation. .. . 

The third item of the order was a large accumulation. This 

was on the back of the feeder where the shuttle cars were stopping and where they dump into the feeder. If the coal is dumped 

too fast from the shuttle car, a pile-up of coal occurs (Tr. 

177-178). With regard to this hazard, the witnesses' testimony 

is the same as it was with regard to locations No. 1 and No. 2. 

829 
Location No. 4 is at the crosscut in a piggy-back spot where 

the kitchen is located. It covers an area 70 feet long, 6 feet 

wide, and up to 10 inches deep. This was quite a bit of an 

accumulation (Tr. 179). 

Basically, two shuttle cars dumped into one and a lot of 

spillage oecurs here. In this instance the shuttle car closest 

to the working face had been loaded with coal by the continuous 

mining machine (Tr. 180). A substantial amount of spillage 

occurred. 

The kitchen was located inby the section transformer and 

there are var.ious sources of ignition in the area such as 

shuttle-car cables, mining machine cable and roof bolter cable. 

(Tr. 181) 

Dumping from one shuttle car to another creates a lot of 

dust (Tr. 181-182) 

On the shuttle car that was closest to the feeder breaker, 

MSHA issued an order for a violation of § 75.503 for not being 

maintained in a permissible manner in that the front wheel was 

missing from this particular shuttle car. Damaged pieces in the 

cable would arc against this metal as it passed around it (Tr. 

182). 

At the anchor point of the off-standard shuttle car, which 

was on the other side of the entry at· the piggy-back spot, one of 

the shuttle cars was anchored with a piece of 3/8 inch chain (Tr. 182~183). It did not have a brake source, a rubber tire, or anything like that to help take up the shock load . The chain was 

coiled around the trailing cable. The car would go back and 

forth in somewhat of a jerking motion. The inspectors observed 

that · the trailing cable was being damaged •. They didn't see any 

torn cable with exposed energized parts, but they saw the potential for exposing some energized portions of. the cable <Tr . 183) . 

At location No . 5 there were loose coal and coal fines. 

This was a large accumulation. The same testimony applies as to 

the other locations. 

At location No. 6 behind the line, curtain accumulations 

existed for a distance of 150 feet up to 18 inches wide and 18 

inches deep. This was a large accumulation. 

At location No. 7 and at the feeder breaker itself, the 

combustible oil and soaked into the coal. The feeder breaker 

has two electrical motors on it. (Tr. 183-185). The feeder 

830 
breaker was on the conveyor belt tailpiece airway. In seven of 

the locations cited, there were miners and foremen in the area. 

These locations are also subject to a pre-shift eXamination. 

These accumulations were obvious (Tr. 186). On-shift examination 

should alert someone to the hazards created by these accumulations. The next available shift is advised by reading the preshift examination. Miners were three hours into their shift when 

the inspectors arr·ived for inspection on the 29th. Three hours 

of production would have been enough time to have accumulated the 

amount of coal at the piggy-back spot (Tr. 187-188). 

The accumulation around the feeder breaker would have taken 

longer than three hours. It could have occurred during the 

three-hour period .(Item 3). The No. 1 and No.2 could have taken 

a little long·er than a three hour-period. If it had taken longer 

it should have been there during the shift prior to the inspectors' arrival. 

Regarding unwarrantable failure: The section foreman would 

have walked around this area during the shift when the inspectors 

arrived (Tr. 188-189) . 

Concerning Order No. 3044314: The locations in the order 

would have been subject to an on-shift examination. They should 

have been seen in such an examination. These were serious accumulations that could create serious hazards. 

Order No. 3075922 alleges a violation of § 75 . 4oo· for accumulations (Tr. 189-190). 

These accumulations were found to exist on the Marietta continuous mining machine on the lower seam. Loose coal and coal 

fines are combustible. This was electrical equipment. This 

piece of equipment was very black. The machine was generati~g 

the coal dust . Continuous mining machines have sprays to keep 

down the dust and a few sprays may have been operating (Tr. 190-

191). 

The accumulations of loose coal and fines were under the 

shields around the electrical compartments in the electrical 

motors. 

The measurements that the witness took and that Mr. Turn~r 

talked about called the film at 0 to a quarter or more in depth. 

A foreman was standing beside the mining machine while it was in 

operation. The witness could barely see the machine when he 

first approached it; when the dust settled down he could see it 

(Tr. 191). 

831 
FRED L. MARIETTI, a coal mine inspector in the Orangeville, 

Utah office, has been employed by MSHA for 11 years. He has been 

working in coal mines since 1973 ·and was experienced in mining 

and specialized training. He is a qualified electrician under· 3'0 CFR in Utah: he also has fire boss papers. 

Mr. Marietti accompanied Messrs. Gibson and Farmer ·on the 

inspection of January 28-29, 1988. At that time, he was in a 

supervisory capacity and was assigned to lead this team. 

Messrs. Farmer, Gibson, and the witness arrived at approximately 11:45 p.m. on January 28. They chose that time because 

the 103(g) complaint said coal was being produced on the grave- yard shift. When they arrived, they checked the books on the 

surface, one of which was for the weekly electrical exam (Tr. 

289-308). 

Inspector Marietti observed the conditions described in 

Order No. 3227145. Mr. M·arietti heard Mr. Gibson testify and he 

agreed with him as to the conditions. 

In view of the number of electrical infractions, they concluded that there had not been an examination, and if there had 

been one, it had been ·inadequate. The order was S&S. Given the 

conditions, it was reasonably likely that a serious accident 

could occur. Mr. Marietti agreed that the order was a (d)(l) 

citation. Messrs. Atwood and Defa should have noted the violations. Mr. Defa was present when they arrived. The miner was 

running when they arrived. When they entered, Mr. Marietti 

observed a considerable amount of float coal dust suspended in 

the air. When it is suspended, coal dust can cause an explosion. 

He observed the silhouette of the miner and Mr. Defa. The air 

seemed stagnant. He told Mr. Defa why they were there (Tr. 307). 

Messrs. Gibson and Farmer proceeded to use chemical srnqke to · determine air velocity quantity. They followed Mr. Defa out, and 

as· they did, the air seemed to change (Tr. 304-308). 

The opening or closing of the curtain and the portal would 

change the air in the mine immediately. Mr. Marietti wrote the 

body of some of the citations but his signature does not appear 

on any of the orders. He did not sign because it is a standard 

practice that a supervisor accompanying inspectors does not sign 

violations (Tr. 210). Mr. Turtier signed the citations. 

Order No. 3227149 (short circuit protection). Mr. Marietti 

wrote this order and viewed the conditions listed in it • . He 

agreed with Mr. Gibson's testimony. The short circuit should 

have been set on 300 instead of 480. This was an S&S violation. 

832 
If a fire occurs, miners can be overcome by carbon monoxide and fatalities and burns can occur. Burns can cause death. 

This violation is noted in the order as due to an unwarrantable 

failure. From past inspections Mr. Marietti issued numerous 

citations of a similar nature. It is apparent they were negligent in making this examination. It should have been seen by 

management. The electrician is supposed to make these changes. 

Mr. Defa, the qualified electrician, was near the trailing cable 

(Tr. 312-314). 

Order No. 3227153 (transformer): Mr. Marietti observed 

these five conditions~ He agreed with Mr. Gibsonrs characterization. These conditions created a hazard. Persons could get 

into the transformer and work on the sec"ondary side without 

having an open visual disconnect. Hazards are for fire and shock. 

He considered this to be an unwarrantable failure because the 

area needs to be examined at pre-shift and on-shift. The lid was 

visible and it should have been maintained in the manner designed 

by the manufacturer. There is a possibility that the trans- . formers could be hit by a roof fall. 

Unwarrantable failure also existed here, due to the number 

of electrical violations, as well as to the operator's negligence 

in maintaining the electrical equipment (Tr. 315-318). 

Order No. 3227155 (heat lamp): Mr. Marietti agreed with . Mr. Gibson on the characterization of the conditions. He saw the 

bottom cover plates and . the screw missing. The condition of the 

heat lamp created a hazard. Miners could contact energized parts 

which would constitute a serious shock hazarq. 

Miners could contact conductors called pigtails. The violation was unwarrantable because section foremen enter this area. 

He believed the company was l~x and negligent. 

Seven people were affected. Other items contribu.ted to 

the problem of the heat lamp . The same were described by 

Mr. Marietti. All of these things contributed to his determination that this was an unwarrantable violation (Tr. 319-322). 

Order No. 3227161 (mine map not posted): Mr. Marietti 

did not see the map posted, nor did he see any kind of map. 

He considered this to be unwarrantable because management is 

responsible to see that a map is placed in a section. Mr. Defa 

said he didn't know where the mine map was located (Tr. 322, 

323). 

833 

.. 
In the last six or seven years, mine management has. been 

fairly consistent, that is, it had the same managers. Management 

personnel were Messrs. Defa, Nathan, and Kenny. Occasionally 

they changed job titles. 

Order No. 3227162: Mr. Marietti agreed with Mr. Gibson's 

characterization. He talked to Mr. Defa regarding pre-shift 

exams. Mr. Defa said Mac Hanson made the pre-shift examination. He did not consider the report to be adequate. The citations 

issued here indicate obvious things that a pre-shift examiner 

would see. · During the inspection, Mr. Marietti saw items that 

should have been pre-shifted. He believed the inadequate 

pre-shift was an S&S violation. The items ·that were missed 

created a hazard to the miners in the area. Such hazards could 

cause serious lnJury. Unwarrantable failure existed because it · was made by the agent of the operator. 

Mr. ·Marietti wrote th.is order. The failure. to record part 

of the order was deleted. He didn't know what happened to the 

citation written by Mr. Farmer, that is, he didn't know what 

happened to Exhibit R-1 CTr. 325-331>. 

Order No. 3227163: Mr. Marietti wrote this order. He 

observed the conditions with Mr. Gibson, with whom he agreed. 

The accumulations were in two crosscuts about 100 feet apart. 

They said they hadn't done any roof bolting so he assumed the 

resin was from a previous shift. It is not possible to have 

used that much hydraulic oil in one shift. These accumulations 

contribute ·to a fire hazard. An operator should not, leave oil 

cans dripping on the floor. This appeared to be an oil storage 

area . This violation was unwarrantable because the area had to 

be pre-shifted f.o.r each shift and the section foreman should 

have walked by the area (Tr. 322-333). 

Order No. 3227166: This order refers to accumulations and 

to the roof bolting machine. · Mr. Marietti wrote this order. He agreed with Mr . Gibson in regard to the conditions listed 

in this order. The violation was S&S. A fire hazard was created. 

Float coal dust would contribute to the propagation of an explosion. A roof bolting machine is a source of ignition. The 

violation was unwarrantable because the equipment was parked in 

the face and the area would have to be pre-shifted . Regulation 

303(a) says that if a pre-shifter observes a hazardous condition, 

it is to be noted in the book and the condition corrected 

CTr. 334, 335). 
order No. 3044314: This order was written by Mr. Farmer. 

The witness agreed with Mr. Gibson's testimony that each of these 

seven areas was a hazard. The intake air did not pass over the 

tailpiece of the feeder. Conditions 4, 5, 6, and 7 of the order 

were found in the intake air. When it is located in intake air, 

coal is more apt to. burn and propagate a fire. The violation of 

order No. 3044314 was an unwarrantable failure because the 

foreman would have passed these points three times so it should 

have been obvious to him. 

Order No. 3075922: This order was written by John Turner, 

who observed the conditions. This was the mining machine he 

described as being in a silhoutte. The mining machine, the 

cables, the bits, and the lack of sprays contributed to the 

serious hazard (Tr. 338-340). This was a fire and explosion 

hazard, as well as an unwarrantable violation, because the 

section foreman was standing right there. These things the 

company was cited for were obvious and displayed a negligent 

attitude (Tr. 341-342). When he .saw the .float coal dust in the 

air when he first walked underground, he was fearful that an 

explosion might occur <Tr. 338-342). 

c. w. Is EVIDENCE 

KENNY DEFA has been employed by Co-op or c.w. for a little 

over 20 years. He has performed almost all of .the duties in the 

mine over that period. On January 28 and 29 of 1988, he was 

superintendent and in charge of a mining crew producing coal. 

He is certified. · 

The MSHA inspection team consisting of Messrs. Farmer, 

Marietti and Gibson arrived clos~ ~o midnight. Mr. Defa met 

the three men about 70 feet from the face area. At this point 

they could not see the operation going on at the face (Tr. 391, 

392). 

The group was around the corner. There was a curtain 

between them and the face . They walked back toward the mining 

machine after Mr. Defa told them they were going to inspect the 

section. Mr. Defa instructed the men to go home because he had 

been informed the company would not be mining any more coal. - The only time the mining machine was. operating was when it was 

trimming out of the face area. The miners were not cutting coal 

because the buggy had not arrived from the last trip. 

The air current was normal at about 9,000 CFM. In the face 

area there was probably a normal amount of accumulations that 

you get in a mining shift. They were in the second production 

shift since a maintenance shift. There were some coal accumulations. The entire mine was extremely wet due to ground water. 

8JS 
To Mr. Defa's knowledge, they were keeping the ribs in the 

area rock dusted. Also the ventilation was being kept up and the 

trailing cables were out of the way of the buggies. 

No one on the shift stopped or short circuited the flow of 

air. He did not notice any abrupt change in the air flow after 

the inspectors arrived. 

Going in the direction the buggies had to travel it was 

approximately 600 feet from the belt line. This was longer than 

the buggies could travel so they would transfer from buggy to 

buggy about the half-way point. The second buggy would dump the 

coal on the belt. The general clean-up would have been done when 

they were not producing. The B-bag area, where the transfer was 

made from buggy to buggy, would be cleaned up several times a 

shift. If the area is not cleaned regularly, the buggies get 

stuck in it. 

The previous clean-up would have been on the day shift between 6 and 3 o'clock the preceding day. Mr. Defa didn't recall 

if it was done on his shift. It would have to be cleaned up 

after about every 30 yards of coal had been moved (Tr. 393-397). 

Mr. Farmer took a rock dust sample approximately 20 feet 

on the return side of the miner. This would show an extreme 

amount of combustibility because any coal dust would drift i.nto 

the return . They never heard the results of the test. · 

The witness was not traveling with Mr. Marietti nor with 

Mr . Gibson because he understood Mr. Farmer was the qualified 

inspector. 

Mr. Farmer said he was leaving because he wasn't feeling 

well. He was also disgusted with t he way the inspection was being 

conducted, and the way Mr. Defa's personnel were being treated. 

On several occasions Mr. Marietta called Mr . D~fa a liar, a 

potential murderer with no regard for human safety. The witness 

didn't recall Mr. Gibson making any statements. Mr. Defa did not 

consider the condition in the face area to be dangerous. His son 

was running the continuous miner and Bill Stoddard's son was in 

the mine. The witness is conscientious and concerned with the 

safety of people. 

c.w. has a safe mine and takes reasonably good care of it. 

He would not run a ·production shift without ventilation. The 

curtain the inspector was talking about is one used on occasion 

when the mine was idle. The weather was very cold. They did 

block off a portion of· the air when the min_e was idle. 

836 
If. the witness had wanted to shut the air off he would have 

simply ciosed some regulated doors instead of using a curtain 

(Tr. 398-402). 

Order No. 3227202: Mr. Huggins was inspector on June 1987. 

Actually they carried Mr. Defa through this fairly, narrow escapeway in about ten seconds on a stretcher to demonstrate passibility. Mr. Defa didn '.t recall the exact width' of the escapeway. No 

one said the escapeway had to be maintained at 32 inches. It had 

to be approximately 4! feet long. .He did not remember· having to. be turned. From June of 1987 until February 11, 1988, there were 

no changes made in the escapeway. Mr. Huggins said a stretcher 

carrying a man would not go through the area but the company did 

it once and ·they could do it again. It was fairly tight, but we 

made it. He was familiar with all of the construction in the 

mine during that period. From the date the test was made in June 

until February 1988, the escapeway had not been narrowed in the 

least degree. He would know about it if it had been (Tr. 

403-407 >. 

The examination was ~one weekly. It had been done on 

schedule for c~ose to two years. . . 

Mr. Atwood confirmed to Mr. Defa that he had made the 

inspection but he had forgotten to write it in the book. For the 

last two years it has been recorded on schedule. Co-op and c.w. 

did not receive any violations for not doing that for over the 

last two years. Also, no danger exists from not recording the 

weekly electrical examination (Tr. 407-408). 

Order No. 3227149 (short circuit protection and trailing 

cable): Mr. Defa was with MSHA when they pointed out this vio- · lation. When it was pointed out he turned the dial back to the 

legal limits with a screwdriver. Mr. Marietti watched him do 

that. ~nyone with a screwdiiver can ~o it. There is no difficulty with the equipment tripping out. The trailing cable was 

cold. This is rock roof and it was wet in the 20 feet around the 

transformer. 

Mr. Defa could not see any hazard. It was not likely the 

cable would have ignited anything in the area even if it overheated. The floor is also rock. The company does not, a~ a 

matter of practice, set circuit breaker protection higher than 

it should be. This circuit breaker had been in the mine as long a~ the transformer, about a ye~r. The equipment is checked 

weekly by an examiner. 

. Mr. Defa questioned most of the men on his crew regarding 

the setting on the device and no one knew anything about it. 

837 

.. 
Mr. Defa questioned most of the men on his c~ew regarding 

the setting on the device and no one knew anything about it. 

It would. have been easy for an ex-employee to have changed it. 

This was accessible to anyone in the mine (Tr. 409-412). 

Order No. 3227153 (transformer covers): There are two bolts 

that secure each top cover; there was one bolt missing out of 

each of the two covers. One side still had a bolt in it. It was 

not difficult to remove the bolts. Mr. Defa didn't know why anyone would want to remove two bolts. The only changes made are 

the outbreakers or plugs in the transformer; otherwise no changes 

or alteratiops are made. He could not see any hazard in the bent 

cover. The hazard was if the plate were to come in contact with 

the live energized parts. There was at least a three-inch clearance from any parts inside the transformer. 

~ There was about a two and one-half inch clearance between 

the bus bars and the inside of the transformer. The distance 

between the vent cover and the contact point was greater than the 

distance between the internal parts to the cover. The covers 

weigh close to 100 pounds. A person could not lift the cover 

without removing the remaining bolt that was securing it. Other 

than a qualified electrician, no one has attempted to get inside 

the covers. The only reason to get inside the covers would be if 

someone wanted to kill himself. 

The transformer lacking a disconnect handle: Mr. Defa did 

not know how long the equipment had been without a disconnect 

handle but other inspectors had examined the transformer previously. c.w. had not received any prior notices for such a violation. This connect handle is used to de-energize the transformer in case some maintenance work needs to be done on it. 

In the event of an emergency there is a red button by the 

handle which will disengage the power. It is faster and safer 

to push the button. The electricians· carry a handle in their 

vehicles. · Mr. Defa believed it is the same for all transformers. The electrician who. would handle this matter would be 

John Tucker or Nathan Atwood. Mr. Marietti pointed out that one 

of the lid switches was corroded inside and malfunctioning. When 

the lid was lifted the switch did not open. The lid switch had 

been rewired to· accomplish some sort of a short circuit. 

c.w. has other transformers in the mine that do not have the 

lid switches. There is no difference between a transformer that 

has no lid switch and· one with a lid switch that does not work. 

Mr. Defa was not aware of any regulation that requires a transformer to have a lid switch. 

838 
This machine has a 995 volt lead which goes to the bus bar 

and supplies power to the continuous mining machine. Someone cut 

four or five strands off the end of the wire where the ring 

tongue connected to the bus bar. This was a 4/0 cable which is 

slightly bigger than the witness's thumb. 

The witness is ·experienced in helping electricians but is 

not certified as such. He has never had any problems from overheating or shock hazards with this transformer (Tr. 413-421). 

Order No. 3227155 (heat lamp): Mr. Defa was present when 

this violation was pointed out. Two covers, which measured 

approximately 2 x 3 inches, were missing. The actual contact 

point where one could touch any energized screws would not be 

larger than the size of a quarter of an inch screw head. 

Mr. Defa saw no pigtails and he didn't believe they were 

there. It would not be likely for someone to reach into this 

quarter-inch area and be burned. 

The only reason to take the cover off would be to change an 

element. During weekly electrical examinations this equipment 

would definitely be checked, but he doubted if a pre-shifter · would look at such a small unusual thing. There was a missing 

screw, which allowed one part of the heat lamp to sag from the 

other. 

The witness observed the wires they claim were exposed, but 

the insulation was in good shape; there was no danger in allowing 

one section to hang down to expose the i~sulated wires. A person 

could not get shocked by this condition, so it was not a serious 

danger. 

The wires running to both ends of the heat lamp were in~ 

sulated .because the lamp gets hot. There would be no danger in 

the fact that a screw was missing allowing one section to hang 

down exposing the insulated wires. No shock was possible if 

someone touched the wires. Missing covers are not a serious 

danger because it would be extremely hard for a man to make 

contact with these wires (Tr. 422-425). 

Order No. 3227161 (failure to have a mine map): Mr. Defa 

did not think this was a big deal because one could see the 

escapeways from the underground portion of the mine. The secondary escapeway is four and one-half feet long, while the primary ·escapeway in the intake is two or three feet longer. Inspector 

Farmer said he wouldn't write a citation; Mr. Marietti disagreed. 

839 . 
Aba·ternent occurred when the oncoming shift took a map underground and posted it in the kitchen. These miners were all experienced. Every six weeks the miners travel one of the escapeways 

and the next six weeks the other escapeway. CW has fire drills 

every 90 days to review the procedure. 

If a person is at the very back of either of these escapeways, he can see the surface from both. The miners were not 

questioned if they knew how to get out of the mine. Inspector 

Farmer expressed aggravation that this citation was writteri. No 

danger was involved in the situation (Tr. 427-428). 

Order No. 3227162 Cpre-shift .exam): At the time, Mr. Defa 

was both superintendent and shift foreman responsible .for the p~e-shift exam. The man responsible for the pre-shift was Max 

Hanson, the foreman on the preceding shift. Mr. Hanson had done 

the pre-shift and he was on his way out when Mr. Farmer came into 

the mine. He told Mr. Defa the first right and first left 

entries had not been bolted as was needed. He was to then go 

outside and write it in the book. When the inspectors arrived, 

they informed the witness there was no pre-shift in the book. 

Mr. Hanson did not write it in the book. During the inspection they found · Mr. Hanson's time, date and initials in the face 

area and Mr. Defa pointed this out to Mr. Farmer, who then 

entered this pre-shift in the appropriate book. The entry was 

made after midnight. Mr. Farmer wrote the violation because the 

proper entry was not in the book. 

Other than two areas that needed to be roof bolted, there 

was nothing the pre-shift examiners should have entered in the 

book. Inspector Farmer and Mr. Defa did a complete new pre-shift 

examination. Other than the accumulation and the guard missing 

on the feeder breaker, Mr. Farmer did not point. out anything else 

that needed correction. He didn't refer to any other .notices of 

violation. Mr. Farmer abated the violation by saying the preshift had apparently been done adequately because he was there 

and it had been recorded. Mr. Defa did not see any danger in the 

way Mr. Hanson had recorded it, nor any danger in not recording 

the results in the book. They took care of these conditions (Tr. 

429-432). 

Order No. 3227163 (accumulations): The witness was present 

when the ins-pectors pointed out the combustible materials in a 

small area. Also, this was a new mine in this seam with only two 

entries into it. They were in the process of trying to mine a 

new intake portal out. They were cramped for storage area and 

had only one ingoing roadway. As noted, there was some roof bolt 

resin·stored in the area as well as fire hose, pipe fittings, and. also the oil storage. 

84Q 
Trash was also brought out of the face area to a collecting 

point at the end of the shift. One problem .was there was no 

roadway into the area. and everything outbound had to be carried 

to the surface by hand. · The accumulations had been carried to 

the surface on the previous shift. 

There were 11 five-gallon cans full of hydraulic oil stacked 

with the rest of the supplies. There were also two pallets of 

rock du~t and a fire valve. The storage of the oil was temporary 

because the company usually kept what they would use through 

24 hours, two production shifts • . In addition to the 11 five- · gallon hydraulic cans, full cans were stored in their original 

containers. The 24 cardboard boxes of roof bolts used underground were . in their original boxes. 

The four boxes of fire hose were in their original containers. Mr. Defa did not recall seeing any cans dripping oil 

but this coal mine is extremely wet. These cans were used at 

the first of the witness's shift when he came on. The continuous 

miner was low on oil and one of the buggies had to have oil 

added. All of the empties had been consumed in his shift. The 

five empty cardboard boxes had contained roof bolt resin. A good 

portion had been used during his shift. 

The boxes being dripped on were definitely wet, due to the · water in the mine. If Mr. Defa told Mr. Marietti the shift had 

not roof bolted during the spift, he (Defa) lied, because the 

roof had been bolted. They were on a 20-foot cycle. They •were 

three hours into his shift and had 40 buggies of coal, so they 

would have had to have. mined at least three faces of coal. There 

was no danger of fire _from accumulations because there was no w~y 

to ignite a fire due to the wet conditions •. This are. was a~so 

rock dusted. There was no other danger at all (Tr. 433-438). 

order No. 3227166 (accumulations on the roof bolter): The 

witness had seen the roof bolter but was not aware of this item 

until the next day. Mr. Farmer did not claim it had to be 

cleaned off. It is hard to mine coal and not get a film of accumulations. The continuous miner generates a certain amount of 

coal dust so one of the main purposes of the return entries is to 

provide an exit for the accumulated dust and methane. C.W.'s 

maintenance program requires that all electrical equipment be 

cleaned off and washed with water during the two maintenance - shift. In the last ten years, there may have been an occasion 

when it was not done. This violation notice was not proper 

because the equipment was cleaned at the last maintenance shift. 

Mr. Farmer didn't think there were many accumulations on the roof 

bolter. In fact, there was water dripping on the bolter so any 

accumulations would have been extremely wet. Inspector Farmer . walked by it and did not say anything. 

841 
Mr. Hanson had also written his time, date, and initials on 

the cab of the roof-bolting machine. lt was believed that 

Mr. Atwood, who was in charge of maintenance, would have seen 

the equipment. Mr. Defa called Mr. Stoddard, the president of 

the company, to look at things because he did not agree with the 

accusations being made (Tr. 438-443>. 

Order No. 3044314 (loose coal and fines): The conditions 

were seen by Inspector Farmer and the witness. The tail roller 

protrudes into the mine exactly 4! feet. The violation could 

not have been for 14 feet, because the belt extends only a total 

of 4! feet into the mine. The only thing they could decide was 

that a lump -of coal had been caught in the hopper. Normally 

c.w.•s maintenance program would have cleaned the belt on the 

maintenance shift, especially at the transfer points. 

Mr. Defa did not walk by this particular point on this shift. 

In the previous shift, 24 hours earlier, the same problem existed 

and they cleaned it up. He believed the pre-shift or on-shift 

book states these things. The pre-shift examiner did not tell 

Mr. Defa there was a problem. These accumulations could have 

occurred within five minutes, if something were caught in the 

hopper. 

The next area divided loose coal and fines on the outby 

side of the stopping through which the belt runs 26 inches deep, 

5 feet long, and 5 feet wide (Tr. 445). In this outby area it 

would Qe on the same belt just out from the -stopping and continuing to the surface. Mr. Defa helped the inspector make the 

measurements and wrote them down, ·so they are believed to be 

accurate. Mr. Gibson was not present when the measurements 

were taken. 

The cause of accumulations: There was a small pile on one 

side of the stopping and _another on the other side. There was a 

limited amount of clearance where the belt traveled through the 

stopping. This accumulation could be the result of an oversized 

lump of coal being weqged betwe~n the belt and the stopping. It 

could happen in five or ten minutes. Based on his experience in 

a mine, it could have happened in a short time during his shift. 

Area No. 3 (accumulations of loose coal and fines in front 

of the feeder breaker 28 to 15 inches deep for 35 feet long and 

20 feet wide): This area is a big mud hole. The water was 

approximately six to eight inches deep. The loose coal was 

definitely saturated with water and ice, mostly ice. On occasion 

they would clean it up during a production shift. Mr. Defa was 

not sure when it would have been cleaned up but it would have 

been on the day maintenance shift. It was not cleaned on his 

shift (Tr. 449). 

842 
· ... -. 

Area .No. 4 (the crosscut at the piggyback spot distance of 

10 feet long X 6 feet wide, and up to 10 inches deep): This is 

the area where one shuttle car was dumping into the back of the 

other shuttle car. Spillage always occurs. At the far end away 

from the transfer points he doubts if the depth was more than an 

inch. He had cleaned it out again when the inspectors carne in; 

this would have been done for the second time on his shift. They 

were about three hours into Mr. Defa's shift. 

Clearance for the buggies is about nine inches. If there is 

a 10-inch accumulation, it must be cleaned up. The coal was wet. 

The area may not have been rock-dusted, but there was rock dust 

on both sides of the ribs (Tr. 443-450). 

Order No. 3044314 (accumulation of loose coal and coal fines 

in the left room outby the last open crosscut): This area was 

just in from the piggyback area. There was actually a water hole 

the width of the entry. The accumulations were in the water. 

However, the ribs were well rock dusted but the floor was covered 

with water. With the company's maintenance program in .this area, 

it would be cleaned on the maintenance shift. There was no fire 

danger from this accumulation. 

There was an accumulation of loose coal and fines in the 

light room behind the line curtain; actually, this was in the 

immediate return. Normally, the continuous mining machine leaves 

a small windrow along the rib line. The left side is easier to 

keep clean than the right side. The ventilation curtain prevents 

access. As a result, the maintenance shift cleans up this area. 

There was wet rock dust thrown behind the curtain at the time the 

company was m1n1ng! This was outby the line curtain for approximately 24 inches. The line curtain is fireproof. There was no 

danger of co~bustion. 

No. 7 (accumulation of oil and oil-soaked coal): This was 

on the feeder breaker machine. Inspector Farmer pointed out to 

Mr. Defa that there was gauge broken off and was leaking oil. 

It had been broken off a long time, maybe during five or six 

loads of coal. The witness judged the gauge had been broken off 

within the previous hour. This occurred after the shift began 

and after the pr:e-shift exam. If this had not been pointed out 

to the inspector, the feeder breaker would have run out of oil 

before too long. If not, the maintenance shift would have seen 

the problem. 

There is no way this could have been avoided. There is 

no danger of fire in this area because it is extremely wet. 

However, this is a fire outlet and there are two extinguishers 

and 250 pounds of rock dust at the location. 

843 

.. 
On the feeder breaker itself there ~s a fire suppression 

system plus the belt that has its own system. 

TWo of the areas, that is, the water hole and the piggyback 

area, were in the intake. The -area behind the line brattice 

would be in the return. The remainder of the areas under discussion would be in the neutral air which is _fed directly into a 

return about 30 feet from the tailpiece. It had two panels that 

are lowered approximately 12 inches, which would leave a hole of 

24 by 12 inches. If any air did "happen to come through that way, 

it would bleed into t~e return. The regulator that bleeds off 

this area into the return was operable. 

. None of these violations constitute unwarrantable failure. 

Farmer went over each area to observe the wet condition (Tr. 

44)-459). 

Order No. 3075922 (accumulation on the m1n1ng machine) : 

Mr. Defa was not present when the inspectors checked the mining 

machine. The witness was with Inspector Farmer at the time. 

Mr. Farmer and he walked into the area while they were doing the 

pre-shift examination and the other inspectors mentioned the 

amount of accumulations present. Mr. Defa pointed out that there 

definitely was rock dust in the accumulations, which he estimated 

to be about 50 percent. That was one of the times Mr. Defa was 

called a liar. Inspector Marietti stated he -didn't feel Mr. Defa 

was concerned about the safety of the miners since he had let 

such conditions exist. · Inspector Farmer made no comments. 

Inspector Farmer did not feel that the continuous miner warranted 

a notice of violation. 

In Mr. Defa's opinion, a notice of violation should not have 

been issued because there was no potential danger here. With an 

accumulation of 0 to l inch, a great deal of rock dust presents 

no hazard. However, if the entire machine is covered with l inch 

of coal float dust and no rock dust then there is a potential 

hazard. 

The cleanup program on a continuous miner machine was the 

same as on the roof bolter, that is, it would be washed on the 

maintenance shift. This would occur directly after my shift. 

An employee filed the complaint in this case because he 

bragged about it to several people at the mine. He had been 

terminated two days before the inspection (Tr. 459-463). 

844 
;.· 

. · .. :· ..... . . 

concerning the heat lamp violation: In ~he kitchen area 

there was a metal table 2 feet wide and 6 feet long. Mr. Defa 

looked at the area during the inspection and immediately afterwards. There was nothing on the shelf below the heat lamp. In 

addition, there was nothing in the aluminum foil. 

After an inspection Mr. Farmer left because he didn't agree 

with the way Mr. Def·a was being treated. · 

During an inspection, it is normal procedure to go along 

with the inspector. Inspector Mar-ietti has always been very 

thorough; there isn't too much he misses. In this case, he did 

not attempt to take any rock samples or combustible content 

samples. Mr. Farmer, however, did take such a sample (Tr. 

463-465) • 

Rock dust is normally while and has a gray tint. Someone 

looking at a continuous mining machine could not tell if it was 

rock dust mixed with the coal (Tr. 467). Mr. Defa arrived at the 

mine about 9 o'clock on January 28, 1988, and looked at the preshift book. There had not been a pre-shift. When Mr. Defa went 

into the mine, he passed Mr. Hanson on the way out (Tr. 468). 

He believed there were six 

working section. He was in the 

inspectors arrived. During the 

but not directly at the miner. 

men working that night in the 

area about three hours before the 

three ·hours he was in the section 

He traveled the mine (Tr. 469 > .• 

There was one condition Mr. Defa considered hazardous from 9 

to 12 p.m., which was the accumulations in the piggyback area of 

spillage, so they cleaned it up .shortly after the shift started. 

He was returning to the area to check it again when the inspectors arrived. The piggyback area is the one referred to in Order 

No. 3044314 (Tr. 470). 

The accumulations Mr. Defa saw with Mr. Farmer were excessive but were not a danger because of the wetness of these areas. 

He would say they were not excessive under the circumstances. 

Any accumulations left over at the end of Mr. Defa's shift would 

be cleaned up by the maintenance shift (Tr. 472-473). 

Inspector Farmer did not believe the escapeway map was a 

violation. Inspectors Gibson and Marietti had a different 

opinion than Mr. Farmer. 

Mr. Farmer wrote Order No. 3044314. He designated it as 

"S&S" and unwarrantable. He disagreed with that characterization 

(Tr. 474). 

845 
During the three-hour period from 9 to 12 p.m., they had 

used the roof bolting machine. The operator was Robert Shumway. 

The operator had bolted in three places and had put in approximately 70 bolts. He also bolted places indicated by Mr. Hanson 

in his pre-shift (Tr~ 475). He remembered Mr. Hanson telling him 

about the roof bolts but did not recall his telling him about 

anything else found on the pre-shift. 

He observed some accumulation on the roof bolting machine 

and was sure there was a significant amount of accumulations (Tr. 

476). 

He recalls looking at the roof bolter during the inspection 

and he found Mr . Hanson's initials, time, and date on the machine. 

There may have been a skiff, that is a film, on the machine. It 

wouldn't have gotten your . hands dirty if you touched it (Tr. 477). 

He did not dispute that there were 18 empty five-gallon hydraulic 

cans in that area (Tr. 477) . They used at least 18 five-gallon 

cans during the first three hours of the shift. The empty cardboard boxes contained resin from roof bolting activity (Tr. 477). 

He didn't believe the accumulation of oil and empty cans 

or cardboard boxes were a hazard or a danger because the area was 

wet . There was no possible way for a fire to ignite. There was 

a great amount of oil there and the cans do not hold a lot of oil . All of the cans in the area were empty . The full ones were st~cked up off to the side. There was a small 110 pump .in the 

area. Mr. Defa removed it at the inspector's request (Tr. 478, 

4 79). 

The pu~pose of the pump was to pump water but it was not a 

permissible pump. This area was right on the edge of the. rock 

slope that returned to the upp~r seam • 

. , It is the responsibility of the pre-shift examiner to make a 

pre-shift. Since January 1988 that would be Mac Hanson, who was 

a shift foreman (Tr. 480). 

The operator is responsible for a mine map to be posted. 

Mr. Defa would be the one responsible on his shift (Tr. 481). 

In 1972 Mr. Defa took a position as foreman. He received 

violations for the map not being up-to-date. There was an occasion when they received a violation because the engineer had not 

certified it as required every six months. The purpose of the 

map is to show the escapeways. It is not too important in this 

section because it would be hard to show on the map 2! feet on a 

scale of 200 feet to an inch (Tr. 482, 483) . 

846 
This escapeway changed after the company completed its 

intake entry, otherwise the escapeways remain pretty much the 

same (Tr. 483, 484). In this mine the intake is the one escapeway and the return is the other escapeway. The miners receive 

new miner training plus weekly safety meetings and regular fire 

drills; they also travel these escapeways every six weeks. New 

miner training includes training in the escapeways and what to do 

in case of an accident or a hazard. Several years ago 

Mr. Marietti withdrew miners for not being trained (Tr. 484). 

Concerning the heat lamp: Mr. Defa did not see any hazard 

about its condition, nor did he see any danger to anyone being shocked or injured' but he did not dispute that ·there was a 

violation of a mandatory standard. He disputed the severity of 

the violation as an unwarrantable failure. 

The kitchen or heat lamp is located where most men go to eat 

lunch during their shift (Tr. 485). 

The transformer was installed three years ago. When you 

push the red button on the transformer you can hear it turn off 

(Tr. 486 >. There is a safety device which shuts off the fu"el. 

If an electrician works on a piece of equipment, he has to get a 

handle (Tr. 487). The company has not made any changes on the 

transformer since it was acquired (Tr. 488). 

Anyone could change the instantaneous setting but he was 

never told it was done by an ex-employee. M+. Defa is not a 

certified electrician. A qualified person must change any instantaneous trip (Tr. 489) . For the instantaneous trip, 

Mr. Defa disput~d that it is unwarrantable (Tr. 490). 

Messrs. Atwood and Tucker did the weekly electrical examinations; they recorded it for every single week except the one 

when the inspector appeared. The last date in the book was 

January 15, which this was two weeks earlier (Tr. 491>. 

Mr. Stoddard is one of the owners of C.W. His son and 

nephew work at the mine. Mr. Defa's son and nephew also work at 

the mine (Tr. 495). 

Mr. Defa is the safety director at c.w. and has been for 

eight or nine years. He does not own an interest in the mine 

(Tr. 496>. 

• 

There were 30 employees employed _at the mine at the time of 

the inspection. 

847 
NATH~ ATWOOD, a certified electrician experienced in 

mining, has been employed by C.W. since November 1971. He also 

serves as the shift foreman <Tr. 506-508) •. 

Mr. Atwood started doing the weekly electrical examinations 

the week following the 15th. John Tucker was the previous examner. Mr. Atwood agrees he did not record the examination on the 

22d. He was new and forgot to do it. There was no danger to 

anyone in not recording the inspection (Tr. 506-511). 

Concerning the instantaneous setting set at 480 degrees 

rather than at 300 degrees: The witness was responsible to see 

that this. trip was properly set. Mr. Atwood could not find out 

who could have set the trip incorrectly. He would have found and 

corrected this condition the morning of the MSHA inspection (Tr. 

51J_-515). 

Order No. 3227153 (transformer): Mr. Atwood is responsible 

for abating the violations as cited. This condition was pointed 

out by Mr. Marietti or one of the shift people. 

When they were working on this transformer, Messrs. Marietti 

and Gibson were present. He removed the cover. There was one 

bolt in each cover. He agreed that two bolts were mis~ing. You 

had to remove one bolt to remove a cover. The cover weighs about 

100 pounds. That day he did not locate the missing bolts. The 

previous week the bolts were in the covers. He knows of no 

reason why anyone would remove them. He did not remove them. 

The cover was noticeably bent. ·After the power was off, he 

measured the distance from the energized part in the transformer 

to the nearest part. The distance was at least three inches. 

There was .a greater distance than between the bus bars. This 

cover was made of heavy metal and not easily bent. No one could 

pushed the cover closer to the energized parts. 

Mr. Atwood did not consider the missing bolts a dangerous 

situation because a bolt still secured the lid. It h.ad to be 

removed before the plate could be lifted off. After examining 

the bad cover it was apparent there was no danger. 

Concerning the disconnecting handle for the plate switch: 

Mr. Atwood keeps a handle that fits into the transformer in his 

vehicle. There is no danger to anyone because of a missing 

handle since there is a red emergency button that cuts the power. 

It is considerably easier to push the button than to turn the 

switch off. No one on his shift would use a handle to visually 

disconnect the transformer. The handle he used is kept in his 

tool box or in his vehicle. There is no danger if that handle is 

not on the handle sprocket. 

848 
The witness does not recall the transformer ever having a 

handle attached to it. The inspectors had viewed it when they 

went through the mine. No one ever said there should be a handle 

on it. 

Concerning lid switches: When the witness lifted the 

covers, he was able to examine the lid switches. They were 

hooked up. He removed the switch, pulled it apart, and .showed 

Mr. Marietti the corrosion inside the switch. The equipment was 

properly wired, and he pointed that out to Mr. Marietti. They 

discussed the corrosion in the switch. No one would ever take 

the cover off when the power was on. The transformer hums. If 

the cover were taken off, the transformer would disconnect the 

power and lock it out. By not having a safety switch operating, 

the witness could foresee no danger to anyone. There were other 

transformers in the mine that do not have switches on the lids. 

They operate in the same manner as this transformer. 

Mr. Atwood is familiar with the leads from the 995-VAC bus 

bar. The wires which were 4/0 had been cut but not changed by 

any personnel of c.w. The power from the transformer operates 

the continuous miner which· requires a smaller 2/0 wire. The 

wires that were there would be in excess of the carrying capacity 

of a 2/0 wire even in cut condition. The cut wires presented no 

danger. · 

This should not have been an unwarrantable violation (Tr. 

511-524). 

Ord.er No. 3227155 (heat lamp): Mr. Atwood abated the heat 

lamp violation when he first observed the condition the day of 

the inspection. He had inspected this at his last electrical the 

previous week. At that time he noticed the :covers were there and 

the screw was not missing. A screw may not have been taken out~ 

but may have fallen out becaus.e these heat lamps are of poqr 

design and vibrate. He would not have noticed this in a preshift exam because the heat lamp gives off a bright light. Normally, the missing covers on the ends would not be seen, but the 

witness examined this at the weekly electrical exam. He turned 

on the heat lamp to make the examination. 

A missing screw, however, presents no danger. Some wires 

had been dropped down but they were insulated with good quality ~ 

insulation. No one could have been shocked or burned by contacting the wires. 

The elements in the heat lamp and the screw connecting the 

elements recess about ; inch into a porcelain part. This would 

be difficult to reach. If someone did that their fingers would 

849 
get hot from the heat off of the lamp. ·A person would purposely 

have to put a finger through there. No one would accidentally 

touch the elements when warming food. 

The danger of the covers was not serious. The wires were 

insulated and a person would not purposely want to touch the end. 

Mr. Atwood could not explain why the covers had been removed (Tr. 

524-528). 

Order No. 3227163 (combustible material): Mr. Atwood 

observed the .condition before it was changed. The accumulations 

looked normal. This is the normal amount of garbage from a shift. 

The area of the accumulations was very wet. The water came from 

the floor and the roof. The area had been rock dusted. 

There was a fire valve a pillar away or about 85 feet. The 

transformer was 92 to 150 feet away. There were two extinguishers at the transformer. There were two ballasts of ·rock 

dust in paper bags. The witness felt this should not have been a 

violation nor should it be unwarrantable (Tr. 529~531). 

Order No. 3227166 (roof bolter): The electrician observed 

the roof bolting machine that day. It was cleaned on his shift. When he looked at it there was about a shift's worth of dust on 

the machine, which is acceptable. 

Mr. Atwood did not take any measurements. The area was wet 

as were the accumulations. The machine accumulations were made 

up of rock dust rather than coal dust. There was no danger and 

this should not have been a violation nor should it have been 

unwarrantable . The trailing cables trip did not affect the roofbolting machine . The ·machine has a separate circuit breaker (Tr. 531-533). 

. Order No. 3075922 (accumulations of loose coal and coal 

fines .on continuous miner): Mr. Atwood observed this condition . It appeared there was a normal amount of coal d·ust and rock dust 

on the machine. The rock dust was obvious and the coal was wet. 

The mining machine was cleaned during his shift. The accumulations were not significantly different from any other maintenance 

shift. These machines are stopped during a maintenance shift. 

Mr. Defa is a very safety-conscious foreman. The accumulations on the miner were non-serious; no danger of combustion 

existed (Tr. 534-536). 

Order No. 3227202 (escapeway): Mr. Atwood has been in . and 

out of the mine on a regular basis since June 1987. There has 

been no new construction or any changes in the escapeway from 

850 

' . 
:~ 

June 1987 through January 1988. No new pillars or supports had 

been installed (Tr. 536-537). 

Mr. Atwood went through the escapeway on January 28th to 

look at the belt at the processing plant. He was also sure he 

went through the escapeway around February 11, 1988 (Tr. 537-538). 

The escapeway was the same on February 11, 1988, as it was in 

June 1987. He disagrees with Mr. Huggins' testimony. There was 

one continuous min,r in the lower seam in January 1988. He did 

not remember any sprays missing from the machine on January 29. 

He believes wet coal can ignite (Tr. 538). 

Some stockpiles outs~de a-mine can catch fire~ He has usually seen rock dust on the miner and the roof bolter. On the 

miner he ran his fingers through the quarter-inch to zero and it 

was obvious there was rock dust mixed with coal. He would guess 

it was 50 percent rock dust (Tr. 539). On the roof bolting 

machine he saw coal dust mixed with hydraulic oil in a normal 

amount (Tr. 540). The normal amount he saw was not particularly 

heavy for those two shifts (Tr. 540-541). 

On January 1988 each shift carried out its own garbage . If 

an excessive amount was there the men would make more than one 

trip (Tr. 541-542). 

Or4er No. -3227163 (oiland cardboard boxes>: This condition 

was normal for one shfft. c.w. normally stores rock dust in an 

area that is wet. The heat lamp is not supposed to be lef't unattended (Tr. 543). Anyone can turn on the heat lamp. He examined 

the lamp during the weekly examination as noted on January 22, . 1988. He noticed the cover plates were on at that time (Tr. 544). 

Somehow they were missing at the time of the last inspection. It 

was n.ot recorded in· the book -somewhere that the· plates were missing on the heat lamp CTr. 545). The condition inside an enclosure was· not seen because it was behind the · cover (Tr. 545·-546). 

Order No. 3227153: The law requires bolts on the covers 

(Tr. 546). In his electrical inspection on January 22, he noted 

the dented cover but did not feel it needed to be corrected. 

Order No. 3227149: Prior to January 29, the trip device 

had been tested to determine if it tripped properly. The test 

indicated proper tripping <Tr. 548). Mr. Marietti is a fairly 

good inspector and in the past he has helped the witness with 

electrical training. 

The continuous mining machine will hold over 100 gallons of 

hydraulic oil and it is not unusual to add 18 to 30 gallons du~ing one shift (Tr. 550). 

851 
The two shuttle cars, the feeder breaker, and roof bolter 

also use hydraulic oil (Tr. 551). Normally shuttle cars would 

take five gallons per car and the same amount for the feeder 

breaker. This whole section was wet (Tr. 551). 

In this area of Emery .County, Mr. Marietti was notorious for 

writing a citation w~en another inspector would not do so (Tr. 

552). 

Mr. Atwood did not know what the cans were used for (Tr. 

553). Eighteen cans would hold 90 gallons of oil (Tr. 553). 

BILL WEAVER STODDARD, President of C.W. Mining Company, is 

a person experienced in mining for over 42 years. He has 

assisted or gone with MSHA personnel on many inspections in the 

past. He received his foreman's papers in 1960. 

On January 29, 1988, Mr. Defa called him and requested that 

he come to the mine. Mr. Stoddard arrived between 8:30 and 9 

o'clock. Mr. Stoddard did not see Mr. Farmer as he apparently 

had gone home. 

Mr. Stoddard was there when Mr. Turner arrived. Mr. Defa 

was not too ·happy about how the inspection was going and the way 

he was being treated. He stated he had been called a liar, a 

potential murderer, and that he wasn't qualified to hold ·the 

positions he had. When those statements were made, Mr. Marietti 

and Mr. Gibson were outside. 

Each of the inspectors wrote some of· the violations. They 

complained about Mr. Gibson's or Mr. Marietti's writing ·one and 

then having Mr. Turner sign it. He did not consider this to be 

fair. Mr. Turner had not observed the violations. in his 

20-minute t~ip through the mine. · 

He went underground to see the conditions for himself - to 

see if it was as bad as claimed, as he didn't. want his mine to be 

in bad shape • . Mr. Stoddard was alone when he went underground. 

Order No. 3227202 (escapeway): Mr. Stoddard submitted the 

letter to MSHA requesting a variance. Before submitting the 

letter, he had an MSHA inspector assist him in running a test to 

see if it could be traveled safely. Mr. Turner was the inspector. 

He indicated a variance could be obtained if a stretcher could be 

carried through the area; it apparently passed the test. · 

Mr. Holgate, in Denver, told the witness that he would get a 

letter from the Orangeville office to verify this. When the test 

was made, Inspector Huggins sent his letter and Mr. Stoddard 

replied. 

852 
The witness did not see Inspector Huggins' letter. Mr. Stoddard 

did not know the width of the escapeway. 

At the time of the first test until February 1988, the 

escapeway had not been changed in any manner nor had any roof 

supports or wall supports been added (Tr. 560-563). 

Mr. Stoddard observed the 1000 KVA transformer and saw 

its bent cover. This condition did not pose any danger. 

Mr. Stoddard at one time was a certified electrician. Be saw 

nothing serious about the switch on the lid, cutting of the 

wires, and the missing handle. They did not pose any danger to 

anybody. The bolt~ missing from the cover plates would be a 

technical violation. 

He didn't see any danger in connection with the heat lamp 

before it was repaired. There was no danger in the covers not 

being on or a screw being missing. Mr. Stoddard agrees that it 

was a technical violation because the covers were off. 

Mr. Stoddard di d not consider the heat lamp to be an 

unwarrantable failur·e (Tr. 563-565). 

There was some rock dust on the ribs. 

Order No . 3227163 (combustible material where various materials were stored): Mr. Stoddard observed this condition, which 

appeared to have the normal amount of refuse but it did not constitute any danger. This area was excessively wet. The area had 

been rock dusted and the ribs were wet as well as the rock dust. 

The roof was drippiriO. The standard practice a~ c.w. is that if 

there is garbage in one area, it is removed with each shift. ·The 

roof bolting machine was under normal conditions for two shifts . and other inspectors have seen this condition and have not written a violation. There was no danger as the accumulations were 

wet. In fact, water was running out of several roof bolt holes 

(Tr. 565-568). · 

Order No. 3044314 (accumulations of coal and fines arotind 

the tailpiece of the belt and the feeder breaker): Mr. Stoddard 

looked at this area and these accumulations had probably occurred 

during the shift. There was no indication they had been carried 

over from a previous shift. Water running out of the port hole· . would freeze, but the water had not been there long enough to 

freeze. 

Mr. Stoddard was familiar with the piggyback situation and 

also observed the continuous mining machine. He was accompanied by Mr. Atwood. It was obvious there was a lot of rock dust 

853 
and float ·dust on the miner. Mr. Stoddard did not see any accumulations greater than a quarter of an inch. There were no fines 

and any lumps of coal there were very wet. The area appeared to 

be rock dusted. The accumulation there could have accumulated in 

a three-hour period and no danger was involved for ~he personnel 

underground. 

After looking through the area underground, Mr. Stoddard 

did not think the condition was abnormal1 it was, in fact, 

normal. 

In Mr. Stoddard's opinion, Mr. Defa is a good foreman. 

There have never been any problems with his safety t'actics. 

After hearing the testimony in this case, Mr. Stoddard would have 

no hesitancy about having his boy continue to work on Mr. Defa's 

shifJ. · 

Since this inspection, the witness talked to Mr. Farmer 

about the conditions that existed in the mine. Two weeks ago 

Mr. Farmer said that no one had talked to him about the hearing. 

He said the inspection had been conducted in a very unprofessional manner. He thought Gestapo. tactics had been used. 

Mr. Farmer also indicated he was still employed by MSHA. 

He also stated he didn't like the way Mr. Defa was treated 

when he was called a liar, a potential murderer~ and not quali- fied to be superintendent (Tr. 568-574). · 

Mr. Farmer also mentioned the weekly electrical inspection. He stated that the inspection had been made, only not recorded, 

and he felt this was not an unwarrantable violation. Mr. Farmer ·was also upset about the map not being in the kitchen. The . escapeway was only 41 feet long. Miners could drive their shuttle car to the feeder breaker and see .daylight outside each .time. 

Mr. Farmer didn't feel the failure to have a map was serious. 

Mr. Stoddard was critical of the fact the Secretary had not 

brought in all of the inspectors who issued citations in this 

case. 

The entries in this mine are about 600 feet from the surface. 

It would take Mr. Turner about 20 minutes to walk in and back out. 

Mr. Stoddard did not know of any complete inspection with a mine 

this size that would take as long as this particular inspection. 

At this inspection MSHA appeared to pull every cover and 

check everything (Tr. 574-577). 

854 
In cross-examination, Mr. Stoddard stated that Mr. Farmer 

didn't say he was terminated but said that he was "fighting with 

them" and was in litigation. Mr . Farmer was in the process of 

getting his jobback and getting light duty (Tr. 579). · 

Order No. 3044314 (accumulations) : Mr. Stoddard saw nothing 

that would have been caught in the feeder to cause a spill of 

this magnitude (Tr. 582). 

The witness· considers a violation to be unwarrantable if it 

is excessively dangerous (Tr. 582-583). 

He did not know the width of the escapeway in June of 1987 

but its width was the same in February 1988. He also didn't 

know what the measurements were. Other than as a President, he 

has no financial interest. in c.w. . He is paid a salary and does 

not know who owns the company (Tr. 584-585). Mr. Stoddard is not 

involved in any other business 'but has been doing consulting work 

in Price, Utah (Tr. 586). 

FRED L. MARIETTI recalled (Tr. 587). 

He saw Mr. Stoddard about 8: 30 to 9 a.m. at the continuous 

miner. He went to the roof bolter and cited it. Mr. Stoddard 

then accompanied the witness out of the .mine (Tr. 588) . 

Since January of 1988 he has discussed the violations with 

Mr. Stoddard at the office of c.w. Inspector Huggins was also 

present (Tr. 589) . Mr. Stoddard said with these violations they 

(MSHA) "caught us with our pants down . " He was also glad they 

vacated them ·because he didn ' t think it was right that Inspector 

Turner had sign d them and he would have contested them ·anyway. 

This conversation about "pants down" was two or three days 

and maybe in the first week after the orders were issued (Tr. 

591) . 

BILL W. STODDARD recalled: 

Mr. Stoddard does not recall the conversation with 

Mr. Marietti where he admitted the violations occurred. He 

didn ' t think he ever told the inspectors c.w. got caught with 

their "pants down." 

855 
CONTENTIONS AND DISCUSSION 

I. 

c.w. contends that Citations/Orders Nos. 3227145, 3227149, 

3227153, 3227155, 3227161, 3227162, and 3227166 should be 

vacated, as they were not properly issued. 

In support of its. position c.w. relies on certain statutory 

provisions, .namely, 

30 u.s.c. § 814(a), which provides: 

If, upon inspection or investigation, the Secretary or 

his authorized representative believes that an operator 

of a coal or other mine subject to this chapter has violated this chapter, or any mandatory health or safety 

standard, rule, order, or regulation promulgated pursuant 

to this chapter, he shall, with reasonable promptness, 

issue a citation to the operator, and 

30 u.s.c. S 815(d)(l) which provides: 

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

authorized representative of the Secretary finds that 

there has been a violation of any mandatory health or 

safety standard, and if he also finds that, while the 

conditions created by such violation do not cause imminent danger, such violation is of such nature as could 

significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health 

hazard, and if he finds such violation to be caused by 

an unwarrantable failure of such operator to comply 

with such mandatory health or safety standards, he shall 

include such finding in any cita.tion given to the operator under this chapter. 

Further, c.w., citing 30 u.s.c. ·sl4(d)(l), asserts the 

authorized representative must "find" a violation exists and said 

inspector must further "find" S&S and unwarrantable failure. 

The evidence on this issue indicates Inspector Farmer left 

the mine because he was not feeling well. Inspector John R. 

Turner was directed to replace him. Mr. Turner did a quick 

walk-through of the mine but observed none of the conditions 

giving rise to the above-cited orders. However, Mr. Turner 

issued the orders based on what Mr. Marietti or Mr. Gibson told 

him. He signed the orders at the direction of his supervisor. 

856 
c.W.'s position is contrary to established Commission_ precedent. The Commission has ruled that an inspector may sign a 

citation even where his supervisor made the determination that 

a violation existed. Peabody Coal Company v. Mine Workers, 1 

FMSHRC 1785 <1979). The Commission has further determined that 

an inspector need not view a violation in order to write a . citation. Instead, an inspector need only believe that a violation has occurred prior to issuing a citation. Arch Mineral 

Corporation, 5 FMSHRC 468 (1983). 

In supppor·t of its position C.W. relies on Pennsylvania 

Glass and Sand Corporation, 1 FMSHRC 1191 (1979). Tne cited case 

is not controlling. Witnesses Marietti and Gibson observed all 

violative conditions and testified extensively as to the conditions they observed. 

II. 

c.w. further states that Citations/Orders 3227202, 3227163, 

and 3075922 should be vacated because the Secretary did not meet 

her burden of proof. 

It is necessary to individually consider these factual 

situations as to these three orders. 

Order No. 3227202: This order concerning an escapeway 

involves a credibility issue between the parties. 

Inspector Huggins testified that in June 1987 the escape.:.. 

way was 32 inches wide. When he returned in February 1988 additional structures, timbers, etc;, has reduced the average width 

to 24 inches. On the other han~, witnesses Defa, Atwood, and 

Stoddard jndicated the escapeway had not changed ~rom· when it was 

approved in June 1987. · 

I credit c.w.•s evidence~ Messrs. D~fa, Atwood and Stoddard 

all indicated no changes had been made in the escapeway. These 

witnesses working in this small mine on a daily basis would be 

knowledgeable as to any changes in the escapeway. 

On the other hand, Inspector Huggins had not been in the 

mine since the escapeway was approved. In addition, he relied, 

in part, on an MSHA memorandum. The memorandum refers to a width • 

of 32 inches but such evidence is not persuasive. The document 

was never circulated. to any c.w. personnel. As a result, its 

evidentiary value is highly questionable·. 

For the foregoing reasons, Order No. 3227202 should be 

vacated. 

857 
order No. 3044314 (accumulations): The accumulations 

described in connection with this order are a dangerous hazard to 

the miners. c.w.•s defense that the condition accumulated during 

a single shift cannot prevail. The regulation provides that 

accumulations shall be "cleared up and not permitted to accumulate in active workings." This was not done. 

order No. 3044314 should be affirmed. 

order No. 3075922: This order alleged accumulations on the 

continuous miner. On the credibility issues, I credit c.w.•s 

evidence. The operator's witnesses testified that most of the 

accumulations were rock dust and not coal dust. One would expect 

a continuous miner to acquire some accumulations as a result of .. the mining process itself. 

On the other hand, the Secretary's evidence indicates the 

accumulations were "from 0 to i inch deep." While the expression 

of "0. to i inch" may be a shorthand used by inspectors, ."zero" is 

still "zero." Such a formula can easily equal "no" or "minimal" 

accumulations. 

Order No. 3075922 should be vacated . 

order No. 3227162 (pre-shift examination not recorded): 

At the beg1nn1ng of the inspection Messrs. Marietti and Gibson 

entered the mine together. Mr. Defa, the c.w. foreman, accompanied Mr. Farmer, who, he understood, was doing th~ inspection. 

Mr . Farmer was underground for six or seven hours and he 

generally observed the same conditions as Messrs. Marietti and 

Gibson. Before Mr. Farmer left, he issued Citation No . 3044311 

(Exhibit R-1). Mr. Farmer's cita~ion was dated January 29, 1988, 

at 0005 hours. He terminated the citation at 0310 the same day. 

Mr. Marietti was unaware that Mr. Farmer had written Citation No. 

3044311. 

It appears from the uncontroverted evidence that Citation 

No. 3044311 (Exhibit R-1) and Order No. 3227162 involve·d the same 

factual situation. The citation and order are duplicative. 

For this reason, Order No. 3227162 should be vacated. 

III. 

c.W.'i final contentions attack the Secretary's findings of S~S as to certain orders as well as her findings of unwarrantability as to all of the orders. c.w.•s further position that 

858 
only nominal penalties should be assessed requires an assessment _. of appropriate penalties where a violation has occurred. 

The civil law is well established as to S&S, unwarrantable 

failure and penalty criteria. 

SIGNIFICANT AND SUBSTANTIAL 

The Commission has indicated that a violation is properly 

designated as being of a significant and substantial nature if, 

based on the particular facts surrounding the violation, there 

exists a reasonable likelihood that the hazard contributed to 

will result in an injury or illness of a reasonably serious 

nature. Cement Division, National GyPsum, 3 FMSHRC 822, 825. (April 1981); Mathies Coal Co., 6· FMSHRC 1, 3-4 (January 1984), 

aff'd, 824 F.2d 1071 (D.C. Cir. 1987). The Commission has further explained that the following formulation is necessary to 

support a significant and substantial finding: 

(1) The underlying violation of a mandatory health 

health standard; (2) a discrete health hazard -- a 

measure of danger to health contributed to by the violation; (3) a reasonable likelihood that the health 

hazard contributed to wil~ result in an illness; and 

(4) a reasonable iikelihood that .the illness in question 

will be of a reasonably serious nature. 

UNWARRANTABLE FAILURE 

The issue of unwarrantable failure can at times be illusive. 

Accordingly, it is appropriate to review some of the major cases 

on the subject. · 

In Emery Mining Corporation, 9 FMSHRC 1997 (1987) the Commission concluded that the statutory term of unwarrantable failure means "aggravated conduct, constituting more tha~ ordinary 

negligence by a mine operator in relation to a violation of the 

Act." In Emery four roof bolts had popped on a bearing plate. 

Further, this violation had existed for at least a week in an 

area where the operator's safety personnel should have known of 

the condition. In viewing the factual situation, the Commission 

stated that the popped bearing plate was a matter involving onl~ 

ordinary negligence. As a result, in Emery the Commission · · vacated the finding of unwarrantable failure and modified the 

section 104~d)(l) order to a 104(a) citation. 

859 
In Youghioqheny & Ohio Coal Company, 9 FMSHRC 2007, issued 

the same day as Emery, the Commission upheld two unwarrantable 

failure findings. Specifically, the operator had been cited for 

a violation of its roQf control plan (30 C.F.R. § 75.200). Three 

days before the contested violation, a similar order had been 

issued. Pre-shift examinations had been conducted but violative 

conditions had not been reported. The Commission concluded as 

follows: "Given the. prior violation of section 75 . 200 in the 

same area ••• only days before the viola·tion 'at issue occurred 

and the extent of the violative condition, we find that Y & O's 

conduct in r'elation to the violation was more than ordinary 

negligence and ••• resulted from Youghiogheny & Ohio's unwarrantable failure." · 

In Youghiogheny & Ohio the Commission further upheld an 

unwarrantable failure regarding a "hole through" violation. 

Specifically, the Commission observed that "even if the 'hole 

through' was accidental, the roof control plan clearly prohibits 

cutting through into areas of unsupported roof and the section 

foreman is responsible for compliance with the plan," 9 FMSHRC 

at 2011. · 

In Rushton Mining Company, 10 FMSHRC 249 (1988), the 

Commission reversed the judge's conclusion that the company's 

failure to detect the broken wires was due to its inadequate 

procedure for examining the rope . The procedures followed by 

the operator were extensive and they are recited in the decision. 

In short, the Commission found no aggravated conduct within the 

meaning of Emery. 

·In Quinland Coals, Inc., 10 FMSHRC 705 C 1988), the Commission upheld an unwarrantable failure violation of a roof control 

plan. After reviewing the underlying facts the Commission concluded that. "(g) iven the extensive a'nd obvious nature of the condition, the history of similar roof conditions and [the operator's] admitted knowledge of the conditions, we find t~at [the 

operator's] failure to adequately support the roof was the result 

of more than ordinary negligence and that substantial evidence 

supports the judge's conclusion that the violation resulted from 

unwarrantable failure," 10 FMSHRC at 709. 

In Belen Mining Company, 10 FMSHRC 1672 (1988), the Commission determined the operator's failure to comply was not due 

to the operator's unwarrantable conduct. In finding a lack of 

such evidence the Commission relied on evidence 1nvolving 'the 

design and function of the operator's shield system. Other factors supporting the operator included a lack of previous MSHA 

citations relating to the forepole pads of the shields. Further, 

even after the roof control plan was revised forepole pads were 

860 
not required by MSHA. Finally, the operator reasonably believed 

that if cribbing was installed the miners involved in the installation would be placed at considerable risk. 

CIVIL PENALTIES 

Section llO(i) of the Act mandates consideration of six 

criteria in assessing appropriate civil penalties: 

(1) The size of the business and the appropriateness of 

the penalty to the size1 

(2) The effect on the operator's ability to continue in 

business: 

(3) The operator's history of previous violations; 

(4) Whether the operator was negligent1 

(5) The gravity of the violations; 

(6) Whether good faith was demonstrated in attempting to 

achieve prompt abatement of the violations. 

The stipulation of the parties is self-explanatory and it 

resolves paragraphs 1, 2, and 8. 

c.w. 's prior history is unfavorable, especially when its 

small size is considered. In the two years ending January 28, 

1988, C.W. was assessed 264 violations, paid 181 violations 

and penalties of $25,710. (Exhibit P-1 contains C.W.'s prior 

history.) 

ADDITIONAL FINDINGS AND .SUMMARY 

Order No. 3227202 (escapeway>: This order should be 

vacated . 

Order No. 3044314 (accumulations of loose coal and coal 

fines) : The clearly excessive accumulations described here establish conditions that could cause serious problems. A fire or 

explosion could quickly propagate throughout the mine. 

Where an operator in the mining process causes a condition 

that is violative of a mandatory regulation and fails to remedy 

said condition, then said actions, unless excused, are unwarrantable within the meaning of the Mine Act. ·A s~milar situation 

also involving coal accumulations occurred in Utah Power and 

Light Company, 11 FMSHRC 710 (April, 1989) (pending before the 

Commission on review). · 

861 
Concerning a civil penalty: c.w. was negligent in permitting these accumulations to develop during the mining process. 

The situation as it developed should have- been apparent to c.w. 

supervisors. 

The gravity was high since accumulations of this type could 

quickly propagate a mine fire. 

Considering the statutory criteria, a civil penalty of 

$1,000 is proper •. 

Order No. 3075922 (accumulations of "0 to l inch"): This 

order should be vacated. 

Order No. 3227145 (failure to record weekly electrical ~amination): · This technical violation should be affirmed. 

I credit the uncontroverted testimony of CW's electrician 

that this was his first week making electrical inspections and he 

forgot to record his findings. 

In view of the foregoing factual scenario, I consider the 

negligence of CW's electrician to be low. Further, the gravity 

of this particular recording violation is likewise low. 

A civil penalty of $250 is appropriate. 

Order No. 3227149 (short circuit protection>: It is uncontroverted that the short circuit trip protection was improperly 

set. This order should be affirmed. 

This was not an unwarrantable violation. I credit CW's 

uncontroverted evidence that the equipment had been checked 

shortly before it was observed by the MSHA inspector. In short, 

the eviden.ce fails to show any "aggravated conduct" as required 

by ·Emery, supra. Accordingly, the allegations of unwarrantable 

failure should be stricken. 

Concerning the assessment for a civil penalty: This was 

an open and obvious condition; it should readily have been 

observed. Accordingly, the operator was negligent. 

I consider the gravity to have been high. The energized 

cable could have been subject to excessive energy without trip 

protection. 

A civil penalty of $500 is appropriate. 

862 
Order No. 322753 (1000 KVA transformer>: This order should 

be aff1rmed as the parties essentially agree on the underlying 

facts as to the condition of the equipment. 

The initial three items (unsecured cover, bent cover, absent 

disconnecting handle) are minor violations of S 75.512. 

These three conditions are not S&S since the evidence fails 

to establish paragraph (3) and (4) of the Mathies formula. 

The three initial conditions are likewise not unwarrantable . failures to comply as no aggravated conduct has been established 

as required by Emery. 

Allegations of S&S and unwarrantable failure should be 

stricken. 

The two remaining items of the inoperatively wired lid 

switches and stranded wires cut from the leads present a more 

hazardous situation. These two items are S&S as they meet all 

the criteria required in Mathies. However, I credit the evidence 

that c.w. did not itself 1mproperly interfere with the wiring. 

In view of this, no aggravated conduct appears in the record. 

The operator was negligent in .that the violative conditions 

should have been observed and corrected. 

The gravity as to the ini~ial three items .was minimal but 

high as to incorrect wiring. 

On balance, civil penalty of $400 is appropriate. 

Order No. 32i7155 (heat latnp in kitchen)~ c.w. acknowledges 

this v1olation occurred as the cover was missing and a· screw had 

dropped out. However, C.W. argues the violation was non-serious. 

I conclude that no unwarrantable failure exists as to the 

heat lamp. Even though a condition violates a regulation, it 

is not unwarrantab~e unless some aggravated conduct is established. I find none in this record and the allegations of 

unwarrantability should be stricken. 

The violative conditions themselves were, however, open an~ 

obvious. They should have been remedied. Accordingly, the operator was negligent. 

863 
I consider the gravity to be high. In this regard I necessarily c·redi t MSHA' s evidence of the severity of the hazard. In 

addition, miners would, on a daily basis, be in close proximity 

to this heat lamp. 

A civil penalty of $400 is appropriate. 

Order No. 3227161 (map showing escapeway not provided). 

It is agreed that no map was provided. The defense focuses on 

the issue that the miners all knew the escapeway routes and the 

escapeways themselves were side by side. C.W. cannot choose the 

regulations it is willing to accept or reject. This order should 

be affirmed. · 

This violation, however, is not S&S within the doctrine of 

Mathies since paragraphs (3) and (4) have not been established. 

I further conclude the violation was not unwarrantable even 

though c.w. had previous citations for this regulation. "Aggravated conductft as defined by Emery requires more than mere prior 

citations for the same condition. 

The file reflects that the operator was negligent inasmuch 

as _the requirements of S 75.1704(2)(d) are well known to miners. 

I consi4er the gravity to be low particularly due to the 

relatively short escapeway. The uncontroverted evidence establishes that miners in the coal seam could see outside the mine. 

A civil penalty of $100 is appropria~e. 

Order No. 3227162 (pre-shift examination not recorded): 

This order should be vacated. 

Order No~ 3227163 (combustible materials allowed to accumulate): This order should be affirmed. 

The gravamen of this violation involves 18 empty hydraulic 

cans dripping oil on boxes and loose coal. 

These several ignition sources presented a genuine ~ine 

hazard. The defense that these accumulations occurred on a 

single shift cannot prevail. The regulation seeks to prevent 

situations where combustibles accumulate in active workings. 

In active working ignition sources such as trailing cables, 

continuous miner bits and electrical equipment are always at 

hand. The violative conditions cannot be deemed to be unwarrantable since no aggravated conduct is established in the record. 

Accordingly, allegations of unwarrantable failure should be 

stricken. 

864 
In assesqing a civil penalty, I conclude the operator was 

negligent since he knew of the violation conditions. 

The gravity is high, since oil and cardboard boxes can cause 

a mine fire. 

A civil penalty of $1000 is appropriate. 

Order No. 3227166 (accumulations of coal fines at various 

locations): This order should be affirmed. The presence of the 

described accumulations on the main controller belt, the ballast 

box, main motors, and cond~its presented a definite danger. 

I credit Inspector Marietti that these accumulations were 

black and ·eXcessive. 

While c.w. claimed the mine and equipment were wet, I conclude that accumulations of float coal dust, coal fines, loose 

coal soaked with hydraulic oil and grease are items that should 

not be permitted in a coal mine. If such accumulations occur, 

a violation of § 75.400 exists. 

The record fails to establish unwarrantable failure, since 

no aggravated conduct, as required by Emery supra, has been shown. 

In assessing a civil penalty: c.w. was negligent since 

these conditions could have been readily observed. 

The gravity is high. As noted above, these accumulat'ions 

can be an invitation to a mine fire and a resulting disaster. 

A civil penalty of $700 is appropriate. 

Based on the foregoing findings of fact and conclusions of 

law, I enter the following: 

ORDER 

1. Order No. 3227202: vacated. 

2. Order No. 3044314: Affirmed·, and a civil penalty of 

$1000 is assessed. 

3. Order No. 3075922: vacated. 

865 
4. ·citation No. 3227145: Allegations of unwarrantable 

failure are stricken. 

The citation, as modified, is affirmed and a civil 

penalty of $250 is assessed. 

5. Order No. 3227149: Allegations of unwarranted failure 

are stricken. 

The order, as modified, is affirmed and a civil penalty 

of $500 is assessed. 

6. Order No. 3227153: Allegati"ons of S&S are stricken as 

to paragraphs 1, 2, and 3. 

Allegations of unwarrantable failure as to the entire 

order are stricken. 

The citation, as modified, is affirmed and a civil 

penalty of $400 is assessed. 

7. Order No. 3227155: Allegations of unwarrantable failure 

are stricken. 

The order, as modified, is affirmed and a civil penalty 

of $400 is assessed. 

8. Order No. 3227161 : Allegati~ns of S&S and unwarrantable 

failure are stricken. 

The order, as modified, is affirmed and a civil penalty 

of $100 is assessed. 

9. Order No. 32271.62: This · order is vacated. 

10. Order No. 3227163: Allegations of unwarrantable ·failure 

are stricken. 

The order, as modified, is affirmed and a ~enalty of 

$1000 is assessed. 

866 
11. Order No. 3227166: The allegations of unwarrantable 

failure are stricken. · 

The order, as modified, is affirmed and a civil penalty 

of $700 is assessed. 

Law Judge 

Distribution: 

Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

co 80294 (Certified mail) 

carl E. Kingston, Esq., c.w. Mining Company, 53 West Angelo Avenue~ P.O. Box 15809, Salt Lake City, UT 84115 (Certified 

mail) 

/ot/ek 

867 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

BEAVER CREEK COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOa, 

MINE SAFETY. AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BEAVER CREEK COAL COMPANY, 

Respondent 

APR 2 6 1990 . . 

. . 

. . 

. . 

. . 

CONTEST PROCEEDINGS 

Docket No. WEST 88-105-R 

Citation No. 3227047~ 1/6/88 

Docket No. WEST 88-162-R 

Citation No. 3224925; 

Trail Mountain Mine No. 9 

Mine ID No •. 42-01211 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 88-265 

A.C. No. 42-01211-03543 

Docket No. WEST 88-282 

A.C. No . 42-01211-03545 

Trail Mountain Mine No. 9 

DECISION 

Appearances: Charles W. Newcom, Esq., Sherman & Howard, 

and David M • . Arnolds, Esq., Thomas F. Linn, Esq., 

Beaver Creek Coal Company, Denver, Colorado 

for Contestant/Respondent~ 

Robert J. Murphy, Esq., Office of the Solicitor, 

u.s. Department of Labor, Depver, Colorado,· 

for Petitioner/Respondent. 

Before: Judge Cetti 

Statement of the Proc.eedinqs 

These consolidated proceedings concern Notices of Contests 

filed by the Contestant Beaver Creek pursuant to section 105(d) 

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

§ 815(d), challenging the captioned citations issued by MSHA. 

The civil penalty proceedings concern proposals for assessments 

of civil penalties filed by MSHA seeking assessments against 

Beaver Creek for the alleged violations stated in the citations. 

After notice to the parties the matters came on for hearing 

before me at Salt Lake Ci.ty, Utah. Oral and documentary evidence 

was introduced, post-hearing briefs were filed, and the matters 

were submitted for decision. I have considered the oral argu- . 

ments made on the record during the hearings in my adjudication 

of these matters and the post-hearing briefs filed by the 

parties. 

868 
Stipulation 

The parties stipulated as follows: 

1. Beaver Creek Coal Company is engaged in mining and 

selling of coal in the United States, and its miniing operations 

affect interstate commerce. 

2. Beaver Creek Coal Company is the owner and operator of · 

Trail Mountain No. 9 Mine, MSHA I.D. No. 42-01211. · 

3. Beaver Creek Coal Company is subject to the jurisdiction 

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

§§ et seq. <."the Act"). 

4. The Administrative Law Judge has jurisdiction in this 

matter. 

5. The subject citation may be admitted into evidence for 

the purpose of establishing its issuance, and not for the truthfulness or relevancy of any statements asserted thereto. 

6 • . The exhibits to .be offered by Beaver Creek Coal Company 

and the Secretary are stipulated to be authentic but no stipulation is made as to their relevance or the truth of the matters 

asserted therein. 

7. The proposed penalties will not affect Beaver Creek Coal 

Company's ability to continue business. 

8. The operator demonstrated good faith in abating the 

violation. 

9. Beaver Creek Coal Company is a large mine operator with · 408,452 tons of production in 1987. · 

10. The certifi·ed copy of the MSHA Assessed Violations 

Higtory accurately reflects the history of this mine for the 

three months prior to the date of the citation. 

Citation No. 3227046 

Inspector Donald Gibson, during his inspection of the 

Beaver Creek Trail Mountain Mine No. 9, issued Citation 

No. 3227046 which charges a violation of safety regulation 

869 

.. 
30 C.P.R. § 75.523-2(c), whic~ provides as follows: 

Movement of not more than 2 inches of the actuating bar or lever resulting frorn the application 

of not more ·than 15 pounds of force upon contact 

with any portion of the equipment operator's body 

at any point along the length of the actuating bar 

or lever shall cause de-energization of the motors 

of the self-propelled electric face equipment. 

The citation alleges that one of the roof bolters being used 

"had a defective actuating bar" and went on to state that the 

"actuating bar for its off-s.ide operator would not de-energize 

the tramming motors unless extreme pressure was exerted against 

the bar." · 

, 

It is undisputed that the actuating bar did operate, without 

obstruction; the dispute is limited to the amount of force 

necessary to activate the bar. 

The inspectors did not use any pressure gauge or any ~ther 

measuring device to prove that the actuating bar required more 

than 15 pounds of force to be activated. They only manually 

pushed the bar and relied on their opinion based upon their 

experience without measuring whether or not the force required 

exceeded 15 · pounds. · 

In view of the fact that the cited regulation is clear and 

specific in specifying not more than "15 pounds of force" and no 

measurement of the force needed to activate the bar was made, the 

evidence present~d is insufficient to establish the contested 

violation of 30 C.P.R. § 75.523-2(c). The citation is therefore 

vacated and the proposed penalty set aside. Contest pro~eeding 

Docket No. WEST 88-105-R is· granted. · 

Citation 3227047 

This citation charges Beaver Creek with a violation of 

30 C.P.R. § 75.503 w~ich provides in pertinent part: 

Permissible electric face equipment: 

Maintenance. 

The operator of each coal mine shall maintain in 

permissible condition all electric face . equipment 

required by §§ 75.500, 75.501, 75.504 to be permissible which is taken into or used inby the last 

open crosscu~ of any such mine. 

870 
The citation alleges that Beaver Creek had two (2) violative 

conditions on the continuous miner as follows: 

The Joy 12 CM Miner 12G-2917A-30, Ser. #2820 being 

used on the 6th West Section was not being maintained in permissible condition. 

The following conditions were found and observed: 

(1) the main controller cover lid had an opening 

in excess of .005 inch between the lid and cover 

plane joint, (2) the trailing cable entrance box 

packing gland was not properly packed, the trailing cable could be pulled out of the glana approximately ! inch. 

When the continuous miner was first observed by the MSHA 

inspector about 7:30a.m., it was locked out and down for repairs. Beaver Creek electrician Gary Sitterud and maintenance 

supervisor Gay Curtis were making repairs to the miner·' s lighting 

system. Sitterud had been working on the miner before the inspectors arrived and continued after they left. 

When Sitterud arrived at the job site at the commencement of 

the 6:30 a.m. shift, the first thing he did was put his lock on 

the miner's · power cab.le even though it had already been locked 

out earlier by a~other mechanic, Jac~ Fielder. 

Sitterud, in troubleshooting the lighting system, found that 

a lighting transformer had burned up . He changed the transformer 

and re-energized the. miner to determine if the lighting problem 

was corrected • . He never started the miner at any rE!l'evant time. 

When re-energized, the miner twice blew a fuse. · Sitterud then 

removed some covers from behind the main controller to search for 

additional problems. He discovered an accumulation of coal and 

also located the miner's lighting problem. He sent the mechanic, 

Fielder, to obtain the necessary parts. Sitterud remained at the 

miner, cleaning the coal accumulation. 

·A short while later, Maintenance Supervisor Curtis met Sitterud at the miner. Sitterud informed Curtis of the coal. accumulation and asked Curtis if he should proceed to make a complete 

in-house permissibility inspection of the machine. Curtis said; 

"Yes, check the whole machine out." Beaver Creek presented evidence that it routinely performs such a permissibility inspection . of any electrical system that had undergone repairs before it is 

returned to service. 

871 
Shortly thereafter Inspector Gibson approached Sitterud and 

curtis. curtis asked Gibson if he was going to conduct the MSHA 

permissibility inspection while the miner was down or wait until 

the miner had been repaired. Gibson replied that he would probably conduct the inspection then, but walked away. Sitterud 

continued cleaning the coal accumulation. Thereafter, Fielder 

returned with the necessary parts and began repairs. 

Approximately one to two hours later, Gibson returned and 

inspected the miner although neither the repairs to the miner nor 

the in-house permissibility check was completed. 

When Curtis asked Gibson how he could cite a violation on 

a machine that "is locked out, tagged out and out of service," 

Gibson replied that Beaver Creek had an "intent to use" the 

machine and that he was "not going to argue" with him. When 

curtis asked the same question a second time at a different location he was given the same answer. 

I am satisfied from the evidence presented that due to lack 

of clarity in communication, the MSHA inspector made his inspection of the continuous miner at a time when it was locked out 

for repairs and an in-house permissibility check. 

It is undisputed that the inspection of the continuous miner 

was made at a time when the miner was locked out and down for 

repairs. The communication between Beaver Creek personnel and 

the inspector was ambiguous. This ambiguity led to a misunderstanding which resulted in Inspector Gibson making an inspection 

of the continuous coal miner before Beaver Creek completed the 

repairs and made its in-house permissibility check. 

I credit the testimony of Sitterud and Curtis. I find that 

the ambiguity in Beaver Creek's coinmunication to the inspector 

caused a misunderstanding and an assumption by Inspector Gibson 

that Beaver Creek had completeq all of the work they intended 

to· do while the machine was locked and tagged out for· repairs. 

This resulted in Inspector Gibson's making his inspection of the 

miner at a time when Beaver Creek had not completed the work and 

its in-house permissibility check which they intended to complete before putting the miner back in service. I am satisisfied 

from the testimony that a full in-house permissibility check 

would have been done by Beaver Creek and any needed corrections 

would have been made before the miner was put back into service. 

Under the rationale expressed in Ziegler Coal Company, 7 FMSHRC 

452 (March 27, 1985), which was cited by both parties, the 

citation is vacated. 

872 
In Zeigler Coal Company, supra, an inspector examined 

a shuttle car which was locked out and undergoing repairs. The 

mechanic making the repairs planned to check the entire car for 

permissibility prior to placing the car back in service. Nonetheless, the inspector made the inspection, found the car ·was 

not in permissible conditipn and issued the citation. The 

Administrative Law Judge vacated the citation. The mec~anic 

should have had the opportunity to check the car for violations 

of permissibility standards before the citation was issued. <~ ~, Plateau· Mining Company, 1 MSHC 1100, 1101 (Nov. 71 

1973); Zeigler Coal Company, 1 MSHC 1189, 1191 (Sept. 26, 1974). 

Citation No. 3227047 is vacated and its related $147.00 

proposed penalty set aside. 

Citation No. 3044356 

This citation alleges a 104(a), S&S, violation of 30 C.F.R. 

§ 75 . 200. At the hearing the Secretary moved to vacate this 

citation. In support of its motion, the Secretary advised that 

there was insufficient evidence to prove the violation. I accept 

the representations of the parties. Citation No. 3044356 is 

vacated. 

Citation No. 3227&48 

This citation alleges a 104{a), S&S, violation of 30 C.F~R. 

§ 77.504. At the hearing the parties reached an agreement on all 

issues related to this citation. Beaver Creek agreed to withdraw 

its contest of this citation and pay the full amount of the · Secretary's initial penalty assessment. 

Civii Penal~y Docket No. WEST 88-282 and 

and Contest Proceeding Docket No. WEST 88-162-R 

Citation No. 3224925 

This citation, as amended at the hearing, alleges a significant and substantial violation of 30 C.F. R. § 75.305 as follows: 

The 6th West seals were not examined during 

the seven days prior to 3-9-88. Because of . a bad roof the areas outby the seals is [sic) unsafe. · 

873 

.. 
It is uncontested that at the time the citation was issued 

that the 6th West seals were not inspected because the area that 

had to be traveled to inspect the seals had been "dangered off" 

and was unsafe to travel. 

The inspector never physically inspected the seals. He 

determined that Beaver Creek had not conducted an examination of 

the seals by checking Beaver Creek's records. 

There were a total of ten seals constructed in 6th West, 

some of which were built December 21, 1987, and the re$t of which 

were built on January 1, 1988. The seals were constructed of 

8-inch by 8-inch by 48-inch wooden crib block, running from top 

to bottom ahd rib to rib. The seals were well constructed and 

expected to last for the life of the area. The inspector ackn6wledged that the seals would bear weight well and would be 

difficult to breach. 

The seals were checked until approx~mately the last week of 

February 1988. At that time the timbers in the walkway leading 

to the seals were starting to give way and that the top showed 

signs of cracking. Mine Manager Meadors inspected the area and 

decided for safety reasons that no Beaver Creek employee should 

proceed beyond seal 5 to inspect seals 6 through 10. Although 

all the seals were intact, about a half-a-dozen timbers had 

already broken in the area beyond the fifth seal. Since the area 

had already been mined out, and there was a danger of roof falls, 

Beaver Creek "dangered off" the area at that time. A week or two 

thereafter Beaver Creek dangered off the area from the 'third seal 

inby and installed breaker rows, because the intersections were 

deteriorating and the timbers were breaking up. 

The preponderance of the evidence established that at the 

time .the cit~tion was issued, Beaver Creek was not performing any 

work in 6th West. Inspector Jones considered that the nearest 

mining was "a significant distance" away and estimated that distance to be 1,000 feet. Beaver Creek presented evidence that the 

neatest mining was in 5th West. 

Beaver Creek had monitored, and continued to monitor, the 

air in the area of the seals pursuant to a bleeder system 

approved by MSHA. (See Joint Ex. 19~ Joint Ex. 22; and Joint 

Ex. 24). The bleeder system draws off methane and keeps the gob, 

or waste coal left behind, ventilated. If the integrity of any 

of the seals were breached, this would ·show up in the monitoring 

of the bleeder system. There was nothing in the bleeder system 

to indicate any breach of the seals, and Inspector Jones testified he had never known such a breach to occur at Beaver Creek. 

874 
;30 c.F.R. § 75.305 provides in relevant part: 

In addition to the preshift and the daily examinations required by this Subpart D, examinations for 

hazardous conditions, including tests for methane 

and for compliance with the mandatory health or 

safety standards, shall be made at least once a week 

by a certified person designated by the operator in 

the return of each split of air where it enters the 

main return, on pillar falls, at seals, in the main 

return, at least one entry of each intake and return 

aircourse in its entirety, idle workings, and insofar 

as safety considerations permit abandoned areas. 

(emphasis added) 

30 C.P.R. § 75.2(h) define~ "abandoned areas" as: "sections, 

panels, and other areas that are not ventilated and examined in 

the manner required for working places under Subpart D of the 

Part 75." 

It is undisputed that safety consideration did not permit 

travel through the "dangered off" area that would have to be 

traveled t6 inspect the 6 West seals. The Secretary argues that 

if this area were an abandoned area, the inspector would not have 

issued the Citation because of the undisputed fact that safety 

considerations did not permit the. inspection of the 6 West seals. 

It was MSHA's position that Beaver Creek could and should 

have adequately supported the roof in that area so ~hat the 

6 West seals could be safely inspected. Beaver Creek, on the 

other hand, presents credible evidence that the roof had been 

supported and ' improved to the extent that it ·co'!lld not be im-: 

p roved an yrnor e. 

The Secretary argued that the .area in question was not an 

abandoned area because it was not complet·ely sealed off. The 

Secretary's position was that only an area that has been completely sealed off is an abandoned area. 

Within the context of the cited regulation this definition 

of an abandoned area is not logical in view of the wording of the 

cited regulation. It cannot be accepted as the meaning of the. 

term "abandoned area" as that term is used in this regulation. 

The regulation clearly requires inspections of abandoned areas 

under certain circumstances, i.e., where "safety considerations 

permit." There is merit in Beaver Creek's contention that if 

M.SHA's definition of abandoned area were adopted, an operator 

could never inspect an abandoned area -- unless the seals were 

unsealed. 

875 
I find that the preponderance of the evidence presented 

established that the area in question was. ari "abandoned area" 

within the meaning of that term as used in the cited standard 

and that safety considerations did not permit travel into that 

area for inspection of the 6 West seals. Citation .No. 3224925 

is vacated. Contest proceeding WEST 88-162-R and Civil Penalty 

proceeding WEST 88-282 are dismissed. 

ORDER 

Based on the above finding of fact and conclusion of law, 

IT IS ORDERED: 

1. Citation No. 3227048 is affirmed and a penalty of $91.00 

is assessed for this violation. 

2. In accordance with the Secretary's motion, Citation No. 

3044356 is vacated. 

3. Citation Nos. 3227046 and 3227047 are vacated. Contest 

Proceedings Docket No. WEST 88-105-R is granted. 

4. Citation No. 3224925 is vacated. Contest Proceeding 

Docket No. WEST 88-162-R is granted and Civil Penalty Docket No. 

WEST 88-282 is dismissed. 

5. Respondent Beaver Creek shall within 30 days of the date 

of this decision pay a civil penalty of $91.00 for the violation 

of Citation No. 3227048. Upon payment, Civil Penalty Proceeding 

Docket No. WES~ 88-265 is dismissed. 

Distribution: 

~a~ 

Aug t F. Cetti ~~· Adm"nistrative Law Judge 

David M. Arnolds, Esq., Thomas F. Linn, Esq., Beaver Creek 

Coal Company, 555 17th Street, 20th Floor, Denver, CO 80202 

(Certified Mail) 

Charles W. Newcom, Esq., Sherman and Howard, 633 17th Street, 

Suite 3000, Denver, CO 80202 (Certified Mail) 

Robert J. Murphy, Esq., Office of the Solicitor, u.s. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

876 
- . FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE lAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 2 7-1990 

~F.r.RF.TARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION . (MSHA), 

Petitioner 

v. 

BROWN BROTHERS SAND COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. SE 90-12-M 

A.C. No. 09-00265~05510 

Junction City Mine 

DECISION 

Appearances: Kens. Welsch, Esq., Office of the Solicitor, 

u.s. Department of Labo~, Atlanta, Georgia, for 

Petitioner: 

Mr. Carl Brown, Brown Brothers Sand Company, 

Howard, Georgia for Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to 

Section 105(d) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 801 et seq., the "Actf" charging the Brown . Brothers Sand Company (Brown Brothers> with one violation of 

the regulatory standard at 30 C.F.R. § 56.14130(g) and 

proposing civil penalties of $20 for the violation. The 

general issue before me is whether Brown Brothers violated 

the cited regulatory standard and, if so, the appropriate 

civil penalty to be assessed in acco~dance with 

Section llO(i) of the Act. 

Citation No. 2856364 .issued July 27, 1989 pursuant to 

Section 104(a) of the Act alleges a violation the mandatory 

standard at 30 C.F.R. § 56.14130(g) and charges that "the ·~ 

loader operator was not wearing his seat belt while operating 

his loader". The cited standard provides in relevant part 

that "seat belts shall be worn by the equipment operator". 

The testimony of Inspector Albert Moats of the 

Department of Labor's Federal Mine Safety and Health 

Administration (MSHA) is not disputed in essential respects. 

According to Moats upon his inspection of the Brown Brothers 

Junction City 'Georgia operation on July 27, 1989, he observed 

a worker operating a front-end loader without his seat belt 

877 
on. Moats testified that upon reporting to the mine office 

he then informed company President Carl Brown of this 

observation. Upon returning to the office several hours 

later Moats again saw the worker ~perating the loader without 

his seat belt on. Moats thereupon issue the citation at bar. 

He later terminated the citation after the loader was parked 

and he advised the operator of the necessity to wear his seat 

belt. Moats concluded that the violation was not serious 

because the loader was operating in a level area. He 

considered it unlikely that it would strike any other 

.equipment or ·roll over. There is no contradictory evidence 

and I am therefore constrained to accept the testimony of 

Inspector Moats in this regard. Since Mr. Carl Brown was 

notified that one of his employee's was operating the front-end-load~r without a seat belt and after several hours 

had still not corrected the condition, it is clear that 

Respondent is chargeable with negligence. 

Counsel for the Government observed in closing argument 

that the son and grandson of Mr. Carl Brown actually run the 

subject business and have demonstrated that they are 

generally ~esponsible supervisors. In addition counsel 

observed that no other seat belt violations have been 

observed at the subject mine. Accordingly it appears that 

Mr. Carl Brown's adamant position at hearing that he does not 

and will not require his employees to wear seat belts is his 

own personal and aberrant viewpoint not followed by the 

operating management. Government counsel further observed 

that in light of Mr. Brown's statements at hearing, MSHA 

would certainly be on notice in the future. under the 

circumstances and considecing the criteria under Section 

llO(i) of the Act, I accept the Secretary's proposed civil 

penalty of $20. 

ORDER . 

Citation No. 2856364 is affirmed and Brown Brothers sand 

Company is hereby directed to pay a civil penalty of $20 for 

the violation therein within 30 days of the date of ·this 

decision. ~ . : . 

.. _,. ' f 

~ ' . t • -- • ~-....... • ~ •• 

Distribution: 

Gary I-ielick 

Administrative Law Judge 

Kens. Welsch, Esq., Office of the Solicitor, u.s. Department 

of Labor, Room 339, 1371 Peachtree St., N.E., Atlanta, GA 

30367 (Certified Mail) 

Mr. Carl Brown, Brown Brothers Sand Company, P.O; Box 22, 

Howard, GA 31039 .(Certified Mail) 

nt 878 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 3 01990 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

LANHAM COAL CO., INC., 

Respondent 

: 

. . 

: 

CIVIL PENALTY PROCEEDI'NG 

Docket No. KENT 89-186 

A.C. No. 15-i3428-03508 

: Lanham No. 1 Mine . . 

DECISION 

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, 

u.s. Department of Labor, Nashville, Tennessee, 

for the Secretary of Labor (Secretary>; 

Flem Gordon, Esq., Gordon and Gordon, Owensboro, 

Kentucky, for Lanham Coal Co., Inc. (Lanham). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks a civil penalty for an alleged violation 

of 30 C.F.R. § 77.1710(g) because a contractor-truck driver was 

working in an elevated area where there was a danger of falling, 

and was not wearing a safety belt and line. Pursuant to notice, 

the case was heard in Owensboro, Kentucky, on January 17, 1990. 

Gazi Bokkin and James Harold Utley testified for the Secretary. 

Tony Lanham testified for Respondent. The record was kept open 

for the submission of additional evidence, namely a copy· of the 

death certificate of Claude J~ Daugherty and a deposition of 

Willard Keith, M.D. These documents were received on February 12 

and March 26, 1990. Both parties have filed post hearing briefs·. I have -considered the entire record and the contentions of the 

parties in making the following decision. 

FINDINGS OF FACT . .. 

1. At all times pertinent to this proceeding, Lanham was 

the owner and operator of a surface coal mine in Daviess County, 

Kentucky, known as the Lanham No. 1 Mine. 

2. In 1988, the subject mine produced 197,826 tons of coal. 

It is a mine of moderate size. 

879 
3. · Iri the 24 months prior to the aileged violation involved 

herein, Lanham had 17 paid violations, none of which involved 30 ·~ c.F.R. § 77.1710(g) . This history. is not such that a penalty ·· otherwise appropriate should be increased because of it. 

4. A penalty for the alleged violation will not affect 

Lanham's ability to continue in business. 

s. Lanham had a contract·with Caney Creek Trucking Company 

(Caney) to haul coal from the mine to Lanham's coal dock at the 

river approximately 14 miles from the mine. 

6. Caney was owned by Claude Daugherty . Daugherty drove 

one of the trucks and had other employee coal truck drivers. 

Caney had 7 or 8 trucks. Six, 7 or 8 were operated each day 

hauling coal for Lanham. Caney hauled under contract with Lanham 

for approximately two and one half years as of December 29, 1988. 

Lanham paid Can~y_by the ton for its services in hauling the 

coal. 

7. It was Lanham's practice to call Daugherty at night and 

tell him how much coal would be loaded the next day. The coal 

was loaded by a Lanham end loader into each truck. The truck 

driver indicated how much coal he wished to carry. The driver 

then covered the coal with a tarp and drove it to La~ham's dock. 

The truck was weighed and the coal dumped on the ground. Later 

it was loaded into a hopper and taken to a barge on the river. 

The truck was weighed empty and returned to the mine for another 

load. 

8. Neither Caney nor Claude Daugherty had an MSHA Mine I.D. 

Number in December 1988. 

9. Lanham operated end loaders, doze·rs and scrapers. It 'did not have any coal trucks. 

10. Lanham did not furnistl any equipment to Caney and did 

not control the manner in which Caney performed its services. 

11. Prior to December 29, 1988, Caney's truck drivers, 

aftec the coal was loaded, tarped their trucks in a parking area 

off the main haul road but on mine property. 

12. On Deceu1ber 29, 1988, Claude Daugherty drove his truck 

to Lanham's mine, had it loaded with coal at the pit, drove to 

the top of the ramp and stopped there to cover the load with his 

tarp. During this procedure, he fell from the truck 

approximately 10 feet to the ground. Daugherty was not secured 

by a belt or line while tarping the truck. 

880 
13. Daugherty was taken to the OWensboro-Daviess County 

Hospital and transferred two weeks later to the Norton Hospital 

in Louisville, Kentucky . He sustained fractures of the right 

hip, a dislocated right shoulder, and an apparent vascular injury 

to the spinal cord. 

14. Daugherty died in the hospital on January 22, 1989, of 

septic shock following renal failure. 

15. Following Daugherty's death, Lanham reported the injury 

to MSHA and an investigation was commenced. 

16. On January 23, 1989, coal mine inspector Gazi Bokkin 

issued a citation for a violation of 30 C.F.R. § 77.1710(g) 

because the contractor-driver was working in an elevated area 

where there was a danger of falling and was not wearing a safety 

belt or line. 

17. The citation was terminated on February 14, 1989, when 

a reinspection disclosed that coal trucks were "not being tarped 

on mine property." The loaded trucks drove off the mine property 

before the drivers secured the tarps. 

18 • . Daugherty had chronic pancreatitis and an enlarged 

liver, neither of which was- related to the fall. 

19. The evidence does not establish that the fall from the 

truck on December 29, 1988; caused Daugherty's death on 

January 22, 1989. 

20. The inspector had never previously cited Lanham, Caney 

or any other mine operator or t~ucking contractor for a violation 

involving a similar factual situation. He had previously 

inspected the Lanham facility and had seen trucks being tarped. 

21. None of Lanham's employees normally worked in the area 

where the trucks were tarped. 

22. Inspector Bokkin in 20 years as an inspector and 22 

years as a miner had never observed coal trucks provided with 

belts or lines for the person putting a tarp on or removing it 

from a loaded coal truck. Bokkin did not know that the practice 

cited was a violation prior to issuing the citation involved in. 

this case. 

23. The citation was issued to Lanham rather than Caney 

because at the time Caney did not have ·an I.D. number. 

881 
,' 

24. · MSHA has never issued any instructions or bulletins 

regarding the duty of a mine to provide safety belts and lines 

for use while tarping trucks. 

REGULATION 

30 c.F.R. § 77.1710(g) provides in part as follows: 

§ 77.1710 

Each employee working in a surface coal mine or in the 

surface work areas of an underground coal mine shall be 

required to wear protective clothing and devices as 

indicated below: 

* * * 

(g) Safety belts and lines where there is danger of 

falling, 

ISSUES 

1. Whether a mine operator is responsible under the Mine 

Act for violations of safety standards by its independent 

contractors on mine property? 

2. If so, whether the evidence establishes a violation of 

the standard as charged? 

3. If so, what is the appropriate penalty considering the 

statutory criteria? 

CONCLUSIONS OF LAW 

I. JURISDICTION 

Lanham is subject to the provisions of the Act in the 

operation of the subject mine. I have jurisdiction over the 

parties and subject matter of this proceeding. A production 

operator may generally be cited for violations of mandatory 

safety standards by independent contractors. The Secretary has 

discretion in such cases "to cite production operators as (s)he (se~s] fit." Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 

533, 538 (D.C. Cir. 1986). The case cited by Lanham, Secretary 

v. Jim Walter Resources, Inc., 7 FMSHRC 1099 (1985) was based on 

the Review Commission decision in Cathedral Bluffs which was 

reversed by the Court of Appeals. See also Secretary v. 

Consolidation Coal Company, 11 FMSHRC 1439 (1989). I se.e no 

reason to conclude that the Secretary abused her discretion in 

882 
this case when she cited Lanham for the violation committed by 

Caney. · 

II. VIOLATION 

A coal truck driver who fastens a tarp over a load of coal 

in his truck while standing on the load of coal is in danger of 

falling. In the case before me he did in fact fall. Since he 

was not wearing a safety belt or line, a violation of the 

standard has been established. 

III. GRAVITY 

The testimony establishes that the driver tarping his load 

is ten feet or more from the ground.· A fall from that height can 

result in a serious injury. The fall which resulted here did 

cause a hip fracture and a shoulder dislocation. Even though the 

death of the driver was not shown to have been caused by the 

fall, the violation was serious. 

IV. NEGLIGENCE 

Until MSHA was notified of the contractor truck driver's 

death, neither Lanham nor the inspector considered the standard 

applicable to the tarping of trucks. The inspector never 

obser~ed safety belts or lines used in such situations in more 

than 40 years of mining experience. MSHA had no standards or 

guidelines concerning this practice. Lanham had no specific 

notice that the practice violated the standard. It would be 

absurd under these circumstances to conclude that the violation 

resulted from Lanham's negligence. I conclude that it did not. 

V. PENALTY 

Lanham is a moderately sized operator. It had 17 paid 

violations in the 24 months p.rior to the issuance of the citation 

involved herein. It abated the violation promptly in a manner 

satisfactory to r-\SHA. Considering the criteria in section llO(i) 

of the Act, I conclude that a penalty of ~250 is appropriate for 

the violation. 

ORDER .. 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Citation 3297324 is AFFIRMED. 

883 
2. Respondent Lanham Coal Company shall within ·30 days of 

the date of this decision pay the sum of ·$250 for the violation 

found herein. 

/] / , .f. /r1 / k' v-;,t<.e.S ffl~:/:'t;'(.U,~""C0;t.:,' 

James A. Broderick 

v Administrative Law Judge 

Distribution: 

Thomas A. -Grooms, Esq., u.s. Department of Labor, Office of the 

Solicitor, 2002 Richard Jones Road, Suita B-201, Nashville, TN 

37.,215 .<Certified Mail) 

Flem Gordon, Esq., Gordon & Gordon, P.S.C., 1500 Frederica 

Street, P.O. Box 390, Owensboro, KY 42302 (Certified Mail) 

slk 

884 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

. 2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

GILBERT WISDOM, 

complainant 

v. 

F & W MINES, INC., 

Respondent 

APR 3 0 ·1990 

. . 

. . 

. 

. 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. SE 89-102-DM 

MD 88-60 

State Road 5·20 Plant 

Appearances: Glenn M. Embree, Esq., u.s. Department of Labor, 

Office of the Solicitor, Atlanta, Georgia, for the 

Complainant; 

James E. Foster, Esq., Foster & Kelly, Orlando, 

Florida, for the Respondent. 

Before: Judge Maurer 

This proceeding concerns a discrimination complaint filed by 

the Secretary of Labor (Secretary) on behalf of the affected 

miner, Gilbert Wisdom, pursuant to section 105(c) of the Federal 

Mine Safety and Health Act of 1977,' 30 .u.s.c. § 815(c), 

hereinafter referred to as the "Act". 

On May 1, 1989, a Discrimination Complaint was filed with 

the Commission alleging that .Mr. Wisdom was unlawfully 

discriminated against and discharged by respondent on April 4, 

1988, for engaging in an activity protected by section 105(c)(l) 

of the Act. More particularly, the Complaint alleges that 

Wisdom's discharge on April 4, 1988, was the direct result of his 

refusal to perform work (operate a machine) which he believed to 

be unsafe. . 

Pursuant to notice, a hearing on the merits was held in this 

matter on August 17, 1989, in Orlando, Florida. Post-hearing 

proposed findings and conclusions were filed by the Secretary on 

October 18, 1989, and ~ the Respondent on November 15, 1989. 

Subsequently and pursuant to motion which was granted, the 

Secretary filed a response to the Respondent's proposed findings 

and conclusions on March 30, 1990. I have considered these 

submissions along with the entire record in making this decision. 

885 

,• 
Findings of Fact 

Having considered the record evidence in its entirety, I 

find that a preponderance of the reliable, substantial and 

probative evidence establishes the following findings of fact: 

1. Respondent, F & W Mines, Inc., (F & W) is a Florida 

corporation engaged in the open pit mining of shell. This shell 

is sold primarily as a road base material in a geographically 

limited area; primarily due to the cost of transportation. 

However, it was used in portions of Florida State Road No. 434. 

Furthermore, some of the equipment and supplies used in the 

respondent's mining operation were manufactured and purchased 

outside the state of Florida. 

I will deal with it later in this decision, but suffice it 

to say for now that I am not going to have any trouble finding 

this operation to be a "mine" within the meaning of the Act, nor 

deciding the interstate commerce issue in favor of federal 

jurisdiction. 

2. Until his termination on April 4, 1988, Gilbert Wisdom's 

primary duties were to operate F & W's Koehring 866 backhoe, 

excavating shell. 

3. The Koehring 866 backhoe is a very large, tracked 

machine approximately 14 feet wide and 25 feet .long, with an arm 

or bucket that extends 25 to 30 feet and has a capacity of 

approximately four yards of material. This machine \'las used to 

excavate shell by traversing it back and forth in parallel 

fashion along the edge of the pit previously created by the last 

pass. The de'pth of these excavations ranged from 3 feet to a 

m.:lximum of 15 feet with an average excavation clepth of four to 

five feet. · 

4. For approximately three or four months prior to his 

termination, complainant had had some problem operating the 

equipment because of the "brakes". According to the company 

mechanic, however, the problem was with the tracking system, not 

the brakes. In any event, whatever the precise cause, the crux 

of the complainant's work refusal is contained in his testimony 

at Tr. 74-75: 

Q. Now, as you were movi~g the machine down the rows, 

what use did you have to make of the brakes in the 

operation of the piece of equipment? 

A. Well, to keep it from pulling you into the pit, 

you had so much power with your boom. If you had no 

886 
power to lock the machine, it would just pull you over 

into the pit. It would move the machine . 

Q. Now, was one brake just not operating? 

A. One brake was hanging up at first, and it was 

stretching the drive chain out, and it broke. They 

ordered a new drive chain. When they were putting it 

on , to keep · them from having to buy another chain and 

stretching it out, they released the brakes totally, so 

there would be no more problem with chains stretching 

out and such, or pulling me sideways. Then I would 

have an equal pull or an equal lack of pull. 

* * * * * * ' * 

Q. Both sides \oJere released. Now , once both sides 

were released, what problems would that cause in terms 

of the operation of the backhoe? 

A. Well, it slowed production. They told me to 

either turn the machine perpendicular to my cut -- and 

I tried that, and it did work when you were digging 

straight ahead of you. But when you turned toward your -- 45 to 90 degrees, it would still pull you towards 

the pit. So , that didn't work. 

I talked to the mechanic. He said, "Try digging 

mounds in front of you." It would also pull it, either 

up on top of the mound or pull it through the mound. That didn't work well either. 

Q. So, after that did there come a time when the 

brakes were tightened back up? 

A. No , sir. 

Q. So, from that point on, you continued to operate it 

without brakes? 

A. Yes, sir. 

Q. Now, for approximately how long did you operate 

this piece of equipment without brakes? 

A. -I guess three or four months -- three months. 

5. Over this period of time the problem with the backhoe 

became progressively worse and basically one side of the 

887 

,• 

. .. 
backhoe's braking and/or tracking system wasn't locking while the 

other side was. The result was that the ·backhoe was being pulled 

toward the pit and complainant fea~ed that he might be pulled 

into the pit. · 

6. In response to his complaints, management told him that 

parts to fix the tracking system were on order and that the 

company was contemplating trading the machine for a new one or 

shutting it down and refurbishing it. He had the impression they 

were just putting him off. 

1. Four or five days prior to April 4, 1988, the backhoe 

also developed a leak in an air diaphragm that controlled the 

swing arm. The air diaphragm was designed to act as a buffer to 

control the stopping of the swing arm. With a hole in it, it 

caused the swing arm to be slower to react because it was losing 

air pressure to the swing control. The response is slower 

between the operator and the swing arm and the swing arm itself 

moves slower. This loss of control or mushiness of the control 

caused the complainant to twice hit the side of a truck he was 

loading with the machine. This could obviously present a hazard 

to others in the vicinity. 

8. Complainant has had a long medical history of having 

migraine headaches. The stress of operating this machine in the 

condition it was in exacerbated his headaches and also caused 

panic attacks and high blood pressure. His doctor advised him to 

change his situation at work or do whatever else it took to bring 

his blood pressure under control and alleviate his headaches. 

9. On April 4, 1988, the Complainant told his immedi~te 

supervisor that he believed the equipment was unsafe to operate 

in the condition it was in and that it constituted a hazard to 

his health and safety and the safety of others and he refused to 

operate it. He was therefore fired after refusing to reconsider 

his action. 

DISCUSSION WITH FURTHER FINDINGS 

Respondent maintains that although this backhoe was not in 

perfect condition it was not unsafe to operate. Respondent 

points out that the other employees of F & W who operated it did 

not think it was unsafe, and the complainant himself operated it 

in this imperfect condition for three to four months without 

incident. · 

The superintendent, Carlton Prevatt, has known the 

complainant for twenty years and is a close personal friend of 

his older brother, who is coincidentally a former owner of F & w. 

Mr. Prevatt testified and I believe him that he would not have 

888 
permitted the complainant to operate a piece of mine equipment 

which he (Prev~tt) believed to be unsafe. He knew th~ machine 

was "tired", but did not think it to be unsafe. 

This was also generally the testimony from the company 

mechanic who knew exactly what was wrong with the equipment and 

understood what the effect of the malfunctioning equipment would 

be on its operation. He also operated the equipment himself, 

allegedly without incident or difficulty. 

Mr. Baxter, who was the one who actually ordered the 

complainant to start up the backhoe and start digging and also 

was the one who fired the complainant when he refused to do so 

testified. He was shocked at the complainant's refusal. He 

thought .he was joking at first, but he refused a second time. 

Baxter himself had operated this equipment during this same · period of time and likewise did not think it to be unsafe. 

Unfortunately for respondent in this case, refusal to work 

cases turn on the miner's belief that a hazard exists, so long as 

that belief is held in good faith and is a reasonable one. 

Secretary ex rel. Bush v. Union Carbide Corp., 5 FMSHRC 993, 997 

(1983); Miller v. FMSHRC, 687 F.2d 1984 (7th Cir. 1982). 

Generally, in order to establish a prima facie case of 

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

miner bears the burden of production and proof to establish 

(1) that he engaged in protected activity and (2) that the 

adverse action complained of was motivated in any part 'by that 

activity. Secretary on behalf of Pasula v. Consolidation Coal 

Company, 2 FMSHRC 2768 (1980), rev'd on other grounds ~~· 

Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d C~r. 

1981); Secretary ·on behalf of Robinette v. United Castle coal 

Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v. 

Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on 

behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511, (Nov~nber 1981), rev'd on other grounds sub~· Donovan v. 

Phelps Dodge Corp., 709 F . 2d 86 (D.C. Cir. 1983). The operator 

may rebut the orima facie case by showing either that no . protected activity occurred or that the adverse action was in no 

way motivated by protected activity. If an operator cannot rebut 

the prima facie case in this manner it may nevertheless ·• 

affirmatively defend by proving t,hat it was also motivated by the 

miner's unprotected activities alone. The operator bears the 

burden of proof with regard to the affirmative defense. ~ v. 

Magma Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden 

of persuasion does not shift from the complainant. Robinette, 

supra. See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983); 

and Donovan v. Stafford Construction Company, No. 83-1566 D.C. 

Cir. (April 20, 1984) (specifically approving the Commission's 

889 
Pasula-Robinette test). See also NLRB v. -Transportation 

Management Corporation, 462 u.s. 393, 76 L.Ed.2d 667 <1983), 

where the supreme Court approved the NLRB's virtually identical 

analysis-for discrimination cases arising under the National 

Labor Relations Act. 

Additionally, where reasonably possible, a miner refusing 

work ordinarily must communicate or attempt to communicate to som~ representative of the operator his belief that a hazardous 

condition exists. Secretary on behalf of Dunmire & Estle v. 

Northern coal Co., 4 FMSHRC 126, 133-135 (February 1982); Dillard 

Smith v. Reco, Inc., 9 FMSHRC 992 (June 1987); Miller v. 

Consolidation Coal Company, 687 F.2d 194, 195-97 (7th Cir. 1982) 

(approving Dunmire & Estle qommunication requirement). · 

In analyzing whether a miner's belief is reasonable, the 

hazardous condition must be viewed from the miner's perspective 

at the time of the work refusal, and the miner need not 

objectively prove that an actual hazard existed. Secretary ex 

rel. Bush v~ Union Carbide Corp., 5 FMSHRC 993, 997-98 

(June 1983); secretary ex rel. Pratt v. River Hurrica~~ Coal Co., 

5 FMSHRC 1529, 1533-34 (September 1983): Haro v. Magna Copper 

Co., 4 FMSHRC 1935, 1944 (November 1982); Robinette, supra, 

3 FMSHRC at 810. The Commission has also explained that "[g]ood 

faith belief simply means honest belief that a hazard exists." 

Robinette, supra at 810. 

Thus, the principal question for decision here is did 

Gilbert Wisdom reasonably and in good faith believe that he was 

going to be required to operate a piece of equipment which was 

deleterious to his health or safety. 

If a miner refuses to ·work only after an operator has failed 

or refused "to respond .to a reasonable complaint regarding -an 

unsafe work condition, it is not likely that the miner has acted 

in bad faith. Gilbert v. FMSHRC, 866 F.2d 1433 (D.C. Cir. 1989). 

Good faith must be viewed from the miner's perspective. 

Pratt, supra at 1533. In this case, it is genera1ly _acknowledged 

that the equipment was in the condition the complainant says it 

was in. Furthermore, I have found that the complainant on 

numerous occasions did complain to his supervisor as well as the 

company's mechanic concerning the way the backhoe handled, if not 

specifically stating that it was unsafe, per se. Adjustments 

were made, parts were ordered, but no real attempt to fix the 

machine ever materialized. I therefore find that in his mind, at 

least, there was an honest belief that a hazard existed, which he 

could no longer ~ope with. 

·890 
The other part of the question for decision is whether his 

belief that a hazard existed was a reasonable one under the 

circumstances. One must remember that objective evidence of an 

actual hazard is not required. · 

Respondent's starting position in this case is that the 

backhoe was "tired"; there were some maintenance and handling 

problems with it. It maybe even was frustrating or a nu1sance to oper~te, but it was not unsafe. Althou'gh not expressed per se, 

my impression of respondent's next line of argument is that even 

if. the machine. was a little unsafe, wh.ere' s the harm? "Complainant 

did not have a reasonable fear of injury or death". Resp. Brief at 

11. No harm-no foul! But this is not the test. Just about any 

conceivable "hazard" will do so long as the complainant holds a good 

faith, reasonable belief in its existence. Complainant is not 

required to be in fear of serious bodily injury or violent death. 

Much less has been held to be sufficient. 

I would agree that the record is devoid of any objective 

evidence that the complainant's continued operation of the 

backhoe would have subjected him to any greater hazard than the 

particular stress-related disorders to which he was predisposed 

or perhaps a hard jolt if the machine did get pulled down into 

the pit, which it never did. However, that is not determinative. 

Neither is the fact that ostensibly nobody else saw. any problem 

with operating the backhoe just the way it was. What is 

important is if the complainant himself .reasonably and in good · faith believed that the continued operation of the backhoe was 

hazardous to his health (mental or physical). 

There is a Commission·decision which has many similarities 

to this case. In my opinion, it is on point and directs a 

favorable decision for the complainant in this case by analogy. 

Secretary ex rel. Cooley v. ottawa Silica Company, 

6 FMSHRC 516 (1984) involved a miner's work refusal. It also 

involved a malfunctioning piece of equipment. That operation 

involved drying sand in a·large natural gas-fired dryer. The 

dryer had an electric spark plug that ignited the pilot light, 

when it wor,ked . When it didn't, the pilot was ignited manually, 

by holding a piece of burning paper to it. Cooley had been 

directed. to ignite the pilot manually on over thirty prior 

occasions and had al\Bys done so, although he complained 

throughout this period to his foreman and his fellow workers that 

this was unsafe. 

The last time Cooley manually lit the pilot, he singed the 

hair on the knuckles of his right hand and he resolved that he 

would not light the pilot manually again. Later that same day, 

891 
.' 

he was called upon to manually light the pilot. He refused. He 

reasoned that if that were the proper way to light the pilot, the 

dryer would have been supplied with "a carton of matches and a 

bale of paper". His supervisor, like our Mr. Baxter, again 

ordered him to perform the task. He again refused and he was 

fired. 

As in our case, the other employees who worked with the 

dryer, didn't see any problem with manually lighting the pilo~ 

and did so themselves routinely. -.· \ 

On these facts, the Commission found that Cooley had a good 

faith, reasonable -belief that a hazard existed and found that his 

work refusal was protected. No greater hazard then singed 

knuckle hair was ever identified • 

•. wisdom basfcally followed the same track as Cooley. He 

reluctantly went along for a time operating the malfunctioning 

equipment, 'but complaining constantly to supervisors and fellow 

workers. The piece of equipment in both cases was not operating 

as it was designed to; it was being jerry-rigged to keep it 

going. Finally, one day Cooley singed his knuckle hair and 

Wisdom began to have stress-related problems and both resolved 

that they would not operate the equipmen·t again, despite the fact 

that none of their fellow employees had a problem doing what they 

perceived to be unsafe. Subsequently, they both refused to 

operate the equipment for basically the same reason, as near as I 

can tell, and both were fired. 

Good faith belief and reasonable belief in the hazards of 

the workplace are largely credibility issues and subjectively, I 

find the complainant herein to be a credible witness. As I found 

earlier in this opinion, there were difficulties in operating 

this backhoe and the tension caused by having to fight the 

machine could very well be the cause of his migraine headaches . and panic attacks. He thinks so and testified to that effect. 

Respondent has not refuted this testimony. 

I also believe the witnesses who testified that operating 

this backhoe was not unsafe were sincere. For them, it was not 

a problem. They could cope with the trackage problems and the 

difficulty with the swing arm. The more objective case that this 

was an unsafe piece of equipment is definitely harder to make, .but then there is no requirement that the reasonableness of 

Wisdom's belief be verified objectively. See Robinette, 3 F'MSHRC 

at 811-12. -

Turning belatedly to the issues concerning jurisdiction, 

such as whether this operation is a mine and the interstate 

co1nmerce question, I conclude that the shell is a mineral and its 

892 
e,ctraction is mining within the meaning of the Act. I ~urther 

conclude that the respondent's mining activity affects ·cownerce 

within the meaning of the Act, and - ultimately I find the 

respondent to be subject to the jurisdiction of the 1977 Mine 

Act. 

The definition of "coal or other mine" found in § 3(h) (1) of 

the 1977 Mine Act is as follows: 

"[C]oal or- other mine" means (A) an area of land from 

which minerals are extracted in non-liquid form or, if 

in liquid form, are extracted with workers underground, 

(B) private ways and roads appurtenant to such area, 

and (C) lands, excavations, underground passageways, 

shafts, slopes, tunnels and workings, structures, 

facilities, equipment, machines, tools, or other 

property including impoundments, retention dams, and 

tailings ponds, on the surface or underground, · used in, 

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

extracting such minerals from their natural deposits in 

nonliquid form, or if in liquid form, with workers 

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

of such minerals, or the work of preparing coal or 

other minerals, and includes custom coal ·preparation 

facilities. 

The definition of "coal or .other mine" is further clarified ·by the Legislat.ive History of the Act. The Senate Report 

No. 95-181 (May l6, 1977) provides that: 

[I]t is the Committee's intention that what is 

considered to be a mine and to be regulated under the 

Act be given the broadest possibly (sic) interpretation, and it is the intent of this ·Committee- that doubts be 

resolved in favor of inclusion of a facility witin the 

,• 

coverage of the Act. -.........___ 

s. Rep . No. 181, 95th Cong., 1st Sess. 602, reprinted in 

[1977] U.S. CODE: CONG. & ADMIN. NE:~'lS 3401, 3414. 

As a remedial statute, the Act has been given broad interpretation and has been found to apply to a broad spectrum of 

activities, including prospecting, assessing value of ore bodies 

and quarrying in one's backyard. Marshall v. Wait, 628 F.2d ·• 

1255, 1258 (9th Cir. 1980) (backyard rock quarry is within the 

definition of a mine>: Marshall v. Stoudt's Ferry Preparation 

Co., 602 F.2d 589, 592 (3d Cir. 1979>, cert. denied, 444 u.s. 1015 

IT980) (sand and gravel preparation plant is a "mine" within the 

maaning of the Act); Secretary of Labor v. Cyprus Industrial . Minerals Corporation, 3 FMSHRC 1 (January 1981), aff'd ·by the Ninth 

893 
Circuit court of Appeals, December 28, 1981, Cyprus Industrial 

Minerals v. FMSHRC and Donovan, 2 t-1SHC 1554 (digging of a tunnel to 

assess the value of talc deposits within the definition of a 

"mine"). · 

Respondent's geologist testified that the shell excavated by 

F & w i-1ines is not a mineral within the generally accepted 

deffnition of that term as used by geologists. He also testified 

that sand, gravel and limestone were not minerals as thos.e terms 

are used by geologists. 

A mineral is defined in general terms as "any valuable inert 

or lifeless substance formed or deposited in its present position 

through natural agencies alone, and which is found either in or 

upon the soil of the earth or in the rocks beneath the soi 1." 

Black's Law Dictionary, Rev. 4th Ed. (1968). 

« . For our purposes, this general definition is precise enough. 

Moreover, sand, gravel and limestone have previously been held to 

be minerals within the meaning of the Act, not\·li thstanding that 

they also do not fit precisely within that term as used by 

geolo<Jists. 

Therefore, I specifically find and conclude that respondent's excavation of shell materials by open pit extraction is 

"mining" within the meaning of the Act. 

Article I, Section a, Clause 3, of the Constitution gives 

Congress the power to "regulate commerce ••• among the several 

States." The u.s. Supreme Court has a long history of upholding 

Federal regulation of ostensibly local activity on the theory 

that such activity may have some· affect on interstate commerce. 

Local activities, regardless of their size and their appearance 

as purely intrastate, may in fact affect interstate commerce if 

the activity falls· within a class of regulated activity. See: 

Wickard v. Filburn, 317 u.s. 111 (1942>: Fry v. United States, . 421 u.s. 542 (1975). In Perez v. United States·4o2 U.S. 146,· 155 

(1971), the court held that where a class of activities is 

regulated and that class is within the reach of Federal power, 

the courts have no power to exclude "as tr~vial" individual 

instances of the regulated activity. 

. Perez, supra, held that Congress may make a finding as to 

what activity affects interstate commerce, and by doing so it 

obviates the necessity for demonstrating jurisdiction under the 

commerce clause in individual cases. Thus, it is not necessary 

to prove that any particular intrastate activity affects commerce 

if the activity is included in a class of activities which 

Congress intended to regulate because that class affects 

coffilnerce. 

894 
Mining ·is among those classes of activities which are 

covered by the Commerce Clause of the United States Constitution 

and thus is among those classes which are subject to the broadest 

reaches of Federal regulation because the activities affect 

interstate commerce. Marshall v. Kraynak, 457 F. Supp. 907, (W.D. 

Pa, 1978), aff'd, 604 F.2d 231 (3d Cir. 1979), cert. denied, 

444 u.s. 1014 (1980). Further, the legislative history of the 

Act, and court decisions, encourage a liberal reading of the 

definition of a mine found in the Act in order to achieve the 

Act's purpose of protecting the safety of miners. Westmoreland 

Coal Company v. Federal Mine Safety and Health Review Commission, 

606 F.2d 417 (4th Cir. 1979). 

A state highway department operating an intrastate open pit 

limestone mine, the product of which is crushed, broken and used 

to maintain county roads was held to be subject to the Act. Ogle 

County Highway Department, 1 FMSHRC 205 {January 1981). 

A crushed stone mine operation was held to be subject to the 

Act because the sales of rock products, as well as the use of 

equipment manufactured out of state, affected commerce within the 

meaning of the Act's jurisdictional language. Tide Creek Rock 

Products, 4 FMSHRC 2241 (December 1982). 

The cited cases support my conclusion that respondent's 

extraction and processing of the shell material clearly affects 

commerce within the meaning of the ·Act. 

Conclusions of Law 

1. The Con~ission has jurisdiction over this proceeding • . 

2. The discharge of Wisdom by respondent on April 4, 1988 

violated section 105{c){l) of the Federal Mine Saf~ty and Health 

Act of 1977. 

ORDER 

It is ORDER8D that: 

1. Complainant shall file a detailed statement within .fifteen (15) days of this Decision, indicating the specific 

relief requested. The statement shall be served on the 

respondent who shall have fifteen (15) days from the date service 

is attempted to reply thereto. 

2. This Decision is not final until a further Order is 

issued with respect to complainant's relief. In the event th~t a 

contested issue of fact arises as to the proper type or quantum 

of damages due the complainant, a hearing on that issue or issues 

895 
will be required, and it will be held at 10:00 a.m., on Friday, 

June 1, 1990, in Orlan4o, Florida. The specific courtroom in 

which it will be held will be designated, · if necessary, at .a 

later date. 

As an optional method of compliance with this order, the 

parties may submit a joint proposed order for relief. Respondent's stipulation of the terms of a relief order will not 

prejudice its rights to seek review of this decision. 

Law Judge 

Distribution: 

Glenn M. Embree, Esq., Office of the Solicitor, O.S. Department 

of Labor, 1371 Peachtree Street, N.E~, Room 339, Atlanta, GA 

30367 {Certified Mail) 

James E. Foster, Esq., Foster & Kelly, 20 Nqrth Orange Avenue, 

Suite 600, Orlando, Florida 32801 (Certified Mail) 

/~ 

896 
FEDERAL .MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES. 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

APR 3 0 1990 

SECRETARY OF LABOR, . . DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH . . ADMINISTRATION (MSHA), . . Docket No. WEST 89-79-D 

ON BEHALF OF· JACK WINNINGHOFF, . . Black Pine Mine 

Complainant . . 

. . v. 

BLACK PINE MINING COMPANY, . . Respondent . . FINAL ORDER DISMISSING PROCEEDING WITH PREJUDICE 

Before: Judge Cetti 

In accordance with my Decision approving Settlement of 

March 27, 1990, the Secretary, having advised that the settlement 

terms have been fully complied with by Respondent, this proceed- ~ng is dismissed with prejudice. 

Law Judge 

Distribution: 

Tina Gorman, Esq., Office of the Solicitor, u.s. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Ann R. Klee, Esq., Thomas c. Means, Esq., Crowell & Moring, .. 1001 Pennsylvania Avenue, N.W., Washington, D.C. 20004-2505 

(Certified Mail) 

Gary w. ·callahan, Esq., Black Pine Mining Company, c/o Western 

Gold Exploration and Mining Company, Building 4, Suite 350, 

1536 Cole Boulevard, Golden, CO 80401 (Certified Mail) 

/ek 

897 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v •. 

SIERRA AGGREGATE, INC. 

Respondent 

DENVER. CO 80204 APR 3 0 1990 

CIVIL. PENALTY PROCEEDING 

: Docket No. WEST 89-138-M 

: A.C. No. 04-04707-05508 

: Docket No. WEST 89-173-M 

: A.C. No. 04-04707-05509 

~ed Top Mine 

DECISION 

Appearances: Jonathan s. Vick, Esq., Office of the Solicitor, 

u.s. Department of Labor, Los Angeles, California 

for the Petitioner; 

Donald G. Jolly, President, Sierra Aggregate, Inc. 

for the Respondent. 

Before: Judge Morris 

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

Health Administration (MSHA), charges respondent with violating 

safety regulations promulgated under the Federal Mine Safety and 

Health Act, 30 u.s.c. § 801, et seg. (the Act). 

After nqtice to the parties, a hearing on the merits commenced in Reno, Nevada on March 29, 1990. 

At the hearing the parties reac~ed an amicable settlement 

and entered into the following stipulation. 

Docket No. WEST 89-138-M: 

Citation No. 3286098: this citation should be affirmed as 

a non-S&S violation and the proposed penalty should be affirmed. 

Citation No. 3286099: this citation should be affirmed as 

a non-S&S violation. Further, the proposed penalty of $105 

should be reduced to a penalty of $20. 

Citation No. 3293961: th-is citation should be amended to 

allege a non-S&S violation of 30 C.F.R. § 4200(b)(2). Further, 

the proposed penalty should be affirmed. 

898 
Citation No. 3293962: this citation and the proposed 

penalty of $20 should be affirmed. ' 

Citation No. 3293963: this citation should be amended to 

allege a non-S&S violation of 30 c.i.R. § 56.4200 (B)(2) and the 

proposed penalty of $63 should be reduced to a penalty of $20. 

Citation No. 3293964: this citation should be amended to 

allege a non-S&S violation and the proposed penalty should be 

reduced from· $85 to $20. 

Docket No. WEST 89-173-M: 

Citation No. 3293966: this citation is amended to allege 

a non-S&S violation of section 109(a) of the Act and the penalty s~ould be reduced from $50 to $20. 

Citation No. 3286032: this citation should be affirmed as 

a non-S&S violation and the proposed penalty should be reduced 

from $126 to $20. 

Citation No. 3286033: this citation should be affirmed and 

the proposed penalty reduced from $98 to $75. 

·I have reviewed th~ sti~ulation and I find it is reasonable. 

Further, it is in the public interest that the proposed settlement should be approved. 

Accordingly, _ I enter the following: 

ORDER 

1. The stipulation and pro~osed settlement are approved. 

2. The foregoing citations, as amended· by the stipulation, 

are affirmed. 

3. The following civil penalties are assessed: 

Docket No. WEST 89-138-M: 

Citation No. 

3286098 

3286099 

3293961 

3293962 

3293963 

3293964 

899 

Penalty 

$20 

20 

20 

20 

20 

20 

.. 
.· 

Docket No. WEST 89-173-M: 

Citation No. 

329.3966 

3286032 

3286033 

Penalty 

$20 

20 

75 

4 . Respondent is ordered. to pay to the Secretary the sum 

of $235.00 within 40 days of th~ date of this decision. 

Law Judge 

Distribution: 

Jonathan s. Vick, Esq., Office of the Solicitor, u.s. Department of Labor, Room 3247 Federal Building, 300 North Los Angeles 

Street, Los Angeles, CA 90012 · (Certified Mail) 

Mr. Donald G. Jolly, President, Sierra Aggregate Company, Inc., 

P. O. Box 1725, Bishop, CA 93514 (Certified Mail) 

/ot 

900 
·' ... 

ADMINISTRATIVE LAW JUDGE ORDERS 

. ~ .. 

. . 

.... . : . : . . . 
.' 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION . . . 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

M. JAMIESON COMPANY, 

Respondent 

March 2, 1990 

~IVIL PENALTY PROCEEDING 

Docket No. WEST 90-41-M 

A. C. No. 04-01924-05517 

Pleasanton Pit & Mill 

ORDER ACCEPTING LATE FILING 

ORDER OF ASSIGNMENT 

on January 24, 1990, an order to show cause was issued to 

the Solicitor directing him to file his penalty petition. On 

February 9, 1990, the Solicitor filed the proposal for penalty 

and responded to the show cause order. 

A civil penalty petition should be filed within 45 days of 

receipt of a timely notice of contest of a penalty. 29 C.F.R. 

§ 2700.27(a). The Commission has held that the late filing of 

a petition will be accepted where the Secretary demonstrates 

adequate cause and where there is no showing of prejudice to the 

operator • . An extraordinarily high caseload and lack of clerical 

personnel were held adequate cause for filing two .months late. 

Salt Lake countv Road Department, 3 FMSHRC. 1714 (July 1981); See 

also, Medicine Bow Coal Company, 4 FMSHRC 882 (May 1982). However, adequate cause has not been found where there was a showing 

of prejudice, Price River Coal Co., 4 FMSHRC 489 (March 1982), 

and where the proposal was over a year and a half late,· Lawrence 

Ready Mix Concrete, 6 FMSHRC 246 (Feb. 1984). 

In this case~ the Solicitor's motion states that the filing 

was late because: 

The file in the captioned case, 90-41-

M, was erroneously placed in with another 

pending matter against Respondent (WEST 89-

464). Counsel for petitioner was unaware of 

the existence of 90-41-M and, therefore, did 

not file a propos.al for penalty. 

A relatively short period of time is involved and the 

response to the show cause was prompt. Further, there is no 

showing of prejudice by the operator nor does the operator 

allege this in its answer. 

901 

.. 

,• 
In light of the foregoing, the Solicitor's proposal for 

penalty is ACCEPTED. .. , 

This case is hereby assigned to Administrative Law Judge 

John J. Morris. 

All future communications regarding this case should be 

addressed to Judge Morris at the following ~ddress: 

Distribution: 

Federal Mine Safety and Health 

Review Commission 

Office of Administrative Law Judges 

Colonnade Center 

Room 280, 1244 Speer Boulevard 

Denver, co 80204 

Telephone No. 303-844-3912 

- Paul Merlin 

Chief Administrative Law Judge 

George B. O'Haver, Esq., Office of the Solicitor, u.s. Department 

of Labor, 71 Stevenson street, Suite 1020, San Francisco, CA 

94105 (Certified Mail) 

Mr. Richard Kelly, M. Jamieson Company, P. o. Box 850, 501 El 

Charro Road, Pleasanton, CA 94566 (Certified Mail) 

902 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

, COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

WYOMING FUEL COMPANY, 

Contestant 

v. 

SECRETARY OF LABO~, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

March 13, 1990 

I ORDER 

CONTEST PROCEEDINGS 

Docket No. WEST 90-112-R 

Order No. 2930784~ 2/13/90 

Docket No. WEST 90-113-R 

Citation No. 2930785~ 2/13/90 

Dock~t No. WEST 90-114-R 

Order. No. 3241331~ 2/16/90 

Docket No. WEST 90-115-R 

Citation No. 3241332~ 2/16/90 

Docket No. WEST 90-116-R 

Citation No. 3241333; 2/16/90 

Golden Eagle Mine 

MSHA Mine ID No. 05-02820 

The Secretary has requested, pursuant to Rule 74,· 29 C.F.R. 

§ 2700.74, that the judge certify his ruling of March 2, 19~0 to 

the Commission. 

The Secretary restates her previous position. 

Discussion 

The Secretary's request for certification is denied. As 

previously stated, the judge believes an expedited hearing is 

mandated when an order is issued under section 107. 

In an unrelated case, Medicine Bow Coal Company, Docket 

Nos. WEST 90-117-R · and WEST 90-123-R, the judge concluded an 

expedited hearing was not mandated for a section 104(d) order 

unless the operator met certain criteria. A copy of the order ·• 

in Medicine Bow is. attached. 

The judge believes the statute is clear. Further, Commission Rule 52, 29 C.F • .R. § 2700.52 does not address the issue. 

Accordingly, the Secretary's motion is denied. 

Law Judge 
,' 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

. DENVER, CO 80204 

March 13, 1990 

MEDICINE BOW COAL COMPANY, 

Contestant 

v •. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

ORDER 

CONTEST PROCEEDINGS 

Docket No. WEST 90-117-R 

Citation No. 3241007; l/17/90 

Docket No. WEST 90-123-R 

Citation No. 3295756; 2/13/90 

Pilot Butte Mine 

Mine I.D. No. 48-01012 

These cases arose :under the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801 ~seq. 

Contestant seeks an expedited hearing. The Secretary 

opposes. 

In WEST 90-117-R the Sec.retary, pursuant to Section 104 

(d)(l), issued Citation No. 3241007 on January 17, 1990. The 

citation alleges a violation of 30 C.F.R. § 75.807. The notice 

of contest was docketed with the Commission on February 20, 1990. 

In WEST 90-123-R the Secretary, pursuant to Section 104(d) 

(1), issued Order No. 3295756 on February 13, 1990. The citation 

alleges a violation of 30 C.F.R. § 75.517. The notice of contest 

was docketed with the Commission on February 28, 1990. 

As a grounds for its motion Contestant states it is subject 

to a continuing possibility of orders· issued pursuant t'o Section 

104(d) of the Act despite its beli~f that the citation and order 

were not properly issued pursuant to the Act. 

Discussion 

Portions of the Mine Act, and Commission Rule 52, 29 C.F.R. 

§ 2700.52 1/ deal with expedited hearings. These sections should 

be considered. 

1/ The Commission rule broadly addresses expedited hearings but 

It does not consider appeals of § 104(d) orders. 

904 
As a threshold matter: Secti'on 107(a) 2/ and its subparts 

deal with imminent danger orders qnd withdrawal notices issued 

under section 107. Subpart ·(e) 3/ addresses a hearing before the 

Commission. The sQbpart provides as follows: 

" (e) ( i) Any operator notified of an order 

under this section or any represen.tative of miners 

notified of the issuance, modification,. or termination of such an order may apply to the commission 

within 30 days of such notification for reinstatement, modification or vacation of such order. The 

Commission shall forthwith afford an opportunity 

for a hearing (in accordance with section 554 of 

title 5, United States Code; but without regard to 

subsection (a)(3) of such section) and thereafter 

shall issue an order, based upon findings of fact, 

vacating, affirming, modifying, or terminating the 

Secretary's order. The Commission and the courts 

may not grant temporary relief from the issuance 

of any order under subsection (a). 

(2) The Commission shall take whatever 

action is necessary to expedite proceedings this 

subsection." 

The enforcement documents involved in these cases were 

not issued under section . l07 of the Act but under section 104. Accord~ngly, it is necessary to look to other portions of the 

Act. 4/ · 

The controlling portion of the Act is found in section 105 

(a)(B)(2) which provides as follows: 

£:./ 30 u.s.c. § 817. 

ll 30 u.s.c. § 817(e). 

!/ On March 2, 1990, in unrelated cases, Wyoming Fuel Company, 

WEST 90-112-R the judge ruled contestant therein was entitled to . an expedited hearing. However, Wyoming Fuel dealt with an order 

issued under Section 107(a) of the Act. 

905 
. ' 

"(2) As applicant may file with the Commission a written request that the Commission 

grant temporary reiief from any modification or 

termination of any order or from any order issued 

under section 104 together with a detailed statement giving the reasons for grant~ng such relief. 

The Commission may grant such relief under such 

conditions as it may prescribe, if -

(A) a hearing has been held in which all 

parties were given an opportunity to be heard7 

(B) the applicant shows that there is 

substantial likelihood that the findings of the Co~nission will be favorable to the applicant7 

and 

(C) such relief will not adversely affect 

the health and safety of miners. 

No temporary relief shall be granted in the case 

of a citation issued under subsection (a) or (f) 

of section 104 • . The Commission shall provide a procedure for expedited consideration of applications 

for temporary relief under this paragraph. 

In the instant cases contestant's sole basis for. an expedited hearing is that it "is subject to a continuing possibility 

of the issuance of orders pursuant to Section 104(d) of the Act." 

However, Contestant's position is not unique. Every mine operator is subject to the "possib1lity" of the issuance. of "104(a)" 

orders. In .addition, these cases both involve 104Cd> orders and 

contestant has failed to allege that it is within the criteria 

required by subparagraphs (A), (B) and (C) of§ 105(a)(B)(2). 

For the foregoing · reasons contestant's motion to expedite 

is denied. 

Law Judge 

906 
FEDERAL MINE SAFETY AND HEALTH REVIEW. COMMISSION 

RICKY HAYS, 

v. 

LEECO I INC. I 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

703-756-6232 

April 16, 1990 

Complainant 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. KENT 90-59-D 

MSHA Case No. BARB CD 89-32 

No. 62 Mine 

ORDER DENYING MOTION TO VACATE ORDER GRANTING 

MOTION TO PERMIT ENTRY UPON DESIGNATED LAND 

This matter is scheduled for a hearing in Pikeville, 

Kentucky, on Tuesday, May 8, 1990. The parties have engaged in 

pretrial discovery, including the scheduling of depositions. On 

April 13, 1990, complainant's counsel filed a motion seeking an 

order permitting the complainant, his counsel, and an expert 

witness to enter the respondent's underground -mine for the 

purpose of inspecting, measuring, and possibly photographing the 

continuous haulage system. The complainant claims that he was 

discharged because he had not serviced a grease fitting on the 

No. 1 bridge of said haulage system. He contends that the 

respondent required its eleqtricians to serv_ice the equipment 

while it is in operation, in violation of _Federal law·, and tbat 

his failure to service the equipment ·was based on ·his belief that 

it would be unsafe to do so. · · 

In support of the motion, complainant's counsel stated that 

he was unfamiliar with the continuous haulage system and has been 

informed by Long Airdox, the manufacturer, that there are no such 

systems available for inspection in Kentucky other than in 

underground mines. counsel asserted that the inspection of the 

system is fundamental to a thorough preparation of his case, and 

that counsel and the expert witness are willing to receive the 

necessary training before entering the mine, and are willing to·· inspect the system during a non-production shift. counsel stated 

further that after contacting the respondent's counsel seeking 

permission to enter the mine, he was informed that the respondent 

would not permit any entry into its mine without a court order. 

On April 6, 1990, I issued an order granting the 

complainant's motion to permit entry into the respondent's mine. The order was issued before the expiration of the available 

10-day period for a response pursuant to Commission Rule 10, 

29 C.F.R. § 2700.10. The respondent's counsel has now filed a 

907 

---

. 

' 
.' 

motion to vacate my order and to deny the complainant's motion to 

permit entry to the mine. In support of. his motion, counsel 

states that no order should have issued until on or after 

April 12, 1990, and he seeks leave to file his response and 

objections to the complainant's mdtion. With regard to the 

merits of the complainant's motion to permit entry to the mine, 

counsel advances the following· arguments in support of his · 

objections: 

1. The respondent has already provided to the 

complainant's attorney the name of the manufacturer and 

the model numbers of the. equipment in question, and 

complainant's counsel should be able to obtain 

photographs, diagrams, specifications, etc., sufficient 

for a determination .as to the safety of greasing the 

equipment in question. Further, if the complainant has 

retained an "expert" on this matter, such expert, as a 

prerequisite of his being permitted to give opinion 

testimony, should already be familiar with the 

equipment in question. 

2. The discovery requested by the complainant 

poses an undue burden upon the respondent. If the 

complainant's motion were granted, the respondent would 

be required to designate personnel to escort the 

complainant's attorneys and expert witness into the 

mine, at the cost of several man hours. It would also 

appear that the respondent is expected to provide 

safety training and orientation to the attorneys and . 

experts. Further, the inexperience of the attorney~ 

and experts as to the hazards presented in an 

underground coal mine, even during a nonproduction 

shift, poses· a threat of harm not. only to the attorneys 

and experts but to· the employees at the mine as well. 

On April 11, 1990, I held a telephone conference with 

counsel for the parties and heard further arguments with respect 

to the motion, including the complainant's response to the 

respondent's objections, which were subsequently reduced to 

writing and filed with me . on April 13, 1990. Complainant's 

counsel has reasserted his need for an on-site inspection of the 

continuous haulage system, which he believes is crucial to his 

case. Counsel states that he intends to depose two of the 

respondent's key witnesses who are "intimately familiar" with the 

system, and in order to adequately prepare for the taking of 

their -depositions, as well as the trial of the case on the merits 

of the complaint, it is essential that he be permitted to examine 

the system in place at the respondent's mine . Counsel further 

states that he has travelled underground, has completed a 40-hour 

inexperienced miner's safety training course required by the 

State of Kentucky, and that during the requested mine visit, the 

908 
complainant and his representatives would pe accompanied at all 

times by the respondent's agents. 

Conclusion 

After careful consideration of the further arguments 

advanced by the parties, including the respondent's objections, I 

conclude and find that the complainant has established a 

reasonable basis for his request to enter the mine under the 

conditions stated in his motions, and that on balance, they 

outweigh the arguments advanced by the respondent. Under the 

circumstances, and upon further consideration of my prior ruling 

and order of April 6, 1990, IT IS AFFIRMED, and the respondent's 

objections ARE DENIED. 

ORDER 

The respondent IS ORDERED to permit the complainant, his 

attorneys, and expert witness to enter the mine for the purpose 

of inspecting, measuring, · and possibly photographing. the 

continuous haulage system in question. Counsel for the parties 

are expected to agree to a mutually convenient time for the mine 

visit, taking into account the safety of the inspection party, 

and with the least amount of disruption to the respondent's 

mining operations. . ; 

In .view of the proximity of the scheduled hearing, and the 

complainant's established need for inspecting the haulage system 

prior to the anticipated taking of the depositions of 

respondent's witnesses, respondent is expected to expeditiously 

compl.y with thiS? order. 

~~p

dministrative 

orge • K~tras ~~ 

Law Judge 

Distribution: 

Tony Oppegard, Esq., Appalachian Research & Defense Fund of .• 

Kentucky, Inc., P.O. Box 360, Hazard, KY 41701 (Certified Mail) 

Stephen A. Sanders, Esq., Appalachian Research & Defense Fund of 

Kentucky, Inc., 205 Front Street, Prestonburg, KY 41653 

(Certified Mail) 

·.rimothy Joe Walker, Esq., Reece, Lang & Breeding, P.O. 

Drawer 5087, London, KY 40741 (Certified Mail) 

/fb 

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910